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THE LIVES
OF
THE CHIEF JUSTICES
OF
ENGLAND.
JUDGES IN THEIR ROBES
Temp. ELIZABETH
From MS Add. 28330 (British Mir
EV
c
TH1 JUSTICES
D.
CATH
BY
JOHN HELL,
. 'kit/ Jtulict »tut LtrJ Hifk Ck**ctller ,/ i«.
flew ant» "Kepiseft f
!.USTKATIO'
EDITED BV
NORTfi \ND, N. Y. :
EDV
c\
THE LIVES
THE CHIEF JUSTICES
OF
ENGLAND.
FROM THE NORMAN CONQUEST TILL THE DEATH
OF LORD TENTERDEN.
JOHN, LORD CAMPBELL,
Lord Chit/Justict and Lord High Chancellor o/ England.
\
IRew anJ> tReviseb E&ition.
WITH ILLUSTRATIONS AND NUMEROUS ANNOTATIONS.
EDITED BY JAMES COCKCROFT.
VOL. II.
NORTHPORT, LONG ISLAND, N. Y. :
EDWARD THOMPSON CO., PUBLISHERS.
1894.
Copyright, 1894,
BY
EDWARD THOMPSON Co.
BOBF-HT DRUMMOND, ELRCTROTYPER AND 1'RIMTER, NEW YORK.
CONTENTS.
CHAPTER X.
PACE
CONCLUSION OF THE LIFE OF SIR EDWARD COKE, i
CHAPTER XI.
LIVES OF THK CHIEF JUSTICES FROM THE DEMISE OF SIR EDWARD CORK
TILL THE ESTABLISHMENT OF THE COMMONWEALTH, . . . .45
CHAPTER XII.
CHIEF JUSTICES OF THE UPPER BENCH DURING THE COMMONWEALTH, . 142
CHAPTER XIII.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN 185
CHAPTER XIV.
LIFE OF LORD PRESIDENT BRADSHAW, 22g
CHAPTER XV.
CHIEF JUSTICES OF THE KING'S BENCH FROM THE RESTORATION TILL THE
APPOINTMENT OF SIR MATTHEW HALE, 248
CHAPTER XVI.
LIFE OF LORD CHIEF JUSTICE HALE, FROM HIS BIRTH TILL THE RESTORA-
TION OF CHARLES II., 273
CHAPTER XVII.
CONTINUATION OF THE LIFE OF SIR MATTHEW HALE TILL HE RESIGNED
THE OFFICE OF CHIEF JUSTICE OF THE KING'S BENCH, . . . - 311
CHAPTER XVIII.
CONCLUSION OF THE LIFE OF CHIEF JUSTICE HALE, ..... 355
CHAPTER XIX.
CHIEF JUSTICES FROM THE RESIGNATION OF SIR MATTHEW HALE TILL THE
APPOINTMENT OF JEFFREYS 372
v
LIST OF ILLUSTRATIONS.
JUDGES is THEIR ROBES (colored lithograph) frontispiece
JOHN SKLhEN facing page 2
CHARLES I. OPENING PARLIAMENT
GEORGE VILI.IERS, DUKE OF BUCKINGHAM " " 18
MorsE OK COMMONS, TIME OF CHARLES I " 24
JOHN PVM, 32
JAMES I., " " 46
COURT OF WARDS AND LIVERIES ABOUT 1590, ... " " 52
CHIEF JUSTICE CREWE, " " 76
CHARLES I y°
LORD COVENTRY 104
LAUD, ARCHBISHOP OF CANTERBURY " " 108
JOHN HAMPUEN u(>
SIR JOHN ELIOT " " 130
SIR THOMAS LITTLETON, KT. (colored lithograph), . . . 140
GENERAL MONK " " 174
SIR HARRY VANE " 180
OLIVER CROMWELL, " " 200
TRIAL OF CHARLES 1 234
SIR MATTHEW HALE (colored lithograph) 27(1
GILBERT BURNKT. BISHOP OF SALISBURY, .... 304
EDWARD HYDE, EARL OF CLARENDON, «... ^jf,
RICHARD BAXTER " " 3'8
ANTHONY ASHLEY COOPER, EARL OF SHAFTESBURY, . " " 320
JOHN BUNYAN 336
JOHN TILLOTSON, ARCHBISHOP OF CANTERBURY, . . . 348
MATTHEW HALF. MM ^jg
ROGER NORTH, " " 378
TITUS DATES " " 386
WILLIAM BEDLOE 39°
ALGERNON SIDNEY, " " 400
BIOGRAPHICAL NOTES IN VOLUME II.
PACK
ANTHONY ASCHAM, 218
Sir ROBERT ATKYNS, 394
Sir JOHN BANKES, 117
ISAAC BARROW, 348
RICHARD BAXTER 317
WILLIAM BEDLOE 3gg
Sir ORLANDO BRIUGMAN, 319
JOHN BUNYAN, 335
GILBERT BURNET, Bishop of Salisbury 307
HENRY BURTON 10,5
Sir JULIUS C^SAR 61
Lord ARTHUR CAPEL, 237
CERDIC, 77
WILLIAM CHIFFINCH, 382
ANTHONY ASHLEY COOPER, Earl of Shaftesbury 313
JOHN COWELL, ji
RICHARD CROMWELL, 302
THOMAS DANGERFIELD 392
Sir JOHN DODDRIDGE, ........... 57
ISAAC DORISLAUS 218
Sir ROBERT DUDLEY, . . .191
Sir JAMES DYKR, 33
WILLIAM FIENNES, Viscount Say, 116
HENEAGE FINCH, 372
Lord JOHN FINCH, ig
EDWARD FLOYD 70
Sir EDMUNDBURY GODFREY, 384
Sir HARBOTTI.E GRIMSTON 311
GROTIUS, 138
HKNRY GUY 380
JOHN HAMPDEN, 115
Lord HOLLIS 167
EDWARD HYDE, Earl of Clarendon, 316
JAMES, Duke of Hamilton, 236
DAVID JENKINS, 212
JOHN LAMBERT. 312
Sir RICHARD LANE 201
ix
X BIOGRAPHICAL NOTES IN VOLUME II.
PAGS
WILLIAM LAUD, Archbishop of Canterbury 107
Sir ROGER L'ESTRANGE log
JOHN LILBURNE, 230
CHRISTOPHKR LOVE, 290
EDMUND LI:DLOW 225
Sir THOMAS LYTTLETON, 23
GEORGE MONK, Duke of Albemarle, ........ 177
Sir EDWARD MONTAGU, Earl of Manchester 63
JAMES NAYI.KR, 176
ROGER NORTH, 378
Trrus DATES . . .384
JOHN OLDMIXON, 107
THOMAS OSBORNE, Duke ot Leeds, 375
ROGER PALMER, Earl of Castlemain, 391
Colonel JOHN PENRUDDOCK, 170
HUGH PETERS, 292
EDMUND PLOWDEN, 33
WILLIAM PRYNNE, 2
ROLLO, Duke of Normandy 162
Prince Rui'ERT, 42
Lord WILLIAM RUSSELL 396
EDWARD SACKVILLE, Earl of Dorset, 108
GEORGE SAVILLE, Marquis of Halifax, ........ 399
JOHN SELDEN i
ALGERNON SIDNEY, 400
EDWARD STILLINGFLEET, 349
LUDOVIC STUART, Duke of Richmond, 61
JOHN THURLOE, 224
JOHN TILLOTSON, 349
Sir HENRY VANE (the Elder), 197
Sir HENRY VANE 179
THOMAS WENTWORTH, Earl of Strafford, 163
BULSTRODE WHITELOCKE, 181
JOHN WILKINS, 347
LIVES
OF THE
CHIEF JUSTICES OF ENGLAND.
CHAPTER X.
CONCLUSION OF THE LIFE OF SIR EDWARD COKE.
FROM the middle of the sixteenth to the middle CIIAP- x
of the eighteenth century, there were few public men
of much note who, in the course of their lives, had
not been sent as prisoners to the Tower of London. Dec. 27,
This distinction was now acquired by Sir Edward Cokecom-
Coke. He was committed along with Selden,1 the Tower.
I. John Selden was born at Salvinton, Sussex, Dec. 16, 1584. He was
educated first at Chichester, and next at Hart Hall, Oxford, whence
he removed to Clifford's Inn, and afterwards to the Inner Temple, where
he was called to the bar ; but devoted himself chiefly to literary studies,
the fruits of which appeared in several learned treatises, particularly his
"Titles of Honour," 1614 ; and another work, " De Diis Syris," on the
idolatry of the ancient Syrians. But his next performance brought him
into some trouble. This was the " History of Tythes, " for which he was
called before the Court of High Commission, and compelled to subscribe
an acknowledgment of his error. In 1621 he was committed to the
custody of the sheriff of London, for giving an opinion derogatory
to the regal prerogative ; but his confinement lasted only five weeks.
In 1623 he was chosen a member of the House of Commons, where he
distinguished himself by his opposition to the Court. He was also one of
the counsel for Hampden , and on the dissolution of Parliament was sent
to the Tower, whence he was removed to the rules of the King's Bench ;
but, after being balled from time to time, obtained his discharge in 1634.
The same year he was employed to defend the sovereignty of England
over the Narrow Seas, in opposition to Grotius. This undertaking he
accomplished in a work called "Mare Clausum," a copy of which was
2 REKJN OF JAMES I.
CHAP. x. Prynne,1 and other leaders of the Opposition. At the
same time, orders were given for sealing up the locks
and doors of his house in Holborn and of his chambers
in the Temple, and for seizing his papers.2 A general
ordered to be laid up with the public records. In 1640 Selden was elected
into Parliament for the University of Oxford ; but in the ensuing troubles
he acted a very timid part ; and accepted a seat as a lay-member of the
famous Westminster Assembly, where he took a pleasure in perplexing his
colleagues by the depth of his oriental learning. In 1643 he was made
Keeper of the Records in the Tower. On the execution of the King, Selden
retired very much from public life ; and refused to answer the unfortunate
monarch's book, called " Eikon Basilike." He died at the house of the
Countess of Kent, to whom he was supposed to have been secretly
married, Nov. 30, 1654, and was buried in the Temple Church. — Cooper's
Biog. Diet.
On the occasion of Sir John Eliot's first arrest for words spoken in
Parliament, in 1626, the House of Commons, in reply to the Speaker's
call to proceed to the orders of the day, shouted "Sit down ! sit down !
No business till we are righted in our liberties ! " Sir Dudley Carlelon,
who held an office at Court, attempted to soothe and at the same time warn
the House. . . . The House, however, was in no mood to listen to his
caution ; many members called out against the Speaker, " To the bar ! to
the bar !" and as the House would go on with no business, the King was
reluctantly compelled to release Eliot after eight days' imprisonment, and
to wait for another opportunity to punish him as he desired. — Jf linings'
Anecdotal Hist. Brit. Part. (Am. Ed.) 21.
1. William Prynne, born at Swanswick, Somersetshire, 1600. He was
educated at Bath, and next at Oriel College, Oxford, whence he removed
to Lincoln's Inn. In 1633 he was prosecuted in the Star Chamber fora
libel entitled " Histriomastix," when he was sentenced to pay a fine
of 5,ooo/ , to be expelled the University of Oxford and the Society of
Lincoln's Inn, and, after losing his ears in the pillory, to be imprisoned
for life. In 1637 Prynr.e fell again under the censure of the same court
for another libel, when he was doomed to lose the remainder of his ears,
to have his cheeks branded, to pay another fine of 5,ooo/., and to be
perpetually confined in Caernarvon Castle ; but afterwards he was removed
to Jersey, where he remained till the meeting of the Long Parliament,
when he entered London in triumph. He was soon after elected a member
of the House of Commons, where he distinguished himself as the leading
manager in the prosecution of Archbishop Laud. Prynne, however,
opposed Cromwell as vehemently as he had done the King, for which he
was sent to Dunster Castle ; but in 1659 he was restored to his seat. He
was instrumental in the recall of Charles II., for which he was appointed
Keeper of the Records. In 1661 he fell under the censure of the House
for publishing an address to the peers against a bill then in progress
respecting corporations. Prynne was a most voluminous writer, but his
principal work is a collection of records. Died Oct. 24, 1669. — Copper's
Biog. Diet.
2. The " Instructions to the Gentlemen that are to search Sir Edward
JOHN SELDEN.
AFTER SIR PETER LEI.Y.
LIFE OF SIR EDWARD COKE. 3
pardon being about to be published, according toCHAP-x-
usage on the dissolution of parliament, the Council
deliberated for some time respecting the mode by
which he should be deprived of the benefit of it. The
first expedient was to exclude him by name; and then An indict-
, . • i • ment ex-
the proposal was adopted or preferring an indictment eludes him
. .... from a
against him, so that he might come within the excep- general
tion of such as were under prosecution.
The ex-Chief Justice being carried to the Tower,
and lodged in a low room which had once been
a kitchen, he found written on the door of it by a wag
— " This room has long wanted a Cook; "l and he was
soon after complimented in the following distich, —
" Jus condere cocus potuit, sed condere jura
Non potuit ; potuit condere jura cocus." 8
Instead of being prosecuted for his speeches in the *.r>. 1622.
House of Commons, the true ground of his imprison-
ment, he was examined before the Privy Council on a
stale and groundless charge, that he had concealed The
charges in
some depositions taken against the Earl of Somerset ; his indict-
' ment.
—he was accused of arrogant speeches when Chief
Justice, especially in comparing himself to the prophet
Samuel ; — and an information was directed to be filed
against him in the Star Chamber, respecting the bond
for a debt due to the Crown, which he had taken from
Sir Christopher Hatton. By way of insult, Lord
Arundel was sent to him with a message "that the The King's
King had given him permission to consult with eight message.
of the best learned in the law on his case." But he
returned thanks for the monarch's attention, and said
Coke's papers," are still extant. There is an injunction "to take some of
his servants or friends in their company, who shall be witnesses that they
meddle with nothing that concerns his land or private estate." — Cotton
MS., Titus B. vii. 204.
1. D'Israeli's James I., p. 125.
2. "The Cookcould make broth, but could not make laws ; the Cook
could make broths [soups]."
4 REIGN OF JAMES I.
CHAP. x. «he knew himself to be accounted to have as much
skill in the law as any man in England ; and, therefore,
needed no such help, nor feared to be judged by
the law : he knew his Majesty might easily find a
pretence whereby to take away his head ; but against
this it mattered not what might be said."1 His
confinement was, at first, so rigorous, that " neither
his children or servants could come at him;"2 but he
was soon allowed to send for his law books — ever his
ploys him- chief delight,— and he made considerable progress
"Co?Litt." with his Commentary on Littleton, which now en-
grossed all his thoughts.
After a few months' confinement, the proceedings
against him were dropped ; and in consequence of the
intercession of Prince Charles he was set at liberty.3
The King, however, finally struck his name out of the
list of Privy Councillors, and, declaring his patriotism
to proceed from disappointed ambition, exclaimed in
spleen, " He is the fittest instrument for a tyrant that
ever was in England."4
Heisre- No parliament sitting for two years, Sir Edward
the inter- Coke, during this interval, remained quiet at his seat
cession of .
the Prince m Buckinghamshire ; but, there being an intention
of Wales.
ot calling a new parliament, he was, in the autumn of
A.D. 1623. 1623, put into a commission with several others,
requiring them to proceed to Ireland, and make
certain inquiries there, — a common mode, in the
Stuart reigns, of inflicting banishment on obnoxious
politicians. He had formerly complained of this
i. D'Israeli's James I., 126. 2. Roger Coke.
3. The following dialogue is said to have passed between the Prince and
the King on this occasion : P. "I pray that your Majesty would merci-
fully consider (he case of Sir Edward Coke." K. "I know no such man."
P. " Perhaps your Majesty may remember Mr. Coke." A'. " I know no
such man. By my saul, there is one Captain Coke, the leader of the
faction in parliament." — Shane AfSS. Feb. 2, 1621-22, in the British
Museum.
4. Wilson's Life of James I., 191.
LIFE OF SIR EDWARD COKE. 5
abuse of the royal prerogative; but on this occasion CHAP. x.
he dextrously said, " he was ready to conform to his feats an at-
Majesty's pleasure, and that he hoped in the sister baS'him
isle to discover and rectify many great abuses." This to
threat so alarmed the Court that he was allowed
to remain at home. Afterwards, when speaking of
this practice, he said, " No restraint, be it ever so
little, but is imprisonment ; and foreign employment
is a sort of honorable banishment. I myself was
designed to go to Ireland ; I was willing to go, and
hoped, if I had gone, to have found some Mompessons
there."1
The Spanish match, which the nation so much
disliked, having been suddenly broken off, and a war
with Spain, which was greatly desired in England,
now impending, a sudden change arose in the state of chhape" inf
parties, and for a time a reconciliation was effected parties,
between Buckingham and the leaders of the Puritans.
To court them, he even went so far as to encourage
schemes for abolishing the order of bishops, and selling
the dean and chapter lands in order to defray the
expenses of the war.
Under these circumstances the new parliament Coke for a
was called, and Sir Edward Coke was returned for reconciled
/-I i • •!! -IT-. r .to Buck-
Coventry, having still remained Recorder of that city, ingham.
and kept up a friendly intercourse with its inhabitants.
At the commencement of the session he appeared
as a supporter of the Government, and he declared
Buckingham to be the "saviour of his country."8
He deserves much credit for carrying the actHecarries
of parliament, which is still in force, abolishing Iboitshing
monopolies, and authorizing the Crown to grantees?0'
patents securing to inventors for a limited time the
1. Rushworth, i. 523 ; 2 Parl. Hist. 257.
2. Clarendon says, with great spite, "Sir Edward Coke blasphemously
called him OUR SAVIOUR." — Hist. vol. i. p. 9.
6 REIGN OF JAMES I.
CHAP. x. exclusive exercise of their inventions as a reward
for their genius and industry.1
May. The most exciting proceeding before this parlia-
ductsthe ment was the impeachment of Lionel Cranfield, Earl
^f the of Middlesex, with whom Buckingham had quarrelled,
Middlesex, after having made him, from a City merchant, Lord
High Treasurer of England. He was charged with
bribery and other malpractices in the execution of his
office.
Sir Edward Coke, now in his seventy-third year,
appeared at the bar of the House of Lords as chief
manager for the Commons. After a somewhat prolix
preamble respecting impeachments in general, he said, —
"The House of Commons have appointed me to present
three enormities to your Lordships, much against my inclina-
tion, other members of their House being far more sufficient,
as well in regard of my great years, as of other accidents ; yet
I will do it truly, plainly, and shortly. The first is gross and
sordid bribery. Here I crave favor if I should seem tedious
in some particulars ; for circumstances to things are like
shadows to pictures, to set them out in fuller representation."
His long opening he at last concluded in these words : " All
this I speak by command ; I pray your Lordships to weigh it
well with solemn consideration, and to give judgment accord-
ing to the merits."
inafprac-1'8 The nOD'e defendant had done various things, as
tices and neacj o{ the Treasury, which would now be considered
his sen- J
tence. very scandalous ; but he had only imitated his prede-
cessors, and was imitated by his successors. Yet he
was found guilty, and adjudged " to lose all his offices
I. Stat. 21 James I. c. 3. Hume says, "This bill was conceived in
such terms as to render it merely declaratory ; and all monopolies were
condemned as contrary to law and to the known liberties of the people.
It was then supposed that every subject of England had entire power to
dispose of his own actions, provided he did no injury to any of his fellow
subjects ; and that no prerogative of the King, no power of any magistrate,
nothing but the authority alone of the laws, could restrain that unlimited
freedom."— Vol. vi. p. 143.
LIFE OF SIR EDWARD COKE. J
which he holds in this kingdom; to be incapable ofCHAP-x-
any office or employment in future ; to be imprisoned
in the Tower during the King's pleasure ; to pay a
fine of SO.OOQ/. ; never to sit in parliament any more ;
and never to come within the verge of the Court." '
At the close of the session. Sir Edward Coke May 29,
1624.
retired to Stoke Pogis, and there occupied himself
with his legal studies till he heard of the death of
James I., in the spring of the following year. Jterchay,
He immediately came to his house in Holborn upon Accession
. , of Chas. I.
the report that there was an intention to reassemble
the old parliament, which had expired with the King
who called it; but he found that, although Charles
had expressed a wish to that effect, a proclamation
soon came out for the election of a new parliament.2
He was again returned for Coventry.
At the commencement of the session his demeanor -L"1?622-
Coke's
was marked by moderation. He entertained grood modera-
tion.
hopes of the new sovereign, and was resolved to give
him every chance of a quiet and prosperous reign.
Therefore, on the first day of business, when it was
expected that he would move, as he had done on
former occasions, to appoint a committee for griev-
ances, "he moved that there might be no committee
for grievances, because this was the very beginning of
the new King's reign, in which there can be no griev-
ances as yet." 3 His motion
However, he speedily quarrelled with the Court ; q^yMuo
and when the motion for a supply was made, h
moved, by way of amendment, for a committee t()
1. Lords' Journals ; I Parl. Hist. 1411-1478.
2. The early parliaments of Charles I. were short-lived, the first
having an existence of two months, and the second of little over four.
The third, called together March 17, 1628 (1627, old style), and dissolved
M.~.rch 10, 1629, was a momentous one, for what transpired therein laid
the basis of all that followed in the Long Parliament. — Jennings' Anef
dotal Hist. Brit. Parl. (Am. Ed.) 22.
3. 2 Parl. Hist. 5.
8 REIGN OF CHARLES I.
CHAP. x. inquire into the expenditure of the Crown; speaking
in this wise :
" Necessitas affectata, invincibUis et improvida? If necessity
comes by improvidence, there is no cause to give. No king
can subsist in an honorable estate without three abilities :
1. To be able to maintain himself against sudden invasions.
2. To aid his allies and confederates. 3. To reward his well-
Causes of deserving servants. But there is a leak in the Government,
- whereof these are the causes : Frauds in the customs — new
invented offices with large fees — old unprofitable offices which
the King might justly take away with law, love of his people,
and his own honor — the King's household out of order —
upstart officers — voluntary annuities or pensions which ought
to be stopped till the King is out of debt and able to pay
them — costly diet, apparel, buildings, still increase the leak-
age : the multiplicity of forests and parks, now a great charge
to the King, might be drawn into great profit to him." 3
In his reply he said, —
"Two leaks would drown any ship. Solum et ma! um
concilium is a bottomless sieve. An officer should not be
cupidiis alienee ret, parcus suce. Misera serritus est ulri lex vaga
aut incognita.3 Segrave, Chief Justice, was sentenced for
giving sole counsel to the King against the commonwealth.
I would give i,ooo/. out of my own estate, rather than grant
any subsidy now."
™ The committee was carried, and was proceeding
dissolution so vigorously in the inquiry into grievances, that the
mem. King abruptly dissolved the parliament.
Expedient' But a suPply being soon indispensable, from the
Cokelrom exhausted state of the exchequer, a new parliament
the new was to be summoned, and, to make it tractable, the
par i ia 1 1 1 en t
by making notable expedient was invented of appointing: the chief
him a
Sheriff. Opposition leaders sheriffs of counties, upon the suppo-
1. " Necessity brought on purposely is indefensible and wasteful. "
2. 2 Parl. Hist. II.
3. " Sole and evil counsel is a bottomless sieve. An officer should not
be greedy for another's goods, sparing of his own. Servitude is wretched
where the law is uncertain or unknown."
CHARLES I. OPENING PARLIAMENT.
FROM A PRINT OF THE TIME IN THE BRITISH MUSEUM.
LIKE OK SIR EDWARD COKK.
sition that they would thereby be disqualified to sit inCHAI/- x-
the House of Commons. The ex-Chief Justice Coke,
now in his 75th year, was appointed Sheriff of Buck-
inghamshire. Having in vain petitioned to be ex-
cused, on account of his age and the offices which
he had heretofore held of much superior dignity, he
demurred to taking the oath usually administered toHedemurs
to taking
sheriffs, which had remained unchanged since Popish the oath,
times, and made the sheriff swear to " seek and to
suppress all errors and heresies commonly called Lollo-
ries."1 "This," he objected, " would compel him to
suppress the established religion, since Lollard was
only another name for Protestant." The Judges, being
consulted, unanimously resolved that this part of the
oath ought to be omitted, "because it is required by
statutes which are repealed, having been intended
against the religion now professed, then deemed her-
esy." He likewise excepted to other parts of the
I. The Lollards is the name given to the followers of Wycliffe, though
the derivation of it is somewhat doubtful. That Lollardy was one of the
chief causes of the Peasant Revolt of 1381 is certain, and it must always
be remembered that the Lollards were quite as much a social as a religious
party. The first act against the Lollards was passed in 1381, but was
merely the work of the Lords and the King. By this statute all Lollards
were to be arrested and held in strong prisons till they should justify
themselves according to the law and reason of Holy Church. In 1382,
and again in 1394, the Lollards addressed a remonstrance to Parliament,
in which, among other points, they asserted that no civil lord or bishop
had any power so long as he was in mortal sin, and that human laws not
founded on the Scriptures ought not to be obeyed. Still there was very
little persecution, and it was not till 1401 that the act De Haretico Com-
burendo was passed, and even after the passing of that statute, and not-
withstanding the close alliance between the Lancastrian dynasty and the
Church, only two persons were executed for heresy in Henry IV. 's reign,
though the Lollards boasted that they numbered 100000. It is probable
that they intended a rising under the leadership of Sir John Oldcastle, at
the beginning of Henry V.'s reign, but the vigilance of the Government
prevented it, and, for complicity in the projected revolt, some forty per-
sons were put to death. In 1414 an act was passed extending the provis-
ions of the De Haritico Comburcndo statute, and several Lollards were
executed in the early years of Henry VI. 's reign. By the time of Jack
Cade's rebellion (1450) the old Lollard idea seems to have died out. — Law
and Pulling' s Did. of Eng. ffi<>.
IO REIGN OF CHARLES I.
CHAP. x. oath as unauthorized by any statute ; but the Judges
said that the residue of the oath, having been adminis-
tered divers years by the direction of the state, might
He is be continued for the public benefit; and the Privy
SW° Council obliged him to take it.1
Feb. 10. Nevertheless, not only without bribe, but without
He is re- '
turned for solicitation, he was returned to the House of Com-
Norfolk.
mons by his native county of Norfolk.2 When par-
whether he liament met' a message frOm the KinS waS (aS WC
was,djsji, should think, most irregularly and unconstitution-
qualificdby
reason of ally) brought down by the Chancellor of the Ex-
a Sheriff? chequer, "that Sir Edward Coke, being Sheriff of
Buckinghamshire, was returned one of the knights of
the shire for the county of Norfolk, wherefore he
hoped the House would do him that right as to send
out a new writ for that county." The ground chiefly
relied upon was, that, by a statute then in force,
sheriffs were obliged constantly to reside within their
bailiwicks.3 The House referred the matter to the
"Committee of Elections and Privileges," who made
the unsatisfactory report, " that, after diligent search,
they had found many cases pro and con as to a high
sheriff for one county being elected to represent
another in parliament." The House ordered them to
make further search, and the session came to an end
He does without any decision. Neither he, nor any of the
not take
his seat, other sheriffs returned to the House, took their seats,
but no fresh writs were issued to elect members in
June 13. their stead ; and, on the very day before the dissolu-
tion (which, in spite of their exclusion, took place in
anger, amidst vain attempts to obtain the redress of
grievances), it was " resolved by the House that Sir
Edward Coke, standing de facto returned a member
1. Cro. Car. 26.
2. In his own language, "sine aliqua motione aut petitione inde a me
praebitis."
3. This is repealed by 3 Geo. III. c. 15.
LIKE OF SIR EDWARD COKE. II
of that House, should have privilege against a suitCHAP'x-
in Chancery commenced against him by the Lady
Clare." »
He performed the duties of Sheriff in a very exem-Col<e
serves the
plary manner; and we are told that, when the assizes »«"* °f
Sheriff
came round, he rode out to meet the Judges at the with great
head of a grand cavalcade. He likewise stood behind
them very worshipfully, with a white wand in his
hand. Whether they consulted him, either publicly
or privately, on any knotty points of law which arose
before them, we are not informed ; but, at a pinch, he
must have been most serviceable, although he used to
say " If I am asked a question of common law, I should
be ashamed if I could not immediately answer it ; but
if I am asked a question of statute law, I should be
ashamed to answer it without referring to the statute
book."
Charles, for a time, resorted to the most outrageous Arbitrary
t . . measures
measures of internal government, as if parliaments of the GOV-
, ernment.
were never to meet again. He raised money by
forced loans and benevolences ; he arrogated to him-
self the power of committing to prison, without speci-
fying any offence in the warrant of commitment; he
induced the Judges to decide that they had no power
to examine such commitments, or to admit the prison-
ers to bail ; preparatory to the pecuniary imposition
of Ship-money, he required the different seaports to
furnish a certain number of ships for his service at
their own expense ; and he billeted soldiers on those
who refused his unlawful demands to live at free quar-
ters. But, having been engaged in a war with France,
through the wanton caprice of Buckingham, it became
I. 2 Parl. Hist. 44-198. The law is now settled that although a sheriff
cannot represent his own county, nor any place within it for which he
makes out the precept, he may represent any other county, and even a
town within his own county which happens to be a county of itself.
12 REIGN OF CHARLES I.
CHAP. x. indispensably necessary, in the beginning of the year
A.D. 1628. 1628, once more to summon the great council of the
nation.
Cokemem- y^e attempt was not renewed to disqualify Sir
hantshire Edward Coke, as a parliament man, by any office; and
'"araiiaew sucn was his popularity, that he was returned by two
ment- counties— Suffolk and Buckinghamshire. He elected
to serve for the latter, in which he had fixed his resi-
dence, and in which he was now regarded with vene-
ration almost amounting to idolatry.
March 17. When the new parliament assembled, the King
tries to in- attempted to daunt the members who he thought
timidate
thepariia- might be troublesome, by saying in his opening
ment.
speech, —
" If you shall not do your duties in contributing to the
necessities of the state, I must, in discharge of my conscience,
use those other means which God hath put into my hands, in
order to save that which the follies of some particular men
may otherwise put in danger: take not this for a threatening,
for I scorn to threaten any but my equals ; but as an admoni-
tion from him who, by nature and duty, has most care of your
preservation and prosperity." *
This was, indeed, the grand crisis of the English
constitution. Had our distinguished patriots then
quailed, parliaments would thenceforth have been
merely the subject of antiquarian research, or perhaps
occasionally summoned to register the edicts of the
Crown. But, the House of Commons having begun
the session with taking the sacrament and holding a
solemn fast, on the very first day devoted to public
business Sir Edward Coke sounded the charge :
Coke's de- " Dum tempus habemus bonum operemur? I am absolutely
fence of . . . .-..-. • ,
public for giving supply to his Majesty; yet with some caution. lo
liberty. tejj VQU Qf forejgn dangers and inbred evils, I will not do it
1. Rushworth, i. 477.
2. "While we have time let us do good."
LIFE OF SIR EDWARD COKE. 13
The state is inclining to a consumption, yet not incurable ; I CHAP. X.
fear not foreign enemies ; God send us peace at home. For
this disease I will propound remedies: I will seek nothing out
of my own head, but from my heart, and out of acts of par-
liament. I am not able to fly at all grievances, but only at
loans. Let us not flatter ourselves. Who will give subsidies, His words
against
if the King may impose what he will ? and if, after parliament, forced
the King may enhance what he pleaseth ? I know the King 0<
will not do it. I know he is a religious King, free from per-
sonal vices ; but he deals with other men's hands, and sees
with other men's eyes. Will any give a subsidy, if they are to
be taxed after parliament at pleasure ? pfhe King cannot law-
fully tax any by way of loans. I differ from them who would
have this of loans go amongst grievances ; for 1 would have
it go alone. I'll begin with a noble record; it cheers me to
think of it, — 26 Edw. III. It is worthy to be written in letters
of gold. Loans against the will of the subject are against
reason, and the franchises of the land ; and they desire resti-
tution. What a word is that franchise! The lord may tax
his villein high or low; but it is against the franchises of the
land for freemen to be taxed but by their consent in parlia-
ment. In Magna Charta it is provided that Nullus liber homo
capiatur, vel imprisonetur, aut disseisetur de libero tenemento
suo, etc., nisi per legale judicium parium suorum, vel per legem
terra." ' J
The first grievance specifically brought before the
House was the decision of the Judges respecting com-
mitments by the King and Council without naming
any cause :
Sir Edward Coke: "This draught of the judgment will His speech
sting us, quia nulla causa fuit ostentata? — ' being committed by ™jtn°™ts
the command of the King, therefore he must not be bailed.' without
cause.
What is this but to declare upon record, that any subject com-
mitted by such absolute command may be detained in prison
for ever ? /What doth this tend to but the utter subversion of
the choice, liberty, and right belonging to every free-born sub-
1. 2 Parl. Hist. 237. "No freeman shall be taken, or imprisoned, or
seized from his free dwelling, etc., except by the legal judgment of their
equals, or by the law of the land."
2. " Because no reason has been shown."
I4 REIGN OF CHARLES I.
CHAP. X. ject in this kingdom ? A parliament brings judges, officers,
and all men into good order." '
He carried resolutions which, half a century after,
The were made the foundation of the Habeas Corpus Act:
foundation
I. " That no freeman ought to be committed or detained
Corpus in prison, or otherwise restrained by command of the King or
the Privy Council or any other, unless some cause of the com-
mitment, detainer, or restraint be expressed, for which by law
he ought to be committed, detained, or restrained.
II. "That the writ of Habeas Corpus cannot be denied,
but ought to be granted to every man that is committed or
detained in prison or otherwise restrained by the command of
the King, the Privy Council, or any other."5
Coke's While he attended to grievances at home, he was
patriotic
regard for by no means indifferent to the honor and greatness of
the glory J
of Eng- tne country.
Thus he spoke in the debate on granting a supply
to enable the King to repel foreign aggression :
" When poor England stood alone, and had not the access
of another kingdom, and yet had more and as potent enemies
as now, yet the King of England prevailed.3 In the parlia-
ment roll 4 Edw. III., the King and Parliament gave God
thanks for his victory against the Kings of Scotland and
France ; he had them both in Windsor Castle 4 as prisoners.
1. 2 Parl. Hist. 2^6. Notwithstanding this violent invective against the
doctrine that persons committed by the King could not be liberated by the
Judges, it would appear that he himself, when on the bench, had sanc-
tioned it. The Lord Chief Justice Hyde, being questioned in the House of
Lords for the late decision of the Court of King's Bench on this subject,
said, " If we have erred, ' erravirnus cum Patribzts* and they can show no
precedent but that our predecessors have done as we have done — sometimes
bailing, sometimes remitting, sometimes discharging. Yet we do never
bail any committed by the King, or his Council, till his pleasure be first
known \ and thus did the Lord Chief Justice Coke in Raynard's case." —
a Parl. Hist. 292.
2. 2 Parl. Hist. 259.
3. " P«or England ! thou art a devoted deer,
Beset with every ill but that of fear." — Cowper.
4. Windsor was the residence of the Saxon kings before the Norman
Conquest, but the present castle was founded by William the Conqueror,
and almost rebuilt by Edward III., under the direction of William of
LIFE OF SIR EDWARD COKE. 15
In 3 Rich. II. the King was environed with Flemings, Scots, CHAP. X
and French, and the King of England prevailed. In 13 Rich.
II. the King was environed with Spaniards, Scots, and French,
and the King of England prevailed. In 17 Rich. II. wars
were in Ireland and Scotland, and yet the King of England
prevailed : thanks were given to God ; and I hope I shall live
to give God thanks for our King's victories. But to this end
the King must be assisted by good counsel. In 7 Hen. IV.
one or two great men about the King mewed him up, that he
took no other advice but from them ; whereupon the Chancellor
took this text for the theme of his speech in parliament, ' Mul-
torum consilia requiruntur in magnis ; in bello qui maxime
timent sunt in maximis periculis.' Let us give, and not be He favors
a supply.
afraid of our enemies ; let us supply bountifully, cheerfully,
and speedily. It shall never be said we deny all supply ; I
think myself bound where there is commune periculum, there
must be commune auxilium." '
'Still he was determined that, before the supply was ^?n g for_
actually griven, there should be an effectual redress of yard the
Petition of
grievances. He therefore framed the famous PETITION Right.
OF RIGHT. This second MAGNA CHARTA enumerated
the abuses of prerogative from which the nation had
lately suffered, — levying forced loans and benevolences
— unlawful imprisonments in the name of the King and
the Privy Council — billeting soldiers to live at free
quarters — with various other enormities, — and, after de-
claring them all to be contrary to former statutes and
the laws and customs of the realm, assumed the form
of an act of the Legislature, and, in the most express
and stringent terms, protected the people in all time
to come from similar oppressions. There were various
Wykeham, and again in 1824-28, under that of Sir Jeffrey Wyatville. In
the keep or round tower of the castle, sometimes used for royal prisoners,
James I. of Scotland was confined. — Appl. Encyc., vol. xvi. p. 664.
I. [" Where there is common danger, there must be assistance in com-
mon."]— 2 Parl. Hist. 255. It is curious to observe that Coke always
dates historical events by the year of a king's reign ; and 1 suspect that
his knowledge of history was chiefly drawn from poring over the Statute
Book and the Rolls of Parliament.
l6 REIGN OF CHARLES I.
CHAP. x. conferences upon the subject between the two Houses,
which were chiefly conducted on the part of the Com-
mons by Sir Edward Coke. What seems very strange
He refutes to us — tne Attorney General and other Crown lawyers
the argu- '
mrnts were allowed to argue against the Petition at the bar,
against it.
as counsel for his Majesty, and to combat its positions
and enactments ; but they were completely refuted by
the ex-Chief Justice, who not only had reason on his
side, but possessed much more constitutional law and
vigor of intellect than any of them, or all of them put
together. The King, afraid of the impression made
upon the Lords, sent a message to both Houses, ex-
pressing his willingness to concede them a bill in con-
firmation of King John's MAGNA CHARTA, without
additions, paraphrases, or explanations; assuring them
that no future occasion of complaint should arise. Mr.
Secretary Cooke, with soft and honeyed expressions,
moved that the House should be content with the
King's assurances;1 and many members, persuaded by
I. On the ist of May, 1628, Secretary Cooke delivered a message, asking
whether they would rely on the King's word. This question was followed
by a long silence. Several speeches are reported in the letters of the
times. Sir Nathaniel Rich observed that, "confident as he was of the
royal word, what did any indefinite word ascertain?" Pym said, "We
have his Majesty's coronation oath to maintain the laws of England ; what
need we, then, take his word?" He proposed to move, "Whether we
should take the King's word or no." This was resisted by Secretary
Cooke : "What would they say in foreign parts, if the people of England
would not trust their King ? " He desired the H ouse to call Pym to order ;
on which Pym replied, "Truly, Mr. Speaker, I am just of the same
opinion I was — viz., that the King's oath was as powerful as his word."
Sir John Eliot moved that it be put to the question, "because they that
would have it do urge us to that point." Sir Edward Coke on this occa-
sion (May 6) made a memorable speech. " We sit now in Parliament,
and therefore must take his Majesty's word no otherwise than in a parlia-
mentary way ; that is, of a matter agreed on by both Houses — his Majesty
sitting on his throne in his robes, with his crown on his head and sceptre
in his hand, and in full Parliament ; and his royal assent being entered
upon record, in ptrpetuam rei memoriam. This was the royal word of a
King in Parliament, and not a word delivered in a chamber, and out of
the mouth of a secretary, at the second hand. Therefore I motion that
the House of Commons, more ma jorum, should draw a petition tie droict
LIFE OF SIR EDWARD COKE. I/
his rhetoric, were intimating their assent to waive theCHAP- x-
Petition :
Sir Edward Coke : " Was it ever known that general words He esti"
mates the
were a satisfaction to particular grievances ? Was ever a value of
verbal declaration of the King verbum Jtegis?1 Where griev- Issurances.
ances be, the parliament is to redress them. Did ever parlia-
ment rely on messages ? The King's answer is very gracious,
but we have to look to the law of the realm. I put no diffi-
dence in his Majesty, but the King must speak by record ;
and in particulars, not in generals. Did you ever know the
King's message come into a bill of subsidies ? All succeeding
kings will say, ' Ye must trust me as well as ye did my prede-
cessor, and give faith to my messages.' But messages of love
have no lasting endurance in parliament. Let us put up a
PETITION OF RIGHT. Not that I distrust the King, but that
I cannot take his trust save in a parliamentary way." 3
The Commons resolved that they would proceed ; Proviso in-
and the Lords passed the bill, but were prevailed upon the House"
by the courtiers to. add a proviso, which would
completely nullified its operation, " that nothing ereTgn
therein contained should be construed to intrench on {£>ewero<
the sovereign power of the Crown." The bill coming Crown-"
back to the House of Commons for their concurrence
in the amendment, Sir Edward Coke said, —
" This is magnum in parvo. It is a matter of great weight, On therec-
and, to speak plainly, it will overthrow all our PETITION ; it u?iTofnda~
trenches on all parts of it ; it flies at loans, at imprisonment, 9ok? thi*
' is rejected
and at billeting of soldiers. This turns all about again, by the
Look into all the petitions of former times ; the assenting
answer to them never contained a saving of the King's sov-
ereignty. I know that prerogative is part of the law, but
'sovereign power' is no parliamentary word. In my opinion,
to his Majesty ; which, being confirmed by both Houses and assented unto
by his Majesty, will be as firm an act as any. Not that I distrust the
King, but that I cannot take his trust but in a parliamentary way." In
this speech of Sir Edward Coke we find the first mention, in the legal
style, of the ever-memorable " Petition of Right," which two days after
was finished.— Jennings' Anecdotal Hist. Brit. Par!. (Am. Ed.), p. 66.
1. " The word of the King."
2. 2 Parl. Hist. 348 ; Rushworth, i. 558.
18 REIUN OF CHARLES I.
CHAP. X. it weakens Magna Charta and all the statutes whereon we rely
for the declaration of our liberties ; for they are absolute
without any saving of ' sovereign power.' Should we now add
it, we shall weaken the foundation of law, and then the build-
ing must fall. If we grant this, by implication we give a
' sovereign power ' above all laws. ' Power ' in law is taken
for a power with force ; the sheriff shall take \\\z power of the
county. What it means here, God only knows. It is icpug-
nant to our PETITION. This is a PETITION OF RIGHT granted
on acts of parliament, and the laws which we were born to
enjoy. Our ancestors could never endure a salvo jure suo l
from kings — no more than our kings of old could endure from
churchmen salvo honore Dei et Ecclesia?' We must not admit
it, and to qualify it is impossible. Let us hold our privileges
according to law. That power which is above the law, is not
fit for the King to ask, or the people to yield. Sooner would
I have the prerogative abused, and myself to lie under it ; for
though I should suffer, a time would come for the deliverance
of the country."8
The amendment was rejected by the Commons ;
The Lords and, after several conferences, the Lords agreed " not
CODCUr' T-1 /-•
to insist upon it. Thereupon the Commons sent a
message to the Lords by Sir Edward Coke,—
" To render thanks to their Lordships for their noble and
happy concurrence with them all this parliament ; to acknowl-
edge that their Lordships had not only dealt nobly with them
in words, but also in deeds ; that this Petition contained the true
liberties of the subjects of England, and their Lordships con-
curring with the Commons had crowned the work ; that this
parliament might be justly styled ' PARLIAMENTUM BENE-
DICTUM ; ' and to ask the Lords to join in beseeching his
Majesty, for the comfort of his loving subjects, to give a gra-
cious answer." 4
The King's Buckingham would not venture to advise a direct
return an veto by the words " Le Roy savisera," 5 but framed the
evasive
answer, following evasive and fraudulent answer •
1. " His own right being safe."
2. " The honor of God and of the Church being safe."
3. 2 Parl. Hist. 357. 4. 2 Par!. Hist. 372.
5. The last time on which the power to reject bills was exercised by the
GEORGE V1LLIERS, DUKE OF BUCKINGHAM.
AFTER VAN DER WERF.
LIFE OF SIR EDWARD COKE. 19
" The King willeth that right be done according to the CHAP. X
laws and customs of the realm ; and that the statutes be put
in due execution, that his subjects may have no cause to com-
plain of any wrongs or oppressions contrary to their just rights
and liberties, to the preservation whereof he holds himself in
conscience as well obliged as of his own prerogative."1
The Commons returned to their chamber in a rage ;
and Speaker Finch,2 the devoted tool of the Court, see-
ing their excited condition, exclaimed, " I am com-
manded to interrupt any member who shall asperse a
minister of state." Nevertheless, Sir Edward Coke
rose, but, according to Rushworth, " overcome with
passion, seeing the desolation likely to ensue, he was
forced to sit, when he began to speak, through the
abundance of tears." The veteran statesman, having in
some measure recovered his self-command, thus pro-
ceeded :
" I now see that God has not accepted of our humble and Coke's de-
moderate carriages and fair proceedings ; and the rather, ""the"'011
because I fear they deal not sincerely with the King; and with Duk«°f
, . , ' Bucking-
the country in making a free representation of all these mis- ham.
eries. I repent myself, since things are come to this pass,
that I did not sooner declare the whole truth ; and, not know-
ing whether I shall ever speak in this House again, I will do
sovereign was in 1707, when Queen Anne refused her assent to a bill for
settling the militia in Scotland. — Jennings' Anecdotal Hist. Brit. Par/.
(Am. Ed.), p. 18.
1. 2 Parl. Hist. 377.
2. John, Lord Finch (*. 1584, d. 1660), was the son of Sir Henry Finch,
an eminent lawyer. He was a member of Charles I.'s first two parlia-
ments, and was chosen Speaker of the third, which met in 1628. He
speedily showed himself a decided partisan of the King, and, in 1629, he
refused to read a remonstrance against tonnage and poundage after the
King's message for the adjournment of Parliament had been delivered. A
tumult occurred, during which the Speaker was held down in his chair,
and Holies read the protestation to the House. In 1637 Finch was made
Chief Justice of the Common Pleas, in which capacity he delivered judg-
ment against Hatnpden in the case of Ship-money. In 1640 he was made
Lord Keeper, but, fearing the vengeance of the Long Parliament, he fled
from England, at the end of the same year, to Holland, where he re-
mained till 1660, when he returned to England, and took part in the trials
of the Regicides. — Low and Pulling' s Diet, of Eng. Hist.
2O REIGN OF CHARLES I.
CHAP. X. jt now freely. We have dealt with that duty and moderation
that never was the like after such a violation of the liberties
of the subject. What shall we do ? Let us palliate no
longer ; if we do, God will not prosper us. I think the Duke
of Bucks is the cause of all our miseries, and, till the King be
informed thereof, we shall never go out with honor or sit with
"The honor here. That man is the grievance of grievances. Let
of^riev* us set down tne causes of all our disasters, and they will all
ances." reflect upon him. It is not the King, but the Duke." — Cries,
" 'Tis he ! " " Tis he ! "
Rush worth adds, " This was entertained and an-
swered with a full acclamation of the House, — as when
one good hound recovers the scent, the rest come in
with full cry." *
Parliament The Lords and Commons agreed upon a joint
pleads for .
a clear and address to the King, which was delivered to him sit-
satisfactory . ...
answer, ting on the throne, saying that, " with unanimous con-
sent, they did become humble suitors unto his Majesty,
that he would be pleased to give a clear and satis-
factory answer to their PETITION OF RIGHT." The
King said that " he intended by his former answer to
give them full satisfaction, but that, to avoid all ambig-
uous interpretations, he was willing to pleasure them
as well in words as in substance."
The Petition being now read, — by his desire the
clerk, in the usual form in which the royal assent is
given to bills, said, "Soit droit fait comme il est desire" ; "
and the PETITION OF RIGHT became a statute of the
realm.2 There is an entry in the Journals stating,
" When these words were spoken, the Commons gave
a great and joyful applause, and his Majesty rose and
departed." In the evening there were bonfires all over
London, and the whole nation was thrown into a trans-
port of joy.8
1. Rushworth, i. 609 ; Whitelocke, p. 10 ; 2 Parl. Hist. 410.
2. 3 Charles I. ch. i.
3. On the 6th of June, 1628, the King moderated the effect of his mes-
LIFE OF SIR EDWARD COKE. 21
The PETITION OF RIGHT might have led to a quiet CHAP. x.
and prosperous reign; but, being recklessly violated, tTon™"
before many years elapsed a civil war raged in the Sives [£
kingdom, and the dethroned King lost his life on the asTnt in
scaffold. due form-
The Commons performed their part of the engage-
ment, for they immediately read a third time, and
passed, a bill to grant five subsidies to the King ; and
having ordered Sir Edward Coke to carry it to the
Lords, almost the whole House accompanied him
thither, in token of their gratitude and good will to his
Majesty.1
sage of the previous day, by sending another, in which he expressed a
hope that "all Christendom might take notice of a sweet parting between
him and his people." The House of Commons, however, was determined
that the Petition of Right should receive a definite reply, and sent a mes- BJH for
sage to the Lords that they would join in a humble request to the King supply
" that a clear and satisfactory answer be given by his Majesty in full pi|f.s1f
Parliament to the Petition." This being agreed to, the King came to the coke
House of Lords on the 7th, and, the Commons being summoned, Charles carries up
made a short speech, in which he said : " To avoid all ambiguous interpre- Vj f
tations, and to show you that there is no doubleness in my meaning, I am Lords,
willing to please you in words as well as in substance. Read your Peti-
tion, and you shall have an answer I am sure will please you." The Peti-
tion having been read, the formal answer was returned, "Soil droit fait
comme il est desire," and the King again spoke. "This," said he, "I
am sure is full, yet no more than I granted you in my first answer, for the
meaning of that was to confirm all your liberties, knowing, according to
your own protestations, that you neither mean nor can hurt my preroga-
tive. And I assure you my maxim is, that the people's liberties
strengthen the King's prerogative, and the King's prerogative is to defend
the people's liberties. You see now how ready I have shown myself to
satisfy your demands, so that I have done my part ; wherefore, if this
Parliament hath not a happy conclusion, the sin is yours ; I am free of
it." An entry on the Lords' Journals records : "At the end of the King's
first speech, at the answer to the Petition, and on the conclusion of the
whole, the Commons gave a great and joyful applause. "—Jennings'
Anecdotal Hist. Brit. Parl. (Am. Ed.), p. 25.
I. Subsidies having been voted to the King on the 4th of April, 1628,
Mr. Secretary Cooke three days afterwards reported to the House the
King's acceptance, and how his Majesty was pleased to ask. By how many
voices they were gained? "I said, but by one. His Majesty asked
how many were against him ? I said, none ; for they were voted by one
voice, and one general consent. His Majesty was much affected there-
with, and called the Lords in council, and there I gave them account what
22
REIGN OF CHARLES I.
June 26.
Sudden
proroga-
tion.
CHAP. x. This good understanding was momentary, for the
King still insisted that he had a right to levy tonnage '
and poundage 2 by his own authority ; and when the
House of Commons was preparing a remonstrance
against this illegal proceeding, he suddenly put an end
to the session by a prorogation, saying, "The profes-
sion of both Houses in the time of hammering your
PETITION was, that you nowise trenched upon my
prerogative. Therefore it must needs be that I have
thereby granted you no new power, but only con-
firmed the ancient liberties of my subjects."3 He then
had passed. Besides, it gave his Majesty no small content that, although
five subsidies be inferior to his wants, yet it is the greatest gift that ever
was given in Parliament ; and now he sees with this he shall have the
affections of his people, which will be greater to him than all value. He
said he liked parliaments at the first, but since (he knew not how) he was
grown to a distaste of them ; but was now where he was before, he loves
them, and shall rejoice to meet with his people often."— -Jennings'
Anecdotal Hist. Brit. Part. (Am. Ed.) 23.
1. A duty or impost on goods brought or carried in vessels.
2. Poundage was a duty imposed ad valorem, at the rate of \ld. in the
pound, on all other merchandise whatsoever. — Blackst. Com., vol. i. c. 8.
3. The dissolution of 1629 put an end to parliamentary proceedings for
more than eleven years — until the calling of a Parliament in April, 1640.
On the loth of March, 1629, his Majesty was seated on the throne, the
Lords being present in their robes, " and divers of the Commons (says
Rushworth) below the bar, but not their Speaker, neither were they called,"
when the King spoke as follows : " My Lords, I never came here upon so
unpleasant an occasion, it being the dissolution of a Parliament ; therefore
men may have some cause to wonder why I should not rather choose to
do this by commission, it being a general maxim of kings to leave harsh
commands to their ministers, themselves only executing pleasing things.
Yet, considering that justice as well consists in reward and praise of vir-
tue as punishing of vice, I thought it necessary to come here to-day, and
to declare to you and all the world that it was merely the undutiful and
seditious carriage in the Lower House that hath made the dissolution of
this Parliament ; and you, my Lords, are so far from being any causes of
it, that I take as much comfort in your dutiful demeanor as I am justly
distasted with their proceedings. Yet, to avoid their mistakings, let me
tell you that it is so far from me to adjudge all the House alike guilty,
that I know that there are many there as dutiful subjects as any in the
world, it being but some few vipers among them that did cast this mist of
undutifulness over most of their eyes. Yet, to say truth, there was a good
number there that could not be infected with this contagion, insomuch
that some did express their duties in speaking, which was the general
fault of the House the last day. To conclude, as those vipers must look
LIFE OF SIR EDWARD COKE. 23
resorted to the dishonorable expedient of circulating CHAP. x.
copies of the PETITION OF RIGHT, with the first answer dise
which he had given to it, and he insisted that his pre-j
rogatives were in all respects the same as before this
parliament was called, so that the right to levy tonnage
and poundage was inalienably vested in the Crown.
Sir Edward Coke, although deprived of office, and
still excluded from the Privy Council, may be con-
sidered as having reached the zenith of his fame. Not
only was he admired as a statesman and a patriot, but
he now secured to himself the station which he has
ever since continued to occupy, as the greatest ex-
pounder of the common law of England, by giving to
the world his " Commentary on Littleton," ' which had Co. Litt.
been his laborious occupation for many years. Al-
though the first edition abounded with errors of the
press, the value of the book was at once recognized,
and he received testimonies in its praise which should
have made him rejoice that he had not been wearing
away his life in the dull discharge of judicial duties. J|n- «•
Parliament again met in the beginning of the follow- Coke ab-
sent from
inar vear, but Sir Edward Coke's name is not mentioned the short
stormy
in the proceedings of the short session which was then session of
for their reward of punishment, so you, my Lords, must justly expect from
me that favor and protection that a good king oweth to his loving and
faithful nobility." The Lord Keeper was then commanded to announce
the Parliament dissolved. — Jennings' Anecdotal Hist. Brit. Parl. (Am.
Ed.), p. 27.
I. Sir Thomas Littleton, or Lyttleton, was the son of Thomas West-
cote, of the county of Devon, by Elizabeth, daughter of Thomas Littleton,
of Frankley, in Worcestershire ; in compliance with whose wish this son
took the maternal name and arms. He studied in the Temple, and was
appointed by Henry VI. Judge of the Marshalsea ; in 1455 made King's
Sergeant and a judge of the assize ; in 1466 nominated one of the Justices
of the Common Pleas ; and in 1475 created Knight of the Balh. Died
Aug. 23, 1481. He wrote in Norman French a celebrated treatise on
Tenures for the use of his son Richard, who was also a distinguished
lawyer. The first edition of it is supposed to have been printed a little
after the author's death, in folio, at Rouen. Sir Edward Coke's commen-
tary on this famous work is well known. — Cooper 's Biog. Did.
24 REIGN OF CHARLES I.
CHAP. x. held, except once, when the Speaker was directed to
write to him to request his attendance.1 No explana-
tion is given of the cause of his absence, and, as he
continued at bitter enmity with the Court, he was prob-
ably detained in the country by illness. We may con-
jecture the resentful tone in which he would have
exposed the violation of the PETITION OF RIGHT, and
the prominent part which he would have taken in the
famous scene in the House of Commons immediately
before the dissolution,2 when Speaker Finch was held
down in the chair while resolutions were carried assert-
ing the privileges of the House.
He escapes By his absence he had the good luck to escape the
men"5011 imprisonment inflicted on Sir John Eliot,3 Hollis, and
1. Journals, nth Feb. 1629 : " In respect that the term ends to-mor-
row, and the assizes to follow, and divers members that are lawyers of this
House may be gone, it is ordered that none shall go forth of town with-
out the leave of the House. Ordered also that the Speaker's letter shall be
sent for Sir Edward Coke. "—2 far/. Hist. 463. They wanted his assist-
ance in the debate on the claim of the King to levy tonnage and poundage
without the authority of Parliament. The same day Oliver Cromwell
made his maiden speech, in which he denounced a sermon delivered at
Paul's Cross as "flat popery."
2. On the 2d of March, 1629, " Sir John Finch, the Speaker (being the
Queen's solicitor), refusing to do his office or to read some particular
writings the House enjoined him, many members thereof fell to reproving
him, others to excuse him ; and the tumult and discontent of the whole
House was so great, as the more grave and judicious thereof began infi-
nitely to fear lest at the last swords should have been drawn, and that
forenoon ended in blood." Selden thus addressed the Speaker on this
occasion: "Dare not you, Mr. Speaker, put the question when we com-
mand you? If you will not put it, we must sit still ; thus we shall never
be able to do anything : they that come after you may say, they have the
King's command not to do it. We sit here by command of the King
under the Great Seal, and you are by his Majesty, sitting in his royal chair,
before both Houses appointed our Speaker, and now you refuse to perform
your office." On the following day, warrants were issued from the Coun-
cil against Selden and other members, and several were sent to the Tower.
Sir John Eliot was kept there till he died. Finch's conduct in the chair
was many years aft rwards made one of the grounds of his impeachment
by the Long Parliament. — D 'Ewes' Autobiography.
3. The last scene in this patriot's history, before the Tower gates were
closed upon him. was in every way a memorable one. He was aware that
the King, who had already ordered an adjournment of the Parliament, was
o
G
PI
O
o H
H 2
in
M
Ifl
LIFE OF SIR EDWARD COKE. 25
the otner popular leaders, who were afterwards con-CHAP-x-
victed in the Court of King's Bench of a misdemeanor,
for what they had done as members of the House of
Commons.
He appeared in public no more. Although he "
survived six years, no other parliament was called till1"6-
his remains had mouldered into dust. Charles had
resolved to reign by prerogative alone, and was long
able to trample upon public liberty,— till the day of
retribution arrived.
The first months of Coke's retirement were devoted A-D- 1629
— IO34-
to the publication of a new edition of his Commentary Stfo
on Littleton, which was the most accurate and valu-
able till the thirteenth, given to the world in the end of
the last century by those very learned lawyers Har-
grave and Butler. We have scanty information re-
specting his occupations, and the incidents which
befell him, till the closing scene of his life. He con-
tinued to reside constantly at Stoke Pogis. He was Never
never reconciled to Lady Hatton, who, there is reason foCLadyed
to fear, grumbled at his longevity. Mr. Garrard, in aHatton-
about to dissolve it, finding it determined not to grant money without the
redress of grievances. On the day fixed for the temporary reassembling
of the Houses, the 2d of March, 1629, Eliot rose in his place immedi-
ately after prayers, to propose an emphatic resolution which he had pre-
pared against tonnage and poundage. The Speaker (Sir John Finch, a
tool of the Court party) endeavored to check him, saying it was the King's
order that they were to adjourn ; but the House insisted upon its right to
adjourn itself, and declared it would hear Eliot. " These men," said he —
alluding to Buckingham and other evil advisers of Charles — "these men
go about to break parliaments lest parliaments should break them." And
he brought his speech to a conclusion by saying, " I protest, as I am a
gentleman, if my fortune be ever again to meet in this honorable assem-
bly, where I now leave I will begin again." He then offered his resolu-
tion to the Speaker, who positively refused to read it, and was about to
quit the chair, when he was thrust back by Denzil Hollis and others, and
Hollis read the resolution, which was carried by acclamation. The doors,
having been previously locked, were now thrown open, and the members,
hurrying forth, found a King's guard had just been sent to clear the House
by force. Sir Simonds D'Eives notes this as " the most gloomy, sad, and
dismal day for England that had happened for five hundred years."—
Jennings' Anecdotal Hist Brit. Purl. (Am. Ed.) 66.
26 REIGN OF CHARLES I.
CHAP, x. letter, written in the year 1633, to Lord Deputy Straf-
ford, says: " Sir Edward Coke was said to be dead, all
one morning in Westminster Hall, this term, insomuch
that his wife got her brother, the Lord Wimbledon, to
post with her to Stoke, to get possession of that place ;
but beyond Colebrook they met with one of his phy-
sicians coming from him, who told her of his much
amendment, which made them also return to London ;
some distemper he had fallen into for want of sleep,
but is now well again." 1
Hisdisiike -j*ill a severe accident which he met with, he had
to physic.
constantly refused " all dealings with doctors ; " and
" he was wont to give God solemn thanks that he
never gave his body to physic, nor his heart to cruelty,
nor his hand to corruption." 2 When turned of eighty,
and his strength declining rapidly, a vigorous attempt
was made to induce him to take medical advice ; of
this we have a lively account in a letter from Mr.
Mead to Sir Martin Stuteville :
Attempt of " Sir Edward Coke being now very infirm in body, a friend
of his sent him two or three doctors to regulate his health,
w'lom ne to^ ^lat ne had never taken physic since he was
advice. born, and would not now begin ; and that he had now upon
him a disease which all the drugs of Asia, the gold of Africa,
nor all the doctors of Europe could cure — old age. He
therefore both thanked them and his friend that sent them,
and dismissed them nobly with a reward of twenty pieces to
each man." 8
He meets Of his accident, which in the first instance pro-
with an ac-
cident. duced no serious effects, there is the following account
entered by him in his diary, in the same firm and clear
hand which he wrote at thirty :
" The 3d of May, 1632, riding in the morning in Stoke,
between eight and nine o'clock to take the air, my horse
1. Strafford's Letters and Dispatches, i. 265.
2. Lloyd's State Worthies, ii. 112.
3. Harleian MS. 390, fol. 534 ; Ellis Papers, iii. 263.
LIFE OF SIR EDWARD COKE. 2J
under me had a strange stumble backwards and fell upon me CHAP. x.
(being above eighty years old), where my head lighted near to
sharp stubbles, and the heavy horse upon me. And yet by
the providence of Almighty God, though I was in the greatest
danger, yet I had not the least hurt, nay, no hurt at all. For
Almighty God saith by his prophet David, ' the angel of the
Lord tarrieth round about them that fear him, and delivereth
them,' et nomen Domini benedictum? for it was his work."
But he had received some internal injury by his
fall, and from this time he was almost constantly con-
fined to the house. His only domestic solace was theHisdaugh-
..... ter is his
company oi his daughter, Lady rarbeck, whom he solace,
had forgiven — probably from a consciousness that her
errors might be ascribed to his utter disregard of her
inclinations when he concerted her marriage. She
continued piously to watch over him till his death.8
His law books were still his unceasing delight ; and
he now wrote his SECOND, THIRD, and FOURTH INSTI-™6 "l°~
TUTES, which, though very inferior to the FIRST, are
wonderful monuments of his learning and industry.
On one occasion, without his privity, his name wast?™^""a
introduced in a criminal prosecution. A person of the I'!*1 uP°n
name of Jeffes, who seems to have been insane, fixed a
libel on the great gate of Westminster Hall, asserting
the judgment of Sir Edward Coke, when Chief Justice
of the King's Bench, in the case of Magdalen College,3
to be treason, calling him traitor, and perjured Judge,
1. " And blessed be the name of God."
2. Extract of letter from Mr. Gerrard to Lord Deputy Strafford, dated
I7th of March, 1636 : " Here is a new business revived ; your Lordship
hath heard of a strong friendship heretofore betwixt Sir Robert Howard
and the Lady Parbeck, for which she was called into the High Commis-
sion, and there sentenced to stand in a white sheet in the Savoy Church,
which she avoided then by flight, and hath not been much looked after
since, having lived much out of town, and constantly these last two years
with her father at Stoke." He afterwards goes on to give an account of
her imprisonment in the Gatehouse, and her escape in the disguise of a
page.
3. n Rep. 66.
28 REIGN OF CHARLES I.
CHAP. x. anfj scandalizing all the profession of the law. The
Government thought that this was an insult to the
administration of justice not to be passed over, and
directed that the offender should be indicted in the
Court of King's Bench. Had he been brought before
the Star Chamber he could hardly have been more
harshly dealt with, for he was sentenced to stand twice
in the pillory, to be carried round all the courts in
Westminster Hall with a descriptive paper on his
breast, to make submission to every court there, to
pay a fine of i.ooo/., and to find sureties for his good
behavior during the remainder of his life.1
Mistreat- This proceeding was not prompted by any kindness
theGov- for the ex-Chief Justice; on the contrary, he was
eminent. . .
looked upon with constant suspicion, and the Govern-
ment was eagerly disposed to make him the subject of
prosecution. Buckingham had fallen by the hand of
an assassin, but his arbitrary system of government
was strenuously carried on by Laud and those who
had succeeded to power ; taxes were levied without
authority of Parliament ; illegal proclamations were
issued, to be enforced in the Star Chamber ; and Noy's
Coke sup- device of Ship-money was almost mature. Sir Edward
havead°- Coke having then resided in the same county with
Hampden Hampden, and at no great distance from him, — it is
s°h[p-'st conjectured, without any positive evidence, that they
money- consulted together as to the manner in which the law
and the constitution might be vindicated. So much is
certain, — that, from secret information which the Gov-
ernment had obtained, Sir Francis Windebank, the
Secretary of State, by order of the King and Council,
A.D. 1634. came to Stoke on the ist of September, 1634, attended
by several messengers, to search for seditious papers,
and, if any were found, to arrest the author.
On their arrival they found Sir Edward Coke on
I. Cro Car. 175.
LIFE OF SIR EDWARD COKE. 29
his death-bed. They professed that they would, under CHAP. x.
these circumstances, offer him no personal annoyance ; papers
but they insisted on searching every room in the house theSwre-
except that in which he lay, and they carried away all stiuewhen
the papers, of whatever description, which they could MS death"
lay their hands upon. Among these were the original bed-
MS. from which he had printed the Commentary on
Littleton; the MS. of his Second, Third, and Fourth
Institutes, his last will, and many other papers in his
handwriting.1
It is believed that Sir Edward Coke remained His death,
ignorant of this outrage, and that his dying moments
were undisturbed. He had been gradually sinking for
some time, and on the 3d of September, 1634, he expired,
in the eighty-third year of his age; enjoying to the
last the full possession of his mental powers, and
devoutly ejaculating, "Thy kingdom come! Thy His last
will be done ! " words-
His remains were deposited in the family burying- His
place at Titleshall, in Norfolk, where a most magnifi- fu
cent marble monument has been erected to his
memory, with a very long inscription, of which the
following will probably be considered a sufficient
specimen :
i. There is now extant, in the library at Lambeth, the original inventory
of these papers, entitled " A catalogue of Sir Edward Coke's papers, that
by warrant from the Council were brought to Whitehall, whereon his
Majesty's pleasure is to be known, which of them shall remain there."
It begins, "A wanscott box, of his arms, accounts and revenues." The
house in Holborn had been searched and rifled at the same time, for there
is in the library at Lambeth another inventory, entitled " A note of such
things as were found in a trunk taken from Pepys, Sir Edward Coke's
servant, at London, brought to Bagshot by his Majesty's commandment,
and then broken up by his Majesty, gth of September, 1634." Among
the items is " One paper of poetry to his children." This may have been
the poetical version of his Reports, of which I will afterwards give a
specimen. The will was destroyed or lost, to the great prejudice of the
family. The law MSS., as we shall see, were returned by order of the
Long Parliament.
30 LIFE OF SIR EDWARD COKE.
CHAP. X. "Quique dum vixit, Bibliotheca viva,
''s eP'- Mortuus dici meruit Bibliothecae parens.
Duodecem Liberorum, tredecim librorum Pater." '
For the benefit of the unlearned, there is another
inscription in the vulgar tongue ; which, after pomp-
ously describing his life and death, thus edifyingly
concludes :
" Learne READER to live so, that thou mayst so die."
^n drawing his character I can present nothing to
1 captivate or to amuse. Although he had received an
uterature academical education, his mind was wholly unimbued
with literature or science ; and he considered that a
wise man could not reasonably devote himself to any
thing except law, politics, and industrious money-mak-
ing. He values the father of English poetry only in
as far as the " Canon's Yeoman's Tale " illustrates the
statute 5 Hen. IV. c. 4, against Alchemy, or the craft
of multiplication of metals; and he classes the wor-
shipper of the Muses with the most worthless and
foolish of mankind : " The fatal end of these five is
beggary, — the alchemist, the monopotext, the con-
cealer, the informer, and the poetaster.
" Ssepe pater dixit, siudium quid inutile tentas?
Maeonides nullas ipse reliquit opes." *
He shunned the society of Shakspeare and Ben
Jonson, as of vagrants who ought to be set in the
stocks, or whipped from tithing to tithing. The Bank-
side Company having, one summer, opened a theatre
at Norwich, while he was Recorder of that city, in his
next charge to the grand jury he thus launched out
against them :
" I will request that you carefully put in execution the
1. " Who while he lived was a living dictionary ; when dead, deserved
to be called the father of the dictionary. He was the father of twelve
children and of thirteen books."
2. ["His father often said, ' Why do you devote yourself to useless
study ? Maeonides himself left no works.' "] — 3 Institute, 74.
LIFE OF SIR EDWARD COKE. 31
statute against vagrants; since the making whereof, I havecHAP. X,
found fewer thieves, and the gaol less pestered than before. ^£j'"e"
The abuse of stage players, wherewith I find the country much a.^ainst a
6 * s theatre
troubled, may easily be reformed, they having no commission company,
to play in any place without leave ; and therefore, if by your
willingness they be not entertained, you may soon be rid of
them. "
His progress in science we may judge of by his
dogmatic assertion that " the metals are six, and no
more ; gold, silver, copper, tin, lead, and iron ; and
they all proceed originally from sulphur and quick-
silver, as from their father and mother." :
He is charged by Bacon with talking a great deal His spii-
in company, and aiming at jocularity from the bench ;
but he associated chiefly with dependants, who wor-
shipped him as an idol ; and the only jest of his that
has come down to us consoles us for the loss of all the
rest: COWELL'S INTERPRETER3 being cited against an
opinion he had expressed when Chief Justice, he con-
temptuously called the learned civilian Dr. Cow-heel.*
Yet we are obliged to regard a man with so little His preat-
about him that is ornamental, or entertaining, or at- ufw^and
tractive, as a very considerable personage in the his-ajudge'
1. It is supposed to have been out of revenge for this charge, that
Shakspeare parodied his invective against Sir Walter Raleigh, in the chal-
lenge of Sir Andrew Aguecheek. — See Boswell's Shakspeare, ii. 442.
2. 3 Inst. ch. xx.
3. John Cowell, a civilian, born at Ernsborough, Devonshire, about
1554. He received his education at Eton School, and next at King's Col-
lege, Cambridge, where heproceeded to his degree of Doctor in Civil Law,
and became professor in that faculty, and Master of Trinity Hall. In 1607
he published in 410 his " Interpreter," or Explanation of Law Terms,
which the House of Commons caused to be burnt, on account of its being
too favorable to the regal prerogative. Sir Edward Coke was a great
enemy to the author, and used to call him, by a miserable pun, Dr. Cow-
heel. Died Oct. II, 1611. He also wrote "Institutes of the Laws of
England, in the same method as Justinian's Institutes," 1605. — Cooper's
Biog. Diet.
4. Cowell had given great offence by asserting that the King was not
bound by the laws, insomuch that by order of the House of Commons he
was committed to custody, and his book was publicly burnt. — Wilson's
Mentor. Cantabrig., p. 60.
32 LIFE OF SIR EDWARD COKE.
CHAP. x. tory of his country. Belonging to an age of gigantic
intellect and gigantic attainments, he was admired by
his contemporaries, and time has in no degree im-
paired his fame. For a profound knowledge of the
common law of England he stands unrivalled. As a
judge, he was not only above all suspicion of corrup-
tion, but, at every risk, he displayed an independence
and dignity of deportment which would have deserved
the highest credit if he had held his office during good
behavior, and could have defied the displeasure of the
His great Government. To his exertions as a parliamentary
posterity, leader, we are in no small degree indebted for the free
constitution under which it is our happiness to live.
He appeared opportunely at the commencement of'
the grand struggle between the Stuarts and the people
of England. It was then very doubtful whether taxes
were to be raised without the authority of the House
of Commons; and whether, parliaments being dis-
used, the edicts of the King were to have the force of
law. There were other public-spirited men, who were
ready to stand up in defence of freedom ; but Coke
alone, from his energy of character, and from his con-
stitutional learning, was able to carry the PETITION
OF RIGHT ; and upon his model were formed Pym :
and the patriots who vindicated that noble law on the
meeting of the Long Parliament.
He is most familiar to us as an author. Smart
legal practitioners, who are only desirous of making
money by their profession, neglect his works, and
sneer at them as pedantic and antiquated ; but they
I. In the second Parliament of Charles I., John Pym was one of the
managers of Buckingham's impeachment, and in the third he took a
prominent part in the debates about the Petition of Right. Clarendon
thus describes his position in 1640 : " He seemed to all men to have the
greatest influence upon the House of Commons of any man ; and in truth
I think he was at that time, and for some months after, the most popular
man, and the most able to do hurt, that hath lived in any time." — Low
and Putting's Diet, of £ng. Hist.
JOHN PYM.
AFTER SAMUEL COOPER.
LIFE OF SIR EDWARD GOKE. 33
continue to be studied by all who wish to know theCHAP-x-
history and to acquire a scientific and liberal knowl-
edge of our juridical and political institutions.
I have already mentioned his REPORTS, the first His Re-
eleven parts of which he composed and published pc
amidst his laborious occupations as Attorney General
and Chief Justice. The twelfth and tliirtccntli parts
were among the MSS. seized 'by the Government
when he was on his death-bed. In consequence of an
address by the House of Commons to the King on the
meeting of the Long Parliament, seven years after,
they were restored to his family, and printed. Al-
though inferior in accuracy to their predecessors, they
were found to contain many important decisions on
political subjects, which he had not ventured to give
to the world in his lifetime.1
There are now more volumes of law reports pub-
lished every year than at that time constituted a law-
yer's library.2 In the eighty years which elapsed
between the close of the Year-Books and the end of
the i6th century, Plowden,3 Dyer,4 and Kielway were
1. The first three parts were published in 1601, the fourth and fifth in
1603, and the following six parts between 1606 and 1616, when the Re-
porter presided in C. P. or K. B. These were all originally printed in
Norman French. The I2th and I3th parts did not see the light till 1654
and 1658, when they appeared in an English translation ; the use of
French in law proceedings having been forbidden by an ordinance of the
Long Parliament. The whole have been lately most admirably edited by
my friend Mr. Farquhar Fraser.
2. There were then only twelve volumes of Reports extant, of which
nine were YEAR-BOOKS. The compilations called " Abridgments, " how-
ever, were dreadfully bulky.
3. Edmund Plowden, an eminent lawyer, born at Plowden, Shropshire,
1518. He studied for three years at Cambridge, and then entered the
Middle Temple, of which he afterwards became Reader. A writ was di-
rected to him calling upon him to take upon himself the state and degree
of Sergeant-of-law, but being a Catholic, and therefore unable to take the
oaths, he was never actually created a Sergeant, though he is not unfre-
quently so entitled. He steadily adhered to the Catholic religion, and was
frequently employed in opposition to the established authorities. Died
Feb. 6, 1584-85. His celebrated "Reports," first published in French 1571,
appeared in an English dress 1779, and again 1816 — Cooper's Biog. Diet.
4. Sir James Dyer, a judge, born at Roundshill, Somersetshire, about
34 LIFE OF SIR EDWARD CORK.
CHAP. x. the only reporters in Westminster Hall. In the great
case of the POSTNATI,' Coke tells us of the new plan
which he adopted of doing justice to the Judges:
mode'of " And now that I have taken upon me to make a report
settling the of thejr arguments, I ought to do the same as fully, truly, and
sincerely as possibly I can ; howbeit, seeing that almost every
judge had in the course of his argument a particular method,
and I must only hold myself to one, I shall give no just
offence to any, if I challenge that which of right is due to
every reporter, that is, to reduce the sum and effect of all
to such a method as, upon consideration had of all the argu-
ments, the reporter himself thinketh to be fittest and clearest
for the right understanding of the true reasons and causes of
the judgment and resolution of the case in question."'"
Notwithstanding the value of his Reports, no
reporter could venture to imitate him. He represents
a great many questions to be "resolved" which were
quite irrelevant, or never arose at all in the cause ; and
these he disposes of according to his own fancy.
Therefore he is often rather a codifier or legislator
than a reporter; and this mode of settling or reforming
the law would not now be endured, even if another
lawyer of his learning and authority should arise.
Yet all that he recorded as having been adjudged
1512. From Oxford he went to the Middle Temple, where he was
called to the degree of a Sergeant. He afterwards became Speaker of the
House of Commons. In 1557 he was appointed a Justice of the Common
Pleas, of which court he was made chief in the reign of Queen Elizabeth.
Died March 24, 1581-82. His reports are held in great estimation. —
Cooper's Biog. Diet.
1. Case ol the Postnati. On the accession of James I. to the throne
of England, it became a question whether his Scottish subjects, born after
his accession to the English throne (postnati), were aliens in England or
not. The Scots contended that they were not, and the same view was
taken by the Judges in the House of Lords. In the House of Commons
it was contended that a statute would be required to naturalize them. The
point was decided in the Court of Exchequer Chamber, when the friends
of an infant born in Scotland after 1603 sought to establish his right to
hold land in England. Ten of the twelve Judges decided that the post-
natus was not an alien in England. — Low and Pulling' s Diet, of Eng. Hist.
2. 7 Rep. 43.
LIFE OF SIR EDWARD COKE. 35
was received with reverence.1 The popularity of hisCHAP-x-
Reports was much increased by the publication of
a metrical abstract or rubric of the points determined. A metrical
abstract of
beginning: with the name of the plaintiff. Thus: points de-
termined.
Hubbard : " If lord impose excessive fine,
The tenant safely payment may decline." (4 Rep. 27.)
Cawdry : " 'Gainst common prayer if parson say
In sermon aught, bishop deprive him may." (5 Rep. I.)
His cpus magnum is his Commentary on Littleton, "Coke
which in itself may be said to contain the whole tieton."
common law of England as it then existed. Notwith-
standing its want of method and its quaintness, the
author writes from such a full mind, with such mastery
over his subject, and with such unbroken spirit, that
every law student who has made, or is ever likely
to make, any proficiency, must peruse him with
delight.
He apologizes for writing these Commentaries in His apoio-
English, "for that they are an introduction to thefngln'"
knowledge of the national law of the realm ; a work
necessary, and yet heretofore not undertaken by any,
albeit in all other professions there are the like. I
cannot conjecture that the general communicating
these laws in the English tongue can work any
inconvenience." 2
This work, which he thus dedicates —
" H.&C EGO GRAND^IVUS POSUI TIBI, CANDIDE
LECTOR " —
was the valuable fruit of his leisure after he had been
tyrannically turned out of office, and in composing
it he seems to have lost all sense of the ill usage under
which he had suffered, for he refers in his Preface
. i rr • r ence to 'he
to "the reign of our late sovereign lord King James of reign of
famous and ever blessed memory." 3
I. Bacon's Works, v. 473. 2. Preface. P. xxxvii.
36 LIFE OF SIR EDWARD COKE.
CHAP. x. The First Institute may be studied with advantage,
not only by lawyers, but by all who wish to be well
acquainted with the formation of our polity, and with
the manners and customs prevailing in England in
times gone by. If Hume, who was, unfortunately,
wholly unacquainted with our juridical writers, had
read the chapters on •flmigbts' Service, Socage,
<BranJ> Serjeantic, jfranfcalmoigne, BurQage, and
IPUlenage, he would have avoided various blunders
into which he has fallen in his agreeable but flimsy
sketch of our early annals. After Bacon, in his Essays
and in his philosophical writings, had given specimens
of vigorous and harmonious Anglicism which have
never been excelled, Coke, it must be confessed, was
sadly negligent of style as well as of arrangement ;—
but he sometimes accidentally falls into rhythmical
diction, as in his concluding sentence: "And, for a
farewell to our jurisprudent, I wish unto him the
gladsome light of jurisprudence, the lovelinesse of
temperance, the stabilitie of fortitude, and the soliditie
of justice."
Second, His other " Institutes," as he called them, published
Third, and
Fourth in- under an order of the House oi Commons,1 are ot very
inferior merit. The Second Institute contains an
exposition of MAGNA CHARTA and other ancient
statutes ; the Third treats of criminal law ; 2 and the
1. Journals, I2th May, 1641. " Upon debate this day had in the Com-
mons House of Parliament, the said House did then desire and hold it fit
that the heir of Sir Edward Coke should publish in print the Commentary
on Magna Charta, the Pleas of the Crown, and the Jurisdiction of Courts,
according to the intention of the said Sir Edward Coke ; and that none but
the heir of the said Sir Edward Coke, or he that shall be authorized by
him, do presume to publish in print any of the aforesaid books or any copy
hereof." This order was made the very same day on which the Earl of
Strafford was beheaded.
2. The most curious chapter is on " conjuration, witchcraft, sorcery, or
enchantment," in which he tells us of wizards
" By rhymes that can pull down full soon
From loity sky the wandering moon,"
LIFE OF SIR EDWARD COKE. 37
Fourth explains the jurisdiction of all courts in the CHAP-*
country, from the Court of Parliament to the Court
of Pie Poudre. He was likewise the author of a Book
of " Entries," or legal precedents ; a treatise on Bail
and Mainprise ; a compendium of Copyhold Law,
called "The Complete Copyholder;" and "A Reading
on Fines and Recoveries," which was regarded with
high respect till these venerable fictions were swept
away.
He represents himself as taking no great delight
in legal composition, and I most heartily sympathize
with the feelings he expresses :
" Whilst we were in hand with these four parts of the Extract
, from Epi-
Jnstitutes, we often having occasion to go into the city, and logue to
from thence into the country, did in some sort envy the state ^°tutgh In"
of the honest ploughman and other mechanics ; for one, when
he was at his work, would merrily sing, and the ploughman
whistle some self-pleasing tune, and yet their work both
proceeded and succeeded ; but he that takes upon him to
write, doth captivate all the faculties and powers both of his
mind and body, and must be only attentive to that which
he collecteth, without any expression of joy or cheerfulness
whilst he is at his work." l
He had a passionate attachment to his own calling, His pas-
and he was fully convinced that the blessing of Heaven love of his
was specially bestowed on those who followed it.
Thus he addresses the young beginner:
" For thy comfort and encouragement, cast thine eyes
upon the sages of the law that have been before thee, and
never shall thou find any that hath excelled in the knowledge
of the laws but hath sucked from the breasts of that divine
knowledge, honesty, gravity, and integrity, and, by the good-
ness of God, hath obtained a greater blessing and ornament
than any other profession to their family and posterity. It is
an undoubted truth, that the just shall flourish as the palm-
and highly applauds the Legislature for punishing with death "such great
abominations."
I. Epilogue to 4th Institute.
3g LIFE OF SIR EDWARD COKE.
CHAP. X. tree, and spread abroad as the cedars of Lebanus. Hitherto,
I never saw any man of a loose and lawless life attain to any
sound and perfect knowledge of the said laws ; and on the
other side, I never saw any man of excellent judgment in the
laws but was withal (being taught by such a master) honest,
faithful, and virtuous." "Wherefore," he says, "a great
lawyer never dies improlis aut intestatus,1 and his posterity
continue to flourish to distant generations."5
His views In his old age he agreed with the Puritans, but he
contjnue{j to SUppOrt the Established Church ; and, a
- great peer threatening to dispute the rights of the
Dean and Chapter of Norwich, he stopped him by say-
ing, " If you proceed, I will put on my cap and gown,
and follow the cause through Westminster Hall." ;
From his large estates he had considerable ecclesiasti-
cal patronage, which he always exercised with perfect
purity, saying, in the professional jargon of which he
was so fond, " Livings ought to pass by Livery and
Seisin, and not by Bargain and Sale." 4
The distri- He certainly was a very religious, moral, and tem-
butionof , . .
his time, perate man, although he was suspected of giving to
LAW a considerable portion of those hours which, in
the distribution of time, he professed to allot to PRAYER
and the MUSES, according to his favorite Cantalena,—
" Sex horas somno, totidem des legibus aequis,
Quatuor orabis, des epulisque duas,
Quod superest ultra sacris largire camcenis."6
I. "Without offspring or without property."
a. See Preface to "Second Report."
3. Lloyd's State Worthies, p. 825.
4. He tried to carry a law that on every presentation the patron should
be sworn against simony, as well as the incumbent. — Roger Coke's Vindi-
cation, p. 266.
5. " Give six hours to sleep, as many to the study of just laws. Pray
four hours, and give two to refreshment. All that remain, bestow upon
the sacred Muses."
Thus varied :
"Six hours to law, to soothing slumber seven,
Eight to the world allow — the rest to Heaven."
LIFE OK SIR EDWARD COKE. 39
His usual style of living was plain, yet he could CHAP. x.
give very handsome entertainments. Lord Bacon tells iivTng.y e
us that " he was wont to say, when a great man came
to dinner at his house unexpectedly, ' Sir, since you
sent me no notice of your coming, you must dine with
me ; but, if I had known of it in due time, I would have
dined with you.' "1 He once had the honor of giving
a dinner to Queen Elizabeth, and she made him a
present of a gilt bowl and cover on the christening of
one of his children;2 but he was never very anxious
about the personal favor of the sovereign, and he
considered it among the felicities of his lot that he had
obtained his preferments nee precibus, nee pretio? Not-
withstanding his independence, King James had an
excellent opinion of him, and, having failed in his
attempts to disgrace him, used to say, " Whatever
way that man falls, he is sure to alight on his legs."
Sir Edward Coke was a handsome man, and wasj1?.
habits and
very neat in his dress, as we are quaintly informed by manners.
Lloyd : " The jewel of his mind was put into a fair
case, a beautiful body with comely countenance ; a case
which he did wipe and keep clean, delighting in good
clothes, well worn ; being wont to say that the outward
neatness of our bodies might be a monitor of purity to
our souls." 4 " The neatness of outward apparel," he
himself used to say, " reminds us that all ought to be
clean within." 5 The only amusement in which he
indulged was a game of bowls ; but, for the sake of his
Or—
" Six hours to law, to soothing slumbers seven,
Ten to the world allot, and all to Heaven."
See Macaulay's Essays, vol. i. p. 367.
1. Apophthegms, 112.
2. Nichol's Progresses of Elizabeth, iii. 467, 568.
3. " Neither by prayers nor bribes."
4. Worthies, ii. 297.
5. There are many portraits and old engravings of him extant, — almost
all representing him in his judicial robes, and exhibiting features which,
according to the rules of physiognomy, do not indicate high genius.
4O LIFE OF SIR EDWARD COKE.
CHAP. x. health, he took daily exercise either in walking or
riding, and, till turned of eighty, he never had known
an}- illness except one slight touch of the gout.
Contempo- j_jjs temper appears to have been bad, and he gave
monies in much offence by the arrogance of his manners. He
was unamiable in domestic life ; and the wonder rather
is, that Lady Hatton agreed to marry him, than that
she refused to live with him. Nor does he seem to
have formed a friendship with any of his contempo-
raries. Yet they speak of him with respect, if not with
fondness. "He was," said Spelman, " the founder of
our legal storehouse, and, which his rivals must confess,
though their spleen should burst by reason of it, the
head of our jurisprudence." ' Camden declared that
" he had highly obliged both his own age and poster-
ity ; " 2 and Fuller prophesied that he would be admired
" while Fame has a trumpet left her, and any breath to
blow therein."3
Heisun- Modern writers have treated him harshly. For
justly cen
sured by example, Hallam, after saying truly that he was " proud
and overbearing," describes him as " a flatterer and
tool of the Court till he had obtained his ends." 4 But
he does not seem at all to have mixed in politics till, at
the request of Burleigh, he consented to become a law
officer of the Crown ; and although, in that capacity,
he unduly stretched the prerogative, he at no time be-
trayed any symptom of sycophancy or subserviency.
From the moment when he was placed on the bench,
his public conduct was irreproachable. Our Constitu-
tional Historian is subsequently obliged to confess that
" he became the strenuous asserter of liberty on the
principles of those ancient laws which no one was ad-
mitted to know so well as himself ; redeeming, in an
intrepid and patriotic old age, the faults which we
I. Rel. Spelm. p. 150. 2. Britannia, Iceni, p. 351.
3. Worthies, Norfolk, p. 251. 4. Const. Hist. i. 455.
LIFE OF SIR EDWARD COKE. . 41
cannot avoid perceiving in his earlier life." l In esti-CHAP- x-
... 1-111 The merit
mating the merit of his independent career, which led of his in-
to his fall and to his exclusion from office for the rest caree" ees"i-
of his days, we are apt not sufficiently to recollect the"1'
situation of a " disgraced courtier " in the reign of
James I. Nowadays, a political leader often enhances
his consequence by going into Opposition, and some-
times enjoys more than ever the personal favor of the
sovereign. But, in the beginning of the ijth century,
any one who had held high office, if forbidden " to
come within the verge of the Court " — whether under
a judicial sentence or not, — was supposed to have a
stain affixed to his character, and he and those con-
nected with him were shunned by all who had any
hope of rising in the world.
Most men, I am afraid, would rather have beenwh«tjher
would you
Bacon than Coke. The superior rank of the office ofhavebeen
Coke or
Chancellor, and the titles of Baron and Viscount, Bacon ?
would now go for little in the comparison ; but the
intellectual and the noble-minded must be in danger
of being captivated too much by Bacon's stupendous
genius and his brilliant European reputation, while his
amiable qualities win their way to the heart. Coke,
on the contrary, appears as a deep but narrow-minded
lawyer, knowing hardly anything beyond the weari-
some and crabbed learning of his own craft, famous
only in his own country, and repelling all friendship
or attachment by his harsh manners. Yet, when we Coke to be
come to apply the test of moral worth and upright fo
worth and
conduct, Coke ought, beyond all question, to be pre-upnght
ferred. He never betrayed a friend, or truckled to00
an enemy. He never tampered with the integrity of
judges, or himself took a bribe. When he had risen to
influence, he exerted it strenuously in support of the
laws and liberties of his country, instead of being the
I. Const. Hist. i. 476.
42 LIFE OF SIR EDWARD COKE.
CHAP. x. advocate of every abuse and the abettor of despotic
sway. When he lost his high office, he did not retire
from public life " with wasted spirits and an oppressed
mind," overwhelmed by the consciousness of guilt, —
but, bold, energetic, and uncompromising, from the
lofty feeling of integrity, he placed himself at the head
of that band of patriots to whom we are mainly in-
debted for the free institutions which we now enjoy.
Part taken Lady Hatton, his second wife, survived him many
Hatton in years. On his death she took possession of the house
war- at Stoke Pogis, and there she was residing when the
civil war broke out. Having strenuously supported
the Parliament against the King, — when Prince Ru-
pert1 approached her with a military force she fled,
leaving behind her a letter addressed to him, in which,
having politely said " I am most heartily sorry to fly
from this dwelling, when I hear your Excellency is
coming so near it, which, however, with all in and
about it, is most willingly exposed to your pleasure
and accommodation," she gives him this caution :
" The Parliament is the only firm foundation of the
greatest establishment the King or his posterity can
wish and attain, and therefore, if you should persist in
the unhappiness to support any advice to break the
I. Prince Rupert, the third son of Frederick, King of Bohemia, by
Elizabeth, daughter of James I., was born 1619, and received an educa-
tion adapted to the military service. In the civil wars of England, whilst
his elder brother became a pensioner to the Parliament, Prince Rupert
adhered steadfastly to his royal uncle, and defeated the rebels in several
engagements, for which the King honored him with the Garter, and made
him a peer. The Prince, however, was more successful as a naval com
mander than on the land, particularly after the Restoration, in the great
Dutch war, on the conclusion of which he led a retired life, occupied
wholly in scientific pursuits. He invented a composition called " prince's
metal," improved the strength of gunpowder, and constructed a piece of
ordnance that would carry several bullets with the utmost speed. He
also found out a method of fusing blacklead ; but his principal discovery
was that of engraving in mezzotinto, and there are some prints executed
by him in this way. He died in London Nov. 29, 1682, and was buried
in Westminster Abbey. — Cooper's Biog. Diet.
LIFE OF SIR EDWARD COKE. 43
Parliament upon any pretence whatsoever, you shall CHAP. x.
concur to destroy the best groundwork for his Maj-
esty's prosperity." 1
Sir Edward Coke, by his first wife, had seven sons, ^end-
but none of them gained any distinction except Clem-ants-
ent, the sixth, who, being a member of the House of
Commons at the beginning of the reign of Charles I., Feb. 1627-
in the debate upon the impeachment of the Duke of
Buckingham, had the courage to use these words: " It
is better to die by an enemy than to suffer at home : "
for which there came a message of complaint from the
Crown, and he would have been sent to the Tower,2
but for the great respect for the ex-Chief Justice, who
was sitting by his side, and disdained to make any
apology for him.
Roger Coke, a grandson of the Chief Justice, in the
year 1660 published a book entitled "Justice Vindi- " justice
cated," which, although without literary merit, con-cated."
tains many curious anecdotes of the times in which
the author lived.
In 1747, Thomas Coke, the lineal heir of the Chief
Justice, was raised to the peerage by the titles of Vis-
count Coke and Earl of Leicester ; but on his death
the male line became extinct. The family was repre-
sented, through a female, by the late Thomas Coke,
Esq., who, inheriting the Chief Justice's estates and
love of liberty, after representing the county of Nor-
folk in the House of Commons for half a century, was,
1. British Museum. Stoke Pogis House, so memorable in our legal
annals, one of the places of confinement of Charles I. when in the power
of the Parliament, and celebrated by Gray in his " Long Story," having
passed from the Gayers, the Halseys, and the Penns, is now the property
of my valued friend and colleague, the Right Honorable Henry Labou-
chere. A column has been erected in the park to the memory of Sir
Edward Coke ; but there is no other vestige in the parish of his existence,
and there are no traditional stories concerning him in the neighbor-
hood. •
2. 2 Parl. Hist. 50.
44
LIFE OF SIR EDWARD COKE.
CHAP. x. in !837, created Viscount and Earl of Leicester, titles
now enjoyed by his son. Holkham I hope may long
prove an illustration of the saying of the venerable
ancestor of this branch of the Cokes, that " the blessing
of Heaven specially descends on the posterity of a
great lawyer."
LIFE OF CHIEF JUSTICE MONTAGU. 45
CHAPTER XI.
LIVES OF THE CHIEF JUSTICES FROM THE DEMISE OF
SIR EDWARD COKE TILL THE ESTABLISHMENT OF
THE COMMONWEALTH.
To lessen the odium of Sir Edward Coke's violent CHAP.
removal from the office of Chief Justice of the King's A.D. 1616.
Bench, there was selected as his successor a man who sir Henry
was very inferior to him in learning and ability, but
who was generally popular, and who was capable of
performing the part with decent credit. It used to be
said of him, " He is perfectly qualified to be a Fellow His char-
of All Souls ; l for if mediocriter doctus, he is bene natus^
and bene vestitus." 2 Not only was he remarkable for
being well born, and dressing genteelly, but he was
very good-looking, he had sprightly parts, and his
manners were delightful. Though idly inclined, he
was capable of occasional application ; and all that he
had acquired he could turn to the best advantage. In
morals he was accommodating ; but he would do
nothing grossly dishonorable. This was a man to get
on in the world and to avoid reverses of fortune, much
better than the possessor of original genius, profound
knowledge, and unbending integrity.
SIR HENRY MONTAGU, the subject of the followingHis family,
sketch, who added fresh splendor to an illustrious
line, was the grandson of Sir Edward Montagu, whom
I have commemorated as making a distinguished fig-
ure in the reigns of Henry VIII., Edward VI., and
Queen Mary ; being a younger son of the eldest son of
1. All Souls College, Oxford, founded in 1437 by Archbishop Chichele.
2. " Moderately learned, he is well born and well dressed."
4g REIGN OF JAMES I.
CHAP, that Chief Justice. He was born in his father's castle
XI
of Boughton, in Northamptonshire, about the middle
of the reign of Queen Elizabeth. While yet a baby, a
wizard, on examining the palm of his right hand, fore-
told that he would be " the greatest of the Montagus."
This was, then, believed to be a true prophecy ; but
was interpreted by the supposition that his elder
brothers would all die in infancy, and that the whole
of the possessions of the family would centre in him, —
not that he was to be Chief Justice of England, Lord
Treasurer, and an Earl.
Hiseduca- I do not find any mention of his school; but we
know that he studied at Christ's College, Cambridge;
and it is said that, while there, he showed good-nature,
exuberant spirits, and attention to external accomplish-
ments, which made him a general favorite, although
he had fallen into some irregularities. Having to
make his own bread, at a time when younger sons had
nothing to expect but an education becoming their
birth, he resolved to try his luck in the law, in which
His stand- his ancestor had been so prosperous ; and he was
studenta<>f entered a student of the Middle Temple. Here he
showed a great talent for speaking at the " Moots" but
he was remiss in his attendance at the " Readings," or
lectures; and he was much better pleased to frequent
the ordinaries and the fencing-schools in Alsatia.1
I. One of the streets which open upon the right of Fleet Street still
bears the name of Whitefriars, which it derives from the convent of the
Brotherhood of the Virgin of Mount Carmel, founded by Sir Richard Grey
in 1241. The establishment of one of the earliest theatres in London in
the monastic hall of Whitefriars was probably due to the fact of its being
a sanctuary beyond the jurisdiction of the Mayor and Corporation, who
then and ever since have opposed theatrical performances within the City.
The first playhouse was at Blackfdars, and Whitefriars followed in 1576.
After the Dissolution, this district retained the privilege of sanctuary, and
thus it became the refuge for troops of bad characters of every description.
It obtained the name of Alsatia, a name which is first found in Shadwell's
play, " The Squire of Alsatia," and to which Sir Walter Scott has im-
parted especial interest through " The Fortunes of Nigel." In the reign
JAMES I.
LIFE OF CHIEF JUSTICE MONTAGU. 47
However, by a few weeks' cramming, he got decently
well through the examinations and exercises which
were then required as tests of proficiency before being
called to the bar. Having put on his gown, he was
desirous of obtaining practice ; but his plan was to get
on by bustling about in society, by making himself
known, and by availing himself of the good offices of
his powerful relatives, — rather than by shutting himself
up in his chambers, or by constantly taking notes in
the Courts at Westminster.
Although he was employed in some flashy actions "on^0'68"
for scan, mag., and in some prosecutions which arose process.
out of brawls in taverns, he had not for several years
any regular business, and he was beginning to despond,
when a new parliament was called. He determined to
try his luck in the political line, and he was returned
to the House of Commons as member for Higham
Ferrers. This was Queen Elizabeth's last parliament,
in which the country party was so strong that he
thought he should best come forward as a patriot.
Accordingly, he joined those who made such a vigor-
ous stand against monopolies that the Queen was
obliged in prudence to promise to abandon them. He His
speeches in
delivered an animated speech in support of a bill to 'he House
of Com-
abolish them, pointing out that the proceeding against mons.
of James I. a sensation was created here by a singular crime in high life.
Young Lord Sanquhar had his eye put out while taking lessons in fencing
from John Turner, the famous fencing-master of the day. Being after-
wards in France, the young King Henry IV., after inquiring kindly about
his accident, said condolingly but jokingly, and " does the man who did it
still live ?" From that time it became a monomania with Lord Sanquhar
to compass the death of the unfortunate Turner, though two years elapsed
before he was able to accomplish it — two years in which he dogged his
unconscious victim like a shadow, and eventually had him shot by two
hired assassins at a tavern which he frequented in Whitefriars. The
deputy murderers were arrested, and then Lord Sanquhar surrendered to
the mercy of the Archbishop of Canterbury, but he was sentenced to
death, and was hung before the entrance of Westminster Hall. — Hare's
Walks in London, vol. i. p. 114,
48 REIGN OF JAMES I.
CHAP, them in the last parliament by petition had proved
wholly fruitless.1
But he gained the greatest <fclat by impugning the
doctrine that " all the goods of the subject belong to
the sovereign, who may resume the whole, or any part,
as occasion requires." This doctrine was boldly laid
down by Sergeant Heale, who said," I marvel much, Mr.
Speaker, that the House should hesitate about a subsidy
asked by the Queen, when all we have is her Majesty's,
and she may lawfully at her pleasure take it from us ;
yea, she hath as much right to all our lands and goods
as to any revenue of her crown." This calling forth
coughing, and cries of OH ! OH ! he added, " I can
prove what I have said by precedents in the times of
Henry III., King John, and King Stephen."
defenceof Mr. Montagu: "That there was much robbery, public and
p°Pular private, in those reigns, no man may dispute ; but I do deny
that in those reigns, or in any other reign before or since the
coming in of the Conqueror, is any precedent to be found of
any tax being lawfully levied except by the will of the great
council of the nation. If all the preambles of subsidies be
looked into, you shall find they are declared to be ' of free
gift.' Although her Majesty asks a subsidy, it is for us to-
give it, and not for her to exact it. As for the King taking
the goods of the subject, there is the precedent of Edward III.
having the tenth fleece of wool and the tenth sheaf of corn ;
but that was by grant of the Commons at his going to the
conquest of France, because all the money then in the realm
would not have been any way answerable to raise the great
mass he desired. Centuries ago it has been declared, the King
assenting, that no talliage shall be levied in England but by
authority of all the states of the realm." '
He is This was not the way to be made Attorney or
elected J
Recorder Solicitor General, or to gain any favor from the Court,
of London. .
A.D. 1604. — but by such stout defences of popular rights he
rendered himself so acceptable to the City of London
I. I Part. Hist. 920. 2. I Parl. Hist. 921.
LIFE OF CHIEF JUSTICE MONTAGU. 49
that he was elected Recorder,— although it was said
that he aided his interest in this quarter by his atten-
tions to the wives of the aldermen.
Whatever means he employed, he was now in high
favor eastward of Temple Bar;1 and in James's first
i. Temple Bar (till 1878) ended the Strand, and marked the division
between the City of London and the Liberty of Westminster. It was
never a city gate, but, as defining the City bounds, was, according to
ancient custom, invariably closed, and only opened when a sovereign
approached the City on some public occasion. When the monarch
arrived, one herald sounded a trumpet, another herald knocked, a
parley ensued, the gates were flung open, and the Lord Mayor presented
the sword of the City to the sovereign, who returned it to him again.
Strype says that "anciently, there were only posis, rails, and a chain"
at Temple Bar. It is first mentioned as Barram Novi Templi in a grant
of 1301 (29 Edward I.), but we have no definite idea of it till the sixteenth
century. In the time of Henry VII. it is believed that a wooden edifice
was erected, and was the gate beneath which the bier of Elizabeth of York,
on its way from the Tower to Westminster, was sprinkled with holy water
by the abbots of Bermondsey and Westminster. We know that it was
" newly paynted and repayred " for the coronation of Anne Boleyn (1533),
and that it was " painted and fashioned with battlements and buttresses of
various colors, richly hung with cloth of arras, and garnished with fourteen
standards of flags" (1547) for the coronation of Edward VI. It was by
this " Tempull Barre " that Sir Thomas Wyatt was taken prisoner. Being
summoned to surrender, he said he would do so to a gentleman, when Sir
Maurice Berkeley rode up, and " bade him lepe up behind him, and so he
was carried to Westminster." The last Temple Bar was built in 1670.
Charles II. promised (but never paid) a large contribution towards it
from the revenue he received from licensing the then newly-invented
hackney coaches. Sir Christopher Wren was the architect and Joshua
Marshall the mason. Bushell, a sculptor who died mad in 1701, was
employed to adorn it with four feeble statues, those on the west repre-
senting Charles I. and Charles II., those on the east Elizabeth and
James I. The statue of the popular Elizabeth used annually to receive
an ovation on the anniversary of her accession, which was kept as
the chief festival of Protestantism, till after the coming of William
III., when Protestant ardor was transferred to Guy Fawkes' day.
No one saw Temple Bar without connecting it with the human remains
— dried by summer heats, and beaten and occasionally hurled to the
ground by winter storms — by which it was so long surmounted. The
first ghastly ornament of the Bar was one of the quarters of Sir William
Armstrong, Master of the Horse to Charles II., who was concerned in
the Rye House Plot, and who, after his execution (1684), was boiled in
pitch and divided into four parts. The head and quarters of Sir William
Perkins and the quarters of Sir John Friend, who had conspired to assas-
sinate William III., "from love to King James and the Prince of Wales,"
were next exhibited, " a dismal sight," says Evelyn, " which many pitied."
Hebe-
comes a
courtier
and is
knighted.
O REIGN OF JAMES I.
CHAP, parliament he was returned as one of the four members
to represent the City in the House of Commons. But
he thought that he had gained all that could be ex-
pected from popular courses ; and, being admitted into
the presence of the new sovereign when carrying up a
City address, he contrived to gain his favor by some
observations on the divine right of kings, and the
wonderful circumstance that James united in his person
not only the claims of the red and the white roses, but
of the Saxon and Norman dynasties. In consequence,
Mr. Montagu was desired to kneel down, and, having
received a gracious blow from the royal sword, to
"rise Sir Henry."
He now warmly supported the Ministers ; and, in
proof of their confidence, he was placed at the head of
a committee to review the statutes of the realm, and
he was nominated as manager of a conference with
the Lords concerning the abolishing of the Court of
Wards.1
The next head raised here was that of Joseph Sullivan, executed for high
treason in 1715. Henry Osprey followed, who died for love of Prince
Charlie in 1716 ; and Christopher Layer, executed for a plot to seize the
King's person in 1723. The last heads which were exposed on the Bar
were those which were concerned in the " rebellion of "45." The spikes
which supported the heads were only removed in the present century. It
was in front of the Bar that the miserable Titus Dates stood in the pillory,
pelted with dead cats and rotten eggs, and that De Foe, placed in the
pillory for libel on the Government, stood there enjoying a perfect ovation
from the people, who drank his health as they hung the pillory with
flowers. With the removal of Temple Bar an immensity of the associations
of the past has been swept away. Almost all the well-known authors of
the last two centuries have somehow had occasion to mention it. — Hare's
Walks in London, vol. i. p. 51.
i. Comm. Journ., March, 1604. The Court of Wards was a court of
record founded by 32 Hen. VIII., c. 46, for the survey and management
of the rights of the Crown over its wards. Being joined to the Court of
Liveries by 33 Hen. VIII., ch. 22, it was called the Court of Wards and
Liveries. The seal of the court was kept by its chief officer, the Master of
Wards. Its province was to see that the King had the full profits of ten-
ure, arising from the custody of the heirs of his tenants being infants or
idiots, from the licenses and fines for the marriage of the kings' widows,
and from the sums paid for livery of seisin by the heir on entering on his
estate. A Court of Wards established in Ireland by James I. compelled
LIFE OF CHIEF JUSTICE MONTAGU. 51
For several years he entertained warm hopes of CHAP.
being appointed Attorney or Solicitor General ; but
promotions in the law went on very slowly, insomuch
that it was long before a vacancy could be found for
Bacon, who was then considered as having a para-
mount claim. Montagu, therefore, that he might be
raised to the bench on the first favorable opportunity,
agreed in the mean while to become a King's Ser-
geant. Accordingly, he took the coif by writ in the
usual form, on the 4th of February, 1611, and he was
He is made
created a King s Sergeant by patent under the Great King's
Seal a few days after.1 A.D. 1611.
Continuing Recorder of London, he particularly
distinguished himself in the festivities which took A-D- 16'3-
place in the City on the infamous and fatal marriage
between the Earl and Countess of Somerset. It was
not thought inconsistent with the gravity of his office
that he should dance a measure with the bride, who
was at this time all gayety and frolic, although she
had just done a deed which, when it was discovered,
filled mankind with horror.
Three years afterwards, the guilty pair being put He con-
on their trial for the murder of Sir Thomas Overbury, prosecu-
Sergeant Montagu appeared as counsel against them. a^Tinst the
He had a very delicate task to perform ; for the King, coumessof
though compelled by public opinion to permit the
trial, wished to spare his favorite ; and, dreadfully
afraid of the disclosures which might be made if one
all heirs in the King's custody to be educated as Protestants, and enforced
the oath of supremacy as a condition of livery of seisin. The jurisdiction
of the Court of Wards was unduly extended, and became very oppressive
under the first two Stuart kings. On Feb. 24, 1645, the House of Com-
mons "passed a vote that the Court of Wards itself, and all wardships,
tenures, licenses for alienation, etc., should be taken away ;" and the Lords
concurred therein. The Court was finally abolished by the statute 12 Car.
II., ch. 24, which destroyed military tenures. — Low and Putting's Diet.
of Eng. Hist.
I. Dugd. Ch. Ser. 103.
52 REIGN OF JAMES I.
CHAP. wjth whom he had been so familiar should be driven
to extremity, had with his own hand written this
caution as to the manner in which he wished the
prosecution to be conducted : " Ye will doe well to re-
mcmber in your prceambtc that insigne, tliat the only zeal to
justice maketli me take this course, and I have commandit
you not to expatiate, nor digresse upon any other points that
may not serve clcarlie for probation or inducement of tliat
point quhairof he is accused."
May 25, When the Earl was brought before the Lord High
Steward and Court of Peers, Montagu proceeded to
open the case against him with fear and trembling,—
anxious at once to comply with the King's wishes, and
to appear to discharge his duty. Two yeomen of the
guard were stationed ready to throw a cloth over the
head of the prisoner, and to remove him from the hall,
as soon as he should begin to say any thing offensive
against the King, " the Lieutenant of the Tower having
told him roundly, that, if in his speeches he should tax
the King, the justice of England was to stop him, and
all the people would cry ' away with him ! ' and the evi-
dence should go on without him; and, then the people
being set on fire, it would not be in the King's will to
save his life."
He opens Thus Sergeant Montagu began: "My Lord High
against Steward of England, and you my Lords, this cannot
but be a heavy spectacle unto you to see that man,
that not long since in great place, with a white staff,
went before the King, now at this bar hold up his
hand for blood : but this is the change of fortune, nay,
1 might better say, the hand of God and work of
justice, which is the King's honor." He then gave a
softened narrative of the leading facts of the case, Uiid
concluded by admonishing the peers to remember
that the prisoner might be guilty, although at the time
the murder was done he was in the King's palace, and
COURT OF WARDS AND LIVERIES ABOUT 1590.
KRU.M A PILIL-KK IM THE COLLECTION OF THE DUKE OF RICHMOND.
LIFE OF CHIEF JUSTICE MONTAGU. 53
Sir Thomas Overbury was in the Tower ; as " hereto-
fore David, in the like case, was charged with the
murder of Uriah ; and though David was under his
pavilion, and Uriah in the army, yet David was ad-
judged by Almighty God to be the murderer."
Somerset, trusting to the promise of a pardon
which had been joined to the threat of severity, con-
ducted himself quietly during the trial, which termi-
nated in a verdict of guilty ; and the Countess was
persuaded to confess her guilt upon her arraignment.
There was joy among the courtiers, as if a great vic-
tory had been obtained by the nation over a foreign
enemy. The King, much relieved, expressed his satis-
faction with Sergeant Montagu, and promised to
him. the prose-
cution.
Sir Edward Coke, having given mortal offence to
the King, and to Buckingham the new favorite, by the
lofty independence which he had displayed as a judge,
was soon after, on the most frivolous pretences, sus-
pended from exercising the functions of his office of
Chief Justice of the King's Bench, and it was deter-
mined to dismiss him from it. James suggested Ser- *^s *P-
g-eant Montagu as a fit successor; and Bacon, the chief jus-
tice of the
Attorney General, his adviser, who was then in the King's
Bench.
near prospect of obtaining the Great Seal for himself, NOV. 13.
on account of the age and declining health of Lord
Chancellor Ellesmere, said that "a better choice could
not be made." Returning home from an audience on
this subject, Bacon thus wrote to the King :
" I send your Majesty a warrant to the Lord Chancellor
for making forth a writ for a new Chief Justice, leaving a
blank for the name to be supplied by your Majesty's presence;
for I never received your Majesty's express pleasure in it. If
your Majesty resolve on Montagu, as I conceive and wish, it
is very material, as these times are, that your Majesty have
some care that the Recorder succeeding be a temperate and
discreet man, and assured to your Majesty's service."
54
REIGN OF JAMES I.
CHAP.
XI.
Nov. 14.
The pro-
cession at
his instal-
lation.
Lord
Elles-
mere's
inaugural
address to
Chief Jus-
tice Mon-
tagu.
Next day Montagu's appointment as Chief Justice
passed the Great Seal, and a few days after he was
solemnly installed in the Court of King's Bench at
Westminster. On this occasion there was a grand
procession from the Temple to Westminster Hall :
"First went on foot the young gentlemen of the Inner
Temple; after them the barristers according to their
seniority ; next the officers of the King's Bench ; then
the said Chief Justice himself, on horseback, in his
robes, the Earl of Huntingdon on his right hand, and
the Lord Willoughby of Eresby on his left, with above
fifty knights and gentlemen of quality following."1
When he entered the court he first presented
himself at the bar, with Sergeant Hutton on his right
hand, and Sergeant Moore on his left. The Lord
Chancellor, seated on the bench, then delivered to him
the writ by which he was constituted Chief Justice,
and thus addressed him upon the duties of his new
office. Lord Ellesmere's very spiteful speech, it will
be observed, was spoken at Sir Edward Coke, and
the virtues ascribed to old Montagu were meant to
indicate the offences for which the cashiered Chief
Justice had incurred the royal displeasure :
" This is a rare case, for you are called to a place vacant
not by death or cession, but by a motion and deposing of him
that held the place before you. It is dangerous in a monarchy
for a man, holding a high and eminent place, to be ambitiously
popular ; take heed of it. In hearing of causes you are to
hear with patience, for patience is a great part of a judge ;
better hear with patience, prolixity and impertinent discourse
of lawyers and advocates, than rashly, for default of the lawyer
to ruin the client's cause : in the one you lose but a little
time ; by the other the client loseth his right, which can
I. Dugd. Or. Jur. p. 0,8. The only procession of this sort I ever wit-
nessed was when Lord Tenterden took his seat as a peer in the year 1827.
The barristers, according to their seniority, all then attended him to the
House of Lords.
LIFE OF CHIEF JUSTICE MONTAGU. 55
hardly be repaired. Remember your worthy grandfather, Sir CHAP.
Edward Montagu, when he sat Chief Justice in the Common [j0r(j
Pleas : you shall not find that he said vauntingly, that he would Elles:
mere's
make Latitats' latitare;1 when lie did sit Chief Justice in this address,
place, he contained himself within the words of the writ to be °°
'Chief Justice,' as the King called him ' ad placita coram nobis
tenenda ; ' 2 but did not arrogate or aspire to the high title of
'CAPITALIS JUSTITIA ANGLIC,' or 'CAPITALIS JUSTITIARIUS
ANGLIC,' an office which Hugh de Burgh and some few
others held in times of the barons' wars, and whilst the fury
thereof was not well ceased.3 He never strained the statute
2-j Edw. III. c. i to reach the Chancery, and to bring that
court and the ministers thereof, and the subjects that sought
justice there, to be in danger of premunire, an absurd and
inapt construction of that old statute.4 He doubted not
but if the King, by his writ under his Great Seal, commanded
the judges that they should not proceed Jfege inconsulto, then
they were dutifully to obey.5 He challenged not powers from
this court to correct all misdemeanors, as well extrajudicial
as judicial, nor to have power to judge statutes void, if he
considered them against common right and reason, but left the
parliament and the King what was common right and reason.6
Remember the removing and putting down your late pre-
decessor, and by whom, — which I often remember unto you,
that it is the great KING OF GREAT BRITAIN,' — whose great
wisdom and royal virtue, and religious care for the weal of his
1. This alludes to a controversy between the courts for custom, on which
the profits of the Judges mainly depended. The " latitat " was a contriv-
ance to take causes into the King's Bench from the Common Pleas.
2. " For holding pleas in our presence."
3. Whoever has done me the honor to read the previous part of this
volume, will be aware that the Chancellor is here egregiously mistaken,
for there were " Chief Justiciars " from the Conquest till the end of the
reign of Henry III.; and the title of " Chief Justice of England," which
Coke assumed, had been borne by many of his predecessors after the
nature of the office had been altered.
4. This refers to the controversy about staying, by injunction out of
Chancery, execution on common-law judgments.
5. This is a sarcasm upon Coke's greatest glory, — that he would not
allow the King to interfere with the regular administration of justice.
6. Here he touches Coke, who, in Dr. Bonham's case, had talked
nonsense about a statute being void if contrary to reason.
7. The title which James had assumed without authority of Parliament,
and by which he delighted to be called.
REIGN OF JAMES I.
CHAP.
XI.
Montagu's
answer.
His stand-
ing as
Chief Jus-
tice.
subjects, and for the due administration of justice, can never
be forgotten."
Montagu thus answered :
" My most honorable Lord: I must acknowledge the great
favors I have received from his Majesty ; for, when I do
consider my desert, I wonder what I am that he should
exalt me to this high place. But I find the Wiseman's saying
true, 'in great actions, cor Regis in manibus Domini,' and
'what is done, factum est a Domino.' ' I will not inquire into
my vow, but I will pay my vow and pro posse meo.2 I will
endeavor my best. It hath been a fashion of those that
have gone before me to excuse themselves ; and this I might
do better than they ; yet I dare not disable myself, lest
I should tax my master's judgment. God I hope will supply
what is defective in me. My Lord, what a spur have you put
to prick me forward in mentioning my grandfather ! " After
enlarging on the merits of this worthy sage, he adds, " I will,
for my own part, avoid four faults : idleness, corruption,
cowardliness, — and I will not be a heady judge. First, I will
not be idle nor over-busy. For the second, I have no need to
be corrupt, neither in action nor affection, for I have estate
sufficient. And, for my courage, if I fear, let me be amerced :
I will be a lion in courage, not in cruelty. And for the
fourth, I will be glad of good counsel, and I will not be busy
in stirring questions, especially of jurisdictions. It comforts
me to see the sages who sit there [the puisnies]. And yet
I am discomfited in three things, in the loss of my profit,
pleasure, and liberty. But I will devote myself Deo, Jtegi, et
Legi."*
The writ being then read, he took the oaths,
mounted to the bench, and was placed in the seat
of Chief Justice.4
The new Chief Justice had a very slender stock
of law, but much good sense and knowledge of the
1. "The heart of the King is in the hands of the Lord," and "what
is done, has been done by the Lord."
2. "In accordance with my ability."
3. The motto on his rings when he was called Sergeant. " To God, to
the King, and to Law."
4. See Cro. Jac. 407. Moore's Reports, 826-830.
LIFE OF CHIEF JUSTICE MONTAGU. 57
world. He was pronounced to be "a perfect gentle- CHAP.
man," and from the uniform courtesy and kindness
with which he treated the bar, there was a general
disposition to support him. He had one steady puisne
on whom he could rely, Mr. Justice Doderidge,1 and
with his aid he not only despatched the business
decently well, but, from his ready elocution, and power
of representation, he was regarded by the public as a
great Judge. He always himself felt diffident and
uncomfortable, and he often wished that " the time
might come when he should hear no more of Executory
devises, or Recoveries zvitk double vouclier."
The only proceeding of much public interest in hisHeawards
court while he was Chief Justice was the a warding aeaSnst°Sir
of execution against Sir Walter Raleigh, after theSeigh.
return of this extraordinary man from the delusive Sfg.28'
expedition to Guiana. When it was resolved to
sacrifice him with a view to appease the indignation
of the Spaniards, and it was found that he had done
nothing while intrusted with foreign command which
could be construed into a capital offence, he was
brought up before the Judges of the King's Bench,
that they might doom him to die under the sentence
pronounced fifteen years ago, — since which, by author-
ity under the Great Seal, he had been put at the head
of a fleet and an army, and been authorized to exercise
the power of life and death over the King's subjects.
He now pleaded that this was equivalent to a pardon :
"By that commission," said he, "I gained new life andRaieighs
vigor; for he '.hat hath power over the lives of others, mustPlea'
surely be master of his own. In the 22d Edw. III., a man
was indicted for felony, and he showed a charter whereby
it appeared that the King had hired him for the wars in
I. Sir John Doddridge, or Doderidge, was born at Barnstaple, Devon-
shire, 1555, and educated at Exeter College, Oxford. He was appointed
a Justice of the King's Bench 1613, and so continued till his death on Sept.
13. 1628. — Cooper's Biog. Diet.
REIGN OF JAMES I.
CHAP.
XI.
Montagu
expounds
the law.
Raleigh
puts him-
self on the
mercy of
the King.
Montagu
mitigates
the judg-
ment of ex-
ecution
with " the
oil of com-
fort."
Gascony, — and it was allowed to be a pardon. Under the
commission, I undertook a journey to honor my sovereign,
and to enrich his kingdom ; but it had an event fatal to
me, the loss of my son, and the wasting of my whole estate."
Montagu, C. J. : " Sir Walter Raleigh, this which you now
speak touching your voyage is not to the purpose ; there is no
other matter now in question here but concerning the judg-
ment of death formerly given against you. That judgment it
is now the King's pleasure, for certain reasons best known to
himself, to have executed, unless you can show good cause to
the contrary. Your commission cannot in any way help you,
for by that you are not pardoned. In felony, there may be an
implied pardon, as in the case you cite ; but in treason, you
must show a pardon by express words, and not by implication.
There was no word tending to pardon in all your commission ;
and, therefore, you must say something else to the purpose ;
otherwise, we must proceed to give execution."
Sir Walter Raleigh : " If your opinion be so, my Lord, I
am satisfied, and must put myself on the mercy of the King,
who I know is gracious. Concerning that judgment at Win-
chester passed so long ago, I presume that most who hear me
know how that was obtained ; nay, I know that his Majesty
was of opinion that I had hard measure therein, and if he
had not been anew exasperated against me, certain I am I
might (if I could by nature) have lived a thousand and a
thousand years before he would have taken advantage there-
of."
Montagu, C. J.: " Sir Walter Raleigh, you had an honor-
able trial, and it were wisdom in you now to submit yourself,
and to confess that your offence did justly draw down the
judgment then pronounced upon you. During these fifteen
years you have been as a dead man in the law, and might at
any minute have been cut off ; but the King in mercy spared
you. You might justly think it heavy, if you were now called
to execution in cold blood ; but it is not so ; for new offences
have stirred up his Majesty's justice to move him to revive
what the law had formerly cast upon you. I know you have
been valiant and wise, and I doubt not but you retain both
these virtues, which now you shall have occasion to use.
Your faith hath heretofore been questioned ; but I am satis-
fied that you are a good Christian, for your book, which is an
LIFE OF CHIEF JUSTICE MONTAGU. 59
admirable work, doth testify as much. I would give you coun- c H£P.
sel, but I know you can apply unto yourself far better coun-
sel than I am able to give you. Yet, with the good Samaritan
in the Gospel, who, finding one in the way wounded and dis-
tressed, poured oil into his wounds and refreshed him, so will
I now give unto you the oil of comfort ; though (in respect
that I am a minister of the law), mixed with vinegar. Fear
not death too much nor too little — not too much, lest you fail
in your hopes — nor too little, lest you die presumptuously.
The judgment of the Court is, that execution be granted ; and
may God have mercy on your soul ! " :
It must be admitted that Montagu's language on
this occasion forms a striking contrast with the oppro-
brious epithets which had been used by his predeces-
sor at the original trial ; and I know not that any share He has no
of the infamy of the new proceeding is to be imputed in
to him : he had only to declare what the law was,
he expounded it soundly ; for in strictness the at-
tainder could only be done away with by letters patent
under the Great Seal, reciting that it was for treason,
and granting a free pardon.2
The life of a common-law judge became more andHisiifeas
more irksome to Montagu. He complained not only
of the duties cast upon him for which he was not alto- Mm.6
gether fit, but of the society he was obliged to keep :
sitting all the morning at Westminster, he was ex-
pected to dine at Sergeants' Inn, where, in their " com-
potations," his " companions " talked of nothing but
the points which they had ruled upon their circuits,
and the cases depending before them in their several
courts. The gayety he had was " grand day in term,"
or a " reader's feast," when, for the amusement of the
judges, the barristers danced with each other in the
1. Jardine's Criminal Trials, vol. i. pp. 485-520.
2. Lingard truly says that the Chief Justice's address to Raleigh was
"conceived in terms of respect unusual on such occasions." — Vol. ix. p.
172.
60 REIGN OF JAMES I.
CHAP, halls of the Inns of Court. He thought he was better
AM
fitted to be a statesman than a lawyer ; and he was
sure that, holding a political office, he should at any
rate pass his time more agreeably.
Dec. 14, At last his wishes were gratified, and, in the end of
IO2O.
Hebe- the year 1620, he became Lord Treasurer, and was
comes
Lord High created a peer by the titles of Baron Kimbolton in the
and a peer, county of Huntingdon, and Viscount Mandevil. It is
said that this arrangement cost him the sum of 2O,ooo/.
He by no means found that the change answered
his expectations. Buckingham, arbitrary and rapa-
cious, was sole minister, and wished to engross the
profits as well as power of ail offices under the Crown.
Lord Chancellor Bacon, who was supposed to be some
check upon the favorite, stood on the brink of the
precipice from which he was soon after precipitated.
The new Viscount was ushered into the House of
Jan 30 Lords, with the usual solemnities, on the 3Oth of Janu-
1621. ary( [621, when the memorable parliament met which
put an end to monopolies and judicial corruption in Eng-
land.
His part in He took an active part in guiding the deliberations
ations con- of the Peers on the trial of Sir Giles Mompesson, im-
Mompes- peached by the Commons for the oppressions of which
Bacon. he had been guilty under royal grants giving him the
exclusive right to deal in commodities ; — and he was
appointed a manager for the Lords in the conferences
between the two Houses which ended in the impeach-
ment of Lord Bacon for bribery. The conscience-
stricken defendant having besought their Lordships to
" be merciful to a broken reed," they had only to con-
He declines sjder of the sentence. A wish was expressed that this
to pro-
nouncesen- should be pronounced by the Viscount Mandevil, long-
tence on ...
Bacon. accustomed to judicial proceedings ; but he, consider-
ing that the illustrious delinquent had been his rival,
his friend, and his patron, — with the delicacy of feeling
LIFE OF CHIEF JUSTICE MONTAGU. 6l
which always distinguished him, declined the invidious CHAP.
task ; and his successor, Sir James Ley, the new Chief
Justice, was appointed speaker for the occasion.
It was expected that Lord Mandevil would now
receive the Great Seal ; but he probably did not desire
the elevation, and at any rate it better suited the views
of the Government to select for the Chief Judge of the
land a Welsh curate, who had never been in a court of
justice in his life, and who had nothing of law beyond
a "ew scraps which he had picked up when private
secretary to a former Lord Chancellor. While he
was learning the A B C of equity, the Great Seal was "^co™-3
put into commission, and Lord Mandevil was pre- ™is?io"er
of the Oreat
vailed upon to consent to be first commissioner. TheSeal-
July 10,
Duke of Richmond,1 and Sir Julius Cassar,2 Master qf l6ai-
the Rolls, were associated with him ; and the latter
did the actual business of the court till it suited Will-
iams to appear as Lord Keeper.
In less than a twelvemonth from the time of hisHeisin-
duced to be
receiving the Treasurer's wand, — on account of a dif-Lord Pres-
ident of the
ference with BucKingham, he was obliged to resign it, Council.
and to be contented with the office of Lord President
of the Council.3 This office he retained during the
1. Ludovic Stuart, second Duke of Richmond and Lennox, born in 1574,
was a son of the first Duke of Lennox, and a cousin of James I. of Eng-
land. He gained the favor of that King, who created him Duke of Rich-
mond in 1623. He died, without issue, in 1624. — Thomas' Biog. Diet.
2. Sir Julius Csesar, born at Tottenham, Middlesex, 1557. His father,
a Genoese, was physician to Queens Mary and Elizabeth, who held him in
great esteem. Julius was educated at Magdalen Hall, Oxford, from
whence he went to Paris, where he took the degree of Doctor of Civil Law.
In 1583 he was made Master of the Requests, Judge of the Admiralty,
and Master of St. Katharine's Hospital, near the Tower. James I. con-
ferred on him the honor of knighthood, and made him Chancellor of
the Exchequer, which office he resigned 1614, on being appointed Master
of the Rolls. Died April 28, 1636. — Cooper's Biog. Diet.
3. Clarendon says, " Before the death of King James, by the favor of
the Duke of Buckingham he was raised to the place of Lord High Treas-
urer of England ; and within less than a year afterwards, by the withdraw-
ing of that favor, he was reduced to the almost empty title of President of
62
REIGN OF JAMES I.
CHAP.
XI.
A.O, 1626.
A.D. 1627.
Hebe-
comes
Lord Privy
Seal.
His mental
qualities.
remainder of the present, and the early part of the
succeeding, reign. Without taking any conspicuous
part, he seems ever after to have acquiesced in, and
supported, all the measures of the Court. In conse-
quence, in 1626, he was created Earl of Manchester,
the preamble of his patent containing a pompous
recital of his public services. The following year he
exchanged the Presidency of the Council for the
Privy Seal, which he continued to hold till his death.
" When Lord Privy Seal," says Fuller, " he brought
the Court of Requests1 into such repute, that what
formerly was called the Almes Basket of the Chancery,
had in his time well nigh as much meat in, and guests
about it (I mean suits and clients), as the Chancery
itself." * " He was," says Lord Clarendon, " a man of
great industry and sagacity in business, which he
delighted in exceedingly ; and preserved so great a
vigor of mind, even to his death, that some, who had
known him in his younger years, did believe him to
have much quicker parts in his age than before." 3 He
lived to see the meeting of the Long Parliament ; but,
on account of his years, and the influence of his son,
he escaped the vengeance prepared for other authors
of the tyranny inflicted on the nation for eleven years,
during which no legislative assembly had been allowed
to meet, " He was, unhappily, too much used as a
check upon the Lord Coventry ; and when that Lord
perplexed their counsels and designs with inconven-
ient objections in law, the authority of the Lord Man-
chester, who had trod the same paths, was still called
the Council, and, to allay the sense of the dishonor, created Viscount
Mandeville. He bore the diminution very well, as he was a wise man,
and of an excellent temper." — Ret. i. 84.
1. An ancient court of equity in England, inferior to the Court of Chan-
cery, and presided over by the Lord Privy Seal. — Chambers' Encyc., vol.
iii. p. 202.
2. Fuller, ii. 169.
3. Retell, i. 84.
LIFE OF CHIEF JUSTICE MONTAGU. 63
upon ; and he did too frequently gratify their unjusti- c"^p>
fiable designs and pretences. He died in lucky time," l
— on the loth of November, 1642, in the eightieth year His death,
of his age. It must be admitted that he was possessed
of very valuable qualities both for public and private
life ; and when we consider how much he accom-
plished, and the ways to greatness pursued by most of
. . . . . The praise
his contemporaries, the negative praise is creditable to to be ac-
him that he can be charged with no act of violence or him.6
corruption. He piqued himself on his consistency,
and took for his motto, which is still borne by his
descendants, " Disponendo me, non mutando me." a
His eldest son, Edward,3 was one of the most dis-Hisde-
tinguished men who appeared in the most interesting sc :ndants>
period of our history, having, as Lord Kimbolton, vin-
dicated the liberties of his country in the senate, as
Earl of Manchester in the field, and having afterwards
mainly contributed to the suppression of anarchy by
the restoration of the royal line.4
Charles, the fourth Earl, was created Duke of Man-
chester by George I. ; and William, the fifth Duke, is
1. Retell, i. 85.
2. " My opinion once formed, it cannot be altered."
3. Sir Edward Montagu, Earl of Manchester, an English general, born
in 1602, was the son of Henry, first Earl of Manchester. He was styled
Lord Kimbolton before his father's death (1642). Having joined the
opposition to the Court about 1640, he acquired great popularity. In
1642 he was impeached for treason, with Hampden and four other mem-
bers of Parliament, whom the King attempted to seize in the House. He
was appointed a general of the army of Parliament in 1643, and cooper-
ated with Fairfax at the victory of Marston Moor (1644). Manchester
and Essex were charged by Cromwell with temporizing, and with being
averse to a decisive victory of the popular party, and the command was
taken from them by the " Self-denying Ordinance " (1644). At the Res-
toration (1660) he was appointed Lord Chamberlain by Charles II. Died
in 1671. "He was distinguished," says Hume, "by humanity, gener-
osity, and every amiable virtue." — Thomas Biog. Diet.
4. He was a quasi legal character, and I might almost claim to be his
biographer, for he was a Lord Commissioner of the Great Seal under the
Commonwealth, and, as Speaker of the House of Lords, conducted their
judicial business. He again acted in this capacity at the meeting of the
Convention Parliament, till Lord Chancellor Clarendon was sworn in.
REIGN OF JAMES I.
CHAP.
XI.
Sir James
Ley.
His medi-
ocrity.
His origin
and educa-
tion.
A.D. 1569.
May i,
1577-
Multiplica-
tion of the
Montagus.
the present representative of Sir Henry Montagu, the
Lord Chief Justice.1
We are now in the period of our juridical annals
when the office of Chief Justice of the King's Bench
was considered a step to political advancement. On
the promotion of Chief Justice Montagu to be Lord
Treasurer, he was succeeded as Chief Justice by SIR
JAMES LEY, who, in his turn, was promoted to be
Lord Treasurer. This lawyer, although he filled such
high offices, and lived to be an Earl, seems to have
owed his elevation mainly to his mediocrity, for he
never exhibited much talent either in his profession or
in parliament ; and, not having committed any consid-
erable crimes, nor conferred any benefits on his gener-
ation, he is forgotten in Westminster Hall, and his
name is hardly noticed by historians.
He was descended of an ancient family, long seated
at Ley, in the county of Devon ; but, being a younger
son, he had to fight his way in the world. At the age
of sixteen he was sent to Brazen-nose College, Oxford.
Having taken a bachelor's degree there, he was trans-
ferred to Lincoln's Inn, where he is said to have de-
voted himself very assiduously to the study of the
I. The descendants of the first Chief Justice must now be reckoned by
hundreds of thousands. Pepys, in his diary of the 22d of September,
1665, has the following passage : " Among other discourse concerning
long life, Sir John Minnes saying that his great-grandfather was alive in
Edward the VI. 's time; my Lord Sandwich did tell us how few there
have been of his family since King Harry VIII., that is to say, the then
Chief Justice, and his son and the Lord Montagu, who was father to Sir
Sidney, who was his father. And yet, what is more wonderful, he did
assure us from the mouth of my Lord Montagu himself, that, in King
James's time (when he had a mind to get the King to cut off the entail of
some land which was given in Harry VIII. 's time to the family, with the
remainder in the Crown), he did answer the King in showing how unlikely
it was that it ever could revert to the Crown, but that it would be a pres-
ent convenience to him ; and did show that at that time there were 4,000
persons derived from the very body of the Chief Justice. It seems the
number of daughters in the family had been very great, and they too had
most of them many children, and grandchildren, and great-grandchildren.
This he tells as a most known and certain truth."
LIFE OF C11IEK JUSTICE LEY. 65
common law ; but he seems to have been more distin-
..
guished by agreeable manners than by profound ac-
quirements. After he had been fifteen years at the '*'„/' ',Sj~n
bar, he had hardly any business; and his prospects PJ^P^
were very discouraging. On the accession of James I.
he tried the experiment of becoming a Sergeant, — and
this likewise failed, for he continued without clients in
the Court of Common Pleas, as he had been when
sitting in the Court of King's Bench. So hopeless
was his condition, that he agreed to accept the ap-
pointment of Chief Justice of Ireland, — then pretty He goes as
much what the office of Chief Justice of New Zealand tice to ire-
would now be considered. He continued in exile five a'
years, assisting the King with his new plan of coloniz-
ing Ulster, and trying to tame the aborigines. Being a
man of prudence and address, he was very useful in
this employment, and greatly recommended himself n™P1[oy~
to his royal master, who expected lasting glory from
civilizing a country which had become rather more
barbarous since a settlement in it had first been at-
tempted by the English. He is one of the " Worthies "
of LLOYD, who, describing his residence in Ireland,
says, " Here he practised the charge King James gave
him at his going over — ' not to build his estate upon
the ruins of a miserable nation, but, by the impartial
execution of justice, to aim at civilizing the natives
instead of enriching himself.' "
Ley had at last leave to make a voyage home to May 15,
his native country, and there he gave such a flatter- He
ing account of the progress which Ireland was making lnd"bf-
under the new regime — ascribing much of it to himself £°vorite
—that James, as a reward for his eminent services,
knighted him, gave him leave to resign his Irish
Chief Justiceship, made him Attorney of the Court of
Wards and Liveries in England, and, by warrant under
the Privy Seal, assigned to him precedence in that
66
REIGN OF JAMES I.
CHAP, court above Sir Henry Hobart, Attorney General to
the Crown. His fortune was now made. Till the
abolition of military tenure, bringing along with it the
custody of the lands of minors, the right of bestowing
heiresses in marriage, and other such incidents, the
practice in the Court of Wards and Liveries was far
more profitable than in any other court ; and Sir
James Ley not only had a great income with little
labor, but he was much at Whitehall, and contrived to
accommodate himself to all the humors of the royal
pedant. The order of Baronets being established, he
was one of the first batch — no doubt buying this dis-
tinction at the usual price.
He could not for a moment compare himself with
Lord Coke ; but when this legal leviathan was pro-
nounced to be a public nuisance, the fashion arose of
saying that a man with plain good sense and gentle-
manlike habits made the best Chief Justice. Ley's
He aims at ambition increasing with his wealth, he insinuated that
the Chief
justiceship he should make as good a Chief Justice in England
land. as he had done in Ireland; and, without any great
stretch, he asserted that he was as much of a lawyer
as Montagu, who was now presiding in the King's
Bench, more quietly, and more for the support of the
prerogative, than Coke, so renowned for his learning.
He went so far as to censure Coke for having opposed
the King's desire to sit on the bench himself, like
Solomon, and to give judgment between his subjects.
To add to his legal reputation, he compiled and circu-
lated in MS. " A Treatise concerning Wards and Liv-
eries," and " Reports of Cases decided in the Court of
Wards and Liveries," which were afterwards printed,
and may still be seen in curious collections. Above
all, he cultivated Buckingham ; and it has been said
that he offered the rapacious minister a large sum
of money for the Chief Justiceship when it should
LIFE OF CHIEF JUSTICE LEY. 67
become vacant: but this statement, I apprehend, pro-
ceeded rather from the probability than from any posi-
tive evidence of the fact.
However the arrangement might have been Jan. 29,
l62I.
brought about, when Montagu received the Treasur- He is made
er's staff, the collar of S.S. was put round the neck tu* of the
of Sir James Ley, as Chief Justice of England. The Bench5.
following is the account we have of his installation,
on the ist day of February, 1621: "The Lord Chan-
cellor came and sat in the Court of King's Bench, and
Sir James Ley came betwixt two of the King's Ser-
geants to the bar, where the Lord Chancellor made a
short speech to him of the King's favor and reasons in
electing him to that place ; and he, being at the bar,
answered thereto, showing his thankfulness, and en-
deavor in the due execution of his offioe. He then
went into court, and had his patent delivered to him,
which was openly read, and was a short recital only
that the King had constituted him to be Chief Justice
there, commanding him to attend and execute it. He
was then sworn." 1
The very same day he decided that an innkeeper The unim-
portant
may be indicted for taking an exorbitant price for character
of his rul-
oats. Objection was taken that the indictment washes-
bad for not alleging with sufficient certainty what was
the reasonable price of oats, for it only alleged " quod
commune pretium avenarum non fuit ultra 2od. the
bushel;" but he held the indictment sufficient in
averring " quod predictus A. B. demandavit et cepit pre-
tium excessivum et cxtorsivum, viz. 2s. Qd. a bushel."3 A
few days after, he ruled that it was actionable for one
married woman to say to another married woman,
1. Cro. Jac. 610.
2. " That the common price of oats was not more than 2o</. the bushel."
3. [" That the aforesaid A. B. demanded and received an excessive and
exorbitant price, namely, 2s. 8d. a bushel."] — Johnson's case, Cro. Jac.
610.
68 REIGN OF JAMES I.
CHAP. « Thou perjured beast, I will make thee stand upon
a scaffold in the Star Chamber," though, for want of
the word " art," they were spoken adjectively, not posi-
tively*
During the two years and a half that he continued
to preside in the King's Bench, I do not find any more
important point coming before him ; and if we may
judge from the Reports, the business of his court must
have dwindled away almost to nothing, — I presume
from an opinion of his incompetency.
Heisap- But ne was engaged as one of the principal actors
i11 a very solemn proceeding. It has been said that
wnen Lord Bacon pleaded guilty to the charge of
***y *> bribery, alleged against him by the House of Com-
mons, and was deprived of the Great Seal, Ley for a
short time became Lord Chancellor.3 In reality he
was only appointed Speaker of the House of Lords,
the Great Seal having been put into commission.
He continued to preside on the woolsack while
the House of Lords was engaged in some of the most
important proceedings which have ever engaged its
attention ; and although he was not then a peer, and
therefore had no right to debate or to vote, — as the
organ of the will of the assembly he acted a conspicu-
ous part in the eyes of the public.
He pro- At first it was thought that the painful duty would
nounces *
the sen- have been cast upon him of calling upon Lord Bacon
against to kneel down at the bar, and of addressing him on the
Lord
Bacon. enormity of the offence for which he was to receive
sentence ; but the illustrious convict was, or pre-
tended to be, too ill to attend, and the Peers, to spare
the shame of a man whom they all admired for his
genius, and even loved for the blandness of his man-
ners, agreed to pass judgment upon him in his absence.
1 . Benson et ux. v. Hall et ux. , Cro. Jac. 61 3.
2. 2 St. Tr. 1 1 12.
LIFE OF CHIEF JUSTICE LEY. 69
The Lords then sent a message to the other House CHAP.
•Hi
" that they were ready to give judgment against the
Lord Viscount St. Albans if they, with their Speaker,
came to demand it." The Commons soon appeared
at the bar, with Sir Thomas Richardson (atterwards
Chief Justice of the King's Bench) at their head, and
" demanded judgment on the Lord Chancellor as the
nature of his offences and demerits require." Sir
James Ley, remaining covered, thus gave judgment:
" Mr. Speaker : Upon the complaint of the Commons
against the Lord Viscount St. Alban, Lord Chancellor,
this high Court, on his own confession, hath found
him guilty of the crimes and corruptions complained
of by the Commons, and of sundry other crimes and
corruptions of like nature : Therefore this high Court,
having first summoned him to attend, and having
received his excuse of not attending by reason of
infirmities and sickness, which he protested was not
feigned, doth nevertheless think fit to proceed to judg-
ment: And therefore this high Court doth adjudge,
1. That the Lord Viscount St. Alban, Lord Chancellor
of England, shall undergo fine and ransom of 4O,ooo/.
2. That he shall be imprisoned in the Tower during
the King's pleasure. 3. That he shall be for ever
incapable of holding any office, place, or employment
in the state or commonwealth. 4. That he shall never
sit in parliament, nor come within the verge of the
Court." '
Subsequently, Sir James Ley pronounced judgment
on Sir F. Mitchell, found guilty, along with Sir Giles
Mompesson, of extortion and oppression under unlaw-
ful monopolies obtained from the Crown ; and on Sir
Henry Yelverton, the Attorney General, found guilty
of corruption in preparing charters to pass the Great
Seal. He had a ready eloquence, and on these occa-
I. I Parl. Hist. I24Q.
;o
CHAP.
XI.
Impeach-
ment of
Floyde.
REIGN OF JAMES I.
sions, where little knowledge of law was required, he
appeared to advantage.
In the dispute between the two Houses respecting
the punishment of Edward Floyde,1 he gave important
assistance to the Lords in maintaining their exclusive
right to try by impeachment. When the unhappy de-
linquent was at last brought to the bar of the House
of Lords, the following dialogue was held, being begun
by Lord Speaker Ley : " What answer do you make
to the uttering of the words laid to your charge ? "
Floyde: "I cannot remember that these words were
ever spoken by me." Ley : " You must give a positive
answer whether you spoke the words ' Goodman Pals-
i. Edward Floyd, Floud, or Lloyd (d. 1648?), was a Roman Catholic
barrister, who became steward in Shropshire to Lord Chancellor Ellesmere
and the Earl of Suffolk. In 1621, when he was a prisoner in the Fleet at
the instance of the Privy Council, he was impeached in the House of Com-
mons for having said : " I have heard that Prague is taken ; and Good-
man Palsgrave and Goodwife Palsgrave have taken their heels ; and as I
have heard, Goodwife Palsgrave is taken prisoner." These words, it was
alleged, were spoken by him in a most despiteful and scornful manner, to
insult the Prince Palatine and his wife. The case led to an important
constitutional decision. The Commons condemned him on May I to pay
a fine of I.ooo/., to stand in the pillory in three different places for two
hours each time, and to be carried from place to place upon a horse with-
out a saddle, with his face towards the horse's tail, and holding the tail in
his hand. Floyd immediately appealed to the King, who the next morn-
ing sent to inquire upon what precedents the Commons grounded their
claim to act as a judicial body in regard to offences which did not concern
their privileges. A debate of several days led to a conference of the two
Houses, when it was agreed that the accused should be arraigned before
the Lords, and that a declaration should be entered on the Journals that his
trial before the Commons should not prejudice the just rights of either
House. The Lords added to the severity of the first judgment. On May
26 Floyd was condemned to be degraded from the estate of a gentleman ;
his testimony not to be received ; he was to be branded, whipped at the
cart's tail, to pay 5,ooo/., and to be imprisoned in Newgate for life.
When he was branded in Cheapside he declared that he would have given
i,ooo/. to be hanged in order that he might be a martyr in so good a cause.
Some days afterwards, on the motion of Prince Charles, it was agreed by
the Lords that the whipping should not be inflicted, and an order was made
that in future judgment should not be pronounced, when the sentence was
more than imprisonment, on the same day on which it was voted. The
remainder of the monstrous sentence on Floyd seems to have been carried
into effect. He was liberated on July 16, 1621. — Nat. Diet. Biog.
LIFE OF CHIEF JUSTICE LEY. 71
grave and Goodwife Palsgrave.' ' Floyde : "I spoke not CHAP.
the words in such sense as is alleged." Ley: "Did
you speak the words, or words to that effect ? " Floyde :
" It would be folly for me to deny them, because they
have been proved." The House then agreed to the
frightful sentence of repeated scourgings, pillorying,
etc., which reflects such indelible disgrace on the
House of Lords, but for which Ley cannot be answer-
able, as he only acted ministerially in pronouncing it.1
When parliament again met, he ceased to be November,
Speaker, the woolsack2 being occupied by Williams,
Bishop of Lincoln, the new Lord Keeper of the Great
Seal.3
The Chief Justice, on his return to his ordinary
judicial duties, found them very irksome, and he was
impatient to get rid of them. In the end of the year
A.D. 1624.
1624 he succeeded.
The intrigue by which he then got possession of
the office of Lord Treasurer, and was raised to the
u
High
peerage, will probably remain for ever in obscurity ;Treasurer
but the probability is that he paid a large sum of
money, to be divided between the King and Bucking-
ham. However this may be, he now joyfully threw
off his Judge's robes ; he became Lord Ley, Baron
Ley, of Ley, in the county of Devon ; and, bearing the
Treasurer's white wand, he took precedence of all
peers, spiritual or temporal, except the Archbishop of
Canterbury and the Lord Chancellor. He was at the
same time admitted into the cabinet, and he continued
in favor during the remainder of the reign of King
James.
1. I Parl. Hist. 1261.
2. In the reign of Queen Elizabeth an act of Parliament was passed
to prevent the exportation of wool ; and that this source of national
wealth might be kept constantly in mind, woolsacks were placed in the
House of Peers, whereon the Judges sat. — Brewer's Diet. Phrase and
Fable.
3. I Parl. Hist. 1295.
REIGN OF JAMES I.
CHAP.
XI.
His subser-
viency to
the Duke
of Buck-
ingham.
July '5,
1628.
He is in-
duced to
be Presi-
dent of the
Council.
A.D. 1629.
On the accession of Charles I. he was promoted in
the peerage, and took a title which afterwards became
one of the most illustrious in the peerage of England,
being borne by the hero of Blenheim, Ramillies, and
Malplaquet.
The first Earl of Marlborough, though he retained
his office of Lord Treasurer for several years, mixed
very little in public affairs, and was a mere puppet of
the Duke of Buckingham. I cannot find the slightest
trace of any speech he ever made in parliament after
he was created a peer. He seems still to have had
great delight in associating with his old legal friends
at the Inns of Court, and we find him carrying his
Treasurer's staff at a grand feast given at Sergeants'
Inn by his brethren of the coif.1
By and by it suited the convenience of the favorite
that he should be removed from his office of Lord
Treasurer;2 when he was obliged to exchange it for
that of President of the Council, which he held till the
I4th of March following, when he expired, in the /8th
year of his age. The cause of his death is said to have
been grief at the quarrel between Charles and the
House of Commons after the passing of the PETITION
OF RIGHT, which brought on an abrupt dissolution of
the Parliament, and a resolution that the government
of the country should henceforth be carried on by pre-
rogative alone. In his last moments he was supposed
to have had revealed to him the terrible times when
Englishmen were to fight against Englishmen in the
1. Cro. Car. ix.
2. Lord Clarendon says, " The Earl of Marlborough was removed under
pretence of his age and disability for the work (which had been a better
reason against his promotion)." He observes, " There were at that time
five noble persons alive who had all succeeded one another immediately
in that unsteady charge, without any other person intervening : the Earl
of Suffolk, the Earl of Manchester, the Earl of Middlesex, the Earl of
Marlborough, and the Earl of Portland." — Rebellion, i. 74.
LIFE OF CHIEF JUSTICE LEY. 73
field, and the scaffold was to be crimsoned with royal c^p-
gore.
He is said to have been fond of antiquarian learn
ing, and he amused himself with writing treatises on
heraldry and other kindred subjects.1 Wood describes
him as " a person of great gravity, ability, and integ-
rity, and of the same mind in all conditions." This is
flattery, — but it is curious to take a glance at one who,
in an age of great men, with very slender qualifications,
filled the offices of Coke and of Burleigh, and rose to
higher rank than either of them. His earldom de-His*je'
volved successively on his two sons, Henry and Will-
iam, and, on the death of the latter, in 1679, without
issue, it became extinct.2
The greatest honor ever conferred upon the house
of Ley was by a sonnet addressed by Milton to the
Lady Margaret, daughter of the Chief Justice. She
resided in a battlemented mansion in Buckinghamshire,
bosomed high in tufted trees, where she was " the
cynosure of neighboring eyes." The poet, captivated
by her charms, — as yet indifferent about popular priv-
ileges— and thinking that the surest way to win her
was to praise her sire, thus apostrophized her:
" Daughter to that good Earl, once President Milton's
Of England's Council and her Treasury, sonnet to
Who lived in both unstained with gold or fee, his <*augh-
And left them both more in himself content,
'Till sad, the breaking of that Parliament
Broke him, as that dishonest victory
1. See Hearne's Collection of Curious Discourses (London, 1775, 8vo);
Wood's Ath. Ox.; Bliss, ii. 441 ; Dugd. Ch. Ser. 105, 106.
2. Henry had been called up to the House of Lords in his father's life-
time,— affording the only instance of a Chief Justice and his son sitting
together in that assembly. " March 2, 1625. — HODIE Henry Lord Ley
(the eldest son of James E. of Marlborough) was brought into the House
(in his parliament robes) between the Lord Crumwell and the Lord North
(Garter going before), and his Lordship delivered his writ, kneeling, unto
the Lord Keeper, which being read, he was brought to his place next to
the Lord Deyncourt." — 3 Lords' Journals, 512.
74
LIFE OF CHIEF JUSTICE CREWE.
CHAP.
XI.
Sir Ran-
dolf
Crewe.
His noble
indepen-
dence of
character.
At Chaeroncea, fatal to Liberty,
Kill'd with report that old man eloquent !
Though later born than to have known the days
Wherein your father nourish'cJ, yet by you,
Madam, methinks I see him living yet,
So well your words his noble virtues praise,
That all both judge you to relate them true,
And to possess them, honored MARGARET !"
How dis-
tinguished
from Coke
His family
I have very great delight in now presenting to the
reader a perfectly competent and thoroughly honest
Chief Justice. Considering the times in which he
lived, the independent spirit which he displayed is
beyond all praise. Since the Judges have been irre-
movable, they can take part against the abuses of
power on very easy terms, and, as Lord Mansfield
remarked, " their temptation is all to the side of popu-
larity." Under the Stuarts, a judge gave an opinion
against the Crown with the certainty of being dis-
missed from his office ; and, if he retained his virtue,
he had this peculiar merit, that he might have sacri-
ficed it without becoming infamous, — for, however
profligate, numerous examples would have defended
him, and the world would have excused him, saying,
" he is not worse than his neighbors." The name of
RANDOLF 1 CREWE, therefore, ought to be transmitted
with honor to the latest posterity. The more do we
owe this debt of gratitude to his memory, that he was
not, like Sir Edward Coke, ostentatious and blustering
in the discharge of his duty. Not seeking to obtain
the applause of the world, he was a quiet, modest,
unambitious man, contented with the approbation of
his own conscience.
The subject of this memoir was of an ancient fam-
ily, who took their name from a manor, in the county
I. Christian as well as surnames were, in those days, spelt very differ-
ently. We find this name written "Randophe," "Randolph," " Ran-
dulph," "Randulf," "Ranulph," " Ranulf," "Randalf," and "Randal."
LIFE OF CHIEF JUSTICE CKEWE. 75
of Chester, which had belonged to them at least as far CHAP.
back as the beginning of the reign of Edward I. This
possession had, for 250 years, belonged to owners of a
different name, by the marriage of the heiress into
another family, but was repurchased by our Chief
Justice, the true heir male of the Crewes.
Born in the year 1588, he was the eldest son of His birth.
John Crewe, of Nantwich, Esquire, a gentleman in
rather reduced circumstances, but animated by a
strong desire to restore the greatness of his lineage.
There was one other son, Thomas; and their father
resolved to breed them to the bar, as affording the
best chance of honorably acquiring preferment. They
were both lads of excellent parts, and he used to enter-
tain them with stories of the greatness of their ances-
tors : he would point out to them the great manor of
CREWE, forming a large section of the county ; and he
fired their imaginations with the vision of their recov-
ering it, and again becoming "Crewes of that ilk.'
In the reign of Edward III. two brothers, of the name
of Stratford, successively held the office of Lord
Chancellor; and in recent times the two brothers
Scott rose in the law to equal eminence. The two
Crewes afford another instance of similar success.
They were at the same school, the same college, and
the same inn of court; always equally remarkable for
steady application, sound judgment, and honorable
conduct. They both followed exactly the same course
till they were Sergeants-at-law, were knighted, and
were successively Speakers of the House of Commons,
— when fate varied their destiny.1 Sir Thomas never
having been a Chief Justice, I must confine my narra-
tive to Sir Randolf.
I. The son of Sir Thomas, soon after the Restoration, was created, by
Charles II., Baron Crewe of Stene in the county of Northampton; but
this peerage became extinct in 1721, by the death without issue of his two
sons, who had successively inherited it.
76 LIFE OF CHIEF JUSTICE CREWE.
CHAP. \Ve have to boast of him as one of the ornaments
He studies of Lincoln's Inn; and in our books are the following
coin'Sninn. entries respecting him, marking the several stages of
A'D- I6oa- his career there :
"Cestr. Radulphus Crewe admiss est in societate ibm
him. decimo tertio die Novembris anno regni Reginae Elizabeth
decimo nono ad instanc Richi Wilbraham et Lawrencij
Woodnett manuc — '
" Octo die Novembris Anno regni Elizabethe vicesimo sexto 2
" It is orderede that theise gentlemen hereafter namede
shalbe called to the utter barre, vid. Mr. Jones and Mr.
Sidleye and they to be called at the nexte moote in the hall
the savinge of auncientye of Mr. Jonnes and Mr. Sidleye to
the utter barrestors that have not mooted. And Mr. Mollton
and MR. CREWE to be called to the barre the firste moote the
nexte terme."
"Lyncolnes Inne. Ad Consilium ibm tent tertio die Novem-
bris anno Rinae Eliz. : cl quadragessimo scdo. 1600.
"Yt ys ordered that Mr. Edward Skepwyth Mr. James
Leighe and Mr. RANDOPHE CREWE shalbe called to the
Benche and be published at the next pleading of the next
whole Moote in the Hall."
" Lincolnes Inne. Ad Consilium ibm tent nono die Maij
anno r. Rnae Dnae Elizabethe z xliiijto 1602.
" Att this Counsell Mr. RANDOLPHE CREWE is elected and
chosen to be reader the next somer and is to have such allow-
ances as the last somer reader hadd, and Mr. Gellybrand and
Mr. Christopher are elected to be Stewardes of the Reader's
Dynner."
heraldry111 He made himself a deep black-letter lawyer; and,
a!og|ene~ from early training, he was particularly fond of gene-
alogy and heraldry. He had likewise a ready elocu-
tion, and he conducted with discretion and success the
causes intrusted to him. Business flowed in upon him
1. " Cestr. Radulph Crewe was admitted into the society on the I3th
day of November, in the igth year of the reign of Queen Elizabeth."
2. " On the 8th day of November in the 26th year of the reign of
Queen Elizabeth."
CHIEF JUSTICE CREW.
AFTER W. HOLLAR.
LIFE OF CHIEF JUSTICE CREWE. 77
almost from his call to the bar ; and, never forgetting
that he might be reinstated in the family possessions,
he saved every broad piece that he could lay by with-
out being mean.
When, in the hope of obtaining a supply, a parlia-
ment was called in the spring of 1614, he had acquired
such distinction that, without solicitation, he was re-
turned to the House of Commons as member for his
native county; and at the opening of the session he April 7,
was elected Speaker. He " disqualified " himself in Hels
the approved fashion; but, being "allowed" by the speaker of
King, with high commendation for his known
and ability, — in demanding the privileges of the Com-mi
mons he delivered a flowery address to the King, in
which he contrived to allude to his Majesty's descent
from Cerdic the Saxon,1 as well as William the Con-
queror and the Scottish monarchs, whom he carried
back nearly to the Flood. James, much tickled with
this pedigree, again expressed his satisfaction that the
Commons had made so worthy a choice; but strictly
commanded the new Speaker to prevent the introduc-
tion of improper bills into the House, or the use of
improper topics in debate, and to urge the Commons
with all speed to vote the supply of which he stood so
much in need.
Crewe had a very unhappy time of it while in the HOW he
chair of the House of Commons, and conceived a dis- tha
gust for politics which lasted as long as he lived. In-"y
stead of granting a supply, the leaders of the country
party, now grown strong and bold, talked of nothing
but grievances ; and a quarrel arose between the two
Houses respecting a speech made by the Bishop of
Lincoln, derogatory to the dignity of the Commons.
I. Cerdic, a Saxon chief, invaded Britain, and, after gaining several
victories over the natives, founded the kingdom of Wessex about 519 A.D.
Died about 534. — Thomas' Biog. Diet.
78 LIFE OF CHIEF JUSTICE CREWE.
The King blamed the Speaker; but the Speaker dc-
AM
clared that he could do nothing more to further the
King's business without trenching on those privileges
which it was his duty to uphold. At the end of a
few weeks, employed in useless altercation, the King
abruptly put an end to the session by a dissolution.1
July i The ex-Speaker now resolved to devote himself ex-
16141 clusively to his profession, and with this view he took
upon himself the degree of Sergeant-at-law.2
He refused to accept a seat in the next parliament,
Jan., 1621. which, meeting in January, 1621, distinguished itself
by the punishment of Lord Bacon ; — and he does not
appear to have been again in any way brought before
the public till Sir James Ley's resignation of the office
of Chief Justice of the King's Bench when made Lord
Treasurer.
Heisap- Two Chief Justices having presided in succession
pointed
Chief jus- vvho were politicians rather than lawyers, there was a
tice of the
King's cry that " Bishop Williams, the Chancellor, wished to
Bench. ...
have the common-law judges as incompetent as him-
self." In deference to the public voice, which even in
absolute governments is not to be despised, the reso-
lution was taken to select a good lawyer for the
vacancy, and every one pointed to Sergeant Randolf
Crewe as the fittest man that the profession afforded.
Jan 26, Accordingly, on the 26th of January, 1625, he took his
l625- seat as Chief Justice of the Court of King's Bench.
Theemi- There never was a more laudable appointment,
°f "his'ap!5 and he even exceeded the sanguine expectations that
pomtment. j^ been entertained of his fitness. To learnino-
O
hardly inferior to that of Coke, and to equal indepen-
dence of mind, he added — what Coke wanted so much
— patience in hearing, evenness of temper, and kind-
ness of heart.
On the demise of the Crown, he was immediately
I. I Parl. Hist. 1149-1169. 2. Dugd. Chr. Ser. 105.
LIFE OF CHIEF JUSTICE CREWE. 79
reappointed to his office, and he continued to fill it
with increasing reputation till the unfortunate Charles
began that course of illegal and unconstitutional meas-
ures which ended so tragically.
" CRO. JAC.," " CRO. CAR.," and the other Reports Crewe's
of that time, swarm with decisions of Lord Chief Jus-
tice Crewe; but they have almost all become obsolete,
with the laws on which they were founded. There
is one of his recorded judgments, however, which, as
a true specimen of English eloquence in the i/th
century, will continue to be read and recited as long
as we are a nation.
A contest arose in the year 1626, in consequence of *•?• l6z6-
M His famous
the death of Henry de Vere, Earl of Oxford, respect- speech in
• the Oxford
ing the right to that earldom, between Robert de Peerage
Vere, claiming as heir male of the family, and Lord
Willoughby de Eresby, claiming through a female, as
heir general to the last Earl. The case was referred
by Charles I. to the House of Peers, who called the
Judges to their assistance. The opinion of these ven-
erable sages was delivered in the following terms by
Lord Chief Justice Crewe :
" This great and weighty cause, incomparable to any other
of the sort that hath happened at any time, requires much
deliberation and solid and mature judgment to determine it.
Here is represented to your Lordships certamen honoris? illus-
trious honor. I heard a great peer of this realm and a learned
say when he lived, ' there is no king in Christendom hath such
a subject as Oxford." And well might this be said, for DE
VERE came in with the Conqueror, being then Earl of Guynes ;
shortly after the Conquest, he was made Great Chamberlain
by Henry I., the Conqueror's son, above 500 years ago. By
Maud the Empress, he was created Earl of Oxford, the grant
being ALBERICO COMITI, so that he was clearly an Earl before.
He was confirmed and approved by Henry Fitz-Empress,
I. " A strife of honor."
80 REIGN OF CHARLES I.
Henry II. This great honor, this high and noble dignity,
Hisspcech, hath continued ever since in the remarkable surname of DE
VERB, by so many ages, descents, and generations, as no other
kingdom can produce such a peer in one and the selfsame
name and title. I find in all this time but two attainders of
this noble family, and those in stormy times, when the Gov-
ernment was unsettled and the kingdom in competition.
" I have labored to make a covenant with myself, that
affection may not press upon judgment ; for I suppose there
is no man that hath any apprehension of gentry or noble-
ness, but his affection stands to the continuance of a house
so illustrious, and would take hold of a twig or twine thread
to uphold it. And yet time hath his revolutions ; there
must be a period and an end to all temporal things — finis
rerum — an end of names and dignities, and whatsoever is
terrene ; — and why not of DE VERB ? — for where is BOHUN ?
Where is MOWBRAY ? Where is MORTIMER ? Nay, which is
more, and most of all, where is PLANT AGENET ? They
are entombed in the urns and sepulchres of mortality ! Yet
let the name of DE VERB stand so long as it pleaseth God."
He then went on to show, that although the earldom
was at first held in fee-simple by the family of DE VERE,
so that it might descend to a female, nevertheless it was
entailed on Aubrey de Vere " and his heirs male " by the
parliament of 16 Richard II., so that the right had
descended to Robert de Vere as his heir male, and the
De Veres as long as the line continued must be Earls of
The out- Oxford. The Lords were guided by this opinion,1 but
come of ...
this case, the successful claimant died without an heir male;
and DE VERE, along with BOHUN, MOWBRAY, MOR-
TIMER, and PLANTAGENET, was " entombed in the
urns and sepulchres of mortality."3
Crewe is Before Sir Randolf Crewe had completed the
for'hS6 second year of his Chief Justiceship, although rev-
erenced by the people, he was found wholly unfit for
1. Cruise on Dignities, p. 101.
2. The title was renewed by Queen Anne in favor of Harley descended
from the De Veres through a female.
LIFE OF CHIEF JUSTICE CREWE. 8 1
the system of government which had been determined
upon by the King and his ministers. After the abrupt
dissolution of Charles's second parliament without the
grant of a supply, all redress of grievances being
refused,- — the plan was deliberately formed of dis-
continuing entirely the use of popular assemblies in
England, and of ruling merely by prerogative. For
this purpose it was indispensably necessary that thepowersun.
King should have the power of imposing taxes, and Ix
the power of arbitrary imprisonment. He began
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 measures could Remedies
not be rendered effectual without the aid of the Judges jJJJ^^Jj
for hitherto in England the validity of any fiscal im- Effectual"1"
position 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 judgment upon
the question " whether he was lawfully detained in
custody or not?" Sir Thomas Darnel, Sir Edmund
Hampden, and other public-spirited men, having per-
emptorily 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 Attorney General, by
order of the Government, sounded Sir Randolf Crewe
respecting his opinions on the agitated points, and wasoewe's
shocked to hear a positive declaration from him that,
by the law of England, no tax or talliage, under what- the °
ever name or disguise, can be laid upon the people powers-
without the authority of parliament, and that the King
82 REIGN OF CHARLES I.
Can not imprison any of his subjects without a warrant
specifying the offence with which they are charged.
This being reported to the Cabinet, Sir Randolf Crewe
NOV. 10. was immediately dismissed from his office ; and, in a
few weeks after, Sir Nicholas Hyde, who was expected
to be more compliant, was made Chief Justice in his
stead.
When he gave his answer to the Attorney General,
he was not ignorant of the punishment which he must
incur, and he bore it with perfect equanimity, — re-
joicing that he had done his duty, and that he was
delivered from temptation.
His re- It has often been said that he was removed for
moval not • o i • * i •
caused by opposing Ship-money ; but this ingenious tax had not
then been devised, and, indeed, Noy, its author, was
still a patriot, and one of the counsel for those who
denied the legality of the present imposition. There
having been no proceeding in court in which he had
expressed any opinion against the prerogative, and his
private conference with the Attorney General being
then unknown, his dismissal seems to have caused
great astonishment. Croke, the reporter, thus notices
it:
" Mem. Upon Friday, the loth of November, Sir Randolf
Crewe, Chief Justice of the King's Bench, was discharged of
that place, by writ under the Great Seal, for some cause of
displeasure conceived against him ; but for what was not gen-
erally known." '
Fuller, writing when the truth had been partly
disclosed, says, in his quaint style, —
Fuller's ac- "King Charles' occasions calling for speedy supplies of
count of .......
Crewe's re- money, some great ones adjudged it unsafe to venture on a
moval- parliament, for fear, in those distempered times, the physic
would side with the disease, and put the King to furnish his
necessities by way of loan. Sir Randal, being demanded his
i. Cro. Car. p. 52.
LIFE OF CHIEF JUSTICE CREWE. 83
judgment of the design, and the consequences thereof (the CS^P'
imprisoning of recusants to pay it), openly manifested his dis-
like of such preter-legal courses, and thereupon, Nov. 9, A.D.
1626, was commanded to forbear his sitting in the court, and
the next day was by writ discharged from his office; whereat
he discovered no more discontentment than the weary trav-
ailer is offended when told that he is arrived at his journey's
end."
He had it in his power to be returned member f or dines being
his native county, in the parliament which met soon [o ^la-
after, and the Opposition might have been led by twom<
ex-Chief Justices of the King's Bench ; but he had
neither the vigor nor the thirst for vengeance which
animated Sir Edward Coke, and he preferred the
repose of private life, — not being without hope of
being restored to his judicial functions.
At the end of two years he wrote the following A.D. I(a»,
letter to Buckingham, which is, I think, most creditable
to him ; for, notwithstanding his earnest desire to be
replaced on the bench, he makes no concession or
promise at all inconsistent with his principles :
His letter
" My duty most humbly done to your grace, vouchsafe, I ^g^am"
beseech your grace, to read the misfortune of a poor man after his
herein, and take them into your noble thoughts, whose case is
considerable. I have lived almost two years under the burden
of his Majesty's heavy displeasure, deprived of the place I
held, and laid aside as a person not thought of, and unservice-
able, whereof I have been soe sensible, that ever since living
at my house att Westminster, I have not sett my foot into any
other house there or at London (saveing the house of God),
but have lived private and retired as it best became me.
" I did decline to be of this late Parliament, distrusting I
might have been called upon to have discovered in the public,
the passages concerning my removal from my place which I
was willing should be lapped up in my own busome.
" I likewise took special care if my name were touchit
upon in the Comons house, that some of my friends there
should doe their best to divert any further speech of me,
84 REIGN OF CHARLES I.
Cxf P' ^or ^ alwaies resolved wholly to relie upon the King's good-
His letter ness, who I did not doubt would take me into his princely
ingham, thoughts, if your grace vouchsafed to intercede for me. The
continued. en(j of the Parliament was the time when I prefixed myself to
be a suitor to your grace, and I have now encouragement soe
to be : the petition of right whereunto your grace was a
party speaks for me, and for the right of my place, but I
humbly desire favour. God doth knowe, it was a great afflic-
tion to me to deny anything commanded me, the King that
my heart soe loved, and to whom I been soe bound, prince
and King : but had I done it, I had done contrary to that
which all his judges resolved to doe (and I only suffer), and
if I had done it and they had deserted me therein, I had
become a scorne to men, and had been fitt to have lived like a
scritch owl in the darke ; so likewise if I had done it and had
been knowne to have been the leader herein, and the rest of
the judges had been pressed to have done the like, the blame
and the reproof would have been laid on me, and by me they
might in some measure have excused themselves. But yet
there was a greater obligation to restrain me than these (for
these be but morall reasons), and that was the obligation of an
oath, and of a conscience, against both which (then holding
the place of a judge), I in my own understanding had done,
had I subscribed my name to the writing which the King
was then advised to require me to doe, for therein I had ap-
proved the commission, and consequently the proceedings
thereupon, wherein here I had been condemned, and with
how loud and shrill a voice, I leave to your grace to judge.
Wherefore, most noble Lord, vouchsafe to weigh these my
reasons in the ballance of your wisdom and judgement, and be
soe noble and just as to excuse me to the King herein, and in
a true contemplation of that noblenesse and justice, be soe
good as to be the means, that I may be really restored to the
King's grace and favour. Your grace has in your hands
Achilles' speare which hurts and heales. I am grievously
hurt, your grace hath the means to heale me to whom I
make my address. The time is now fitt for me : now you are
upon a forraigne expedition, you take my prayers, my wife's,
and my children's with you, and I hope your journey will be
the more prosperous.
" I am now in the seventieth year of my age ; it is the
LIFE OF CHIEF JUSTICE CREWE. 85
general period of man's life, and my glass runs on apace.
Well was it with me when I was King's Serjeant, I found His letter
profitt by it : I have lost the title and place of Chiefe Justice. |° ^'
I am now neither the one or other ; the latter makes me continued.
uncapable of the former, and since I left the Chiefe's place,
my losse has been little less than 3,ooo/. already.
" I was by your favour in the way to have raised and
renewed in some measure my poore name and familey, which
I will be bold to say hath heretofore been in the best ranke
of the famileys of my countrey, till by a general heir the
patrimony was carried from the male line into another sir-
name, and since which time it hath been in a weak condition.
Your grace may be the means to repair the breach made in
my poor fortune, if God soe please to move you, and you will
lose no honour by it. Howsoever I have made my suit to
your noblenesse, and your conscience, for I appeal to both,
and whatsoever my success be, I shall still appear to be a
silent and patient man, and humbly submitt myself to the
will of God and the King. God be with your grace, He
guide and direct you, and to his holy protection I committ
you, resting ever
" A most humble servant to your grace,
" RANDOLPH CREWE.
"Westminster, 28th Junii."
On a copy of this letter, preserved among the
family papers at Crewe, there is the following memo-
randum in the handwriting of the Chief Justice : " A Bucking-
little before the D. going to the Isle of Ree, he told Sir temion to
Randal, in the presence of Lord Treasurer Weston and c'rewe
Sir Robt. Pye, that he would at his return right him ecu t ion."
in the King's favor, for it was he that had injured him,
and therefore was bound in honor to do it." How-
ever friendly the Duke's intentions might have been,
the arm of Felton, within a month from the time when
this remonstrance was delivered to him, for ever
prevented him from carrying them into execution.
The ex-Chief Justice then renounced all thoughts Crewe's
/• • mode of
of public employment, and spent the rest of his long life in re-
....... • i • • tirement.
lite rationally and happily in rural amusements, in
86 REIGN OF CHARLES I.
literary pursuits, and in social enjoyments. It hap-
pened soon after that the manor of Crewe was in the
market for sale. Either of the two brothers had the
means of purchasing it ; but the preference was given
to Sir Randolf the elder ; and he was more gratified,
when he took possession of it and became " Crewe of
that ilk," than if he had been installed as Chancellor in
the marble chair, — saying " How delighted my poor
dear father would be if he could look down and see
his fond wish accomplished ! " Here he built a mag-
nificent new manor-house, which was admired and
copied by the men of Cheshire. Fuller says, " He first
brought the model of excellent building into these
remote parts ; yea, brought London into Cheshire, in
the loftiness, sightliness, and pleasantness of their
structures."
A.D. 1641. He lived on till the Long Parliament had sat
several years, and he might actually have been present
Jan. 20. in the House of Commons in 1641, when Mr. Hollis,
inveighing against the corrupt Judges who had
decided in favor of Ship-money, drew this contrast
between them and a Judge who had acted well :
Hoilis's " What honor is he worthy of, who, merely for the public
upon^fm g°°d> hath suffered himself to be divested and deprived of
'Lonhepar w^at ^e highly values ? — such a judge as would lose his place,
liament. rather than to do that which his conscience told him was
prejudicial to the commonwealth ? — and this did that worthy
reverend judge, the Chief Justice of England, Sir Randulf
Crewe. Because he would not, by subscribing, countenance
the loan in the first year of the King, contrary to his oath and
conscience, he drew upon himself the displeasure of some
great persons about his Majesty, who put on that project
which was afterwards condemned by the Petition of Right as
unjust and unlawful ; and by that means he lost his place of
Chief Justice of the King's Bench ; and hath, these fourteen
years, by keeping his innocency, lost the profit of that office
which, upon a just calculation in so long a revolution of time,
amounts to 26,000!. or thereabout. He kept his innocency
LIFE OF CHIEF JUSTICE CREWE. 87
when others let theirs go ; when himself and the common- CHAP.
wealth were alike deserted ; which raises his merit to a higher
pitch. For to be honest when everybody else is honest,
when honesty is in fashion and is trump, as I may say, is
nothing so meritorious ; but to stand alone in the breach — to
own honesty when others dare not do it, cannot be sufficiently
applauded, nor sufficiently rewarded. And that did this good
old man do ; in a time of general desertion, he preserved
himself pure and untainted. ' Temporibusque malis ausus est
esse bonus.' " '
Hollis afterwards succeeded in carrying an address July ?•
to the King, praying " that his Majesty would bestow
such an honor on his former Judge, Sir Randolf
Crewe, Knt., late Lord Chief Justice of England, as
may be a noble mark of sovereign grace and favor, to
remain to him and his posterity, and may be in some
measure a proportionable compensation for the great
loss which he hath, with so much patience and reso-
lution, sustained." Nothing was done for him betore
the civil war broke out; but he had that highest
reward, the good opinion of his fellow-citizens. He The re-
seems to have enjoyed the sympathy and respect of all tertained
honest men from the time of his dismissal from office.
Fuller says quaintly, " The country hath constantly a
smile for him for whom the Court hath a frown. This
knight was out of office, not out of honor, — living long
after at his house in Westminster, much praised for
his hospitality." He adds, " I saw this worthy Judge
in 1642, but he survived not long after." *
His last days were disturbed by the clash of arms. His death.
The struggle between the parties which, in his youth,
had been carried on in St. Stephen's Chapel, and in
Westminster Hall, was now transferred to Edgehill
and Marston Moor. We are not informed to which
1. [" And he dared to be good though living in evil times."] — 3 St. Tr.
1298.
2. Worthies, vol. ii.
88 REIGN OF CHARLES I.
e mcl'ned, but the probability is, that, being a
steady friend of constitutional monarchy, he dreaded
the triumph of either, and that, like the virtuous Falk-
land, he exclaimed with a sigh, PEACE ! PEACE ! He
i<k6 I3> languished till the I3th of January, 1646, when he ex-
pired in the eighty-seventh year of his age, — leaving
Cromwell to wield the sceptre which he had seen in
the hand of Queen Elizabeth. He was buried in the
family cemetery at Crewe. All lawyers are familiar
with his singularly shrewd physiognomy, from an ad-
mirable print of him in Dugdale's ORIGINES JURIDI-
CIALES.
Hisde- His male descendants remained " Crewes of that
scendants. .
ilk for several generations. The estate then came to
an heiress, who married John Offley, Esq., of Madely,
in the county of Stafford. Their son, on succeeding to
it, took, by act of parliament, the name and arms of
Feb. 25, Crewe. His grandson was raised to the peerage by
King George III., being created Baron Crewe, of
Crewe, in the county of Chester ; and the Chief Justice
is represented by Richard, the third Lord Crewe.
We must now go back to SIR NICHOLAS HYDE,
elevated to the bench that he might remand to prison
Sir Thomas Darnel and the patriots who resisted the
illegal tax imposed under the name of " loan," in the
commencement of the reign of Charles I. He was the
uncle of the great Lord Clarendon. They were sprung
from the ancient family of " Hyde of that ilk " in the
county palatine of Chester ; and their branch of it had
migrated, in the i6th century, into the west of Eng-
land. The Chief Justice was the fourth son of Law-
rence Hyde, of Gussage St. Michael, in the county of
Dorset.
Beiore being selected as a fit tool of an arbitra^'
LIFE OF CHIEF JUSTICE HYDE. 89
government, he had held no office whatever ; but he
had gained the reputation of a sound lawyer, and he Hjs repu-
tation as a
was a man ot unexceptionable character in private lawyer.
life. He was known to be always a stanch stickler for
prerogative, but this was supposed to arise rather from A-D- l(a6-
the sincere opinion he 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 Rushworth :
" Sir Randolf Crewe, showing no zeal for the advancement Succeeds
Crcwc
of the loan, 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
preferment ; yet, nevertheless, came to the same with a preju-
dice, — coming in the place of one so well-beloved, and so
suddenly removed." '
Whether he was actuated by mistaken principle or His con-
duct as
by profligate ambition, he fully justified the confidence Chief jus-
J tice of the
reposed in him by his employers. Soon after he took King's
his seat in the Court of King's Bench, Sir Thomas
Darnel, and several others committed under the sameA-D- l62?-
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? had the power of
perpetual imprisonment without assigning any cause ?
The return of the jailer, being read, was found to set
1. I Rushw. 420.
2. Lettres de cachet, a kind of warrant formerly in use in France. They
were closed with the King's petty seal, and were used for ordinary per-
sons to quit Paris or France, or to be arrested and imprisoned. They
were issued upon the royal authority alone, and not in pursuance of the
judgment of a court. Numbers of them were sometimes prepared with a
blank for the name of the person, and furnished to the lieutenant-general
of police at Paris for use in emergencies, and occasionally also to Court
favorites, who used them as instruments of personal revenge. Abuses of
this kind were very frequent during the reign of Louis XV. The punish-
ments directed by these warrants continued during the King's pleasure,
and often for long periods. They were abolished by the Constituent As-
sembly early in the Revolution of 1789. — Appl. Encyc., vol. iii. p. 532.
REIGN OF CHARLES I.
out, as the only reason for Sir Thomas Darnel's deten-
tion, a warrant, signed by two privy councillors, in
these words :
Sir " Whereas, heretofore, the body of Sir Thomas Darnel
Darnel's 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."
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."
The argu- Selden, Noy, and the other counsel for the prison-
against the ers, encouraged by this intimation, argued boldly that
the warrant was bad on the face of it, per speciale man-
datum Domini Regis ' being too general, without specify-
ing an offence for which a person was liable to be de-
tained without bail ; that the warrant should not only
state the authority to imprison, but the cause of the
imprisonment; and that if this return were held good,
there would be a power of shutting up, till a liberation
by death, any subject of the King without trial and
without accusation. After going over all the common-
law cases and the acts of parliament upon the subject,
from MAGNA CHARTA downwards, they concluded
with the dictum of Paul the Apostle, " It is against
reason to send a man to prison without showing a
cause."
Hyde, C. J.: "This is a case of very great weight and
great expectation. I am sure you look for justice from hence,
and God forbid we should sit here but to do justice to all
i. " By special command of their Lord, the King."
.
CHARLES I.
AFTER VAN DVKE.
LIFE OF CHIEF JUSTICE HYDE. 9!
men, according to our best skill and knowledge ; for it is our c yAP'
oaths and duties so to do. We are sworn to maintain all
prerogatives of the King ; that is one branch of our oath, —
but there is another — to administer justice equally to all
people. That which is now to be judged by us is this :
' Whether, where one is committed by the King's authority,
and by cause declared of his commitment, we ought to deliver
him by bail, or to remand him ? ' '
From such a fair beginning there must have been
a general anticipation of a just judgment; but, alas!
his Lordship, without combating the arguments, stat-
utes, or texts of Scripture relied upon, said " the
Court must be governed by precedents," and then,
going over all the precedents which had been cited, Hyde holds
precedents
he declared that there was not one where, there being to be
a warrant per speciale mandatum Domini Regis, the habeas cor-
judges had interfered and held it insufficient. He said mlt rants"
he had found a resolution of all the judges in the reign KingCwith-
of Queen Elizabeth, that if a man be committed by the °ng cause",
commandment of the King, he is not to be delivered
by a habeas corpus in this court, " for we know not the
cause of the commitment." Thus he concluded:
" What can we do but walk in the steps of our forefathers ?
Mr. Attorney hath told you the King has done it for cause
sufficient, and we trust him in great matters. He is bound by
law, and he bids us proceed by law ; we are sworn so to
do, and so is the King. We make no doubt the King, he
knowing the cause why you are imprisoned, will have mercy.
On these grounds we cannot deliver you, but you must be
remanded." *
This judgment was violently attacked in both
Houses of Parliament. In the House of Lords the Action
T i i . , . taken by
Judges were summoned, and required to give their rea-the Lords.
sons for it. Sir Nicholas Hyde endeavored to excuse
himself and his brethren from this task by representing
it as a thing they ought not to do without warrant
i. 3 St. Tr. i.
92 REIGN OF CHARLES I.
CHAP. from the King. Lord Say observed, " If the Judges
will not declare themselves, we must take into consid-
eration the point of our privilege." To soothe the
dangerous spirit which disclosed itself, Buckingham
obtained leave from the King that the Judges should
give their reasons, and Sir Nicholas Hyde again went
over all the authorities which had been cited in the
King's Bench in support of the prerogative. These
were not considered by any means satisfactory ; but, as
the Chief Justice could no longer be deemed contuma-
cious, he escaped the commitment with which he had
been threatened. Sir Edward Coke, and the patriots
The Com- in the House of Commons, were not so easily appeased,
threaten and they for some time threatened Lord Chief Justice
.^ach-th Hyde and his brethren with an impeachment ; but
™.i>mi628. it was hoped that all danger to liberty would be effec-
tually guarded against for the future by compelling the
reluctant King to agree to the PETITION OF RIGHT.
Before Charles would give the royal assent to it, —
meaning not to be bound by it himself, but afraid that
the Judges would afterwards put limits to his power
of arbitrary imprisonment, — he sent for Chief Justice
Hyde and Chief Justice Richardson to Whitehall, and
directed them to return to him the answer of them-
selves and their brethren to this question, " Whether
in no case whatsoever the King may commit a subject
without showing cause?" The answer shows that
they had been daunted by the denunciations of Sir
Edward Coke, and that they were driven to equivo-
cate : " We are of opinion that, by the general rule of
law, the cause of commitment by his Majesty ought
to be shown ; yet some cases may require such secrecy
that the King may commit a subject without showing
the cause, for a convenient time." Charles then de-
livered to them a second question, and desired them
to keep it very secret, " Whether, if to a habeas corpus
LIFE OF CHIEF JUSTICE HYDE. 93
there be returned a warrant from the King without
any special cause, the Judges ought to liberate him
before they understand from the King what the cause
is ? " They answered, " If no cause be assigned in the
warrant, the party ought, by the general rule of law,
to be liberated : but, if the case requireth secrecy, and
may not presently be disclosed, the Court, in its dis-
cretion, may forbear to liberate the prisoner for a
convenient time, till they are advertised of the truth
thereof." He then came to the point with his third
question, " Whether, if the King grant the Commons'
PETITION, he doth not thereby exclude himself from
committing or restraining a subject without showing
a cause ? " Hyde reported this response, " Every law,
after it is made, hath its exposition, which is to be left
to the courts of justice to determine ; and, although
the PETITION be granted, there is no fear of conclusion
as is intimated in the question." l
The Judges having thus pledged themselves to
repeal the act for him by misconstruing it, he allowed
it to be added to the statute-book. No sooner was
the parliament that passed it abruptly dissolved than Pros
it was flagrantly violated, and Selden, Sir John Eliot, against Sir
John Eliot
and other members of the House of Commons, were and others.
arrested for the speeches they had delivered, and for
requiring the Speaker to put from the chair a motion
which had been macle and seconded. This proceeding
was more alarming to public liberty than any thing
that had been before attempted by the Crown : if
it succeeded, there was no longer the hope of any
redress in parliament for the corrupt decisions of the
Opinions
common-law courts. of chief
Justice
To make all sure by an extrajudicial opinion, Lord Hyde on
Chief Justice Hyde and the other Judges were assem- "'eges of
the House
of Com-
mons.
i. Hargrave MS. xxxii. 97.
94
REIGN OF CHARLES I.
CHAP, bled at Sergeants' Inn, and, by the King's command,
XI.
certain questions were put to them by the Attorney
General. The answers to these, given by the mouth of
the Chief Justice, if acted upon would for ever have
extinguished the privileges and the independence of
the House of Commons: "That a parliament man
committing an offence against the King in parliament,
not in a parliamentary course, may be punished after
the parliament is ended ; for, though regularly he
cannot be compelled out of parliament to answer
things done in parliament in a parliamentary course, it
is otherwise where things are done exorbitantly : " and,
" That by false slanders to bring the Lords of the
Council and the Judges, not in a parliamentary way,
into the hatred of the people, and the Government
into contempt, was punishable, out of parliament, in
the Star Chamber, as an offence committed in parlia-
ment beyond the office, and besides the duty, of a
The de parliament man."
fendants The parties committed were brought up by habeas
refuse to f j
give bail as corpus, and, the public being- much scandalized, an offer
compro-
mising; was made that they might be bailed; but, they refusing
privileges, to give bail, which they said would be compromising
the privileges of the House of Commons, Lord Chief
Justice Hyde remanded them to jail.
The Attorney General having then filed an ex-
officio information against them for their misconduct
in parliament, they pleaded to the jurisdiction of the
Court " because these offences, being supposed to be
done in parliament, ought not to be punished in this
Court, or elsewhere than in parliament."
Chief Justice Hyde tried at once to put an end to
the case bv saying that " all the Judges had already
resolved with one voice, that an offence committed in
parliament, criminally or contemptuously, the parlia-
ment being ended, rests punishable in the Court of
LIFE OF CHIEF JUSTICE HYDE. 95
King's Bench, in which the King by intendment
sitteth."
The counsel for the defendants, however, would b
heard, and were heard in vain ; for Chief Justice Hyd
treated their arguments with scorn, and concluded by with scorn-
observing, " As to what was said, that ' an inferior
court cannot meddle with matters done in a superior,'
true it is that an inferior court cannot meddle with the
judgments of a superior court ; but if particular mem-
bers of a superior court offend, they are ofttimes pun-
ishable in an inferior court, — as if a judge shall commit
a capital offence in this court, he may be arraigned
thereof at Newgate. The behavior of parliament men
ought to be parliamentary. Parliament is a higher
court than this, but every member of parliament is not
a court, and if he commit an offence we may punish
him. The information charges that the defendants
acted unlawfully, and they could have no privilege to
violate the law. No outrageous speeches have been
made against a great minister of state in parliament
that have not been punished." — The plea being over-
ruled, the defendants were sentenced to be imprisoned
during the King's pleasure, and to be fined, Sir John
Eliot in 2,ooo/. and the others in smaller sums.
This judgment was severely condemned by therhejudg-
T T r /-* • r i T n
HoUSe of Commons at the meeting of the Long rar-demned
liament, and was afterwards reversed, on a writ of tlrd* re"
error, by the House of Lords.1
But Lord Chief Justice Hyde escaped the fate of Hyde's"
his predecessor, Chief Justice Tresilian, who was A.D. 1631.
hanged 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.
One is astonished to find judges in the seventeenth
I. 3 St. Tr. 235-335-
LIFE OF CHIEF JUSTICE RICHARDSON.
centur)' so setting law and decency at defiance, when
Sir Edward Coke, and those who had carried the
PETITION OF RIGHT, were still alive: but it was well
understood that parliaments were never to meet again ;
and, if it had not been for Charles's folly in embroiling
himself with the Scottish nation about episcopacy, he
and his descendants might long have enjoyed abso-
lute power, although, no doubt, in course of time, the
violence of popular discontent, and the weakness of
a despotic government, would at last have brought
about a sudden and dreadful convulsion, such as those
which we now see raging in the Continental states.
Respected in justice to the memory of Sir Nicholas Hyde, I
and lauded
by court- 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 pronounces him to
have been "a very worthy magistrate;" and highly
applauds his judgment in favor of the power of the
Crown to imprison and prosecute parliament men for
what they have done in the House of Commons.
Sir Hyde was succeeded by a man who was still more
Richard- pliant, but who was ever eager to combine popularity
with Court favor. This was SIR THOMAS RICHARD-
SON, son of Dr. Thomas Richardson, of Hardwicke, in
i. Cro. Car. 225. — He was censured for having favorites at the bar;
but the extent to which this sort of favoritism was then carried may be
judged by what Roger North says of it, and what he considers its legiti-
mate limits: "When the Lord Chief Justice Hyde was alive, he usually
went the Norfolk circuit ; and this judge was industriously favorable to
his Lordship, calling him cousin in open court, which was a declaration
that he would take it for a respect to himself to bring him causes : and
that is the best account that can be given of a favorite ; in which capacity
a gentleman pretends to be easily heard, and that his errors and lapses,
when they happen, may not offend the judge or hurt a cause, — beyond
which the profession of favor is censurable both in judge and counsel." —
Life of Guilford, i. 82.
LIFE OF CHIEF JUSTICE RICHARDSON. 97
the county of Suffolk. Here he was born on the 3d
,
of July, 1569. I find no account of his education till
he was sent to study law in Lincoln's Inn. He was
very diligent in his profession, and, while yet young
at the bar, he was elected Recorder of Bury St. His legal
Edmund's, and of Norwich; and he obtained the Sons.0
appointment of Attorney General to Queen Anne, the
consort of James I. Soon afterwards he took upon
himself the degree of Sergeant-at-law. In the parlia-
ment which met on the 3oth of January, 1621, he was
returned to the House of Commons as member for St.
Albans, not intending that his parliamentary duties
should at all interfere with his profession, to which he
was much devoted. But on the first day of the session, He is com-
to his great surprise and mortification, he was elected Mrve the
Speaker. He disqualified himself not only according s
to ancient precedent, but bona fide, — and earnestly o'
implored that the House would excuse him and pro-
ceed to a new choice. " Seeing that no excuse would
serve the turn, he wept downright."1 Unfortunately,
no account is preserved of his oration before the King
the following day, when he was presented for confir-
mation at the bar of the House of Lords.
He must have belonged to the popular party, who
at last constituted the majority in the Lower House,
and were thoroughly determined to punish corruption
and to reform abuses. Out of respect to his office, h
was knighted on his first appearance at Whitehall
Speaker. He had much more laborious duties to per-1621-
form in his new office than any of his predecessors.
In early times, the session of parliament did not last
longer than a few days ; and recently it was terminated
in a few weeks, — either amicably, the required supply
being granted, — or, upon an obstinate inquiry into
I 4 Nich. Pioc James I., p. 651 ; I Parl. Hist. 1168.
98 LIFE OF CHIEF JUSTICE RICHARDSON.
CHAP, grievances, by an abrupt dissolution. The present
session, with an interval of an adjournment, continued
a whole year; and Sergeant Richardson's practice at
the bar, during this long period, must have been seri-
ously interfered with, although it was not considered
incorrect that he should sit in the chair of the House
of Commons in the morning, and consult with his
clients at his chambers in the evening; and he was
allowed to plead before the Judges of the Court of
Common Pleas on the days when the House did not
meet.
Hisser- He rendered good service in advising the proceed-
e ings upon the impeachments carried on before the
Lords against Lord Chancellor Bacon, Sir Giles Mom-
pesson, and Sir Henry Yelverton ; but he betrayed the
Yelverton. Commons into a very serious embarrassment, by per-
suading them that they had power to adjudge as well
as to accuse wherever any offence was committed
The part against the state. Edward Floyde, a gentleman of
Uprose- family and fortune, having, after the taking of Prague,
Fioyde°f talked contemptuously of the King and Queen of
Bohemia, then very popular, as " Goodman Palsgrave
and Goodwife Palsgrave," was impeached as an enemy
to the Protestant religion. He was accordingly
arrested by order of the House of Commons ; and
the Speaker gave it as his clear opinion, that the
Commons have power to hear and to determine as
well as to accuse, where they deem it for the public
good to exercise such a jurisdiction. Accordingly,
Keen- Floyde was brought to the bar of the House, and,
"rTtheTu- offering no sufficient defence, Mr. Speaker, after re-
ofStheion citing the horrid words that he had spoken, thus
Lords. proceeded :
" It further appeareth that these words were spoken by
you in a most despiteful and scornful manner, with a fleering
and scoffing countenance, on purpose to disgrace as much as
LIFE OF CHIEF JUSTICE RICHARDSON. 99
in you lay these illustrious and pious princes : whereupon, the
Commons in parliament assembled, of their love and zeal to
our sovereign Lord the King, and not minding to let pass un-
punished these things that tend to the disgrace of his Maj-
esty's issue, a part of himself, who is head of the parliament,
have called you before them, and have found that the matters
whereof you are impeached are true and notorious ; therefore
the said Commons do adjudge and award that, for the offence
you have committed, you be returned this night prisoner to
the Fleete,1 and to-morrow morning you shall be brought to
Westminster into the yard before the Great Hall of Pleas,
and do there stand in the pillory from nine until eleven of the
clock in the forenoon, with a paper upon your hat, bearing
this inscription in capital letters : FOR FALSE, MALICIOUS,
AND DESPITEFUL SPEECHES AGAINST THE KING'S DAUGH-
TER AND HER HUSBAND : from thence you shall presently
ride to the Exchange within the City of London, upon a
horse without a saddle, with your face backwards towards the
horse's tail, holding the tail in your hand, with the said paper
on your head ; and that you do there stand in the pillory for
two hours ; and from thence you shall ride in like manner to
the Fleete, and be imprisoned there ; and next Friday morn-
ing you are to ride in like manner into Cheapside, and there
stand in the pillory with the said paper and inscription as
before, by the space of two hours, and then ride back in like
manner to the Fleete ; and further, you shall pay to the King
a fine of i,ooo/."
The Lords were highly indignant at this sentence, The Lords
—by no means- on account of its cruelty, but because
it was an encroachment on their jurisdiction. They
insisted that the impeachment should go on before
them ; and the other House having acquiesced, they
awarded the same punishment, adding to it that Mr.
I. The great prison of the Fleet was only demolished in 1844, having
been first used for those who were condemned by the Star Chamber. It
is an evidence of the size of the river Fleet in old days, difficult as it is to
believe possible now, that the prisoners used to be brought from West-
minster by water, and landed at a gate upon the Fleet like the Traitor's
Gate upon the Thames at the Tower. — Hare's Walks in London, vol. i.
p. 1 2O.
100 LIFE OF CHIEF JUSTICE RICHARDSON.
°xf P' Floyde should be whipped at the cart's tail, notwith-
standing an objection was made to this by some peers
" because he was a gentleman." *
Mr. Speaker Richardson, at the commencement of
the session, had been considered a patriot ; but in the
course of it he yielded to the blandishments of the
Court, and submitted to the royal mandates which he
received from time to time. James, taking it into his
head that he could, by the direct exercise of his pre-
rogative, adjourn the two Houses of Parliament as well
as prorogue them, sent down a commission to the
House of Commons, ordering an adjournment from
the 4th of June to the 2oth of November following.
The popular members opposed the reading of it, say-
ing, that " although in compliance with a request of the
King they might agree to an adjournment for a rea-
sonable time, an adjournment could only be by a vote
He ad- of the majority." But the Speaker, without putting
Hament any vote, declared the House to be adjourned till the
without r XT • »
putting a 2oth day of November, saying that this was by the
King's order,— and following the form used by the
Lord Chancellor in announcing a prorogation.
This point of parliamentary law was not then set-
tled, and the Speaker's decision was acquiesced in ; but
he was afterwards censured by the House for " his
habit of leaving the chair as often as the acts of any
state officers were called in question in a manner dis-
agreeable to the Court."2
A.D. 1622. On the dissolution of the parliament in January,
1622, Richardson returned to the undisturbed pursuit
of his profession ; and, seeing that popularity did not
lead to promotion, he now openly enlisted himself a
1. " Another question was, whether he should have his ears nailed to
the pillory? And it was agreed per plures, not to be nailed." — I Parl.
Hist. 1261.
2. Guthrie, p. 754.
LIFE OF CHIEF JUSTICE RICHARDSON. IOI
retainer of the Duke of Buckingham. As a reward CHAP.
9Q*
for his servility he was made a King's Sergeant.
Continuing steadily in this line, soon after the ac- He is made
cession of Charles I. he was appointed Chief Justice tice of the
of the Court of Common Pleas. His first judicial i'ieas.
opinion indicated some degree of independence. Mr. 1626!
Pine, a country squire, having a company of guests at
his table, talked very irreverently of the King, saying
to one who had boasted of having seen the King at
Mr. Pawlet's, at Hinton, " Then hast thou seen as
unwise a king as ever was ; for he is carried as a man
would carry a child with an apple. As for meeting
him at Mr. Pawlet's, that is nothing, for I might have
had him at my house ; he is to be carried any whither.
Before God he is no more fit to be king than Kirk-
wright." This Kirkwright was a well-known simple-
ton.
For these words the Government wished that Mr.
Pine should be hanged, drawn, and quartered ; but, — a
doubt being raised whether the mere speaking of them
amounted to treason, — before bringing him to trial the
question was referred to the Judges, and the Attorney
General cited a great many cases in former reigns in
which men had been convicted and executed for a
similar offence. However, Chief Justice Richardson „
His mde-
concurred in the opinion that " the mere speaking of pendent
opinion in
the words, although they were as wicked as might be, th.e case of
did not amount to treason ; for it had been adjudged
that to charge the King with a personal vice, as to say
of him ' He is the greatest whoremonger or drunkard
in the kingdom,' is no treason." l So Mr. Pine entirely
escaped, as the Crown lawyers would not acknowledge
that the words merely constituted a misdemeanor.
On the next consultation of the Judges, Richard-
son likewise gained credit. Torture, to extort con-
i. Cro. Car. 117.
102 REIGN OF CHARLES I.
CxtP- fess'ons from state criminals, had been practised by
A.D. 1628. warrant from the Privy Council in every reign, at
ion against least since the time of Henry VI.; but, from the grow-
torture.
ing intelligence of the age, a question had been made
respecting its legality. At last, Felton, the assassin of
the Duke of Buckingham, having denied that he had
been prompted to this deed by the Puritans, Laud told
him " if he would not confess, he must go to the rack."
He replied, " But in the extremity of torture I know
not whom I may accuse; I may say that I was
prompted by my Lord of London, or some other of
your Lordships." They then fell into debate, whether
by the law of the land they could justify putting him
to the rack ; and the King, being present, said, " Be-
fore any such thing be done, let the advice of the
Judges be had therein, whether it be legal or no?"
And his Majesty desired Sir Thomas Richardson, the
Chief Justice of the Common Pleas, to say " whether
it might be done by law ? " adding, " if it may, I will
not use my prerogative in this point." Richardson con-
sulted all the Judges at Sergeants' Inn, and reported
to the King their unanimous opinion, that " the pris-
oner ought not to be tortured by the rack, for no such
punishment is known or allowed by our law." l Not-
withstanding the King's salvo about his prerogative,
Felton, without any further attempt to force from him
that he had accomplices, was brought to trial in due
course of law ; and torture has never since been
inflicted in England.
Hismod- Chief Justice Richardson also showed moderation
the case of in the case of Mr. Richard Chambers, a London mer-
' chant, prosecuted in the Star Chamber for saying
" that merchants are in no part of the world so screwed
and wrung as in England, and that in Turkey they had
more encouragement." Laud moved that, besides
I. 3 St. Tr. 367.
LIFE OF CHIEF JUSTICE RICHARDSON. 103
being imprisoned till he made submission for his CHAP.
offence at the Council Board, in the Court of Star
Chamber, and on the Royal Exchange, he should be
lined 3,ooo/. Richardson insisted that a fine of $oo/.
would be sufficient, and he succeeded in reducing it to
2,000/.'
Considering the moderation with which he con-
ducted himself since he was promoted to the bench,
we are quite at a loss to account for a favor now con-
ferred upon him. Hitherto no common-law judge
had ever been made a peer till he had retired from the
seat of justice ; and a notion prevailed, that, as a writ
of error lay from the courts of common law to the
House of Lords, the same individual could not be a
member of the court of original jurisdiction and of the
court of appeal. Nevertheless it was resolved that
the family of Sir Thomas Richardson should be en-A.D. ]62g.
nobled, and that all question should be avoided as to "Idea'6 's
his disqualification. From the venality of the times,
the probability is, that the payment of a good round
sum of money removed all the objections that might
have been made to the plan. By his first marriage the
Chief Justice had five sons ; and he was married again
to Elizabeth, daughter of Sir Thomas Beaumont, and
relict of Sir John Ashburnham, ancestor of the present
Earl of Ashburnham. This Elizabeth, by letters
patent dated 28th of February, 1628-29, was created a
peeress of Scotland by the title of Baroness Cramond,
— to hold to her for life, with remainder to Thomas
Richardson, eldest son and heir apparent of the Chief
Justice, her husband, by Ursula his first wife, — with
remainder to the heirs male of her said husband in
succession.2 Many gibes and pasquinades were elicited
1. 3 St. Tr. 373.
2. According to Crawford, this is the only instance of a female creation in
the peerage of Scotland, although many Scotch peerages are descendable
to females, having been limited to the first grantee and his heirs general.
104 REIGN OF CHARLES I.
by this occurrence, for the amusement of Westminster
Hall.
Heismade Between two and three years afterwards, the
tfceof'the" " getter °f peers," as he was denominated, was ele-
Benfh5 vated to be Chief Justice of England. But it is doubt-
ful whether this step was agreeable to him. Many
suppose that, as in the case of Sir Edward Coke, it
was meant as a punishment for some offence he had
given to the Government. He lost greatly in profit
while he gained in precedence.
Oct. 24, On the 241)1 of October, 1631, he was conducted to
the bar of the Court of King's Bench by a large bevy
of Sergeants. Lord Keeper Coventry then, in a short
and rather uncomplimentary address, said, " it was
his Majesty's pleasure that, for the public good, Sir
Thomas Richardson should be moved to preside in
the King's Bench ; " and in answer he merely said
that " he submitted himself to his Majesty's pleasure."
Thereupon the writ appointing him was read. Hav-
ing taken the oaths, he was placed on the bench, and
immediately began business.
His con- He presided here between three and four years,
bench°" e and he might have boasted — which few Chief Justices
of those days could have done — that he did not do
any thing very outrageous while sitting in his own
court. Luckily he was not led into temptation, for
during this period there were no trials for treason or
sedition, and he had only such points to determine as
whether an action would lie by a merchant for saying
of him " that he is i,ooo/. worse than nothing" or by a
captain who had served in the wars, for saying to him
" Thou art a notorious pimp." '
A D 1632 But he was called upon to take part in several Star
iOTSin*theV~ Chamber cases which excited great interest. In the
Chamber prosecution against Mr. Sherfield, Recorder of Salis-
I. Cro. Car. 225-403.
LORD COVENTRY.
FKOM THE COLLECTION OF THE EARL OF CLARENDON.
LIKE OF CHIEF JUSTICE RICHARDSON. 105
bury, for breaking painted glass in the window of a cftAP>
church, under an order of the vestry, obtained without
leave of the Bishop, he allowed that the defendant
had acted improperly, but tried to mitigate the heavy
punishment proposed by Lord Strafford and Laud,
saying —
" The defendant conceived it was idolatry, or the cause of
idolatry. The offence was, that God the Father should be
pictured there in the form of an old man in blue and red, for
he never was nor ever can be pictured. Moses himself saw
but his back parts. This worshipping of idols is the greatest
sin of all others. It is to give God's honor unto creatures.
To my knowledge Mr. Sherfield hath done much good in
Salisbury since I went that circuit ; so that there is neither
beggar nor drunkard to be seen there. I have been long ac-
quainted with him ; he sitteth by me sometimes at church ;
he bringeth a Bible to church with him (I have seen it) with
the Apocrypha and Common Prayer Book in it, — not of the
new cut."
Instead of being dismissed from his office of Re-
corder, and fined i,ooo/. as proposed, the defendant got
off with a fine of 5OO/.1
Lord Chief Justice Richardson showed no mercy A.D. 1633.
to poor Prynne when prosecuted in the Star Chamber "nS
for publishing his HlSTRlO-MASTYX, which inveighed Prynne"
against stage plays, music, dancing, hunting, and other
amusements of the King and Queen:
" My Lords," said he, "since I have had the honor to
attend this court, writing and printing of books, though
sharply censured, doth grow daily worse and worse. Now,
forsooth, every man taketh it upon him to understand every-
thing according to his conceit, and thinks he is nobody except His con-
he be in print.2 We are troubled here with a book — a mon- demnation
. _ of Prynne s
ster ! ' Monstrum horrendum, mforme, ingens , and Ido"Histrio-
Mastyx."
1. 3 St. Tr. 519-561.
2. Few know that the eacoethts scribendi [" the incurable passion for
writing "] was so much complained of in England 200 years ago !
3. " A horrid monster, shapeless, huge."
106 REIGN OF CHARLES I.
CHAP, hold it a most scandalous, infamous libel to the King's
Majesty, a most pious and religious King — to the Queen's
Majesty, a most excellent and gracious Queen — such a one
as this land never enjoyed the like — and I think the earth
never had a better. I say eye never saw, nor ear ever heard,
of such a scandalous and seditious thing as this misshapen
monster is. What saith he in the Epistle Dedicatory, speak-
ing of play books ? ' They are printed on far better paper
than most octavo and quarto Bibles, which hardly find so
good a vent as they.' This monster, this huge misshapen
monster ! I say it is nothing but lies and venom against all
sorts of people. He doth not only condemn all play-writers,
but all protectors of them, and all beholders of them, and all
who dance and all who sing ; — they are all damned — and that
no less than to hell. He asserts that 'dancing is the devil's
profession,' that ' the woman who singeth is the prioress of
the devil,' and that 'fiddlers are the minstrels of the devil.'
I say this is a seditious libel. I protest unto your Lordships
it maketh my heart to swell and my blood in my veins to boil,
so cold as I am, to see this or anything attempted which may
endanger my gracious sovereign, or give displeasure to his
royal consort. Not to hold your Lordships longer, it is a
most wicked, infamous, scandalous, and seditious libel. Mr.
Prynne, I must now come to your sentence, which makes me
very sorry, for I have known you long, and now I must utterly
forsake you ; for I find you have forsaken God and his re-
ligion, and the allegiance you owe to both their Majesties and
the rule of charity to all noble ladies in the kingdom."
Prynne's He concluded by moving that the book should be
rarrfedCfnto burnt by the common hangman ; — and that the author
on' should be disbarred, degraded from his academical
degrees, set twice in the pillory, lose both his ears, be
fined 5,ooo/., and be imprisoned during life. This sen-
tence was pronounced accordingly,1 and carried into
rigorous execution.
I. 3 St. Tr. 561-592. Mr. Hume very much lauds the good intention
the court thus manifested, to inspire better humor into Prynne and his
brother Puritans ; although he had doubts whether pillories, fines, and
prisons were the best expedients for that purpose. (Hist. vol. vi. 299.)
LIFE OF CHIEF JUSTICE RICHARDSON. IO7
When left entirely to himself, Lord Chief Justice
Richardson rather showed a leaning in favor of tn
Puritans. While sitting as judge of assize at Exeter, nance
against
a complaint was brought before him of the profanation wakes and
church-
of the Sabbath, by holding, on that day, wakes andaies.
church-ales, which were said to have led to drunken-
ness, riot, and immorality. He thereupon not only
inveighed against wakes and church-ales in his charge
to the grand jury, but issued an ordinance against
them, which he directed to be read in all churches
within the county. The clergy complained of this as
an encroachment on ecclesiastical jurisdiction, and sent
up a memorial upon the subject to Archbishop Laud,1
signed by seventy of them, to prove the antiquity and
inoffensiveness of these diversions. Laud, taking it up
with a high hand, immediately brought it before the
Privy Council, and the Chief Justice was summoned
thither to answer for his delinquency. Oldmixon8
1. William Laud, Archbishop of Canterbury, was born at Reading, in
Berkshire, in 1573, and was educated at Oxford. He became one of the
chaplains of the King about 1615, Bishop of Saint David's in 1621, and
Bishop of Bath and Wells in 1626. After the accession of Charles I. he
rose rapidly into great influence at Court. In 1628 he was translated to
the see of London, and became the chief minister or favorite of the King.
He took part in the persecution of the Puritans, and was unjustly sus-
pected of a bias in favor of popery. In 1633 he was appointed Archbishop
of Canterbury. " Of all the prelates of the Anglican Church," says Ma-
caulay, " Laud had departed farthest from the principles of the Reforma-
tion and had drawn nearest to Rome." "Of all men then living," says
Gardiner, " he [Laud] was the least fitted to be intrusted with political
power. ... His thorough belief in the unbounded efficacy of external
forms and institutions, combined with his complete ignorance of human
nature, would be sufficient to goad to madness any nation which might
be subjected to his control." (" History of England from 1603 to 1616,"
vol. ii. chap. x. p. 41.) In 1640 he was impeached by the Commons and
committed to the Tower. After he had been tried for treason, without
obtaining a judicial sentence, the Commons passed an illegal and unjust
ordinance for his execution, and he was beheaded in 1645. — Thomas' Biog.
Diet.
2. John Oldmixon, a political writer, was born at Bridgewater, Somer-
setshire, 1673. He became a virulent partisan, and distinguished himself
by his abuse of the Stuart family. He also accused the editors of Lord
Clarendon's History with having interpolated that work ; a charge which
108 REIGN OF CHARLES I.
CHAP. sayS that, " when he came from the board, the Earl of
Dorset,1 meeting him with tears in his eyes, asked how
he did? Judge Richardson replied, 'Very ill, my
Lord, for I am like to be choked with the Archbishop's
lawn sleeves.' And for this cause alone, he was, by
Laud's means, to his great grief and loss, put from
riding the Western, and forced to go the Essex circuit,
reported the meanest of all others, and which no jus-
tice but the puisne judge or sergeant used to ride."
Part of the sentence of the Privy Council being that
He is com- the Chief Justice should reverse his ordinance, he did
pelled to
reverse this so with a very ill grace. Alter reciting it in an instru-
ordinance. . -IT-.
ment under his hand and seal, he said, " But being
commanded to reverse the same, I do hereby reverse
it as much as in me lies ; yet, I doubt not, if the Jus-
tices of the Peace will truly inform his Majesty of the
grounds thereof, and of the great disorders occasioned
by wakes and church-ales, his Majesty will give order
to confirm it."
The Justices accordingly drew up a petition in
favor of what the Chief Justice had done ; but the
Archbishop, being informed of what was coming,
was effectually refuted by Bishop Atterbury. It is remarkable that Old-
mixon was guilty of the same crime which he falsely charged upon others;
for, when employed on the first edition of Kennett's Complete History,
he made many alterations in Daniel's Chronicle. He was appointed col-
lector of the customs of Bridgewater, and died July q, 1742. His prin-
cipal works, " A History of the Stuarts ; " " Critical History of England,"
avols.; " Life of Arthur Maynwaring ; " " Life of Queen Anne." — Cooper s
Biog. Diet.
I. Edward Sackville, Earl of Dorset, was born 1590. In 1613 he fought
a desperate duel near Bergen-op-Zoom, with Lord Bruce, of which an
account may be seen in the third volume of Athene Cantabrigienses. He
was one of the principal commanders sent in 1620 to assist Ferdinand,
King of Bohemia, and was present at the memorable battle of Prague.
The year following he was sent ambassador to the Court of France. In
1624, on the death of his elder brother, he succeeded to the title and estate.
He was in great favor with King Charles I., who appointed him President
of the Council and Lord Privy Seal. Died July 17, 1652. — Cooper's Biog.
Diet.
LAUD, ARCHBISHOP OF CANTERBURY
AFTER VAN DER WBRF.
LIFE OF CHIEF JUSTICE RICHARDSON. 109
caused a proclamation to be published in the King's
name, and to be read in all churches and chapels, by Laud's
J proclama-
which " dancing, either for men or women, archery for tion on the
subject of
men, leaping, vaulting, and any such harmless recrea- Sunday
tion, after divine service on Sundays, were enjoined tions.
on all the King's loving subjects." *
Notwithstanding the hostility of Laud, Chief Jus-
tice Richardson was well respected by Charles I., who,
at this period of his reign, acted as his own minister ;
and he retained his office till he died, on the 4th day A.D. 1635.
of February, 1635, in the 6/th year of his age. He son's
was buried in Westminster Abbey, behind the choir,
near the cloisters door, where may now be seen a beau-
tiful monument in black marble erected to his memory,
with his bust in his judge's cap, robes, ruff, and collar
of S.S., and an inscription which, after a pompous
enumeration of his offices and of his virtues, thus
concludes : " Thomas Richardson fil. unicus eques
aurat. Baro Scotiae designatus patri incomparabili
posuit."
He seems to have had in his own time but an in-
different reputation for honesty and veracity ; and,
after his death, he was more talked of as a jester than
a lawyer. The following anecdote is recorded b
L'Estrange:2 "Judge Richardson, in going the West-
1. 2 Oldmixon, 121 ; 3 Kennett, 71 ; Whitel. Mem. 17 ; Dart's History
of Westminster Abbey.
2. Sir Roger L'Estrange was born December 17, 1616, at Hunstanton
Hall, Norfolk, the seat of his father, Sir Hammond L'Estrange, author
of a history of Charles I., and a commentary on the Liturgy, entitled
" The Alliance of Divine Offices." The son was educated at Lynn, and
in 1639 accompanied King Charles on his expedition to Scotland ; but in
1644 he was made prisoner by the parliamentary forces, and sent to Lon-
don, where he was condemned to be hanged as a spy. With great diffi-
culty, however, he obtained a reprieve, but remained in Newgate four
years, and then effected his escape to the Continent. In 1653 ne returned,
and was discharged by order of Cromwell. After the Restoration he was
made licenser of the press, which place he enjoyed till the Revolution.
In 1663 he set up a newspaper called " The Public Intelligencer," which
1 10 REIGN OF CHARLES I.
erne Circuite, had a great flint stone throwne at his
Al.
head by a malefactor, then condemned (who thought
it meritorious, and the way to be a benefactor to
the Commonwealth, to take away the life of a man
so odious), but leaning low on his elbow, in a lazy,
recklesse manner, the bullett flew too high, and
only took off his halt. Soone after, some friends
congratulating his deliverance, he replyde by way
of jeast (as his fashion was to make a jest of every
thing), — ' You see now, if I had beene an upright
slaine.' " '
Characters judge (intimating his reclining posture) I had been
hLhcon-by His contemporaries did not spare him, notwith-
riesPOra~ standing his high judicial dignity, as we learn from
another anecdote of L'Estrange: "The Lord Chief
Justice Richardson went with Mr. Mewtis, the Clarke
of the Councell, to see his house at Gunness-bury? which
was furnish't, with many pretty knacks and rarities.
My Lord viewed all, and lik't well, ' but, Mr. Mewtis,'
sayes he, ' if you and I agree upon the price, I must
have all your fooleries and babies into the bargaine.'
' Why, my Lord,' sayes he, ' for these I will not stand
with you ; they may e'ene be entail'd if you pleas upon
you and your heires.' " 3
Another collection of legal jokes says: "When
Charles Richardson was dead (younger son of the
Lord Chief Justice, then living), some were questioning
where the body should be interred. ' Why,' says one,
he dropped in 1665, when the " London Gazette " was established. In
1679 he instituted another paper, called the " Observator." In the reign
of James II. he was knighted ; but, as he did not concur with all the
measures of that monarch, his paper was suppressed. Died September
II, 1704. — Cooper's Biog. Diet.
1. Anecdotes and Traditions, published by Camden Society, p. 53.
2. Gunnersbury, afterwards celebrated as the seat of the Princess
Amelia, daughter of George II.
3. Anecdotes and Traditions, p. 19.
LIFE OF CHIEF JUSTICE BRAMPSTON. Ill
' where should he be buried but where his father lyes — CxtP'
at Westminster? ' " '
The Chief Justice left behind a large estate to hisHisde-
scenuants.
eldest son, who, on the death of the first Baroness
Cramond, became Lord Cramond ; and the title was
borne by the descendants of the Chief Justice till the
year 1735, when it became extinct from the failure of
heirs male.
On the vacancy in the office of Chief Justice of the sir John
King's Bench, created by the death of Sir Thomas ston.
Richardson, the King and his Ministers were exceed-
ingly anxious to select a lawyer fitted to be his
successor. Resolved to raise taxes without the au-
thority of Parliament, they had launched their grand
scheme of Ship-money,2 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 on whose servility
1. Anecdotes and Traditions, p. 21. This reminds one of the epitaph
prepared by John Clerk, Lord Eldin, for a Scotch judge :
" Here ceaseth to lye
The Right Honourable" etc., etc.
2. Before the Conquest the Navy was furnished by the levy of ships on
the counties in proportion to the number of hundreds contained in each
shire. Under the Plantagenets the port towns and the coast counties were
called on to furnish ships and men. To this was added the Royal Navy, a
mercenary force paid by the King, which was the beginning of the perma.
nent Navy. As late as 1626 the fleet collected for the expedition to Cadiz
was got together by contingents from the seaports. In 1634 the position
of foreign affairs suggested to Charles I. the necessity of raising a fleet in
order to maintain the sovereignty of the seas, assert the ownership of the
North Sea fisheries, prevent the French from capturing Dunkirk, and
secure the cooperation of Spain for the restoration of the Palatinate. Noy,
the Attorney General, suggested that money for the equipment of ships
should be levied from the coast towns. The first writ was issued in Octo-
ber, 1634, and, after some remonstrance from the Lord Mayor of London,
generally submitted to. Next year a second writ was issued by which the
inland towns and counties were also required to contribute. There was
considerable opposition, and Charles obtained from ten of the Judges a
112 REIGN OF CHARLES I.
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. SERGEANT BRAMPSTOX.
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 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. Accord-
He studies inRbT> ne was transferred to the Middle Temple, and
Middle"16 studied law there for seven years, with unwearied
Temple, 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. Differ-
ent public bodies strove to have the benefit of his
advice ; and very soon he was standing counsel for his
own University, and likewise for the City of London,
•
general opinion that the levy of Ship-money from all was lawful (Dec.,
1635). A third writ was issued in Oct., 1636, and called forth still
stronger opposition, which even a second opinion from the Judges in the
King's favor (Feb., 1637) could not still. A fourth writ was issued in the
autumn of 1637, but none in 1638 ; and in Jan., 1639, the sum demanded
in the fifth writ was only about a third of the amount asked in previous
years, but in the next year the Government, for the second Scotch war,
returned to the full amount of the earlier assessment, i.e., about 200,000!,
It was by the second of these writs that a ship of 450 tons, manned and
equipped for six months, or the sum of 4, SOD/. , was demanded from
Buckinghamshire. Hampden's trial took place with respect to the twenty
shillings due from lands in the parish of Stoke Mandeville. The argu-
ment on the point of law began in Nov., 1637, and judgment was finally
given in June, 1638. Ship-money was vigorously attacked in the Short
Parliament by Pym and Glanville ; and Charles, by the advice of Strafford,
was willing to allow the judgment to be carried before the House of Lords
upon a writ of error, and there reversed. But the question of the aboli-
tion of the illegal military charges, and other things, prevented an agree-
ment. When the Long Parliament met, the House of Commons on Dec. 7,
1640. the House of Lords on Jan. 20, 1641, agreed to resolutions pro-
nouncing the levy of Ship-money illegal. A bill declaring this was brought
in by Selden on June 8, 1641, and received the King's assent on Aug. 7. —
Lou- and Putting's Diet, of Etif. Hist.
LIFE OF CHIEF JUSTICE BRAMPSTON. 113
with an annual fee pro concilia impenso et impendendo.1
Having been some years an " apprentice," he took the
degree of Sergeant-at-law.
According to a practice very common in our pro- He starts
fession, he had, in the language of Mr. Gurney thedition
famous stenographer, " started in the sedition line,"
that is, defending persons prosecuted for political
offences by the Government. He was counsel for
almost all the patriots who, in the end of the reign of
James I. and the beginning of the reign of Charles I.,
were imprisoned for their refractory conduct in the
House of Commons ; and one of the finest arguments
to be found in our books is one delivered by him in
Sir Thomas Darnel's case, to prove that a warrant of
commitment by order of the King, without specifying
the offence, is illegal.2
He refused a seat in the House of Commons, as it
suited him better to plead for those who were in the
Tower than to be sent thither himself. By and by, the He goes
, . . e f • over to
desire of obtaining the honors of the profession waxed Govem-
..... ... ment.
strong within him, and he conveyed an intimation, by
a friend, to the Lord Keeper that it would be much
more agreeable to him to be retained for the Govern-
ment than to be always against it. The offer was
accepted ; he was taken into the councils of Noy,
the Attorney General, and he gave his assistance in
defending all stretches of prerogative. Promotions
were now showered down upon him ; he was made
Chief Justice of Ely, Attorney General to the Queen,
King's Sergeant, and a Knight. Although very zeal-
ous for the Crown, and really unscrupulous, he was
anxious to observe decency of deportment, and to
appear never to transgress the line of professional
duty.
1. For counsel (already) given, and to be given (in future).
2. 3 St. Tr. 5.
REIGN Ot CHARLES I.
CHAP.
XI.
A.D. 1635.
He is made
Chief Jus-
tice of the
King's
Bench.
His opin-
ion re-
specting
the legal-
ity of
Ship-
money.
Noy would have been the man to be appointed
Chief Justice of the King's Bench to carry through
his tax by a judicial decision in its favor, but he had
suddenly died soon after the Ship-money writs were
issued ; and, after him, Sir John Brampston was
deemed the fittest person to place at the head of the
common-law Judges. On the i8th of April, 1635, his
installation took place, which was, no doubt, very
splendid ; but we have no account of it except the
following, by Sir George Croke :
" First, the Lord Keeper made a grave and long speech,
signifying the King's pleasure for his choice, and the duties of
his place : to which, after he had answered at the bar, return-
ing his thanks to the King, and promising his endeavor of due
performance of his duty in his place, he came from the bar
into court, and there kneeling, took the oaths of supremacy
and allegiance : then standing, he took the oath of judge :
then he was appointed to come up to the bench, and then his
patent (which was only a writ) being read, the Lord Keeper
delivered it to him. But Sir William Jones (the senior puisne
judge) said, the patent ought to have been read before he
came up to the bench." *
In quiet times, Lord Chief Justice Brampston would
have been respected as an excellent judge. He was
above all suspicion of bribery, and his decisions in
private causes were sound as well as upright. But,
unhappily, he by no means disappointed the expecta-
tions of the Government.
Soon after his elevation, he was instructed to take
the opinion privately of all the Judges on the two
celebrated questions —
" i. Whether, in cases of danger to the good and safety of
I. Cro. Car. 403. These forms are no longer used. The Chief Justice
is now sworn in privately before the Chancellor ; and without any speechi-
fying he enters the court and takes his place on the bench with the other
judges. But in Scotland they still subject the new judge to trials of his
sufficiency : while these are going on he is called Lord Probationer ; and
he might undoubtedly be plucked if the Court should think fit.
•LIFE OF CHIEF JUSTICE BRAMPSTON. 115
the kingdom, the King may not impose Ship-money for its C^P'
defence and safeguard, and by law compel payment from
those who refuse ? 2. Whether the King be not the sole
judge both of the danger and when and how it is to be
prevented ? "
There is reason to think that he himself was taken He is de-
in by the craft of Lord Keeper Coventry, who repre- to the use
sented that the opinion of the twelve Judges was Jr this
wanted merely for the King's private satisfaction, and °r
that no other use would be made of it. At a meeting
of all the Judges in Sergeants' Inn Hall, Lord Chief
Justice Brampston produced an answer to both ques-
tions in the affirmative, signed by himself. Nine other
Judges, without any hesitation, signed it after him;
but two, Croke and Hutton, declared that they thought
the King of England never had such a power, and that,
if he ever had, it was taken away by the act De
Tallagio non concedettdo,1 the PETITION OF RIGHT, and
other statutes: but they were induced to sign the
paper, upon a representation that their signature was
a mere formality.
The unscrupulous Lord Keeper, having got the
paper into his possession, immediately published it to
the world as the unanimous and solemn decision of all
the Judges of England ; and payment of Ship-money
was refused by JOHN HAMPDEN 2 alone.
1. De Tallagio non concedendo (1297) is the name given to the Latin
form of the great statute known as the Confirtnatio Cartarum, which for-
bade (i) any talliage or aid to be taken by the King without the consent of
the bishops, earls, barons, knights, and other freemen of the realm ; (2)
any prize in corn, leather, or wool, etc., without the owner's consent; (3)
the maltote, or "evil tax," the term generally applied to the unjust tax
upon wool levied by Edward I., and other kings. — Low and Putting's
DUt. of Eng. Hist.
2. John Hampden (b. 1594, d, 1643) was the son of John Hampden, of
Great Hampden, Bucks, and Elizabeth Cromwell, aunt of Oliver Crom-
well. He was born in London, educated at Thame School, and at Mag-
dalen College, Oxford, and entered the Inner Temple in 1613. In the
parliament of 1620 he represented Grampound ; in 1626, Wendover ; in
1640, Buckinghamshire. In 1627 he was imprisoned for refusing to pay
Il6 REIGN OF CHARLES I.
His refusal brought on the grand trial, in the Ex-
chequer Chamber, upon the validity of the imposition.
Lord Chief Justice Brampston, in a very long judg-
ment, adhered to the opinion he had before given for
the legality of the tax, although he characteristically
expressed doubt as to the regularity of the proceeding
on technical grounds. Croke and Hutton manfully
insisted that the tax was illegal ; but, all the other
Judges being in favor of the Crown, Hampden was
ordered to pay his 2os.1
A.D. 1638. Soon after, the same point arose in the Court of
Case. a S King's Bench in the case of the Lord Say,2 who, envy-
the forced loan. When the second writ of Ship-money was issued, by
which that tax was extended to the inland counties, he refused to pay it.
The case was tried in respect of twenty shillings due from lands in the
parish of Stoke Mandeville, and out of the twelve judges seven decided
for the Crown, two for Hampden on technical grounds, and three for him
on all counts, 1638. This trial made Hampden "the argument of all
tongues, every man inquiring who and what he was that he durst of his
own charge support the liberty and property of the kingdom, and rescue
his country from being made a prey to the Court." When a parliament
was again summoned " the eyes of all men were fixed upon him as the
pilot which must steer the vessel through the tempest and rocks which
threatened it." In the Long Parliament he played an important part,
generally moderating by his influence the pressure of the popular party.
Thus he urged the Commons to proceed against Strafford by impeachment
rather than by bill of attainder, and attempted to arrange a compromise
on the Church question. The King's attempt to arrest the Five Members
obliged him to alter his policy and urge stronger measures. He was
appointed a member of the Committee of Safety, and raised a regiment
whose flag bore the significant motto, "Vestigia nulla retrorsum." He
distinguished himself by his activity in the first weeks of the war, seizing
the King's Commissioners of Array, occupying Oxford, and defeating
the Cavaliers in many small skirmishes. He arrived too late to fight at
Edgehill, but both after that battle and after the battle of Brentford
urged vigorous measures on Essex, and in the Committee of Safety
argued for a march direct on Oxford. After the capture of Reading in
1643, he again counselled in vain a direct attack on the King's headquar-
ters. On June 18, 1643, at Chalgrove Field, in endeavoring to prevent
the retreat of a body of cavalry which had made a sally from Oxford, he
was mortally wounded, and died six days later. — Low and Putting's Diet.
of Eng. Hist.
1. 3 St. Tr. 826-1283.
2. William Fiennes, Viscount Say (b. 1585, d. 1662), educated at Win
Chester and at New College, Oxford, succeeded his father as Lord Say in
JOHN HAMPDEN.
FROM A PORTRAIT AT PORT ELIOT.
LIFE OF CHIEF JUSTICE BRAMPSTON. 117
ing the glory which Hampden had acquired, allowed
his oxen to be taken as a distress for the Ship-money
assessed upon him, and brought an action of trespass
for taking them. But Banks,1 the Attorney General,
moved that counsel might not be permitted to argue
against what had been decided in the Exchequer
Chamber; and Lord Chief Justice Brampston said,
" Such a judgment should be allowed to stand until it
were reversed in parliament, and none ought to be
suffered to dispute against it."3
The Crown lawyers were thrown into much per-*;0- ?
Harrison's
plexity by the freak of the Rev. Thomas Harrison, a Case-
country parson, who can hardly be considered a fair
specimen of his order at that time, and must either
have been a little deranged in his intellect, or ani-
1613, and was created Viscount in 1624. He was a strong Puritan, "for
many years the oracle of those who were called Puritans in the worst
sense, and steered all their counsels and designs" (Clarendon). He was
one of the founders of the colony of Connecticut, and thought of emigrat-
ing himself. He was also one of the foremost opponents of Ship-money,
but the Government preferred to try Hampden's case rather than his. In
1639 he was committed to custody for refusing to take the military oath
against the Scots required by the King. He was appointed in May, 1641,
Master of the Court of Wards, when the King thought of winning the
popular leaders by preferment, but remained firm, voted for the exclusion
of the bishops, became a member of the Committee of Safety, and raised
a regiment of foot for the Parliament. He continued to sit in the House
of Lords until its abolition. In 1648 he acted as one of the Parliamentary
commissioners at the Treaty of Newport, and voted in favor of an accom-
modation with the King. Cromwell appointed him to sit in his House of
Lords, but he refused to accept the offer. In 1660 he took part in the
intrigues to bring about the Restoration, and was rewarded by being made
Lord Privy Seal. His contemporaries charged him with duplicity, and
nicknamed him " Old Subtlety." — Low and Pulling s Diet, of Eng. Hist.
1. Sir John Bankes was born in 1589, at Keswick, in Cumberland, and
educated at Queen's College, Oxford, from whence he removed to
Gray's Inn, and in due course was called to the bar. In 1634 he was
made Attorney General, and in 1640 Chief Justice of the Common Pleas.
He displayed his loyalty and courage at the beginning of the Rebellion;
and his lady defended Corfe Castle, in the Isle of Purbeck — the family
seat — against the Parliament forces till it was relieved by the Earl of Car-
narvon. Sir John continued with the King at Oxford, and died there,
Dec. 28, 1644. — Cooper's Biog. Diet.
2. Cro. Car. 524.
Il8 REIGN OF CHARLES I.
mated by an extraordinary eagerness for ecclesiastical
promotion. Having heard that Mr. Justice Hutton,
while on the circuit, had expressed an opinion un-
favorable to Ship-money, he followed him to London,
and, while this reverend sage of the law was seated,
with his brethren, on the bench of the Court of Com-
mon Pleas, and Westminster Hall was crowded with
lawyers, suitors, and idlers, marched up to him, and,
making proclamation " Oyez ! Oyez! Oyez.'" said with
a loud voice, "Mr. Justice Hutton! you have denied
the King's supremacy, and I hereby charge you with
being guilty of high treason." The Attorney General,
however much he might secretly honor such an ebulli-
tion of loyalty, was obliged to treat it as an outrage,
and an ex - officio information was filed against the
delinquent for the insult he had offered to the adminis-
tration of justice. At the trial the reverend defendant
confessed the speaking of the words, and gloried in
what he had done ; saying —
" ^ con^ess tnat judges are to be honored and revered as
speech at sacred persons so long as they do their duty; but having
his trial. , ,
taken the oath of supremacy many times, I am bound to
maintain it, and when it is assailed, as by the denying of
Ship-money, it is time for every loyal subject to strike in."
Brampston, C. J.: "The denying of Ship-money may be, and I
think is, very wrong; but is it against the King's supremacy?"
Harrison : " As a loyal subject, I did labor the defence of his
Majesty, and how can I be guilty of a crime ? I say, again,
that Mr. Justice Hutton has committed treason, for upon his
charge the people of the country do now deny Ship-money.
His offence being openly committed, I conceived it not amiss
to make an open accusation. The King will not give his
judges leave to speak treason, nor have they power to make
or pronounce laws against his prerogative. We are not to
question the King's actions ; they are only between God and
his own conscience. ' Sufficit Regi, quod Deus est.'1 This
I. " God is sufficient for the King."
LIFE OF CHIEF JUSTICE BRAMl'STON. I IQ
thesis I will stand to — that whatsoever the King in his con- C5^P-
science thinketh he may require, we ought to yield."
The defendant having been allowed to go on in
this strain for a long time, laying, down doctrines new
in courts of justice, although, in those days, often
heard from the pulpit, the Chief Justice at last inter-
posed, and said —
" Mr. Harrison, if you have anything to say in your own
defence, proceed ; but this raving must not be suffered. Do
you not think that the King may govern his people by law?"
Harrison : " Yes, and by something else too. If I have
offended his Majesty in this, I do submit to his Majesty, and
crave his pardon." Brampston, C. J.: " Your ' If will be very
ill taken by his Majesty ; nor can this be considered a
submission."
The defendant, being found guilty, was ordered to His sen-
pay a fine to the King of 5,ooo/., and to be imprisoned, the dama-
ges recov-
— without prejudice to the remedy of Mr. Justice ered by
Hutton by action. Such an action was accordingly
brought, and, so popular was Mr. Justice Hutton, that
he recovered io,ooo/. damages ; whereas it was said
that, if the Chief Justice had been the plaintiff in an
action for defamation, he need not have expected more
than a Norfolk groat}-
Lord Chief Justice Brampston's services were
likewise required in the Star Chamber. He there
zealously assisted Archbishop Laud in persecuting
Williams, Bishop of Lincoln, ex-Keeper of the Great
Seal. When sentence was to be passed on this un-A.o. 1637.
fortunate prelate, ostensibly for tampering with the
witnesses who were to give evidence against him on
a former accusation which had been abandoned as
untenable, but in reality for opposing Laud's popish
i. Cro. Car. 503; Hutt. 131 ; 3 St. Tr. 1370.
The silver groat once current in England (introduced by Henry III.)
was equal to four pence. — Chambers' Encyc., vol. v. p. 113.
12O REIGN OF CHARLES I.
Cxt?' mn°vations in religious ceremonies, Brampston de-
claimed bitterly against the right reverend defendant,
saying —
Bramp- " I find my Lord Bishop of Lincoln much to blame in per-
judgment suading, threatening, and directing of witnesses; — a foul fault
on the in any kut jn him most gross who hath citram animannii l
Bishop of
Lincoln, throughout all his diocess. To destroy men's souls is most
odious, and to be severely punished. I do hold him not fit to
have the cure of souls, and therefore I do censure him to be
suspended tarn ab Officio quant a Beneficial to pay a fine of
io,ooo/., and to be imprisoned during the King's pleasure."3
A.D. 1639. This sentence, although rigorously executed, did
not satiate the vengeance of the Archbishop ; and the
Bishop, while lying a prisoner in the Tower, having
received some letters from one of the masters of West-
minster School, using disrespectful language towards
the Archbishop, and calling him "a little great man,"
a new information was filed against the Bishop for
not having disclosed these letters to a magistrate, that
the writer might have been immediately brought to
justice. Of course he was found guilty ; and, when the
deliberation arose about the punishment, thus spoke
Lord Chief Justice Brampston:
" The concealing of the libel doth by no means clear my
Lord Bishop of Lincoln, for there is a difference between a
letter which concerns a private person and a public officer.
If a libellous letter concern a private person, he that receives
it may conceal it in his pocket or burn it ; but if it concern a
public person, he ought to reveal it to some public officer or
magistrate. Why should my Lord of Lincoln keep these
letters by him, but to the end to publish them, and to have
them at all times in readiness to be published ? I agree in
the proposed sentence, that, in addition to a fine of 5,ooo/. to
the King, he do pay a fine of 3,ooo/. to the Archbishop, seeing
the offence is against so honorable a person, and there is not
1. " The cure of souls."
2. " From his office as well as from his benefice."
3. 3 St. Tr. 787.
LIFE OF CHIEF JUSTICE BKAMPSTON. 121
the least cause of any grievance or wrong that he hath done c"j^p'
to my Lord of Lincoln. For his being degraded, I leave it to
those of the Ecclesiastical Court to whom it doth belong.
As to the pillory, I am very sorry and unwilling to give such
a sentence upon any man of his calling and degree. But
when I consider the quality of the person, and how much it
doth aggravate the offence, I cannot tell how to spare him ;
for the considerations that should mitigate the punishment
add to the enormity of the offence." '
As no clerical crime had been committed for which Proposal
degradation could be inflicted, and as it was thought Justice
Brampston
not altogether decent that a bishop, wearing his lawn to set a
sleeves, his rochet, and his mitre, should stand on the the pUiory.
pillory, to be pelted with brickbats and rotten eggs,
the Lord Chief Justice was overruled respecting this
last suggestion, and the sentence was limited to the
two fines, with perpetual imprisonment. The defend-
ant was kept in durance under it till the meeting of
the Long Parliament, when he was liberated ; and,
becoming an Archbishop, he saw his persecutor take
his place in the Tower, while he himself was placed at
the head of the Church of England.2
Now came the time when Lord Chief Justice *-D- l64r-
Brampston
Brampston himself was to tremble. The first griev- impeached
ance taken up was Ship-money, and both Houses Long Par-
resolved that the tax was illegal, and that the judg-
ment against Hampden for refusing to pay it ought to
be set aside. Brampston was much alarmed when he
saw Strafford and Laud arrested on a charge of high
treason and Lord Keeper Finch obliged to fly beyond
the seas.
The next impeachment voted was against Bramp-
ston himself and five of his brethren, but they were
more leniently dealt with, for they were only charged
with "high crimes and misdemeanors ;" and, happen- Wlth-
1. 3 St. Tr. 814.
2. See Lives of Chancellors, vol. ii. ch. lix.
122 REIGN OF CHARLES I.
ing to be in the House of Lords when Mr. Waller
brought up the impeachment, it was ordered " that
the said Judges for the present should enter into
recognizances of io,ooo/. each to abide the censure of
Parliament." This being done, they enjoyed their
liberty, and continued in the exercise of their judicial
functions ; but Mr. Justice Berkeley, who had made
himself particularly obnoxious by his indiscreet in-
vectives against the Puritans, was arrested while
sitting on his tribunal in Westminster Hall, and com-
mitted a close prisoner to Newgate.1
Chief Justice Brampston tried to mitigate the
indignation of the dominant powers by giving judg-
ment in the case of Chambers v. Sir Edward Brunfield,
Mayor of London, against th'e legality of Ship-money.
To an action of trespass and false imprisonment, the
defendant justified by his plea under " a writ for not
paying of money assessed upon the plaintiff towards
the finding of a ship." There was a demurrer to the
plea, so that the legality of the writ came directly in
issue. The counsel for the defendant rose to cite
Hampden's case and Lord Say's case, in which all
their Lordships had concurred, as being decisive in his
favor ; but Brampston, C. J , said, —
" We cannot now hear this case argued. It hath been
voted and resolved in the Upper House of Parliament and in
the House of Commons, nullo contradicente, that the said writ,
and what was done by color thereof, was illegal. Therefore,
without further dispute thereof, the Court gives judgment for
the plaintiff."2
July, 1641. The Commons were much pleased with this sub-
The Com-
mons missive conduct, but pro formd they exhibited articles
with his of impeachment against the Chief Justice. To the
article founded on Ship-money he answered, " that at
1. 2 Parl. Hist. 700.
2. Cro. Car. 601.
LIFE OF CHIEF JUSTICE BRAMPSTON. 123
the conference of the Judges he had given it as his C5AP-
opinion that the King could only impose the charge in
case of necessity, and only during the continuance of
that necessity." *
The impeachment was allowed to drop; and the His im-
Chief Justice seems to have coquetted a good deal
with the parliamentary leaders, for, after the King had '°
taken the field, he continued to sit in his court at
Westminster, and to act as an attendant to the small
number of peers who assembled there, constituting the
House of Lords.
But when a battle was expected, Charles, being He is sum-
told that the Chief Justice of England was Chief the head-
Coroner, and, by virtue of his office, on view of the Charles i.
body of a rebel slain in battle, had authority to pro-
nounce judgment of attainder upon him, so as to work
corruption of blood and forfeiture of lands and goods,
thought it would be very convenient to have such an
officer in the camp, and summoned Lord Chief Justice
Brampston to appear at headquarters in Yorkshire.
The Lords were asked to give him leave ol absence, to
obey the King's summons, but they commanded him
to attend them day by day at his peril. He therefore
i. His son, the Autobiographer, to prove the truth of this allegation,
relates the following anecdote : " I beinge with my Lord Cheife Justice
Bramston at Mr. Justice Crooke's chambers in Serjeants' Inn, my Lord
Chief Justice spake to Mr. Justice Crooke to this effect : ' Brother Crooke,
you know what opinion I delivered upon consideration with the other
Judges upon the question sent unto us concerninge ship monie; you are
old, and if it should please God to call you, I would be glade that it might
be knowne what my opinion was, and how I caried myselfe in it ; there-
fore, I pray tell it to our brother Phesant,' — if Mr. Justice Crooke should
die. Whereunto Mr. Justice Crooke answered : ' That he did well re-
member that my Lord Bramston did declare his opinion to bee, that the
Kinge could impose that charge, but only in case of necessitie, and only
duringe the continuance of that necessitie ; and that my Lord Bramston
refused to subscribe unto the question otherwise, but was overruled by the
more voices, whereupon he did subscribe.' " — p. 79. But I believe this to
be a pious invention, and, if it were true, would only show the Chief
Justice to have acted in a very cunning and sneaking manner.
124 REIGN OF CHARLES I.
Cxi*P' sen* kis *wo sons to ma^e ms excuse to the King.
Oct. 10, His Majesty was highly incensed by his asking leave
Refusing of the Lords ; and. — considering another apology that
logo, he is &/
dismissed, he made, about the infirmity of his health and the
difficulty of travelling in the disturbed state of the
country, a mere pretence, — by a superseded* under the
Great Seal, dismissed him from his office, and imme-
diately appointed SIR ROBERT HEATH to be Chief
Justice of England in his stead. In a few days after,
the ex-Chief Justice received the following handsome
letter from his successor :
" My Lord (for soe you shall ever be to me), when you
shall truely understand the passages of things you will know
that I have binn farr from supplantinge you, whome I did
truely love and honor, and that I have binn and will be your
servant ; and I believe you know that the Kinge hath ingaged
himselfe to be mindfull of you, and I assure you, at my hum-
ble suite, he hath given me leave to be his remembrancer,
which I will not neglect : in the mean tyme I am and ever
will be your very true servant
" ROBERT HEATH."
He is in Brampston must now have given in his full adhe-
favor . °
with the sion to the parliamentary party, for in such favor was
tary he with them that, when the treaty of Uxbridge l was
proceeding, they made it one of their conditions that
he should be reappointed Lord Chief Justice of the
Court of King's Bench ; although the Autobiographer
stoutly denies that his father ever temporized, and says
I. The Treaty of Uxbridge (Jan. and Feb., 1645) is the name given to
the futile attempts at an understanding made between the commissioners
of the King and the Parliament at the beginning of 1645. But it was
soon evident that the demands of the Parliamentarian party were too
exorbitant to be granted, for they demanded not only the abolition of
episcopacy, but also the establishment of the Directory instead of the
Book of Common Prayer. To these requirements they added the com-
mand of the Army and Navy, and the renewal of hostilities in Ireland.
The King was by no means prepared to go such lengths, and after some
three weeks had been wasted, it was once more seen that the final appeal
would have to be made to the sword. — Low and Putting's Diet, of Eng.
Hist.
LIFE OF CHIEF JUSTICE BRAMPSTON. 125
that this proposal only shows that " they had a better CS^P<
opinion of him than he had of them or their cause." 1
From the same source we have the following further
statement, which must be taken with some grains of
allowance :
" After that, they would have brought him into the House
of Lords as an assistant, which he did not absolutely denie, but
avoided attending by the help of freinds. They had thoughts
of makeing him theire keeper of theire scale ; and the Com-
mons passed some vote for it in March, 1646, which was to*-i>. 1646.
be communicated to the Lords. My father went to London
and prevented it by his freinds in the Lords' House. And
thus he escaped ruine ; for had he been put to refuse (as
accept he would not) any imployment, he must inevitably
have binn undone. At length Crumwell toke upon him the
Protectorship ; he sent his Secretary Thurlow to him, and to
bringe him to the Cockpitt at Whitehall, where he treated
him with great respect, and urged him to take the office of
Cheife Justice again ; but he excused himselfe as being old,
and, havinge made tryall, could not satisfie ; therefore he
must now medle noe more with publique matters. Crumwell
brought him down stayers, sayinge he would take no deniall,
and wished him to advise with his brother Rolle, whoe was
his freind and an honest man. And I know Rolle came to
my father and protested he would be banished rather then be
a judge : when, contrary to these words, he was first a Puisne
Judge, and afterwards Cheife Justice of the Bench, which
they called the Upper Bench."2
I will not say that he would have been willing to
resume his office, with the title of " Chief Justice of
the Upper Bench of His HIGHNESS OLIVER, THE
LORD PROTECTOR," if Rolle had not outwitted him,
and got it for himself ; but it is quite clear that he
conformed very submissively to the republican regime.
After Rolle's appointment Brampston withdrew
entirely from public life, and spent the remainder of
his days at his country-house in Essex. There he*;D-l654-
His death.
1. Page 88.
2. Pp. 88, 89.
126 REIGN OF CHARLES I.
CH,AP- expired, on the 2d of September, 1654, in the /8th year
of his age. If courage and principle had been added
to his very considerable talents and acquirements, he
might have gained a great name in the national strug-
gle which he witnessed ; but, from his vacillation, he
fell into contempt with both parties, and, although
free from the imputation of serious crimes, there is no
respect entertained for his memory.
However, the following lines, to be read on his
monument in the church of Roxvvell in Essex, repre-
sent him as very faultless, and very sanguine as to the
result of his own trial at the GRAND ASSIZE :
Hisepi- " AMBITIONE, IRA, DONOQUE POTENTIOR OM
taph. QUI JUDEX ALIIS LEX FUIT IPSE SIBI ;
QUI TANTO OBSCURAS PENETRAVIT LUMINE CAUSAS
UT CONVICTA SIMUL PARS QUOQUE VICTA FORET ;
MAXIMUS INTERPRES, CULTOR SANCTISSIMUS XQV1,
HIC JACET, HEU, TALES MORS NIM1S .*QUA RAPIT !
HIC ALACRI EXPECTAT SUPREMUM MENTE TRIBUNAL,
NEC METUIT JUDEX JUDICIS ORA SUI."
Hisde- One of his sons, the Autobiographer, was made a
Knight of the Bath by Charles II., and the other a
Baron of the Exchequer. His possessions are inher-
ited by his lineal heir, Thomas William Brampston,
Esq., now one of the representatives for his native
county ; a distinction which has been conferred upon
the family in fifteen parliaments since the death of the
Chief Justice.1
Sir Robert We must now attend to Sir Robert Heath, who
was the last Chief Justice of Charles I., and was ap-
pointed by him to pass judgment, not on the living,
but on the dead. If we cannot defend all his proceed-
ings, we must allow him the merit — which successful
I. See Clar. Hist. Reb. ii. 32, 179; Peck's Des. Cur. lib. xiv. p. 27;
Whit. Mem. p. 245 ; Sir John Brampston's Autobiography, published in
1845 by the Camden Society, — very ably edked by Lord Braybrooke, the
resident.
LIFE OF CHIEF JUSTICE HEATH. 127
members of our profession can so seldom claim — of
perfect consistency ; for he started as a high preroga-
tive lawyer, and a high prerogative lawyer he contin-
ued to the day of his death.
He was of a respectable family of small fortune, in
Kent, and was born at Etonbridge in that county. He
received his early education at Tonbridge School, and^iseduca-
was sent from thence to St. John's College, Cambridge.
His course of study there is not known ; but when he
was transferred to the Inner Temple, we are told that
he read law and history with the preconceived convic-
tion that the King of England was an absolute sover-
eign, and so enthusiastic was he that he converted all
he met with into arguments to support his theory.
One most convenient doctrine solved many difficulties His con-
which otherwise would have perplexed him : he mai
tained that Parliament had no power to curtail the
essential prerogatives of the Crown, and that all actstlve-
of parliament for such a purpose were ultra vires and
void. There is no absurdity in this doctrine, for a leg-
islative assembly may have only a limited power, — like
the Congress of the United States of America ; and it
was by no means so startling then as now, when the
omnipotence of parliament has passed into a maxim. He
had no respe'ct whatever for the House of Commons
or any of its privileges, being of opinion that it had
been called into existence by the Crown only to assist
in raising the revenue, and that, if it refused necessary
supplies, the King, as PATER PATRLE, must provide
for the defence of the realm in the same manner as
before it had existence. He himself several times He refuses
refused a seat, in that assembly, which he said w
"only fit for a pitiful Puritan or a pretending patriot ; "m
and he expressed a resolution to get on in his profes-
sion without beginning, as many of his brethren did,
by herding with the seditious, and trying to undermine
128 REIGN OF CHARLES I.
the powers which for the public good the Crown had
immemorially exercised and inalienably possessed. To
enable him to defend these with proper skill and effect,
he was constantly perusing the old records, and, from
the Conquest downwards, they were as familiar to
him as the cases in the last number of the periodical
Reports are to a modern practitioner. Upon all ques-
tions of prerogative law which could arise he was
complete master of all the authorities to be cited for
the Crown, and of the answers to be given to all that
could be cited against him.
His repu- As he would neither go into parliament nor make
tation as a ,....,,..
"Reader." a splash in Westminster Hall in the "sedition line, his
friends were apprehensive that his great acquirements
as a lawyer never would be known ; but it happened
that, in the year 1619, he was appointed " Reader " for
the Inner Temple, and he delivered a series of lectures,
explaining his views on constitutional subjects, which
for ever established his reputation.
jan, 22, On the first vacancy which afterwards occurred
HeVsmadein the office of Solicitor General he was appointed to
G^eral. fill it I and Sir Thomas Coventry, the Attorney Gen-
eral, expressed high satisfaction at having him for
a colleague. Very important proceedings soon after
followed, upon the impeachment of Lord Bacon and
the punishment of the monopolists, but as these were
all in parliament he made no conspicuous figure during
the remainder of the reign of James I.
Oct. 31, Soon after the commencement of the reign of
Charles I. he was promoted to the office of Attorney
General ; and then, upon various important occasions,
he delivered arguments in support of the unlimited
power of the Crown to imprison and to impose taxes,
which cannot now be read without admiration of the
learning and ingenuity which they display.
The first of these was when Sir Thomas Darnel and
LIFE OF CHIEF JUSTICE HEATH. 129
his patriotic associates were brought by habeas corpus Cy^p'
before the Court of King's Bench, having been com- H's argu-
ment in
mitted in reality for refusing to contribute to the forced favor of _
loan, but upon a warrant by the King and Council power to
. , „ imprison
which did not specify any offence. 1 have already without
, .,, stating the
mentioned the speeches of their counsel. lo these cause,
pleadings for liberty," says Hallam, " Heath, the
Attorney General, replied in a speech of considerable
ability, full of those high principles of prerogative
which, trampling as it were on all statute and prece-
dent, seemed to tell the Judges that they were placed
there to obey rather than to determine." l
"This commitment," he said, " is not in a legal and ordinary
way, but by the special command of our Lord the King, which
implies not only the fact done, but so extraordinarily done,
that it is notoriously his Majesty's immediate act, and he wills
that it should be so. Shall we make inquiries whether his
commands are lawful ? — who shall call in question the justice
of the King's actions ? Is he to be called upon to give an
account of them ?"
After arguing very confidently on the legal maxim
that " the King can do no wrong," the constitutional
interpretation of which had not yet been settled, he
goes on to show how de facto the power of imprison- He cites
ment had recently been exercised by the detention in confir-
, , r • i • mation of
in custody, tor years, ol popish and other state pns-that
oners, without any question or doubt being raised. pc
" Some," he observed, " there are in the Tower who
were put in it when very young : should they bring
a habeas corpus, would the Court deliver them ? " He
then dwelt at great length upon the resolution of the
Judges in the 34th of Elizabeth in favor of a general
commitment by the King ; and went over all the pre-
cedents and statutes cited on the other side, contending
that they were either inapplicable or contrary to law.
I. Const. Hist. i. 527.
130 REIGN OF CHARLES I.
CH,AP- He carried the Court with him, and the prisoners were
remanded without any considerable public scandal
being then created.1
During the stormy session in which the " Petition
of Right" was passed, Heath, not being a member of
the House of Commons, had very little trouble ; but
He is heard once, while it was pending, he was heard against
against the . ,,. . . . . ,
"Petition it as counsel for the King before a joint committee ol
Lords and Commons. Upon this occasion he occupied
two whole days in pouring forth his learning to prove
that the proposed measure was an infringement of the
ancient, essential, and inalienable prerogatives of the
Crown.2 He was patiently listened to, but he made
no impression on Lords or Commons; and the King,
after receiving an assurance from the Judges that they
would effectually do away with the statute when it
came before them for interpretation, was obliged to go
through the form of giving the royal assent to it.
As soon as the parliament was dissolved, Heath
A.D. 1629.
He prose- was called into full activity ; and he now carried every
cutes Sir
John Eliot thing his own way, for the extent of the royal preroga-
forwhat tive was to be declared by the Court of King's Bench
said and and the Star Chamber. Sir John Eliot, Stroud, Selden,
Housenofeand the other leaders of the country party who had
Commons. , .< • ,, n ,-,• r
been the most active m carrying the " Petition of
Right," were immediately thrown into prison, and, the
Attorney General having assembled the Judges, they
were as good as their word, by declaring that they had
cognizance of all that happened in parliament, and that
they had a right to punish whatsoever was done there
by parliament men in an unparliamentary manner.3
The imprisoned patriots having sued out writs of
habeas corpus, it appeared that they were detained
under warrants signed by the King, " for notable con-
i. 3 St. Tr. 1-234. 2. 3 St. Tr. 133.
3. 3 St. Tr. 237.
SIR JOHN ELIOT.
AFTER A PICTUKE AT PORT ELIOT.
LIFE OF CHIEF JUSTICE HEATH. 13!
tempts committed against ourself and our government, c"^p-
and for stirring up sedition against us." Their counsel
argued that a commitment by the King is invalid, as
he must act by responsible officers ; and that warrants
in this general form were in direct violation of the
" Petition of Right," so recently become law. But
Heath still boldly argued for the unimoaired power of Hepre-
r, . . tends that
arbitrary imprisonment, pretending that the " Petition the "Peti-
... tion of
of Right was not a binding statute. "A petition 'tn Right" is
parliament," said he, " is no law, yet it is for the honoring statute,
and dignity of the King to observe it faithfully ; but
it is the duty of the people not to stretch it beyond
the words and intention of the King, and no other
construction can be made of the ' Petition ' than that
it is a confirmation of the ancient rights and liberties of
the subject. So that now the case remains in the same .
quality and degree as it was before the ' Petition.' "
He proceeded to turn into ridicule the whole proceed-
ings of the late parliament, and he again went over the
bead-roll of his precedents to prove that one committed
by command of the King or Privy Council is not
bailable. The prisoners were remanded to custody.
In answer to the informations, it was pleaded that a
court of common law had no jurisdiction to take cog-
nizance of speeches made in the House of Commons;
that the Judges had often declared themselves incom-
petent to give an opinion upon such subjects ; that the
words imputed to Sir John Eliot were an accusation
against the ministers of the Crown, which the repre-
sentatives of the people had a right to prefer ; that no
one would venture to complain of grievances in parlia-
ment if he should be subjected to punishment at the
discretion of an inferior tribunal ; that the alleged
precedents were mere acts of power which no attempt
had hitherto been made to sanction ; and that although
part of the supposed offences had occurred immedi-
132 REIGN OF CHARLES I.
ately before the dissolution, so that they could not
have been punished by the last parliament, they might
be punished in a future parliament. But, —
His argu- " Heath, A. G., replied that the King was not bound to
against wait for another parliament ; and, moreover, that the House
tar^rivT °^ Commons was not a court of justice, nor had any power to
leges. proceed criminally, except by imprisoning its own members.
He admitted that the judges had sometimes declined to give
their judgment upon matter of privilege ; but contended that
such cases had happened during the session of parliament,
and that it did not follow that an offence committed in the
House might not be questioned after a dissolution."
The Judges unanimously held, that, although the
alleged offences had been committed in parliament,
the defendants were bound to answer in the Court of
King's Bench, in which all offences against the Crown
were cognizable. The parties refusing to put in any
other plea, they were convicted, and, the Attorney
General praying judgment, they were sentenced to
pay heavy fines, and to be imprisoned during the
King's pleasure.1
He advises Heath remained Attorney General two years
t'olmpofe longer. The only difficulty which the Government
now nad was to raise money without calling a parlia-
ment ; and he did his best to surmount it. By his
advice a new tax was laid on cards, and all who re-
fused to pay it he mercilessly prosecuted in the Court
of Exchequer, where his will was law. All monopolies
had been put down at the conclusion of the last reign,
with the exception of new inventions. Under pretence
of some novelty, he granted patents, vesting in par-
ticular individuals or companies the exclusive right
of dealing in soap, leather, salt, linen rags, and various
other commodities, although, of 2oo,ooo/. thereby
levied on the people, scarcely i,5OO/. came into the
i. 3 St. Tr. 235-335 ; 2 Hall. Const. Hist. 3-7.
LIFE OF CHIEF JUSTICE HEATH. 133
royal coffers. His grand expedient was to compel
all who had a landed estate of AO/. a year to submit toHiss?hemc
J to raise
knighthood, and to pay a heavy fee ; or, on refusal, to "^
pay a heavy fine. This caused a tremendous outcry, people to
J . . . be knight-
and was at first resisted; but the question being ed.
brought before the Court of Exchequer, he delivered an
argument in support of the claim, in which he traced
knighthood from the ancient Germans down to the
reigns of the Stuarts, showing that the prince had
always the right of conferring it upon all who held of
him in capite l — receiving a reasonable compliment in
return. In this instance, Mr. Attorney not only had
the decision of the Court, but the law, on his side.2
Blackstone says, " The prerogative of compelling the
king's vassals to be knighted, or to pay a fine, was
expressly recognized in parliament by the statute
de Militibus, i Ed. II., — but yet was the occasion of
heavy murmurs when exerted by Charles I., among
whose many misfortunes it was, that neither himself
nor his people seemed able to distinguish between the
arbitrary stretch and the legal exertion of preroga-
tive."8
All these expedients for filling the Exchequer p rov- These e*.
, pedients
ing unproductive, the last hopes ot despotism rested unproduo-
XT i • i tive.
upon JNoy, who, having been a patriot, was eager to be
the slave of the Court, and proposed his Ship-money.
If this should be supported by the Judges, and en-
dured by the people, parliaments for ever after would
have been unnecessary. Heath was willing enough to
defend it ; but the inventor was unwilling to share the
glory or the profit of it with another. Luckily, at
that very time, a vacancy occurred in the office of
Chief Justice of the Common Pleas ; and there being
1. " In chief."
2. The case is not in print, but I have a very full MS. report of it.
3. 2 BI. Com. 60,. Compulsory knighthood was abolished by the Long
Parliament, 16 Car. I. c. 20.
134 REIGN OF CHARLES I.
an extreme eagerness to get rid of Heath notwith-
standing his very zealous services to the Crown, he
was " put upon the cushion," and Noy succeeded him
He*th'?. ,as Attorney General.
made Chief »
thestcomf ^° 1ua^y I"01 to be a Judge, it was necessary that
mon Pleas, he should first become a Sergeant ; and, according to
ancient custom, he distributed rings, choosing a motto
which indicated his intention still to put the King
above the law, — " Lex Regis, vis Legis." 1 " On the
25th of October, 1631, he came in his party-colored
robes to the Common Pleas, and performed his cere-
monies as Sergeant, and the same day kept his feast in
Oct. 27, Sergeants' Inn ;* and afterwards, on the 27th of Octo-
ber, he was sworn in Chief Justice."3
In the four years during which he held this office,
no case of public interest occurred in his own court ;
but he took an active part in the Star Chamber, and,
having prosecuted the Recorder of Salisbury for
breaking a painted window without the bishop's con-
sent, he now sentenced him for the offence.4 The
grand scheme of Ship-money, which had been long in
preparation, was ready to be brought forward, when,
to the astonishment of the world, Heath was removed
Sept. 14, from his office. It has been said that the Government
Helsdis- was afraid of his opinion of Ship-money, and wished to
bribery. °f prefer Finch — the most profligate of men — on whom
they could entirely rely. The truth seems to be, that
1. " The law of the King, the power of the Law."
2. On the right of Chancery Lane, behind St. Dunstan's Church, are the
dark brick courts of Sergeants' Inn, originally intended only for judges
and the sergeants-at-law who derive their name from the Fratres Servientes
of the Knights Templars. The sergeants still address each other as
brothers. The degree of Sergeant is the highest attainable in the faculty
of law, and indispensable for a seat on the judicial bench. The buildings
were sold in 1877. and the little Hall (38 ft. by 21) and Chapel (31 ft. by
2O) — both with richly stained windows — will probably erelong be pulled
down. — Hare's Walks in London, vol. i. p. 79.
3. Cro. Car. 225.
4. St. Tr. 541 ; Cro. Car. 375 ; Sir W. Jones' Rep. 350.
XI.
LIFE OF CHIEF JUSTICE HEATH. 135
he continued to enjoy the favor and confidence of the CHAP
Government, but that a charge had been brought
against him of taking bribes, which was so strongly
supported by evidence that it could not be overlooked,
although no parliament was sitting, or ever likely to
sit ; and that the most discreet proceeding, even for
himself, was to remove him quietly from his office.
The removal of judges had, under the Stuarts, become
so common, that no great sensation was created by a
new instance of it, and people merely supposed that
some secret displeasure had been given to the King.
It happened at the same time that Banks was made
Attorney General on the death of Noy, and the fol-
lowing pasquinade was stuck upon the gate of West-
minster Hall :
" Noy's flood is gone.
The Banks appear,
Heath is shorn down,
And Finch sings there."
Heath presented a petition to the King, setting
forth his services as Attorney General in supporting
the royal right to imprison and to tax the subject, as
well as the good-will he had manifested while he sat
on the Bench ; and expressing a hope that, as he had
been severely punished for his fault, he might not be
utterly ruined, but might be permitted to practise at
the bar. To this the King, by advice of the Privy
Council, consented, on condition that he should be put
at the bottom of the list of Sergeants, and should not
plead against the Crown in the Star Chamber.'
Accordingly, he took his place at the bar of the
Court of Common Pleas, as junior, where he had pre-
sided as chief ; and speedily got into considerable busi-
ness. How he quoted his own decisions when Chief
Justice, or treated them when quoted against him, we
are not told. He very soon again insinuated himself
I. Cro. Car. 375.
136 REIGN OF CHARLES I.
CH'^P- into the favor of the Government, and assisted Sir
jUi
John Banks, the Attorney General, in state prosecu-
tions. He first addressed the jury for the Crown in
the famous case of Thomas Harrison, indicted for
insulting Mr. Justice Hutton in open court ; leaving
the Attorney General to sum up the evidence.
Jan. 1641. Not having been on the bench when the Judges
He is made ..... . . ... ,, .
a Puisne gave the extrajudicial opinion in iavor oi ship-money,
the King's nor when Hampden's trial came on, he escaped im-
peachment at the meeting of the Long Parliament ;
and, on the removal of those who were impeached, he
was made a Puisne Judge of the Court of King's Bench.
A.D. 1642. When hostilities were about to commence, he hap-
pened to be Judge of Assize at York,1 where the King
lay. He always protested that he was innocent of any
plot to make himself Chief Justice of the King's Bench ;
yet, knowing that, from bodily infirmity and lukewarm-
I. York (Latin, Eboractim ; Old English, Eorforufic] was the capital
of Roman Britain, a fortress where the headquarters of the Sixth Legion,
and for a time of the Ninth, were situated, and the site of an important
colony. Its two rivers, the Ouse and the Foss, strengthened its walls,
and the former made it an important commercial centre. Constantius
Chlorus died there, and Constantine the Great was there hailed Emperor
by his troops (306 A.D.). It was also the seat of one of the bishoprics
of the Romano-British Church. Under the Anglian kings it preserved its
position as a capital, first of Deira, afterwards of the greater kingdom of
Northumbria. In 627 Paulinus baptized King Edwin in the hastily-built
chapel where the cathedral afterwards rose. The organization of the
English Church, effected by Theodore, made York an archbishopric,
though quite dependent on Canterbury, until Archbishop Egbert vindi-
cated its claims to metropolitan independence. In 867 it was taken by the
Danes, and its recovery by Athelstan took place in 937. At the Conquest
it contained about 10,000 people. It submitted to William, who built a
castle there in 1068. In the civil wars the city played an important part.
There, in 1642, Charles I. collected his partisans, and the surrender of
York in July, 1644, sealed the fate of the north of England. Its occupa-
tion by Fairfax in January, 1660, enabled Monk to advance into England,
and materially forwarded the Restoration. Like most other corporations
York lost its charter in 1684, and had it restored in November. 1688. In
the same month Lord Danby seized the city, then governed by Sir John
Reresby, and declared for a free Parliament and the Protestant religion.
At the time of the Revolution of 1688, York probably contained about
10,000 inhabitants — Low and Pulling' s Diet, of Eng. Hist.
LIFE OF CHIEF JUSTICE HEATH. 137
ness in the royal cause, Brampston would not come to c "^p-
York when summoned by the King, there is strong
reason to suspect that he suggested the propriety of
this summons, on the pretence that the Chief Justice
of England might, as Chief Coroner, declare an at-
tainder of rebels slain in battle, — which would subject
their lands and goods to forfeiture.1 Brampston was Created
Chief jus-
ordered to come to York, and, not making his appear- tice of
ance, he was removed from his office ; and Sir Robert
Heath was created Chief Justice of England, that he
might attaint the slaughtered rebels. Sir John Bramp-
ston, the Autobiographer, says — " When Sir Robert
Heath had that place, that opinion vanished, and noth-
ing of that nature was ever put in practice."
But in the autumn of the year 1643, the royalists A.D. 1643.
having gained an ascendancy in the West of England,
a scheme was formed to outlaw, for high treason, the 6
leaders on the parliament side, — as well those who m'nfciryia~
were directing military operations in the field as the {^J^.
non-combatants who were conducting the government son'
at Westminster. A commission passed the Great Seal,
at Oxford,2 directed to Lord Chief Justice Heath and
1. Sir John Brampston relates a conversation on the subject, in which
Mr. Hyde, afterwards Earl of Clarendon, said, " I am confident that some-
body that hath design upon the place hath put the King on this." — (p. 85.)
2. Oxford is mentioned as the seat of a school or college as early as
802. It was taken by Edward the Elder in 912, and became one of the
most important of the West Saxon towns. It was captured by the Danes
under Sweyn in 1013, and was several times the seat of the Witenagemot
under Canute. It was stormed by William the Conqueror in 1067, and
the castle built about 1070. The castle was occupied by the Empress
Maud in 1142, and captured by Stephen on her escape. The treaty
between Henry II. and Stephen was made at Oxford (Nov. 7, 1153). In
1258 the Mad Parliament met there, and the Provisions of Oxford were
drawn up. In 1542 Oxford became one of Henry VIII. 's new bishoprics.
Ridley, Latimer, and Cranmer were executed here in 1555 and 1556. In
the Civil War it was the headquarters of Charles I. after October, 1642.
The King established his mint there in 1643, ancl ne'd a Parliament in
1644. It was unsuccessfully besieged by Fairfax in May, 1645. and again
besieged the following May, and taken June 24, 1646.— Low and Pulling' s
Diet, of Eng. Hist.
138 REIGN OF CHARLES I.
CHAP, three other Judges who had taken the King's side,
to hold a court of oyer and terminer at Salisbury.
Accordingly, they took their seats on the Bench, and
swore in a grand jury, whom Heath addressed, ex-
plaining the law of high treason, showing that flagrant
overt acts had been committed by conspiring the
King's death and levying war against him, and prov-
ing by authorities that all who aided and assisted by
furnishing supplies, or giving orders or advice to the
rebels, were as guilty as those who fought against his
Majesty with deadly weapons in their hands. Bills of
indictment were then preferred against the Earls of
Northumberland, Pembroke, and Salisbury, and divers
members of the House of Commons. The grand jury,
however, — probably without having read Grotius l and
I. Grotius, or De Groot (Hugo), an eminent Dutch jurist and theologian,
and one of the most celebrated scholars of his time, was born at Delft, April
10. 1583. As a child he was remarkable for precocity of intellect, and is
said to have written Latin verses when but eight years of age. He studied
at Leyden under Joseph Scaliger and the theologian Junius, and devoted
himself to divinity, law, and mathematics. In 1598 he accompanied a
Dutch embassy to Paris, on which occasion Henry IV. presented him with
a golden chain. Soon after his return, in 1599, he published editions of
several classics, and wrote a Latin poem entitled " Prosopopoeia," which
was greatly admired and translated into French and Greek. In 1613 he
obtained the important post of pensionary of Rotterdam, which gave him
a seat in the Assembly of the States of Holland and in that of the States-
General. Being sent to England in 1615 on some public business, he
formed the acquaintance of Isaac Casaubon. In 1618 he was involved in
the defeat and misfortune of the Liberal or Arminian party, of which his
friend Barneveldt was the leader. He was tried for treason, and unjustly
condemned to perpetual imprisonment, and his property was confiscated.
In June, 1619, he was sent to the fortress of Loevestein. He here devoted
himself to study, and wrote, during his captivity, several works, among
which was his celebrated treatise " On the Truth of the Christian Religion "
(" De Veritate Religionis Christiana?, " 1627). At the end of eighteen
months Grotius escaped from his prison by means of a stratagem devised
by his wife, who had been permitted to share his confinement. He went
immediately to France, where he was well received by Louis XIII., who
granted him a pension of three thousand livres. On the death of the
stadtholder Maurice, Grotius was persuaded by his friends to return to
Holland in 1631, but was again compelled to leave it. In 1634 he was
appointed Councillor to the Queen of Sweden by Chancellor Oxenstiern,
and her ambassador to the Court of France. In 1645 he repaired to Stock-
LIFE OF CHIEF JUSTICE HEATH. 139
the writers on public law, who say that when there is
Al.
a civil war in a country the opposite parties must treat
each other as if they were belligerents belonging to
two independent nations, but actuated by a sense of
the injustice and impolicy of treating as common male-
factors those who, seeking to reform abuses and vindi-
cate the liberties of their fellow-citizens, were com-
manding armies and enacting laws,— returned all the
bills ignoramus ;l and there could neither be any trial
nor process of outlawry.
This rash attempt only served to produce irritation,
and to render the parliamentarians more suspicious
and revengeful when negotiations were afterwards
opened which might have led to a satisfactory accom-
modation.2
In the summer of the following year, Chief Justice Assizes at'
Heath held assizes at Exeter, and there actually o
tained the conviction of Captain Turpine, a parlia-
holm, where he was received with the greatest favor by Queen Christina ;
but, soon becoming weary of Court life, he embarked for Lubeck in August.
After a stormy passage, he arrived at Rostock, very ill from exposure and
fatigue, and died on the 28th of August, 1645. His treatise on Interna-
tional Law (" De Jure Belli et Pacis "), a work of the greatest merit, has
been translated into the principal European languages. — Thomas' Biog.
Diet.
1. " We are ignorant."
2. Whitelock, 78, 181 ; Ordinance, 22d Nov. 1645. Lord Clarendon
says that " Lord Chief Justice Heath, who was made Chief Justice for
that purpose, sat to attaint the Earl of Essex, and many other persons
who were in rebellion, of high treason " (vol. ii. p. 62). I do not know
whether he refers to the commission at Salisbury : there is no account
extant of legal proceedings instituted, then or at any other time, against
the Earl of Essex.
Upon the failure of the experiment of putting the common law in force
against the rebels, martial law was resorted to ; but this was speedily
superseded by the LEX TALIONIS. "The King's officers having caused
divers of the Parliament party to be hanged for spies, as one poor man by
Prince Rupert's order, upon the great elm near the Bell in Henley, and
many others, — now the council of war at Essex House condemned two for
spies who brought a proclamation and letters from Oxford to London,
which were taken about them, and they were both hanged." — Whitelock,
p. 78.
I4O REIGN OF CHARLES I.
CH-fp- mentary officer, who had been taken in arms against
the King, and was produced as a prisoner at the bar.
The Sheriff appears to have refused to carry the sen-
tence into execution ; but the unfortunate gentleman
was hanged by Sir John Berkeley, Governor of
Exeter. The Parliament, having heard of their parti-
san being thus put to death in cold blood, ordered that
the Judges who condemned him might be impeached
He is re- of high treason ; but they were afterwards satisfied
SeVariia- with passing an ordinance to remove Heath, and his
his office^f brethren who had sat with him on this occasion, from
chief jus- thejj. judicial offices, and to disable them from acting
as judges in all time to come.1
Sir Robert Heath never ventured to take his seat
as Chief Justice of the Court of King's Bench at West-
minster,— but, after travelling about for some time
with the King, fixed himself at Oxford, where he was
made a Doctor of the Civil Law, and attended as a
Judge when Charles's parliament was held there.
A.D. 1646. When Oxford was, at last, obliged to surrender,
TT~ ic
obliged to and the royalists could no longer make head in any
country. Part °f England, Heath found it necessary to fly for
safety to the Continent. The parliamentary leaders
said that they would not have molested him if he had
confined himself to the discharge of his judicial duties;
or even if, like Lord Keeper Littleton and other
lawyers, he had carried arms for the King ; but as,
contrary to the law of nations, he had proceeded
against several of those who bore a commission which
the Parliament had granted to them in the King's
name, they were determined to make an example of
him. Therefore, when an ordinance was passed,
granting an indemnity to the royalists who submitted,
His death, he was exccpted from it by name.2 After suffering
1. Whitelock, 96. Lords' Journals, Nov. 22, 24, 1645.
2. Whitelock, 345.
• lie bar.
;in might be inv
. e afterwards s
Heath, and his
on this occasion, from
!e them from acting
ntured to take his
; King's Bench at West-
•')out for some time
Oxford, where he was
1
narles's re.
r make head ir,
>und it necessary to fly
irliamentary le;i.
d him if he had
T his judicial dm
1 Keeper Littleton and other
• ving; bu!
s,
10 them in the K
;iake an exam pi-.
' nance w
lists who submitted,
name.2 After suffering
ll N.-.v. 22, 24, 1645.
SI' THOMAS LlTTELTON KV
LIFE OF CHIEF JUSTICE HEATH. 14!
great privations, he died at Caen, in Normandy, in the
month of August, 1649.
He had, from his professional gains, purchased a
large landed estate, which was sequestrated by the
Parliament, but afterwards was restored by Charles
II. to his son. He had never tried to make his peace
with the dominant party by any concession, and he
declared that " he would rather suffer all the ills of
exile than submit to the ruler of those who had first
fought their sovereign in the field, and then had mur-
dered him on the scaffold." With the exception o!Hischar-
r acter.
his bribery, which was never properly inquired into,
and does not seem to have injured him much in the
opinion of his contemporaries, no grievous stain is
attached to his memory ; and we must feel respect for
the constancy with which he adhered to his political
principles, although we cannot defend them.1
I. Wood's Fasti Ox. 45.
THE COMMONWEALTH.
CHAPTER XII.
CHIEF JUSTICES OF THE UPPER BENCH DURING THE
COMMONWEALTH.
CHAP. ALL the Chief Justices whom I have hitherto com-
Meru"ind memorated held their offices under royal authority,
f™^ and were supposed to represent the King in the ad-
ministration of the law. I now come to a class who
were appointed by the House of Commons or by the
Protector, and were supposed to represent the majesty
of the people of England. It is creditable to the times
in which they lived, that they were men of learning
and respectability. A few fanatical spirits then ap-
peared, who were for abrogating the whole fabric of
our laws, and who thought that any disputes about
property which might arise would best be decided by
some man of plain sense, whose mind was not per-
verted by attending to legal distinctions ; — but the
great mass of the nation, although the office of King
was abolished, clung fondly to the ancient laws as their
best birthright, and were desirous of seeing the Bench
occupied by men of education and professional skill.
For all high judicial qualities, the republican judges
were superior to their predecessors and immediate
successors.
Chief jus- Chief Justice ROLLE, with whom I begin, was re-
tice Roiie. ar{jeci by njs contemporaries as a man of profound
learning, of great abilities, and of unspotted honor—
and I hardly know any action of his life which is liable
to grave objection. Not even is an apology required
for him from the violence of the times in which he
lived.
LIFE OF CHIEF JUSTICE ROLLE. 143
He was the younger son of a respectable family in Cy£p'
Devonshire, and was born at Heanton in that county, in His origin
and early
the year 1 589. I know nothing of his school education, career.
He passed between two and three years at Exeter Col-
lege, Oxford; but, without having taken a degree, he
was removed to the Inner Temple, London. Here he
studied the law with an intensity which must astonish
the most diligent men in our degenerate age. He had
for his companions Selden and others of the same stamp,
who could hardly have been made of flesh and blood.
Except a very few hours for sleep, they dedicated
the whole of their time to professional improvement,
reading and commonplacing every thing that had ever
been printed respecting the common law of England,
together with many unpublished records and MSS.
which they found in the Tower and other repositories.
Their only relaxation was meeting together and con-
versing on what they had read, " for it was the con-
stant and almost daily course for many years together,
of those great traders in learning, to bring in their
acquests therein, as it were, in a common stock by nat-
ural communication, whereby each of them, in a great
measure, became a participant and common possessor
of each others' learning and knowledge." ' Rolle now
composed that wonderful Digest which, with additions
and corrections made by him in after-life, was given
to the world under the title of " Rolle's Abridgment," '
and which shows not only stupendous industry, but ament-
fine analytical head for legal divisions and distinc-
tions.
He had become a very ripe lawyer before he was
called to the bar, — instead of trusting, according to
modern fashion, to the chance of picking up pro re
nata* a superficial acquaintance with a particular point
1. Wood's Ath. iii. 415.
2. " For a special purpose."
144 THE COMMONWEALTH.
CHAP. on getting a brief. He confined himself to practice in
Hisprac- one court — the King's Bench; not running about, as
tice con- .
fined to the has always been too much the fashion, to any place
Bench. where he might pick up a fee. " By this means he
grew master of the experience of that court, whereby
his clients were never disappointed for want of his
skill or attendance. He argued frequently and perti-
nently. His arguments were plain, short, and per-
spicuous ; yet were they significant and weighty." '
M.P. for He sat for the borough of Callington in the par-
ton, liaments held in the end of the reign of James I. and
the beginning of the reign of Charles I., and took the
liberal side, but always with moderation. He main-
tained the good old maxim, that " redress of grievances
should come before supply ; " and to the argument that
the King's wants were so urgent, he replied, that "if
the necessity for money was so great, this was the very
time to press for redress of grievances."3 When the
impeachment of the Duke of Buckingham was moved,
he ably vindicated the jurisdiction of the House of
Commons over such a case, and showed various in-
stances in which it had been beneficially exercised.3
During the suspension of parliaments he devoted him-
self to his forensic pursuits. He did not shine as a
popular orator, and he does not seem to have been
retained in any important political case either in the
Star Chamber or courts of common law, although he
continued steadily to support the sound constitutional
principles with which he started.
A.D. 1638. In 1638 he was elected " Reader " of the Inner
Temple ; but, on account of the prevalence of the
plague, he did not deliver his lectures till the beginning
of 1640. They were received with much applause, and
1. Wood's Ath. iii. 417.
2. 3 Parl. Hist. 35.
3. 3 Parl. Hist. 55.
LIFE OF CHIEF JUSTICE KOLLE. 145
immediately after finishing them he was called to the
degree of Sergeant-at-law.1
At the meeting of the Long Parliament2 he declined ^tc°Jj'n
a seat which, from the interest of his family, he might |^ubles
have had either in Devonshire or Cornwall. He had ^K3"-
not nerve to mix in the stormy scenes which he saw
were coming; yet he adhered to the Parliament, he
took the covenant along with the Earl of Manchester
and the Presbyterian leaders, and he conscientiously
approved of the reforms introduced both into the
church and the state : at the same time he was always
for preserving the ancient form of government by
King, Lords, and Commons, and he deeply deplored
the excesses of the Roundheads.3 A.D. 1643.
Under these circumstances it is very creditable to
the House of Commons that, merely from a sense of
his fitness for the Bench, when they were negotiating
terms of settlement with the King during the civil
war, they stipulated that Sergeant Rolle should be
1. Dugd. Chr. Ser. iii.
2. The Long Parliament, or the fifth of Charles I., assembled Novem-
ber 3, 1640 — "a Parliament which many, before that time, thought would
never have had a beginning, and afterwards that it would never have had
an end." It was, however, abruptly and violently dispersed by Cromwell,
April 20, 1653. After many vicissitudes, in which fragments of this Par-
liament were called together again and again for special purposes, the
appearance of legal dissolution was given by a bill for " Dissolving the
Parliament begun and holden at Westminster 3d of November, 1640, and
that the day of dissolution shall be from this day, March 16, 1659."
Macaulay describes it as "that renowned Parliament which, in spite of
many errors and disasters, is justly entitled to the reverence and gratitude
of all who, in any part of the world, enjoy the blessings of constitutional
government." On the other hand, Cobbett, in his " Parliamentary His-
tory," observes, "Thus ended the Long Parliament, which, with innu-
merable alterations and several intermissions, had continued the scourge
of the nation for nearly twenty years." — Jennings' Anec. Hist. Brit. Parl.
(Am. Ed.), p. 6.
3. The two parties in the civil war were distinguished as Royalists and
Parliamentarians, or more familiarly as Cavaliers and Roundheads. The
last name is said by some to have been given because the extreme Puri-
tans cropped their hair short, in opposition to the prevailing fashion of
wearing it long. — Thompson's Hist, of Eng., p. 212.
146 THE COMMONWEALTH.
appointed one of the Judges of the Court of King's
Oct. 23, Bench ; and that afterwards, on the extinction of the
1645.
Hebe- royal authority, they named him to that office bv their
comes a
judge own authority.
under the
Pariia- He was much perplexed how to conduct himself in
this emergency. All the forms of judicial procedure
were carried on as if the King were on the throne, and
the patent of the new Judge would pass under the
Great Seal with the royal arms of England impressed
upon it ; but the awkward truth could not be disguised,
that those under whom he was really to act had fought
several pitched battles in the field against his Majesty,
and expected very soon to make him a prisoner. The
doctrines which Rolle had laid down, when he was
writing the title " Prerogative del Roy," came strongly
into his mind : but he persuaded himself that the Par-
liament had right on its side ; he saw that its authority
was recognized over the greatest part of England ; he
said to himself that " justice must be administered ; "
he was soothed, instead of being startled, by the
thought that he was to swear allegiance to the King ;
and he still fostered the fond hope that a pacification
would take place, and that the King, yielding to the
reasonable conditions proposed to him, might soon
again be quietly keeping his court at Whitehall. He
submitted to be sworn in before the Lords Commis-
sioners, and took his seat on the Bench according to
ancient forms, the only innovation being that his patent
ran "quamdiu se bene gesserit," instead of "durante
bene placito."1
He continued a Puisne Judge for three years, dur-
ing which time he may be considered as presiding in
the Court of King's Bench ; for, although Sir Robert
Heath, the King's Chief Justice, was superseded by an
I. "As long as he conducts himself well," instead of "during the
pleasure " (of the King).
LIFE OF CHIEF JUSTICE ROLLE. 147
ordinance, no successor to him was appointed, — and XIL '
Rolle had only one colleague, who was very inefficient.
But it was allowed that justice was now admirably His admir-
. . . f r able ad-
admimstered ; and it there were a certainty 01 always minter*
having a judge like Rolle in the common-law courts, justice,
he might safely be left to his own resources without
assistance or control.
At last the time arrived when in reality the Com-A-D- l6*8-
monwealth was established, although the kingly title
had not been formally abolished ; and, on the sugges-
tion of Oliver St. John, it was resolved to fill up all
the vacant offices of the law. From his political
ascendancy, this daring popular leader might have
chosen any one of them for himself ; but as, for private
reasons, he preferred the " cushion of the Common
Pleas," Rolle was promoted to be Chief Justice of the He is made
„. , „ , . Chief jus-
King s Bench.1 tee of the
On the 1 5th of November, 1648, the Lords Com mis- Bench,
sioners of the Great Seal went into that court, and
a writ which they had sealed was read, whereby
" Charles I., by the grace of God of Great Britain,
France, and Ireland King [then a prisoner in Caris-
brook Castle],2 assigned his trusty and well-beloved
1. " 1648. Whereas Mr. Justice Rolle is ordained by both Houses of
Parliament to be Ch. J. of the King's Bench, who is now by letters patent
one of the Justices of that Court (quamdiu se bene gcsserii), the Lords
and Commons do ordain, That, to the intent he may be constituted Ch.
Justice according to the said ordinance, the said Mr. Justice Rolle be de-
sired to surrender the said letters patents ; which the Commissioners of
the Great Seal are hereby ordered and authorized to accept, and imme-
diately thereupon to constitute him Chief Justice, according to the said
ordinance, without any supersedeas to his said letters patents." — Novem-
ber 13, 10 Lords Journals, 587.
2. A magnificent feudal mansion, now in ruins, in the village of Caris-
brook, on the Isle of Wight. Baedeker says : " This ancient, ivy-clad
stronghold of the lord of the island is picturesquely placed on the top
of a steep eminence. The earliest building was Saxon, but the Ketp, the
oldest existing portion, is of Norman origin. The other parts date chiefly
from the I3th century, while the outworks were added by Queen Elizabeth.
Charles I. was detained captive here for a considerable time before his exe-
148 THE COMMONWEALTH.
CHAP. Henry Rolle to hold pleas before him," etc. It would
have been very curious to read the orations delivered
on this occasion, but the only further account we have
of the ceremony is by Lord Commissioner Whitelock,
who merely says, " The Commissioners of the Great
Seal went into the King's Bench, where we sat in the
middle, the Judges sitting on each side of us, and there
we did swear the Lord Chief Justice of that Court,
Judge Rolles ; and Sir Thomas Widdrington (my
brother commissioner) made a very learned speech
to him."1
Rolle had long been kept ignorant of the deter-
mination to bring the King to an open trial. Highly
He refuses disapproving of this proceeding, he refused not only to
nectio'n preside at it, but to allow his name to be introduced
ing the""6" into the ordinance for creating the High Court of
open trial. Justice. The Lords having rejected the ordinance,
and thereupon having been voted " useless," he was
greatly alarmed at the coming crisis, though desirous
that measures should be taken to ward off anarchy.
A.D. 1649. On the nth of January, 1648-9, Whitelock makes this
entrv : " A visit to Lord Chief Justice Rolles, a wise
and learned man. He seemed much to scruple the
casting off of the Lords, and was troubled at it. Yet
he greatly encouraged me to attend the House of
Commons, notwithstanding the present force upon
them, which could not dispense with their attendance
and performance of their duty who had no force upon
them in particular." ;
cution, and his son Henry, Duke ol Gloucester, and his daughter, Princess
Elizabeth, were afterwards imprisoned here. The Princess died in the
castle nineteen months after her father's death, and the young Prince was
released two years later. The remains ol the rooms where Charles was
impiisoned, and of the chamber in which his daughter breathed her last,
may still be seen. The castle-well, 200 feet deep, from which the water
is drawn by a donkey inside a large windlass wheel, is always an object of
interest to visitors." — Baedeker's Gt. Britain, p. 73.
1. Mem. 343, 349 ; Styles, 340.
2. Mem. 368. In anticipation of the King's death, there was a grand
LIKE OF CHIEF JUSTICE ROLLE. 149
When the bloody catastrophe had been consum- CynP'
mated, and an ordinance had passed " for abolishing Hiseon-
e duct on the
kingfship as unnecessary, burthensome, and dangerous execution
of Charles
to the liberty, safety, and public interest of the people i.
of this nation," Rolle was again thrown into deep
perplexity ; but, upon the whole, he deemed it the part
of a good citizen to submit to the supreme power
established in the state, and he, together with five
other judges, agreed to assist in the administration
of justice under the " Keepers of the Liberties of
England." To guard against the wild schemes then
agitated, they required an assurance " that the funda-
mental laws should not be abolished." In consequence,
the fundamental laws of England were preserved;
many most important reforms were introduced into
them, — and other improvements were proposed, which,
after being forgotten for near two centuries, we have
adopted in the reign of Queen Victoria.1
Rolle, feeling that the deliberations of the execu-Heisa
live government could not be beneficially carried on ti>e Coun-
without the presence of some one well skilled in thesute.
law, and deeming it essential that, at this time, the
preponderance of the military chiefs should have some
counterpoise, agreed to accept a seat in the Council
of State, and he continued to attend its meetings till
it was dissolved by Cromwell, together with the Long
Parliament.2
consultation the same day with respect to the words to be substituted for
Cirolus del Gratia, etc.; and it was at last agreed to substitute "The
Keepers of the Liberties of England." The style continued till Oliver
was made Protector.
1. One of them has still been successfully resisted by prejudice and
selfishness — the establishment of a " General Register of Deeds affecting
Real Property ; " but this cannot be much longer deferred. Whitelock,
378.
2. Whitelock, 441, 448. Mr. Carlyle, from several sources, gives a
picturesque narrative more suo, which will best represent this scene:
"April 20, 1653 : Young Colonel Sidney, the celebrated Algernon, sat in
the House this morning; a House of some fifty-three. Algernon has left
ISO THE COMMONWEALTH.
CHAP. He was no longer in Cromwell's confidence; and,
without taking any prominent political part, or ca-
balling with the Protector's enemies, he testified
his strong dislike of the arbitrary government then
established. When the free parliament was called
A.D. 1654. in 1654, he was returned as one of the members for
Devonshire ; and he several times advised the House
of Commons on juridical questions with admired calm-
ness and dignity. Here, however, he was in danger
of being overpowered by loquacity, pertness, and
ignorance ; and it was with much reluctance that he
distinct note of the affair ; less distinct we have from Bulstrode, who was
also there. Solid Ludlow was far off in Ireland, but gathered many details
in after years ; and faithfully wrote them down, in the unappeasable
indignation of his heart. Combining these three originals, we have
obtained the following: 'The Parliament sitting as usual, and being in
debate upon the bill (for Parliamentary Reform), with the amendments,
which it was thought would have been passed that day, the Lord General
Cromwell came into the House, clad in plain black clothes and gray
worsted stockings, and sat down, as he used to do, in an ordinary place.'
For some time he listens to this interesting debate on the bill ; beckoning
once to Harrison, who came over to him, and answered dubitatingly.
Whereupon the Lord General sat still for about a quarter of an hour
longer. But now the question being to be put, That this bill do now pass,
he beckons again to Harrison, says ' This is the time I must do it ' — and
so 'rose up, put off his hat, and spake. At the first, and for a good
while, he spake to the commendation of the Parliament for their pains and
care of the public good ; but afterwards he changed his style, told them of
their injustice, delays of justice, self-interest, and other faults' — rising
higher and higher, into a very aggravated style indeed. An honorable
member, Sir Peter Wentworth by name, rises to order, as we phrase it ;
says, ' It is strange language this ; unusual within the walls of Parliament
this ! And from a trusted servant too; and one whom we have so highly
honored ; and one .' ' Come, come ! ' exclaims my Lord General, in
a very high key. 'We have had enough of this,' — and in fact my Lord
General, now blazing all up into clear conflagration, exclaims, ' I will put
an end to your prating,' and steps forth into the floor of the House, and
'clapping on his hat,' and occasionally ' stamping the floor with his feet,'
begins a discourse which no man can report. He is heard saying, ' It is
not fit that you should sit here any longer ! You have sat too long here
(or any good you have been doing lately. You shall now give place to
better men. Call them in!' adds he briefly, to Harrison, in word
of command ; and ' some twenty or thirty ' grim musketeers enter, with
bullets in their snap-hances ; grimly prompt for orders. . . . ' You call
yourselves a Parliament,' continues my Lord General, in clear blaze of
conflagration : ' You are no Parliament ; I say, you are no Parliament !
LIFE OF CHIEF JUSTICE ROLLE.
ever gave his attendance.1 His delight was to preside
as a magistrate, and both in civil and criminal courts
he was allowed to be unrivalled.
The questions of civil right which he determined P™^*?*
have become obsolete; but several questions of con-5fnt:
stitutional law came before him which must always be streamer's
Case.
interesting. Captain Streather, a zealous republican,
setting at defiance the usurped power of Cromwell,
was committed to prison under two warrants, one
by the Council of State, and the other by the House of
Commons — neither of them specifying the offence with
which he was charged. Thereupon he sued out a
habeas corpus in the UPPER BENCH, and prayed that he
might be discharged on the ground that both warrants
were illegal. Rolle, C. J., held the first warrant to be
void, in spite of decisions to the contrary under theRuleIaid
down that
monarchy ; but laid down a rule, which has been pariiamen-
'ary com-
lollowed ever since, that parliamentary commitments mitments
cannot be
cannot be challenged in a court ol law : challenged
in a court
" Mr. Streather," said he, " one must be above another, of law.
Some of you are drunkards," and his eye flashes on poor Mr. Chaloner, an
official man of some value, addicted to the bottle ; ' some of you are ' —
and he glares into Harry Marten, and the poor Sir Peter, who rose to
order, lewd livers both — ' living in open contempt of God's command-
ments.' 'Corrupt, unjust persons; scandalous to the profession of the
Gospel: how can you be a Parliament for God's people? Depart, I say;
and let us have done with you. In the name of God — go ! ' The House
is of course all on its feet — uncertain almost whether not on its head : such
a scene as was never seen before in any House of Commons. History
reports with a shudder that my Lord General, lifting the sacred mace
itself, said, 'What shall we do with this bauble? Take it away!' — and
gave it to a musketeer. And now, ' Fetch him down ! ' says he to Harri-
son, flashing on the Speaker. Speaker Lenthal, more an ancient Roman
than anything else, declares he will not come till forced. ' Sir,' said
Harrison, ' I will lend you a hand ;' on which Speaker Lenthal came down,
and gloomily vanished. They all vanished, flooding gloomily, clamorously
out, to their ulterior business and respective places of abode: the Long
Parliament is dissolved ! ' It's you that have forced me to this,' exclaims
my Lord General : ' I have sought the Lord night and day that He would
rather slay me than put me upon the doing of this work.' " — Jennings'
Anec. Hist. Brit. Patl. (Am. Ed.), p. 82.
I. See Barton's Diary ; 3 Parl. Hist. 1428-1471.
152 THE COMMONWEALTH.
CxnP anc^ *^e 'n^er'or must submit to the superior, and in all justice
an inferior court cannot control what the parliament does:
if the parliament should do one thing, and we do the contrary
here, things would run round ; we must submit to the legis-
lative power; for if we should free you, and they should
commit you again, why here would be no end, and there must
be an end in all things. We may call inferior courts to
account why they do imprison this or that man against the
known laws of the land."
Captain Streather was remanded ; but, the parlia-
ment being dissolved, he sued out another habeas
corpus, when Prideaux, the Attorney General for the
Commonwealth, contended that the Court had nu
power to discharge him :
Jfollf, C. J.: " We examine not the orders of parliament ;
the question is, whether the order doth now continue ? and I
conceive it is determined by the dissolution of the parliament,
and so it would have done by a prorogation. Let the prisoner
be set at liberty." '
Trial of The most interesting case which came before him
. was that of Don Pantalcon Sa. This nobleman, who
was a knight of Malta, had accompanied his brother,
the Portuguese ambassador, on a mission to London
to negotiate a treaty with the Commonwealth of
England. Having received some supposed affront in
the New Exchange in the Strand,2 he came to this
quarter the following day at the head of an armed
band, wantonly attacked the English who were there
gathered together, and with a pistol, which he deliber-
ately fired, shot dead an English gentleman who was
casually passing by. He then took shelter in his
brother's house, and claimed the right of remaining
there as in a place of sanctuary.8 But he was seized,
1. 5 St. Tr. 386; Styles, 4151 Lord Campbell's Speeches, 238.
2. Afterwards called " Exeter Change," now removed as a nuisance.
3. Sanctuary was the name given to a place privileged as a safe refuge
for criminals and political offenders. All churches and churchyards were,
LIFE OF CHIEF JUSTICE ROLLE. 153
with several of his accomplices, and carried before
Lord Chief Justice Rolle; who, exercising the same
functions as his predecessors, acted like a modern
police magistrate in taking preliminary examinations, ?he Prelin'-
granting warrants of commitment, and directing prose ceedinp;.
cutions to be instituted. He ordered these offenders
to be imprisoned in Newgate, and brought to trial for
murder. Strong representations were made by the
Portuguese Government that this proceeding was a
violation of the law of nations ; but, upon the advice
of Rolle, Cromwell was firm in his determination that
the blood of an Englishman should be avenged, so
that the English name might be respected all over the
world.
A special commission of oyer and terminer was issued J"'y s
to try the case, Chief Justice Rolle being at the head
down to Henry VIII. 's time, invested with this protective power. The
possible stay in sanctuary of any fugitive was strictly limited to a period
of forty days, at the expiration of which time he was bound to quit the
realm by the nearest port assigned him by the coroner to whom he had
communicated the circumstances of his case. During his journey to the
seacoast for the purpose of carrying out this self-banishment, the claim-
ant of sanctuary privileges was guaranteed immunity from molestation
as he journeyed on, cross in hand. In Henry III.'s reign, Hubert de
Burgh's non-compliance with the forty days' sanctuary regulation placed
him in the hands of his enemies. By Henry VII. 's time the custom of
sanctuary was very much abused, having become the means of shielding
criminals of all kinds from justice, and at his request Pope Innocent VIII.
made three important alterations in it. First, that if a man, while enjoy-
ing the privileges of sanctuary, should take advantage of his position to
commit some further offence against the laws of his country, he should at
once and for ever forfeit the benefit of sanctuary; secondly, that the bene-
fit of sanctuary should be strictly limited to a man's personal safety, and
in no degree apply to the protection of his private property; thirdly, that
when treason was the motive for seeking sanctuary, the King might have
the offender specially looked to. By 27 Henry VIII., c. 19, sanctuary
men were ordered to wear distinctive badges, and were forbidden to carry
weapons, or to be out at nights, on pain of forfeiture of their privileges.
Until the twenty-first year of James I. the custom still continued, and
criminals continued to seek refuge in the places to which the privilege of
sanctuary was attached ; at this time, however, a statute was passed abol-
ishing sanctuary privileges altogether. — Low and Pulling' s Diet, of Eng.
Hist.
154
THE COMMONWEALTH.
CHAP.
XII.
Don Pan-
taleon
pleads ex-
emption
from in-
dictment.
Rolle's
answer.
of it, assisted by four doctors of the civil law. Don
Pantaleon and three of his accomplices were jointly
indicted for the murder. He pleaded, in abatement to
the jurisdiction of the Court, — " ist, that he was a
foreign ambassador; and 2dly, that he was secretary
to a foreign ambassador when the supposed offence
was committed, and at the time of the arraignment."
The only proof offered in support of the first plea was
a letter to him from the King of Portugal, intimating
an intention to make him ambassador in England when
his brother, the present ambassador, should be recalled.
The fact alleged in the second plea was not disputed ;
but the counsel for the prosecution strongly argued,
that an ambassador, and, at all events, the attendants
and servants of an ambassador, are liable to be tried
by the municipal courts for any offence committed
against the law of nature or the law of God, in the
country where they have forfeited their privilege.
Rolle, C. J.: " We are not called upon to decide in this
case whether a foreign ambassador is exempted from the
jurisdiction of our common-law courts, if he commits an
offence contrary to the law of God and punishable with death
if committed by an English subject. A foreign ambassador
certainly is not liable for any infraction of the mere municipal
laws of that nation wherein he is to exercise his functions. If
he makes an ill use of his character, he may be sent home and
accused before his own master, who is bound to punish him
or avow himself the accomplice of his crimes. But great
doubts have been entertained whether this exemption extends
to crimes which are mala in se, and whether a distinction may
be made among crimes mala in se, so as to take away the
exemption only in regard to crimes more particularly danger-
ous and atrocious ? Some authorities say that if an ambas-
sador commits any offence against the law of reason and
nature, he shall lose his privilege ; while others say, that
although, if an ambassador conspires the death of the King in
whose land he is, he may be condemned and executed for
treason, if he commits any other species of treason he must
LIFE OF CHIEF JUSTICE ROLLE. 155
be sent to his own kingdom. It may be urged that to the CJ?£P<
natural universal rule of justice, ambassadors as well as other Roiie's'
men are subject in all countries; and consequently it is rea- Continued,
sonable that wherever they transgress it, there they shall be
liable to make atonement. But, on the other hand, it may be
thought that the security of ambassadors is of more impor-
tance than the punishment of a particular crime ; and the
judgment of the Romans upon the ambassadors of Tarquin
may be fitly followed, who were sent back unpunished when
detected in committing acts amounting to treason against the
state, upon which Livy observes, ' Et quamquam visi sunt
commisisse, et hostium loco essent, jus TAMEN GENTIUM
VALUix.'1 Here, however, as I before remarked, the question
does not arise ; for, upon the evidence, the prisoner Don
Pantaleon Sa is no ambassador. He does not represent the
King of Portugal to our Commonwealth ; and the very letter
which he produces, proves that his brother alone is in that
capacity, as it only expresses a conditional intention of
appointing him ambassador at a future time. What we have
to consider therefore is the nature and extent of privilege he
enjoys as being in the employment of the ambassador. No
authority has been cited to prove the existence of the exemp-
tion contended for, and we can only consider how it stands
upon principle. Is it necessary to the due carrying on of
diplomatic intercourse between independent nations ? I
clearly think that it is not, and here there is no balance
between the convenience and the mischief of the exemption
claimed. It may be necessary that the persons of the secre-
taries and other servants of ambassadors should be privileged
from civil process, and little inconvenience follows from
exempting them ; but although it may be essential that the
ambassador himself should not be tried for crimes in the
country to which he is accredited, he may still represent his
sovereign and carry on his negotiations after one in his service
has been apprehended for a crime ; and what a frightful
condition we should be in, if the doctrine were laid down that
all who are in the employment of a foreign ambassador in
England may rob, ravish, and murder with impunity ! I am
I. " And although they were detected in committing acts against the
state, and should be considered as enemies, yet the law of nations pre-
vailed."
THE COMMONWEALTH.
clearly of opinion that the prisoner Don Pantaleon
Sa must plead to this indictment.1 As yet we are bound to
consider him innocent, and we shall all heartily join in the
prayer that ' God may send him a good deliverance." "
Uon Pan- The three civilians expressed their concurrence :
compelled tne prisoner pleaded not guilty, along with the others
indlctmem Jomed m tne indictment ; and a jury de medietate lin-
gua, half English and half foreigners, was impanelled
to try them.
Don Pantaleon Sa then prayed that he might have
the assistance of counsel in conducting his defence on
the merits :
Rolle, C. J.: " By our rules of proceeding this may not be.
On questions of law only, are persons tried for felony to have
the assistance of counsel. With respect to facts they are sup-
posed to be competent to conduct their own defence, and in
this case you shall find that we the Judges stand equal
between you and the Commonwealth."
The trial. The trial then proceeded, and was conducted with
great impartiality and regularity.8 A number of wit-
nesses were examined, who clearly proved that the
attack made by the prisoners at the New Exchange
was premeditated and unprovoked ; that Mr. Grene-
way, a gentleman of Gray's Inn, son to the Ladv
Greneway, was there with his sister and a gentle-
l.See Vattel, b. 4, c. 7.
2. During the Commonwealth, criminal procedure was greatly im-
proved. Down to the breaking out of the civil war, trials for felony anil
treason were conducted without any regard to rules of evidence, and
written depositions or confessions of accomplices were admitted without
scruple. But, through the instrumentality of the Commonwealth judges,
the rule was laid down that no evidence could be received against prison-
ers except that of witnesses confronted with them and sworn. The
defect of depriving them of the assistance of counsel, which continued
near two centuries longer, had then been very nearly remedied ; for Lord
Commissioner Whitelock said, " I confess I cannot answer the objection
that for a trespass of t>d. value a man may have a counsellor-at-law to
plead for him, but where his life and posterity are concerned he is not
admitted this privilege. A law to reform this I think would be just, and
give right to the people." — Mem., November, 1649.
LIFE OF CHIEF JUSTICE; ROLLE. 157
woman whom he was to have married ; that the word
" Safa" being given, which was the word when the
Portuguese were to fall on, without any affront being
offered to them, one of them shot Mr. Greneway dead
with a pistol ; that a number of other Englishmen
were dangerously wounded ; that Don Pantaleon Sa
was the leader of the insurgents ; and that the other
prisoners were armed, and took an active part in the
affray.
The jury found all the prisoners guilty, and " Lord
Chief Justice Rolle sentenced them to be hane:ed."Thesen-
tence.
Unfortunately, no part of his address to them in pass-
ing sentence is preserved.
Great interest was made to save them, and protests
were presented not only by the Portuguese Govern-
ment, but by several other foreign ambassadors, who
were alarmed by the thought of such a precedent; but
Cromwell, after taking the opinion of Rolle and the
other judges, remained firm. Determined that the
principal offender should suffer, and thinking that one
victim would sufficiently vindicate the national honor,
he was a good deal perplexed respecting the manner
of dealing with the others, for the " Instrument of
Government," under which he now professed to act,
gave him no power to pardon in cases of murder.1 In
doing what he thought substantially right, he did not
long regard such formalities. " On the loth of July
the Portugal ambassador's brother was conveyed from
Newgate to Tower Hill2 in a coach and six horses, in
1. "Art. III. — All writs, etc., which now run in the name and style
of 'The Keepers of the Liberties of England' shall run in the name and
style of 'THE LORD PROTECTOR,' from whom, for the future, shall be
derived all magistracy and honors in these three nations ; and shall have
the power of pardon, except in cases of murder and treason."
2. Tower Hill is a large plot of open ground, surrounded with
irregular houses. In one of these lived Lady Raleigh while her husband
was imprisoned in the Tower. Where the garden of Trinity Square is
now planted, a scaffold or gallows of timber was always erected for the
THE COMMONWEALTH.
CHAP, mourning, with divers ot his brother's retinue with
him. On the scaffold he spake something to those
who understood him, in excuse of his offence, laying
the blame of the quarrel and of the murder upon the
English. After a few private words and passages of
popish devotion with his confessor, he gave him his
beads and crucifix, laid his head on the block, and it
was chopt off at two blows. The execution of the
others was stayed, and, without any formal pardon,
The after a few months' imprisonment they were set at
honor'v'in- liberty. The very day after the execution of Don
?heaexecu* Pantaleon Sa, .articles of peace with Portugal were
signed, and the whole affair greatly exalted the fame
of the English nation all over Europe." l
A.D. i655. Chief Justice Rolle had refused to sit on the trial of
£ce'eRoiie~ royalists, but he continued to perform the usual duties
°f his office, and, soon after, he went the Western
; o" Circuit with one of his puisnics. While holding the
assizes at Salisbury, he was in the greatest danger of
coming to a violent end. Penruddock, at the head of
a band of several hundred cavaliers, suddenly got
possession of the city. Some of the most unruly, with-
out his knowledge, seized Chief Justice Rolle and his
brother judge, who were then actually in court in their
robes, and required them to order the sheriff to pro-
claim Charles II., meaning after the proclamation "to
cause them all three to be hanged, who (says Lord
Clarendon) were half dead already." They refused,
and the threat was about to be executed in good
earnest; but many country gentlemen protested
against it, and Penruddock dismissed the Judges, hav-
ing taken their commissions from them, and desired
execution of those who were delivered by writ out of the Tower to the
sheriffs of London, there to be executed. Only the queens and a very
few other persons have suffered wilhin the walls of the Tower. — Hare's
Walks in London, vol. i. p. 367.
I. Rebellion, iii. 746; 5 St. Tr. 462-518.
LIFE OF CHIEF JUSTICE ROLLE. 159
them to " remember on another occasion to whom
ji
they owed their lives." They were still resolved to
hang the sheriff, " who positively, though humbly and
with many tears, refused to proclaim the King ; " but
he contrived to make his escape. It so happened that
in a few days this insurrection was quelled, and the
greatest number of the insurgents, being taken prison- He refuses
ers, were lodged in Salisbury jail. Orders thereupon royalist in-
came down from London to Chief Justice Rolle, re-
quiring him to try them for high treason ; but he
returned to town without trying any of them, saying
that " he much doubted whether they had done any-
thing which amounted to treason ; and that at any rate
he was unfit to give judgment in this case, wherein he
might be considered a party concerned." *
He was now on very bad terms with the Protector,
who imitated almost every act of arbitrary power
which he had formerly reprobated. After all that had
been said about the levying of taxes without authority £™£'s
of Parliament, he had, by his own authority alone,
imposed a tax upon the importation of goods. Mr.
George Cony, a merchant of London — another Hamp-
den — brought an action to recover back a sum of
money which the collector had extorted from him
under pretence of this tax. Cromwell at first tried to
cajole him into submission, and then committed him
to prison. Here we have the counterpart of "Darnel's
Case,"2 for a writ of habeas corpus was sued out, and the
validity of the commitment was debated. The follow-
ing is the amusing conclusion to the story, as related
by Lord Clarendon :
" Maynard, who was of counsel with the prisoner, demanded
his liberty with great confidence, both upon the illegality of
the commitment and the illegality of the imposition. The
1. Rebellion, iii. 845 ; Wood's Ath. iv. 417.
2. Ante, p. 90.
l6o THE COMMONWEALTH.
CHAP. Judges could not maintain or defend either, and plainly
enough declared what their sentence would be ; therefore the
Protector's attorney required a farther day to answer what
had been urged. Before that day, Maynard was committed
to the Tower for presuming to question or make doubt of his
authority, and the Judges were sent for and severely repre-
hended for suffering that license. When they, with all
humility, mentioned the law and MAGNA CHARTA, Cromwell
told them, with words of contempt and derision, ' their Magna
Cromwell's /r**** should not control his actions, which he knew were
Magna OT for the safety of the commonwealth.' He asked them, 'who
Charta. made them Judges ? — whether they had any authority to sit
there but what he gave them ? — and if his authority were at
an end, they knew well enough what would become of them-
selves ; and therefore advised them to be more tender of that
which could only preserve them,' and so dismissed them with
caution 'that they should not suffer the lawyers to prate what
it would not become them to hear.' " l
Chief jus- It is not true, as has been sometimes said, that, " in
resigns. Stuart fashion, Rolle was actually dismissed from his
office;" but he thought it very necessary for his own
dignity that he should withdraw. " In the mean time,"
says Ludlow, " upon consideration that his continu-
ance in that station was like to ensnare him more and
Junes, more, he desired, by a letter to Cromwell, to have his
Quietus ; and Sergeant Glyn was appointed to succeed
him in his employment, as a fitter instrument to carry
on the designs on foot."2
He retired to a country-house he had purchased, at
Shapwick, near Glastonbury, in Somersetshire ; and,
1. Rebellion, iii. 985. The noble historian adds, wiih his usual can-
dor,— "Thus he subdued a spirit which had been often troublesome to
the most sovereign power, and made Westminster Hall as subservient
and obedient to his commands as any of the rest of his quarters. In all
other matters which did not concern the life of his jurisdiction he seemed
to have great reverence for the law, rarely interposing between party and
party."
2. Mem. p. 201 ; Styles, 452. In a debate in the House of Commons
in March, 1659, Chaloner, during the debate, said, " Judge Rolles,
learned and honest as any, was shuffled out of his place by the Lord Pro-
tector, and another put in his place." — Burton's Diary.
LIFE OF CHIEF JUSTICE ROLLE. l6l
after languishing a year, expired there in the sixty-
eighth year of his age. His death.
He was buried in a little parish-church in the
neighborhood, and no monument was erected to his
memory ; but he continues to be reverentially remem-
bered in our profession by his labors and by his vir-
tues. Every lawyer's library contains Reports by him
of " Divers Cases in the Court of King's Bench, in the
time of King James I.," remarkable for their clearness,
precision, and accuracy ; and his " Abridgment of the
Common Law," the fruit of his early industry. Al-
though he lives as an author, it is as a great magistrate
that he is now venerated. And he really seems to have
had a. genius for judging causes; that is to say, that
did this better than any thing else in the world, — better
than any one of his admirers would have thought possi-
ble, — and as well as any of those who have most dis-
tinguished themselves in the same line. Laudatus a
laudato;^ — his principal panegyrist is Sir Matthew
Hale, who, after bestowing warm praise upon him as
an advocate, thus proceeds:
" Although when he was at the bar he exceeded most Male's
others, yet when he came to the exercise of judicature
parts, learning, prudence, dexterity, and judgment were more
conspicuous. He was a patient, attentive, and observing
hearer, and was content to bear with some impertinences,
rather than lose anything that might discover the truth or
justice of any cause. He ever carried on as well his search
and examination, as his directions and decisions, with admi-
rable steadiness, evenness, and clearness ; great experience
rendered business easy and familiar to him, so that he gave
convenient dispatch, yet without precipitancy or surprise. In
short, he was a person of great learning and experience in the
common law, profound judgment, singular prudence, great
moderation, justice, and integrity." 2
1. " He has been extolled by excellent (men)."
2. Preface to Rolle's Abridgment by Sir Matthew Hale.
162 THE COMMONWEALTH.
CxuP' ^ seems that he was liable to the imputation of
being too fond of money. Hood thus concludes his
short notice of him :
" The great men of the law living in those times used to
say that this Henry Rolle was a just man, and that Matthew
Hale was a good man : the former was by nature penurious,
and his wife made him worse ; the other, on the contrary,
being wonderfully charitable and open-handed." l
Hisde- The Chief Justice left numerous descendants. The
late Lord Rolle was the head of the family which, if
we may trust to the pedigree prefixed to the ROLLIAD,
was descended from the ancient Duke Rollo2 of Nor-
mandy, and the wife of a Saxon drummer.3
Rolle's successor as Chief Justice of the Upper
Bench was a man of very different character ; — able,
and well-versed in his profession, but eager to advance
himself, — fond of political intrigue, busy, bustling, and
Chief jus- unscrupulous. JOHX GLYX was born at Glyn Llynon,
in Caernarvonshire, and was the younger son of a
respectable family which had long been seated there.
He had an excellent education, being bred at West-
His early minster, Oxford, and Lincoln's Inn. He was called to
the bar in 1630; and, rapidly getting into practice, was,
while a very young man, made High Steward of West-
1. Athenz, iv. 418.
2. Rollo, first Duke of Normandy, born about 860 A.D. He was
originally a Norwegian viking or pirate, and was noted for strength and
martial prowess. In the reign of Charles the Bald he ascended the Seine
and took Rouen, which he kept as a base of operations. He gained a
number of victories over the Franks, and extorted from Charles III. in
912 the cession of the province since called Normandy. By the famous
treaty which Charles and Rollo signed at this time the latter agreed to
adopt the Christian religion. Died about 930. — Thomas' Biog. Diet.
3. A doubt is stated to have existed whether, in the time of the wars
of York and Lancaster, although the Rolles were represented by our
author to have been sheriffs of the county ("Sheriffi Devonienses Roll!
fuerunt "), the head of the house was not a sheriff's officer (" Bailivus ipse
potius quam Sheriffus "). But the Chief Justice certainly vindicated the
glory of his race. See "Short Account of the Family of the Rollos. now
Rolles, faithfully extracted from the Records of the Heralds' Office.''
LIFE OF CHIEF JUSTICE GLYN. 163
minster, and Recorder1 of London. He associated c"*p-
A. 11.
himself with the patriots from ambition rather than
principle, and made himself popular by declaring at
clubs and coffee-houses against the arbitrary acts of
the Government. In consequence, when the year
1640 arrived and it became indispensably necessary to
apply to the House of Commons for supplies, he was
elected representative for the city of Westminster,
first in the " Short Parliament," 8 and then in the
" Long Parliament." Thus his career is described by
Wood : " He was appointed one of those doughty
champions to bait the most noble and worthy Thomas
Earl of Strafford,3 in order to bring him to the
1. Before the Municipal Corporations Act of 1835, 159 out of the 246
corporate towns in England had Recorders or Stewards. Most of these
were nominated by the Common Council, sometimes however by the
aldermen only, sometimes by all the burgesses. "They were mostly
magistrates within their boroughs, and quorum judges of the Courts of
General and Quarter Sessions, and Courts of Record where those existed."
But few Recorders, however, actually resided in the towns, and in many
cases the office was obtained only in order to facilitate the exercise of
political influence. By the act of 1835 all towns without a separate
Court of Quarter Sessions were deprived of their criminal jurisdiction ;
but boroughs were permitted to petition the Crown for a separate Court
of Quarter Sessions, stating the salary they are ready to pay the Recorder.
If the petition is granted the Crown henceforward nominates the Recorder.
He must be a barrister of at least five years' standing. He holds his court
four times a year, or more often if necessary, and is sole judge therein.
He is also a justice of the peace for the borough, and has precedence next
after the mayor. In 1879 ninety-six boroughs had Recorders under the
act. — Low and Pulling 's Diet, of Eng. Hist.
2. The fourth Parliament called by Charles I. is known by this name.
It met on the I3th of April, 1640 — the first Parliament since the dissolu-
tion of 1629 — and was dissolved after a session of three weeks only, on
the 5th of May. Never since the institution of regular parliaments had
there been so long an interval without one, as that which preceded the
summoning of this assembly.— /<•««!«£•/ Anec. Hist. Brit. Part. (Am.
Ed.), p. 6.
3. Thomas Wentworth, Earl of Strafford, born in London in April,
1593, was the eldest son of Sir William Wentworth, from whom he
inherited a large estate. He was educated at Saint John's College, Cam-
bridge, and married in 1611 a Miss Clifford, a daughter of the Earl of
Cumberland. In 1614 he was elected to Parliament for Yorkshire, which
he also represented in that which met in 1621. His wife having died in
1622, he married Arabella Hollis, a daughter of the Earl of Clare. He
164 THE COMMONWEALTH.
CHAP, block ; l which being done he showed himself a great
enemy to the bishops and their functions, a zealous
covenanter, a busy man in the Assembly of Divines—
and what not? — to promote his interest and gain
wealth."2
His speech There is only one parliamentary speech of his
Long Par- preserved. This he made in the committee of the
jarTioV House of Commons which met at Guildhall after
Charles's insane attempt to arrest the five members
with his own hand.3 The orator, in defence of parlia-
was appointed sheriff of Yorkshire in 1625. In the Parliament which
met in 1628 he acted with the popular party, and made able speeches
against the arbitrary measures of the Court, in order, perhaps, to give the
King a proper idea of the value of his services. Before the end of the
year he was created a Baron, and on the death of the Duke of Buckingham
(1628) he was appointed Lord President of the North, and Privy Coun-
cillor. He was a political and personal friend of Archbishop Laud. He
was ambitious, energetic, haughty, and unscrupulous. He declared that
he would " lay any man by the heels " who should appeal from his sen-
tence to the courts at Westminster. In 1631 or 1632 he was appointed
Lord Deputy of Ireland, which he governed in a tyrannical manner. His
cruelty to Lord Mountmorris and others excited great indignation. He
directed his highest energies to the formation of a standing army, and
boasted that in Ireland " the King was as absolute as any prince in the
whole world could be." He was created Earl of Strafford in 1639 or 1640.
His design was to make the royal power as absolute in England as it was
in Ireland. The revolt of the Scotch, whom the King foolishly provoked
to fight for their religious rights, interfered with the success of Strafford's
scheme. He was summoned to London by Charles I. in 1639, and
appointed General-in-Chief in 1640 ; but before he could join the army it
was driven from the border by the insurgents, and the war was ended by a
treaty. The Long Parliament, which met in November, 1640, impeached
Syaft'ord of high treason. He was accused of an attempt " to subvert the
fundamental laws of the country." John Pym was the principal speaker
against him. The Commons abandoned the impeachment, and passed a
bill of attainder by a large majority. He was beheaded in May, 1641. —
Thomas' Biog. Diet.
1. He drew, and delivered to the Lords, the replication of the Com-
mons to Lord Strafford's plea. — Com. Journ.
2. Athetiae, iii. 752; 2 Parl. Hist. 1023.
3. The most dramatic incident that ever took place in the House of
Commons, and the most important in its consequences, was the attempt
of Charles I. in person to arrest the leading popular members of the
assembly. Pym, Hampden, Hazlerig, Hollis, and Strode were the five
whom he had determined to secure. With an armed company numbering
some two or three hundred officers and soldiers, attended by his nephew
LIFE OF CHIEF JUSTICE GLYN. 165
mentary privilege so grossly violated, inveighs bitterly CHAP.
against all implicated in the transaction ; and he was
the first to threaten personal violence to the King him-
self. According to a report of his speech prepared by
himself, he thus denounced vengeance :
" I conceive, sir, did these persons but remember the
many precedents yet extant of the just and deserved punish-
ments inflicted by former parliaments upon such miscreants,
— as witness the Archbishop of York, the Earl of Suffolk,
Chief Justice Tresilian, and others condemned to death for
the like offence in the reign of Richard II., — they would have
prejudged that the like danger would fall upon themselves for
their evil actions. Nay, sir, these men, if they had considered
with themselves the just judgments of God that have immedi-
ately lighted upon the necks of such as have been the troublers
of kingdoms whereof they have been members, as recorded in
sacred writ, they would have laid their hands upon their mouths
Charles, the Elector Palatine, and several members of the Court, the King
marched from Whitehall to Westminster Hall on Tuesday, the 4th of
January, 1642. The House gained word of his coming from one who had
passed the crowd, and a lady of the Court (Lady Carlisle) also sent a hasty
message to put Pym on his guard. It was resolved that the five members,
who had been impeached by the King's Sergeant on the previous day,
should "depart forthwith, to avoid combustion in the House." Four left
immediately, but Strode insisted on staying to face the King, until he was
forced from the House by his friend Sir Walter Earle, just as Charles was
entering Palace Yard. A lane was made by the courtiers as the King
advanced through Westminster Hall up to the door of the Commons, and
some of his armed party pressed forward and thrust away the doorkeepers,
but were commanded by Charles to refrain from entering "upon their
lives." A knock was given, and the door was opened at once, the King
passing in accompanied by his nephew alone. He advanced, uncovered,
toward the chair, glancing eagerly at the place where Pym was accustomed
to sit, but not seeing him, approached Speaker Lenthal and said, " By your
leave, Mr. Speaker, I must borrow your chair a little." The Speaker left,
and the King entered it, again looking eagerly around, while the members
stood uncovered before him. The silence was painful ; the King broke
it at length, in slow utterances. Rushworth, a clerk at the table, appears
almost alone to have kept his composure, coolly noting down "in char-
acter " the King's words, of which Charles asked him the same evening to
give an exact transcript. "Gentlemen," said he, "I am sorry for this
occasion of coming unto you. Yesterday I sent a sergeant-at-arms, upon
a very important occasion, to apprehend some that, by my command,
were accused of high treason, whereunto I did expect obedience, and not
a message ; and I must declare unto you here, that albeit no king that
166 THE COMMONWEALTH.
CHAp- and hearts when they went about to speak or do anything
tending to the dishonor of Almighty God."
Glyn at this time was a strong Presbyterian, and so
remained till the Independents had completely gained
the ascendency. Taking the covenant, he assisted in
framing the " Directory for Public Worship," which
Hisoppo- superseded the Liturgy ; and he was as strong against
sition to . , . ,. , . .
private allowing private judgment m matters ol religion as
m religion, any Papist. Meanwhile, in the language then used by
his opponents, " he was very diligent in feathering his
own nest." He obtained a sinecure in the Petty-Bag
Office,1 worth i,ooo/. a year; and other places, which
he could not hold himself, he procured for his creatures
A.D. 1646. and kindred. The army, however, viewed with envy
the manner in which, while they were encountering all
ever was in England shall be more careful of your privileges, to maintain
them to the uttermost of his power, than I shall be, yet you must know
that in cases of treason no person hath a privilege. And therefore I am
come to know if any of those persons that were accused are here ; for I
must tell you, gentlemen, that so long as these persons that I have accused,
for no slight crime but for treason, are here, I cannot expect that this
House will be in the right way that I do heartily wish it ; therefore I am
come to tell you that I must have them wheresoever I find them." He
again looked about him, and called Mr. Pym by name. No answer being
made, he turned to the Speaker, and required to know whether any of the
persons he had named were in the House. Lenthal answered, kneeling,
"May it please your Majesty, I have neither eyes to see nor tongue to
speak in this place but as the House is pleased to direct me, whose servant
I am here ; and humbly beg your Majesty's pardon that I cannot give any
other answer than this to what your Majesty is pleased to demand of me."
"Well," said the King at last, "since I see all the birds are flown, I do
expect from you that you will send them unto me as soon as they return
hither." Apparently impressed by the attitude of the Speaker and the
House, he added something more to the effect that he had never intended
any force, but to proceed against the members in a legal and fair way, con-
cluding, " I will trouble you no more, but tell you I do expect, as soon as
they come to the House, you will send them to me, otherwise I must take
my own course to find them." He then retired, " pulling off his hat till
he came to the door," the members scowling at him and audibly mutter-
ing "Privilege! privilege!" The House adjourned itself immediately
the King had left. — Jennings' Artec. Hist. Brit. Parl. (Am. Ed.), p. 32.
I. One of the branches of the Court of Chancery. The clerk of this
office is appointed by the Master of the Rolls. — Chambers' Encyc., vol. vii.
P. 456.
LIFE OF CHIEF JUSTICE GLYN. 167
sorts of dangers and privations, the members of the
House of Commons were enriching themselves; and
Cromwell, taking advantage of this feeling, brought
in his famous " Self-denying Ordinance," ' — the foun-
dation of his subsequent greatness. Glyn, with Hollis2
and Stapleton, his close allies, strenuously opposed
a measure likely to be so detrimental to themselves
and to their party. " These were all men of parts,
interest, and signal courage, and did not only heartily
abhor the intentions which they discerned the army
to have, and that it was wholly to be disposed accord-
ing to the designs of Cromwell, but had likewise
1. The Self-denying Ordinance was a measure proposed in the Long
Parliament on Dec. 9, 1644, by Mr. Zouch Tate, member for Northampton.
The words of the resolution were "that no member of either House of
Parliament shall during the war enjoy or execute any office or command,
military or civil, and that an ordinance be brought in to that effect." An
ordinance was brought in and passed the Commons on Dec. 19, by the
small majority of seven votes. After some discussion and hesitation the
Lords rejected it, giving as a reason that they did not know what shape
the army would take. The Commons at once produced a scheme " for
new modelling of the army," which passed the Commons on Jan. 28, 1645,
and the Lords on Feb. 15. A second Self-denying Ordinance was now
introduced, which passed the Lords on April 3, 1645. It provided that all
members of either House who had since the beginning of the present
Parliament been appointed to any offices, military or civil, should vacate
those offices within forty days. But it differed from the first ordinance in
that it did not prevent members from taking office on any future occasion.
The name given to this ordinance is perhaps derived from a phrase used
by Cromwell, who was one of its strongest supporters. "I hope," he said,
"we have such English hearts and zealous affections towards the general
weal of our mother country, as no members of either House will scruple to
deny themselves, and their own private interests, for the public good." —
Low and Pulling s Diet, of Eng. Hist.
2. Lord Hollis, second son of the Earl of Clare, and brother-in-law
of the Earl of Strafford, was born at Haughton in 1597. In the reign of
Charles I. he was one of the leaders of the Opposition in Parliament, and
in 1629 was condemned to imprisonment during the King's pleasure.
He was one of the five members whom the King rashly attempted to
arrest in the House of Commons on a charge of treason (1642). After the
division between the Presbyterians and Independents occurred, Hollis was
the leader of the former. He was expelled from Parliament at the time
of Pride's Purge, and fled to France. He favored the Restoration, was
created a peer by Charles II. in 1660, and was sent as ambassador to
France in 1663. Died in 1680. — Thomas' Biog. Diet.
168 THE COMMONWKALTH.
CHAP, declared animosities against the persons of the most
active and powerful officers." ' They had a consider-
able majority in the House of Commons, and upon
a peaceable division the Ordinance must have been
thrown out. A council of officers, therefore, on Crom-
Heisim- well's suggestion, preferred an impeachment for high
treason against Glyn and ten other members of the
denying House of Commons, and insisted that they should be
e' immediately sequestered and imprisoned. The demand
was at first resisted, on the ground that the accusation
was general; but it was answered, that, on a similar
accusation, the Earl of Strafford had been committed
to the Tower by the House of Lords, — and, erelong,
Gryn was in the same cell which that great state
offender had occupied. The Self-denying Ordinance
having passed, he was deprived of all his employments,
including even the Recordership of the City of Lon-
don.2
Glyn was a man in every political revolution to
side with the victorious party, and to contrive to gain
oncitecfto the favor °f those who had beaten him. We are not
Cromwell. informed how he made advances to the Independents3
A.D. 1048.
1. Rebellion, iii. 87. By Glyn's advice, Hollis sent Ireton a challenge,
and, the saintly soldier answering that it was against his conscience to fight
a duel, the challenger pulled his nose, observing, "If your conscience
keeps you from giving satisfaction, it should keep you from offering
affronts." This affair greatly exasperated the differences between the
Presbyterians and Independents.
2. Rebellion, ii. 907, iii. 91 ; Athenae, iii. 753.
3. Independents. As early as 1568 a congregation of Separatists
existed in London, organized upon the principle that Christians ought to
be gathered together in strictly voluntary and self-governing congrega-
tions or churches: They numbered about two hundred, all poor, and the
majority women, under the pastorate of a certain Richard Fitz. The first
prominent teacher of this theory, however, was Robert Browne, a clergy-
man and graduate of Cambridge, whose greatest activity was during the
years from 1571 to 1581. Owing to the protection of his powerful rela-
tive, Burleigh, Browne escaped punishment, and finally conformed. But
his tracts formed the great storehouse of argument for those who had
accepted his doctrine — especially numerous in the eastern counties— and
they were long known only as Brownists. Several Separatist churches
LIFE OF CHIEF JUSTICE GLYN. 169
on his liberation, but, soon after, he was allowed to
resume his seat in the House of Commons as member
for Westminster ; and when negotiations were going
on for a settlement with the King, now a prisoner in
the Isle of Wight, we find him in the confidential
situation of one of the commissioners on the part
of the Parliament. He was soon after raised to the
degree of Sergeant-at-law, being one of those on whom
this honor was conferred by order of the House of
Commons.
Glyn was too cautious a man to take any part
in the King's trial ; and he remained very quiet for
several years, following his profession, and watching
the course of events. But when the Protectorate
was firmly established, he professed to be a zealous
were formed, especially in London, which met in secret, and were often
discovered and dispersed by the authorities ; many of their members were
imprisoned and five executed. Of these Henry Barrowe, a barrister of
Gray's Inn, executed in 1593 for the publication of seditious books, i.e.,
pamphlets against the Established Church, was the most important, and
for some time " Barrowist " was used as a synonym of Brownist. The
repressive measures of the Government caused the members of a Brownist
church, which had been formed in London about 1592, to flee to Holland,
and they finally settled at Amsterdam. Another and more successful
church was that of Nottinghamshire men at Leyden under John Robinson,
and this Leyden church is the true ' ' parent of Independency alike in
England and America." In 1620 the first settlement was made in New
England by Independents coming from Holland in the Mayflower ; the
New World became the refuge of all who were attacked by the ecclesias-
tical authorities at home, and Independency became practically the estab-
lished religion in the New England colonies.
The example of New England was of the greatest importance when,
with the meeting of the Long Parliament, the Independents at last obtained
freedom of speech in England. It is not necessary here to show how the
growth of Independency accompanied the victories of the New Model ;
and how the attempt to substitute the complete Presbyterian system for
that of Episcopacy was defeated. Few of the early Independents advo-
cated entire voluntaryism, and many accepted benefices and received
tithes under the rule of Cromwell. But in such cases, while the minister
preached to all the parishioners in the parish church, there was often an
attempt to create, side by side with the parochial organization, a special
Independent Church. Difficulties arose when the Independent ministers
refused to administer the sacrament to persons outside this inner church,
and one at least of the justices on assize advised aggrieved parishioners to
I/O THE COMMONWEALTH.
CHAP, supporter of the plan for putting the royal diadem on
the head of the Protector.
In Cromwell's reformed parliament he was returned
for the county of Caernarvon, and, being a member
of the committee appointed to remove the objections
made by his Highness to accept the title of OLIVER I.,
which was offered to him, he not only took an active
part in the conferences at Whitehall, but published
a pamphlet, entitled " Monarchy asserted to be the
best, most ancient, and legal form of government."
A.D. i6SS. When Chief Justice Rolle refused to try Penrud-
sides at the dock * and the royalists in the West who had saved
Penrud- his life, and Sir Matthew Hale, then a Judge of the
Common Pleas, had excused himself from this service,
Glyn was sent clown to Salisbury along with Sergeant
Maynard to dispose of them ; and their services on
this occasion were celebrated in the well-known lines
of Hudibras :
" Was not the King, by proclamation,
Declared a rebel o'er all the nation ?
Did not the learned Glyn and Maynard,
To make good subjects traitors, strain hard ?"
withhold tithes. In 1658 a synod of Independent Churches was held in
London which drew up the Savoy Declaration, following in doctrine the
Westminster Confession, but adding their peculiar theory of Church gov-
ernment. The Act of Uniformity drove Independents with Presbyterians
out of the National Church, and the rigid penal code of Charles II. pre-
vented their meeting in worship. Later in the reign of Charles II., and
under James II., they again began to form churches, and under William
III. obtained toleration. But their numbers were much diminished, and
it was not till the evangelical movement of the latter half of the eighteenth
century that they began to recover strength. As meanwhile the Presby-
terian body had declined in numbers, and had largely become Unitarian,
they became in the nineteenth century one of the most important of the
Nonconformist bodies. During the eighteenth century they had long
received a regium donum of i.ooo/. a year for the widows of ministers;
but in the nineteenth the wrongfulness of endowment became one of their
main tenets. They are now more usually known as Congregationalists,
and are united in a " Congregational Union of England." with subordinate
" County Unions." — Low and Palling' s Diet, of Eng. Hist.
I. Colonel John Penruddock, an English royalist, was one of the lead-
ers of an insurrection against Cromwell in 1655. He was beheaded in the
same year. — Thomas' Biog. Diet.
LIFE OF CHIEF JUSTICE GLYN. 171
We have a very full account of the trial by Pen-
ruddock himself, from which it would appear that
Glyn treated him with extreme harshness and inso-
lence. The indictment was for high treason in levy-
ing war against the Lord Protector. The prisoner Account of
argued that " there could be no treason unless by
common law or statute law, but this is neither on the
common law or the statute ; ergo, no treason.'
Glyn : " Sir, you are peremptory ; you strike at the Gov-
ernment ; you will fare never a whit the better for this
speech." Penruddock : " Sir, if I speak any thing which grates
upon the present Government, I may confidently expect your
pardon ; my life is as dear to me as this Government can be
to any of you. The holy prophet David, when he was in
danger of his life, feigned himself mad, and the spittle hung
upon his beard. You may easily therefore excuse my imper-
fections. The 'Protector' is unknown to the common law;
and if there be any statute against which I have offended, let
it be read. My actions were for the King, and I well remem-
ber Bracton saith, ' Rex non habet superiorem nisi Deum." s
You shall also find that whoever shall refuse to aid the King,
when war is levied against him or against any that keep the
King from his just rights, offends the law, and is thereby
guilty of treason ; and yet you tell me of a statute which
makes my adhering to my King according to law to be high
treason. Pray let it be read."
The only answer he received was, " Sir, you have
not behaved yourself so as to have such a favor from
the Court." Evidence of the insurrection being then
given, and of the taking of Salisbury in the King's
name while the Protector's judges were holding the
assizes there, Penruddock delivered a very eloquent
speech to the jury, which he gives at full length :
" This being done," he says, " Sergeant Glyn, after a most
bitter and nonsensical speech, gave sentence against me, viz.,
to be drawn, hanged, and quartered : I observe treason in this
I. " The King has no one above himself except God."
172 THE COMMONWEALTH.
CxnP' a^e to ^e an tn^lpl^uum vagum>1 like the wind in the Gospel
which bloweth where it listeth ; for that shall be treason in
me to-day, which shall be none in another to-morrow, as it
pleaseth Mr. Attorney."
He was a very pious as well as a very brave man,
and as he was ascending the scaffold he said beauti-
fully," This I hope will prove to be like Jacob's ladder;
though the feet of it rest on earth, yet I doubt not but
the top of it reacheth to heaven."2
Glyn is Rolle being driven, not long after, to resign the
justice. 'e Chief Justiceship of the Upper Bench, Glyn was ap-
165*5. 15' pointed to succeed him. His installation took place
with great ceremony, when L'Isle, Lord Commissioner
of the Great Seal, " did make a learned speech, wherein
he spoke much in commendation of the good govern-
ment (as he termed it) that they then lived under." 8
Glyn filled this office till the eve of the Restora-
Hiscredi- tion, a period of nearly five years, during which he
d^in011 discharged its judicial duties very creditably. He
was an extremely good lawyer, he was very assiduous
in private causes, he was very impartial, and he could
even put on a show of independence between the
Protector and the subject.
His chief reporter is Styles, who, being obliged by
an ordinance of the House of Commons to abjure the
Norman French, thus laments the hardship imposed
upon him :
May, 1658. " I have made these reports speak English, not that I
believe they will be thereby generally more useful, for I have
I. "A wandering or inconstant atom." 2. 5 St. Tr. 767-790.
3. Athenae, iii. 753. The following is from Styles : " Memdum. — Trin.
Term, 1655. Justice Aske sat alone in the Court of Upper Bench, being
then the sole Judge there, the late Lord Chief Justice Rolle having sur-
rendered his patent. Afterwards John Glyn, his Highness the Lord Pro-
tector's Sergeant-at-law, took his place of Lord Chief Justice of England
in this court ; and the Lord Lisle, one of the Lords Commissioners of the
Great Seal, made a speech unto him according to the custom." — Styles,
452-
LIFE OF CHIEF JUSTICE GLYN. 173
been always, and yet am, of opinion that that part of the com-
mon law which is in English, hath only occasioned the making
of unquiet spirits contentiously knowing, and more apt to
offend others than to defend themselves ; but I have done it
in obedience to authority, and to stop the mouths of such of
this English age, who, though they be as confusedly different
in their minds and judgments as the builders of Babel were in
their languages, yet do think it vain, if not impious, to speak
or understand more than their own mother-tongue."
While in St. Stephen's Chanel1 (where the House Points
decided by
of Commons still met) political convulsions were hap- chief jus-
" tice Glyn.
pening which changed the aspect of the world, I do
not find any more important point decided by the
UPPER BENCH in Westminster Hall than the follow-
ing :
" Action on the case for these words ' Helena (meaning
the plaintiff) is a great witch.' Verdict for the plaintiff,
with damages. Motion in arrest of judgment, and, by the
unanimous opinion of all the justices, judgment was arrested,
because the words only indicated that the plaintiff was a
witch, without alleging that she had bewitched any person or
any thing; and it not being punishable to be a witch without
actually exercising the black art, it is not actionable simply to
impute the power of witchcraft to another."5
The next reporter of the UPPER BENCH was Sider- siderfm.
fin, who, not publishing till after the Restoration,
availed himself of the recovered privilege of using the
Norman French. The following is a fair specimen of
the decisions which he records :
1. St. Stephen's Chapel was a beautiful specimen of rich Decorated
Gothic, its inner walls being covered with ancient frescoes relating to the
Old and New Testament history; it was used as the House of Commons
from 1547 till 1834, and its walls resounded to the eloquence of Chatham,
Pitt, Fox, Burke, Grattan, and Canning. — Hare's Walks in London,
vol. ii. p. 374.
2. Styles, ii. So it is held not actionable to say " Mary is a witch, for
she has bewitched me," the context showing that he meant she had made
the defendant fall in love with her: any more than to say "you are a
thief, for you have stolen my heart ; " or, " you have committed murder,
for your beauty has for ever murdered my peace of mind."
174 THE COMMONWEALTH.
" L defendant dit ceux scandalous parols del plaintiff.
'He hath got M. N. with child.' Motion pour arrester le
judgment pour ceo que ceux parols ne sont actionables sans
alleging que M. N. ne feut sa feme. Mais per Glyn, C. J- '•
Les parols sont actionables car il ne gist dans la bouch del
defendant a dire que le plaintiff et M. N. etoient baron et
feme." '
On several occasions when writs of habeas corpus
were moved for in the UPPER BENCH, Glyn intimated
with some reluctance that, sitting there, he must de-
clare the law as it had been handed down to him ;
whereupon (probably by his advice in the Council of
State) the arbitrary acts deemed necessary were car-
ried through by the agency of the " Major Generals " a
and the " High Court of Justice."
Trial of There was one treason trial before the UPPER
Sinder-
comefor BENCH while Glyn presided there; that of Sinder-
conspirmg
toassassi- come, who had engaged in a plot to assassinate the
nate the
Protector. Lord Protector. As he was certainly guilty of a crime
Jan. 1658.
revolting to all Englishmen, it was thought that a jury
might safely be trusted with the case, instead of refer-
ring it to any extraordinary tribunal.
It is curious to a lawyer to observe that the indict-
ment is framed after the precedents on stat. 25 Edward
1. Siderfin, ii. 17.
2. In 1655, after the disagreement with his first Parliament, and the
rising under Penruddock, Cromwell devised the plan of dividing England
into military districts, to be governed each by a major-general, respon-
sible only to the Protector and Council. The major-generals were
intrusted with the command of the militia, with the duties of putting
down all attempted insurrections, carrying out the Protector's police reg-
ulations, and raising the ten per cent income tax imposed on royalists.
The first appointed was Desborough, in May, 1655, for the six south-
western counties ; but the whole organization was officially announced in
October. Including Wales, there were, in all, twelve districts. When
Cromwell's second Parliament met, after a vigorous defence of his " poor
little invention "he was obliged to abandon it. The House of Commons,
on January 29, 1657, rejected, by 121 to 78, .the second reading of a " Bill
for the continuing and assessing of a tax for the paying and maintaining
of the Militia forces in England and Wales," and thus deprived the Pro-
tector of the machinery by which the system of major-generals was main-
tained.— Low and Pulling 's Did. of Eng. Hist.
GENERAL MONK.
AFTER SAMUEL COOHKR.
LIFE OF CHIEF JUSTICE GLYN. 175
III., for " compassing and imagining the death of the
Lord Protector." The overt act charged was hiring
a room in Westminster, fitting it with guns, harque-
buses, and pistols charged with leaden bullets and
iron slugs, to shoot, kill, and murder him. The facts
being proved very clearly, Lord Chief Justice Glyn
thus met the objection that in the statute of Edward
III. there is no mention of a " Protector : " '
" By the common law, to compass or imagine the death of
the chief magistrate of the land, by what name soever he was
called, whether Lord Protector or otherwise, is high treason ;
I. The title of Protector was first given to the governors appointed dur-
ing the minority or incapacity of the King. It was borne by the Duke of
Bedford during the minority of Henry VI. (or in his absence by the Duke
of Gloucester), and by the Djke of York in 1.454, and again in 1455 during
Henry's illness ; the Duke of Gloucester in 1483, and the Duke of Somerset
from 1547 (January) to 1548 (October). The House of Lords, in answer
to Humphrey, Duke of Gloucester, thus defined the meaning of the word :
" It was advised and appointed by authority of the King assenting the
three estates of this land, that ye, in absence of my lord your brother of
Bedford, should be chief of the King's Council, and devised unto you a
name different from other counsellors, not the name of tutor, lieutenant,
governor, nor of regent, nor no name that should import authority of
governance of the land, but the name of Protector and Defender, which
importeth ' a personal duty of attendance to the actual defence of the land,
as well against enemies outward if case required, as against rebels inward,
if any were, granting you therewith certain power, the which is specified
and contained in an act of the said Parliament, to endure as long as it
liked the King.'" In the case of the Duke of Somerset he was in the in-
strument signed by the Privy Council on Jan. 31, 1547, said to be ap
pointed because the good government of the realm, the safety of the
King, and "the more certain and assured direction of his affairs " re-
quired " that some special man of the number aforesaid (the executors)
should be preferred in name and place before the other, to whom, as to
the head of the rest, all strangers and others might have access, and who
for his virtue, wisdom, and experience in things, were meet and able to
be a special remembrancer, and to keep a most certain account of all our
proceedings." The title of Protector given to Cromwell (which may be
compared with that of " custodes libertatis Anglice," assumed by the Long
Parliament) was chosen because it was not altogether strange to English
ears, and, perhaps, also because it left the definite form of government,
whether monarchical or republican, an open question. Cromwell's title
was " Lord Protector of the Commonwealth of England, Scotland, and
Ireland." It was given to him first in the Instrument of Government,
and after his refusal to accept the crown, confirmed by the Petition and
Advice. — Low and Pulling' s Diet, of Eng. Hist,
THE COMMONWEALTH.
he being the spring of justice, in whose name all writs run, all
commissions and grants are made : the statute 25 Edw. III.
did only declare what the common law before was, and intro-
duced no new law."
The jury, consisting of very respectable men, hav-
ing, without difficulty, found a verdict of guilty, the
ancient sentence in cases of treason, with all its fright-
ful particulars, was pronounced ; but this Sindercome
disappointed, by taking poison the night before the
day fixed for his execution.1
Glyn in Glyn was member for Caernarvonshire in Crom-
inent!" well's third parliament, and assisted the House of
Commons with his legal advice. In the proceedings
Dec. 17, against Nayler2 the Quaker, he gave it as his opinion
" that, upon a simple commitment by the House of
Commons fora contempt, at the end of the session the
party committed was entitled on a habeas corpus to be
discharged ; but if the House were to proceed judi-
cially, and, after conviction, sentence him to imprison-
ment for a time certain, no inferior court could inter-
fere to relieve him." 3
The Chief Justice continued in high favor with
Cromwell, and again made an effort to induce him to
become King.4 This having failed, and the House of
He is Lords being restored, he was made a peer, — he and
£eer.e * his wife being called Lord and Lady Glyn.5
On the accession of Richard his patent as Chief
1. 5 St. Tr. 841-872.
2. James Nayler, a Quaker, born at Ardsley, in Yorkshire, about 1616.
He became a soldier in the Parliament army, but quitted the service 1649,
and in 1651 attached himself to George Fox. Soon afterwards, however,
he pretended to inspiration, and committed such extravagances that the
Parliament condemned him to be whipped, branded in the forehead, and
have his tongue bored through with a hot iron. This barbarous sen-
tence was carried into execution at Bristol, after which Nayler was re-
moved to London, and confined in Bridewell, where he remained till 1660,
when he was set at liberty. He died the same year, on his journey into
Yorkshire. — Cooper's Biog. Diet.
3. Burton's Diary. 4. 3 Parl. Hist. 1498.
5. 3 Parl. Hist. 1518.
LIKE OF CHIEF JUSTICE GLYN. 177
Justice of the Upper Bench was renewed, and he took
his seat as a peer in the new parliament, but made no
effort to ingratiate himself with the military usurpa-
tion which followed, foreseeing that it would be short-
lived. On the restoration of the Rump 1 he again
took his seat as member for Westminster, and affected
a zeal for the Presbyterians, who were now the domi-
nant party.
As Monk's2 army approached from the north, hejan. 1660.
1. "The nickname originated," says Isaac D'Israeli, " in derision on
the expulsion of the majority of the Long Parliament by the usurping
minority. The collector of ' The Rump Songs ' tells us, ' If you ask who
named it Kump, know 'twas so styled in an honest sheet of prayer called
the Bloody Rump, written before the trial of our late sovereign ; but the
word obtained not universal notice till it flew from the mouth of Major-
General Brown, at a public assembly in the days of Richard Cromwell.'"
—Jennings' Anec. Hist. Brit. Parl. (Am. Ed.) 7.
2. George Monk, Duke of Albemarle, born in 1608, was the son of
Sir Thomas Monk, of Merton, Devonshire. After fighting in the service
of Holland, he returned to England about the age of thirty. In the civil
war he bore arms for Charles I., and had acquired some reputation as an
able officer when he was made prisoner at Nantwich in 1644 by the
Roundheads, who confined him in the Tower of London more than a
year. Having accepted a commission from the Parliament, he com-
manded a republican army in the north of Ireland between 1646 and 1650.
He contributed to the victory of Cromwell at Dunbar in 1650, and the
next year was left in Scotland as commander of an army, with which he
speedily completed the reduction of that country. In 1653 the Govern-
ment showed their confidence in his skill by selecting him to cooperate
with Admiral Blake in a naval war against the Dutch. He commanded in
the sea-fight where Van Tromp was defeated and killed. In 1654 he was
successful in his efforts to enforce the will and authority of the Protector
in Scotland. At the death of Oliver, in 1658, Monk proclaimed Richard
Cromwell as his successor. When the officers of the army deposed Rich-
ard and restored the Long Parliament, he acquiesced, and retained com-
mand of the army in Scotland. The royalists and republicans solicited
his aid in the impending crisis ; but he kept all parties in suspense by his
dissimulation or irresolution. About the beginning of 1660 he marched
towards London, ostensibly to support the civil power against Lambert's
army. Having cautiously removed from command those whom he dis-
trusted, and prepared the way for the Restoration, he declared for a free
Parliament, which soon assembled, amidst general joy and exultation.
Charles II. was proclaimed King in May, 1660, and rewarded the services
of Monk by creating him Duke of Albemarle. In 1666 Monk maintained
his reputation in a great naval battle against the Dutch. He died in 1670.
— Thomas' Biog. Did.
178 THE COMMONWEALTH.
Cxn?' nac^ a ver>' shrewd guess at the intentions of " honest
George," and thought it did not become him to act
longer as a Judge under a usurped authority. He
I?ere". therefore sent in his resignation of the office of Chief
signs his
office and Justice of the Upper Bench, and strenuously assisted
assists in •
assists in
.
the Resto- in the recall of the exiled royal family. He zealously
ration. J
joined in the vote for the final dissolution of the Long
Parliament ; and, being returned to the Convention
Parliament1 as member for the county of Caernarvon,2
he opposed the motion made by Sir Matthew Hale
for requiring conditions from Charles II. In short, he
was as loyal as any Cavalier. It seems rather strange
that he now printed the speech he had made to induce
Oliver to accept the crown, in the shape of a pam-
phlet entitled " Monarchy asserted to be the best,
most ancient, and legal form of government: in a con-
ference held at Whitehall with the Lord Protector
and a Committee of Parliament, April, 1650." His
object probably was to prove that he had always been
a royalist in his heart. Wood asserts that, in spite of
1. The Convention Parliament is the name given to the assembly
which established the Restoration of Charles II. It assembled April 26,
1660, on the dissolution of the " Rump." It immediately accepted the
Declaration of Breda, and issued an address inviting Charles to accept the
crown. — Low and Pulling 's Diet, of Eng. Hist.
The Convention Parliament, which restored King Charles II., met
above a month before his return : the Lords by their own authority, and
the Commons in pursuance of writs issued in the names of the keepers of
the liberty of England by authority of Parliament. The said Parliament
sat till the 2Qth of December, full seven months after the Restoration, and
enacted many laws, several of which are still in force. But this was for
the necessity of the King, which supersedes all law ; for if they had not
so met, it was morally impossible that the kingdom should have been
settled in peace. And the first thing done after the King's return was to
pass an act declaring this to be a good Parliament, notwithstanding the
defect of the King's writs. It was at that time a great doubt among the
lawyers whether even this healing act made it a good Parliament, and
held by very many in the negative, though it seems to have been too nice
a scruple. And yet, out of abundant caution, it was thought necessary to
confirm its acts in the next Parliament, by statute 13 Car. II. c. 7 and c
14. — Black. Com.
2. 4 Parl. Hist. 8.
LIFE OF CHIEF JUSTICE GLYN. 179
this new-born zeal, Glyn was so obnoxious on account
of what he had done when an ultra-republican, that he
would have been excepted from the indemnity, and,
although not directly concerned in the King's death,
that he would have been brought to trial for high
treason, like Sir Harry Vane l the Younger, if he had
not given a bribe to Lord Chancellor Clarendon.' TT
He gams
However this may be, the ex-Chief Justice was quickly t]je favor
as great a favorite with Charles II. as he had ever"-
been with Oliver. He was not only pardoned, but
created King's Ancient Sergeant ; and, kneeling to kiss
the hand of his legitimate sovereign, rose SIR JOHN
GLYN, KNIGHT. He was again returned for Caernar-
vonshire on the dissolution of the Convention Parlia-*-"- 1661.
ment, and he supported all the measures of the Court
with indiscriminate zeal. "He departed this mortal His death.
life in his house situated in Portugal Row, Lincoln's
1. Sir Henry Vane the Younger, often called Sir Harry Vane, born
in 1612. He studied for a short time at Oxford, from which he went to
Geneva, and returned home a zealous adversary of the liturgy and govern-
ment of the Church of England. For the sake of religious liberty he
emigrated in 1635 to Massachusetts. He was elected Governor of the
colony in 1636. He offended the majority of the colony by his advocacy
of universal toleration, and returned to England in 1637. In November,
1640, he became a member of the Long Parliament, in which he efficiently
promoted the condemnation of the Earl of Strafford by evidence which he
furnished. He found in his father's cabinet a memorandum of a council at
which Strafford had proposed to employ the Irish army to reduce England
to obedience. Vane was a leader of the Independents, and a friend of Milton.
On the death of Pym (1643) the chief direction of civil affairs devolved
on Vane. He disapproved the policy of the execution of the King, but
expressed no opinion of its abstract justice. In February, 1649, he was
appointed a member of the Council of State, and in the next month was
placed at the head of the Naval Department. The efficiency and victories
of the Navy are ascribed partly to his administrative talents. He op-
posed the usurpation of Cromwell, who, as his soldiers were dissolving
the Parliament, in April, 1653, exclaimed, " The Lord deliver me from
Sir Harry Vane ! " Vane afterwards passed several years in retirement.
At the Restoration he was excepted from the indemnity or act of amnesty.
Having been confined in prison about two years, he was tried for treason
in June, 1662, and convicted. — Thomas' Biog. Diet,
2. When the Athenae came out, after Lord Chancellor Clarendon's
death, his son sued the author for this calumny in the Vice-Chancellor s
Court, and had judgment against him.
ISO THE COMMONWEALTH.
cg,*p- Inn Fields, near London, on the ijth of November,
1666, and was buried with great solemnity (being
accompanied to his grave by three heralds of arms) in
his own vault under the altar in the chancel of the
church of St. Margaret, within the city of Westmin-
ster." *
The office of Chief Justice of the UPPER BENCH
Jan. looo.
Newdt- having become vacant by the resignation of Glyn,
justice. although the supreme power really was in the hands
of Monk, who was approaching London at the head
of a large army, the Rump resolved that, for the due
administration of the law, a new Chief Justice should
Jan. 17. be created. Accordingly an order was made, both by
the Council of State and by the House of Commons,
to confer the office on SIR RICHARD NEWDIGATE ; and,
as he was regularly installed in it, I must take some
notice of him, notwithstanding that the period for
which he held it was very brief.
Hisprofes- He was of a respectable Warwickshire family. He
studied at Oxford, and he was called to the bar at
Gray's Inn. I find no public notice of him till the
I. Athenae, iii. 754.
The Church of St. Margaret, Westminster, is the especial church of
the House of Commons, and, except the Abbey and St. Paul's, has the
oldest foundation in London, having been founded by the Confessor
and dedicated to Margaret, the martyr of Antioch, partly to divert
to another building the crowds who inundated the Abbey church, and
partly for the benefit of the multitudes of refugees in sanctuary.
The church was rebuilt by Edward I., again was reedified in the time
of Edward IV. by Sir Thomas Billing and his wife Lady Mary, and it has
been greatly modernized in the last century. Here the Fast Day Sermons
were preached in the reign of Charles I.; and here both Houses of Par-
liament, with the Assembly of Divines and the Scots Commissioners,
met Sept. 25, 1643, and were prepared by prayer for taking the Covenant.
Here Hugh Peters, "the pulpit buffoon," denounced Charles as "the
great Barabbas of Windsor," and urged Parliament to bring the King
"to condign, speedy, and capital punishment." — Hare's Walks in Lon-
don, vol. i. p. 391-
SIR HARRY VANE.
AFTER SIK PETER LELY.
LIFE OF CHIEF JUSTICE NEWDIGATE. l8l
year 1644, when he was appointed junior counsel for
the Commonwealth in certain state prosecutions which
were then going on, having Prynne and Bradshaw
for his leaders. I suspect that he was a hard-headed
special pleader, without display or pretension, who,
delighted with the smell of old parchment, was indif-
ferent about politics and literature ; but who was
complete master of his own craft, and who could be
relied upon with absolute confidence for drawing an
indictment or arguing a demurrer. He never was
a member of the House of Commons, neither sitting
in the Long Parliament, nor in any of the whimsical
deliberative assemblies called either by Oliver or
Richard.
The next we hear of him is as counsel for Glyn,
Hollis, and the rest of the eleven members who were
impeached for high treason because they opposed the
" Self-denying Ordinance." He drew and signed their
answer, which seems to have been a service of some
danger, as Whitelock 1 greatly rejoiced in being re-
leased from it. The case never came to a hearing, the
object being only to frighten the leading Presbyterians
— not to hang them.2 Although opposed to the Gov-Hebe-
ernment, on account of his high reputation as a lawyer Judge
he was called upon, along with Pepys and Wyndham.Cromweii.
to become a Judge.3 They at first all declined the
I. Bulstrode Whitelocke, born in London, 1605. He sat in the Long
Parliament, and was chairman of the committee for drawing up the
charges against the Earl of Strafford. He adhered steadfastly to the re-
publican party, but saved the royal library and collection of medals from
being sold, and rendered other services to religion and learning in that tur-
bulent period. In 1648 he became one of the commissioners of the Great
Seal, but took no part in the proceedings against the King. In 1653 he
went on an embassy to Sweden, where he concluded a treaty between the
two countries. Whitelocke, though much in the confidence of Cromwell,
assisted in displacing his son from the Protectorship. He survived the
Restoration, and died at Chilton Park, in Wiltshire, Jan. 28, 1676. —
Cooper's Biog. Diet.
2. Memorials, 259.
3. Whitelock, 591.
182 THE COMMONWEALTH.
CHAP, honor, and, being summoned into the Protector's pres-
ence, expressed doubts as to his title, and scruples as
to whether they could execute the law under him.
Whereupon he said, in wrath, " If you gentlemen of
the red robe will not execute the law, my redcoats shall." '
Out of dread of what might happen either to the state
or to themselves, they are said all to have exclaimed,
" Make us Judges; we will with pleasure be Judges."
Hisinde- Newdigate, in consequence, became a Puisne Jus-
roSdurt. tice of the Court of King's Bench, but was too honest
long to retain the office. Presiding at the assizes for
the county of York, when Colonel Halsey and several
other royalists were tried before him for levying war
against the Lord Protector, he observed that
" although by 25 Ed. III. it was high treason to levy
war against the King, he knew of no statute to extend
this to a Lord Protector ; " and directed the jury to
acquit the prisoners.
Heisdis- In consequence, a mandate from the Protector in
May 15, Council came to the Lord Commissioners of the Great
Seal for a superseded* to dismiss him.2
He returned to the bar, and practised with great
success for some years.
Jan. 15, He was restored to the Bench, as a Puisne Judge,
when the Protectorate was abolished, and the govern-
ment was again carried on in the names of the " Keep-
jan 17. ers 0{ the Liberties of England." 3 Two days after, an
He D6- . _ f~^\ • e
comes ordinance passed by which he was constituted " Chief
tice. Justice of the Upper Bench." The object was, in the
present crisis, to select an individual who could give
no offence to any political party, and who must be
acceptable to all from his acknowledged learning and
integrity.
1. According to another edition of the story he said, " If I cannot rule
by red gowns, I will rule by red coats."
2. Whitelock, 625.
3. Whitelock, 678.
LIFE OF CHIEK JUSTICE NEWD1GATE. 183
He filled the office with entire satisfaction to the
Jl
public till the 2gth of May following, when, Charles II.
making his triumphal entry into London amidst uni-"e er
versal rejoicings, the Commonwealth Judges were at the Re
toration.
considered as superseded, and ceased to act. A-D- 166°-
The only case of much importance which came sir
before him was that of Sir Robert Pye, who having Case!
been committed to the Tower by the House of Com-
mons, his counsel moved for a habeas corpus to dis-
charge him. Ludlow says, " So low were the affairs
of the Parliament, and their authority so little re-
garded, even in Westminster Hall, that Judge Newdi-
gate, demanding of the counsel for the Commonwealth
what they had to say why it should not be granted,
they answered that they had nothing to say against it ;
whereupon the Judge, though no enemy to monarchy,
yet ashamed to see them so unfaithful to their trust,
replied, that if they had nothing to say, he had ; for
that Sir Robert Pye being committed by an order of the
Parliament, an inferior court could not discharge him." '
Newdigate had always borne his faculties so meekly
that in the act immediately passed "for confirming all
writs and process in the names of the Protectors,
Oliver and Richard, or of the Keepers of the Liberties
of England," 2 it would have been graceful to have in-
troduced a clause ratifying his appointment, or to have
reconstituted him a Judge under the royal Great Seal
now held by the Earl of Clarendon ; but he was so
little of an intriguer that he was removed from his
1. Ludlow, p. 321. The following is a different report of the case by
Siderfin : " Sir Ro. Pye et M. Fincher esteant commit al Tower move
per lour councel pro Hab. Corp. Et al jour del return ils appiert in
court. Et fuit move per lour councel, que ils serra baile avant este long-
temps imprison sans ascun prosecution fait vers eux. Et fuit dit per le
Court que coment ils fuer' imprison pur suspicion de treason, que ils ne
poent deny al eux baile in cas que le counsel del Commonwealth ne voil
proceed vers eux ; car est le birthright de chascun subject destre try ace.
al Ley del terre." — Sid. 179.
2. 12 Car. II. c. 4.
184 THE COMMONWEALTH.
CxnP' °^ce with seeming disgrace, while his predecessor,
Glyn, who had been instrumental in overturning the
monarchy, and had behaved with the utmost harshness
to many royalists, was immediately basking in the sun-
shine of Court favor.
Newdi- He returned to the bar, and was a second time
career after called to the degree of the coif, along with other ser-
t'ion. ef s'"geants, whose first writs had been issued by the " Lord
Protector," or the " Keepers of the Liberties of Eng-
land." When he saw that there was no chance of his
being restored to the bench, and found that he was too
old to wrangle with juniors trying to push themselves
into notice, he retired into the country and amused
himself with rural sports. Still he was not a keen
politician, and he associated chiefly with the Cavaliers.
By Colonel Halsey, whose life he had saved, he was
introduced, in extreme old age, to Charles II., and he
His death, was created a baronet. He died on the i4th of Octo-
ber, 1678. On his death-bed he perceived, by the
signs of the times, that another revolution was ap-
proaching, although no one could then tell whether it
would lead to a constitutional monarchy or to a re-
establishment of the Commonwealth.1
I. See Noble's Family of Cromwell, vol. ii. On the east wall of Hare-
field Church, in Middlesex, is a monument to Sir Richard Newdigate,
Chief Jus- with the following inscription : " M. S. Ricardi Newdegate, servientis
d'Sate'sT" ad legem et baronetti. filii natu minimi Joannis Newdegate in agro War-
epitaph, wicensi militis. Natus est 17010 die Septembris A.n. 1602. et post tyro-
cinium in Academia Oxoniensi feliciter inchoatum juris municipalis studio
in Graiorum hospitio reliquum temporis impendit ; vitam degit animi for-
titudine et mira sequitate spectabilem ; summo candore et morum snavi-
tate ornatus erat, nee minore probitate et prudentia. Deplorandis illis
inter Carolum primum regem et ordines regni controversiis non omnino
admiscuit, nee adduci potuit ut prasdiorum repis vel illorum qui ob ejus
parte steterunt emptione rem snam contaminaret ; sed nobiliore quamvis
minus expedito ad divitias contendebat itinere : indefesso nempe studio et
labore, summaque in arduisfori negotiis peritia etfide ; quibus ita claruit,
ut reempto hujus loci manerio, antiquae suae familiae pene collapsae, atque
ex veteri Newdegatorum in Surria prosapia oriundae, sedi plurima adjecit
latirundia, quas null;e viduarum lachrymae nee diri orphanorum gemitus
infausto omine polluerunt." — Lysoni Environs of London.
LIFE OK CHIEF JUSTICE OLIVER ST. JOHN. 185
CHAPTER XIII.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
I MUST complete my list of Commonwealth Chief CHAP.
XIII
Justices with the name of OLIVER ST. JOHN, and I am Glance at
well pleased with an opportunity of tracing his career acter of
and portraying his character. He has been noticed john.r
by historians, but he has not occupied the prominent
position which is suitable to his merits or his crimes.
With the exception of Oliver Cromwell, he had more
influence on the events which marked the great con-
stitutional struggle of the i;th century than any
leader who appeared on the side of the Parliament.
He was the first Englishman who ever seriously
planned the establishment of a republican form of gov-
ernment in this country ; he adhered resolutely to his
purpose through life ; and to attain it he took advan-
tage, with consummate skill, of all events as they
arose, foreseen and unforeseen, and of the various
incongruous propensities and conflicting passions of
mankind. When the ancient monarchy had been over-
turned, he resisted the establishment of tyranny under
a new dynasty ; and finally, rather than desert his
principles, he was willing to spend his old age in exile
and penury. At the same time, while he was a distin-
guished statesman he was an able lawyer, — not like
many who have been called to the bar pro for -md, and
having gone a single circuit have entirely abandoned
their profession for politics, but, sounding all the
depths of the law, he showed himself worthy to be
trusted in the most important causes ever argued be-
fore an English tribunal ; and he himself for years dis-
1 86 LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
CHAP, tributed justice as a great and enlightened magistrate.
There were, indeed, dark shades in his character, but
these only render it the more worthy of our study.
QU. as to It is a curious circumstance that there should be a
dispute about the parentage of such a distinguished
individual, who flourished so recently. Lord Claren-
don,1 who knew him intimately from his youth, who
practised with him in the Court of King's Bench, who
sat in the House of Commons with him, and who was
both associated with him and opposed to him in party
strife, repeatedly represents him as illegitimate ; and
states that he was " a natural son of the house of Bull-
ingbrook." 2 Lord Bacon's account of his origin is
equivocal — calling him " a gentleman as it seems of
an ancient house and name." 3 By genealogists and
heralds a legitimate pedigree is assigned to him, de-
ducing his descent in the right male line from William
St. John, who came in with the Conqueror ; but some
of them describe him as the son of Sir John St. John
of Lydiard Tregose in Wiltshire, and others as the son
of Sir Oliver St. John of Cagshoe in Bedfordshire,
and they differ equally respecting his mother.4 Lord
Clarendon could hardly be mistaken on such a point,
and I cannot help suspecting that the contrary asser-
tions proceed from a desire to remove the bar sinister
from the shield of a Chief Justice.
He was born in the latter end of the reign of Queen
Elizabeth. To whomsoever he might be related, or
by whomsoever begot, he had from nature wonderful
His educa- power of intellect, and great pains were taken with his
education. He received much early kindness from
the Earl of Bedford, as well as the Earl of Boling-
broke ; and he was brought up with the young
1. See Lives of the Lord Chancellors.
2. Rebellion, i. 327.
3. Works, 429.
4. See Noble's Memoirs of the Cromwell Family, ii. 16.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 187
Russells and St. Johns who were to support the great- C,PAP<
ness of these two noble houses.
Some say that he was educated at Catherine Hall,
Cambridge, and others at Trinity College, Oxford ;
but the former statement is much the more probable.1
Although we certainly know that he studied law at He studies
. , . law at Lin-
Lincoln s Inn, the exact dates ot his entry, and call to coin's inn.
the bar there, are not ascertained, from the defective
state of the books of the Society at that period.3
We have ample notices of his appearance and
habits soon after he was called to the bar, which
describe him as thoughtful and moody, never partak-
ing in youthful amusements, and seldom even allowing
his features to relax into a smile. He read much and
reflected more. Though a deep lawyer, and almost
always to be found at his chambers when he was not
attending the courts, he had nothing showy in his
manner ; and the attorneys ascribed his taciturnity to
I. Fasti, i. 453. At the request of a friend, Dr. Philip Bliss, Principal
of St. Mary Hall, and Keeper of the Archives of the University, has,
though in vain, made a diligent search for Oliver St. John's matriculation
at Oxford. He thus politely prefaces a letter stating the result of his in-
quiries : " Lord Campbell has a claim on me, and all who have records in
their custody, as his work may be considered a valuable contribution to
our national biography." He then states, that, after a search of several
days, the only St. Johns he can find matriculated from 1570 to 1614 are
Oliver St. John of Trinity College, matriculated Dec. 20, 1577, son of
John St. John, Esq., being the Lord Deputy of Ireland in 1616, and
created Baron Tregoze in 1626, represented by Collins as having died in
1630, aged seventy ; George St. John, the son of a knight, born in the
county of Wilts, matriculated of Trinity College April 3, 1601, aged fif-
teen ; and William St. John, the son of an esquire, born in the county of
Hants, matriculated of Magdalene College May 8, 1600, aged sixteen.
The matriculation records of Cambridge at this period are so defective,
that the non-appearance of a name in them affords hardly any argument ;
and Wood's assertion, that our Oliver was of Catherine Hall, is strongly
corroborated by the fact of his having been afterwards Chancellor of the
University of Cambridge.
2. There are entries respecting an Oliver St. John (without any desig-
nation as to parentage) who is stated to have been admitted in 1630, and
to have been called to the bar on the 3oth of January, 1637(8) ; but this
cannot refer to our Oliver, who must then have been forty years of age,
and was well known as a lawyer and a politician.
188 LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
CHAP. duinesS; so that for a considerable time he had hardly
Hiswantofany practice, either on the circuit or in London. But
success at . . ......
the bar. those who were intimately acquainted with him fore-
saw that he must one day attract general admiration.
How his attention was first directed to politics is
unknown, but it is certain that, from early youth, he
He is a was impressed with the notion that the Stuart family
publican, was systematically engaged in a plan to subvert pub-
lic liberty ; he saw the mischiefs arising from monopo-
lies, which were still persisted in, notwithstanding the
repeated promises to abolish them ; and, above all,
he was alarmed by the danger of parliaments being
entirely discontinued, if the pretension should be
acquiesced in of raising money by the exercise of the
prerogative. It is supposed that, during a long vaca-
tion, he had taken a trip to Holland, and that it was
from seeing with his own eyes the respect for property
as well as personal liberty, and the comfortable and
contented condition of all classes in that country he
was first imbued with a taste for a republican form of
government.
A.D. 1615. However this may be, it is certain that James I., in
the interval of parliaments, having made an attempt to
raise a tax under the name of a " Benevolence," or
compulsory loan which was never to be repaid, — the
amount exacted from the supposed lender being
assessed by the borrower, — Oliver St. John, still a
mere stripling, resolved to stir up resistance to it ; and
with this view he wrote and published " A Letter to
the Mayor of Marlborough," citing the various stat-
utes, from MAGNA CHARTA downwards, by which the
imposition was condemned, and denouncing it as con-
trary to law, reason, and religion. Sir Francis Bacon
was then the Attorney General, and impatient to
ecut'eVin05' grasp the Great Seal. That he might recommend
chamber, himself to the Court, he prosecuted this indiscreet
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 189
boy in the Star Chamber, for a libel, and had him
arrested while the suit was depending. When the
hearing of the case came on, he made a speech which April 29.
might well fix the hatred of tyranny in the breast of
the young patriot :
" This gentleman," said he, " hath, upon advice, not sud- Bacon's
........ . . speech at
denly by the slip of his tongue — not privately, or in a corner his prose-
— but publicly — as it were to the face of the King's ministers, cu
slandered and traduced the King our sovereign, the law of the
land, the parliament, and infinite particulars of his Majesty's
worthy and loving subjects. Nay, the slander is of that nature,
that it may seem to interest the people in grief and discontent
against the state ; whence might have ensued matter of mur-
mur and sedition. So that it is not a simple slander, but a
seditious slander, like that the poet speaks of — Calamosque
armare veneno — a venomous dart that hath both iron and
poison." He then at great length justified the Benevolence,
and commented bitterly on the alleged libel. Thus he con-
cluded : " Your menace, that ' if there were a Bollingbroke (or
I cannot tell what), there were matter for him,' is a very sedi-
tious passage. You know well that, howsoever Henry IV. 's
act by a secret providence of God prevailed, yet it was but an
usurpation ; and if it were possible for such a one to be this
day, wherewith it seems your dreams are troubled, I do not
doubt his end would soon be upon the block, and that he
would sooner have the ravens sit upon his head at London
Bridge, than the crown at Westminster ; and it is not your inter-
lacing with your ' God forbid /' that will salve these seditious
speeches. If I should say to you, for example, ' Mr. Oliver
St. John, if these times were like some former times of King
Henry VIII., which God forbid! Mr. Oliver St. John, it
would cost you your life ! ', I am sure you would not think
this to be a gentle warning, but rather that I incensed the
Court against you. And this I would wish both you and all
to take heed of — how you speak seditious matter in parables,
or by tropes, or examples. There is a thing in an indictment
called an innuendo ; you must beware how you beckon or make
signs upon the King in a dangerous sense. As yet, you are
graciously and mercifully dealt with."1
i. 2 St. Tr. 899. Bacon was so delighted with this speech, that he
190 LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
CxiiiP' After various members of the court had followed
in the same strain, supporting the legality of Benevo-
lences, and denouncing as sowers of sedition and
traitors all who questioned the right to levy them, a
day was appointed for condemning the defendant to
punishment, and then hearing him. This was looked
forward to with great interest ; and Lord Chancellor
Ellesmere, who was dying, expressed a wish that the
delivery of the sentence might be the last act of his
official life. Fine, pillory, and perpetual imprison-
ment were expected by St. John without dismay.
But, before the day arrived, his prison doors were
thrown open to him. He was told that Government
The prose- dropped the prosecution, in the hope that indulgence
dropped, would bring him to a right mind, and that the authori-
tative declaration of the law by the Court of Star
Chamber would for ever after prevent attacks on the
inalienable prerogatives of the Crown. The real
motive for this apparent lenience was never explained.
The proceeding had no effect on the obdurate mind
of St. John but to make him more cautious. He
never forgave the court the first assault, and, hoping
before he died to see his country free, he resolved to
bide his time.
A. D. 1628. He remained quiet during the rest of this reign
member of and the commencement of the next, but he was re-
third par- turned to the House of Commons as member for the
county of Bedford in Charles's third parliament, and
thenceforth he was the -life and soul of the country
party. Still he made no display. He was nothing of
a rhetorician ; he hardly ever spoke in debate, and
when he did open his mouth it was only to utter a few
vices to the pithy sentences. But he met the popular leaders in
consultation ; he furnished them with precedents, he
sent a copy of it to the King, saying, " I persuade myself I spoke it with
more life."
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
drew their addresses and resolutions, and he gave
them discreet counsel, which they valued and fol-
lowed.
Although he had been mainly instrumental in
carrying the " Petition of Right," and extorting the
royal assent to it in due form, and the Court, aware
of his influence, would have been well pleased to have
punished him after the parliament was dissolved, it
was found impossible to include him in the prosecu-
tion instituted against Sir John Eliot, Denzil Hollis,
and other patriots, for making seditious speeches in
parliament.
But he anxiously watched the expedients now
adopted to introduce despotism and to reconcile men's
minds to the loss of liberty. One of these was to cir-
culate a book, entitled " A Proposition for his Majesty's
Service, to bridle the Impertinence of Parliaments."
This had been written by Sir Robert Dudley l at
Florence, and recommended the establishment in
England of Louis XL's system of fortifications, garri-
sons, passports, and taxes, whereby he had completely
put down the meetings of the States General in France,
and had rendered himself absolute in that kingdom.
St. John having procured a copy of it showed it to the
Earl of Bedford, Selden, and other friends, and was with re-
gard to
preparing an answer to it denouncing the profligate Dudley's
design which it disclosed, when the King and his min-
i. Sir Robert Dudley, son of Robert Earl of Leicester, by the Lady
Douglas Sheffield, was born at Sheen, Surrey, 1573- His father, though
he treated him as illegitimate, left him the bulk of his estate after the
death of his uncle Ambrose. In 1594 he made a voyage to the South
Seas. In 1605 he commenced a suit to prove his legitimacy ; but the
Countess Dowager of Leicester filed an information against him and others
for a conspiracy, on which he went to Florence, where the Grand Duke
appointed him Chamberlain to his wife, the Archduchess of Austria, sister
to Ferdinand II. That Emperor created him a Duke of the Holy Roman
Empire, on which he assumed the title of Duke of Northumberland. He
drained the morass between Pisa and the sea, by which Leghorn became
one of the first ports in the world. He died near Florence, September,
1639. — Cooper's Biog. Diet.
192 LIFE OF QHIEF JUSTICE OLIVER ST. JOHN.
CxmP' isters> t° wai"d °ff tne disgrace that was about to be
heaped upon them, pretended that they highly disap-
He is as^j1 proved of the book, and actually preferred an informa-
m the star tion in the Star Chamber against the Earl of Bedford.
Chamber.
Selden, and St. John for composing and publishing a
seditious libel, entitled " A Proposition for his Majes-
ty's Service, to bridle the Impertinence of Parliaments."
May 29, This cause coming to a hearing, " a great presence
The GOV- of nobility being in court," ' the Attorney General with
umronhy gravity opened the charge, and explained how the
conceafYts defendants were clearly guilty, because the book was
p"ansb'e libellous, and they had not only read it, but had shown
it to each other, which, in point of law, amounted to a
publication ; whereas it was the duty of every one who
met with a libel, without reading it through, immedi-
ately to lay it before the Secretary of State, or some
other magistrate, so that its circulation might be
stopped and the author brought to punishment. But,
before Mr. Attorney had concluded his oration, the
Lord Keeper Coventry, who was presiding, declared
that the Queen was just brought to bed of a son
(afterwards Charles II.) ; and that it having pleased the
Great Justice of Heaven to bless his Majesty and his
kingdom with a hopeful prince, the great joy and long
expectation both of the King and kingdom, his most
St. John's sacred Majesty directed the Court to proceed no
tion again further with this prosecution, but that the book should
be burnt by the hands of the common hangman, as
"seditious and scandalous both to his Majesty and the
state."2 Lord Clarendon says, " It being quickly evi-
dent that the prosecution would not be attended with
success, they were all, shortly after, discharged." 3
St. John felt no gratitude for being again released
from impending peril, but vowed the destruction of a
Government which could form such culpable plans,
1. 3 St. Tr. 397.
2. Sic, 3 St. Tr. 397. 3. Rebellion, i. 287.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 193
and resort to such unworthy artifices to conceal them.
He was the confidential adviser of those who were
prosecuted by the Government, but as yet he never
appeared for any of them in court, and it was supposed
that, although a very sensible man, he had no forensic
talent.
At last, Ship-money came up. He was counsel for*-D. 1637.
, He is coun-
Hampden, and he delivered the finest argument that sei for
had ever been heard in Westminster Hall. Having in the case
. . . of ship-
written a very learned opinion, m which he demon- money.
strated the illegality of this imposition, and upon which
payment of it had been refused, — having drawn the
demurrer to the information filed in the Exchequer to
recover the famous 2os., — and evidently understanding
the subject better than any man in England, Hampden
placed entire confidence in his ability, notwithstanding
his want of practice, and required him to plead as his
leading counsel in the Court of Exchequer Chamber,
where the case was to be heard before all the Judges.
His argument, which lasted two whole days,1 may His
' famous
now be perused with interest. We are chiefly struck argument.
with the calm, deliberate, business-like tone which per-
vades it. He always speaks respectfully of the just
prerogatives of the Crown, and abstains from any
triumph when he has exposed the fallacies of his
antagonists ; but, by a review of the principles of the
English constitution, and of the statutes passed upon
the subject from the Saxon times to the " Petition of
Right," he demonstrates that, while an ordinary hered-
I. Although the length of speeches at the bar has certainly grown
much of late years, it is some comfort to know that our ancestors some-
times suffered under greater tediousness than has ever been inflicted on
the present generation. St. John, for the defendant, having taken two
whole days of the time of the Court ; Sir Edward Littleton, the Solicitor
General, took for the Crown three ; Mr. Holborne, for the defendant,
took four ; and Sir John Banks, the Attorney General, for the Crown,
took three. We are not told how long the Judges spoke in giving their
opinions; but, from their enormous lengthiness, they must have occu-
pied many days. — 3 St. Tr. 826-1315.
194 LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
itary revenue belonged to the King, extraordinary
supplies could only be obtained by a parliamentary
grant; that if any power of taxing the subject had
ever belonged to the King, it had been solemnly
renounced and abrogated ; that the demand upon the
county of Buckingham to furnish the means for fitting
out a ship of war was an entirely novel invention ; and
that if such a demand could be made as often as the
King should say it was necessary, the property of all
his subjects was held at his pleasure. Although news-
paper reporting was still unknown, there was then a
communication of intelligence by means of coffee-
houses, clubs, and news-letters, more rapid and gen-
eral than we should at present think possible without
the instrumentality of the press ; and in a few weeks
the fame of this speech was spread all over the king-
its effect. dom, producing a general resistance to the tax, which
had hitherto been resisted by Hampden alone. St.
John, who had been little known beyond a small circle
of private friends and political associates, was now
celebrated by all mouths, and was regarded as the
•great legal patron of the oppressed. Lord Clarendon,
after observing that " he had not been taken notice of
for practice in Westminster Hall till he argued the case
of Ship-money," is obliged to acknowledge, although
with a sneer, that "this argument gave him much
reputation, and called him into all courts and to all
causes where the King's prerogative was most con-
tested ; " adding this very graphic little sketch of his
appearance, manners, and habits : " He was a man
reserved and of a dark and clouded countenance, very
proud, and conversing with very few, and those men
of his own humor and inclinations." *
A.D. 1637 Of course, his practice was now chiefly in the Star
—1640. Chamber, which was attended with more Mat than
I. Rebellion, i. 287.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 195
profit, and was by no means safe ; for the advocate of
a supposed libeller was regarded as '• an accomplice
after the fact." On the mere suspicion that he was
concerned in drawing Burton's1 answer, St. John's
chambers in Lincoln's Inn were searched, and all his
papers were carried off.2
Hyde, Hollis, Whitelock, Hampden, and the other £{?0™*
friends with whom St. John was associated, while they views-
strongly condemned the system of government which
had been established, were all attached to the mon-
archy, and, as yet, only wished that parliaments should
be restored, and that abuses should be corrected. But
at this era, if not earlier, it is certain that St. John him-
self had become a determined republican, and that he
thought there was no security for freedom but in a
democratic revolution. To this he looked forward
with eagerness ; he regretted, or he joyfully hailed,
events as they seemed to retard or favor it ; and he
exerted all his own energy and prudence to insure the
ultimate success of what he denominated the " good
1. Henry Burton, a Puritan divine, born 1579 at Birdsall, Yorkshire.
He was educated at St. John's College, Cambridge, where he proceeded
M.A., though he took his B.D. degree at Oxford. Afterwards he became
tutor to the two sons of a certain noble knight, by whose interest he was
made Clerk of the Closet to Prince Henry, during whose lifetime he com-
posed a Treatise of Antichrist. After the death of Prince Henry he
became Clerk of the Closet to Prince Charles, and at the age of thirty
entered the ministry. After seven years' service, however, he was com-
pelled to leave the Court in consequence of a dispute with the bishops.
After this he obtained the rectory of St. Matthew, Friday Street, and em-
ployed himself in preaching and writing. He was summoned to the Star
Chamber for printing without license a book against bowing at the name
of Jesus; and Archbishop Laud prohibited him from preaching, though
this sentence was afterwards set aside by the Court of Arches He was
summoned again for writing "The Baiting of the Pope's Bull." A ser-
mon he preached on the 5th of November caused him to be exposed in the
pillory June 14, 1637. He was also sentenced to lose both his ears, and
to be imprisoned for life in Lancaster Jail, but Guernsey was afterwards
selected as theplace of his confinement. In November, 1640. an order came
from the Parliament for his release, and he was soon afterwards restored
to his living. Died Jan. 7, 1648. He wrote many pamphlets, chiefly
controversial. — Cooper's Biog. Diet.
2. 2 Stafford's Letters, 85.
196 LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
CHAP. cause." His own personal sufferings from a violation
of the law, although they preyed much upon his mind,
had been slight, and could afford little apology for
schemes which might introduce public confusion ; but,
before we condemn him with very great severity, we
must recollect that parliaments had now been sus-
pended for nearly eleven years, contrary to a statute
requiring the King to call a parliament at least once
a year, — that there was a fixed determination against
ever calling another parliament in England, — that
other taxes as well as Ship-money had been imposed
and levied by the royal authority alone, — that a power
was assumed of legislating on all subjects by royal
proclamation, — that sentences of unprecedented cru-
elty had been inflicted upon those who stood up in
defence of the constitution, — that this system of gov-
ernment had been established immediately upon the
" Petition of Right " being added to the statute-book,
— and, above all, that the following doctrine was
openly avowed, and acted upon — " all statutes which
encroach upon the essential prerogatives of the Crown
are void." While monarchy existed, all remedy
seemed hopeless.
For a long time, despotism (then called by the cant
name of " Thurrough ") was triumphant, and it would
have been permanently established in England but for
the indiscreet attempt to introduce episcopacy into
His delight Scotland. With rapture did St. John observe the
at the in-
surrection insurrection in that country, — the march of a Scottish
land. army to the south,— the flight of English troops before
the invaders, and the necessity to which the King was
reduced of again calling a parliament. He himself
was returned for Totness.
A.D. 1640. He took little part in the debates of the " Short
"Jc'tTt'he Parliament," which met on the isth of April, 1640, and
pfdiart was dissolved on the 2d day of the following month.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 197
He was at first alarmed by observing the loyalty and C^T-
moderate disposition of the members, but was much mem," and
his joy at
reassured by the rashness and violence of the King's its abrupt
dissolu-
advisers. He inflamed the dispute respecting thet'°n.
priority to be given to supply, or to grievances ; and
he was suspected of being in collusion with Sir Harry
Vane ' the Elder, who, being then in the King's service
as Secretary of State, prevented an accommodation
which had nearly been brought about, by declaring
that " no supply would be accepted if it were not in
the proportion and manner proposed in his Majesty's
message." On the day of the fatal dissolution, as we
are informed by the noble historian, " it was observed
that, in the countenances of those who had most op-
posed all that was desired by his Majesty, there was
a marvellous serenity : nor could they conceal the joy
of their hearts ; for they knew enough of what was to
come, to conclude that the King would be shortly com-
pelled to call another parliament ; and they were sure
that so many unbiassed men would never be elected
again." To show who the person was to whom he
chiefly referred, he gives us this most interesting
dialogue :
" Within an hour after the dissolving, Mr. Hyde met Mr. Ciaren-
St. John, who had naturally a great cloud in his face, and S°r"psti0n"
very seldom was known to smile, but then had a most cheer- of hls i0?-
ful aspect, and seeing the other melancholic, as in truth he
was from his heart, asked 'what troubled him?' — who
answered, ' that the same that troubled him, he believed
troubled most good men ; that in such a time of confusion, so
I. Sir Henry Vane, born in Kent 1589. He received the honor of
knighthood from James I., who also made him Cofferer to Prince Charles;
and on the accession of his royal master to the throne Vane was made a
member of the Privy Council. He was also sent on some embassies ; and
when the King went to Scotland Sir Henry entertained him at Raby Castle,
his seat in Durham. In 1639 he was made Treasurer of the Household,
and soon after principal Secretary of State; but on joining in the prosecu-
tion of the Earl of Strafford he was removed from all his places. Died
1654. — Cooper's Biog. Diet.
198 LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
CHAP. wise a parliament, which alone could have found remedy for
it, was so unseasonably dismissed : ' the other answered with
a little warmth, ' that all was well, and that IT MUST BE WORSE
BEFORE IT COULD BE BETTER, and that this parliament never
could have done what was necessary to be done.' "
Clarendon subsequently brings a charge of treach-
ery against St. John, along with Pym and Hampden,
for defeating the measures which ought to have been
taken against the Scotch ; but does not support it by
any sufficient evidence.2
As St. John had foreseen, it soon became necessary
to call another parliament ; and the members returned
to it were much more to his mind. He again repre-
sented the borough of Totness.
NOV. 1640. When the Long Parliament met, he still avoided
oratorical display, but soon disclosed to the observing
his " dark, ardent, and dangerous character." 3 He
drew the Resolutions against Ship-money ; and he
was a member of the secret committee appointed to
frame the articles of impeachment against the Earl of
Strafford, along with Pym, Hampden, Hollis, Digby,
Whitelock, Stroud, Earle, Selden, Maynard, Palmer,
and Glyn.4 Whitelock, distinguished for moderation,
was put into the chair; but St. John was by far the
most active of the whole in devising the charges, and
in collecting evidence to support them.
Charles I., to save the life of his favorite, now con-
templated a change of his ministers ; and an arrange-
ment was actually made for the introduction of the
most influential of the popular leaders into office. The
Earl of Bedford was to be Lord Treasurer ; Pym,
Chancellor of the Exchequer; Hollis, Secretary of
1. Rebellion, i. 218.
2. Rebellion, i. 228.
3. Hume. " Here was known the dark, ardent, and dangerous char-
acter of St. John."
4. Whitelock, 39.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 199
State; Lord Say, Master of the Wards; Hampden,
tutor to the Prince of Wales; and Oliver St. John,
Solicitor General. Lord Clarendon says that this last
appointment was recommended by the Earl of Bed-
ford, "which his Majesty readily consented to; hoping
that, being a gentleman of honorable extraction (if he
had been legitimate), he would have been very useful
in the present exigence to support his service in the
House of Commons, where his authority was then
great ; at least, that he would be ashamed ever to
appear in any thing that might prove prejudicial to
the Crown."1
At this time there was a move in the law by the n'e is'ma
flight of Lord Keeper Finch,— when the Great Seal ^"tor
was delivered to Sir Edward Littleton ; Bankes was
made Chief Justice of the Common Pleas ; and Her-
bert was promoted to be Attorney General. On the
2gth day of January, 1641, a patent actually passed,
constituting Oliver St. John Solicitor General ; and he
took the oath of allegiance, and the oath of office, by
which he swore to give faithful advice to the King, to
plead for him in all causes, and to suffer nothing to be
done to his detriment. The Earl of Bedford, who had
conducted the negotiation, dying soon after, it went
off, and none of the other appointments took place.
St. John, however, remained Solicitor General, "and
he became immediately possessed of that office of
great trust ; and was so well qualified for it, at that
time, by his fast and rooted malignity against the He con-
Government, that he lost no credit with his party, [j^
out of any apprehension or jealousy that he would
change his side, — and he made good their confidence ;
not in the least degree abating his malignant spirit, or
dissembling it ; but with the same obstinacy opposed
every thing which might advance the King's service
i. Rebellion, i. 326.
200
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
CHAP.
XIII.
His con-
duct as
Solicitor.
His atro-
cious pro-
ceedings in
the prose-
cution of
Lord
Stratford.
when he was Solicitor, as ever he had done be-
fore.1
How such an office should be held by one in active
and open hostility to the Government, it puzzles us,
who live in quiet and regular times, to understand.
The King remained at Whitehall for more than a
twelvemonth after ; — and during all this time there
must have been business for a law officer to transact
with the ministers of the Crown and with his col-
league. Herbert, the Attorney General, was in the
King's entire confidence, and was even made the in-
strument of his fatal folly in impeaching the five mem-
bers of the House of Commons of high treason. St.
John, their bosom friend and confederate, meanwhile
was called " MR. SOLICITOR," was hurrying the King's
minister to the scaffold, was plotting the measures
which he thought best calculated to produce civil
war, and looked forward to an Anglican republic as
the consummation of his wishes.
He actually thirsted for the blood of Strafford ;
and he was resolved to gratify his appetite, in viola-
tion of all law, human and divine. Probably he had
worked himself up into a delusive belief that he was
actuated by a regard to the public good ; but he seems
to have been impelled by personal spite, arising from
some unrevealed affront. The great delinquent who
had deliberately planned the subversion of public lib-
erty deserved to be severely punished, and some virtu-
ous men were even of opinion that he ought to expiate
his offence with his life ; but all except St. John were
for allowing him a fair trial. Had it not been for St.
I. Rebellion, i. 327. He was immediately elected a Bencher of Lin-
coln's Inn: "At a Council held the 29"' Jan? :64o[l]. Att this Councell
Oliver S' Johns Esqr. his Ma" Solicitor genrall is called to the Bench and
is to be Published at the Moote this night."
The following year he was Treasurer. It appears from the books of
the Society that he attended the Councils regularly from this time till he
was made Chief Justice in 1648.
OLIVER CROMWELL.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 2OI
John he would have been acquitted, and an entirely
different turn would have been given to the history of
England.
While the prosecution was carried on according to "^
the forms of an impeachment, he who was guiding it^ebajjic-
in all its details, and making the ostensible actors during
move as he directed them, found it more convenient impeach-
ment.
to remain himself in the background ; and Pym, Glyn,
and Whitelock were much more conspicuous, both in
addressing the Lords and in examining the witnesses ;
but when, after the defendant's masterly appeal to his
judges against the attempt to take away his life by
new and unknown laws, and the admirable argument
of Lane,1 his counsel, showing that none of the facts
proved, or even alleged against him, amounted, in
point of law, to high treason, he was on the point of
being acquitted, — St. John thought it necessary to
take the matter entirely into his own hands. He quires the
therefore required that the impeachment should betiono/a
dropped, and that a bill of attainder2 should be substi- attainder.
1. Sir Richard Lane, a native of Northamptonshire. He studied in
the Middle Temple, was called to the bar, and in 1640 was counsel for
the Earl of Strafford. In 1643 he was made Chief Baron of the Ex-
chequer by Charles I., who also conferred on him the honor of knight-
hood. He was one of the Commissioners at the Treaty of Uxbridge,
and had the Great Seal delivered to him on the death of Edward Lord
Littleton. He died in Jersey 1650 or 1651. His reports in the Ex-
chequer were printed in 1657. — Cooper s Biog. Diet.
2. Bill of Attainder was a legislative act of the two Houses, intro-
duced and passed exactly like any other bill, and requiring the royal
assent, which declared a person or persons attainted. Originally
aimed against offenders who fled from justice, and analogous to the
Bill of Pains and Penalties, it was soon perverted to secure a more
certain and speedy destruction of political opponents than could be
hoped from the impartiality or the routine of the law courts. No
restriction was possible in such a mode of procedure. Evidence was
usually heard, but not invariably ; and even the presence of the
accused was decided by the lawyers whom Thomas Cromwell con-
sulted on the subject to be unnecessary, on the ground that there can
be no authority superior to statute. The first recorded instance of its
employment is in the violent banishment of the Despencers in 1321 by
the Parliament of Westminster ; an act which was held by Trussel,
202
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
(xinP' tuted for it, whereby the forms of law and the princi-
ples of justice might more easily be violated. Selden,
who had supported the impeachment, — Holborne, who
had so zealously assisted in arguing the question of
Ship-money, — and several other enlightened lawyers
of his party, strongly opposed this course ; but, by
sophistical speeches which St. John himself delivered,
and by procuring others to excite the passions of the
mob, he succeeded, with little difficulty, in carrying
the bill through the House of Commons. How was
he to obtain for it the consent of the Lords, who were
ready to acquit on the articles of impeachment? He
resorted to the ingenious expedient of making himself
counsel for the bill at the bar of the Upper House, —
the Justice who delivered judgment on the younger Hugh, to have
involved attainder. With the deposition of Edward II. the appearance
of the more regular method of impeachment attests a less savage spirit
in political parties, till the outbreak of the Rose wars in 1459. In that
year hostilities broke out on an attempt of the Queen to have the Earl
of Salisbury, the head of the Yorkist Nevilles, arrested. He com-
pletely defeated the force sent against him, and both sides rushed to
arms. But the Lancastrians were better prepared ; the Yorkist leaders
had to fly the kingdom, and a parliament met at Coventry which
attainted them in a body. Two years later, after the decisive victory
of Towton, the Yorkists retaliated by a similar proscription of all the
prominent Lancastrians. The new monarchy, which rose on the ruins
of self-destroyed nobility, was strong enough to content itself as a rule
with the ordinary methods of indictment and impeachment. But in
1539 the kinsmen of Reginald Pole, including his aged mother, the
Countess of Salisbury, daughter of Edward IV., were cut off by bill of
attainder, and the same fate overtook, in the following year, the
disgraced minister Cromwell, condemned, by a singular retribution,
without being heard in his own defence. Revenge in the one case,
the preservation of the royal popularity in the other, demanded the
employment of a procedure which could dispense with legal proof of
guilt. The attainder of Strafford, however, in 1641 marks the triumph,
not of a political faction, but of a constitutional theory. By the letter
of the Statute of Treasons (1352), which condemned attempts on the
King's life and honor only, the Earl was innocent; but the Parliament
maintained that the spirit of the statute saw in the King the majesty
of the state, and so, by implication, condemned all attempts to over-
throw the existing constitution. The last instance in English history
is that of Sir John Fenwick, attainted and executed in 1697 for par-
ticipation in the Assassination Plot. — Low anil Pulling'i Diet, of Eng.
Hist.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 2O3
without having any opponent. For this purpose he
proposed a conference between the two Houses, which
was agreed to, — and he acted as the sole manager for
the Commons. In this capacity he delivered a speech
the most disgraceful ever heard before any tribunal
professing to administer criminal justice. Knowing
that there was to be no reply, he grossly misrep-
resented former precedents, and misconstrued the
famous statute of Edward III. respecting treason,
which, he said, was only binding on the inferior courts,
but allowed parliament still to punish as treasonable
any acts which they might think deserved the punish-
ment of treason. But he felt that his reasoning on
this point was weak, and that his only chance of suc-
cess was by taking advantage of the odium under
which his destined victim then labored. He thus
alludes to the objection that he proposed to take away
the life of the Earl of Straff ord by an ex post facto law :
"But, my Lords, it hath often been inculcated, that ' law- Extracts
... . from his
makers should imitate the Supreme Lawgiver, who commonly speech as
warns before he strikes : The law was promulged before the theblii'. f°'
judgment of death for gathering the sticks : no law, no trans-
gression.1 "
He gives this answer of unparalleled atrocity, —
which, if Milton had put it into the mouth of one
of his fallen angels, would have been thought too
diabolical :
" My Lords, the rule of law is, Frustra legis auxilium in-
vocet, qui in legem committit.1 The proper law for such a case
is the lex talionis : 2 he that would not have had others have a
law, why should he have any himself ? Why should not that be
done to him that himself would have done to others ? It is
true we give law to hares and deers, because they be beasts
of chase ; it was never accounted either cruelty or foul play
1. " He calls in vain upon the assistance of the law, who fights against
law."
2. "The law of retaliation."
204
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
CHAP.
XIII.
His ven-
gfeance
satiated.
May 12.
His bill
against the
Church.
to knock foxes and wolves on the head as they can be found,
because these be beasts of prey. The warrener sets traps for
polecats and other vermin for preservation of the warren.
Proceeding by bill, every man is guided by his conscience,
and, without any evidence at all being given, may award the
deserved punishment."
"Upon the close of Master St. John's speech," says
the old report, " the House adjourned, nor was there
one word spoken but by Master St. John — only the
Lord Lieutenant, by a dumb eloquence, manibus ad
sidera tensis,1 held up his hands towards heaven and
made his reply with a deep silence."
The following day Strafford petitioned to be heard
by his counsel, but on the suggestion of St. John he
was told that the House of Commons must have the
last word. Upon a division the bill was carried by a
majority of twenty-six to ten ; and Charles being in-
duced, against his conscience and his vow, to give it
the royal assent, the vengeance of St. John was
satiated.2
He is said to have "contracted an implacable dis-
pleasure against the Church party, from the company
he kept." 3 To gratify this he now drew, with his own
hand, a bill " for the utter eradication of bishops, deans,
and chapters ; with all chancellors, officials, and all
officers and other persons belonging to either of them."
He would not, however, move it himself, but, more suo*
prevailed on a foolish baronet called Sir Edward Deer-
ing, a man of levit}' and vanity, easily led by a little
flattery, to present it to the House, — supplying him
with an apt quotation :
" Cuncta prius tentanda, sed immedicabile vulnus
Ense recidendum est, ne pars sincera trahatur. " '
1. " His hands stretched towards the stars."
2. 3 St. Tr. 1382-1536; Rebellion, i. 360.
3. Rebellion, i. 288.
4. " According to his custom."
5. " All other means must first be tried, but the incurable wound must
be cut out, lest the unaffected part be affected."
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 205
The mover spoke from the gallery, and, as he thought, CHAP.
XII I.
with great effect; but a strong objection was made to
the first reading of the bill, and the real author of it
was obliged to start up in its defence. He disingenu-
ously argued, " that the title of the bill, although
,. , r • the bill.
disapproved of, was no argument against reading it a
first time; that the title might be false, and that this
bill, for aught any one knew to the contrary, or at least
for aught he and many others knew, might contain
enactments for establishing bishops, and granting
other immunities to the Church." The bill was read
a first time, — and, being afterwards altered into a bill
to prevent bishops from sitting in the House of Lords,
or holding any secular office, it passed both Houses,
and received the royal assent.1
Open hostilities being at last contemplated, Mr. His bin for
Solicitor drew another bill " for the settling the militia "»g miii-
of the kingdom, both by sea and land, in such persons to the Par-
T-» i . * liament.
as Parliament should nominate, and got it brought
forward by Sir Arthur Haslerig, whom he was said
" to use as Noah did the dove out of the ark, to try
what footing there was." The House seemed inclined
to throw it out, as " a matter of sedition," without
suffering it to be read, not without some reproach to
the person who moved it, till the King's Solicitor de-
clared that " he thought that passion and dislike very
unseasonable before the bill was read, — that it was the
highest privilege of every member to make any motion
which in his conscience he thought advantageous for
the kingdom, — -that something was necessary to be
done for regulating the command of the militia, which
as yet was left undetermined by the law, and, if the
power were too great for any subject, in a subsequent
stage of the bill it might be devolved upon the Crown."
The bill was therefore read a first time. On a subse-
l. Rebellion, i. 368.
206
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
Self/"' (luent occasion the measure was strongly opposed by
Mr. Hyde, who contended " that the power of the
militia unquestionably resided in the King, along with
the right of making war and peace ; and that, as no
defect of power had ever appeared under the old law,
we might reasonably expect the same security for the
future : " with which, he says, " the House seemed well
pleased, till the King's Solicitor, and the only man in
the House of his learned counsel, stood up and said —
His artifice ' I should be right glad if there were such power in
and its
failure. the King (whose rights as his sworn servant I am
bound to defend). The gentleman who spoke last
seems to imagine so ; but, for my part, I know there is
not : the question is not about taking away power from
the King which is vested in him (which it would be
my duty to oppose) : we have to inquire whether there
be such a power in him, or anywhere else, as is neces-
sary for the preservation of the King and the people.
I take upon me with confidence to affirm that there is
a defect of such power, which Parliament ought to
supply.'" But he failed for once ; his artifice was too
transparent, and he so far shocked the remaining
loyalty of the House that the bill was allowed to drop,
although it was afterwards renewed in the shape of an
ordinance when the King's assent was not required for
the making of laws.1
A.D. 1642. In the beginning of the following year, Charles
itor Gen- leaving Whitehall and going to the north of England
eral quiets
all scruples to prepare for war, the parliamentary leaders took
^f measures for having the train-bands2 called out in the
allegiance.
1. Rebellion, i. 430, 514, 516, 604. Clarendon adds, "The Solicitor
General, who had obliged himself by a particular oath to defend his
Majesty's rights, and in no case to be of counsel or give advice to the
prejudice of the Crown, was the chief instrument to devise and contrive
all the propositions and acts of undutifulness towards him." (Pp. 499,
500.)
2. Train-bands, or trained bands, instituted in the reign of James I.,
were bodies of urban militia, which combined with the principle of the
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 2O?
City of London, and for securing some garrisons in
the provinces. Notwithstanding an ordinance of
the two Houses for these purposes, several of the
party had qualms about the oath of allegiance which
they had taken, but Mr. Solicitor showed them that
these proceedings were perfectly legal and constitu-
tional :
" He argued, that the Lords and Commons, in case of the
King's minority, sickness, or absence, had done the same in
other times : as when Henry III. died, and his son Edward I.
was in the Holy Land, and came not home in almost two
years after his father's death, yet, in the mean time, the Lords
and Commons appointed lieutenants of the several counties,
and made several ordinances which are in force at this day.
So are the ordinances made by them in the minority of Henry
VI., and the ordinances in the minority of Edward VI., and
in other times. That the King was now absent, and having
called his parliament at Westminster, was himself gone as far
from them as York, and had, before he came thither and
since, appeared with warlike forces about him to the terror of
the parliament ; and that they had not the least purpose or
intention of any war with the King, but to arm themselves
for their necessary defence."
On these grounds the Parliament passed a vote
that " the ordinance for the safeguard of the kingdom
is no whit prejudicial to the oath of allegiance, but is
to be obeyed as other fundamental laws, and that the
King's commands for lieutenancy over the respective
counties, issued without the concurrence of the two
Houses, are illegal and void."
St. John, to set a good example, himself accepted a
commission as deputy lieutenant from the Parliament, tasteof
military
and began to assist in raising and drilling men; buti'fe.
" fyrd " a large volunteer element. They proved, however, exceedingly
turbulent, especially in London, and, having espoused the side of the
Parliament during the Great Rebellion, were abolished after the Restora-
tion.— Low and Pulling 's Diet, of Eng. Hist.
208 LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
CxmP' ne soon f°un(i that he had not much military genius,
and that he could better serve the " good cause " by
continuing to wear the gown.1
He was placed upon the Committee of the House
of Commons which, during the adjournment of the
House, had all power committed to it, and which, in
truth, constituted the executive government. After
the death of Pym, who was the first chairman, St.
John had the greatest influence, and was most looked
up to by the public, till the prestige of military glory
gave the ascendency to Cromwell.
May. 1642. jne parliamentary party had been thrown into a
y- state of consternation by the flight of Lord Keeper
ing; the Littleton to York with the Great Seal. The most
r an lament
Greataseai sl'Perstitious veneration was felt by all lawyers except
St. John for this bawble, and, for want of it, the ad-
ministration of justice had been suspended during a
twelvemonth without any expedient having been pro-
posed to supply its place. In the following Hilary
Term came out a satirical pamphlet, entitled " St.
Hilary's Tears, shed upon all Professors of the Law,
A.D. 1643.
from the Judge to the Pettifogger." At last Mr.
Solicitor proposed an ordinance for making a new
Great Seal in exact imitation of the one in possession
of his Majesty, so that by affixing it to their acts they
might continue to carry on the government in the
King's name. This was violently opposed upon the
clause in the statute 25 Edward III. which enacts that
" to counterfeit the King's Great Seal shall be high
treason ; " and, although it was carried through the
House of Commons, the ordinance was rejected by
the Lords, who thought that such a step would be an
He is su- entire renunciation of their allegiance.
f^ The King, judging it full time to prevent the per-
g^ son wno now openly attempted the subversion of the
I. Whitelock, 57, 59.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 209
monarchy from appearing to be clothed with any C".'?L.I>-
authority by the Crown, caused a patent to pass under b"< retains
the Great Seal, at Oxford, superseding Oliver St. John Oct. 30.
as Solicitor General, and appointing Sir Thomas
Gardiner, the ejected Recorder of London, in his
stead.1 This was met by an ordinance which made
void all patents that had passed or should pass the
Great Seal in the King's possession " since the time it
ceased to attend the parliament ; " and St. John con-
tinued to style himself " i\Ir. Solicitor " till he was
raised to be Attorney General. Meanwhile he carried
a resolution of the House of Commons, independently
of the Lords, that a new Great Seal should be made ;
and, by throwing out hints that their Lordships might
be voted useless, he prevailed upon them to agree to
an ordinance for using this new Great Seal, and for
delivering it to six commissioners — two peers and four
commoners — who were to exercise all the powers of
Lord Chancellor. He himself, with his designation of November.
" Solicitor General to the King's Majesty," was nomi-
nated the first of the commissioners who represented
the Commons. Accordingly, he was sworn in with
much solemnity, taking the oath of office in the ancient
form, and again swearing " to be faithful, and bear true
allegiance, to his Majesty King Charles I., and him to
defend from all treasons and traitorous conspiracies
whatsoever."
In Hilary Term, 1644, he took his seat in the Court A.D. 1644.
of Chancery as a Lord Commissioner, and continued
to hold this employment for nearly three years, till he
was obliged to resign it in consequence of Cromwell's
" Self-denying Ordinance," by which all members of
parliament except himself were disqualified for offices,
civil or military. St. John received i,ooo/. for his
I. Dugd. Chron. Ser.
Hebe
comes a
Lord Com-
missioner
2IO LIFE OF CHIEF JUSTICE OLIVER ST. JOHN.
CxmP' trouble, together with the privilege of ever after sit-
ting within the bar in all courts of justice.1
Jan. 1645. When the conferences were to be held at Uxbridge,
commu- St. John was named one of the parliamentary commis-
thTparMa- sioners ; but a great difficulty arose about his designa-
TreatyM?6 tion in the commission and safe-conduct. He had
Abridge. been at first styled .. Solicitor General to the King."
Charles acquiesced, but in his own commission he
named Sir Thomas Gardiner, and described him as
"our Solicitor General." To this and similar desig-
nations of royal commissioners the Parliament strongly
objected, as giving effect to patents under the Great
Seal since it had been carried off by Lord Keeper
Littleton. At last it was agreed that the commission-
ers on both sides should be enumerated simply by
their Christian and surnames. " Plain Oliver St.
John " (as he was now called) took an active part in
the conferences which followed, and the command of
the militia still being the great bone of contention, he
strenuously denied that it belonged constitutionally to
the King. While some of his colleagues sincerely
tried to bring about an accommodation, he inflamed
the animosity between the contending parties, and
caused a rupture which proved the prelude to the
King's imprisonment and death.2
He is made To reward him for his zeal, the office of Attorney
Generah General was conferred upon him by the Parliament,
although it was still legally held by Sir Edward
Herbert, who had been appointed to it before the
troubles began, and had always followed the King's
headquarters.3
1. Whitelock, 71, 77 ; Rebellion, ii. 610, 611 ; Lives of Chancellors,
vol. iii. ch. Ixviii.
2. Rebellion, ii. 890. Lord Clarendon represents St. John as a spy
upon the rightly disposed commissioners, and says, " though most of the
rest did heartily desire a peace, even upon any terms, yet none of them had
the courage to avow the receding from the most extravagant demands."
3. Whitelock, 88.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 211
After the royalists had been completely worsted,
the political consequence of St. John lamentably de-Thede-
clined, and he felt his position very uncomfortable, influence.
He had professed himself a Presbyterian, he had sat
as a member in the famous Assembly of Divines at
Westminster,1 and he had subscribed the Solemn
League and Covenant.2 But the Presbyterians show-
1. The Westminster Assembly was convoked by order of the Long
Parliament in the summer of 1643, to consider the condition of the
Church, as " many things in its liturgy, discipline, and government
required further and more perfect reformation." It met on July I,
and, after a sermon from Dr. Twiss, the Prolocutor, began its sessions
in Henry VII. 's Chapel, whence it afterwards removed to the Jerusalem
Chamber. The Assembly consisted of both lay and clerical members,
and was never very numerous — about sixty attending its ordinary sit-
tings. The great majority of the Assembly were inclined to Presby-
terianism, and many of them profoundly convinced of its divine
right. This party was further strengthened when political necessities
involved a close alliance with the Scots, and compelled the Assembly
to accept the Solemn League and Covenant, and to add to its numbers
Henderson, Baillie, and other commissioners of the General Assembly
of the Scottish Church. After 1645 Charles Herle was its Prolocutor.
The debates of the Assembly extended over nearly all possible subjects
of theology. From July, 1643, to the summer of 1647 it pursued its
way uninterrupted. It spent much time on the revision of the Articles,
which involved endless theological discussion. It superseded the
Prayer Book by the Directory of Public Worship. It did its best to
establish a rigid Presbyterial organization, slightly modified by a few
insignificant concessions to the Independents, and, pending its estab-
lishment, it took upon itself the function of ordaining ministers. It
drew up the celebrated Westminster Confession of Faith, with the
Longer and Shorter Catechisms, which have since remained the
authoritative expositions of British Presbyterianism. Possessing no
direct power, it was necessarily somewhat dependent on the Parlia-
ment to which it owed its existence ; though this did not prevent the
active section exalting the spiritual power so highly as to call down
upon the Assembly the threat of an action for pricmunire. After the
summer of 1647, the retirement of the Scots marked the ending of the
main business of the Assembly. But up to the spring in 1652 a small
number of its divines continued to meet for the purpose of examining
candidates for ordination, until Cromwell's dissolution of the Rump
led to their silent disappearance without formal dismissal. Despite
their narrowness and bigotry, the members of the Westminster As-
sembly had shown much learning and zeal, and some moderation, in a
critical and arduous duty. — Low and Pulling' s Diet, of En«. Hist.
2. In 1643, when the English Parliament sought Scotch aid, the
Scotch demanded that the mutual engagements of the two nations
should be confirmed by a pact to which both nations should be sworn.
212 THE COMMONWEALTH.
CHAT>. jng a strong hankering after monarchy if they could
have a " Covenanted King," he was now more inclined
to join the Independents. Unfortunately, however,
the leaders of this sect were the Lord General Crom-
well and his brother officers, who slighted all pequiiis,
and were determined to rule by the sword.
A.D. 1647. por two or three years St. John acted irresolutely,
— waiting for events, and hoping that Cromwell might
fall in the field, or might lose his ascendency, — when
he expected to be himself acknowledged the head of
a republic. Such ambitious projects melted away as
the power of the great military chief was consolidated ;
and the aspiring democrat, who had hoped to make
He decides himself greater than any King of England, saw that he
subordt- must either retire from public life altogether, or con-
tepart. gent J.Q act a verv subordinate part under a military
dictator. The latter course he preferred : first, be-
cause, with all his high qualities, he labored under a
sordid passion for money ; and secondly, because he
wished still to keep up a connection with political par-
tisans who might one day rally round him. Not being
able successfully to oppose Cromwell, he deemed it
more prudent to appear to yield to him submissively,
and entirely to disarm his jealousy. He therefore
henceforth contented himself with assiduously perform-
ing the functions of a law officer of the Crown, prose-
cuting, in the King's name, those who too indiscreetly
testified their zeal for the King's authority. The
most difficult task imposed upon him was to punish
Judge Jenkins,1 the honest Welshman who resolutely
Accordingly the Solemn League and Covenant was drawn up by Hender-
son, amended by Vane, adopted by the Westminster Assembly, passed
by the Parliament, and ordered to be subscribed and sworn to by the
nation, — Low and Pulling' s Diet, of Eng. Jlist.
I. David Jenkins, born at Hensol, Glamorganshire, about 1586.
After studying at Oxford, he was called to the bar. and made a Welsh
judge. When the rebellion broke out he was taken up and sent to the
Tower, from whence he was removed to Newgate, impeached of treason.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 213
set at defiance the parliamentary Commissioners of
the Great Seal, and would acknowledge no authority
which did not emanate from the King,1
At last Mr. Attorney St. John became very
of such work, which he thought sadly unsuitable foraJudee-
one fit to govern an empire. His only resource was
to go upon the bench, where he would be free from *•">• '
any present annoyance, and might quietly watch the
political horizon. The administration of justice had
gone on regularly in the King's name, two puisne
judges sitting in each of the superior common-law
courts, but the chiefships had been several years
vacant. Heath, Chief Justice of the King's Bench,
had been removed by an ordinance ; Banks, the Chief
Justice of the Common Pleas, died in 1644 ; and Lane,
whom Charles had made Chief Baron at Oxford, had
accepted the titular office of his Lord Keeper.
John represented to Cromwell that, as the negotiations
with the King, who was a prisoner in the Isle of Cromwell
Wight, might now be considered for ever closed, and
a vote against addressing him or further recognizing
his authority was in contemplation, it would be fit,
with a view to the measures which might be necessary
to extinguish the monarchy in form as well as sub-
stance, that the high magistracies, which the people
had been in the habit of regarding with reverence,
should be occupied by men entirely to be confided in.
At the same time he hinted that, although he was
known to prefer politics to law, he might be prevailed
and brought to the bar of the House of Commons, where he refused to
kneel, and called the place "a den of thieves." The assembly, in a fit
of rage, were about to sentence him to be hanged, upon which he said
that he would suffer with Magna Charta under one arm, and the Bible
under the other. At last he was sent back to prison, where he remained
till 1656. He died at Cowbridge, Glamorganshire, Dec. 6, 1667. His
works were printed in a small volume in 1648 ; besides which he wrote
" Reports ad judged in the Exchequer Chamber," 1661 ; and again 1777. —
Cooper 's Biog. Diet.
I. Whitelock, 255 ; 4 St. Tr. 942.
214 THE COMMONWEALTH.
CHAP. Upon, for the public good, to submit for a time to
the dull and irksome business of Westminster Hall.
Cromwell Cromwell, well pleased with the prospect of finding
'"s!a pr°~ harmless employment for such a restless spirit, entirely
acquiesced in the proposal, and offered that he should
be made Chief Justice of the King's Bench. This dig-
nity he declined under the pretext of humility, but
probably from the apprehension that it was very
likely, from engaging him in all state trials, to bring
him into frequent collision with the ruling powers.
With his concurrence, it was arranged that Rolle, who
was a profound lawyer and nothing else, should hold
the highest office ; that Sergeant Wilde, who had
been an active member of the Long Parliament, should
be appointed Chief Baron of the Exchequer; and that
he himself should have the " cushion of the Common
Pleas," which, both for ease and profit, still had great
charms in the eyes of calculating lawyers.
Nov. 15. An ordinance for this purpose having passed, the
new Chief Baron was first sworn in, as he was already
a Sergeant; and thus Lord Commissioner Whitelock
began a long address to him :
Address to " Mr. Sergeant Wilde, — The Lords and Commons in par-
Wi{de!nt Hament taking notice of the great inconvenience in the course
of justice for want of the proper and usual number of Judges
in the High Courts at Westminster, whereby is occasioned
delay, and both suitors and others are the less satisfied, and
being desirous and careful that justice may be administered
more Majorum^ and equal right done to all men according
to the custom of England, they have resolved to fill up the
benches with persons of approved fidelity and affection to the
public, and of piety, learning, and integrity ; and having
found, by long experience among themselves, that you, Mr.
Sergeant Wilde, are a person thus qualified, and very well
deserving from the Commonwealth, they have thought fit to
place you in one of the highest seats of justice, and have
ordained you to be Lord Chief Baron of this Court."
I. " After the custom of our ancestors."
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 21$
A call of Sergeants immediately followed, St. John
being at the top of the list ; and thus the Lord Keeper Nov. 18.
began his address to them :
"Mr. Sergeant St. John, and the rest of you gentlemen St. John
who have received writs to be Sergeants-at-law, — It hath sergeant.
pleased the Parliament, in commanding these writs to issue
forth, to manifest their constant resolution to continue and
maintain the old settled form of government and laws of the
kingdom, and to provide for the supply of the High Courts of
Justice with the usual number of Judges, and likewise to be-
stow a particular mark of favor upon you as eminent members
of our profession."
Three days afterwards, Mr. Sergeant St. John was chief jus-
, I • y-ll • I T • t l'Ce °f 'I1*
sworn in, and took his seat as Chief J ustice of the Common
Common Pleas ; but there was no speechifying on this
occasion.1 It would have been very curious to have
had an authentic exposition of his sentiments when
such a great crisis was impending.
He was scarcely warm in his seat, which he ex-
pected to yield him entire repose, when the resolution
was taken to exhibit the sovereign holding up his
hand as a culprit at the bar of a criminal court. It
has generally been said that St. John disapproved of
this proceeding — which is probable enough— from his
conviction that it must lead to the permanent suprem-
acy of Cromwell— although not from any scruples
about royal irresponsibility, or the sacredness of an
anointed head. But I find no contemporary statement
of anything that passed between him and those who
had vowed Charles's death, till the bloody deed was
done. I believe that he, and all the other common-
law judges, refused to allow their names to be intro-
duced among those who were to constitute the " High
Court of Justice," and, if they were asked to attend
as assessors, they had refused, for none of them were
present at the trial in any capacity.
I. Whitelock, 348-356.
2l6 THE COMMONWEALTH.
CHAP. On the 3ist of January, 1649, Westminster Hall
i
A.I). 1649. Was in a state of dreadful perplexity. Lawyers are so
duct on the much under the dominion of form, that all writs and
execution . i « i r
of Charles commissions having hitherto issued in the name 01
" CHARLES I. by the grace ol God of Great Britain,
France, and Ireland, King, Defender of the Faith,"
etc., to whom the oatu of allegiance continued to be
taken, the Judges — who believed themselves to be
loyal men — had continued to hold their offices, and,
receiving their fees and salary, to decide without much
scruple all civil and criminal cases which came before
them. But when Charles I. had actually been be-
headed, an ordinance had passed to make the procla-
mation of Charles II. high treason, and the House of
Lords had been abolished as useless, the delusion could
be fostered no longer. Six of them — Bacon, Browne,
Bedingfield, Creswell, Trevor, and Atkins — refused to
sit again ; but the other six — Rolle, St. John, Wilde,
Jermyn, Pheasant, and Yates — sent in their adhesion,
" provided that by act of the Commons the funda-
mental laws be not abolished." Accordingly new com-
missions were made out to them under the Great Seal
of the Commonwealth, and there was an " order for
altering the Judges' oaths — formerly in the name of the
King, now to be in the people." l The others confined
themselves to their judicial duties, but St. John became
comesa a member of the executive council, and was deeply
the™xecu°- absorbed in politics. He actually continued Chief
tivecoun- justice Of t]ie Common Pleas till the Restoration, a
period of twelve years ; but I do not discover the re-
port of any case decided by him during this long inter-
val, and I suspect that, leaving the business of the court
to be done by his juniors, his thoughts were chiefly
occupied with considering how the overwhelming
I. Whitelock, 378.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 217
power of Cromwell might be curtailed, and how his
own might be advanced.
When an army was sent to invade Scotland, where ^ec
the authority of Charles II. as a " Covenanted King"-JjS£9.
was recognized, and Fairfax, who was himself a sincere f« respect-
Presbvterian, refused to command it, St. John was onecomtnand
• of the
of the committee deputed to remove his scruples, and army.
seems earnestly to have tried to succeed ; — while others
played the game of Cromwell, who was now intriguing
to be appointed generalissimo of all the parliamentary
forces. Whitelock has left a very ample report of the
conference on this occasion :
Lord General Fairfax : " I need not make to you, or to
any that know me, any protestation of the continuance of my
duty and affection to the Parliament, and my readiness to
serve them in anything wherein my conscience will give me
leave." St. John: "I pray, my Lord, be pleased to acquaint
us with your particular objections against this journey." Lord
General: "You will give me leave, then, with all freeness to
say to you, that I think it doubtful whether we have a just
cause to make an invasion upon Scotland. With them we are
joined in the national league and covenant." St. John :
" But, my Lord, that league and covenant was first broken by
themselves, and so dissolved as to us."
All this reasoning was vain ; and Cromwell, gaining
his object, fought the battles of Dunbar and of Worces-
ter, and made himself Lord Protector.
Meanwhile he wished to get St. John out of the He is ap-
' pointed
way, and an ordinance passed the House of Commons ambassa-
appointing him ambassador to Holland. This mission Holland.
was exceedingly distasteful to the Lord Chief Justice ;
for it was not only to remove him from the scene
where, on any unlucky chance happening to Cromwell,
he hoped to act the first part, but he was to be exposed
to great personal danger. In Holland, although a re-
publican form of government existed there, the cause
of the English Commonwealth was very unpopular;
2l8 THE COMMONWEALTH.
CxmP' anc* Dorislaus,1 their first ambassador, had been assas-
sinated at the Hague without any sincere effort being
made to bring his murderers to justice. A hope was
entertained that on the death of William, the second
Prince of Orange, who had married a daughter of
Charles I., there might be a more friendly ieeling
towards English republicans. But Ascham,1 another
parliamentary ambassador, had lately been assassinated
by the royalists at Madrid ; and St. John, dreading a
similar fate, presented a petition that he might be
excused, alleging his important judicial duties at home,
his infirm health, and the insalubrity of the climate.
But his timidity was derided, and upon a division his
petition was dismissed by a large majority.3 He was
allowed io,ooo/. to pay his expenses, and forty attend-
ants to protect him.
April. Accordingly he made his public entry into the
Insult to *
chief jus- Hague, with a retinue and parade becoming the rep-
john in rcsentative of a powerful nation ; but the populace
Holland. . , r
saluted him with groans and hisses ; and the royalists
were not only resolved to insult him on every occasion,
1. Isaac Dorislaus, a Dutchman, who came to England, and was ap-
pointed by Fulke Lord Brooke to read lectures on history at Cambridge ;
but avowing republican principles, Dr. Cosin, the Vice-Chancellor, silenced
him. Afterwards he became judge-advocate in the King's army, in the
expedition against the Scotch, but quitted his Majesty's service for that of
the Parliament, and assisted in drawing up and managing the charge
against Charles I. In 1649 he was sent ambassador to the Hague, where
he was stabbed on the 2d of May in the same year, by some exiled royal-
ists. The Parliament caused his body to be brought to England, and
interred in Westminster Abbey, from whence it was taken at the Restora-
tion, and buried in St. Margaret's churchyard. — Cooper's Biog. Diet.
2. Anthony Ascham, born at Boston, Lincolnshire, was educated at
Eton and King's College, Cambridge. At the beginning of the rebellion
he joined the Presbyterians, and became a member of the Long Par-
liament. In 1649-50 he was sent as envoy to Madrid, where six exiled
royalists assassinated him and his interpreter, in 1650. — Cooper's Biog,
Diet.
3. Journals, 1651, January 21, 23, 28. Here the Parliament closely
imitated the tyranny of the Stuarts, who were in the habit of punishing
obnoxious individuals by a foreign mission.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 219
but to offer violence to his person. Edward, a son of
the Queen of Bohemia, publicly called him a rogue and
a dog ; and the Duke of York, with the Princess Hen-
rietta on his arm, meeting him by accident near a turn-
stile at Verhout, there was a struggle which should
pass first, — upon which the Prince snatched the ambas-
sador's hat off his head, and threw it in his face, saying
" Learn, parricide ! to respect the brother of your
King." The ambassador replied, — " I regard neither
you nor the person of whom you speak but as a race of
fugitives." Swords were then drawn, and it was only
by the interference of the spectators that fighting was
prevented. Afterwards there was an attempt made to
break into St. John's house, by ruffians who had a rope
with them, with which they meant to strangle him.
On various pretences the States General refused to He is re-
grant any redress, and put off from time to time
matters that were to be negotiated.
St. John returned home abruptly, vowing revenge, ™™i"g re"
— and he was not a man to let his resentment pass off *-D- l6s2-
in empty words. He delivered to the Parliament an
inflamed account of the manner in which the English
nation had been wronged in his person. Next he
pointed out a plan by which ample punishment might
be inflicted on the offending parties. Hitherto the
Dutch had been the great carriers for the English as
well as other European nations ; — and he proposed an
ordinance to enact " that no goods, the produce of
Asia, Africa, or America, should be imported into this
country in ships which were not the property of Eng-
lish subjects; and that no goods, the produce or man-
ufacture of any part of Europe, should be imported
unless in English ships, or ships of the country where
such goods were produced or manufactured." The
ordinance was quickly passed, and being confirmed bytheliavi-
an act of parliament on the Restoration, the famous
220 THE COMMONWEALTH.
Navigation Laws,1 supposed to be the result of the
calm deliberations of our ancestors, arose from a per-
sonal affront offered to one of our republican ambas-
sadors.8
Max- St. John was next employed as a commissioner to
St. John a
cpmmis- induce the Scotch to agree to a legislative union with
negotiate a England. He had to encounter not only the pride of
union with '
Scotland, national independence, but a deep distrust of those
who had thrown off the Solemn League and Covenant,
and the dread of a measure which " tended to draw
with it a subordination of the Kirk to the State in the
things of Christ." However, he convened at Dalkeith
1. The Navigation Laws regulated the privileges of British ships, and
the conditions under which foreign ships were admitted to the trade of
this country. Legislation of this kind was naturally of early development;
we find instances of it under the later Angevin kings, and in the reigns of
Henry VII. and Elizabeth laws were passed excluding foreign ships from
our coasting trade. Cromwell was, however, the first to adopt the navi-
gation system as a policy ; in 1650 he excluded all foreign ships without a
license from trading with the plantations of America, and in 1651 the
famous Navigation Act was passed, which forbade the importation of
goods into England except in English ships, or in the ships of the nation
which produced the goods. This measure was levelled at the Dutch
carrying trade ; it forced the Dutch into war, but in the end they accepted
it. The mercantile system, as it was called, was continued after the Res-
toration. In 1660 an act was passed providing that all colonial produce
should be exported in English vessels ; that no man might establish him-
self as a factor in the colonies, and that various sorts of colonial produce
could only be exported to England and her dependencies. In 1663 it was
enacted that the colonies should receive no goods whatever in foreign ves-
sels. In 1672 came the Navigation Act of Charles II., based on that of
Cromwell, under which the prohibition against introducing goods, except
in English ships manned by a crew of which at least three fourths were
English, applied to all the principal articles of commerce known as the
"enumerated articles." This act ruined the Dutch merchant navy, and
the cruel restrictions of the navigation laws were one of the main causes
of the American rebellion. After the Declaration of Independence the
United States were placed on the footing of a foreign nation, and hence
came under the operation of the act of Charles II. They promptly
retaliated by excluding our ships, and in 1814 the Treaty of Ghent was
concluded, by which discriminating duties were mutually abolished. The
act was repealed by the acts of 1826, 1842, 1846, and 1849. — Low and
Pulling 's Due. of Eng. Hist.
2. Whitelock, 487, 491, 492 ; New Parl. Hist. iii. 364 ; Ludlow's
Mem. 133, 250, Memoirs of the Cromwell Family, ii. 19.
LIFE OK CHIEF JUSTICE OLIVER ST. JOHN. 221
the representatives of the counties and boroughs, with
full powers to treat for the entire incorporation of the
two countries. A great majority were induced by him
to give their consent ; and afterwards there were
chosen, at Edinburgh, twenty-one deputies to arrange
the conditions with English commissioners at West-
minster. Under his auspices conferences were after-
wards held there, and this proceeding laid the founda-
tion of the Parliament, for the whole island, which
Cromwell afterwards summoned.
While in Scotland, St. John was likewise of great
service in assisting the introduction into that country
of English Judges, who, although jeered at as " kithless
loons," administered justice so satisfactorily as almost
to reconcile the natives to a foreign yoke.1
After the battle of Worcester,3 when Cromwell, Q"- wheth-
er he
secretly wishing to be proclaimed Oliver I., said to a favored
the meas-
meeting of members of parliament and officers whomureof
he had assembled, that " now the old King being dead, Cromwell
and the son being defeated, he held it necessary to
come to a settlement of the nation ; " and Desborough
having declared for a republic, St. John is supposed
to have said, " It will be found that the government of
this nation, without something of monarchical power,
will be very difficult to be settled so as not to shake
the foundation of our laws, and the liberties of the
people." Whitelock represents St. John, whom he
hated, as having been a tool of Cromwell ; but if St.
John actually took this side, I suspect that it was to
lure Cromwell on to his ruin. Most of the lawyers
were sincerely for a mixed monarchical government —
but St. John remained a stern democrat ; and although,
1. Whitelock, 517, 532.
2. The battle of Worcester (Sept. 3, 1651) was fought between the
Scottish and Parliamentarians during the unsuccessful expedition of
Charles II. to England previous to the Restoration. — Low and Putting's
Diet, of Eng. Hist.
222
THE COMMONWEALTH.
CHAP.
XIII.
He is elect
ed Chan-
cellor of
Cam-
bridge.
Charges
against
him of cor-
ruption.
to keep his places, he was ready to conform to what
he disliked, he would never have actively assisted in
restoring the government of ONE even with a change
of dynasty.1
About this time he was elected Chancellor of the
University of Cambridge, having shown a disposition
to protect human learning against the attacks of the
fanatics, who declared that no books were worthy of
being read except the books of the Old and New Tes-
tament, excluding the Apocrypha. He was likewise
instrumental in preserving some of our venerable
ecclesiastical structures from the ruin which then
threatened them. " The Cathedral at Peterborough
was left in a state of desolation by a party of the par-
liamentary troops under Cromwell, and so it continued
until Oliver St. John, Ch. J. of C. P., on his return from
Holland, obtained it of the Parliament, and gave it as
a parochial church for the use of the townsmen, their
proper parish church being gone much to decay." 2
The Lord Chief Justice St. John continued to rep-
resent Totness in the House of Commons, the republi-
cans of the 1 7th century having no objection to the
union of judicial and political functions in the same
individual. But, after the dissolution of the Long
Parliament, and the establishment of the Protectorate,
seeing no chance for democracy, he appears to have
taken very little part in public affairs. His enemies
say that " though so greatly attached to his darling
commonwealth, yet he chose to retain his places under
every form of government. The reason of this was
his avarice, which got the better of his political senti-
ments. They in power knew his love for wealth, and
gratified him accordingly ; he had the granting of all
pardons to the delinquent loyalists, which amounted
1. Whitelock, 5:6, 487.
2. Bridges' Northamptonshire, 548.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 223
to the enormous sum of 4O,ooo/., nor did he scruple
accepting bribes for places under Oliver." l
I am unable to corroborate or to contradict these ™ese
charges
grave charges against him. He certainly was not anott?*>e
member of Barebone's parliament.2 which met in 1653 ; rated or
" 'contra-
nor does his name appear in the list of the House of dieted.
Commons on the reformed model which met in 1654,
nor in that which Cromwell called in 1656. We,
therefore, do not know what part he took when the
Crown was formally tendered to the Protector, but he
seems at last to have relented in favor of hereditary
power and honors, for in the year 1657 he accepted a
peerage, and actually took his seat in Oliver's House
of Lords as Lord St. John.3 However, he was still
silent and sulky, looking forward to better times.
He thought that these had arrived when, on the A. p. 1658.
l r S~^T r His COD-
death of Oliver, the sceptre was transferred to the duct on the
feeble hand of Richard.4 His patent was renewed
Chief Justice,5 he procured himself to be elected a
member of the Council of State, and he was in hopes
1. See Noble's Memoirs of the Cromwell Family, ii. 22.
2. The Parliament to which this name has been given was summoned
by Cromwell, and met for the first time July 4, 1653. A hundred and
forty summonses to it were issued, and of the parties summoned only two
did not attend. Hume says, " Among the fanatics of the House there
was an active member much noted for his long prayers, sermons, and
harangues. He was a leather-seller in London, his name Praise-God
Barebone. This ridiculous name, which seems to have been chosen by
some poet or allegorist to suit so ridiculous a personage, struck the fancy
of the people, and they commonly affixed to the assembly the appellation
of ' Barebone's Parliament.'" This assembly sat until the I2th of De-
cember, 1653, when it resigned its powers into the hands of Cromwell. —
Jennings' Anec. Hist. Brit. Part. (Am. Ed.), p. 7.
3. Whitelock, 666 ; 3 Parl. Hist. 1518.
4. Richard Cromwell (b. 1626, </. 1712), third son of the Protector,
held several important offices during his father's Protectorate, and on
his death in 1658 succeeded to his title ; showed himself unfit for pub-
lic affairs, and abdicated by the advice of his uncle Desborough (1659).
After residing in France and Switzerland, he returned to England in
1680, and spent the rest of his days at Cheshunt in Hertfordshire. —
Cassell's Biog. Diet.
5. Whitelock, 678, 688.
224 THE COMMONWEALTH.
CHAP. to ruie either as minister of the new Protector, or as
the president of a pure republic, which had been so long
looked for in vain. But he was again disappointed,
for Richard instantly fell into universal contempt, and,
military violence alarming all parties, the restoration of
the exiled royal family was evidently at hand. St. John
saw that this event would not only for ever dissipate
his republican dreams, but would be very dangerous
to him individually ; and he made a resolute struggle
against it. When the Rump was restored, he again
took his seat as member for Totness, by virtue of his
election nearly twenty years before ; but his reception
now was very different from what it had been in the
same assembly when he was urging on the impeach-
ment of Strafford, the overthrow of the Church, and
the usurpation of military power. The vote having
passed for the dissolution of the Long Parliament and
the calling of a Convention, he retired to his country-
house, Long-Thorpe, in Northamptonshire ; and, the
His'd'a^er Cavaliers beginning to vow instant vengeance against
torationTf the most obnoxious of the Roundheads, he shut him-
Charies ii. gej£ up jn & pjace of concealment. Although he had
not actually sat as one of the late King's judges, it was
truly said that no one had more effectually promoted
the catastrophe of the King's death.
His safety fje owe(j his safety to Thurloe,1 who had been his
due to J
Thurloe. clerk, whom he recommended to Cromwell, and who,
having enjoyed great power under the Protectorate
as Secretary of State, was now in favor from having
materially promoted the Restoration. It was said
I. John Thurloe, born at Abbot's Roding, in Essex, 1616. He be-
came secretary to the parliamentary commissioners at the Treaty of
Uxbridge, and in 1651 attended the embassy to Holland, on his return
from whence he was appointed Secretary to the Council of State, as he
afterwards was to Cromwell. In 1658 he was chosen Chancellor of
the University of Glasgow. At the Restoration he was some time in
custody ; but soon obtained his release, and died at his chambers in
Lincoln's Inn, Feb. 21, 1668. — Cooper's Biog. Diet.
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 22$
that a large bribe contributed to his deliverance ; but
this is a mere surmise without any authority.1 From
the proposed indemnity twenty were to be excepted,
whom it was determined to bring to the scaffold.
General Ludlow," in his Memoirs, says, " The news of
this resolution being carried to Charles II. by the
Duke of York, the Duke of Buckingham, and Monk,
he openly expressed his joy ; and when they told him
that the Chief Justice St. Johns 3 had narrowly es-
caped, he wished he had been added also : of which
particulars I received information by a person of
honor, then present, immediately after they parted."4
But his life was spared only on condition that he
was never to accept any civil, ecclesiastical, or mili-
tary office, on pain of being liable to the penalties of
treason. A free pardon was offered to him if he
1. Noble's Family of Cromwell, ii. 23.
2. Edmund Ludlow was born at Maiden Bradley, Wilts, about 1620.
After taking the degree of Bachelor of Arts at Trinity College, Oxford,
he went to the Temple, which he left on the breaking out of the civil
war, and became a captain of horse in the parliamentary service. He
was present at the battle of Edgehill, and in 1644 was made prisoner
at Wardour Castle, but was soon exchanged. In 1645 he succeeded
his father as representative in Parliament for the county of Wilts.
He also sat as one of the judges at the trial of the King, and signed
the death-warrant ; after which he concurred in voting down the
House of Lords. When Cromwell became captain-general of the
army he got rid of Ludlow by sending him to Ireland, where he was
iieutenant-general of the horse. He zealously opposed the. usurper,
on whose death he was returned to the new Parliament, and he also
sat in that which was called the Rump. In 1659 he resumed the com-
mand in Ireland, but his stay there was short ; and finding that the
King's judges were excepted out of the act of indemnity, he withdrew
to Switzerland. After the Revolution he ventured to appear in Lon-
don, which gave such offence that an address was presented to King
William, by the House of Commons, praying his Majesty to issue a
proclamation for apprehending him. On this Ludlow went back to
Vevay, in Switzerland, where he died 1693. — Cooper's Biog. Diet.
3. It is curious to observe that in the seventeenth century there
were many proper names which were promiscuously spelt, and must
have been pronounced, without, and with, a final j ; — as St. John, St.
Johns; Rolle, Kolles ; Hale, Hales, etc., etc.
4. Mem. 356.
226 THE COMMONWEALTH.
CxinP' would assist in bringing the regicides to justice, but
His lite lie spurned such baseness. He went abroad under
abroad.
pretence of travelling for his health ; and, still afraid
of the Cavaliers, who repeatedly attempted to assassi-
nate Ludlow and other exiled republicans, he took the
name of Montague, and lived several years in great
seclusion, first at Utrecht and then at Augsburg. In
His return j55g he ventured to return to his native country, and
and death.
he lived quietly at Long-Thorpe till the 3ist day of
December, 1673, when he expired. He was supposed
to have reached the 75th year of his age.
His real character may best be known by the desig-
nation generally applied to him in his own time, —
"THE DARK-LANTHORN MAN." From his proud, re-
served, and morose disposition, he made himself so
unpopular that there was a general disposition to
aggravate his misconduct, and we must receive the
stories circulated against him with considerable sus-
picion.
He did very little for the improvement of jurispru-
dence ; for although he effectually resisted the absurd
schemes at once to abolish the Court of Chancery,
and to substitute the law of Moses for the common
law of England, — absorbed in his ambitious schemes
he took no interest in the wise legal reforms which
were carried on by Hale, Whitelock, and other en-
lightened Commonwealth lawyers. Beginning the
world without a shilling, he died disgracefully rich, so
as to countenance the charges brought against him of
cupidity and corruption.
His reia- He is often mentioned as a cousin of Oliver Crom-
to0Crom- well — but this relationship was only by marriage.
His first wife was a daughter of Sir James Altham,
Hischii- maternally descended from the Cromwells. By her
dren- he had several sons, and a daughter, Joanna, who was
married to Sir Walter St. John, of Tregoze in Wilt-
LIFE OF CHIEF JUSTICE OLIVER ST. JOHN. 227
shire, and was the grandmother of the celebrated
Henry St. John, Viscount Bolingbroke.1
He had another daughter, Elizabeth, who being
about to be united to a Huntingdonshire squire, the
Chief Justice, according to the then existing law, not
only gave her away, but himself performed the nuptial
ceremony which made them man and wife.2
When Oliver St. John and Oliver Cromwell had Parallel
between
respectively reached their fortieth year, the former St-J"hn
was by far the more eminent person. He had notweU-
only distinguished himself at the bar, but he was the
chief adviser of the great political party opposed to
arbitrary government, who, although depressed for
eleven years, were erelong to gain the ascendency ;
while the future PROTECTOR, after a licentious youth,
was obscurely spending his middle age in the country,
occupied with feeding cattle and draining marshes.
When the troubles began, St. John preserved his
superiority, and swayed the deliberations of the Long
Parliament, — Cromwell, from his uncouth appearance
and embarrassed oratory, being to all, except to a dis-
cerning few, a man of no mark or likelihood. Even
after the praying colonel of horse had led on his psalm-
singing troopers to victory at Edgehill and Marston
Moor, the dark, designing lawyer, holding the Great
Seal and presiding in the committee for the manage-
1. Mallet, in his Life of Bolingbroke, says, " His grandfather, Sir
Walter St. John, marrying one of the daughters of L. C. J. St. John, who,
as all know, was strongly attached to the republican party, Henry was
brought up in his family, and consequently imbibed the first principles of
his education amongst the Dissenters." He afterwards goes on to trace
his contempt for all religions to the fanaticism and hypocrisy which he
witnessed among the Presbyterian clergy under his great-grandfather's roof
at Long-Thorpe.
2. Extract from the Parish Register of Enfield : "The truelie worthy
John Bernard of Huntingdon, within the County of Huntingdon Esq™
single man, and M". Elizabeth S'. John daughter of the Right Honble
OliverS'. John Ch. Justice of C. P., was married before said father and
by him declared man and wife Feb' 26, 1655-6, coram testibus non
paucis venerabilibus et fide dignis."
228 THE COMMONWEALTH.
CHAP. ment of public affairs at Westminster, still kept mili-
tary in subordination to civil authority, and hoped to
make the most renowned captains who had appeared
on the side of the Parliament instruments of his own
aggrandizement. The " Self-denying Ordinance " was
the death-struggle. If Cromwell had perished amidst
the perils to which he was then exposed, St. John might
have been Lord Protector instead of pining with envy
for the rest of his days. He was little inferior to his
rival in natural ability, and was far superior to him in
intellectual acquirements. Nor would any scruples
have obstructed his rise to sovereign sway, for he only
loved a republic as he expected to rule it, and at the
call of ambition he was always ready to change the
religious faith which he professed. It did not suit his
purpose to take part in the death of Charles I., but he
was the murderer of the Earl of Strafford. Although
it is fortunate for the liberties of England that the
Parliament triumphed over Charles I., and St. John
greatly contributed to this triumph, we cannot honor
his memory as a true patriot, for he was crafty, selfish,
cruel, and remorseless.
LIFE OF LORD PRESIDENT BRADSI1AW. 229
CHAPTER XIV.
LIFE OF LORD PRESIDENT BRADSHAW.
MY collection of biographical sketches of Common-
law ludees, of the first rank, would be imperfect Reason for
J noticing
were I to pass over him who presided at the most Lord Pres-
ident
interesting trial which ever took place in England, Bradshaw.
although he was called LORD PRESIDENT instead of
LORD CHIEF JUSTICE,
"When Bradshaw bullied in a broad-brimm'd hat."
He was born at Marple-hall, in Cheshire, and was
the younger son of a respectable family, which had
been settled there for many generations. I know
nothing of his career till I find him a barrister of A.D. 1635
Gray's Inn, of considerable but obscure practice, and His origin
Judge of the Sheriff's Court in the City of London. sU
Although well versed in his profession, he was a very pr
dull man ; and no one imagined that he could rise
higher than the dignity which he had then acquired.
His name was introduced into the commission of
oyer and terminer at the Old Bailey,1 and, to ease the
Judges, he was employed to try assaults and petty
larcenies ; but no highwayman or burglar would have
submitted, without deep murmuring, to his jurisdic-
tion.2 He professed himself to be, and was, a very
1. Close by Newgate is the Old Bailey Sessions House, for the trial of
prisoners within twelve miles of St. Paul's. Over it is a dining-room,
where the judges dine when business is over, whence the line —
" And wretches hang that jurymen may dine."
— Hare's Walks in London, vol. i. p. 168.
2. Prisoners look very much to the rank of those who may pass sen-
tence of death upon them. A Sergeant of great experience going the
Oxford Circuit in the room of Lord Chief Justice Abbot, who was sud-
denly taken ill, a man capitally convicted, being asked if he had any
thing to say why sentence of death should not be passed upon him,
exclaimed, " Yes ; I have been tried before a. Journeyman Judge."
23O THE COMMONWEALTH.
CHAP, violent republican. He failed in an attempt to obtain
A.D. 1640. a seat in the Lone: Parliament ; but he was loud and
He is a
strong re- active in supporting the parliamentary cause in the
City of London. For this reason he was appointed
A.D. 1644.
junior counsel for the Commonwealth, and assisted in
state prosecutions instituted against royalists.1
The cruel sentence passed by the Star Chamber, in
the year 1638, upon John Lilburn,2 by which he was
to be pilloried, whipped, and imprisoned for life, being
A.D. 1645. brought before the House of Lords, Bradshaw was
assigned him as his counsel, and succeeded not only in
getting a reversal of the sentence, but a compensation
of 3,ooo/. for his client, to be raised out of the seques-
tered estates of delinquents.3
He is em- When, under the "Self-denying Ordinance," the
counsellor original set of the -Commissioners of the Common-
0n wealth Great Seal were to be removed, a vote passed
. the House of Commons that Bradshaw should be one
of the new commissioners ; but this was overruled by
the Lords, of whose jurisdiction he had been in the
habit of speaking disrespectfully.4 Soon after, he was
1. Whit. 106.
2. John Lilburne was born in the county of Durham, 1618. He
served his time to a clothier in London ; but in 1636 Dr. Bastwick per-
suaded him to go to Holland, to superintend the printing of some libels
against the Government. With this cargo he returned, and soon after
was taken up, and sentenced to be first whipped, then to stand in the
pillory, and afterwards confined in ihe Fleet. The Long Parliament,
however, remunerated him for what he had endured by profuse grants
of sequestrated estates. He fought at the battle of Edgehill as a
captain of foot ; but at Brentford he was made prisoner and carried to
Oxford, where he would have been hanged had not the Parliament
threatened retaliation. He then obtained his liberty, and was made
first a major and afterwards a colonel of dragoons. Being of a quar-
relsome temper, he libelled the Earl of Manchester, for which he was
sent to the Tower, where he remained till 1648. He had not been long
out of confinement before he renewed his old practice of abusing liis
superiors, for which he was banished the kingdom. After residing some
time in Holland, he returned in 1657, and was tried at the Old Bailey,
but acquitted. He now settled at Eltham, where he turned Quaker, and
died the same year, Aug. 29, 1657. — Cooper's Biog. Did.
3. 3 St. Tr. 1315-1370. 4. Whit. 224.
LIFE OF LORD PRESIDENT BRADSHAW. 231
appointed Chief Justice of Chester.1 He still went on
distinguishing himself for his zeal in favor of the new
regime, and his loud expression of impatience for the
entire abolition of monarchy.
At the great move in legal offices shortly before o^-".
the King's trial, the House of Commons, which was He be-
comes a
now exercising the functions of all the officers of the Sergeant.
Crown, ordered that there should be a new call of
Sergeants, and "that Mr. Bradshaw, of Gray's Inn, be
of the number." On the day of the solemnity, Lord
Commissioner Whitelock, who was a much more mod-
erate politician, advised him to be like his predecessor,
celebrated by Chaucer, —
"A Sergeant-at-law, wary and wise."*
When the ordinance to constitute the HIGH COURT IP31,0',
t
OF JUSTICE was first introduced into the House of
Commons, Sergeant Bradshaw was named in it as an
assistant only, but in a further stage of its progress he
was promoted to the rank of Commissioner. It had
been hoped that tclat would have been given to the
approaching trial by Whitelock, Lord Keeper of the
Great Seal, — Rolle, Lord Chief Justice of the King's
Bench, — St. John, Lord Chief Justice of the Common
Pleas, — or Wilde, Lord Chief Baron of the Exchequer,
acting as Lord President of this tribunal, which was
framed after the fashion of that invented by Queen
Elizabeth for the condemnation of Mary Queen of
Scots ; but they all positively refused to take any part
in a proceeding so contrary to the established forms of
criminal procedure ; although, if a bill of indictment
had been found against Charles Stuart by a grand
jury, and he had been arraigned and made to hold up
his hand before a petty jury, in the usual form, some
of them, probably, would not have hesitated, in the
King's name, to try him and to pass sentence upon
I Whit. 238. 2. Whit. 342, 353.
232 THE COMMONWEALTH.
him. Bradshaw, either from wishing that he might
XI V .
escape the service altogether, or that in his absence
his merits might be more freely discussed, did not
attend the first meetings of the Commissioners held
for arranging the preliminaries of the trial.
chSlfn'""' On the I0th of Januat7' 1649, "John Bradshaw,
President Sergeant-at-law, a Commissioner of this court, -was
H'gh chosen President; who being absent, Mr. Say, one of
Justice. the Commissioners then present, was appointed Presi-
dent pro tcnipore until the said Sergeant Bradshaw
should attend the said service."1 "On the i2th of
January, Sergeant Bradshaw, upon special summons,
attended this court, and being, according to former
order, called to take his place of President of the
said court, made an earnest apology for himself to be
excused ; but therein not prevailing, in obedience to
the desires and commands of this court he submitted
to their order, and took his place accordingly. There-
upon the court ordered that he should have the title
of LORD PRESIDENT, as well without as within the
said court — against which title he pressed much to be
heard to offer his exceptions, but was overruled." 2
Such is the official minute of the appointment of Presi-
dent. Lord Clarendon says,—
Claren- " To that office one BRADSHAW was chosen ; a lawyer of
count of Gray's Inn, not much known in Westminster Hall, though of
''oint'ment. 6°°^ practice in his chamber, and much employed by the
fractious. He was a gentleman of an ancient family in
Cheshire, but of a fortune of his own making. He was not
without parts, and of great insolence and ambition. When
he was first nominated, he seemed much surprised, and very
resolute to refuse it; which he did in such a manner, and so
much enlarging upon his own want of abilities to undergo so
important a charge, that it was very evident he expected to
be put to that apology. And when he was pressed with more
importunity than could have been used by chance — with
I. Minutes of the Court. 2. Minutes of the Court.
LIFE OF LORD PRESIDENT BRADSHAW. 233
great humility he accepted the office, which he administered
with all the pride, impudence, and superciliousness imagi- Ciaren-
nable. He was presently invested in great state, and many count30
officers and a guard assigned for the security of his person, continued.
and the Dean's house in Westminster given to him for ever
for his residence and habitation ; and a good sum of money,
about 5,ooo/., was appointed to be presently paid to him, to
put himself in such an equipage and way of living as the dig-
nity of the office which he held would require. And now the
Lord President of the High Court of Justice seemed to be the
greatest magistrate in England." *
It is said that " Mr. Sergeant Bradshaw, the Presi-
dent, was afraid of some tumult upon such new and
unprecedented insolence as that of sitting judge upon
his King ; and therefore, besides other defence, he had
a thick big-crowned beaver hat, lined with plated steel,
to ward off blows." 3
We have a very full report of the whole trial ; and, Bar"j.l649-
after attentively perusing it, I must say that the fa^'£££
charge brought against Bradshaw of wanton brutality the trial-
on this occasion is considerably exaggerated. The act
of sitting in trial upon the King is to be regarded as a
great atrocity ; but this must not be confounded with
the manner in which the proceeding was conducted.
1. Rebellion, iii. 373.
2. Kennett, iii. 181, n. " This hat, with a Latin inscription upon it, is
now to be seen in the Museum at Oxford." — Ibid. In the middle of the
seventeenth century the common-law judges adhered to their coifs, or
black cloth caps, which they still put on when they pass sentence of
death ; but the Lord Chancellor, and the Speaker of the House of Com-
mons, wore a round high-crowned beaver hat. The full-bottom wig, and
the three-cornered cocked hat, were introduced from France after the
Restoration. Barristers' wigs came in at the same time, but very gradu-
ally, for the judges at first thought them so coxcombical that they would
not suffer young aspirants to plead before them so attired. Who
would have supposed that this grotesque ornament, fit only for an African
chief, would be considered indispensably necessary for the administration
of justice in the middle of the nineteenth century ! When I argued the
great Privilege Case, having to speak sixteen hours, I obtained leave to
speak without a wig ; but under the condition that "this was not to be
drawn into a precedent."
234 T1IE COMMONWEALTH.
Assuming a court to be constituted, its authority must
Account of be maintained, and the steps must be taken which are
Brad-
shaw's con- necessary for bringing to a conclusion a trial corn-
continued. menced before it. The King's demeanor was most
noble ; and he displayed such real dignity, such pres-
ence of mind, such acuteness, such readiness, such
liberality of sentiment, and such touches of eloquence
— that he makes us forget all his errors, his systematic
love of despotic power, and his incorrigible bad faith.
Instead of hurrying him to the scaffold, we eagerly
desire to see him once more on the throne, in the hope
that misfortune might at last induce him sincerely to
submit to the restraints of a constitutional monarchy.
But these are feelings which could not properly actu-
ate the mind of a judge the very foundation of whose
authority was questioned by the accused. Therefore
it could be no aggravation of Bradshaw's crime, in
accepting the office of President,1 that he said, " Sir,
I. " Bradshaw, in a scarlet robe, and covered by his ' broad-brimmed
hat,' placed himself in a crimson-velvet chair in the centre of the court,
with a desk and velvet cushion before him ; Say and Lisle on each side of
him ; and the two clerks of the court sitting below him at a table, covered
with rich Turkey carpet, on which were laid the sword of state and the
mace. The rest of the court, with their hats on, took their seats on side
benches, hung with scarlet. . . . During the reading of the charge the
King sat entirely unmoved in his chair, looking sometimes to the Court
and sometimes to the galleries. Occasionally he rose up and turned about
to behold the guards and spectators, and then sat down again, but with a
majestical composed countenance, unruffled by the slightest emotion, till
the clerk came to the words Charles Stuart, as a tyrant, traitor, murderer,
etc.; at which the King laughed, as he sat, in the face of the Court. The
silver head of his staff happened to fall off, at which he appeared surprised ;
Herbert, who stood near him, offered to pick it up, but Charles, seeing he
could not reach it, stooped for it himself. When the words were read
stating the charge to be exhibited ' on behalf of the people of England," a
voice in a loud tone called out, ' No, nor the half of the people — it is
false — where are they or their consents ? — Oliver Cromwell is a traitor.'
This occasioned a confusion in the court ; Colonel Axtell even com-
manded the soldiers to fire into the box from which the voice proceeded.
But it was soon discovered that these words, as well as a former exclama-
tion on calling Fairfax's name, were uttered by Lady Fairfax, the General's
wife, who was immediately compelled by the guard to withdraw." —
Trial of Charles I., Family Library, xxxi.
TRIAL OF CHARLES I.
FROM AN OLD PRINT.
LIFE OF LORD PRESIDENT BRADSHAW. 235
you have heard the charge read, and we expect that ,
you will answer it;" or that, upon an explanation A«*>ui>t of
being required, he observed that "the authority of theshaw'scon-
Court could not be disputed." He certainly did, more continued.
than once, use language unnecessarily disrespectful, as
when he talked of Charles being an " elected King,"
and exclaimed with a sneer, " Sir, how well you have
managed your trust is known ; your way of answer is
to interrogate the Court, which beseems not you in
this condition. How great a friend you have been to
the laws and liberties of the people, let all England
and the world judge. How far you have preserved
the privileges of the people, your actions have spoke
it ; but truly, Sir, men's intentions ought to be known
by their actions : you have written your meaning in
bloody characters throughout the whole kingdom."
However, on each of the three days when Charles was
brought to the bar of the Court, he was courteously
requested to plead, and he was never interrupted
unless when he denied the authority of the judges to
sit there. It is likewise remarkable that Bradshaw Jan. 27.
abstained from pronouncing with his own mouth the
sentence "that the said Charles Stuart, as a tyrant,
traitor, murderer, and public enemy to the good
people of this nation, shall be put to death by the
severing of his head from his body " — but ordered it to
be read by the clerk, and then merely added, " the
sentence now read and published is the act, sentence,
judgment, and resolution of the whole Court;" where-
upon Cromwell, Ireton, Lord Grey de Groby, Ludlow,
and the other regicides, stood up, as had been previ-
ously arranged, in token of their assent.
Bradshaw afterwards, on the 2gth of January, pre-jan. 29.
sided at a meeting of the Court, when it was resolved
" that the open street before Whiteliall is a fit place for
executing the judgment against the King, and that the
236 THE COMMONWEALTH.
CHAP. King be there executed on the morrow." ' Bradshaw,
as President, was the first of the fifty-nine who signed
the fatal warrant, of which a fac-simile may be seen on
every book-stall.2
February. His conduct was, I think, still more culpable on
Duke°offthe several trials that followed before the High Court of
. Justice. The Duke of Hamilton3 had fought at
Worcester under the command of the King of Scots
and by the authority of the Scottish parliament.
Being taken in battle, he was to be considered, and he
had been long treated, as a prisoner of war. Now he
was arraigned before this tribunal, constituted by an
ordinance of the English House of Commons, — on a
charge of high treason against the people of England.
He pleaded that although he had the English title of
Earl of Cambridge, by which he was prosecuted, he
was born and continued domiciled in Scotland, obliged
to obey the King and parliament of that independent
state, and that even in England there was no law by
which as an English peer he could be so tried upon
1. It is very extraordinary that a controversy should have arisen as
to whether the execution was in front or behind the Banqueting-house, in
spite of this order, and contemporaneous prints, which exhibit the scaffold
between the windows looking to the west, and show the populace looking
up at it from Charing Cross.
2. 4 St. Tr. 990-1155 ; Rebellion, iii. 384 ; Whitelock, 366.
3. James, Duke of Hamilton, was the eldest son of James, Marquis of
Hamilton, by Lady Anne Cunningham, daughter of James, Earl of Glen-
cairn, and born in Scotland June 19, 1606. He studied at Exeter College,
Oxford, and at the age of eighteen succeeded to his father's title. He
now rose in high favor at Court, but gained little credit by an expedition
into Germany to assist Gustavus Adolphus of Sweden, 1630. When the
troubles broke out in Scotland, the Marquis had the command of the fleet,
and in 1643 was created a Duke ; but soon afterwards his loyalty became
suspected, and he was sent prisoner to Pendennis Castle, and next to that
of St. Michael's Mount, Cornwall. There he remained till 1646, when he
regained his liberty and went to Scotland, where he was accused of having
betrayed the King and received a share of the money. To wipe off this
disgrace, he raised some forces and entered England, but was defeated at
Preston, in Lancashire, Aug. 17, 1648, and sent to Windsor Castle.
After a summary trial, he was sentenced to be beheaded, which was put
in execution March 9, 1648-9.— CoopeSs Biog. Diet.
LIFE OF LORD PRESIDENT BRADSHAW. 237
such a charge. But the Lord President Bradshaw CHAP.
laid down, that, though born in Scotland, the moment
he crossed the border he was subject to the English
law, and that by fighting against an army commissioned
by the English parliament he was guilty of the crime
of high treason. So sentence of death was passed
upon him.
Next came four Englishmen, the Earl of Holland, Trial of
the Earl of Norwich, Lord Capel,1 and Sir John royalists.
Owen, taken prisoners by General Fairfax, who had
declared to them that their lives should not be in
danger. They urged, that in fighting for the King
they could not be guilty of high treason ; and that, at
any rate, the engagement of the parliamentary general
was binding. Lord Capel, in particular, claimed as an
English peer to be tried by his peers, according to his
birthright:
Lord President Bradshaw : " My Lord Capel, let me tell Brad-
you you are tried before such Judges as the Parliament think regard of*"
right to assign you, and these Judges have already condemned ^wtiand
a better man than yourself. As to the defence on the merits,
the Parliament had become the supreme power in the state,
and to levy war against the Parliament was treason. The
supposed promise of General Fairfax was never ratified by the
Parliament ; and, at most, it could only exempt the prisoners
from being tried before a council of war, without precluding
any proceeding which might be necessary for the peace and
safety of the kingdom."
They were all convicted. On a petition to the
House of Commons for mercy, Owen was pardoned
by a large majority, and the Earl of Norwich escaped
by the casting voice of the Speaker. But, after a long
I. Arthur, Lord Capel, an English cavalier of Hertfordshire, who was
elected a member of Parliament in 1640. After acting with the popular
party, he turned royalist, and was created Baron Capel in 1641. In the
civil war he held a high command in the royalist army, and was appointed
a counsellor of the Prince of Wales. After having made peace, or " com-
pounded," with Parliament, he joined another revolt in 1648, was taken
by Fairfax, tried for treason, and executed in 1649. — Thomas' Biog. Diet.
etc.
A.D,
238 THE COMMONWEALTH.
CHAP, debate on the Earl of Holland's case, there was a
majority of one against him ; and the friends of the
Duke of Hamilton, and of Lord Capel, found so little
support that they did not venture to divide the House.
Accordingly, these three noblemen were executed as
traitors, this being the first specimen of criminal pro-
cedure since the establishment of the new Republic.
No state trial under the Stuarts shows such an utter
contempt of the conventional forms of law and the
eternal principles of justice.1
He is made As a recompense for the eminent services of Lord
of the* >r President Bradshaw, an ordinance passed for settling
Lancaster, upon him 2,ooo/. a year out of the forfeited estates of
. 1650. malignants,2 he was appointed Chancellor 8 of the
1. 4 St. Tr. 1155-1236 ; Rebellion, iii. 402 ; Whitelock, 386 ; Ludlow,
247 ; Burner's Hamiltons, 385.
2. Whitelock, 420. A phrase used by the Parliament to describe the
King's evil advisers. It occurs frequently in the Grand Remonstrance.
" All the fault is laid upon ill ministers, who are there called a malignant
party " (May). The Commons began by saying that for the last twelve
months they have labored to reform the evils which afflict the kingdom,
and ' ' do yet find an abounding malignity and opposition in those parties
and factions who have been the cause of those evils." They go on to say
that " the root of all this mischief " is "a malignant and pernicious design
of subverting the fundamental laws and principles of government, upon
which the religion and justice of this kingdom are firmly established."
Strafford and Laud were the heads of this " malignant party," who
were "the actors and promoters of all our misery." This party, they
conclude, still exists, hinders the work of reformation, and sows discord
between King and Parliament, and between Parliament and people.
The name came to be applied afterwards to all who supported the King
against the Parliament. The Lord Mayor of London, Sir Richard
Gourney, says Clarendon, " grew to be reckoned in the first form of the
malignants, which was the term they imposed upon all those they
meant to render odious to the people." — Low and Putting's Diet, oj Eng.
Hist.
3. Among the records of the office which I have now the honor
to hold, I find the ordinance for the appointment of my distinguished
predecessor :
" An Act for the making of John Bradshawe, now Sergeant-at-law,
and Lord President of the Council of State, Chancellor of the
Duchy and County Palatine of Lancaster.
" Be it enacted by the present Parliament, and by the authority
of the same, that John Bradshaw, Sergeant-at-law, Lord President
of the Council of State by authority of Parliament, shall be and is
LIFE OF LORD PRESIDENT BRADSHAW. 239
Duchy of Lancaster, and he was raised to be a C"A.P-
XIV.
hereby nominated, constituted, and appointed Chancellor of the Duchy
of Lancaster, and Chancellor of the County Palatine of Lancaster, and
Keeper of the respective Seals (appointed by the authority aforesaid)
for the said Duchy and County Palatine ; to hold, execute, and enjoy
the said offices and places, and all powers, jurisdictions, and authori-
ties lawfully belonging to the same ; and also to enjoy and receive
all such fees, privileges, advantages, and profits as are thereunto of
right belonging, in as large and ample manner as any former Chan-
cellor of the Duchy and County Palatine of Lancaster, and Keeper
of the Seals of the said Duchy and County Palatine, lawfully have
held, exercised, and enjoyed the same, until the loth day of August
which shall be in the year of our Lord God 1650. And it is further
enacted by the authority aforesaid, that the clerk of the court of the
said Duchy do forthwith prepare a patent in the name of Custodes
Libertatis Aiiglite Authoritatt Parliamenli, in the usual form mutatis
mutandis, to pass the seals of the said Duchy and County Palatine of
Lancaster for granting of the said offices unto the said Lord President
of the Council of State, according to this act. And it is further enacted,
by the authority aforesaid, that the Commissioners of the Great Seal of
England, or any one of them, shall receive into his or their hands the
seals appointed by this present Parliament for the said Duchy and
County Palatine, which commissioners or any two of them are there-
upon to affix the said several seals to the said patent, and to administer
to the said Lord President an oath for the due execution of the said
places and offices in manner and form following ; viz.:
" ' You shall swear that, to your cunning and knowledge, you shall
do equal right and justice, and be indifferent in all matters to all man-
ner of men that shall pursue and answer before you and the Council of
the Duchy of Lancaster for the Commonwealth of England, and that
which shall be most for the avail and profit of the Commonwealth and
good rule and governance of the said Duchy, as far as right and con-
science will require.'
"And after the said oath administered, the said Commissioners of
the Great Seal, or any two of them, are to deliver the said patent and
both the said seals of the said Duchy and County Palatine to the said
Lord President, to be by him kept as Chancellor of the said Duchy
and County Palatine."
There were several other ordinances, acts, and patents, continuing
" Lord Bradshaw" in the office till Oliver's death.
The original of the following warrant under the sign manual of
Richard is extant :
" Our will and pleasure is, that you forthwith prepare fit for our
signature a bill containing our grant and constitution of our trusty and
well-beloved John Bradshawe, Sergeant-at-Iaw, of our especial grace,
and in consideration of his faithful and acceptable services to the pub-
lique, to be Chancellor of the County Palatine of Lancaster of us and
our successors, and also Keeper of the Seal of us and our successors
for the said office, provided or to be provided. And also to be Chan-
cellor of the Duchy of Lancaster of us and our successors, and Keener
240
THE COMMONWEALTH.
CHAP.
XIV.
He op-
poses
Cromwell
April 20,
member of the Council of State.1
We must, in fairness, allow that he now acted his
part with consistency and courage. A friend to pure
democracy, he strenuously opposed the efforts of Crom-
well to engross all the powers of the state into his own
hands, and even on the violent dissolution of the Long
Parliament he remained unappalled. Although he had
not a seat in that assembly, he availed himself of an
opportunity to assert his independence as a member
of the Council of State. In the afternoon of the day
which saw the " bawble " forcibly removed from the
table of the House of Commons, he called a meeting
of his colleagues at Whitehall, and he had just taken
the chair when the Lord General, entering, said,—
'" Gentlemen, if ye are here as private individuals, ye are
welcome ; but if as a Council of State, ye must know that the
Parliament is dissolved, and with it also the Council.' ' Sir,"
replied Bradshaw, with great spirit, ' we have heard what you
did at the House this morning, and before many hours all
England will know it. But, sir, you are mistaken to think that
the Parliament is dissolved. No person under heaven can
of the Seal of us and our successors for the said office, provided or to
be provided ; with our grant unto him the said John Bradshaw of the
aforesaid offices respectively, etc. . so long as he shall therein well
demean himself, etc. Given at Whitehall the 5th day of December,
1658."
The bill was prepared for signature, and was presented to and
signed by his Highness Richard Lord Protector ; and a patent was ac-
cordingly sealed, bearing date the i6th of December, 1658. The draft
is indorsed " Lord Bradshawe's Patent of Chancellor of the County
and Duchy of Lancaster," and he is therein described as " our trusty
and well-beloved John Bradshawe, Sergeant-at-law, Chief Justice of
Chester, Montgomery, Denbigh, and Flint."
The proceedings of the Duchy Court, during the Chancellorship of
" Lord Bradshaw," exhibit great regularity. The business of the Court
was considerable, and many very important decrees were pronounced
by him, as well in original suits as upon appeal from the Vice-Chan-
cellor.
Some attempts were made during the Commonwealth to abolish the
Duchy and County Palatine of Lancaster ; but they continued, with all
their immunities and privileges, till the Restoration.
I. Whitelock, 529.
LIKE OF LORD PRESIDENT BRADSHAW. 24!
dissolve them but themselves. Therefore take you notice
of that." After this protest he withdrew."1
Resistance by physical force to Oliver, become
Lord Protector, President Bradshaw found to be im-
possible ; but he refused to acknowledge the usurper's
authority, and he eagerly thwarted his measures. He
was not admitted to Barebone's parliament, which was
nominated by the executive government; but, a newHethwarts
Cromwell's
parliament being called in 1654, on the excellent re-measures
in a new
formed model imitated by Lord Grey, he was returned parlia-
ment.
one of the four members for his native county, and was
at the top of the poll.2 At the commencement of the
session —
" Lord President Bradshaw was very instrumental in open-
ing the eyes of many young members who had never before
heard their interest so clearly stated and asserted ; so that the
Commonwealth party increased daily, and that of the sword
lost ground. Cromwell, being informed of these transactions
by his creatures, and fearing lest he should be deposed by a
vote of this assembly from the throne which he had usurped,
caused a guard to be set on the House early in the morning,
and required the members to attend him in the Painted
Chamber. There he acquainted them that none should be
permitted to sit who did not subscribe to the Government
by a single person. So soon as this visible hand of violence
appeared to be upon them, most of the eminent asserters
of the liberty of their country withdrew themselves, being
persuaded they should best discharge their duty to the nation
by this way of expressing their abhorrence of his tyrannical
proceedings."
Cromwell, afraid of Bradshaw's secret plots, wished He refuses
to take out
to come to an open rupture with him, and, summoning anew com-
him to Whitehall, required him to take out a new Cromwell'*
commission for his office of Chief Justice of Chester.
Bradshaw: "Sir, I require no new commission, and I
1. Whitelock, 554 ; Leicester's Journal, 139 ; Hutchinson, 332 ; Bur-
ton's Diary, iii. 98.
2. 3 Parl. Hist. 1428.
242 THE COMMONWEALTH.
CHAP. win take none. I hold the office by a grant from the
parliament of England, in the terms quam diu se bcne
gesserit.1 And whether I have carried myself with that
integrity which my commission exacts from me, I am
ready to submit to a trial by twelve Englishmen to be
chosen by yourself." He resolved to go his circuit as
usual, unless he should be prevented by force ; and a
collision was expected. " But it was thought more
advisable," says Ludlow, " to permit him to execute
his office, than, by putting a stop to his circuit, to make
a breach with those of the long robe whose assistance
was so necessary to the carrying on of Cromwell's
design."2
Bradshaw remained in a state of sulky opposition
during the remainder of Oliver's Protectorate, refusing
a peerage and other lures that were held out to win
A.D. 1659. him over. On the accession of Richard he had again
His effort .
to restore hopes of seeing a democratical republic established.
the Re- . . .-^ . . ,
public. In consequence, he accepted a seat in the Council 01
State, and he allowed himself to be returned as a mem-
ber for Cheshire to the new parliament.3 He rejoiced
to find that the Cromwell dynasty was set aside, and
for a short time there was a hope for the good cause.
June. The Commonwealth having been again proclaimed, he
agreed to be a commissioner of the Great Seal, with
Terryll and Fountain, two violent republicans ; and he
triumphantly swore to be " true to this Commonwealth,
without a single person, kingship, or House of Lords."
But in a few weeks he had the mortification to see the
supreme power again in the hands of the military, and
guish kt his health suffered severely from the anguish of his
seeing this t .
frustrated, spirit.
September. At a meeting of the Council, Colonel Sydenham,
having tried to justify the violent dispersion of the
1. " As long as he shall have conducted himself well."
2. Mem. 216, 220. 3. 3 Parl. Hist. 1531.
LIFE OK LORD PRESIDENT BRADSHAW. 243
Parliament on the plea that it had been rendered c,
necessary by a particular call of Divine Providence,
"the Lord President Bradshaw, who was then present,
though by long sickness very weak and much exten-
uated, yet animated by his ardent zeal and constant
affection to the common cause, upon hearing those
words, stood up and interrupted him, declaring his
abhorrence of that detestable action, and telling the
Council that ' being now going to his God he had not
patience to sit there to hear this great name so openly
blasphemed ; ' he thereupon departed to his lodgings,
and withdrew himself from public employment." '
He languished till the 3ist of October, when heOct-3'.
His death.
expired — pleased with the thought of being removed
to another scene of existence before the irresistible re-
action which he deplored had produced the restoration
of the Stuart line. In Whitelock's Memorials the
entry of his death concludes with these words : " a
stout man, and learned in his profession — no friend to
monarchy."
The most wonderful testimony in his favor is from
Milton, who is said to have been recommended by him
to Cromwell for the place of Latin secretary, and in
his " Defensio pro Populo Anglicano " thus extols
him :
" John Bradshaw — a name which Liberty herself, in every Panegyric
country where her power is acknowledged, has consecrated to ty°Miiton.
immortal renown — was descended, as is well known, from a
distinguished family. The early part of his life he devoted to
the study of the laws of his country. Having become a pro-
found lawyer, an eloquent advocate, and a zealous asserter of
the rights of the people, he was employed in important state
affairs, and frequently discharged with unimpeachable integ-
rity the duties of a Judge. When at length selected by the
Parliament to preside at the trial of the King, he did not de-
cline this most dangerous task : to the science of the law, he
i. Ludlow, 277.
244 THE COMMONWEALTH.
had brought a liberal disposition, a lofty spirit, sincere and
unoffending manners ; thus qualified, he supported that great
and unprecedentedly fearful office, exposed to the threats and
to the daggers of innumerable assassins, with so much firm-
ness, such gravity of demeanor, such presence and dignity of
mind, that he seemed to have been formed and appointed im-
mediately by the Deity himself, for the performance of that
deed which the Divine Providence had long before decreed to
be accomplished in this nation ; and so far has he exceeded
the glory of all former tyrannicides, as it is more humane,
more just, more noble, to pass a lawful sentence upon a
tyrant, than to put him to death like a wild beast. Ever eager
to discover merit, he is equally munificent in rewarding it.
Delighted to dwell on the praises of others, he studiously sup-
presses his own." l
After MS His death before the Restoration saved him from
attainted the fate which befell other regicides. But, contrary
cutedXaTa to the sentiment that " English vengeance wars not
jaan!°3o, with the dead," an act of parliament was passed to
attaint him ; and both Houses made an order " that
the carcasses of Oliver Cromwell, John Bradshaw, and
Henry Ireton, (whether buried in Westminster Abbey,
or elsewhere,) be with all expedition taken up, and
I. " Est Joannes Bradscianus (quod nomen libertas ipsa, quacunque
gentium colitur, memoriae sempiternae celebrandum commendavit) no-
bili familia, ut satis notum est, ortus ; unde patriis legibus addiscendis
primam omnem aetatem sedulo impendit : dein consultissimus causarum
et disertissimus patronus, libertatis et populi vindex acerrimus, et
magnis reipublicse negotiis est adhibitus, et incorrupt! judicis munere
aliquoties perfunctus. Tandem uti Regis judicio presidere vellet a
senatu rogatus, provinciam sane periculosissimam non recusavit. At-
tulerat enim ad legum scientiam ingenium liberale, animum excelsum,
mores integros ac nemini obnoxios ; unde illud munus, omni prope ex-
emplo majus ac formidabilius, tot sicariorum pugionibus ac minis peti-
tus, ita constanter, ita graviter, tanta animi cum praesentia ac dignitate
gessit atque implevit, ut ad hoc ipsum opus, quod jam olim Deus eden-
dum in hoc populo mirabili providentia decreverat, ab ipso numine
designatus atque factus videretur ; et tyrannicidarum omnium gloriam
tantum superaverit, quanto est humanius, quanto justius ac majestate
plenius tyrannum judicare, quam injudicatum occidere. Kene meren-
tes quoscunque nemo citifis aut libentius agnoscit, neque majore
benevolentia prosequitur ; alienas laudes pcrpetuo prasdicare, suas
tacere solitus."
LIFE OF LOKD PRESIDENT BRADSHAW. 245
drawn upon a hurdle to Tyburn, and there hanged
up in their coffins upon the gallows there some time,
and after that buried under the said gallows." A con-
temporary historian gives the following account of the
ceremony :
" Thursday, January 30, 1660-1, the odious carcasses
Oliver Cromwell, John Bradshaw, and Henry Ireton, were this.
taken out of their graves, drawn upon sledges to Tyburn, and,
being pulled out of their coffins, there hanged at the several
angles of the triple tree till sunset ; then taken down, be-
headed, and their loathsome trunks thrown into a deep hole
under the gallows.1 Their heads were afterwards set upon
poles on the top of Westminster Hall."2
1. 1661, January 30. " This day (O the stupendous and inscrutable
judgements of God !) were the carcasses of those arch rebells Cromwell,
Bradshaw the judge who condemn'd his Majestic, and Ireton, son-in-
law to ye Usurper, dragg'd out of their superb tombs in Westminster
among the kings, to Tyburne, and hang'd on the gallows from 9 in ye
morning till 6 at night, and then buried under that fatal and ignomin-
ious monument in a deepe pitt ; thousands of people who had scene
them in ail their pride being spectators. Looke back at November 22,
1658 (Oliver's funeral), and be astonish'd ! and feare God and honor
ye Kinge; but meddle not with them who are given to change."—
Evelyn's Diary.
2. Gesta Britannorum, by Sir George Wharton. London, 1667.
" Ireton's head was in the middle, and Cromwell's and Bradshaw's on
either side. Cromwell's head, being embalmed, remained exposed to
the atmosphere for twenty-five years, and then one stormy night it was
blown down, and picked up by the sentry, who, hiding it under his
cloak, took it home and secreted it in the chimney-corner, and, as
inquiries were constantly being made about it by the Government, it
was only on his death-bed that he revealed where he had hidden it.
His family sold the head to one of the Cambridgeshire Russells, and,
in the same box in which it still is, it descended to a certain Samuel
Russell, who, being a needy and careless man, exhibited it in a place
near Clare Market. There it was seen by James Cox, who then owned
a fr.mous museum. He tried in vain to buy the head from Russell ; for,
poor as he was, nothing would at first tempt him to part with the relic,
but after a time Cox assisted him with money, and eventually, to clear
himself from debt, he made the head over to Cox. When Cox at last
parted with his museum, he sold the head of Cromwell for 23O/. to
three men, who bought it about the time of the French Revolution to
exhibit in Mead Court, Bond Street, at half a crown a head. Curiously
enough, it happened that each of these three gentlemen died a sudden
death, and the head came into the possession of the three nieces of
246 THE COMMONWEALTH.
CHAP. As a pendant to the well-known story that Charles
I.'s head had been substituted for Cromwell's, and
^.rad: underwent this indignity, a narrative was given to the
shaw's re- ' '
mains said world that the remains of President Bradshaw, beintr
to have
been carried to America before the Restoration, were de-
carried to
America posited in that Land of Liberty ; and the following
before this r
time. inscription is to be read on a cannon at Annapolis :
His "Stranger!
epitaph. Ere thou pass, contemplate this cannon ;
nor regardless be told,
that near its base lies deposited the dust of
JOHN BRADSHAW,
who, nobly superior to selfish regards,
despising alike the pageantry of courtly splendor,
the blast of calumny,
and the terror of regal vengeance,
presided in the illustrious band of heroes and patriots
who fairly and openly adjudged
CHARLES STUART,
tyrant of England,
to a public and exemplary death ;
thereby presenting to the amazed world,
and transmitting down through applauding ages,
the most glorious example
of unshaken virtue, love of freedom,
and impartial justice,
ever exhibited on the blood-stained theatre
of human action.
Oh ! Reader !
pass not on till thou hast blessed his memory ;
and never — never forget
THAT REBELLION TO TYRANTS
IS OBEDIENCE TO GOD."
the last man who died. These young ladies, nervous at keeping it in the
house, asked Mr. Wilkinson, their medical man, to take care of it for
them, and they subsequently sold it to him. For the next fifteen or
twenty years Mr. Wilkinson was in the habit of showing it to all the
distinguished men of that day, and the head, much treasured, remains
in the family. The circumstantial evidence is very curious. It is the
only head in history which is known to have been embalmed and after-
wards beheaded. On the back of the neck, above the vertebrae, is the
mark of the cut of an axe where the executioner, having, perhaps, no
proper block, had struck too high, and, laying the head in its soft
embalmed state on the block, flattened the nose on one side, making it
adhere to the face. The hair grows promiscuously about the face, and the
LIKE OK LORD PRESIDENT BRADSHAW. 247
beard, stained to exactly the same color by the embalming liquor, is CHAP.
tucked up under the chin with the oaken staff of the spear with which Ihe XIV'
head was stuck upon Westminster Hall, which staff is perforated by a
worm that never attacks oak until it has been for many years exposed to
the weather. The iron spear-head, where it protrudes above the skull, is
rusted away by the action of the atmosphere. The jagged way in which
the top of the skull is removed throws us back to a time when surgery was
in its infancy, while the embalming is so beautifully done that the cellular
process of the gums and the membrane of the tongue are still to be
seen." — Letter signed " Scnex ," London '1'imes, Dec. 31, 1874.
248 KEIUN OF CHARLES II.
CHAPTER XV.
CHIEF JUSTICES OF THE KING'S BENCH FROM THE
RESTORATION TILL THE APPOINTMENT OF SIR
MATTHEW HALE.
CHAP. AT the restoration of Charles II. it was considered
necessary to sweep away the whole of the Judges from
irffi 'T0' Westminster Hall, although, generally speaking, they
of fining were very learned and respectable, and they had
the Bench J .
at the Res- administered justice very impartially and satisfac-
torily.1 Immense difficulty was found in replacing
them. Clarendon was sincerely desirous to select the
fittest men that could be found, but from his long exile,
he was himself entirely unacquainted with the state
of the legal profession, and, upon making inquiries,
hardly any could be pointed out whose political prin-
ciples, juridical acquirements, past conduct, and pres-
ent position entitled them to high preferment. The
most eminent barristers on the royalist side had retired
from practice when the civil war began, and the new
generation which had sprung up had taken an oath
to be faithful to the Commonwealth. One individual
sir Or- was discovered, Sir Orlando Bridgman — eminent both
lando ' ' . . .
Bridg- for law and for loyalty. Early distinguished as a
rising advocate, he had sacrificed his profits that he
might assist the royal cause by carrying arms, and,
refusing to profess allegiance to those whom he con-
sidered rebels, he had spent years in seclusion, — still
devoting himself to professional studies, in which he
I. Their decisions are still of as much authority on legal questions as
those of courts sitting under a commission from the Crown; and they
were published with the sanction of the Chancellor and all the Judges in
the reigns of Charles II. and James II.
LIFE OF CHIEF JUSTICE FOSTER. 249
took the highest delight. At first, however, it was
thought that he could not properly be placed in a
higher judicial office than that of Chief Baron of the
Exchequer, — and the Chiefships of the King's Bench
and Common Pleas were allowed to remain vacant
some months, puisnies being appointed in each court to
carry on the routine business.
At last a Chief Justice of England was announced, ?,ir Roberl
I'oster.
— SIR ROBERT FOSTER; and his obscurity testified Chief ->us-
J tice.
the perplexity into which the Government had been
thrown in making a decent choice. He was one of the H'sProfes-
sional
very few survivors of the old school of lawyers which career-
had flourished before the troubles began ; he had been
called to the degree of Sergeant-at-law so long ago as
the 3Oth of May, 1636, at a time when Charles I., with
Strafford for his minister, was ruling with absolute
sway, was imposing taxes by his own authority, was
changing the law by proclamation, and hoped never
again to be molested by parliaments. This system
was condemned and opposed by the most eminent men
at the English bar, but was applauded and supported
by some who conscientiously thought that all popular
institutions were mischievous; and by more who
thought that court favor gave them the best chance
of rising in the world. Foster is supposed to have
defended Ship-money, — the cruel sentences of the Star
Chamber, — the billeting of soldiers to live at free
quarters, and other flagrant abuses, — as well from a
sincere love of despotism as from a desire to recom-
mend himself to those in power.
At the time when tyranny had reached its culmi-Heis
nating point, he was appointed a Puisne Judge of the Puisne*
Court of Common Pleas. Luckily for him, Hanap- Ch
den's case had been decided before his appointment, i^p.27'
and he was not impeached by the Long Parliament.
When the civil war broke out, he followed the King;
REIGN OF CHARLES II.
t HAP. U1K] afterwards assisted in attempting to hold a Court
of Common Fleas at Oxford, but sat alone, and his
tribunal was without advocates or suitors. An ordi-
nance passed the House of Commons for removing
him from his office, and, on account of his excessive
zeal in the royal cause, he was obliged to compound
for his estate by paying a very large fine.
His con- After the King's death, he continued in retirement
^X1"" till the Restoration. He is said to have had a small
weakii.""" chamber in the Temple, and, like Sir Orlando Bridg-
man and Sir Jeffrey Pelman, to have practised as a
chamber counsel, chiefly addicting himself to convey-
ancing.
The first act of the Government of Charles II. was
A.D. 1660.
He is re- to reinstate Foster in his old office. There was a
instated hy
diaries ii. strong desire to reward his constancy with fresh
honors; but he was thought unfit to be raised higher,
and the office of Chief Justice of the King's Bench
could not be satisfactorily filled up.
Only six Common-law Judges had been appointed
when the trials of the regicides came on. Foster, being
one of them, distinguished himself for his zeal ; and,
when they were over, all scruples as to his fitness having
o«. 22. vanished, he, who a few months before, shut up in his
chamber that he might escape the notice of the Round-
heads, never expected any thing better than to receive
a broad piece for preparing a conveyance according to
the recently invented expedient of " lease and release,"
was constituted the highest Criminal Judge in the
kingdom.1
He presided in the Court of King's Bench for two
I. " M. T. 12 C. II. Memorandum que le primer jour de cest terme
Sir Robert Foster, un des Justices del common Bank, feut jure Chiefe
lustice del Banco Regis. II prisant les serements del allegiance et su-
premacy generlerant (come lauter Justices font) queux serements fueront
lege a luy hors del Rolle mesme et nemy hors del livre le Seigneur Chan-
cellor scant sur le Banke et Foster esteant en le Court et nemy al barr."
LIFE OK CHIEF JUSTICE FOSTER. 251
years. Being a deep black-letter lawyer, he satisfac-
torily disposed of the private cases which came before
him, although he was much perplexed by the improved
rules of practice introduced while he was in retirement,
and he was disposed to sneer at the decisions of Chief
Justice Rolle, a man in all respects much superior to
himself. In state prosecutions he showed himself as
intemperate and as arbitrary as any of the Judges who
had been impeached at the meeting of the Long Par-
liament.
To him chiefly is to be imputed the disgraceful
execution, as a traitor, of one who had disapproved of He brings
about the
the late King's trial; who was included in the present conviction
0 and execu-
King's promise of indemnity from Breda;1 in whose tionof Sir
favor a petition had been presented by the Convention van«-
Parliament ; who was supposed to be expressly par-
doned by the answer to that petition;2 but who had
incurred the inextinguishable hatred of the Cavaliers
by the part he had taken in bringing about the convic-
1. Charles II., in his Declaration from Breda, had promised that he
should " proceed only against the immediate murderers of his royal
father."
The Declaration of Breda (April 14, 1660) was the manifesto sent by
Charles II. to both Houses of the Convention Parliament. By this the
King granted a free and general pardon to all ''who within forty days
after the publishing hereof shall lay hold upon this our grace and favor,
and shall by any public act declare their doing so," except such as Par-
liament should except. It also granted amnesty for all political offences
committed during the civil war and the subsequent interregnum ; prom-
ised that the King would rely on the advice and assistance of a free par-
liament ; and declared a liberty to tender consciences, so "that no man
shall be disquieted or called in question for differences of opinion in
matter of religion." The King also undertook that no inquiry should be
made into the titles of lands acquired under the Commonwealth, and that
the arrears of Monk's officers and soldiers should be paid. — Low and Pull-
ing's Diet, of Enff. Hist.
2. In answer to the address of the two Houses of the Convention Par-
liament to spare the lives of Vane and Lambert, the Lord Chancellor re-
ported "His Majesty grants the desire of the said petition ; " — the ancient
form of passing acts of Parliament. The ultra-Cavalier House of Com-
mons which followed desired Vane's death, but could not alter the law or
abrogate the royal promise.
REIGN OF CHARLES II.
CHAP, tion of the Earl of Strafford.1 Sir Henry Vaue the
The case Younger, after lying two years in prison, during which
the shame of putting him to death was too strong to
be overcome, was at last arraigned for high treason at
the King's Bench bar. As he had actually tried to
save the life of Charles I., the treason charged upon
him was for conspiring the death of Charles II., whose
life he would have been equally willing to defend,
dictment. The indictment alleged this overt act, " that he did
take upon him the government of the forces of this
nation by sea and land, and appointed colonels, cap-
tains, and officers." The Crown lawyers admitted that
the prisoner had not meditated any attempt upon the
natural life of Charles II., but insisted that, by acting
under the authority of the Commonwealth, he had
assisted in preventing the true heir of the monarchy
from obtaining possession of the government, and
thereby, in point of law, had conspired his death, and
had committed high treason. Unassisted by counsel,
and browbeaten by Lord Chief Justice Foster, he made
Vane's a gallant defence ; and, besides pointing out the bad
defence, faith of the proceeding after the promises of indemnity
and pardon held out to him, contended that, in point
of law, he was not guilty, on the ground that Charles
1 1. had never been in possession of the government as
King during any part of the period in question ; that
the supreme power of the state was then vested in the
Parliament, whose orders he had obeyed ; that he was
in the same relation to the exiled heir as if there had
been another king upon the throne ; and that the stat-
ute of Henry VII., which was only declaratory of the
common law and of common-sense, expressly provided
i. Burnet says, "The putting Sir Henry Vane to death was much
blamed ; )ret the great share he had in the attainder of the Earl of Straf-
ford, but, above all, the great opinion there was of his parts and capacity
to embroil matters again, made the Court think it necessary to put him
out of the wav."
LIFE OF CHIEF JUSTICE FOSTER. 253
that no one should ever be called in question for obey- c^y[>
ing, or defending by force of arms, a king de facto,
although he had usurped the throne. He concluded
by observing that the whole English nation might be
included in the impeachment.
Foster, C. J.: "Had there been another king on the Foster's
throne, though an usurper, you might have been exempted by
the statute from the penalties of treason. But the authority
you recognized was called by the rebels either ' Common-
wealth ' or ' Protector,' and the statute takes no notice of any
such names or things. From the moment that the martyred
sovereign expired, our lord the King that now is must be con-
sidered as entitled to our allegiance, and the law declares
that he has ever since occupied his ancestral throne. There-
fore obedience to any usurped authority was treason to him.
You talk of the sovereign power of Parliament ; but the law
knows of no sovereign power except the power of our sover-
eign lord the King.1 With respect to the number against
whom the law shall be put in force, that must depend upon
his Majesty's clemency and sense of justice. To those who
truly repent he is merciful ; but the punishment of those who
repent not, is a duty we owe both to God and to our fellow-
men."
A verdict of guilty being returned, the usual sen-
tence was pronounced; but the King, out of regard The King^
. .... ... reluctance
to his own reputation, if not to the dictates of justice t<> sanction
and mercy, was very reluctant to sanction the execu-ecution. "
tion of it till Chief Justice Foster, going the following
day to Hampton Court to give him an account of the
trial, represented the line of defence taken by the pris-
oner as inconsistent with the principles of monarchical
I. Sir Henry Vane, in an account of his case which he has left us, says,
"On the day of my arraignment an eminent person was heard to say, ' I
had forfeited my head by what I had said that day before ever I came to
my defence : ' what that should be I know not, except my saying in open
court ' sovereign power of Parliament ; ' but whole volumes of lawyers'
books pass up and down the nation with that title, ' SOVF.RKIGN POWER
OF PARLIAMENT.'" — 66V. Tr. 186. This "eminent person" was most
likely the Chief Justice of the Court of King's Bench.
2,4 REIGN OK CHARLES II.
CHAI>. 'government, and said that the supposed promises of
pardon were by no means binding, " for God, though
ofttimes promising mercy, yet intends his mercy only
for the penitent." The King, thus wrought on, not-
withstanding his engagement to the contrary, signed
the death-warrant, and Vane was beheaded on Tower
Hill, saying with his last breath, " I value my life less
in a good cause than the King does his promise." Mr.
Fox, and other historians, consider this execution " a
gross instance of tyranny," but have allowed Chief
Justice Foster, who is mainly responsible for it, to
escape without censure.1
Foster's The arbitrary disposition of this Chief Justice was
cruel treat-
ment of strongly mamlested soon alter, when John Crook and
several other very loyal Quakers were brought before
him at the Old Bailey for refusing to take the oath
of allegiance :
Hisdia- Foster, C. J.: "John Crook, when did you take the oath
C8U<kWeth °^ allegiance ? " Crook : " Answering this question in the
specting negative is to accuse myself, which you ought not to put me
allegiance! upon. ' Ne mo debet seipsum prode re . ' 2 lam an Englishman,
and I ought not to be taken, nor imprisoned, nor called in
question, nor put to answer but according to the law of the
land." Foster, C. J.: "You are here required to take the
oath of allegiance, and when you have done that, you shall be
heard." Crook: "You that are Judges on the Bench ought
to be my counsel, not my accusers." Foster, C. J.: " We are
here to do justice, and are upon our oaths ; and we are to tell
you what is law, not you us. Therefore, sirrah, you are too
bold!" Crook: "Sirrah is not a word becoming a judge.
If I speak loud, it is my zeal for the truth, and for the name
of the Lord. Mine innocency makes me bold." Foster, C. J.:
" It is an evil zeal." Crook : " No, I am bold in the name of
the Lord God Almighty, the everlasting Jehovah, to assert the
truth and stand as a witness for it. Let my accuser be brought
forth." Foster, C. J.: "Sirrah, you are to take the oath, and
1. 6 St. Tr. 119-202.
2. " No one ought to accuse himself."
LIFE OF CHIEF JUSTICE FOSTER. 255
here we tender it you." Crook : " Let me be cleared of my
imprisonment, and then I will answer to what is charged
against me. I keep a conscience void of offence, both towards
God and towards man." Foster, C. J.: "Sirrah, leave your
canting." Crook : " Is this canting, to speak the words of the
Scripture?" Foster, C. J.: "It is canting in your mouth,
though they are St. Paul's words. Your first denial to take
the oath shall be recorded ; and on a second denial, you wear
the penalties of a prcemunire, which is the forfeiture of all your
estate, if you have any, and imprisonment during life." Crook :
" I owe dutiful allegiance to the King, but cannot swear with-
out breaking my allegiance to the King of kings. We dare
not break Christ's commandments : Who hath said, SWEAR
NOT AT ALL ; and the apostle James says, ' Above all things,
my brethren, swear not.' "
Crook, in his account of the trial, says, " The Chief
Justice thereupon interrupting, called upon the exe-
cutioner to stop my mouth, which he did accordingly
with a dirty cloth and a gag." The other Quakers
following Crook's example, they were all indicted
for having a second time refused to take the oath of
allegiance; and, being found guilty, the Court gave tenceSfor
judgment against them, of forfeiture, imprisonment takfthe'0
for life, and moreover, that they were " out of the °ath'
King's protection," — whereby they carried about with
them caput liipinum,1 and might be put to death by any
one as noxious vermin.2
The last trial of importance at which Chief Justice ^S^t'the
Foster presided was that of Thomas Tonge and others, yj^J and
charged with a plot to assassinate the King. General °t
Ludlow says that this was got up by the Government
to divert the nation from their ill humor, caused by
the sale of Dunkirk; the invention being "that divers
thousands of ill-affected persons were ready under his
command to seize the Tower and the City of London,
then to march directly to Whitehall in order to kill the
1. " A wolf's head."
2. 6 St. Tr. 201-226.
256
REIGN OF CHARLES II.
XV.
His sum-
ming
up.
Cvv?' King and Monk,1 with a resolution to give no quarter,
— and after that to declare for a Commonwealth."8
The case was proved by the evidence of supposed
accomplices, which was held to be sufficient without
any corroboration. The Chief Justice seems to have
been very infirm and exhausted ; for thus he summcv
up:
" My masters of the jury, I cannot speak loud to you : you
understand this business, such as I think you have not had
the like in your time : my speech will not give me leave to
discourse of it. The witnesses may satisfy all honest men :
it is clear that they all agreed to subvert the government, and
to destroy his Majesty : what can you have more ? The
prisoners are in themselves inconsiderable ; they are only the
outboughs ; but if such fellows are not met withal, they are
the fittest instruments to set up a Jack Straw and a Wat
Tyler; therefore you must lop them off, as they will encourage
others. I leave the evidence to you : go together."
The prisoners being all found guilty, the Chief Jus-
tice thus passed sentence upon them :
The sen-
tence.
" You have committed the greatest crime against God, your
King, and your country, and against every good body that
is in this land ; for that capital sin of high treason is a sin
inexpiable, and, indeed, hath no equal sin as to this world.
Meddling with them that are given to change, hath brought
too much mischief already to this nation ; and if you will
commit the same sin, you must receive the same punishment,
for happy is he who by other men's harms takes heed."
They were all executed, protesting their innocence.3
1. George Monk (t. 1608, <l. 1670), English general ; served in the
royalist army in England and Ireland, but was made prisoner at Nant-
wich, and remained five years in the Tower. After his release he again
commanded in Ireland, and was Cromwell's lieutenant in Scotland, but
soon after the latter's death took the chief part in restoring Charles II..
for which he received the dukedom of Albemarle. As admiral, he gained
a great victory over the Dutch in 1666. He was buried in Westminster
Abbey. — Cassell's Biog. Diet.
2. Memoirs.
3. 6 St. Tr. 225-274.
LIFE OF CHIEF JUSTICE FOSTER. 257
The Chief Justice went a circuit after this trial, in
the hope that country air would revive him. However,
he became weaker and weaker, and, although much
assisted by his brother Judge, he with great difficulty
got to the last assize town. From thence he travelled
by slow stages to his house in London, where, after
languishing for a few weeks, he expired, full of days, His death.
and little blamed for any part of his conduct as a
Judge, however reprehensible it may appear to us,
trying it by a standard which he would have thought
only fit to be proposed by rebels.1 He was brought Apology
up among lawyers who deemed all resistance to power false zeal
,. . and lack of
treasonable or seditious, and his zeal against those who toleration.
professed liberal opinions may be excused when we
consider the excesses which he had seen committed
under pretence of a love of freedom. His cruelty
to the poor Quakers admits of least apology ; but it
should be remembered that, till the Revolution of 1688,
religious toleration was neither practised nor professed
by any dominant faction ; and if the Quakers, by the
spread of fanaticism, had got the upper hand, there
can be no doubt that they would have absolutely
forbidden all Christians to take an oath, and would
perhaps have punished with the penalties of prcemunire
the offence of using the names of months or days taken
from the heathen mythology.
It has been said that "he was in a distinguished His ser-
... . vice to the
manner serviceable to the public in punishing the public.
felonies and other outrages which proceeded from an
old disbanded army, and in restraining the overgreat
mercy of the King in his frequent pardons granted to
such sort of criminals." 2
1. I Sid. 153.
2. Echard, p. 8i2a; Peck's Desiderata Curiosa, vol. ii. p. 543.
I ought to have mentioned that Sir Robert Foster was the youngest
son of Sir Thomas Foster, Knt., one of the Justices of the Court of Com-
mon Pleas in the time of King James I. He was called to the bar by the
258
REIGN OF CHARLES II.
His ob-
scure rise.
On the death of Sir Robert Foster, Lord Daren-
Sir Robert dOn thought that he might fairly do a job for an aged
Chief 'jus- kinsman, of respectable if not brilliant reputation; and
he appointed SIR ROBERT HYDE Chief Justice of
the King's Bench. They were cousins german, being
grandsons of Lawrence Hyde, of West Hatch, in the
county of Wilts, and nephews of Sir Nicholas Hyde,
Chief Justice of the King's Bench in the commence-
ment of the reign of Charles I. The Hydes were
the most distinguished race of the robe in the i/th
century. Robert's father was likewise a lawyer of
renown, being Attorney General to Anne of Den-
mark, Queen of James I., and he had twelve sons, most
of whom followed their father's profession. Robert
seems to have been a very quiet man, and to have got
on bv family interest and by plodding. Although
Edward, the future Chancellor, played such a distin-
guished part during the troubles, — first as a moderate
patriot and then as a liberal conservative, — Robert,
the future Chief Justice, was not in the House of Com-
mons, nor did he enlist under the banner of either
party in the field. Just before the civil war broke out,
Society of the Inner Temple, and was " Summer Reader" of that house,
7 Charles I. He was buried at Egham, in Surrey. On a gravestone on
the north side of the chancel there are these words : " Here lyeth buried
the body of Sir Robert Foster, Knt., late Lord Cheif Justice of the King's
at Westminster, who deceased the 4th of October, 1663." Above, on the
north wall, is a monument of alabaster, with a bust of a judge in his robes
and cap ; over him these arms : 1st and 4th argent, a chevron vest
between three bugle horns, sable ; 2d and 3d argent on a bend sable, three
martlets or ; and below is this inscription : " Memoriae sacrum Robertus
Foster miles filius minimus natu Thomse Foster militis, unius Justiciarior.
de Communi Banco tempore Domini Regis Jacob!, ac ipsemet Justiciarius
de eodem Banco Regnantibus Carolo Primo et Carolo Secundo, denique
Banci Regis Justiciarius capitalis, obiit 410 die Octobris anno D'ni mille-
simo sexcentesimo sexagesima tertio ; aetatis suae 74." [" Sacred to the
memory of Robert Foster, Knight, youngest son of Thomas Foster,
Knight, Judge of the Common Pleas in the time of his Majesty King
James ; he himself was a Judge of the Common Pleas in the reigns of
Charles I. and Charles II., and finally Chief Justice of the King's Bench.
He died Oct. 4, 1663, aged 74 years."] — Manning's Surrey, p. 245.
Epitaph
on Chief
Justice
Foster.
LIKE OK CHIEF JUSTICE HYDE. 259
he was called to the degree of Sergeant-at-law, and he
continued obscurely to carry on his profession during
all the vicissitudes of the twenty eventful years be-
tween 1640 and 1660.
At the Restoration he was made a Puisne Judge of He is made
a Puisne
the Common Pleas, and, acting under Chief Justice Judge.
Bridgman, he acquitted himself creditably.1
When he was installed Chief Justice of the King's Oct. 19,
Bench, Lord Chancellor Clarendon himself attended
in court, and thus addressed him :
" It's a sign the troubles have been long, that there are so Lord Clar-
few Judges left, only yourself ; and after so long suffering of address to
the law and lawyers, the King thought fit to call men of the !"m °n >»s
installation
best reputation and learning, to renew the reverence due and as Chief
used to the law and lawyers ; and the King, as soon as the
late Chief Justice was dead, full of days and of honors, did
resolve on you as the ancientiest Judge left ; and your educa-
tion in this Court gives you advantage here above others, as
you are the son of an eminent lawyer as any in his days, whose
felicity was to see twelve sons, and you one of the youngest a
Sergeant, and who left you enough, able to live without the
help of an elder brother. For your integrity to the Crown,
you come to sit here. The King and the kingdom do expect
great reformation from your activity. For this reason, the
King, when I told him Chief Justice Foster was dead, made
choice of you. Courage in a judge is as necessary as in a
general ; therefore you must not want this to punish sturdy
offenders. The genteel wickedness of duelling, I beseech you
I. It is curious to observe that upon the Restoration the Judges
were at first appointed for life, although the old form durantt bene
p 'India was soon restored. The following is Hyde's patent as a Justice
of C. P.: " Carolus Secundus, etc., Sciatis quod constituimus delec-
tum et fidelem nostrum Robertus Hyde, servientem ad legem unum
Justiciariorum nostrorum de Banco, habendum quam diu se btnc gtsserit
in eodem, etc." [" Charles II., etc. Know that we have appointed our
beloved and faithful Robert Hyde one of our Judges of the Common
Pleas, to hold the office as long as he shall conduct himself well," etc.]
(i Sid. 2.) " Memorandum que le darrein vacation puis le circuit,
Sir Robert Foster, le Chief Justice del Banco Regis mor. Et cest
terme Sir Robert Hyde un des Justices del Co. Ba. fuit fait Cheife
Justice de Banco Regis." (i Sid.)
200 REIGN OF CHARLES II.
CHAP, inquire into ; the carriers of challenges, and fighters, however
they escape death, the fining and imprisoning of them will
make them more dread this Court than the day of judgment."
His Hyde, C. J. : " I had ever thought of the advice of the
answer. wjge man^ < not {o ^^ to fe a judge, nor ask to sit in the seat
of honor,' being conscious of my own defects and small learn-
ing. But, seeing his Majesty's grace, I shall humbly submit,
and serve him with my life with all alacrity and duty. Sins
of infirmity I hope his Majesty will pardon, and for wilful and
corrupt dealings I shall not ask it. I attended in Coke's time
as a reporter here ; and as he said when he was made Chief
Justice I say now, ' I will behave myself with all diligence and
honesty.' " l
He hangs This Chief Justice was much celebrated in his day
fcT'ri'nt- f°r checking the licentiousness of the press. A printer
ing a Hbei. nameci John Troyn, having printed a book entitled
" Phoenix, or the Solemn League and Covenant," con-
taining passages which were said to reflect upon the
King, was arraigned before him at the Old Bailey on
an indictment for high treason. The prisoner being
asked how he would be tried, said, " I desire to be
tried in the presence of that God who is the searcher
of all hearts, and the disposer of all things."
Hyde, L. C. J.: " God Almighty is present here, but you
must be tried by him and your peers, that is, your country, or
twelve honest men." Prisoner : " I desire to be tried by God
alone." L. C. J. Hyde : " God Almighty looks down and
beholds what we do here, and we shall answer severely if we
do you any wrong. We are careful of our souls as you can be
of yours. You must answer in the words of the law." Pris-
oner : " By God and my country."
xiiecase It was proved clearly enough that he had printed
the book, and some passages of it might have been
considered libellous — but there was no other evidence
against him, and he averred that he had unconsciously
printed the book in the way of his trade.
Hyde, L. C. J.: " There is here as much villany and slan-
i. I Keble 562.
LIFE OF CHIEF JUSTICE HYDE. 261
der as it is possible for devil or man to invent. To rob the
King of the love of his subjects, is to destroy him in his per-
son. You are here in the presence of Almighty God, as you
desired ; and the best you can now do towards amends for
your wickedness, is by discovering the author of this villanous
book. If not, you must not expect, and, indeed, God forbid !
there should be any mercy shown you." Prisoner : "I never
knew the author of it." Hyde, L. C. /..• " Then we must not
trouble ourselves. You of the jury, there can be no doubt
that publishing such a book as this is as high treason as can
be committed, and my brothers will declare the same if you
doubt."
The jury having found a verdict of guilty, the
usual sentence was pronounced by Lord Chief Justice
Hyde, and the printer was drawn, hanged, and quar-
tered accordingly.1
The next trials before his Lordship, although the His sen-
tence on
charge was not made capital (as he said it might have the book-
sellers who
been), were equally discreditable to him. Several published
booksellers were indicted for publishing a book which of theexe-
contained a simple and true account of the trial of thetheregi-
regicides, with their speeches and prayers.
Hyde, L. C. /..- " To publish such a book is to fill all the
King's subjects with the justification of that horrid murder.
I will be bold to say no such horrid villany has been done
upon the face of the earth since the crucifying of our Saviour.
To print and publish this is sedition. He that prints a libel
against me as Sir Robert Hyde, and he that sets him at work,
must answer it ; much more when against the King and the
state. Dying men's words, indeed ! If men are as villanous
at their death as in their lives, may what they say be published
as the words of dying men ? God forbid ! It is the King's
great mercy that the charge is not for high treason."
The defendants, being found guilty, were sentenced
to be fined, to stand several hours in the pillory, and
to be imprisoned for life.3
1. 6 St. Tr. 513.
2. 6 St. Tr. 514-564.
262 REIGN OF CHARLES II.
In the fervor of loyalty which still prevailed, such
A V,
doctrines and such sentences were by no means un-
popular; and while Chief Justice Hyde was cried up
as an eminent Judge by the triumphant Cavaliers, the
dejected Roundheads hardly ventured to whisper a
HU dd ncomplauit against him. To the great grief of the one
death. part}', and, no doubt, to the secret joy of the other,
•663- who interpreted his fate as a judgment, his career was
suddenly cut short. On the ist of May, 1663, as he
was placing himself on the bench to try a dissenter
who had published a book recommending the " com-
prehension," that had been promised by the King's
Declaration from Breda, while apparently in tiie en-
joyment of perfect health, he dropped down dead.1
sir John In consequence of this melancholy event, Lord
Chiefnjus- Chancellor Clarendon was again thrown into distress
by the difficulty of filling up the office of Chief Justice
of the King's Bench, and he allowed it to remain
vacant seven months. Only five years had yet elapsed
since the Restoration, and no loyal lawyer of eminence
had sprung up. At last the Chancellor thought he
could not do better than promote SIR JOHN KELYNGE,
then a puisne, to be the head of the Court. The
appointment was considered a very bad one ; and
some accounted for it by supposing that a liberal
contribution had been made towards the expense of
erecting " Dunkirk House," which was exciting the
admiration and envy of the town, — while others as-
serted that the collar of S.S. had been put round
the neck of the new legal dignitary by the Duchess
of Cleveland.8 I believe that judicial patronage had
1. 2 Sid. 2 ; I Keb. 861 ; i Sid. 275 ; Sir Thomas Raymond, 139;
Sir R. C. Hoare's Wiltshire, ii. p. 144.
2. Barbara Villiers, Duchess of Cleveland (/>. 1640, d. 1709), was the
daughter of Lord Grandison, and wife of Roger Palmer. About 1659
LIFE OF CHIEF JUSTICE KELYNGE. 263
not yet been drawn into the vortex of venality, and CHAP.
that Clarendon, left to the freedom of his own will,
preferred him whom he considered the least ineli-
gible candidate. But we cannot wonder at the sus- '
picions which were generally entertained, for Sir John
Kelynge's friends could only say in his favor that he
was a " violent Cavalier," and his enemies observed
that " however fit he might have been to charge the
Roundheads under Prince Rupert, he was very unfit
to charge a jury in Westminster Hall."
I can find nothing of his origin, or of his career,
prior to the Restoration ; and I am unable to say
whether, like some loyal lawyers, he actually had
carried arms for the King, or, like others, he had con-
tinued obscurely to practise his profession in London.
The first notice I find of him is by himself, in the He is
account which he has left us of the conferences of the counsel
against the
Judges at Sergeants inn, preparatory to the trial of regicides.
the regicides, when he says he attended that service
as junior counsel for the Crown. He might have been
employed from a notion that he would be useful in
solving the knotty points likely to arise,1 or (what is
quite as likely), without any professional reputation,
she became one of Charles II. 's mistresses. In 1662 her husband was
made Earl of Castlemaine, and it is as Lady Castlemaine that his wife
is generally known. Her beauty and strong will gave her immense
influence at Court, while in the number of her intrigues she almost
eclipsed the King. In 1670 she was created Duchess ot Cleveland, and
shortly afterwards left England for France, where she spent the rest of
her life. In 1705 she married Robert (Beau) Fielding ; but the mar-
riage was subsequently annulled, on the ground of the husband's having
committed bigamy. Of her sons by Charles II., the eldest became
Duke of Cleveland, the second Duke of Grafton, and the youngest
Duke of Northumberland. — Low and Pulling" s Diet, of Eng. Hist.
I. Among these was "whether the act of severing the head of
Charles I. from his body could be alleged to have been committed in his
own lifetime," and " whether it should be laid as against the peace of
the late or of the present King?" Judge Mallet made the confusion
more confounded by maintaining that by the law of England a day is
indivisible ; and that as Charles II. certainly was our lawful King dur-
ing a part of that day, no part of it had been in the reign of Charles 1.
264
REIGN OF CHARLES II.
CHAP.
XV.
Oct. 1660.
He con-
ducts the
prosecu-
tion
against
Colonel
Hacker.
he might have got a brief by favor, in a case which
was to draw the eyes of the whole world upon all
engaged in it.
When the trials came on, he was very busy and
bustling, and eagerly improved every opportunity of
bringing himself forward. Before they were over, he
took upon himself the degree of Sergeant-at-law, and,
to his unspeakable delight, he was actually intrusted
with the task of conducting the prosecution against
Colonel Hacker,1 who had commanded the guard dur-
i. Francis Hacker (d. 1660), regicide, was son of Francis Hacker of
East Bridgeford. From the outbreak of the civil war Hacker vehe-
mently supported the parliamentary cause, though the rest of his family
seem to have been royalists. On July 10, 1644, he was appointed one
of the militia committee for the county of Leicester, the scene of most of
his exploits during the civil war. On Nov. 27, 1643, he and several
others of the Leicestershire committee were surprised and taken prison-
ers at Melton Mowbray by Gervase Lucas, the royalist governor of
Belvoir Castle. A month later Parliament ordered that he should be
exchanged for Colonel Sands. At the capture of Leicester by the King
in May, 1645, Hacker, who distinguished himself in the defence, was
again taken prisoner. Hacker was nevertheless attacked for his con-
duct during the defence, but he was warmly defended in a pamphlet
published by the Leicester committee. His services are there enumer-
ated at length, and special commendation is bestowed on his conduct
at the taking of Bagworth House and his defeat of the enemy at Belvoir,
where he was in command of the Leicester, Nottingham, and Derby
horse. Hacker is further credited with having freely given "all the prizes
that ever he took" to the state and to his soldiers, and with having, while
prisoner at Belvoir, refused with scorn an offer of "pardon and the com-
mand of a regiment of horse, to change his side." At the defeat of the
royalists at Willoughby Field, in Nottinghamshire (July 5, 1648), Hacker
commanded the left wing of the parliamentary forces. During the trial
of Charles I., Hacker was one of the officers specially charged with the
custody of the King, and usually commanded the guard of halberdiers
which escorted the King to and from Westminster Hall. He was one of
the three officers to whom the warrant for the King's execution was
addressed, was present himself on the scaffold, supervised the execution,
and signed the order to the executioner. While Cromwell lived he was
a stanch supporter of the Protectorate ; arrested Lord Grey in February,
1655, and was employed in the following year to suppress the intrigues of
the Cavaliers and Fifth-monarchy Men in Leicestershire and Nottingham-
shire. In Richard Cromwell's Parliament Hacker represented Leicester-
shire.
In the troubled period preceding the Restoration he followed gener-
ally the leadership of his neighbor, Sir Arthur Haslerig. By Haslerig's
LIFE OF CHIEF JUSTICE KELYNGE.
265
ing the King's trial and at his execution. He learn-
edly expounded to the jury that the treason consisted
in "compassing and imagining the King's death," and
that the overt acts charged of condemning him and
executing Iiim were only to be considered evidence of
the evil intention. He then stated the facts which
would be proved by the witnesses, and concluded by
observing —
"Thus did he keep the King a prisoner, to bring him before
that Mock Court of Injustice ; and was so highly trusted by all
those miscreants who thirsted for the King's blood, that the
bloody warrant was directed to him to see execution done. Nay,
gentlemen, he was on the scaffold, and had the axe in his hand."
Hacker: " My Lords, to save your Lordships trouble, I confess
that I was upon the guard, and had a warrant to keep the King
for his execution." (The original warrant being shown to him,
he admitted it.) Kelynge: "After you had that warrant brought
to you, did you, by virtue of it, direct another warrant for the
execution of the King, and take his sacred Majesty's person
from the custody of Colonel Tomlinson?" Hacker: "No,
sir ! " Kelynge: " We shall prove it."
™foProse'
against
continued.
persuasion, he, first of all the colonels of the army, accepted a new com-
mission from the hands of the Speaker of the restored Long Parliament,
and was among the first to own the supremacy of the civil power over
the army. He opposed the mutinous petitions of Lambert's partisans in
September, 1659, and, after they had expelled the Parliament from West-
minster, entered into communication with Hutchinson and Haslerig for
armed opposition. After the triumph of the Rump, he was again con-
firmed in the command of his regiment, and seems to have been still in
the army when the Restoration took place. On July 5, 1660, he was
arrested and sent to the Tower, and his regiment given to Lord Hawley.
The House of Commons did not at first except him from the Act of
Indemnity, but, during the debates upon it in the Lords, the fact came
out that the warrant for the execution of the King had been in Hacker's
possession. The Lords desired to use it as evidence against the regi-
cides, and ordered him to produce it. Mrs. Hacker was sent to fetch it,
and, in the hope of saving her husband, delivered up the strongest testi-
mony against himself and his associates. The next day (Aug. i, 1660)
the Lords added Hacker's name to the list of those excepted, and a fort-
night later the House of Commons accepted this amendment. Hacker's
trial took place on Oct. 15, 1660. He made no serious attempt to defend
himself. He was sentenced to death, and was hanged on Oct. 19, 1660. —
Diet. Nat. Bio''.
266 REIGN OF CHARLES II.
CHAP. Colonel Tomlinson was then examined, and de-
tailed the circumstances of the execution, showing
that Colonel Hacker had conducted the King to the
scaffold under the original warrant, — what had been
taken for a fresh warrant being a letter written by
him to Cromwell, then engaged in prayer for the
King's deliverance with General Fairfax.
Kelynge: " We have other witnesses, but the prisoner hath
confessed enough. We have proved that he had the King in
custody, and that at the time of the execution he was there to
manage it. What do you say for yourself?" Hacker: "Truly,
my Lord, I have no more to say for myself but that I was a
soldier and under command. In obedience to those set over
me I did act. My desire hath ever been for the welfare of my
country." L. C. Baron: "This is all you have to say for your-
self?" Hacker: "Yes, my Lord." L. C. Baron: "Then,
Colonel Hacker, for that which you say for yourself that you did
it by command, you must understand that no power on earth
could authorize such a thing. Either he is guilty of compassing
the death of the King, or no man can be said to be guilty."
Of course he was convicted and executed.1
. 1662. Sergeant Kelynge was soon after promoted to be a
hf thSe King's Sergeant ; and in that capacity took a promi-
nent part in the trial of Sir Henry Vane, who, not
being concerned in the late King's death, was tried for
what he had subsequently done in obedience to the
Parliament, then possessed of the supreme power of
the state. To the plea that his acts could not be said
to be against the peace of Charles II., who was then
in exile, Kelynge admitted that if another sovereign,
although an usurper, had mounted the throne, the de-
fence would have been sufficient ; but urged that the
throne must always be full, and that Charles II., in
legal contemplation, occupied it while de facto he was
wandering in foreign lands and ambassadors from all
i. 5 St. Tr. 947-1363.
LIFE OF CHIEF JUSTICE KELYNGE. 267
the states of Europe were accredited to Oliver, the
Lord Protector.1
Kelynge having suggested this reasoning, which "*n'*
was adopted by the Court, and on which Vane wasj^sneeof
executed as a traitor, he was, on the next vacancy, l'ie King's
Bench.
made a Puisne Judge of the King's Bench. When he June 18,
was to take his seat, Lord Chancellor Clarendon at-
tended in that court, and thus addressed him :
" Mr. Sergeant Kelynge : The King's pleasure is to call you Lord Ciar-
to be a Judge in this high court of law — not in the usual cir- ^dres's to
cumstance of death or vacancy, but in the place of one living. him-
This is the great gift of God unto kings to judge the people, and
the King cannot delegate a greater part of his prerogative than
by granting commission to a subject to judge his fellows.
There is no more misbecoming thing for a Christian man than
seeking to be thus like God, to dispose of the blood of his sub-
jects ; but I absolve you, Mr. Sergeant, from any thing of this
kind : you could have no thoughts of it till I brought the
King's pleasure to you, and then you received it only with such
alacrity as was fit for his service. This the King did in sight of
your great ability and sufferings and assurances of constancy in
his service ; and therefore the people will have great cause to
thank his Majesty. If this cannot introduce a love and venera-
tion in the people of the Government, nothing but desolation can
be expected."
Kelynge : " Although I cannot but return hearty thanks for
so great favors, yet when I look on this supreme court and its
jurisdiction I am much daunted. My twenty years' silence
may have contributed to my inability, although not to hinder
my industry. I acknowledge the effluxes of his Majesty's favor
to be only by your Lordship's goodness, from which I beg that
his Majesty may know with how much gratitude and humility I
submit myself to his pleasure." *
While Kelynge was a Puisne Judge, he made up,
by loyal zeal and subserviency, for his want of learn-
ing and sound sense ; but, from a knowledge of his in- His incom-
competency, there was a great reluctance to promote **
1. 6 St. Tr. nq-202.
2. I Keble, 526.
268 REIGN OF CHARLES II.
CHAP, him on the death of Lord Chief Justice Hyde. Sir
Matthew Hale was pointed out as the fittest person
to be placed at the head of the common law ; but
Lord Clarendon had not the liberality to raise to the
highest dignity one who had sworn allegiance to the
Protector, and there being no better man whom he
He is made . . ,
chief jus- could select, who was free from the suspicion of repub-
A.D! 1665. lican taint, he fixed upon the " violent Cavalier."
Luckily there were no speeches at his installation.
On account of the dreadful plague which was then
depopulating London, the courts were adjourned to
Oxford. " There, Kelynge, Puisne Judge, was made
Chief Justice, and, being sworn at the Chancellor's
lodging, came up privily and took his place in the
logic school, where the Court of King's Bench sat.
The business was only motions — to prevent any con-
course of people. In London died the week before,
7165 of the plague, beside Papists and Quakers." *
The new Chief Justice even exceeded public expec-
tation by the violent, fantastical, and ludicrous manner
in which he comported himself. His vicious and
foolish propensities broke out without any restraint,
and, at a time when there was little disposition to
question any who were clothed with authority, he
drew down upon himself the contempt of the public
and the censure of Parliament.
His vanity He was unspeakably proud of the collar which he
the collar wore as Chief Justice, this alone distinguishing him
externally from the puisnies, a class on whom he now
looked down very haughtily. In his own report of
the resolutions of the Judges prior to the trial of Lord
Morley for murder, before the House of Lords, he
considers the following as the most important
I. I Keble, 943 ; Sir T. Raym. 139. " M. T. 1665. En ceo term Sir
lo Kelynge Justice de Banco Regis fuit fait Chief Justice la en lieu de
Hyde. Mes leo ne fui al Oxford pr. reason del strictness del lieu et
danger del infecon. " (i Sid. 275.)
LIFE OF CHIEF JUSTICE KELYNGE. 269
"We did all, una voce, resolve that we were to attend at the c"^p-
trial in our scarlet robes, and the Chief Judges in their collars of
S. S. — which I did accordingly. " l
There having: been a tumult in an attempt by some He con-
victs of
apprentices to put down certain disorderly houses in high trea-
son ap-
Moorfields, which were a great nuisance to the neighbor- prentices
. who tried
hood, and cries that no such houses should be tolerated, to put
>-«i • r T • FT i • i • i • i down dis-
Chiel Justice Kelynge, considering this an accroach- orderly
ment of royal authority," directed those concerned in
it to be indicted for HIGH TREASON; and, the trial
coming on before him at the Old Bailey, he thus laid
down the law to the jury :
"The prisoners are indicted for levying war against the King. ^y'j||wn
By levying war is not only meant when a body is gathered to- the law to
gether as an army, but if a company of people will go about
any public reformation, this is high treason. These people do
pretend their design was against brothels ; now for men to go
about to pull down brothels, with a captain and an ensign, and
weapons, — if this thing be endured, who is safe f2 It is high
treason because it doth betray the peace of the nation, and
every subject is as much wronged as the King ; for if every man
may reform what he will, no man is safe ; therefore the thing is
of desperate consequence, and we must make this for a public
example. There is reason we should be very cautious ; we are
but newly delivered from rebellion, and we know that that re-
bellion first began under the pretence of religion and the law ;
for the Devil hath always this vizard upon it. We have great
reason to be very wary that we fall not again into the same error.
Apprentices in future shall not go on in this manner. It is
proved that Beasely went as their captain with his sword, and
flourished it over his head, and that Messenger walked about
Moorfields with a green apron on the top of a pole. What was
1. 6 St. Tr. 769.
2. There must here have been a titter among the junior members of
the bar in contemplation of the perils to which the reverend sages of the
law had been exposed. I remember when a celebrated house in Chandos
Street was burnt down in the night, and several lives were lost, it
happened that term began next day, and, all the Judges being assembled
at the Chancellor's, Lord Chief Baron Macdonald (I suppose having lately
read this judgment of Chief Justice Kelynge) exclaimed, " It gives me
heartfelt pleasure, my dear brethren, to see you all here quite safe."
370 REIGN OF CHARLES II.
CHAP, done by one was done by all ; in high treason, all concerned
are principals."
So the prisoners were all convicted of high treason ;
and I am ashamed to say that all the Judges concurred
in the propriety of the conviction except Lord Chief
Baron Hale, who, as might be expected, delivered his
opinion that there was no treason in the case, and
treated it merely as a misdemeanor.1 Such a pro-
ceeding had not the palliation that it ruined a personal
enemy, or crushed a rival party in the state, or
brought great forfeitures into the Exchequer ; it was a
mere fantastic trick played before high heaven to make
the angels weep.
His con- When Chief Justice Kelynge was upon the circuit,
duct on the ...
circuit. being without any check or restraint, he threw aside
all regard to moderation and to decency. He com-
pelled the grand jury of Somersetshire to find a true
bill contrary to their consciences, — reproaching Sir
Hugh Wyndham, the foreman, as the head of a faction,
and telling them " that they were all his servants, and
that he would make the best in England stoop."
He fines Some persons were indicted before him for attend-
ant! impris- . , .
onsjury- ing a conventicle ; 2 and, although it was proved that
they had assembled on the Lord's Day with Bibles in
their hands, without Prayer-books, they were acquitted.
He thereupon fined the jury 100 marks apiece, and
imprisoned them till the fines were paid. Again, on
the trial of a man for murder, who was suspected of
being a Dissenter, and whom he had a great desire to
1. 6 St. Tr. 879-914.
2. The Conventicle Act (1664) enacted that anyone over sixteen years
of age present at an unlawful assembly or conventicle was to incur fine
or imprisonment. A conventicle was defined as an assembly of more
tlian five persons, besides the members of a family, met together for
holding worship not according to the Church of England. In 1670 the
act was amended, and the penalties greatly lessened, but a seveie fine
imposed on any one who lent his house for such meetings. The Con-
venticle Act was repealed by the Toleration Act of 1689. — Low and
Pulling s Diet, of Eiig. Hist.
LIKK OF CHIEF JUSTICE KELYNGK.
271
CHAP.
XV.
His com-
pliment to
Ma^na
Charta.
Dec. 1667.
Proceed-
ings
against
him in the
House of
Commons.
hang, he fined and imprisoned all the jury because,
contrary to his direction, they brought in a verdict of
manslaughter. Upon another occasion, (repeating a
coarse jest of one whom he professed to hold in great
abhorrence,) — when he was committing a man in a
very arbitrary manner, the famous declaration in
Magna Charta being cited to him, that " no freeman
shall be imprisoned except by the judgment of his
peers, or the law of the land," the only answer given
by my Lord Chief Justice of England was to repeat,
with a loud voice, Cromwell's rhyme, " MAGNA
CHARTA — MAGNA - —A ! ! ! "
At last, the scandal was so great that complaints
against him were brought by petition before the
House of Commons, and were referred to the grand
committee of justice. After witnesses had been ex-
amined, and he himself had been heard in his defence,
the committee reported the following resolutions :
"i. That the proceedings of the Lord Chief Justice in the
cases referred to us are innovations in the trial of men for their
lives and liberties, and that he hath used an arbitrary and illegal
power which is of dangerous consequence to the lives and
liberties of the people of England.
"2. That, in the place of judicature, the Lord Chief Justice
hath undervalued, vilified, and condemned MAGNA CHARTA, the
great preserver of our lives, freedom, and property.
"3. That the Lord Chief Justice be brought to trial, in order
to condign punishment in such manner as the House shall judge
most fit and requisite."
The matter assuming this serious aspect, he peti-
tioned to be heard at the bar of the House in his own
defence. Lord Chief Baron Atkyns, who was then
present, says, " he did it with that great humility and
reverence, that those of his own profession and others
were so far his advocates that the House desisted The prose-
, cution
from any farther prosecution. His demeanor seems dropped,
now to have been as abject as it had before been in-
272
REIGN OF CHARLES 11.
CHAP.
XV.
Twisden
takes his
place.
His death.
May 9,
1671.
His Re-
ports.
solent, and he escaped punishment only by the gener-
ous intercession of lawyers whom he had been in the
habit of browbeating in the King's Bench.1
He was abundantly tame for the rest of his days ;
but he fell into utter contempt, and the business of the
Court was done by Twisden, a very learned judge, and
much respected, although very passionate. Kelynge's
collar of S.S. ceased to have any charms for him ; he
drooped and languished for some terms, and on the
9th of May, 1671, he expired, to the great relief of all
who had any regard for the due administration of
justice. No interest can be felt respecting the place
of his interment, his marriages, or his descendants.
I ought to mention, among his other vanities, that
he had the ambition to be an author; and he compiled
a folio volume of decisions in criminal cases, which are
of no value whatever except to make us laugh at some
of the silly egotisms with which they abound.2
1. I Siderfin, 338 ; 6 St. Tr. 992-1019 ; Lord Campbell's Speeches,
175, 337-
2. Such is the propensity to praise the living and the dead who fill or
have filled high judicial offices, that we have the following notice of the
death of Sir John Kelynge, as if he had been a Hale, a Holt, or a Mans-
field : "May 10, 1671. This day died Sir John Keeling, Knt., Lord Chief
Justice of the King's Bench, about two of the clock of the morning, being
the first day of Easter Term. He died much lamented for his great in-
tegrity and worth, after a long weakness and decay." — Echard, p. 878 b. ;
Peck's Desid. Cur. 549.
LIFE OF CHIEF JUSTICE HALE. 273
CHAPTER XVI.
LIFE OF LORD CHIEF JUSTICE HALE, FROM HIS BIRTH
TILL THE RESTORATION OF CHARLES II.
WE pass from one of the most worthless of Chief
Justices to one of the most pure, the most pious, the "
most independent, and the most learned — from Kel-to?meri-
tonous
ynge to Sir Matthew Hale. Imperfections will mark chief jus-
every human character; but I have now to exhibit a
rare combination of good qualities, and a steady per-
severance in good conduct, which raised an individual
to be an object of admiration and love to all his con-
temporaries, and have made him be regarded by suc-
ceeding generations as a model of public and private
virtue. I cannot be satisfied, therefore, with giving
merely a slight sketch of the more remarkable passages
of his life ; and it will be my fault if his whole career,
from his cradle to his grave, is not found both inter-
esting and instructive.
He had the advantage of being born in the middle Origin of
rank of life, receiving a liberal education, and depend- ">ew Hale.
ing on his own exertions for distinction. We know
nothing of his paternal ancestors higher than his grand-
father, who made a considerable fortune, for those
days, as a clothier, at Wotton-under-Edge, in Glouces-
tershire, and divided it equally among his five sons.
Robert, the second of these, was educated for the bar,
and married Joan, the daughter ol Matthew Poyntz,
Esq., of Alderley, a branch of the noble family of the
Poyntzes of Acton. The subject of the present memoir
was the only child of this marriage, and was born at
Alderley, in Gloucestershire, on the ist of November, J^ ''
274 LIFE OF CHIEF JUSTICE HALE.
CHAP- 1609. Here Mr. Robert Hale lived penuriously on a
small estate which he had purchased with his patri-
mony, assisted by the fortune of his wife. He might
have obtained great success in his profession, but he
had given it up from scruples of conscience, being
much shocked with legal fictions — above all, with
"giving color in pleading, which, as he thought, was
to tell a lie." l
He is While the future Chief Justice was only in his fifth
a'puritan.P year, he had the misfortune to lose both his parents;
and he became the ward of his kinsman, Mr. Kingscot,
of Kingscot, who was of an ancient family, but was a
noted Puritan. By this gentleman he was put to school
with a clergyman of the same rigid principles, who
is called by the orthodox Anthony Wood "one Mr.
Staunton, the scandalous vicar of Wotton-under-Edge." 8
The intention was that young Hale should not only be
imbued with a proper horror of the rites and ceremo-
nies of the Anglican discipline, which those inclined to
the Genevese denominated " flat popery," but that he
should himself be bred a divine, and should actively
engage as a minister in propagating the true reformed
faith. In consequence, religious impressions were now
made upon him which never were effaced. For a time,
as we shall find, he frequented stage-plays, and, de-
spising all peaceful pursuits, he prized only military
glory. But when these illusions had passed away, his
manners and his modes of thinking were strongly tinc-
tured, to his dying da)-, by his early training under a
Puritanical teacher.
Hale at While at school he had a high reputation for dili-
schooi. gence, and here he must have formed the studious
1. Burnet's Life of Hale, p. 2. This is a mysterious contrivance to
enable a defendant to refer the validity of his title to the judges instead
of the jury, by introducing an untrue allegation respecting an entry under
a pretended title, which does not deceive or injure any one. — 3 Bl. Com.
309.
2. Athen.
LIFE OF CHIEF JUSTICE HALE. 275
habits which, amidst great temptations, and after some
youthful errors, secured his advancement and his fame.
He was not sent to the University till he was six-^-,^625-
teen. Then he was entered of Magdalene Hall, Ox- University.
ford, and placed under the tuition of Obadiah Sedg-
wick,1 who, though a noted Puritan, was deeply
imbued with classical learning. In the next genera-
tion the Puritans in general undervalued human
learning, but in the early part of the i/th century
they could exhibit a greater number both of eminent
mathematicians and of distinguished scholars than
those who under Laud wished to approximate to Rome.
Our undergraduate, simple in his attire, and rather ^A625
ascetic in all his habits, devoted himself very steadily, "
for some terms, to the writings of Aristotle and Calvin, °j
being regular in his attendance, not only in chapel, butaf°P-
at prayer-meetings in private houses, — till a strolling
company of actors coming to Oxford, "he was so
much corrupted by seeing many plays that he almost
wholly forsook his studies." All of a sudden, there
seemed to be a complete transformation of his char-
acter. " He loved fine clothes, and delighted much in
company ; and, being of a strong and robust body, he
was a great master at all those exercises that required
much strength. He also learned to fence and handle
his weapons, in which he became so expert that he
worsted many of the masters of those arts." A troop
of sycophants, eager to minister to his vanity, sur-
rounded him ; but he escaped from their toils, without
being ruined in his fortune or becoming a misanthrope.
His fencing-master having said to him, " I can teach
I. Obadiah Sedgwick, born at Maryborough, Wilts, 1600, and edu
cated at Queen's College, Oxford. He became chaplain to Sir Horatio
Vere, whom he accompanied in his expedition to the Low Countries. In
the time of the rebellion he was a frequent preacher before the Parlia-
ment, and a member of the Assembly of Divines. He died at Marlborough
jn January, 1657-58. — Cooper's Biog. Diet.
376 LIFE OF CHIEF JUSTICE HALE.
CHAP. yOU no more, for you are now better at my own trade
HOW he than myself," he answered, " I'promise to give you the
learned to J
distinguish house you live in, as my tenant, it you can break my
fromtruth. guard and hit me : now do your best, for I will be as
good as my word." The fencing-master, being really
much superior to him in skill, after a little skirmishing,
struck him a palpable hit on the head. Mr. Hale
performed his promise, and unhesitatingly gave him
the house, " not unwilling at that rate to learn so early
to distinguish flattery from truth." l We are told that,
amidst all his dissipation, he " still preserved his purity,
and a great probity of mind." But at this time, from
the company which he kept and the occupations which
he followed, he abandoned all notion of being a clergy-
man, and he resolved to be a soldier. Whilst under
toU^e30"' this martial ardor, it so happened that the tutor of his
soid°ier.asa college was proceeding to the Low Countries as chap-
lain to the renowned Lord Vere. Hale, hearing of
his destination, was about to accompany him, that he
might trail a pike under the Prince of Orange. His
relations tried to dissuade him from this enterprise,
advising him, if he had contracted a distaste for the
Church, to follow the profession of his father. But he
answered, —
" Tell not us of issue male,
Of simple fee and special tale,
Of feoffments, judgments, bills of sale,
And leases :
"Can you discourse of hand-grenadoes,
Of sally-ports and ambuscadoes,
Of counterscarps, and palisadoes,
And trenches?"
Thus the pious and reverend Judge might have
turned out a " Captain Dalgetty," 2 passing as a mer-
1. Burnet's Life of Sir Matthew Hale, p. 3.
2. Rittmaster Dugald Dalgetty, a soldier of fortune in Sir Walter
Scott's " Legend of Montrose," distinguished for his pedantry, conceit,
valor, vulgar assurance, knowledge of the world, greediness, and a
ilALK Kl
•
the hc;iii. Mr. Hale
Uira
unwill: urn so early
teh i \\'' are i. d that,
rved his
! ', time, f
>ii of being a clei
Whilst un
the tutor of his
:ap-
lowned Hale, hearint
ipany him, that
f Orane,
nade him from this enterp:
iste for
his father. But he
.;• as a mer-
.
SIR MATTHEW HALE K!
LIFE OF CHIEF JUSTICE HALE. 277
cenary from the service of one military leader to that
of another, learning to swear strange oaths and to
carouse " potations pottle-deep."
From this fate he was saved by an unjust attempt HOW he
took to the
to deprive him of a part of his patrimonial estate, and study of
„ r the law.
the commencement of a lawsuit against him. Before
setting off for the Continent, he went to London to
give instructions for his defence. His leading counsel
was the learned Sergeant Glanvil,1 with whom he
had many consultations, and to whom he confided all
his plans. This great lawyer succeeded in giving
Hale's enthusiasm a new direction ; and, pointing out
the imminent danger to his religion and morals, as well
as to his life, from a military career, and the good he
might do, as well as the honor and riches he might
acquire, by following the profession of the law, at last
induced him to exclaim, " Cedant arma togce.'"* Ac-
cordingly, on the 8th day of November, 1629, " Mat- NOV. 8,
theus Hale, filius unicus et haeres Roberti Hale,
generosi,"3 was admitted a member of the Honorable
Society of Lincoln's Inn, to which he was to become a
bright ornament and a munificent benefactor.4
hundred other qualities, making him one of the most amusing, admira-
ble, and natural characters ever drawn by the hand of genius.
1. Sir John Glanvil was the son of John Glanvil of Tavistock,
Devonshire, a Judge of the Common Pleas, who died in 1600. He
was educated at Oxford, after which he studied at Lincoln's Inn, and
in 1639 was made a Sergeant. The year following he was elected
Speaker of the House of Commons, and in 1641 appointed one of the
King's Sergeants, and knighted. The ruling party, upon this, deprived
him of his seat in Parliament, and sent him to prison, where he re-
mained till 1648. At the Restoration he was again made King's Ser-
geant, and would have obtained higher promotion had he not been
taken off by death, Oct. 2, 1661. — Cooper's Biog, Diet,
2. " Let arms yield to the toga ! "
3. "Matthew Hale, only son and heir of Robert Hale, of noble
birth."
4. The custom for law-students to be first entered of an Inn of
Chancery before being admitted of an Inn of Court, which had pre-
vailed in Lord Coke's time, seems now to have become obsolete, and
the Inns of Chancery were entirely abandoned to the attorneys.
278 LIFE OF CHIEF JUSTICE HALE.
C.HAP. The theatre was the temptation he dreaded, and,
His vow believing: that he could not enjoy this amusement in
never again
to see a moderation, he began with making a vow, which he
stage-play.
strictly kept, " never to see a stage-play again." Writ-
ing to his grandchildren seven-and-forty years after, he
warns them against the frequenting of stage-plays, " as
they are a great consumer of time, and do so take up
the mind and fantasy that they render the ordinary and
necessary business of life unacceptable and nauseous ; "
going on to describe his own case, and how he had
conquered his passion for this recreation.
Hisvow However, he continued to keep company with
drinking some of his old associates, and ran a serious risk of
being again drawn into idle courses ; till, at a merry-
making, with other young students, at a village near
London, one of the company drank so much as to fall
down seemingly dead before them. " This did par-
ticularly affect Mr. Hale, who thereupon went into
another room, and, shutting the door, fell on his knees,
and prayed earnestly to God both for his friend, that
he might be restored to life again, and that himself
might be forgiven for giving such countenance to so
much excess ; and he vowed to God that he would
never again keep company in that manner, or drink a
health, while he lived. His friend recovered, and he
most religiously observed his vow till his dying day ;
and, though he was afterwards pressed to drink
healths, particularly the King's, which was set up by
too many as a distinguishing mark of loyalty, and
drew many into great excess after his Majesty's happy
restoration, he would never dispense with his vow ;
though he was sometimes roughly treated for this,
which some hot and indiscreet men called obstinacy." l
I. Burnet, p. 5. In those times, the command we receive at public
dinners, "Gentlemen, charge your glasses, BUMPERS!" and which we
can sufficiently satisfy by holding up a glass which has long been
empty, and joining in the " hip, hip, hurrah!" with " one cheer more,"
LIFE OF CHIEF JUSTICE HALE. 279
He now abjured all gay company, and spent six-
teen hours a day in study, laying down rules for him-
self, which are still extant, in his handwriting, and inn.
A.D. 1630 —
which show that, amidst all his ardor for the acqui- 1637.
sition of knowledge, he never forgot his religious
duties.1 From being a noted fop since the latter part
of his residence at Oxford, he was remarkable for the
slovenliness of his apparel ; of which we have a proof
from a danger he encountered of being forced into the
wars, after his military mania had entirely subsided.
Taking a walk one evening for his health, on Tower He is taken
Hill, and meeting a press-gang, he was supposed, from gang,
his appearance, to be in a very low condition of life,
and, being strong and well-built, he was seized as a fit
person for the King's service. He would have been
speedily shipped off for the West Indies, had it not
been that luckily several students of Lincoln's Inn,
who knew him, were passing by, and they vouching
that he was of gentle degree, notwithstanding the
tattered condition of his doublet and hose, he was set
at liberty. He thereupon went to buy cloth for a plain
new suit ; and, making some difficulty as to price, the
draper, who had heard much of his abilities and dili-
gence from other customers, said, — " You shall have it
was then rigidly enforced ; every man who was not under a vow being
compelled to fill a bumper to every toast, and by reversing his glass to
show that it was drained to the bottom. Sir Matthew Hale, in his
advice to his grandchildren, says, " I will not have you begin or
pledge any health, for it is become one of the greatest artifices of
drinking, and occasions of quarrelling, in the kingdom. If you pledge
one health, you oblige yourself to pledge another, and a third, and so
onwards ; and if you pledge as many as will be drank, you must be
debauched and drunk. If they will needs know the reason of your
refusal, it is a fair answer, ' that your grandfather that brought you
up, from whom, under God, you have the estate you enjoy or expect,
left this in command with you, that you should never begin or pledge
a health'" (p. 156). The expedient of putting little or no wine into
the glass never seems to have been thought of.
:. Burnet, p. 6. These Rules have been greatly too much praised :
beyond their spirit of piety, they have little to recommend them.
280 LIFE OF CHIEF JUSTICE HALE.
CHAP. for nothing, if you will promise me ioo/. when you
come to be Lord Chief Justice of England." He
answered, " I cannot with a good conscience wear any
man's cloth unless 1 pay for it." So he satisfied the
draper, and carried away the cloth. They afterwards
met, and recounted this conversation, in the reign of
Charles II., when the law-student had risen to be Chief
Justice of England, and the draper to be an alderman
of London.
His mode Hale continued to keep terms at Lincoln's Inn
of acquir- . ....
ing a above seven years, undergoing labor at which, in our
of law. degenerate days, the most industrious would tremble;
and before he was called to the bar he had professional
knowledge which would furnish a good stock in trade
for all Westminster Hall. He not only read over
and over again all the Year-Books, and Reports, and
law treatises in print, but, visiting the Tower of Lon-
don, and other antiquarian repositories, he went
through a course of records from the earliest times
down to his own, and acquired a familiar acquaintance
with the state and practice of English jurisprudence
during every reign since the foundation of the mon-
archy. From his reading and researches he composed
His "Com- what he called a Commonplace Book ; but what may, in
Book!'*06 reality, be considered a CORPUS JURIS, embracing and
methodizing all that an English lawyer, on any emer-
gency, could desire to know.1
Nor did he, like the great bulk of English jurists,
confine himself to our municipal law ; he studied juris-
i. We still have it among his other MSS. in Lincoln's Inn, and I
have examined it with admiration. Burnet says, "An eminent Judge
of the King's Bench borrowed it of him when he was Lord Chief
Baron. He unwillingly lent it, because it had been writ by him
before he was called to the bar, and had never been thoroughly
revised by him since that time. But the Judge having perused it,
said, 'that though it was compossd by him so early, he did not think
any lawyer in England could do it better, except he himself would
again set about it.' "
LIFE OF CHIEF JUSTICE HALE. 28 1
prudence liberally and on principle, not as a mere C.J^PI
money-making trade. He devoted himself to the
study of the Roman law, saying that " a man could
never understand law as a science so well as seeking
it there ; " and he lamented much that it was so little
studied in England.1
He was likewise resolved not to be a mere lawyer, His other
his maxim being that "no man could be absolutely
master in any profession without having some skill in
other sciences." Accordingly, he made great profi-
ciency in arithmetic, algebra, and pure mathematics ;
he attended much to natural philosophy ; he became
well versed in anatomy ; " and in his sickness he used
to argue with his doctors about his distempers like
one of their own profession." l
All these wonders he accomplished by a thrifty His thrifty
... ,... XT ... ,. application
application 01 his time. None oi it was wasted in vain of his time,
amusements ; and his repasts were so temperate, that
immediately after them he was fit for any mental exer-
tion. Change of study was his relaxation, and he for-
got the fatigue of mastering a case in Plowden or
Coke when he set to work on " the Torricellian exper-
iment, and the rarefaction and condensation of the
air." He would not haunt frivolous company, and he
avoided epistolary correspondence as an unprofitable
consumption of time. Yet he loved to converse with
those from whom he might derive solid instruction ;
and he carried on a friendly intercourse with Selden,
the illustrious antiquary, and Vaughan, who was one
day, as Chief Justice, to acquire such renown by estab-
lishing the independence of juries.2
His great patron was Noy, afterwards Attorney
General, now a patriot, and distinguished only for his
deep learning and liberal accomplishments. Hale
1. Burnet, p. 8.
2. Bushell's Case, 6 St. Tr. 967.
282 LIFE OF CHIEF JUSTICE HALE.
CHAP. Went by the name of " Young Noy," and might have
Misname found a short cut to fortune, when the patriotic law-
of" Young
Noy." yer, who had assisted in carrying the PETITION OF
RIGHT, became the slave of an arbitrary Court; but
our debutant preferred his independence to his inter-
est, and refused to be concerned in manufacturing the
writ of " Ship-money."
Considering his wonderful proficiency, there can
be little doubt that, if he had been so inclined, the
usual period then prescribed for remaining in statu
pnpillari at the Inns of Court might have been
abridged ; but he looked for solid fame rather than
He is called early profit or notoriety, and he was not called to the
to the bar.
A.D. 1637. bar till he was in the 28th year of his age.
His early As soon as he had put on the long robe he was in
practice.
A.D. 1637- full business ; but he was at first chiefly employed as
a consulting or chamber counsel. He had neither a
natural flow of eloquence, nor boldness of manner, nor
a loud voice. He therefore seems long to have been
thought unfit for jury trials, or Star Chamber practice ;
and, even when retained on demurrers and special
verdicts before the Judges in Westminster Hall, he
was more eager to supply arguments and authorities
to his leaders than to gain tclat for himself. When
obliged to take the lead, he was an enemy to all elo-
I"6006 or rhetoric in pleading. He said, " If the
ine- judge or jury had a right understanding, it signified
nothing but a waste of time and loss of words ; and if
they were weak and easily wrought on, it was a more
decent way of corrupting them by bribing their fan-
cies, and biassing their affections : and wondered
much at that affectation of the French lawyers in
imitating the Roman orators in their pleadings, — for
the oratory of the Romans was occasioned by their
popular government, and the factions of the city, so
that those who intended to excel in the pleading of
LIFE OF CHIEF JUSTICE HALE. 283
causes were trained up in the schools of the Rhetors
till they became ready and expert in that luscious
way of discourse. He therefore pleaded himself
always in few words, and home to the point."1
He began with the specious but impracticable rule His early
scruples
of never pleading except on the right side — which about
. . causes that
would make the counsel to decide without know ing appeared
unjust.
either facts or law, and would put an end to the ad-
ministration of justice. " If he saw a cause was unjust,
he for a great while would not meddle further in it
but to give his advice that it ivas so ; if the parties
after that would go on, they were to seek another
counsellor, for he would assist none in acts of injus-
tice. Yet, afterwards, he abated much of the scrupu-
losity he had about causes that appeared at first view
unjust."3 He continued to plead with the same sin-
cerity which he displayed in the other parts of his
life ; and he used to say, " It is as great a dishonor as
a man is capable of to be hired, for a little money, to
speak or to act against his conscience."3
Although he was laughed at by many for his peculi-
arities, his merit was fully appreciated by the discern-
ing ; and in the course of a few years he was at the
very top of his profession. Still he was unassuming His mod-
and courteous. " His modesty was beyond all exam- courtesy.
pie ; for, where some men who never attained to half
his knowledge have been puffed up with a high con-
ceit of themselves, and have affected all occasions of
raising their own esteem by depreciating other men,
he, on the contrary, was the most obliging man that
i. Burnet, p. 40. 2. Burnet, p. 46.
3. Burnet pays him a compliment which shows a very lax state of
feeling at the bar in those days : " He abhorred those too common
faults of misreciting evidences, quoting precedents or books falsely,
or asserting things confidently, by which ignorant juries or weak
judges are too often wrought on. " The over-confijint assertion, I fear,
continues ; but I have never known more than one counsel threatened
with being obliged to " cite his cases on affidavit."
284 LIFE OF CHIEF JUSTICE HALE.
CHAP. ever practised. If a young gentleman happened to be
retained to argue a point of law, where he was on the
contrary side, he would very often mend the objec-
tions when he came to repeat them, and always com-
mend the gentleman if there were room for it ; — and
one good word of his was of more advantage to a
young man than all the favor of the court." '
Such was Hale's reputation, that, when the Long
Parliament was about to assemble, both parties in the
state were eager to enlist him in their ranks.
His con- His conduct at this crisis has been much com-
duct when .... , ,
thetrou- mended, but I must say that I think it was cowardly
out r e and selfish. If he had approved of the government
' ~ by prerogative, which had prevailed for eleven years
since parliaments had been discontinued, it was his
duty to have allowed himself to be returned for a
treasury borough, and gallantly to have defended the
levying of benevolences, the legality of Ship-money,
and the atrocities of the Star Chamber and Court of
High Commission. In his heart he was a lover of lib-
erty and of the constitution: therefore he ought to
have accepted the offer of a seat made to him by Pym,
Hampden, and Whitelock, and to have assisted them
in correcting abuses, and bringing delinquents to jus-
tice. But he declared himself neutral— saying that
" he was resolved to follow the example of Pomponius
Atticus,2 who had passed through a time of as much
1. Character of Hale by Lord Nottingham ; Burnet, p. 57.
2. Titus Pomponius Atticus (*. B.C. 109, d. B.C. 32), an eminent
Roman, of patrician birth, great wealth, and high intellectual ability,
and remembered as the friend of Cicero, who wrote to him the cele-
brated series of letters. During the civil wars between Sylla and
Marius he removed to Athens, where he spent twenty years, and ren-
dered many services to the citizens, who raised statues in his honor.
Recalled by Sylla in 65 B.C., he resided in Rome. He had no ambition,
made a generous use of his great wealth, and during the civil wars
was able to be on friendly terms with men of all parties. He starved
himself to death to avoid other physical sufferings.—^///. Entyc., vol.
ii. p. 94.
LIFE OF CHIEF JUSTICE HALE. 285
destruction as ever was in any age or state, without C^[P-
the least blemish on his reputation, and free from any
considerable danger, being held in great esteem by all
parties, and courted and favored by them." He there-
fore not only would not serve in parliament, and re-
fused all public employment, but avoided the very
talking of news ; and Burnet pays him this wretched
compliment, — " he was sure never to provoke any by
censuring or reflecting on their actions, for many that
have conversed much with him have told me they
never heard him once speak ill of any person." Cal-
umny, censoriousness, and uncharitableness are to be
shunned ; but the best interests of society require
that bad actions should be censured in private society,
as well as punished by the magistrate.
It is said that Hale was " assigned counsel for the Qu. wheth-
Earl of Strafford," — but he never appeared for him in counsel for
public with Lane and his other counsel, and, if he was ford?
at all concerned in the defence, it could only have
been in preparing the answer to the articles of im-
peachment, or attending a consultation respecting the
mode of opposing the bill of attainder. He certainly counsel
was one of the counsel for Archbishop Laud. The for Laud-
able argument of Herne, who was leader, to prove that
nothing which the most reverend prisoner had said or
done amounted to treason by any known law of the
kingdom, was prepared by Hale. Sergeant Wilde
contending that all the misdemeanors " accumula-
tively were tantamount to treason," Herne replied (I
know not whether prompted by his junior), " I crave
your mercy, good Mr. Sergeant ; I never understood
before this time that two hundred couple of black
rabbits will make a black horse." 1
Hale was, soon after, counsel for Lord Macguire, Counsel
one of the leaders of the Irish massacre ; and argued '
I. 4 St. Tr. 315, 577, 586.
286 LIFE OF CHIEF JUSTICE HALE.
CHAP, against Prynne, with great depth of learning, the ques-
tion " whether an Irish peer was liable to be tried by
a jury in England for high treason committed in Ire-
land ? " The prisoner was convicted and executed,
but Hale by this defence acquired such reputation that
he was employed in every following state prosecution
while he remained at the bar.1
A.D. 1644. The cause of the Parliament gaining the ascen-
"iecovt dency, Hale signed the SOLEMN LEAGUE AND COVE-
ste'in'the1 NANT> and served as a member of the famous Assembly
Assembly of Divines at Westminster who framed the standards
of Divines
at West- 0{ the true Presbyterian faith. At no period of his
minster. J *
life did he consider any form of church government
essential to the enjoyment of the blessings of the Gos-
pel. The system which he had pledged himself to
"extirpate" was only what he called "the rampant
exclusiveness of a semi-popish hierarchy," • - and
though he stoutly denied the necessity for episcopal
ordination, and preferred the Presbyterian polity of
the reformed churches abroad, he did not object to a
modified episcopacy such as had been proposed by
Archbishop Usher, and he never countenanced the
wild doctrines of the Independents or Anabaptists.
A.D. 1645. At the conclusion of hostilities, when Oxford alone
"rthTsur- stood out for the King, and there was great danger,
Oxford0' from tne fury °f some of the parliamentary leaders,
that this city might be laid in ashes, Hale was in-
duced, by his affection for his ALMA MATER, to
serve as one of the commissioners appointed to treat
for its reduction. Accordingly, by his intercession,
honorable terms were granted to the royal garrison,
and the inestimable treasures contained in the public
libraries were preserved. Notwithstanding his low-
church tendencies, the members of the University
always thought well of him for this good turn, and
I. 4 St. Tr. 702.
LIFE OF CHIEF JUSTICE HALE. 287
afterwards sent him to parliament as one of their rep- c^^-
resentatives.
He was now most earnestly desirous to see an A.D. 1648,
1649
accommodation brought about between the King and Tries to
. bring about
the Parliament. He remained a decided inenq toasettie-
. . . ment be-
monarchy, although he was ot opinion that the ex-tweenthe
cesses of prerogative ought to be effectually restrained, the Pariia-
— and he approved of the terms offered to Charles I. ra'
in the Treaty of Newport,1 which he afterwards vainly
attempted to make the basis of the restoration of
Charles II. But Cromwell and the Independents
became possessed of supreme power, which they were
resolved to continue in their own hands, under pre-
tence of establishing the reign of the saints on earth.
Henceforth the " Blessed Martyr " showed a con-
stancy and dignity which almost make us forget his
past errors. " When brought to the infamous pagean- QU. wheth-
try of a mock trial, Hale offered to plead for him with counselor
all the courage that so glorious a cause ought to have
inspired ; but was not suffered to appear, because the
King refusing, as he had good reason, to submit to the
i. The Treaty of Newport (1648). In spite of the vote that no more
addresses should be made to the King (Jan. 15, 1648), the Presbyterian
majority in Parliament seized the opportunity of the second civil war
to open fresh negotiations. On July 3 the resolutions of January were
rescinded, and it was agreed (July 28) that efforts should be made to
enter into a general and open treaty with Charles, and that the place of
negotiation should be Newport in the Isle of Wight (Aug. 10). The
parliamentary commissioners, five lords and ten commoners, arrived
in the island on Sept. 15, and the negotiations began three days later.
The negotiations continued till Nov.' 27, as the King argued every
point, and delayed to give decided answers in the hopes of escaping,
or being freed by help from France or Ireland. He offered to consent
to the establishment of Presbyterianism for three years, but would
not agree to the abolition of bishops. His answers on the Church
question, and the question of the "delinquents," were both voted un-
satisfactory (Oct. 26-30). Nevertheless, on Dec. 5 the House of Com-
mons, by 129 to 83 voices, voted "that the answers of the King to the
propositions of both Houses are a ground for the House to proceed
upon for the settlement of the peace of the kingdom." — Low and Pull-
ing's Diet. of. Eng, Hist.
288 THE COMMONWEALTH.
CH.Ap- court, it was pretended none could be admitted to
.A. VI.
speak for him." :
He takes Hale, having done his duty to his sovereign,
thought that it became him as a good citizen to submit
wealth.0"" to the government which Providence permitted to be
established. Accordingly he took the engagement " to
be true and faithful to the Commonwealth of England,
without a King or House of Lords." This was substi-
tuted for the old oath of allegiance, and required only
subscription without adjuration ; but all persons were
obliged to submit to it as a qualification to hold any
office or employment, or publicly to exercise any pro-
fession.2 Some blind idolaters of Hale represent that,
refusing to conform, he always declared the exiled heir
to the Crown alone to be entitled to his obedience.3
We know the contrary, however, from his own mouth.
Appearing before the High Court of Justice as counsel
for Christopher Love, he was asked by Lord President
Bradshaw " whether he had taken the engagement?"
and he answered, " My Lord, I have done it." 4
Vaughan's Vaughan followed a different course, ever refusing
different
course. by act or speech to sanction what he called " rebel-
lion " and " usurpation ; " hiding his loyalty amidst the
fastnesses of Wales, — never taking a fee from the com-
mencement of the troubles till the Restoration, — and,
when pressed to plead for those who wished to make
use of his abilities, saying, " It is the duty of an honest
man to decline, as far as in him lies, owning jurisdic-
tions that derive their authority from any power but
their lawful prince."5 On principle, however, it can
1. Burnet, p. II. There has been a controversy whether Hale
really was counsel for Charles I., but we may safely believe that he
was consulted as to the line of defence to be adopted, and that he ad-
vised his royal client resolutely to deny the jurisdiction of the Court.
2. Scobell's Acts, zd January, 1649-50.
3. Burnet, p. 12.
4. 5 St. Tr. 211.
5. 6 St. Tr. 129.
LIFE OF CHIEF JUSTICE HALE. 289
make no difference for this purpose, whether, upon
a revolution, the supreme power is vested in a new
sovereign with the ancient title of our chief magistrate,
or in a PROTECTOR; and the famous statute of Henry
VII. makes us safe while we obey a king de facto.
Instead of emigrating, or withdrawing from public life,
it may be the duty of a good citizen, after having
strenuously resisted the revolutionary movement, to
adhere to a government which he condemns, and to do
his utmost to soften its violence.1
Of a piece with Hale's supposed refusal to take the s.tol?°.f
the hiding:
engagement to the Commonwealth, is the storv of hisof Hale?s
» " Pleas of
having on the execution of Charles I. hid behind the the
Crown."
wainscoting of his study his " Pleas of the Crown,"
to prevent their falling into ill hands, exclaiming,
" There will be no more occasion for them until the
King shall be restored to his right." In truth, the
criminal law of the country remained almost entirely
unchanged, and Hale was still constantly conversant
with its administration at the bar and on the bench —
requiring all the stores of his learning on this subject
for his assistance.3
He had become, beyond competition, the first ad-Heiscoun-
sel for all
vocate in Westminster Hall, and he led with great whom
Cromwell
boldness the defences of those who were prosecuted by prosecuted
the Protector for political offences. He particularly offences.
distinguished himself on the trial of the Duke of Ham-
ilton, indicted for high treason because he had invaded
England as leader of a Scottish army. The pleas
were, —
" i. That he was born in Scotland and an alien in England A-D- l649-
His de-
so as not to be triable here. 2. That he had acted in the name fence of
of the King of Scotland, and by the commands of the Parliament 0'feHaniU-
of the kingdom which he was bound to obey. 3. That he had ton-
1. So thought Sir Michael Foster (4th Discourse) ; and so thought
Edmund Burke.
2. See Burnet, p. 13 ; Williams's Life of Hale, p. 28.
2QO THE COMMONWEALTH.
CHAP, capitulated under articles by which his personal safety was ex-
pressly stipulated for."
But, in spite of unanswerable reasoning, all these
were overruled by the High Court of Justice, and the
Duke was executed as a traitor.1
*.p. 1651. Hale's leaning towards Presbyterianism made him
fence of particularly zealous in defending Christopher Love,8
pher Love, although Cromwell had declared that " he would not
march into Scotland till he had the head of this apostle
of the Covenant." For six days was the argument
kept up on the pretended overt acts of treason
charged, which were all shown to have no support
by common law, statute, or ordinance. But on the
seventh morning, " without so much as praying for
the King, otherwise than that he might propagate
the Covenant, he laid his head upon the block with as
much courage as the bravest and honestest man could
do in the most pious occasion."3
Hisde- Hale's last appearance at the bar was in Lord
Lord Craven's case. Of this we have no account in the
"Reports;" but Burnet, who had conversed with those
who were present, says that " he then pleaded with
such force of argument, that the Attorney General
threatened him for appearing against the Government;
when he answered, ' I am pleading in defence of those
laws which you declare you will maintain and preserve,
and I am doing my duty to my client — so that I am not
to be daunted with threatenings.' " 4
1. 4 St. Tr. 1155.
2. Christopher Love, a Presbyterian divine, born at Cardiff 1618. He
studied at Oxford, and took orders ; after which he became a bitter enemy
to the Church of England, and was ordained again by the hands of pres-
byters 1644. He was one of the commissioners for the Parliament at the
Treaty of Uxbridge, where he behaved with such insolence as 10 offend his
own party. He was also one of the Assembly of Divines, and chosen
minister of St. Lawrence, Jewry ; yet he signed the declaration against the
murder of the King. After this he was concerned in a plot against Crom-
well and the Independents, for which he was tried and beheaded Aug. 22,
1651. — Cooptr's Biog. Diet.
3. Clarendon ; 5 St. Tr. 268. 4. Burnet, pp. n, 12
LIFE OF CHIEF JUSTICE HALE. 291
It should likewise be related, that Hale not only
was ready to render his best professional assistance Hi^gener-^
to poor royalists without a fee, but " he also relieved royalists.
them in their necessities, which he did in a way that
was no less prudent than charitable, considering the
dangers ol that time ; for he did often deposit consid-
erable sums in the hands of a worthy gentleman of the
King's party, who knew their necessities well, and was
to distribute his charity according to his own discre-
tion, without either letting them know from whence it
came, or giving himself any account to whom he had
given it." 1
In spite of this independent conduct, the leading ^^ 5^
men oi the Commonwealth had great confidence in^0™1"
Hale, and they invited him to an undertaking which Cromwell.
might have been of inestimable benefit to the commu-
nity. Since the reign of Edward I. there had hardly
been any change in the laws or in the modes of admin-
istering justice in England, and they had become quite
unsuited to the altered circumstances of the country.
Whitelock, and other enlightened lawyers who were
members of the Long Parliament, were eager for legal
reform, but they were thwarted by ignorant enthusiasts
who proposed what was impracticable and absurd;
and even Oliver himself, when any objection was made
to the abolition of existing processes without the sub-
stitution of any others for the protection of property
or innocence, complained of a combination of lawyers
whom he abused as the " sons ol Zeruiah." A very
reasonable suggestion was now offered, — that such
matters might be much better discussed in private,
and that they should be referred to a mixed com-
mission of lawyers and others who were not members
of the House of Commons. There were joined with
i Burnet, p. 12.
292 THE COMMONWEALTH.
CHAP, him the fanatical Hugh Peters,1 and several psalm-
Hugh sinerine: military officers, who were for destroying our
Peters his ' . .
associate, existing system " root and branch, and substituting
for it the Mosaic law as expounded in Leviticus.
However, Hale was supported by a majority of en-
lightened jurists, and with their assistance he drew
up the heads of all the great legal improvements
which have since been introduced, and of some for
which public opinion is not even yet quite prepared —
such as a general registration of deeds affecting real
character property. Ordinances for carrying on legal proceed-
formslc- ings in the English language, and for abolishing
pushed, tenure in chivalry, with all its burdensome inci-
dents, were accordingly passed ; but these reforms,
April 19, being interrupted by the sudden dissolution of the
Long Parliament, could not be advantageously re-
sumed during the troubles which followed, and upon
the Restoration were viewed with dislike, under the
notion that they proceeded from Puritans and republi-
cans.8
Hale was not returned to Barebone's parliament,
and he must have viewed with alternate grief and
mirth the absurd proceedings of its members, till,
convinced of their own incapacity, they voluntarily
Dec. is. surrendered up their authority.
Cromwell was soon after acknowledged as Lord
Protector, holding his office for life, with power to
name his successor ; and the monarchy might be con-
1. Hugh Peters, a fanatic, born at Fowey, Cornwall, and educated at
Trinity College, Cambridge, where he graduated M.A. 1622. He after-
wards went on the stage, which he quitted and entered into orders ; but
having had an intrigue with another man's wife, he fled to Rotterdam, and
next to America. He returned to England in the rebellion, and became
very active against the King, for which he was tried and executed with the
regicides 1660. — Cooler's Biog. Diet.
2. We have not yet done justice to the moderate and wise men who
appeared in England during the Commonwealth. Their prudence con-
trasts very strikingly with the recklessness which has marked the proceed-
ings of revolutionary leaders in all other countries.
LIFE OF CHIEF JUSTICE HALE. 293
sidered as reestablished. Hale approved of this c^jp-
arrangement — although he would have been still
better pleased with the recall of the ancient line under
conditions to secure public freedom.
At this crisis came an offer of the office of a Judge Dec. 20.
in the Court of Common Pleas to Hale, who a few comes a
months before had been raised to the degree of a Ser-Undtr
geant, the writ for his elevation running in the names
of " the Keepers of the Liberties of the People of
England." I suspect very much that, for the purpose
of conforming as much as possible to Restoration ideas
and language, the motives and reasonings on which
this very laudable judicial appointment was proposed
and accepted have been a good deal misrepresented.
On the one hand, it has been said that Cromwell, The.
motives for
observing how stoutly Hale defended all state offend- the pro-
posal and
ers, had no object but to deprive those whom he acceptance
, T of this ap-
wished to prosecute ot an able advocate; whereas 1 poimment.
see no reason to doubt that the Protector proceeded
on the principle " detur digniori" selecting for his good
qualities the most learned, able, and honorable man to
be found in the profession of the law. On the other
hand, the " scruples " of the Sergeant must have been
considerably exaggerated : " Mr. Hale," says Burnet, Bumet's
' account of
" saw well enough the snare laid for him ; and though Haie's
"scruples."
he did not much consider the prejudice it would be to
himself to exchange the easy and safer profits he had
by his practice for a Judge's place, which he was re-
quired to accept of, yet he did deliberate more on the
lawfulness of taking a commission from usurpers; but
having considered well of this, he came to be of opinion
that it being absolutely necessary to liave justice and property
kept up at all times, it was no sin to take a commission from
usurpers if he made no declaration of his acknoivledging
their authority — WHICH HE NEVER DID." Now it is
quite certain that Hale had previously acknowledged
294 THE COMMONWEALTH.
CxviP the Commonwealth " WITHOUT KING OR LORDS," and
that he did so still more solemnly when he was sworn
into office, and when he made the declaration of fidel-
ity on taking his seat as a member of the House of
Commons. If all are "usurpers" who hold supreme
power without hereditary right, King William III.,
Queen Anne, and King George I. are to be inscribed
in this class, although Hale would not have hesitated
to obey them as lawful sovereigns. I believe that he
at this time regarded Cromwell in the same light — for
we must judge by his principles and his actions, and
not by speeches afterwards conveniently put into his
mouth. Some pretend that, to overcome the hesi-
tation and reluctance which Cromwell now encoun-
tered, he made the famous declaration, " Well ! if I
cannot rule by red gowns, I will rule by red coats."
But the Lord Chief Justice of the King's Bench, the
Lord Chief Justice of the Common Pleas, and the Lord
Chief Baron of the Exchequer, with several of the
Puisne Judges, had expressed their willingness, on the
King's execution, to continue in their offices ; the vacan-
cies of those who resigned had been immediately filled
up from among the Sergeants ; and there were plenty
of candidates for the Bench in Westminster Hall, to
drive away all apprehension of the introduction of mar-
tial law for lack of ermined Judges.
Hale's promotion seems to have taken place in the
ordinary fashion, and for several years he regularly
duties. performed all the duties of his office, sitting in the
Court of Common Pleas in term time — going the cir-
cuits twice a year, and, without any misgiving, trying
criminals at the assize towns as well as at the Old
Bailey in London. Some time afterwards he abstained
from trying prisoners — but this was after he had quar-
relled with the Government respecting the administra-
tion of the criminal law — and both sides were equally
LIFE OF CHIEF JUSTICE HALE. 295
willing that he should confine himself to the decision c^f-
of civil causes :
"A trial was brought before him at Lincoln, concerning the *•£>. 1654.
murder of one of the townsmen who had been of the King's His inde-
party, and was killed by a soldier of the garrison there ; he was ^duct as
in the fields with a fowling-piece on his shoulder, which the a Criminal
soldier seeing, he came to him and said, ' It was contrary to an
order the Protector had made, that none who had been of the
King's parly should carry arms, ' and so he would have forced it
from him ; but as the other did not regard the order, so being
stronger than the soldier, he threw him down, and having beat
him, he left him ; the soldier went into the town, and told one
of his fellow-soldiers how he had been used, and got him to go
with him and lie in wait for the man, that he might be revenged
on him : they both watched his coming to town, and one of
them went to him to demand his gun, which he refusing, the
soldier struck at him, and, as they were struggling, the other
came behind and ran his sword into his body, of which he pres-
ently died. It was in the time of the assizes, so they were both
tried : against the one there was no evidence of forethought
felony, so he was only found guilty of manslaughter, and
burned in the hand ; but the other was found guilty of murder :
and though Colonel Whaley, that commanded the garrison,
came into the court and urged that the man was killed only for
disobeying the Protector's orders, and that the soldier was but
doing his duty, yet the Judge regarded both his reasonings and
his threatenings very little, and therefore he not only gave sen-
tence against him, but ordered the execution to be so suddenly
done, that it might not be possible to get a reprieve, which he
believed would have been obtained if there had been time enough
granted for it."1
I must say that this haste was a very unjustifiable
interference with the prerogative of mercy lodged,
according to the constitution which he had sworn to
respect, in the Lord Protector.
On another occasion he defied his Highness, not He defies
only with spirit, but with perfect propriety. A gov- for°reuirn-
ernment prosecution coming on for trial at the assizes, mg a jury'
I. Burnet, pp. 13, 14.
396 THE COMMONWEALTH.
CHAP. Hale received information that the jury had not been
fairly named. To get at the truth he questioned the
sheriff, who said, " I refer all such matters to the under-
sheriff." The under-sheriff acknowledged that the jury
had been returned by Cromwell. The Judge there-
upon cited the statute whereby all juries ought to be
returned " by the sheriff or his lawful officer ; " and,
this not being done, he dismissed the jury, and would
not try the cause. When he came back to London the
Protector, in a passion, severely censured him, saying
" You are not fit to be a Judge." The only answer
was, " Sir, what your Highness has said is indeed very
true."
A.D. 1655. His last disgust as a Criminal Judge was while he
His disgust . . .
at the trial was trying some Anabaptists, who had rushed into a
tists.na ^ church and disturbed a congregation assembled to
receive the sacrament, according to the new rubric,
after the Genevese fashion. He intended to treat these
religionists with severity, though they were much
favored by the ruling powers ; and he said, " It is in-
tolerable for men who pretend so highly to liberty of
conscience to go and disturb others — especially those
who have the encouragement of the law on their side."
The words were hardly out of his mouth when a nolle
prosequi was produced, which put a stop to the pro-
ceedings before him — upon which he declared that
" he would meddle no more with the trials on the
Crown side."1
April. Yet, when Penruddock was about to be arraigned
before a special commission at Exeter, for high treason
*n IG vying war against the Lord Protector,2 a Govern-
ment messenger came to Hale's house at Alderley,
where he was then enjoying his vacation, and sum-
moned him to attend. He refused to go, exclaiming,
"The four terms and two circuits are enough, and the
I. Burnet, 15. 2. 5 St. Tr. 767.
LIFE OF CHIEF JUSTICE HALE. 297
little interval that is between is little enough for my c^p-
private affairs." Burnet observes that " he thought it
was not necessary to speak more clearly ; but if he
had been urged to it, he would not have been afraid
of doing it." ] We must suppose, therefore, that by a
silent understanding, with which both parties were
well pleased, for their mutual convenience, Hale
henceforth abstained from acting as a Criminal Judge
under Cromwell ; and that he is free from the absurd-
ity of supposing that he might with a good conscience
settle the right to an estate of 2o,ooo/. a year, — but
that he would be impiously acting under an usurper,
if he tried a petty larceny, or the obligation on a par-
ish to repair a highway. His conduct would have
been more manly if he had continued fearlessly to per-
form the whole of his duty as an English Judge.
We are now to see Hale as a legislator. The Pro- Hale as a
- .... . . legislator.
tector, who was the nrst to establish an incorporating
union between all parts of what we now call THE
UNITED KINGDOM, summoned representatives from
England, Scotland, and Ireland. He was likewise the
first to reform the House of Commons, for he disfran-
chised the rotten boroughs, and directed that repre-
sentation should be according to the population and
wealth of the constituent bodies. Five members were
to be returned for Gloucestershire ; and the inhabi- He is
tants, proud of their countryman, Judge Hale, ex- member of
pressed a strong wish that he would allow himself to0fecom-Se
be put up as a candidate. He declared that he would cr°onmwneirs
not solicit votes, and that he would be at no expense,
but that if he were returned he would serve. There
being no House o( Lords for the Common-law
Judges to attend, it. was considered that there was no
objection to their sitting in the House of Commons.
Hale attended at the hustings on the day of election,
I. Burnet, 15.
2gg THE COMMONWEALTH.
CHAP. and Was at the head of the poll. We are told that
"the Earl of Berkeley defrayed the charges of his
entertainment, and girt him with his own sword ; " but
no account has been left us of his speech, or of the
chairing.
When the Parliament met, Hale signed the follow-
ing test, devised to exclude all those who were dis-
posed to inquire into the validity of the INSTRUMENT
OF GOVERNMENT : *
I. The Instrument of Government is the name given to a paper
constitution of forty-two articles, called " the Government of the Com-
monwealth," by which the Protectorate of Cromwell was established
(December, 1653). The executive power was vested in the Protector
and a council of fifteen to twenty-one persons appointed for life.
Until the meeting of Parliament, fixed for Sept. 3, 1654, the Protector,
with assent of the Council, could make ordinances to have the power
of laws. After this, the legislative power was vested in the Parlia-
ment alone, and, though bills were to be submitted to the Protector
for his assent, he had no power to veto them if they were themselves
in accordance with the constitution. Parliaments were to be called of
necessity every three years, and when called could not be dissolved
for five months, except by their own consent. The representative sys-
tem was reformed, in accordance with the plan proposed by Ireton,
and amended by the Rump. Scotland and Ireland were each repre-
sented by thirty members, while the number of members for England
and Wales was reduced from five hundred to four hundred. The
number of county members was largely increased, many rotten bor-
oughs were disfranchised, and important places like Leeds, Manches-
ter, and Halifax received representatives. At the same time, two
classes of electors were disfranchised : (i) All Roman Catholics and
those concerned in the Irish rebellion were disabled for ever ; (2) all
persons who had been engaged in war against the Parliament since
January, 1642, except such as had given signal testimony since then of
their good affection, were disabled from electing or being elected for
the next Parliament and the three following. By article xii., it was
expressly inserted in the writs that the persons elected should not
have power to alter the government as vested by the Instrument in a
single person and a Parliament. Accordingly, when Parliament, as-
sembled in September, 1654, wished to debate the constitution, and
settle the limits of the Protector's power, Cromwell, while drawing a
distinction between 'circumstantials," which they might alter, and
"fundamentals," which they must leave untouched, forced them to
sign an engagement not to propose the alteration of the government
in that particular. Mr. Gardiner remarks on the Instrument of Gov-
ernment that it was "the first of hundreds of written constitutions
which have since spread over the world, of which the American is the
most conspicuous example, in which a barrier is set up against the
LIFE OF CHIEF JUSTICE HALE. 299
" I do hereby freely promise and engage to be true and CHAP.
faithful to the Lord Protector and the Commonwealth of Eng-
land, Scotland, and Ireland ; and shall not propose or give my
consent to alter the government as it is settled in one person and
a parliament."
No plans of Chartists. Communists, or Socialists inHei.sof
use in com-
our day can be more extravagant than those then bating the
plans of
brought forward with perfect sincerity and intense miiiena-
rians and
energy by "men resolved to pull down a standing other en-
ministry, the law and property in England, and all the
ancient rules of this government, and to set up an
indigested enthusiastical scheme, which they called
the Kingdom of Christ or of his saints, many of them
being really in expectation that one day or another
Christ would come down and sit among them ; and at
least they thought to begin the glorious THOUSAND
YEARS mentioned in the Revelation." These Hale,
from his biblical learning, and his reputation for piety,
combated with much success, seeking to soothe them
rather than to treat them with abuse or ridicule.
" Among the other extravagant motions made this
parliament, one was ' to destroy all the Records in the
Tower, and to settle the nation on a new foundation.'
So he took this province to himself, to show the mad-
ness of this proposition, the injustice of it, and the
mischiefs that would follow on it ; and did it with
such clearness and strength of reason, as not only sat-
isfied all sober persons (for it may be supposed that
was soon done), but stopped even the mouths of the
frantic people themselves." 1
Cromwell was now aiming at the crown, with its
ancient prerogatives, which he would have allowed to
be subjected to new checks ; and most of the eminent
entire predominance of any one set of official persons, by attributing
strictly limited functions to each." — Low and Putting's Diet, of Eng.
Hist.
I. Burnet, 15, 16.
300 THE COMMONWEALTH.
CHAP, lawyers who then flourished were of opinion that it
would be for the public good that he should be grati-
fied, as he must afterwards rule according to known
law. This opinion, it is pretty clear, was entertained
by Hale, notwithstanding all that was afterwards pub-
He sup- lished of his horror of " usurpers." He could not at
authority once move that OLIVER I. should be proclaimed King,
well. but he proposed " that the legislative authority should
be affirmed to be in the parliament of the people of
England, and a single person qualified with such in-
structions as that assembly should authorize, in the
manner suggested by the republicans. To render
this palatable to the executive magistrate, he recom-
He recom- mended that the military power (which had been so
the mill- peremptorily refused to Charles I.) should for the
o present be unequivocally given to the Protector ; and
that to avoid the perpetuity of parliament, and other
exorbitancies in the claims of supremacy, that officer
should be allowed such a coordination as might serve
for a check in these points."1
The republican spirit was yet much too strong to
allow the title of King to be endured in the House
of Commons, — much less in the army ; and there ap-
peared a disposition rather to strip Cromwell of the
power already conferred upon him, than to enlarge it ;
— so that when this Parliament had sat little more
than three months, and before it had passed a single
act, it was abruptly dissolved.
Hale confined himself to the discharge of his
official duties during the remainder of Oliver's Pro-
July, 1656. tectorate. When a new parliament was called in the
being re- following year, he declined being returned as a mem-
new pariia- ber of the House of Commons, — perhaps from a hint
that the House of Lords was likely to be restored, and
that the attendance of the Judges would be required
i. Godwin, iv. 118, 119.
LIFE OF CHIEF JUSTICE HALE. 30!
there. In this way he was excluded from the confer-
ences in which the crown was formally tendered to April, 1657.
Cromwell. Had he assisted at them, I make no doubt
that he would have joined with Lord Commissioner
Whitelock and the other great lawyers, who pressed
his Highness to accept the offer, that the constitu-
tional monarchy might be reestablished under a new
dynasty. At this time, profound internal tranquillity state of
prevailed ; and the name of England was more at this
respected among foreign nations than it had ever been
since the reign of Henry V. Hale was grieved by the
ascendency of the sect of the Independents ; but he
was comforted by the humiliation of the high-Church
party ; and as a pious man he must have rejoiced to
witness the deep sense of religion which prevailed
among all ranks, except a few reckless Cavaliers,
whose influence seemed for ever extinguished, al-
though they were erelong to be in possession of the
whole power of the state, and their manners were to
be copied by the great bulk of the nation.
When Oliver had approached so near the old model December.
1 Hale at-
of government as to have a House of Lords which was tends
Cromwell's
to be hereditary, he did not name any Common-law House of
. Lords as
Judges as members ol it, but he caused them all to be one of the
summoned as assessors in the usual form ; and at the
opening of the session the only innovation was, that,
instead of placing them on the woolsack in the centre
of the House, he ranged them, decked in their scarlet
robes, on the right hand of the throne, in the seats
which had been formerly occupied by the bishops.
Here Hale attended, day by day, sometimes being
employed to carry messages to the lower House, — till
the Protector, finding this experiment a failure, dis-
solved Parliament in as great a fury as ever Stuart i6$s.4'
had done, and resolved henceforth to rule by his pre-
rogative, or rather by his army. Notwithstanding all
302
CHAP.
XVI.
Sept. 3.
He de-
clines to
act as a
Judge
under
Richard.
THE COMMONWEALTH.
the violence of the major-generals, and the arbitrary
sentences of the high courts of justice which assembled
to punish political offences, Hale steadily adhered to
him till his death, expressing no scruples as to the law-
fulness of his authority.
But although Richard x was peaceably proclaimed,
and addresses, pledging life and fortune in his cause,
poured in upon him from all quarters, it was evident
to every one that he was unequal to the task which
had devolved upon him, and that his government
could not stand. According to royal fashion, it was
supposed that the commissions of the Judges all ex-
pired on the death of the Lord Protector, who had
granted them. A new commission was offered to
Hale, and he was importuned to accept it — but he
answered, " I can act no longer under such authority."
His scruples were probably strengthened by observing
that the army was much discontented, that several
military leaders aspired to the Protectorship, and that
plots began to be formed for the restoration of the
exiled royal family. He even refused to attend
Oliver's funeral, or to wear a suit of mourning sent to
r. Richard Cromwell, the eldest surviving son of the Protector Oliver,
was born at Huntingdon in 1626. He was admitted into Lincoln's Inn
in 1647, but appears to have been an indolent student. In 1649 he married
Dorothy Major, with whom he passed several years in rural retirement at
Hursley, Hampshire. He had a mild, virtuous, and unambitious char-
acter, and inherited little or nothing of his father's mental power. In
1654 Oliver brought him to Court and appointed him First Lord of Trade
and Navigation, Privy Councillor, etc. He succeeded his father, Septem-
ber 3, 1658, without open opposition, and was proclaimed Protector by
General Monk and the army. A general disaffection, however, was soon
apparent, and the republicans and royalists united in hostility to his power.
Fleetwood, Lambert, Desborough, and other officers, having formed a
cabal against him, demanded the dissolution of Parliament, which was
effected in April, 1659. " By the same act," says Hume, "he was con-
sidered as effectually dethroned. Soon after, he signed his demission in
form." " Thus fell, suddenly and from an enormous height, but, by a
rare fortune, without any hurt or injury, the family of the Cromwells."
About 1660 he retired to the Continent, and resided some years in Paris
and Geneva. He returned to England in 1680, and passed the rest of his
life in obscurity and peace. Died in 1712. — Thomas' Biog. Diet.
LIFE OF CHIEF JUSTICE HALE. 303
him, although the like present was accepted by all
others who had been in public employment under the
late Protector.
Burnet says that " he lived a private man till
Parliament met that called home the King." But
is not correct; for, although he did not resume
practice at the bar, he was returned to Richard's ?f Oxford
m Rich-
House Of Commons as representative for the Univer-ard's Par-
f . liament.
sity of Oxford, and, having again abjured royal
authority, he sat regularly in that assembly till it was
dissolved. April lS-
As he had never been a member of the Long Par-
liament, and did not belong to the restored Rump, we
know nothing of his proceeding during the troublous
period which preceded the meeting of the Convention
Parliament. Keeping aloof from the Council of State,
and taking no part in the cabals of Wallingford House,
the probability is that he retired to Alderley, and that
he lived quietly there till the elections were about to
take place for the Convention Parliament. A.D. 1660.
There was then a contest between the University whether he
of Oxford and his native county, — which of them
should have the honor of returning him to the House terslty of
of Commons. f^tte™
Thus wrote the Vice-Chancellor : Gloucester
in the Con-
" for the Honorable Justice Hale, at his house at Alderley, in vention
Gloucestershire. These : ment.
" Sr, — There hath been and still is a great readiness in this
place to choose you for one of their burgesses to sit in the next
parliament. But a report (as we suppose, without any just
ground) hath been spread abroad here within these few days,
that you will not accept of our choice. This hath somewhat
discomposed and distracted the minds of some here who are
otherwise cordially for you. Wherefore, to settle men's
thoughts, and to prevent the inconveniences which may also
befall us, 'tis humbly desired that you would be pleased posi-
tively to express your willingness, if chosen, to accept thereof.
304 THE COMMONWEALTH.
CHAP. Herein you shall (as things are at present with us) greatly
promote the interest of this place, and much quiet and oblige
many here who honor you ; and among them,
" Your most humble servant,
' ' JOHN CONANT, Vice-Chan.
"Oxford, April 2, 1660."
Hale's answer shows a strong desire to be seated,
but a considerable apprehension of falling between two
stools :
His an- "Sir, — I have received your letter ; and, first of all, I must
swer to the
vice-Chan- continue my acknowledgments of the great respects of the Uni-
Oxford. versity to me in thinking me worthy of such a trust as is com-
municated by your letter. Touching my resolution in general
for serving in this ensuing parliament, this is all I can say, the
expectation of the success of this parliament is great, and as I
think and foresee that the businesses that are like to be trans-
acted therein are like to be of great concernment to this nation,
and therefore of great difficulty and intricacy ; and therefore I
may well think any man (as I am) conscious of his own infirm-
ity may desire in his own particular to be excused ; yet, inas-
much as there seem to be no engagements to be prefixt to
entangle the conscience or to prevent the liberty of those that
are chosen to act according to it, I shall not refuse, if I am
freely chosen, to serve in it ; although I must deal plainly with
you, my own particular engagements do much persuade the
contrary. But my difficulty at this present rests in this : I have
not at all, till this time, heard anything as from the University,
touching their resolution ; and that is my great strait, that if I
shall decline the service of the county in case they fix upon me,
I fear I shall be unjust, much disappoint and discontent many ;
and if I shall decline the choice of the University, I shall seem
ungrateful, especially when my last election seems to make me
their debtor for ever in the present service ; and I know not
how to gratify both without a great discourtesy to one in my
after relinquishment ol either ; and the expedient of deferring
your choice till the success here were seen, would be too much
below that weighty and honorable body of the University, and
arrogance in me to expect it, and the choice here falls not before
the 1 8th of this month, which may give too much advantage, it
may be, to others' importunities, and leave you too little room
after your own choice. The sum is, if I am chosen here, I shall
GILBERT BURNET, BISHOP OF SALISBURY.
LIFE OF CHIEF JUSTICE HALE. 305
look upon myself as equally concerned for the good of the CHAP.
University as if chosen there. If I am chosen there I shall His an-'
serve, so it may be, without discontent to my native county. If vT«-chan-
chosen nowhere, I shall yet endeavor in my private station to cellor of
serve both ; consult the honor and service of the University, and continued,
follow that which is most conducible and suitable to it ; and
assure yourself that whether I am chosen there or here or no-
where, I am
"Yours and the University's most faithful
"Friend and servant,
"M. HALE.
" Perchance, if the election be not before Tuesday, I may,
by conference with some, learn more of the sense and resolution
of the country here, and send you notice of it to Oxford.
"Alderley, April 6, 1660."
Accordingly, he withdrew his pretensions to be He is
elected for
member for the University, and, alter a contest which the county
... .of Glouces-
lasted four days, he was again returned for his native ter.
county, — being, without solicitation or cost, at the head
of the poll; although the third man, who was thrown
out, " had spent near a thousand pounds to procure
voices, — a great sum to be employed that way in those
days." '
Hale had not entered into an}' communication with
Monk or with Hyde, of whose abilities and measures
he had but a poor opinion ; and he thought that the
Restoration, which he now sincerely desired, was torat'un-
be the act of the Almighty, rather than to be brought
about by human means. Thus he wrote, in a paper
still extant, entitled " OBSERVATIONS CONCERNING THE
PRESENT PROVIDENCES " :
"There hath been a most visible concurrence of Divine Extract
Providence and Wisdom which seems visibly distinct from the servations
very instrumentality of the immediate actors: I. Infatuating^™6™"^
those that were, for their natural parts, not inferior to any that I'rovi-
have been, with less wisdom, more successful. 2. Advancing
I. Burner., p. 16.
He desires
esto-
306 THE COMMONWEALTH.
CHAP, the success of the advices of men of no great eminency of judg-
ment. 3. Carrying the advices and activities of men beyond
their own design to the producing of that they intended not, as
the setting for Monk to counterwork the designs of Lambert and
Vane. 4. In permitting a spirit of jealousy and emulation to
arise between men whose common interest lay in the same
bottom, whereby they were divided and broken. 5. By mingling
casual conjectures in such order and method, that they were
each subservient one to another, and to the common cause of
restoring the King ; the particulars were infinite and eminent,
and such as could not fall under counsel or contrivance."
Yet he remembered the maxim, " Aide toi, le Ciel
t'aidera," ' and he resolved, with Divine assistance, to
Male's ex- exert himself to the utmost, that the coming settlement
secure of the nation should be conducted with a respect both
religious for civil and religious liberty. He was of opinion that
tiiesettie- a favorable opportunity presented itself for regulating
nation". the prerogatives of the Crown, which had been so
much abused by the Stuart princes ; and he was re-
solved that the promises made to the Presbyterians by
Charles in the Declaration from Breda, and by Hyde
in his letters to the leaders of that party, should be
carried into full effect under the sanction of an act of
parliament. Although, in the fervor of his Presby-
terian zeal, he had formerly taken the COVENANT, and
engaged to extirpate prelacy, he was now rather in-
clined to that system of church government in a modi-
fied form — but he still denied that it existed jure divino ;
and, thinking that it was left by the Divine Founder of
the Church to have under him, as its great heavenly
head, either one order of Christian ministers, or sev-
eral, as according to different circumstances might be
most for edification, he was anxious to secure the pro-
tection of those who adhered to his earlier views, and
still thought that prelacy and popery were equally
obnoxious. In accomplishing this object he anticipated
I. " Help yourself, and God will help you."
LIFE OF CHIEF JUSTICE HALE. 307
no serious difficulty, for Monk, the Earl of Manchester,
and almost all those who were taking an active part
in recalling the King, were Presbyterians, and, in the
midst of the loyal frenzy which now raged through
the land, the majority of those elected members of
the House of Commons were Presbyterians. He was
confirmed in this notion by observing that, when the
Convention Parliament met, the Liturgy of the Church April 25.
of England was not allowed to be used, the Speaker
still reading a litany prepared for the occasion, and lay
members joining in extempore prayer.1
The most urgent matter was to consider the con-
ditions on which the King should be recalled. Charles
would have been ready to agree to any that might be
asked, short of giving up the power of the sword, or
the " militia," as it was called, — for which his father
had always struggled in his negotiations with the
Long Parliament. However, when his letter to the May i.
House of Commons was delivered by Sir John Gren-^^o"^
ville, it excited such a tempest of loyalty that there commons.
was a general wish to invite him over without any
conditions whatever, and to surrender the rights and
liberties of the people into his hands.
To the immortal honor of Hale, he was not carried Haie's mo-
tion in the
away by this enthusiastic feeling, and he firmly stood Conven-
up to perform a duty which he believed he owed toiiament
. that the
the Crown as well as to the community ; tor he had King
t . . 111 should only
the sagacity to ioresee that the dynasty would be be restored
endangered if the ear of the restored sovereign might uonT." '
be poisoned by the flattery of the high-prerogative
lawyers, which had proved the ruin of his father.
The Parliamentary History takes no notice of this
important debate, — but we have the following sketch
of it by Burnet : z
1. Commons' Journals ; 4 Parl. Deb. 141.
2. Gilbert Burnet, a celebrated prelate, born at Edinburgh Sept. 18,
1643. He received his education at Aberdeen, and in 1663 went over to
308 THE COMMONWEALTH.
CHAP. "Hale, afterwards the famous Chief Justice, moved that a
Burnet's committee might be appointed to look into the propositions that
the'debate na^ been made, and the concessions that had been offered, by
the late King during the war, particularly at the Treaty of New-
port, that from thence they might digest such propositions as
they should think fit to be sent over to the King. This was
seconded, but I do not remember by whom. It was foreseen
that such a motion might be set on foot : so Monk was in-
structed how to answer it, whensoever it should be proposed.
He told the House that there was yet, beyond all men's hope,
an universal quiet all over the nation ; but there were many
incendiaries still on the watch, trying where they could first raise
the flame. He said he had such copious informations sent him
of these things, that it was not fit they should be generally
known : he could not answer for the peace either of the nation
or of the army, if any delay was put to the sending for the King :
what need was there of sending propositions to him ? Might
Holland, where he studied Hebrew under a learned Jew. On his return
he stopped at London, and was chosen a Fellow of the Royal Society. He
entered into Episcopal orders in 1665, and was presented to the living of
Saltoun ; and in 1669 he was appointed professor of divinity at Glasgow.
In 1673, however, he settled in London, was made chaplain to the King,
preacher at the Rolls, and lecturer of St. Clement's. At this time he en-
gaged in writing the History of the Reformation, the first volume of which
came out in 1679, and procured for its author the thanks of Parliament.
The second volume was published in 1681 ; but the third did not appear
till 1714. Before this he published three interesting biographical works —
the Lives of the Dukes of Hamilton, a Life of Sir Matthew Hale, and
another of the Earl of Rochester. After the execution of Lord Russell,
whom he attended on the scaffold, Dr. Burnet was brought into some
trouble and deprived of his ecclesiastical appointments, whereupon he
travelled into France and Italy. Of this tour he afterwards published an
account, in letters addressed to Mr. Boyle. He now settled in Holland,
where he married a Dutch lady, which furnished an excuse for the States
to refuse delivering him up, when demanded by James II. The doctor
accompanied the Prince of Orange to England, and in 1689 was consecrated
Bishop of Salisbury ; but having, in a pastoral letter to his clergy, asserted
the right of William and Mary to the throne, on the plea of conquest, he
gave such offence that his discourse was ordered by the Parliament to be
burnt by the hangman. On the death of his second wife he married Mrs.
Berkeley, a widow lady of fortune. Among other important trusts com-
mitted to the bishop was that of the education of the young Duke of
Gloucester, son of Princess Anne of Denmark. In 1699 our author's
" Exposition of the Thirty-nine Articles " was published, and incurred the
censure of the Lower House of Convocation. He died March 17, 1714-15,
and was buried in the Church of St. James, Clerkenwell. — Cooper's Biog,
Diet.
LIFE OF CHIEF JUSTICE HALE. 309
they not as well prepare them, and offer them to him when he
should come over ? He was to bring neither army nor treasure
with him, either to fright or to corrupt them. So he moved
that they would immediately send commissioners to bring over
the King ; and said that he must lay the blame of all the blood
or mischief that might, follow, on the heads of those who should
still insist on any motion that might delay the present settlement
of the nation. This was echoed with such a shout over the
House, that the motion was no more insisted on. To the The mo-
T7-. t • f t i j. • ,i • tion lost.
Kings coming in without conditions, may be well imputed all
the errors of his reign. " '
Hale does not seem to have been afraid of giving
offence to the Court by this effort. Conscious of his
high qualifications as a Judge, and reflecting on the
loyal part he had acted since the death of Oliver,
he anticipated that some considerable offer would be
made to him. Yet he had not at all set his heart on
preferment, and he would have been well pleased to
pass the remainder of his days in a private station.
Thus he modestly communed with himself, while the
King was journeying from Breda :
"Though we are but inconsiderable flies that sit upon the May 13.
chariot-wheel, we attribute all the dust that is made to our "-
weight and contribution ; and thereupon fancy up ourselves til>n " on
.... his pros-
into an opinion of our merit, and of a most indisputable attend- pect of pre-
ance of great honor and place and fame attending it ; when, it ferment-
may be, there is no such desert as is supposed ; or if there be,
yet not such observation of it by others ; or if there be, yet the
many rivals that attend such a change may disappoint me of it ;
or if it do not, yet the preferment that befalls me is not such as
I expected ; or if it be, yet it may be I am not suitable and fit
for it ; or if I am, yet I little consider the trouble and dangers
and difficulty that attend it. Possibly it will make me obnoxious
to much censure, as if all my former endeavors were basely
ordered to my own ends and advantage ; or, it may be, it may
subject me to the envy and emulation of others, which may in
time undermine me ; or if there be no such occasion of danger
from that ground, yet the state of public affairs has various faces
I. Own Times, i. 122.
THE COMMONWEALTH.
CHAP, and occasions that may make it necessary to gratify other per-
His^Med- sons or factions or interests with my removal ; or, if it do not,
onUnued yet tne engagement to a place of honor and profit, and the fear
of the shame or loss of parting with it, may enslave me to those
drudgeries, or, at least, engage me in them that now I look
upon as unworthy ; or if it do not, yet the very many great diffi-
culties that attend places of honor or profit upon a change, may
make my walk in them full of brakes and stones that will perplex
and scratch me, if not wholly bemire and entangle me : or if
none of all these things befall me, yet great places may rob me
of serenity of mind, or withdraw my heart from God by the
splendor of the world and multiplicity of secular concernments ;
or, at least, they most certainly will rob me of my quiet rest,
liberty, and the freedom of my opportunities to serve God with
entireness and uninterruptedness." !
I. The original manuscript of which this is an extract is very long and
A contrast tedious. However, he gives in it the following lively contrast between
by Hale the Roundheads and Cavaliers: " There was in many of the suppressed
between . . ' .
the Round- party much hypocrisy and dissimulation, much violence and oppression :
heads and but there was in them sobriety in their conversation, pretence and profes-
ers' sion of strictness of life, prayers in their families, observation of the Sab-
bath. These were commendable in their use, though it may be they were
in order to honor and to disguise bad ends and actions. And I pray God
it fall not out with us upon our change that the detestation of their per-
sons and foul actions may transport us to a contrary practice of that which
was in itself commendable, lest we grow loose in religion and good duties,
and in the observation of the Sabbath ; and lest we despise strictness of
life because abused by them to base and hypocritical ends." This is a
wonderful anticipation of the flood of profaneness and immorality which
speedily overran the land. It is rather amusing to find Hale already so
decidedly considering himself to belong to the royalists, forgetting how
lately he had taken the " Covenant," and the " engagement to the Com-
monwealth." He continued, by the true Church-and-King men, to be
considered all his life little better than a " fanatic and a republican." — See
Roger North's writings, wherever Hale's name is mentioned.
LIFE OF CHIEF JUSTICE HALE. 311
CHAPTER XVII.
CONTINUATION OF THE LIFE OF SIR MATTHEW HALE
TILL HE RESIGNED THE OFFICE OF CHIEF JUS-
ON the memorable 2gth of May, Hale, accompany- CHAP.
ing Sir Harbottle Grimston,1 the Speaker, to the Ban-A.o. 1660.
queting-house at Whitehall, did obeisance to Charles "resented
II., seated on the throne; and had a gracious recep-nrcharles
tion, notwithstanding his motion about " conditions."
Three days after, he was again called to the degree of
Sergeant-at-law, under a royal writ, his former coifing
by Cromwell being deemed invalid.3 But, although
always respectful to the sovereign, he never displayed
the slightest anxiety about Court favor, and he con-
tinued to do his duty in the House of Commons firmly
and consistently.
When the question was debated "whether theHisopin-
Presbyterian Church government, or the Church of the Thirty-
England formerly established, should reign?" he ex-cies?
pressed respect for the Thirty-nine Articles, but
thought they ought not to be put on a footing with
r. Sir Harbottle Grimston was born at Bradfield Hall, near Manning-
tree, Essex, about 1594. He studied in Lincoln's Inn, and in 1638 be-
came Recorder of Colchester, for which place he was also returned to
Parliament in 1640. He acted for some time in opposition to the King,
but at length became more moderate ; and when that monarch was exe-
cuted he went abroad. In 1660 he was chosen Speaker of what was
called " The Healing Parliament," and he was also one of the commis-
sioners who waited on Charles II. at Breda. On the restoration of that
king he was made Master of the Rolls, which office he discharged with
great reputation, and died December 31, 1683. He published the Re-
ports of Sir George Croke, whose daughter he married. — Cooper's Biog.
Diet.
2. Dugd. Or. Jur. 115.
3I2
REIGN OF CHARLES II.
CHAP.
XVII.
Extract
from his
Diary.
His Bill of
Indemnity
carried.
the Old and New Testament, and resisted the proposal
that subscription to them should be a necessary quali-
fication for holding office in Church or State.1
Being specially appointed by the House to prepare
and bring in the Indemnity Bill for political offences
during the troubles, he was desirous of confining the
exceptions to those who had sat in judgment on the
King. In his Diary he had written—
"The wise man tells us, 'a man may be overjust.' As
equity may mitigate the security of justice in particular cases, so
may and must prudence some public and universal concern-
ments; otherwise, it may become an act of frenzy, not of justice.
I speak not of that unexampled villany against the King's life ;
wherein, nevertheless, though the punishment must be exem-
plary, perchance the present necessity may restrain the uni-
versality of the punishment, proportionable to the crime in
reference to particulars."
Accordingly he exerted himself to save Vane and
Lambert,2 who, in fact, had done little more than him-
self by acting under the authority of the Common-
wealth ; and although he was ultimately defeated in
this laudable attempt, these two individuals having
rendered themselves so very obnoxious to the royal-
ists, he carried the Bill of Indemnity notwithstanding
1. 4 Parl. Hist. 79. This seems to have been a very tumultuous de-
bate. " The Committee sat an hour in the dark before candles were
suffered to be brought in, and then they were twice blown out ; but the
third time they were preserved, though with great disorder."
2. John Lambert, born about 1620, was a favorite of the Independents.
He entered the army of the Parliament, fought as colonel at Marston
Moor in 1644, and at the end of the first civil war had obtained the rank
of general. He was second in command under Cromwell in Scotland in
1649, and led the van at Dunbar in 1651. In 1653 he made the proposi-
tion that the title of Protector should be given to Cromwell. " Lambert,
his creature," says Hume, " who, under an appearance of obsequiousness
to him, indulged an unbounded ambition, proposed to temper the liberty
of a commonwealth by the authority of a single person." After the death
of Oliver he plotted against Richard Cromwell in 1659, and commanded
the army in opposition to the Parliament until the triumph of the royalists
under Monk. In 1662 he was condemned to death ; but this penalty was
commuted to banishment in Guernsey, where he survived thirty years. —
Thomas' Biog. Diet.
LIFE OF CHIEF JUSTICE HALE. 313
the factious opposition of a considerable number of
overzealous members, who wished, out of revenge, to
"smite the fanatics hip and thigh." l
On the motion for an address to the King, praying Sept. 12.
that he would marry a Protestant, Hale said "it was
not reasonable to confine his Majesty, — urging how
much the peace and good of the nation was bound up
in him." :
Parliament was adjourned to November to makeHesitsasa
• • • i r commis-
way lor the trial of the regicides before a special sioner on
_.,„.. 11- the trial of
commission at the Old Bailey; and this last speech the regi-
gave such satisfaction, that Hale was named one of
the commissioners.3 He attended regularly, and con-
curred in the sentences, without becoming the subject
of obloquy as Shaftesbury4 and Monk did, who sat by
his side, and were eager for a conviction, although
each of them had actually served in the parliamentary
army and had levied open war against the late King.
Had Hale sat on the trial of Vane, he would have
been liable to severe censure — but he never was called
judicially to decide the question on which his own
1. 4 Parl. Hist. 80, 101, 102, 119.
2. 4 Parl. Hist. 119. It is remarkable that wherever he is mentioned
in this Parliament he is called "Sergeant Hales." In his own time an s
was very often added to his name.
3. 5 St. Tr. 986.
4. Anthony Ashley Cooper, Earl of Shaftesbury, was born at Win-
borne, Dorsetshire. July 22, 1621, and educated at Exeter College, Oxford,
whence he removed to Lincoln's Inn, where he studied the law. At the
beginning of the civil war he inclined to royalty, but quitted it for the
other party, though when Cromwell assumed the government he opposed
him zealously ; and he afterwards assisted in the Restoration, for which
he was created Lord Ashley, and appointed Chancellor of the Exchequer
and one of the commissioners of the Treasury. In 1672 he was created
Earl of Shaftesbury and made Lord Chancellor, which office he resigned
the year following. He opposed the Test Bill ; and when the Parliament
was prorogued on that account the Earl contended that it was dissolved,
for which he was sent to the Tower. On the change of ministry in 1679
he was made President of the Council, but resigned the place shortly
afterwards. In 1681 he was tried for high treason, but acquitted. On
this he went to Holland, where he died Jan. 22, 1683. — Cooper's Biog.
Diet.
314 REIGN OF CHARLES II.
CHAP. icgai guilt or innocence depended, viz., " whether a
person who obeys a republican government, during
the exile of the lawful sovereign, is thereby guilty of
high treason ? " '
It was now generally expected that he would be
appointed to some high permanent judicial post. He
himself — speculating upon the subject, and persuading
himself that he wished to avoid promotion, but pretty
plainly showing, I think, that he would have been
mortified if the offer had not been made to him —
wrote in his PRIVATE MEDITATIONS :
Supposed " Reasons why I desire to be spared from any place of
Public employment.
the o^ficef "I. Because the smallness of my estate, the greatness of
vves'tmin" my charge, and some debts, make me unable to bear it with
ster Hall, that decency which becomes it, unless I should ruin myself and
family. My estate not above SOQ/. per annum, six children
unprovided for, and a debt of i.ooo/. lying upon me. And
besides this, of all things it is most unseemly for a judge to be
necessitous. Private condition makes that easier to be borne
and less to be observed, which a public employment makes
poor and ridiculous. And besides this, it will necessarily lift
up the minds of my children above their fortunes, which will be
my grief and their ruin.
"II. I am not able so well to endure travel and pains as
formerly. My present constitution of body requires now some
ease and relaxation.
"III. I have formerly served in public employment under a
new, odious interest, which by them that understand not, or ob-
serve not, or will willingly, upon their own passions and inter-
est, mistake my reasons for it, may be objected even in my very
practice of judicature, which is fit to be preserved without the
least blemish or disrepute in the person that exerciseth it.
"IV. The present conjuncture and unsettlement of affairs,
especially relating to administration of justice, is such ; the
various interests, animosities, and questions, so many ; the pres-
ent rule so uncertain, and the difficulties so great, that a man
i. This trial came on in the Court of King's Bench, ad June, 1662,
when Hale was Chief Baron of the Exchequer. 6 St. Tr. 119.
LIFE OF CHIEF JUSTICE HALE. 315
cannot, without loss of himself or reputation, or great disobli-
gallons, exercise the employment of a judge, whose carriage Supposed
will be strictly observed, easily misrepresented, and severely j^nst8 his
censured according to variety of interests. And I have still V^"^.
observed, that almost in all times, especially upon changes, continued.'
judges have been ever exposed to the calumny and petulancy of
every discontented or busy spirit.
"V. I have two infirmities that make me unfit for that
employment : ist. An aversation to the pomp and grandeur
necessarily incident to that employment. 2d. Too much pity,
clemency, and tenderness in cases of life.
"VI. [The MS. is here torn and illegible.]
"VII. I shall lose the weight of my integrity and honesty
by accepting a place of honor or profit, as if all my former
counsels and appearances were but a design to raise myself.
" VIII. The very engagement in a public employment
carries a prejudice to whatsoever shall be said or done to the
advantage of that party that raised a man, as if it were the ser-
vice due to his promotion ; and so, though the thing be never
so just, it shall carry no weight but a suspicion of design or
partiality.
"IX. I am sure, in the condition of a private man declining
preferment, my weight will be three to one over what it will be
in a place of judicature.
"X. I am able in my present station to serve my King
and country, my friend, myself, and family, by my advice and
counsel.
"XI. I have of late declined the study of the law, and prin-
cipally applied myself to other studies, now more easy, grateful,
and seasonable to me.1
"XII. I have had the perusal of most of the considerable
titles and questions of law that are now on foot in England, or
that are likely to grow into controversy within a short time ;
and it is not fit for me, that am pre-engaged in opinion, to have
these cases fall under my judgment as a judge.2
"If it be objected that it will look as a sign of the displeas-
1. It was barely two years since he had ceased to be a Judge.
2. This scruple I do not at all understand, for he had not returned to
private practice since the death of Oliver, and it was above seven years
since he left the bar. In the early part of his career he had practised
very extensively as a conveyancer, particularly in framing settlements
for noble families. — Roger North's Life of Lord Keeper Guilford, i. 132.
316 REIGN OK CHARLES II.
CHAP. ure of the King against me, or of a disserviceable mind in me
Supposed towards the King, if I should either be passed over or decline a
Snst hu preferment in this kind, I answer that neither can reasonably be
taking a supposed, —
" i. In respect of my present condition as serving in
the House of Commons, which excuseth the supposition of
either.
"2. His Majesty's good opinion of my fidelity may be
easily manifested, and my fidelity and service to him will
be sufficiently testified by my carriage and professions.
" But if, after all this, there must be a necessity of under-
taking an employment, I desire, —
" i. It may be in such a court and way as may be most
suitable to my course of studies and education.
"2. That it may be the lowest place that may be, that
I may avoid envy. One of his Majesty's counsel in ordi-
nary, or, at most, the place of a Puisne Judge in the Com-
mon Pleas, would suit me best."
It is doubtful whether, notwithstanding his great
judicial reputation, he might not have been allowed to
remain a member of the House of Commons, if it had
not just then turned out to be exceeding!}' convenient
to the Government to remove him from that assembly.
Lord Clarendon,1 after all his fair promises to the
i. Edward Hyde, Earl of Clarendon, was born at Dinton, Wiltshire.
Feb. 16, 1608. He was educated at Magdalen Hall, Oxford, and after-
wards called to the bar. In the Parliament which assembled at West-
minster April 10, 1640, he was returned for Wotton Basset ; and in that
which followed the same year, commonly called'the Long Parliament, he
sat for Saltash, when he distinguished himself by carrying up the im-
peachment against some of the Judges. But though he acted zealously
in the redress of grievances, he was no less strenuous for upholding
the dignity of the Crown and the rights of the Church. He also op-
posed the bill of attainder against Strafford ; and when the Parliament
proceeded to call out the militia he left the House altogether, for
which he was excepted from pardon. He then joined the King at
York, and was nominated Chancellor of the Exchequer, sworn of the
Privy Council, and knighted. In this capacity he took his place in
the Parliament that assembled at Oxford ; and in 1644 he was one of
the King's commissioners at Uxbridge. On the decline of the royal
cause he went to Jersey, where he began to write the " History of the
Rebellion," at the command of the King, who sent him a large col-
lection of papers for the purpose. In May, 1648, he was called to
EDWARD HYDE, EARL OF CLARENDON'.
LIFE OF CHIEF JUSTICE HALE. 317
Presbyterians, had resolved that the Church of Eng-
land should be restored to the ascendency it had en- Occasion
of his being
joyed under Archbishop Laud ; but, as yet, the bishops made chief
were excluded from sitting in the House of Lords, by the EX-
the act to which Charles I. had duly given his assent
before the commencement of the civil war ; and it was
essentially necessary to humor the Presbyterians, who
could still command a majority in the Lower House.
For this reason, Baxter,1 Calamy, and other divines of
that persuasion, had been appointed King's chaplains,
and Charles had declared in favor of a mitigated
Paris, where he continued to serve Charles II., by whom he was
sent to Spain in the following year, to solicit assistance from that
Court, but returned without success in 1651. He now went to live at
Antwerp, and in 1657 was made Chancellor of England, being con-
tinued in that office at the Restoration. He was also chosen Chan-
cellor of Oxford, and advanced to the peerage by the title of Baron
Hyde. In 1661 he was created Earl of Clarendon ; but the marriage of
his daughter with the Duke of York, and his own inflexible virtue,
now operated against him both in Court and Parliament. In 1663 a
charge of high treason was exhibited against him in the Lords, by the
Earl of Bristol, but it ended to the Chancellor's honor. It did not,
however, put a stop to the machinations of his enemies ; and the
splendid house which he built, and the grant of the park which bears
his name, gave new scope for malice. He was now accused of having
sold Dunkirk to the French, and in 1667 the seals were taken from
him. This was the prelude to an impeachment. To avoid the conse-
quences he retired to France, and an act of perpetual banishment was
afterwards passed against him. The year following a villanous attempt
was made upon his life at Evreux, by some English seamen, and it was
with difficulty that he escaped from their outrage. He then went to
Montpellier, next to Moulins, and lastly to Rouen, where he died Dec. 9,
1674. His body was brought to England and interred in Westminster
Abbey. — Cooper's Biog. Diet.
I. Richard Baxter (/;. 1615, d. i6gi), a celebrated divine and preacher.
He was ordained in 1638, and in 1640 obtained a living at Kidderminster,
where he soon obtained a reputation for his oratory. During the civil
war he was with the army of the Parliament preaching to the soldiers,
though he refused to support Cromwell in his assumption of the Protec-
torship. On the Restoration he was appointed one of the royal chap-
lains, and offered the see of Hereford, which he declined. In 1662 he
refused to subscribe to the Act of Uniformity, and suffered much perse-
cution in consequence, being sent to prison in 1685 by Judge Jeffreys.
Of his many writings, the Call to the Unconverted and The Saint's Ever-
lasting Rest obtained a remarkable popularity. — Cassell's Biog. Did.
318 REIGN OF CHARLES II.
CHAP, episcopacy,1 — all tests being removed which could not
be taken by the more rigid Presbyterians, and a corn-
Proposed prehensive church establishment being arranged which
Presbyte- would equally include Presbyterians and Episcopa-
Ep?iopa- lians. To consummate this happy union, it was pro-
posed that a Synod should be called, composed equally
of the two denominations of Christians. The Presby-
terians thought they discovered that the Chancellor,
intending to practise a pious fraud upon them, merely-
wished to amuse them till the Convention Parliament
should be dissolved ; expecting that, from the growing
dislike to whatever savored of Puritanism, after a gen-
eral election they would be at his mercy. They there-
bryterilrnT ^ore insisted that their rights should be secured by a
Hale' °re- bill to be passed by the present parliament, and they
carried a motion in the House of Commons that " Ser-
cure their geant Hale (in whom they placed entire confidence)
should prepare and bring in the same." Accordingly,
acting with his usual good faith, he laid on the table
of the House a bill which embodied the Articles on
this subject contained in the Declaration from Breda.
Their ob- Had he remained a member of the House, there can
trated by be little doubt that by his exertions it would have
pointment passed the House of Commons, — so that it must have
chequer, been defeated by a vote of the House of Lords, or by
the veto of the Crown. In either of these cases, not
only would there have been a clamor about broken
faith, but the public tranquillity would have been en-
dangered, and the King might again have " gone upon
his travels."
Fortunately, at this time the office of Chief Baron
of the Court of Exchequer was vacant, by the promo-
I. This was pretty much Archbishop Usher's plan, according to
which, although not exactly " Princeps inter Pares," the bishop wa^ not
to act without the advice of his presbyters ; he was to preach every Sun-
day ; and, eschewing secular ambition, he was to devote himself to his
spiritual duties. — 4 Part. Hist. 152.
RICHARD BAXTER.
AFTER A PORTRAIT BY J. RILUV.
LIFE OF CHIEF JUSTICE HALE. 319
tion of Sir Orlando Bridgman l to be Chief Justice of (^1P-
the Court of Common Pleas. Clarendon proposed,
and the King readily consented, that the author of the
" Comprehension Bill " should be the new Chief
Baron ; for the old doctrine was now clearly recog-
nized and acted upon, that the Common-law Judges,
who acted as assessors to the House of Lords, were
disqualified to sit in the House of Commons.
After a little decent resistance, Hale accepted the NOV. 7.
Compli-
honor thrust upon him. At his inauguration, ofmentto
• /-. • him by
course not a word was said about the " Comprehension clarendon
Bill;" but the Chancellor expressed his respect for was sworn
the author of it in a very singular manner, telling"1
him, among other things, " That if the King could
have found out an honester and fitter man for the em-
ployment of presiding in the Court of Exchequer, he
would not have advanced him to it ; and that he had,
therefore, preferred him because he knew none that
deserved it so well." 2
This manoeuvre succeeded. The second reading Nov- 2?-
of the " Comprehension Bill " came on a few days
after, when, in Hale's absence, it was furiously pulled
to pieces by Morrice, the Secretary of State, a creat-
ure of Clarendon, and was rejected by a majority of
183 to I57-8 A dissolution soon after took place, and
in the next parliament Clarendon was able, without
1. Sir Orlando Bridgeman, son of the Bishop of Chester, received his
education at Cambridge. He took his B.A. degree as a member of
Queen's College, but migrated to Magdalen before taking his degree of
M.A. Afterwards he went to the bar, but made no figure till the Resto-
ration, when he was advanced to the post of Chief Baron of the Ex-
chequer, in which capacity he presided at the trials of the regicides. He
was next made Chief Justice of the Common Pleas, and in 1667 suc-
ceeded Lord Clarendon, with the title only of Keeper of the Great Seal.
In 1672 he was deprived of his office, and spent the remainder of his life
in obscurity. As a legal writer he is known by "Conveyances; being
select precedents of deeds and instruments concerning the most consid-
erable estates in England." Died June 25, 1674. — Cooper's Biog. Diet.
2. Burnet, 17 ; Kennet Reg. 280 ; Oldmixon, 488 ; Neal, ii. 78, 80.
3. 4 Parl. Hist. 154.
320 REIGN OF CHARLES II.
CHAP, difficulty, not only to restore the bishops to the House
of Lords, but to eject 2,000 Presbyterian ministers from
livings in the Church of which they were in posses-
sion, and to pass the " Act against Occasional Con-
•• Five-mile for mi ty " and the "Five-mile Act,"1 by which the
Presbyterians were entirely expelled from the House
of Commons, and were subjected to the most grievous
persecution.
Male's re- Hale, on his promotion, incurred some ridicule by
luctance to
be attaching importance to the harmless ceremony of
being knighted, instead of quietly submitting to it.
From an excess of humility, he desired to avoid what
was then considered a distinction, " and therefore, for
a considerable time, declined all opportunities of wait-
ing on the King, — which the Lord Chancellor observ-
ing, sent for him upon business one day when the
King was at his house, and told his Majesty ' there
was his modest Chief Baron,' — upon which he was
unexpectedly knighted." z It must have been a rich
treat for the merry monarch to dub the semi-puritan-
ical sage, saying, " RISE, SIR MATTHEW."
Admirable A smile at such little infirmities does not prevent
rules laid r . .....
down by us from viewing with admiration and reverence the
conduct as rules which he now laid down for his conduct as a
Judge. They ought to be inscribed in letters of gold
on the walls of Westminster Hall, as a lesson to those
intrusted with the administration of Justice.
1. The Five mile Act (1665) enacted that no Nonconforming cUruy-
man should come within five miles of any corporate town or any place
where he had once ministered (except when travelling), nor act as a
tutor or schoolmaster unless he first took the oath of non-resistance and
swore to attempt no alteration of the constitution in Church or State.
It was one of the series of repressive measures popularly known as the
"Clarendon Code," and was aimed at depriving the ejected clergy of
their means of livelihood, both by preaching and teaching. The Claren-
don Code is the name given to the four acts passed during Lord Claren-
don's administration, directed against Nonconformists — viz., the Act of
Uniformity, the Corporation Act. the Conventicle Act, and the Five-mile
Act. — Low and Putting's Diet, of Eng. Hist.
2. Burnet, 17.
ANTHONY ASHLEY COOPER, EARL OF SHAFTESBURY.
AFTER Six PETER LEI v.
LIFE OF CHIEF JUSTICE HALE. 321
" Things necessary to be continually had in remembrance. CHAP.
" i. That in the administration of justice I am intrusted for Rules laid
God, the King, and country ; and therefore, hiTconduct
"2. That it be done, i. uprightly; 2. deliberately; 3. as a Judge,
J continued.
resolutely.
" 3. That I rest not upon my own understanding or strength,
but implore and rest upon the direction and strength of God.
"4. That in the execution of justice I carefully lay aside
my own passions, and not give way to them, however provoked.
" 5. That I be wholly intent upon the business I am about,
remitting all other cares and thoughts as unseasonable and in-
terruptions. l-
"6. That I suffer not myself to be prepossessed with any
judgment at all, till the whole business and both parties be
heard.
"7. That I never engage myself in the beginning of any
cause, but reserve myself unprejudiced till the whole be heard.
"8. That in business capital, though my nature prompt me
to pity, yet to consider there is a pity also due to the country.
"9. That I be not too rigid in matters purely conscientious,
where all the harm is diversity of judgment.
" 10. That I be not biassed with compassion to the poor, or
favor to the rich, in point of justice.
"n. That popular or court applause or distaste have no
influence in any thing I do, in point of distribution of justice.
"12. Not to be solicitous what men will say or think, so
long as I keep myself exactly according to the rule of justice.
"13. If in criminals it be a measuring cast, to incline to
mercy and acquittal.
"14. In criminals that consist merely in words, where no
more harm ensues, moderation is no injustice.
"15. In criminals of blood, if the fact be evident, severity is
justice.
" 1 6. To abhor all private solicitations, of what kind soever,
and by whomsoever, in matters depending.
"17. To charge my servants, i. Not to interpose in any
matter whatsoever ; 2. Not to take more than their known fees ;
3. Not to give any undue precedence to causes; 4. Not to
recommend counsel.
i. " And, while on the bench, not writing letters or reading news-
papers."
333 '.I < MAIM. I . II,
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324 REIGN OF CHARLES II.
CHAP, thought it became him as the Judge to supply that ; so he would
enforce what the weaker counsel managed but indifferently, and
not suffer the more learned to carry the business by the advan-
tage they had over the others in their quickness and skill in law,
and readiness in pleading, till all things were cleared in which
the merits and strength of the ill-defended cause lay. He was
not satisfied barely to give his judgment in causes, but did,
especially in intricate ones, give such an account of the reasons
that prevailed with him, that the counsel did not only acquiesce
in his authority, but were so convinced by his reasons, that
many professed that he brought them often to change their
opinions ; so that his giving of judgment was really a learned
lecture upon that point of law. And, which was yet more, the
parties themselves, though interest does too often corrupt the
judgment, were generally satisfied with the justice of his decisions,
even when they were made against them. His impartial justice
and great diligence drew the chief practice after him into what-
soever court he came ; so as he had drawn the business much
after him into the Common Pleas and the Exchequer, it now
followed him into the King's Bench, and many causes that were
depending in the Exchequer and not determined were let fall
there, and brought again before him in the court to which he
was now removed."1
His defer- Notwithstanding his great superiority to his breth-
bretVren1"3 ren on tne bench, he never attempted to dictate to
bench! them; and, on the contrary, he went into the extreme
of not sufficiently guiding them to a just conclusion :
" He would never suffer his opinion in any case to be known
till he was obliged to declare it judicially, and he concealed his
opinion in great cases so carefully that the rest of the judges in
the same court could never perceive it. His reason was, because
every judge ought to give sentence according to his own persua-
sion and conscience, and not to be swayed by any respect or
deference to another man's opinion ; and by this means it hap-
pened sometimes that when all the Barons of the Exchequer
had delivered their opinions, and agreed in their reasons and
arguments, yet he, coming to speak last, and differing in judg-
ment from them, expressed himself with so much weight and
I. Burnet, pp. 29, 30.
LIFE OF CHIEF JUSTICE HALE. 325
solidity, that the Barons have immediately retracted their votes CHAP.
and concurred with him." *
"The only complaint that was ever made of him was that he His great
did not despatch matters quick enough ; but the great care he used lfftn™ de
to put suits to a final end, as it made him slower in deciding causes
them, so it had this good effect, that causes tried before him
were seldom if ever tried again." *
" He did not affect the reputation of quickness and despatch
by a hasty and captious hearing of the counsel. He would bear
with the meanest, and gave every man his full scope, thinking it
much better to lose time than patience. In summing up evi-
dence to a jury, he would always require the bar to interrupt
him if he did mistake, and to put him in mind of it if he did
forget the least circumstance : some judges have been disturbed
at this as a rudeness, which he always looked upon as a service
and respect done to him." 3
But he remembered that it is the duty of a judge to
render it disagreeable to an advocate to utter nonsense,
or what is wholly irrelevant,—
" He therefore held those who pleaded before him to the He cuts
main hinge of the business, and cut them short when they made elJa^-y"^1"
excursions about circumstances of no moment, — by which he advocates,
saved much time, and made the chief difficulties be well stated
and cleared." 4
As he had no favorites among counsel, he studied
to be free from antipathies ; but, from his love of
morality and fair practice, he was supposed to bear
rather hard on the licentious and crafty, though good-
humored, Saunders, afterwards his successor as Chief
Justice of the King's Bench ; 5 and he caused heavy
complaints by refusing to discharge the infamous
Sergeant Scroggs when arrested for debt at the gate
1. Burnet, p. 54. It would surely have been better if all their Lord-
ships had had a caucus.
2. Burnet, p. 18.
3. Burnet, p. 56. I have heard of judges who were rather faulty in
this respect, and, for being set right, would revenge themselves by an
observation upon the effect of the evidence unfavorable to the counsel
who had the temerity to interpose.
4. Burnet, p. 40. 5. Roger North's Life of Lord Guilford, ii. 127.
326 REIGN OF CHARLES II.
Of Westminster Hall,1 although Sir George Jeffreys, by
flattery and the affectation of religion, is said to have
gained some authority over him.2
He u a He was not merely by far the best Common-law
Equity Judge, but by far the best Equity Judge of his time.
Never having been Chancellor or Master of the Rolls,
he was the first English lawyer who took a just view
of this branch of our jurisprudence, controverting the
common notion that it was regulated by no more cer-
tain rule than a capricious idea of what was fit in each
particular case.
" He did look upon Equity as part of the Common
Law, and one of the grounds of it ; and therefore, as
near as he could, he did always reduce it to certain
rules and principles, that men might study it as a
science, and not think the administration of it had any
thing arbitrary in it."3 He therefore not only dis-
posed admirably of the business on the Equity side of
the Court of Exchequer, but he was frequently called
into the Court of Chancery as assessor by Lord Chan-
cellor Clarendon and Lord Keeper Bridgman. Even
Lord Shaftesbury, when he fantastically grasped the
Great Seal, was soon obliged to rely upon the aid of
Sir Matthew Hale, although at first he presumptuously
trusted to his own cleverness, setting all established
doctrines at defiance. Lord Nottingham,4 the father
of Equity, worshipped Hale as his great master.
A. p. 1666. Sir Matthew likewise gained immense credit, after
in settling the Fire of London, by sitting many months in Clif-
aiteTthe ford's Inn, and, with the assistance of some other
London, judges, deciding all questions that arose about title
and boundary, and the obligation to rebuild. The
restoration of the city, reckoned one of the wonders
1. Woolrych's Life of Jeffreys, p. 52.
2. North's Life of Lord Guilford, i. 118.
3. Burnet, p. 55.
4. See Lives of the Lord Chancellors.
LIFE OF CHIEF JUSTICE HALE. 327
of the age, was mainly ascribed to his care, " since
there might otherwise have followed such an endless
train of vexatious suits, as might have been little less
chargeable than the fire itself had been."1 His readi-
ness in arithmetic, and his skill in architecture, are
said to have then been of signal use to him. For
his services on this occasion, the portrait of him was
placed in Guildhall, where we now behold it — and he
received from the Lord Mayor, as his only further
recompense, a silver snuff-box, which is still in the
possession of his family.
Although the offer of epices by suitors to the judge
was not then recognized, the custom of soliciting him j^tyf
to do justice was not quite obsolete. A noble Duke
once called on Lord Chief Baron Hale, under pretence
of giving him information which would better enable
him to understand a cause shortly to be tried before
him. The Lord Chief Baron, interrupting him, said
" Your Grace does not deal fairly to come to my
chamber about such an affair, for I never receive any
information of causes but in open court, where both
parties are to be heard alike." The Duke withdrew,
and was silly enough to go straightway to the King,
and to complain of this as a rudeness not to be en-
dured. His Majesty answered, " Your Grace may well
content yourself that it is no worse ; and I verily
believe he would have used myself no better, if I had
gone to solicit him in any of my own causes." 2
However, it must be confessed that Hale carried
his hatred of bribery and corruption to a coxcombical
length, which exposed him to ridicule. When he
1. Burnet, p. 18. Of his architectural taste we may judge from his
advising the Duke of Beaufort, when building the magnificent chateau at
Badmington, to have only one door to it, which should be commanded
by a window in his Grace's study, so that no one could enter or leave the
dwelling clandestinely. — R. North's Life of Guilford, i. 260.
2. Burnet, p. 20.
328 REIGN OF CHARLES II.
bought any articles after he became a Judge, he not
Anecdotes only would not try to beat down the price, but he in-
of Male's * J
judicial sisted on giving more than the vendors demanded, lest,
continued, if they should afterwards have suits before him, they
should expect favor because they had dealt handsomely
by him. A gentleman in the West of England, who
had a deer-park, was in the habit of sending a buck as
a present to the Judges of Assize, and did the same
when Lord Chief Baron Hale came the circuit,
although a cause in which he was plaintiff was coming
on for trial. The cause being called, the following
extraordinary dialogue took place in open court :
Lord C. Baron : "Is this plaintiff the gentleman of the same
name who hath sent me venison?" Judge's Servant : "Yes,
please you, my Lord." Lord C. B.- "Stop a bit, then. Do
not yet swear the jury. I cannot allow the trial to go on till I
have paid him for his buck." Plaintiff: "I would have your
Lordship to know, that neither myself nor my forefathers have
ever sold venison, and I have done nothing to your Lordship
which we have not done to every judge that has come this cir-
cuit for centuries bygone." Magistrate of the County: "My
Lord, I can confirm what the gentleman says for truth, for
twenty years back." Other Magistrates: "And we, my Lord,
know the same." Lord C. B. : "That is nothing to me. The
Holy Scriptures say, 'a gift perverteth the ways of judgment ; '
I will not suffer the trial to go on till the venison is paid for.
Let my butler count down the full value thereof." Plaintiff:
"I will not disgrace myself and my ancestors by becoming a
venison-butcher. From the needless dread of selling justice,
your Lordship delays it. I withdraw my record."
So the trial was postponed till the next assizes, at
the costs of the man who merely wished to show a
usual civility to the representative of the sovereign.
According to a custom which prevailed, " from
time whereof the memory of man runneth not to the
contrary," the Dean and Chapter1 of Salisbury had
I. The Chapter is the body of clergy attached to the cathedral. Origi-
nally this body was the assembly of the priests of the diocese round their
LIFE OF CHIEF JUSTICE HALE. 329
presented to the Judges of Assize six sugar loaves.
Lord Chief Baron Hale, when upon the Western Cir- Anecdotes
of Male's
cuit, having received the usual donation, discovered judicial
that the Dean and Chapter had a cause coming on continued.
before him for trial, and he sent his servant to pay for
the sugar loaves before he would allow it to be entered.
Those venerable litigants, instead of firing up at the
notion of their becoming "grocers," or taunting the
Judge, as they might have done, with making them
bishop. It was the bishop's general council, and contained within it the
bishop's officials for the administration of the diocese, and the clergy who
had the care of the services of the cathedral itself. The chapter in the
bishop's council soon fell into disuse, and the name was applied almost
entirely to the clergy of the cathedral church itself, who soon gained a
position almost independent of their bishop. Chapters in England were
of two kinds — monastic and secular. The monastic chapters were like
monasteries, over which the bishop ranked as abbot, though the resident
prior was the real head. These monks were in England Benedictines,
except in the case of Carlisle, where they were Augustinians. In the
secular chapters, the dean rises into prominence in the eleventh century.
The work of his diocese, the necessity of constant journeys, and the
increase of secular business undertaken by the bishop left the cathedrals
without a head, and the chapters everywhere began to manage their busi-
ness without their bishop. The theory that the chapter elected the bish-
ops gave them at times a position of some importance, both towards the
King and the Pope. Chapters frequently appealed to Rome against their
bishops, and often were successful in obtaining privileges from the Pope.
The separation of the chapter from the bishop became more and more
definite, till the bishop was left with no powers save those of visitor over
his chapter. The chief officers of the secular chapter were : the dean,
who was head of the body ; the prcecentor, who superintended the services ;
the chancellor, who was head of the educational and literary works of the
chapter ; and the treasurer, who had the care of all the treasures of the
Church. Besides those there were the archdeacons, who were the sole
survivors of the diocesan organization of the chapter. Its other members
were canons, as bound by the rule, or prebendaries, if they held an endow-
ment besides their share of the corporate fund. This last body was gen-
erally non-resident, and their duties were performed by vicars, who are
now called vicars-choral or minor canons. Under Henry VIII. the mon-
asteries attached to the cathedrals were suppressed, and their chapters
were refounded as secular chapters under a dean. After the same model
the cathedrals of the new bishoprics founded by Henry VIII. were
arranged. Hence came the two classes— Cathedrals of the Old Founda-
tion and Cathedrals of the New Foundation. An act of 1838 reformed
cathedral chapters by diminishing the number of canons, reducing their
incomes, and bringing all chapters to greater uniformity. — Low and
Pulling s Diet, of Eng. Hist.
330 REIGN OF CHARLES II.
CHAP, violate the statute of Henry VIII. against "clerical
trading," received the money, tried their cause, and
obtained a verdict.
Attempt to On another occasion, there really was a paltry
him."1" attempt to corrupt him, which he very properly ex-
posed. During the assizes at Aylesbury, one Sir John
Croke, who was unjustly prosecuting a respectable
clergyman as a robber, for merely entering his house
to demand tithes, in the foolish hope of conciliating
the Judge, sent to his lodgings two loaves of sugar,
which were immediately returned. When the prose-
cution had blown up, and the prisoner had been
acquitted, the Lord Chief Baron called for the prose-
cutor, but was told that he had made off :
Extract Lord C. Baron: "Is Sir John Croke gone? Gentlemen, I
Per™uredhe must not for&et to acquaint you, for I thought that Sir John
Phanatic." Croke had been here still, that this Sir John Croke sent me, this
morning, two sugar loaves for a present. I did not then know
so well as now, what he meant by them ; but, to save his credit,
I sent his sugar loaves back again. Mr. Clerk of Assize, did
you not send Sir John his sugar loaves back again ?" Clerk of
Assize : "Yes, my Lord, they were sent back again." Lord C.
Baron : " I cannot think that Sir John believes that the King's
Justices come into the country to take bribes. I rather think
that some other person, having a design to put a trick upon him,
sent them in his name. Gentlemen, do you know this hand ? "
(showing to the gentlemen of the grand jury the letter which
accompanied the sugar). Foreman : "I fear me it is Sir John's,
for I have often seen him write, doing justice business along
with him ; and your Lordship may see that it is the same with
this millimus written and signed by him." Lord C. B. (putting
the letter back into his bosom) : "I intend to carry it with me
to London, and I will relate the foulness of the business, as I
find occasions." *
I. " The Perjured Phanatic," an account of the trial, 2d edition, 1710.
The late Baron Graham related to me the following anecdote to show that
he had more firmness than Judge Hale : " There was a baronet of ancient
lamily with whom the Judges going the Western Circuit had always been
accustomed to dine. When I went that circuit, I heard that a cause in
which he was plaintiff was coming on for trial ; but the usual invitation
LIFE OF CHIEF JUSTICE HALE. 331
Hale is severely criticised as a Judge, though not
altogether candidly, by Roger North, the brother and Roger
biographer of Lord Keeper Guilford. The Norths, censure of
too, had been bred up among the Puritans, but they
went over to the ultra high-Church party, and re-
garded all who did not go the same length with them-
selves as schismatics and republicans. Hale had
softened them a little by taking kindly notice of Mr.
Francis, when a very young barrister on the Northern
Circuit.1 But when Sir Francis was advanced to be
a member of the House of Commons, to be Attorney
General, and to be Chief Justice of the Common Pleas,
and when he persecuted the Dissenters, he looked with
envy and enmity at his former patron, whose conduct
and reputation formed such a contrast with his own.
Before he became Lord Chancellor and a peer, Hale
had been taken to a quieter world ; yet the Norths
continued to bear him a grudge, and to carp at his
decisions, his principles, and his manners. With true
fraternal sympathy, thus writes Roger :
"The truth is, his Lordship [Lord Guilford] took early into
a course diametrically opposite to that approved by Hale ; for
the principles of the latter, being demagogical, could not allow
much favor to one who rose a monarchist declared. He was an
upright judge if taken within himself; and when he appeared, as
he often did, and really was, partial, his inclination or prejudice,
insensibly to himself, drew his judgment aside. His bias lay
strangely for and against characters and denominations, and
sometimes the very habits of persons. If one party was courtier
was received, and, lest the people might suppose that Judges could be
influenced by a dinner, I accepted it. The defendant, a neighboring
squire, being dreadfully alarmed by this intelligence, said to himself,
' Well, if Sir John entertains the Judge hospitably, I do not see why I
should not do the same by the Jury.' So he invited to dinner the whole
of the special jury summoned to try the cause. Thereupon the baronet's
courage failed him, and he withdrew the record, so that the cause was not
tried ; and, although I had my dinner, I escaped all suspicion of partiality."
I. When the little gentleman was once struggling through a crowd in
court, Hale said from the bench, " Make way for the little gentleman
there, for he will soon make way for himself." — Life of Guilford.
332 REIGN OF CHARLES II.
CHAP, and well-dressed, and the other a sort of puritan with a black cap
Rog^r ' and plain clothes, he insensibly thought the justice of the cause
en"ureof w't'1 tne latter- ^ tne dissenting or anti-court party was at the
Hale, back of a cause, he was very seldom impartial ; and the loyalists
had always a great disadvantage before him. And he ever sat
hard on his Lordship in his practice in causes of that nature. It
is said he was once caught. A courtier who had a cause to be
tried before him, got one to go to him as from the King, to speak
for favor to his adversary, and so carried his point ; for the Chief
Justice could not think any person to be in the right that came
so unduly recommended. . . . He would put on the show of
much valor, as if danger seemed to lie on the side of the Court,
from whence either loss of his place (of which he really made no
great account), or some more violent, or, as they pretended,
arbitrary infliction might fall upon him. Whereas, in truth,
that side was safe, which he must needs know, and that all real
danger to a judge was from the imperious fury of a rabble, who
have as little sense and discretion as justice, and from the House
of Commons, who seldom want their wills, and, for the most
part, with the power of the Crown, obtain them. Against these
powers he was very fearful ; and one bred, as he was, in the
rebellious times, when the government at best was but rout and
riot, either of rabble committees or soldiers, may be allowed to
have an idea of their tyranny, and, consequently, stand in fear
of such brutish violence and injustice as they committed. But
it is pleasant to consider that this man's not fearing the Court
was accounted valor ; that is, by the populace, who never
accounted his fear of themselves to have been a mere timidity. "
Yet the honest biographer is obliged to add, " He became the
cushion exceedingly well ; his manner of hearing patient, his
directions pertinent, and his discourses copious, and, although
he hesitated, often fluent. His stop for a word, by the produce,
always paid for the delay ; and on some occasions he would
utter sentences heroic. One of the bankers, a courtier, by name
Sir Robert Viner, when he was Lord Mayor of London, delayed
making a return to a mandamus, and the prosecutor moved for
an attachment against him. The recorder, Howel, appeared,
and, to avert the rule for an attachment, alleged the greatness of
his magistracy, and the disorder that might happen to the City
if the Mayor were imprisoned. The Chief Justice put his thumbs
in his girdle, as his way was, and 'Tell me of the Mayor of
LIFE OF CHIEF JUSTICE HALE. 333
London ! ' said he, 'tell me of the Mayor of Queenborough ! '
. . . His Lordship knew him perfectly well, and revered him Roger
for his great learning in the history, law, and records of the ^°"uhr| of
English constitution. I have heard him say that while Hale
was Chief Baron of the Exchequer, by means of his great learn-
ing, even against his inclination, he did the Crown more justice
in that court than any others in his place had done, with all
their good will and less knowledge. His foible was yielding
towards the popular ; yet, when he knew the law was for the
King (as well he might, being acquainted with all the records of
the Court, to which men of the law are commonly strangers), he
failed not to judge accordingly.1— I have known the Court of
King's Bench sitting every day from eight to twelve, and the
Lord Chief Justice Hale managing matters of law to all imagi-
nable advantage to the students, and in which he took a pleasure,
or rather pride. He encouraged inquiry when it was to the
purpose, and used to debate with the counsel, so as the court
might have been taken for an academy of sciences, as well as the
seat of justice."2
The most striking proof of Hale's impartiality, be- Haie's
.... . opinion of
tween persons ot opposite political parties, and oppo- the validity
site religious persuasions, will be found in a list of marriages?
cases made out by the Norths, in which he is alleged
to have been misled by his prejudices. In all of them,
except one, it will be found that he lays down the law
correctly. Upon the question involved in that one,
after it had been doubted for near two centuries, the
House of Lords, a few years ago, were equally di-
vided, and it was decided against Hale's opinion only
on the technical rule semper prosumitur pro negante.
The charge was, that he had heretically countenanced
Quakers' marriages, by allowing a special verdict to
be taken to try their validity. "This," says Roger
North, " was gross in favor of those worst of sectaries ;
for if the circumstances of a Quaker's marriage were
stated in evidence, there was no color for a special
1. Roger North's Life of Lord Guilford, i. 111-115.
2. Study of the Laws, p. 32.
334
REIGN OF CHARLES II.
CHAP, verdict ; for how was a marriage by a layman, without
the liturgy, good? But here, though the right was
debated, and could not be determined for the Quakers,
yet a special verdict upon no point served to baffle the
party who would take advantage of the nullity.'' *
ThecaseinThe truth was, as we know from Bishop Burnet, that
a Quaker was sued before Chief Baron Hale for debts
owing by the wife, a Quakeress, dum so/a,2 after they
had long lived together as man and wife, and had a
numerous family ; and the defendant's counsel con-
tended that there was no marriage between them,
since it was not celebrated by a priest in orders, ac-
cording to the rites of the Church of England. The
Judge said he was not willing, by a nisi priuss decision,
to bastardize the children, and directed the jury to
find a special verdict, saying " he thought it reason-
able, and consistent with natural right and the pre-
cepts of the Gospel, that all marriages made according
to the several religious persuasions of the parties
ought to be valid in law." 4 Whether his opinion,
therefore, was right or wrong, the accusation that he
on this occasion showed any undue partiality to Dis-
senters is wholly unfounded.
I. Life of Guilford, i. 126. 2. " While alone."
3. Nisi prius (Law), unless before ; — a phrase applied to terms of court,
held generally by a single judge, with a jury, for the trial of jury causes.
The term originated in a legal fiction. An issue of fact being made up,
it is, according to the English practice, appointed by the entry on the
record, or written proceedings, to be tried by a jury from the county of
which the proceedings are dated, at Westminster, unless before the day
appointed (nisi prius) the judges shall have come to the county in ques-
tion, which they always do, and there try the cause. — Brande-Tomlins,
New Am. Cyc.
4. Burnet, p. 44. I am glad to think that this is the common law of
Scotland, and is now the statute law of England ; but in countries gov-
erned by the common law of England on this subject the greatest confu-
sion now prevails, by Male's doctrine having been overruled. The special
verdict was never argued, and the law remained uncertain till the reign of
Queen Victoria. In the session of 1847 I introduced and passed a bill to
declare valid Quaker marriages which had been contracted prior to the
General Dissenters' Marriage Act of 1837, which was only prospective.
See II and 12 Vic. c. 58.
LIFE OF CHIEF JUSTICE HALE. 335
His demeanor in the case of John Bunyan,1 the c****-
author of THE PILGRIM'S PROGRESS, shows him pay-Tnecaseof
ing respect both to the rules of law and to the dictates Bunyan,
. author of
of humanity. 1 his wonderful man, — who, though "The PU-
bred a tinker, showed a genius little inferior to that Progress,"
of Dante, — having been illegally convicted by the
court of quarter sessions, was lying in prison under
his sentence, in the jail of Bedford. Soon after the
restoration of Charles II., the young enthusiast had
been arrested while he was preaching at a meeting in
a private house, and, refusing to enter into an engage-
ment that he would preach no more, had been indicted
as "a person who devilishly and perniciously ab-
stained from coming to church to hear divine service,
and a common upholder of unlawful meetings and
conventicles, to the great disturbance and distraction
of the good subjects of this realm." At his arraign-
ment, he said, " Show me the place in the Epistles
where the Common Prayer-book is written, or one
text of Scripture that commands me to read it, and I
will use it. But yet, notwithstanding, they that have
a mind to use it, they have their liberty ; that is, I
would not keep them from it. But, for our own parts,
we can pray to God without it. Blessed be His name."
The Justices considered this tantamount to a plea of
guilty, and, without referring his case to the jury, the
chairman pronounced the following judgment: "You
must be had back to prison, and there lie for three
I. John Bunyan (6. 1628, d. 1688), author of The Pilgrims Progress,
was a tinker by trade, belonging to a Bedfordshire family. In 1656 he
began to preach in Bedford as a Baptist, his sermons being extremely
popular. In 1660 he was committed to Bedford jail for his religious
teaching, and he remained there for twelve years. During this period he
wrote his Grace Abounding and The Holy City. In 1672 he was released,
and resumed his preaching before great crowds. During a second impris-
onment, in 1675, he wrote The Pilgrim's Progress. He built a meeting-
house in Bedford, and annually visited the Baptist congregation in Lon-
don, where he died. The Holy IVarvizs, written in 1682. — Cassell's Biog.
Diet.
336 REIGN OF CHARLES II.
CHAP, months following; and at three months' end, if you
Thecaseofdo not submit to go to church to hear divine service,
Bunyan, and leave your preaching, you must be banished the
realm. And if, after such a day as shall be appointed
you to be gone, you shall be found in this realm, or be
found to come over again without special license from
the King, you must stretch by the neck for it ; I tell
you plainly."
Arbitrary as the laws then were, there was no
clause in any statute that would support this sentence ;
yet Bunyan was imprisoned under it, as he refused to
give surety that he would abstain from preaching.
Elizabeth, his wife, actuated by his undaunted spirit,
applied to the House of Lords for his release ; and,
according to her relation,1 she was told " they could
do nothing; but that his releasement was committed
July, 1661. to the Judges at the next assizes." The Judges were
Sir Matthew Hale and Mr. Justice Twisden ; and a
remarkable contrast appeared between the well-known
meekness of the one, and fury of the other.2 Elizabeth
came before them, and, stating her husband's case,
prayed for justice :
The plead- «' Judge Twisden," says John Bunyan, " snapt her up, and
wife before angrily told her that I was a convicted person, and could not
Twisden! be released unless I would promise to preach no more." 3 Eliz-
abeth : "The Lords told me that releasement was committed to
you, and you gave me neither releasement nor relief. My hus-
band is unlawfully in prison, and you are bound to discharge
him." Twisden: "He has been lawfully convicted." Eliza-
beth : "It is false, for when they said ' Do you confess the in-
dictment ? ' he answered, ' At the meetings where he preached,
they had God's presence among them.'" Twisden: "Will
your husband leave preaching? if he will do so, then send for
him." Elizabeth : " My Lord, he dares not leave off preaching
1. A Relation of the Imprisonment, etc., ed. 1765, p. 44.
2. The contemporary reporters, in recording Twisden's judgments,
begin " Twisden, in furore, observed," etc.
3. A Relation, etc., p. 41.
JOHN BUNYAN.
FROM A DRAWING IN THE BRITISH MUSEVM.
LIFE OF CHIEF JUSTICE HALE. 337
as long as he can speak. But, good my Lords, consider that CHAP.
we have four small children, one of them blind, and that they
have nothing to live upon, while their father is in prison, but
the charity of Christian people. I myself smayed at the news
when my husband was apprehended, and, being but young, and
unaccustomed to such things, fell in labor; and, continuing in
it for eight days, was delivered of a dead child. " Sir Matthew
Hale : ' ' Alas, poor woman ! " Twisden : ' ' Poverty is your
cloak, for I hear your husband is better maintained by running
up and down a-preaching than by following his calling." Sir
Matthew Hale : " What is his calling ?" Elizabeth: "A tinker,
please you, my Lord ; and because he is a tinker, and a poor
man, therefore he is despised, and cannot have justice." Sir
Matthew Hale: "I am truly sorry we can do you no good.
Sitting here, we can only act as the law gives us warrant ; and
we have no power to reverse the sentence, although it may be
erroneous. What your husband said was taken for a confession,
and he stands convicted. There is, therefore, no course for you
but to apply to the King for a pardon, or to sue out a writ of
error ; and, the indictment, or subsequent proceedings, being
shown to be contrary to law, the sentence shall be reversed, and
your husband shall be set at liberty. I am truly sorry for your
pitiable case. I wish I could serve you, but I fear I can do you
no good."
Bunyan as yet was not distinguished from the great The case
, r • i of John
crowd of enthusiasts who were then desirous 01 rival- Bunyan,
ling the heroes of Fox's Martyrology, — their favorite
manual. Hale, making inquiries about him, was told
that he was " a hot-spirited fellow," and actually found
that there would be no use in supplying the means of
prosecuting a writ of error, as, if set at liberty, he
would soon get into worse durance, for at Bedford he
was very kindly treated by a humane jailer, and his
family were cared for by the Puritans of the town and
neighborhood. When the Judges were trumpeted
out of Bedford, leaving the tinker still in prison, he
was very wroth ; and Elizabeth burst into tears, say-
ing, " Not so much because they are so hard-hearted
against me and my husband, but to think what a sad
338 REIGN OF CHARLES II.
CHAP, account such poor creatures will have to give at the
coming of the Lord."
Little do we know what is for our permanent good.
Had Bunyan then been discharged and allowed to
enjoy liberty, he no doubt would have returned to his
trade, filling up his intervals of leisure with field-
preaching ; his name would not have survived his
own generation, and he could have done little for the
religious improvement of mankind. The prison doors
were shut upon him for twelve years. Being cut off
from the external world, he communed with his own
soul ; and, inspired by Him who touched Elijah's hal-
lowed lips with fire, he composed the noblest of alle-
gories, the merit of which was first discovered by the
lowly, but which is now lauded by the most refined
critics ; and which has done more to awaken piety,
and to enforce the precepts of Christian morality, than
all the sermons that have been published by all the
prelates of the Anglican Church.1
Trial of I wish to God that I could as successfully defend
- the conduct of Sir Matthew Hale in a case to which
' I most reluctantly refer, but which I dare not, like
Bishop Burnet, pass over unnoticed, — I mean the
famous trial before him, at Bury St. Edmunds, for
witchcraft. I fostered a hope that I should have been
able, by strict inquiry, to contradict or mitigate the
hallucination under which he is generally supposed to
have then labored, and which has clouded his fame, —
even in some degree impairing the usefulness of that
bright example of Christian piety which he left for the
edification of mankind. But I am much concerned to
say, that a careful perusal of the proceedings and of
the evidence shows that upon this occasion he was not
only under the influence of the most vulgar credulity,
but that he violated the plainest rules of justice, and
I. See Southey's Life of John Bunyan.
LIFE OF CHIEF JUSTICE HALE. 339
that he really was the murderer of two innocent
women. I would very readily have pardoned him for Trial of
* ( ' r the witches
an undoubtinp- belief in witchcraft, and I should have at Bury st
Edmunds,
considered that this belief detracted little from his continued.
character for discernment and humanity. The Holy
Scriptures teach us that, in some ages of the world,
wicked persons, by the agency of evil spirits, were
permitted, through means which exceed the ordinary
powers of nature, to work mischief to their fellow-
creatures. These arts, which were said to have been
much practised in popish times, were supposed to
have become still more common at the Reformation.
Accordingly, the statute 33 Hen. VIII. c. 8 made all
witchcraft and sorcery felony witlwut benefit of clergy?
and by i Jac. I. c. 12 (passed when Lord Bacon was a
member of the House of Commons) the capital punish-
ment was extended to " all persons invoking an evil
spirit, or consulting, covenanting with, entertaining,
employing, feeding, or rewarding any evil spirit, or
taking up dead bodies from their graves to be used
in any witchcraft, sorcery, charm, or enchantment."
There had been several prosecutions on these statutes
in the reigns of James I. and Charles I., — when con-
i. Benefit of Clergy was the right claimed by the clergy to immunity
from secular jurisdiction in certain cases. Cases in which it might be
urged were such as affected the life or limbs ot the offender, with the sin-
gle exception of high treason. It was at first restricted to bond-fiiie cler-
ics, but subsequently got extended to all who could read a verse in the
Psalter, known as the "neck-verse," generally out of the 5ist Psalm.
Should it be declared by the bishop's commissary that the prisoner read
it like a clerk, he was delivered over to the ecclesiastical jurisdiction. It
was, however, an indictable offence at common law to teach a felon to
read in order that he might claim benefit of clergy. The abuse of this
custom was very great, and in the 151(1 and i6th centuries it produced
constant disputes between the judges and ordinaries. Henry VII., in
1488, restricted it by declaring that it should not be allowed more than
once to persons not actually in orders, and in Queen Anne's reign the
neck-verse was no longer required to be read. Benefit of clergy was not
finally abolished till the reign of George IV. Benefit of clergy never
extended to women till they were included by the statute 3 and 4 Will
III. — Low and Pulling' 's Diet, of Eng. Hist.
340 REIGN OF CHARLES II.
CHAP, victions had taken place on the confession of the ac-
Triaipf' cused ; — in the trial of the murderers of Sir Thomas
at Bury st. Overbury it had appeared that Mrs. Turner was
continued! believed to be a witch, not only by the Countess of
Essex, but by the King and all his Court ; — and al-
though magic and the black art had lately lost much
credit, yet, in the reign of Charles II., a judge who
from the bench should have expressed a disbelief in
them would have been thought to show little respect
for human laws, and to be nothing better than an
atheist. Had the miserable wretches, indicted for
witchcraft before Sir Matthew Hale, pleaded guilty, or
specifically confessed the acts of supernatural agency
imputed to them, or if there had been witnesses who
had given evidence, however improbable it might be,
to substantiate the offence, I should hardly have re-
garded the Judge with less reverence because he pro-
nounced sentence of death upon the unhappy victims
of superstition, and sent them to the stake or the gib-
bet. But they resolutely persisted in asserting their
innocence, and there not only was no evidence against
them which ought to have weighed in the mind of any
reasonable man who believed in witchcraft, but during
the trial the imposture practised by the prosecutors
was detected and exposed.
Evidence The reader may like to have a sketch of this last
the°convic!1 capital conviction in England for the crime of bewitch-
pTacet00k *n&- Indictments were preferred jointly against Amy
Duny and Rose Cullender, two wrinkled old women,
for laying spells upon several children, and in par-
ticular William Durent, Elizabeth Pacy, and Deborah
Pacy. The trial began with proof that witnesses, who
were to have given material evidence, as soon as they
came into the presence of the clerk of assize, were
seized with dumbness, or were only able to utter in-
articulate sounds. A strong corroboration of the guilt
LIFE OF CHIEF JUSTICE HALE. 341
of the prisoners was stated to be, that these witnesses ^^f-
remained in the same cataleptic state till the verdict Evidence
upon which
was pronounced, and were thereupon instantly cured, the convic-
tion took
The bewitchinsj of William Durent rested on the testi- place, con-
tinued.
mony of Dorothy, his mother, who said, —
"About seven years ago, having a special occasion to go
from home, I desired Amy Duny, my neighbor, to look to my
boy Billy, then sucking, during my absence, promising her a
penny for her pains ; I desired her not to suckle my child ; I
very well knew that she was an old woman, and could not
naturally give suck, but, for some years before, she had gone
under the reputation of a witch ; nevertheless, she did give suck
to the child, and that very night he fell into strange fits of
swounding, and was held in a terrible manner, insomuch that I
was terribly frightened therewith, and so continued for divers
weeks. I then went to a certain person named Dr. Jacob, who
lived at Yarmouth, and had the reputation in the country to
help children who were bewitched. He advised me to put the
child by the fire in a blanket, and if I found anything in the
blanket with the child, to throw it into the fire. I did so that
same night, and there fell out of the blanket a great toad, which
ran up and down upon the hearth. I seized the great toad with
a pair of tongs, and thrust it into the fire. Thereupon it made
a great and horrible noise ; and after a space there was a flash-
ing in the fire like gunpowder, making a noise like the discharge
of a pistol ; and after the flashing and noise, the substance of
the toad was gone without being consumed in the fire. The
next day there came a young woman, a kinswoman of the said
Amy, and told me that her aunt was in a most deplorable con-
dition, having her face, legs, and thighs all scorched, and that
she was sitting alone in the house in her smock without any fire :
and please you, my Lord, after the burning of the said toad,
my child recovered, .nd was well again, and is now still
living."
With respect to the two girls named Pacy, — Deb-
orah was so cruelly bewitched, that she could not be
brought to the assizes ; but Elizabeth appeared in
court, and, although deprived of speech, and with her
eyes shut, she played many antics, particularly when,
"by the direction of the Judge," Amy Duny touched
342 REIGN OF CHARLES II.
CHAP- her. Then the father of the girls proved, that he
Evidence having refused Amy Duny and Rose Cullender some
upon which . ,
theconvic- herrings which they asked tor, they were very angry,
tic in took
piace, and, soon after, the girls were taken in a strange way,
continued. . . , . ..
and spat up large quantities of pins and twopenny nails
(which were produced in court), and declared that Am v
Duny and Rose Cullender visited them in the shape of
a bee and of a mouse, and tormented them from time to
time for many weeks. It was further proved, that the
two prisoners being taken up under a Justice's warrant
as witches, and their persons being examined, Rose
Cullender was discovered to have a secret teat, which
she said was the effect of a strain from carrying water,
but which a witness swore had been lately sucked.
Keiynge Mr. Sergeant Kelynge, who was either joined in
unsatisfied . . r , i T i i
with the the commission as one or the Judges, or acted as amicus
and deems curia, "declared himself much unsatisfied with this
cie'm.ul evidence, and thought it not sufficient to convict the
prisoners; for, admitting that the children were in
truth bewitched, yet," said he, " it can never be ap-
plied to the prisoners upon the imagination only of the
parties afflicted ; for if that might be allowed, no per-
son whatsoever can be in safety, for, perhaps, they
might fancy another person who might altogether be
innocent in such matters."
To strengthen the case, Dr. Brown, of Norwich,
supposed to have deep skill in demonology, was called
as an expert, and after giving it as his clear opinion that
the children were bewitched, added, that " in Denmark
there had lately been a great discovery of witches, who
used the very same way of afflicting persons by con-
veying pins into them, with needles and nails; and he
thought that the Devil, in such cases, did work upon
I. Very much like the witch in Macbeth :
" A sailor's wife had chestnuts in her lap,
And mounch'd, and mounch'd, and mounch'd : Give me, quoth I."
But here there was no such provoking language as "Aroint thee, witch ! "
LIFE OF CHIEF JUSTICE HALE. 343
the bodies of men and women by a natural inunda-
tion."
An experiment was made, by Sergeant Kelynge Detection
and several other gentlemen, as to the effect of the posture™
witch's touch. Elizabeth Pacy, being conducted to a
remote part of the hall, was blindfolded, and in her fit
was told that Amy Duny was approaching, when
another person touched her hand, — which produced
the same effect as the touch of the witch did in court.
"Whereupon the gentlemen returned, openly protest-
ing that they did believe the whole transaction of this
business was a mere imposture. This put the Court
and all persons into a stand."
However, the prosecutors tried to bolster up the The Prose-
cutors try
case by proof that Rose Cullender, once on a time, to bolster
up the
being angry because a cart had wrenched the window case.
off her cottage, must, in anger, have bewitched this
cart, because it was repeatedly overturned that day
while other carts went smoothly along the road, — and
that Amy Duny had been heard to say, " the Devil
would not let her rest until she were revenged on one
Anne Sandewell, who, about seven or eight years ago,
having bought a certain number of geese, was told by
Amy Duny that they would all be destroyed, which
accordingly came to pass." The witnesses being all
examined, — instead of stopping the prosecution and
directing an acquittal, Lord Chief Baron Hale summed
up in these words; clearly intimating that, in his .
opinion, the jury were bound to convict :
"Gentlemen of the jury, I will not repeat the evidence unto Male's
you, lest by so doing I should wrong it on the one side ^u
or on the other. Only this I will acquaint you, that you
have two things to inquire after : first, whether or no these
children were bewitched ? secondly, whether the prisoners at
the bar were guilty of it? That there are such creatures as
witches, I make no doubt at all ; for first, the Scriptures have
affirmed so much ; secondly, the wisdom of all nations hath
344 REIGN OF CHARLES II.
CHAP, provided laws against such persons, which is an argument
of their confidence of such a crime ; and such hath been the
judgment of this kingdom, as appears by that act of parliament
which hath provided punishments proportionable to the quality
of the offence. I entreat you, gentlemen, strictly to examine
the evidence which has been laid before you in this weighty
case, and I earnestly implore the great God of Heaven to direct
you to a right verdict. For to condemn the innocent and to
let the guilty go free, are both an abomination unto the Lord."
The jury, having retired for half an hour, returned
a verdict of guilty against both the prisoners on all the
indictments ; and the Judge, putting on his black cap,
after expatiating upon the enormity of their offence,
and declaring his entire satisfaction with the verdict,
admonished them to repent, and sentenced them to die.
Execution The bewitched children immediately recovered
witches, their speech and their senses, and slept well that
night. Next morning, Sir Matthew, much pleased
with his achievement, departed for Cambridge, leaving
the two unhappy women for execution. They were
eagerly pressed to confess, but they died with great
constancy, protesting their innocence.1
Male's Hale's motives were most laudable ; but he fur-
nishes a memorable instance of the mischiefs originat-
ing from superstition. He was afraid of an acquittal
or of a pardon, lest countenance should be given to a
disbelief in witchcraft, which he considered tantamount
to a disbelief in Christianity. The following Sunday
he wrote a " Meditation concerning the mercy of God
in preserving us from the malice and power of Evil
Angels," in which he refers, with extreme compla-
cency, to the trial over which he had presided at Bury
St. Edmunds.2
I. Trial of the Witches at Bury St. Edmunds, 1682 ; 6 St. Tr.
647-702.
8. This " Meditation " was published in the year 1693, with a preface,
in which the editor praises it "as an evidence of the judgment of so great,
so learned, so profound and sagacious, so cautious, circumspect, and tender
LIFE OF CHIEF JUSTICE HALE. 345
Although, at the present day, we regard this trial
as a most lamentable exhibition of credulity and in- HOW this
J violation of
humanity, I do not know that it at all lowered Hale justice has
•" ... been re-
in public estimation during his own life; but in the garded i>y
posterity.
middle of the i8th century it was thus censured by
Sir Michael Foster: "This great and good man was
betrayed, notwithstanding the rectitude of his inten-
tions, into a lamentable mistake, under the strong bias
of early prejudice." l The enormous violation of
justice then perpetrated has become more revolting
as the mists of ignorance, which partially covered it,
have been dispersed. How much more should we
honor the memory of Hale, if, retaining all his ardent
piety, he had anticipated the discovery of Lord Chief
Justice Holt, who put an end to witchcraft by direct-
ing prosecutions against the parties who pretended
to be bewitched, and punishing them as cheats and
impostors ! 2
It would be very agreeable to diversify these pain-
ful details with some anecdotes of Hale in private life ;
but we have none of his " Table Talk," while that of
his contemporary Selden is so amusing ; and we must
be contented with his judgments and his writings.
He hardly ever went into society, or entertained com-
pany at home. He had no dwelling in London, except
his chambers in Sergeants' Inn. Soon after he was
made Chief Baron he took a cottage at Acton, where Hale'sin~
timacy
he had for his neighbor the celebrated Richard Baxter *ith
Baxter.
a man, in matters of life and death, upon so great deliberation (for he knew
by his calendar beforehand what a cause he was to try, and he well knew
the notions and sentiments of the age), and, upon so solemn an occasion,
to check and correct the impiety, the vanity, the self-conceitedness, or
baseness of such witch advocates as confidently maintain that there are no
witches at all."
1. Preface to Reports, p. vii.
2. See Hathaway's Case. 14 St. Tr. 630. The statutes against witch-
craft were not repealed till g Geo. II, c. 5. B!. Com. iv. 61 ; 3d Insti-
tute, 43.
,46 REIGN 01' CHARLES II.
CHAP. now ejected from his office of King's Chaplain,
conferred upon him at the Restoration, but not yet
persecuted under the " Conventicle " and " Five-mile "
acts. The worthy Nonconformist gives us this inter-
esting account of the manner in which they made each
other's acquaintance :
Baxter's "We sat next seats together at church many weeks;1 but
hoTthei"' neither did he ever speak to me nor I to him. At last, my
acquaint- extraordinary friend, Sergeant Fountain, asked me 'why I did
bdgan. not visit the Lord Chief Baron ? ' I told him, ' because I had
no reason for it, being a stranger to him ; and had some against
it, viz., that a judge, whose reputation was necessary to the ends
of his office, should not be brought within court suspicion or
disgrace, by his familiarity with a person whom the interest
and diligence of some prelates had rendered so odious.' The
Sergeant answered, ' It is not meet for him to come first to you ;
I know why I speak it ; let me entreat you to go first to him. '
In obedience to which request I did it ; and so we entered into
neighborly familiarity. I lived then in a small house, but it had
a pleasant garden, which the honest landlord had a desire
to sell. The Judge had a mind to the house, but he would not
meddle with it till he got a stranger to me to come and inquire
of me whether I was willing to leave it ? I answered, ' I was
not only willing but desirous,' and so he bought it, and lived in
that poor house till his mortal sickness sent him to the place of
his interment. " 2
A.D. .668. It was about this time that Hale/although he had
laid down a rule nevermore to mix with any public
affairs, was induced to assist in furthering a plan for
bringing about a " comprehension," i.e., an extension
of the Establishment which should comprehend the
Presbyterians, in fulfilment of the Declaration from
Breda and the promises made upon the King's resto-
ration. . Clarendon, who had been guilty of flagrant
perfidy upon this subject, was now in exile ; and Sir
1. This means the parish church, which Baxter still frequented, although
he occasionally preached to a congregation of his own.
2. Baxter's Works, i. 95.
LIKE OF CHIEF JUSTICE HALE. 347
Orlando Bridgman, who had succeeded him on the
woolsack, was friendly to the proposal. The King
himself secretly favored the Papists — his own co-
religionists — and he hoped that something to their
advantage might arise from his affecting a love of
toleration.
There were several conferences held with a view to Hale Prf-
'' hill
this "comprehension," the interests of the Church tote pre-
sented to
of England being attended to by Dr. Wilkins,1 Bishop parliament
of Chester, — "a man," says Burnet, "of as great a "compre-
hension."
mind, as true a judgment, as eminent virtues, and
of as good a soul, as any I ever knew;" and those of
the Presbyterians by Baxter, of whom it was often
observed, that " if he had lived in the early ages of
Christianity he would have been one of the fathers
of the Church."
Articles having been, at last, agreed upon, which The arti-
cles agreed
were substantially the same which Hale, when member upon by
for Gloucestershire, had proposed in the Convention and
Parliament, it was very naturally the wish, of both
parties that he should be intrusted to reduce them into
the form of a bill to be proposed to the two Houses
of Parliament at their next meeting. He readily per- Haie's bin
formed the task ; and he had only a few alterations tiaiiy the
to make in the draught which he had prepared at the hui"" Com-
time when Clarendon dexterously elevated him to the Bitrof'0"
bench. But the bright prospect was soon overcast. l66a
I. John Wilkins was born 1614, at Pavvsley, Northamptonshire, in the
house of his grandfather, John Dod, the Nonconformist. He was educated
at Oxford, first in New Inn Hall, and next in Magdalen Hall. In the civil
war he adhered to the Parliament, and was made warden of Wadham
College. Here he formed the philosophical association which, after the
Restoration, was named the Royal Society. In 1656 he married the widow
of Dr. French, and sister to Oliver Cromwell, from whom, as the marriage
was contrary to the statutes, he obtained a dispensation. In 1659 he was
appointed master of Trinity College, Cambridge, from which he was
ejected the year following. He then became preacher to the Society of
Gray's Inn, and rector of St. Lawrence Jewry. In 1668 he was consecra'ed
Bishop of Chester. He died in London Nov. 19, 1672. — Cooper's itiog.
Diet.
348 REIGN OF CHARLES II.
CHAP. TWO powerful parties resisted the design of " com-
prehension," with equal zeal. The bigoted clergy
" thought it below the dignity of the Church to alter
laws, and change settlements, for the sake of some
whom they esteemed schismatics : they also believed
it was better to keep them out of the Church than
bring them into it, since a faction upon that would
arise in the Church which they thought might be
more dangerous than the schism itself was." : The
Popish party likewise became alarmed at the ap-
proaching union of all orthodox Protestants, and were
eager that the Dissenters should be still oppressed, so
that the}' might be driven to consent to an indulgence
which would extend to the professors of the ancient
faith. Accordingly, when the House of Commons
fifsedetoe" met> leave was refused to bring in the bill ; and, on
bring in the j-^g contrary, measures were brought forward against
conventicles, and against occasional conformity, which
greatly aggravated the sufferings of the Presbyterians,
—while a declaration of indulgence sheltered the
Roman Catholics, till it excited such a tumult in the
nation that the King was obliged to recall it. The firm
Male's inti- friendship so contracted continued to subsist between
Wilkins, Dr. Wilkins and the Chief Baron, who, " having much
Bishop of . ,
Chester, business and little time to spare, did, to enjoy the
other the more, what he had scarce ever done before ;
he went sometimes to dine with him, and though he
lived in great friendship with some other eminent
clergymen, yet there was an intimacy and freedom in
his converse with Bishop Wilkins that was singular
to him alone." '
While caressed by Wilkins, Barrow,3 Tillot-
I. Burnet, p. 25. 2. Burnet, p. 24.
3. Isaac Barrow, an English prelate, was born at Spinney Abbey,
Cambridgeshire, 1613, and educated at Peterhouse, Cambridge, of which
he became Fellow, but was ejected by the Presbyterians in 1643. He then
went to Oxford, and was appointed one of the chaplains of New College,
JOHN TILLOTSON, ARCHBISHOP OF CANTERBURY.
LIFE OF CHIEF JUSTICE HALE. 349
son,1 and Stillingfleet,2 the great ornaments of the ^^/J^
Establishment, Hale kept up, as long as he could, his
intimacy with the venerable leader of the Nonconform-
ists, and, if the law had permitted, would have been
delighted to reap the benefit of his ministrations :
"When I went," says Baxter, "out of the house in which Baxter's
he succeeded me, I went into a greater, over against the church Hai^s b&-
door. The town having great need of help for their souls, I havlor to
preached between the public sermons in my house, taking the
people with me to the church (to common prayer and sermon)
till the surrender of that city to the parliamentarians obliged him to shift
from place to place. At the Restoration he was consecrated Bishop of
Sodor and Man, from whence he was afterwards translated to St. Asaph.
He was a great benefactor to both bishoprics. Died June 24, 1680. —
Cooper's Biog. Diet.
1. John Tillotson, a celebrated English prelate, born in Yorkshire in
1630. He studied at Clare Hall, Cambridge, where he became a Fellow
in 1651. Though educated a Calvinist, he subsequently conformed to the
Church of England, and, having taken holy orders, he was appointed in
1664 preacher at Lincoln's Inn and St. Lawrence's Church in the Jewry,
where he acquired a very high reputation as a pulpit orator. Under the
reign of Charles II. he became successively Dean of Canterbury (1672),
Prebendary of St. Paul's (1675), and Canon-residentiary of that cathedral
(1677). He was created Archbishop of Canterbury by William III. in
1691. He had married Elizabeth French, a niece of Oliver Cromwell.
In theology he was called a latitudinarian. Died in 1694. — Thomas' Biog.
Diet.
2. Edward Stillingfleet, a learned prelate, descended from a Yorkshire
family, was born at Cranbourne, Dorsetshire, April 17, 1635. He be-
came Fellow of St. John's College, Cambridge, but left the University to
live with Sir Roger Burgoyne, who gave him the living of Sutton, Bed-
fordshire. In 1569 he printed his " Irenicum, or Weapon Salve for the
Church's Wounds." intended to reconcile the Episcopalians and Noncon-
formists, though it failed to please either party. This was followed by
his " Origines Sacra." In 1664 came out his "Rational Account of the
Protestant Religion," for which he was made preacher at the Rolls, Rector
of St. Andrew, Holborn, and Prebendary of St. Paul's; upon which he
took his degree of D.D. In 1677 he was promoted to the archdeaconry of
London, and the next year to the deanery of St. Paul's. About this time
he defended the right of bishops to vote in Parliament in capital cases,
and his argument put an end to the controversy. In 1685 he published
his " Origines Britannicae, or the Antiquities of the British Churches." In
1689 he was made Bishop of Worcester. At the close of life he embarked
in a controversy with Locke, on some points in that writer's Essay con-
cerning Human Understanding. The bishop died in Westminster, March
27, 1699. — Cooper's Biog. Diet.
350 REIGN OF CHARLES II.
CHAP, morning and evening. The Judge told me he thought my
course did the church much service, and would carry it so
respectfully to me at my door that all the people might perceive
his approbation. But Dr. Reeves could not bear it, and com-
plained against me, and the Bishop of London caused one Mr.
Rosse and Mr. Philips, two justices of the peace, to send war-
rants to apprehend me. I told the Judge of the warrants, but
asked him no counsel, nor did he give me any, but with tears
showed his sorrow, the only time that I ever saw him weep. So
I was sent to the common jail for six months."
After giving an account of his being discharged
upon a habeas corpus, the magistrates having exceeded
the law in his commitment, he goes on to say, " But
this imprisonment brought me the great loss of con-
verse with Judge Hale ; for the Parliament, in the
next act against conventicles, put into it divers clauses
suited to my case, by which I was obliged to go dwell
in another county, and to forsake both London and my
former habitation." 1
Male's reia- Hale shunned all private intercourse with the prof-
ligate Lord Chancellor Shaftesbury, but was on the
most friendly terms with Lord Chancellor Nottingham,
who afterwards wrote a beautiful character of him,
which is introduced into his Life by Bishop Burnet.
He still not unfrequently was called in as assessor in
the Court of Chancery ; and the principles he laid
down and illustrated on these occasions materially
assisted the FATHER OF EQUITY in converting into a
science this great department of our juridical system.
During four years and a half he had been the
honored Chief Justice of England ; and, although he
was well stricken in years, the public still expected
long to enjoy the benefit of his services. By early
rising, by exercise, and by temperance, notwithstand-
ing his constant application to business and study
(with the exception of one severe illness with which
i. Baxter's Works, i. 105-107.
LIFE OF CHIEF JUSTICE HALE. 351
he was visited about a year after he was made Chief
Baron),1 he had enjoyed uninterrupted good health;
and his constitution seemed unimpaired. But in the
autumn of the year 1675 he was struck by a violent ^^'h
inflammatory attack, which, in two days, endangered fa»s-
his life, and from which he never rallied. In the fol-
lowing Michaelmas Term he found himself so reduced
and enfeebled, that he could hardly, though supported
by his servants, walk up Westminster Hall, or sit out
the arguments at the bar, — which now seemed to him
to be dull, flat, and unprofitable.
He cared little about the emoluments or the con-
sequence of his office; and, although there was in
those days no retiring pension to fall back upon, he
determined to resign. But, as he never took any im-
portant step in a hurry, he composed a MEDITATION
on the present aspect of his affairs :
" 1st. If I consider the business of my profession, whether His " Med-
as an advocate or as a judge, it is true I do acknowledge, by the about re-
institution of Almighty God and the dispensation of His provi- s'Snins-
dence, I am bound to industry and fidelity in it. And it is an
act of obedience unto His will, it carries with it something of
religious duty, and I may and do take comfort in it, and expect
a reward of my obedience to Him and the good that I do to
mankind therein from the bounty and beneficence and promise
of Almighty God ; and it is true also, that without such employ-
ments civil societies cannot be supported, and great good
redounds to mankind from them ; and in these respects, the
conscience of my own industry, fidelity, and integrity in them,
is a great comfort and satisfaction to me. But yet I must say,
concerning these employments considered simply in themselves,
they are very full of cares, anxieties, and perturbations, zdly.
That though they are beneficial to others, yet they are of the
least benefit to him that is employed in them. 3dly. They do
necessarily involve the party whose office it is in great dangers,
I. "The chiefest occasion of my sickness I could visibly impute but to
a little wet taken in my head in my journey to London." On his re-
covery, he wrote a very pious, but very prolix and prosy, " Meditation,"
which may be seen at full length in Williams's Life of Hale, p. 88.
352 REIGN OF CHARLES II.
CHAP, difficulties, and calumnies. 4thly. That they only serve for the
meridian of this life, which is short and uncertain. 5thly. That
though it be my duty faithfully to serve in them while I am
called to them, and till I am duly called from them, yet they
are great consumers of that little time we have here ; which, as
it seems to me, might be better spent in a pious contemplative
life, and a due provision for eternity. I do not know a better
temporal employment than Martha had in testifying her love
and duty to our Saviour by making provision for him ; yet our
Lord tells her, 'That though she was troubled about many
things, there was only one thing necessary, and Mary had
chosen the better part. ' "
He solicits His infirmities increased upon him, and a severe
ofease'" asthma afflicted him night and day. Baxter, describ-
ing his appearance at this time, says, —
' ' He had death in his lapsed countenance, flesh, and
strength."1
Perceiving that his days were numbered, he inti-
mated a resolution to resign his office of Chief Justice:
"This drew upon him the importunities of all his friends,
and the clamor of the whole town, to divert him from it ; but
all was to no purpose. So he made applications to his Majesty
Reluctance for his 'writ of ease,' which the King was very unwilling to
lentTo &rant h'm' °ffe"ng 'to 'et him hold his place still, he doing
accept his what business he could in his chamber ;' but he said, ' he could
lion"' not with a good conscience continue in it, since he was no
longer able to discharge the duty belonging to it.' Such was
the general satisfaction which all the kingdom received by his
excellent administration of justice, that the King, though he
could not well deny his request, yet he deferred the granting of
it as long as was possible. " !
He several times made the same application to
Lord Nottingham, the Chancellor, but was told by
him still to hope for the restoration of his health, and
was reminded that his predecessor, Lord Coke, had
proved himself capable of serving his country at a
much more advanced period of life. The reluctance
i. Works, by Thirlwall, i. 107. 2. Burnet, p. 32.
LIFE OK CHIEF JUSTICE HALE. 353
of the Government to accept his resignation pro-
ceeded not only from a sense of his merits, but from Reasons
for this.
the great difficulty which existed at that time of
replacing him by a person who might be able to
support the arbitrary measures which it was intended
hereafter to bring forward. Jeffreys was still a flaming
patriot, declaring that " he never should be bought ;"
and Scroggs's life was so scandalous, that Charles and
his ministers were not yet sufficiently regardless of
public opinion to venture on putting him at the head
of the criminal law, although they were about to make
him a Puisne Judge of the Common Pleas.1
Hale at last, with his own hand, wrote a resignation He retires
of his office, caused it to be duly enrolled in Chancery, be°nnch!he
and delivered the original into the hands of the Lord f6^0;21'
Chancellor,2 saying that " he made this instrument for
two reasons — to show the world his own free concur-
rence to his removal, and to obviate a scruple whether
the Chief Justice of the King's Bench, being placed by
writ, was removable like the other judges who were
appointed by patent during pleasure." The Chan-
cellor, finding the resignation an accomplished fact,
offered no farther resistance, and conducted him toHisIastin-
terview
the King, " who parted from him with great grace, wi.th the
1. Dugd. Or. Jur. 118.
2. " Omnibus Christi Fidelibus ad quos prassens Scriptura pervenerit,
MATTHEUS HALE, Miles, Capitalis Justiciarius Domini Regis ad placita
coram ipso rege tenenda assignatus, salutem in Domino sempiternam.
Noveritis me praefatum MATTHEUM HALE, Militem, jam senem factum,
et variis corporis mei senilis morbis et infirmitatibus diu laborantem et
adhuc detentum, hac chartil mea resignare et sursum reddere Serenissimo
Domino nostro CAROLO SECUNDO, Dei gratia Angliae, Scotiae, Francias,
et Hiberniae Regi, Fidei Defensori, etc., prsedictum officium Capitalis
Justiciarii ad placita coram ipso Rege tenenda, humillime petens quod
hoc scriptum irrotuletur de recordo. In cujus rei testimonium huic
chartas meas resignationis sigillum meum apposui. Dat' vicesimo primo
die Februarii, anno regni diet. Dom. Regis nunc vicesimo octavo."
I once witnessed a similar ceremony in the year 1834, when the ven-
erable Sir John Bayley executed a resignation of his office of a Baron of
the Exchequer in the presence of Lord Chancellor Brougham.
354 REIGN OF CHARLES II.
wishing him most heartily the return of his health,
and assuring him 'that he would still look upon him as
one of his judges, and have recourse to his advice
when his health would permit; and, in the mean time,
would continue his pension during his life.' " :
Address of An obscure person, of the name of Raynsford, who
Chancellor was expected to give little trouble, and whom it would
ha°m toghis be easy to get rid of, having, in the dearth of fit men,
been selected as Chief Justice of the King's Bench, the
Lord Chancellor said, at his installation, " Onerosum cst
succedere bono principi? and you will find it so that are
to succeed such a Chief Justice ; of so indefatigable
an industry, so invincible a patience, so exemplary an
integrity, and so magnanimous a contempt of worldly
things, without which no man can be truly great ; and,
to all this, a man that was so absolutely a master of
the science of the law, and even of the most abstruse
and hidden parts of it, that one may truly say of his
knowledge in the law what St. Austin said of St.
Hierome's knowledge in divinity — Quod Hieronimns
nescivit nullus mortalium unquam scivit." 3 The new
Chief Justice, though not very original or sublime in
his rhetorical figures, was determined not to be out-
done in eulogy : " It doth very much trouble me," said
he, " that I, who, in comparison of him, am but like a
candle lighted in the sunshine, or like a glow-worm at
mid-day, should succeed so great a person, that is and
will be so eminently famous to all posterity."
1. Burnet, p. 33. " Pension " means salary. As yet there was no
Civil List ; the whole of the public revenue came into the Exchequer, and
the King paid the Judges out of it as he did his menial servants. Some-
times extraordinary grants in time of war were put under the manage-
ment of parliamentary commissioners, but all salaries or pensions were
supposed to come out of the King's own pocket. A retired allowance
was a mark of very extraordinary favor. On this occasion Hale wished
his to be during pleasure ; but Charles, seeing that the object of his
bounty could not live many months, insisted upon its being for life."
2. " It is burdensome to succeed a good leader."
3. "What Hierome did not know, no mortal ever knew.
LIFE OF CHIEF JUSTICE HALE. 355
CHAPTER XVIII.
CONCLUSION OF THE LIFE OF CHIEF JUSTICE HALE.
HALE was now to bid a final adieu to London. He
had resolved to proceed to Alderley, his friends telling "j|J1ea)>ids
him that his constitution might yet be invigorated byf1'6"10
London.
his native air; and he himself being resolved here to Feb. 1676.
prepare himself, in seclusion, for the great change
which he knew must be at hand. He took an affec-
tionate leave of his officers and attendants, advising
them to see for themselves, as their employment was
determined ; giving considerable presents to such as
were in want, and leaving a token with each of them.
His friends all flocked round to take an affectionate
leave of him ; and never, when seated on his tribunal,
the " beheld of all beholders," had he received homage
so sincere or so touching. His arrival
He travelled, by easy journeys, into Gloucester- dertey.
shire ; and, in the beginning of March, he reached the
village where his eyes had first beheld the light, and
where his ashes were to repose. The scenes of his
infancy, and the recollection of his youthful sports,
for a while revived him ; and, after saying prayers in
the church, and spending some time in private devo-
tion, he had spirits to translate a passage from Seneca's
THYESTES, which he thought particularly applicable
to his present circumstances. Sir Matthew was not
unfrequently given to rhyme, but, considering that he Hale as a
DOCt.
was a man of classical education, and that he must
have listened to the versification of Dryden, it is
astounding to find his lines not only so prosaic, but
so rough, lame, mean, and untunable. They are such
356 REIGN OF CHARLES II.
CHAP. as no rhyming mechanic or waiting-maid would now
produce. But — compared with his usual failure — on
this occasion : he really seems to have been inspired
by the genius of the place ; and I willingly copy his
translation, to show that a great lawyer may have
some remote notion of poetry :
"Let him that will, ascend the tottering seat
Of courtly grandeur, and become as great
As are his mounting wishes : as for me,
Let sweet repose and rest my portion be.
Give me some mean, obscure recess, — a sphere
Out of the road of business, or the fear
Of falling lower ; where I secretly may
Myself and dear retirement still enjoy.
Let not my life or name be known unto
The grandees of the time, toss'd to and fro
By censures or applause ; but let my age
Slide gently by ; not overthwart the stage
Of public action, — unheard, unseen,
And unconcern'd, as if I ne'er had been.
And thus, while I shall pass my silent days
In shady privacy, free from the noise*
And bustles of the mad world, then shall I,
A good old innocent plebeian, die.
Death is a mere surprise, a very snare,
To him that makes it his life's greatest care
To be a public pageant ; known to all,
But, unacquainted with himself, doth fall."
His last In a few days his malady returned with aggrava-
tion, and his breathing became so bad, that he was
I. "Stet, quicunque volet, potens,
Aulae culmine lubrico :
Me dulcis saturet quies.
Obscuro positus loco,
Leni perfruar otio :
Nullis nota Quiritibus
./Etas per taciturn fluat.
Sic cum transierint mei
Nullo cum strepitu dies,
Plebeius moriar senex.
I Hi mors gravis incubat,
Qui, notus nimis omnibus,
Ignotus moritur sibi." — Thyestes, act ii.
2. In the Gloucestershire dialect this word is pronounced naize, as
"enjoy "is pronounced " enjay." Having many years attended the
Quarter Sessions as well as the Assizes at Gloucester, I made considerable
illness.
LIFE OF CHIEF JUSTICE HALE. 357
never able to lie down in his bed, being supported
upon it, even in the night, by pillows. But he bore
his sufferings with exemplary patience ; and any inter-
vals of ease which he enjoyed, he devoted to piety,
and to attempts to benefit his fellow-creatures.
It might have been expected that he would have "'p^!^
revised, and given to the world, some of the invalu- ^'^
able law treatises which he had composed ; but he
entirely neglected them. Indeed, he had never shown
any desire to be known as a juridical writer, although
he was by no means without the ambition of author-
ship. But he wished to be admired as a philosopher His phiio-
~ sophical
and a divine. In 1673, he had printed an " Essay pubiica-
touching the Gravitation and Non-gravitation of Fluid
Bodies ; " and, two years after, a treatise entitled
" DIFFICILES NUG.E ; or, Observations touching the
Torricellian Experiment, and the various Solutions
of the same, especially touching the Weight and
Elasticity of the Air." There had likewise been pub-
lished, with his sanction, while he was on the bench,
two volumes of " CONTEMPLATIONS," consisting of ser-
mons, homilies, or pious ruminations, written by him
on the evenings of the Lord's day. Now he sent to
the press the first volume of a work on which he had
been engaged for seven years, entitled "THE ORiGi-"The
NATION OF MANKIND." His object was to refutetioIfT"
atheists, and to support the Mosaic account of the
creation. But before it was published he was beyond
the reach of human praise or censure :
"As the winter came on, he saw with great joy his deliver-
ance approaching ; for besides his being weary of the world,
progress in acquiring the lingo of the county. The Judge's name is there
pronounced Eel, as they never aspirate h at the beginning of a word, and
thsy always change a into ce. Thus Mr. Bloxham, the clerk of the peace,
born near Alderley, in calling the jury, when he came to " David Hale of
the same place, baker," hollaed out, " Deevid Eeel, of the seem pleece,
beeker." I hope it is understood that I praise these verses of a Glouces-
tershire poet only in comparison with his other metrical effusions.
358 KEIGN OF CHARLES II.
CHAP, and his longings for the blessedness of another state, his pains
increased so on him, that no patience inferior to his could have
borne them without a great uneasiness of mind ; yet he expressed
to the last such submission to the will of God, and so equal a
temper under them, that it was visible then what mighty eld-c is
his philosophy and Christianity had on him in supporting him
under such a heavy load. Not long before his death the minister
told him 'there was to be a sacrament next Sunday at church,
but he believed he could not come and partake with the
rest; therefore he would give it to him in his own house.'
But he answered, 'No, his Heavenly Father had prepared
a feast for him, and he would go to his Father's house to
His last Partake of it.' So he made himself be carried thither in his
ton""""" Cha'r> where he receiveti lhe sacrament on his knees with great
devotion ; which, it may be supposed, was the greater because
he apprehended it was to be his last, and so took it as his
viaticum and provision for his journey."1
Such was his reputation for sanctity, that some
expected that he would be translated to a better world
without tasting death. He knew well that he could
only attain to perfect blessedness through the resur-
rection of the just, but even he believed that the time
of his death was mysteriously revealed to him, for in
the middle of November he declared that " if he did
not die next Friday week, he should live a month
longer." The day he named fell out to be the 25th
of November; he did not die on that clay, although
grievously sick, and he languished on till the morning
His death, of the 2$th of December, Christmas day, when, as it
was supposed, by the special favor of Heaven, to
recompense him for the war he had carried on against
evil spirits, he expired at cockcrow :
" Then, they say, no spirit dares stir abroad ;
No fairy takes, nor witch hath power to charm, —
So hallow'd and so gracious is the time."
He continued to enjoy the free use of his reason
to the last moment, a blessing which he had often
earnestly prayed for during his sickness; and when
i. Burnet, p. 35.
MATTHEW HALE.
fmom A fu.nmm. i * LJBCOU"* In Lmunr.
LIFE OF CHIEF JUSTICE HALE. 359
his voice was so sunk that he could not be heard, those CHAP.
who stood by might perceive, by the almost constant
lifting up of his eyes and hands, that he was still
aspiring towards that blessed state of which he was
speedily to be possessed.
He used to disapprove of the custom of burying in His
churches as superstitious, saying, " Churches are for
the living, churchyards for the dead." Accordingly,
on his last return from London, he had pointed out a
spot for his own interment, near the grave of his de-
ceased wife ; and there his remains were deposited on
the 4th day of January following. The intention was
that the ceremony should be very private, but, in ad-
dition to his own relatives and servants, many rustics
attended from the surrounding villages, for they re-
garded the deceased as a Saint, and they thought
there was virtue in touching his coffin. In Popish
times, miracles would have been worked at his tomb,
and he would have been canonized as " St. Matthew
of Alderley."
The only ecclesiastical honor conferred upon him His
funeral
was a funeral sermon, by the vicar of Alderley, from sermon.
Isaiah, Ivii. i. "The righteous perisheth, and no man
layeth it to heart : and merciful men are taken away,
none considering that the righteous is taken away
from the evil to come," — in which the preacher drew
a glowing picture ol the virtues of the departed Chief
Justice, and expressed a pious confidence " that, now
beyond the temptations and troubles of this wicked
world, in which the Devil and his angels' are con-
stantly plotting destruction to the bodies and souls of
men, having a powerful Advocate on his side, he
might with pious confidence attend the last assize, and
expect a sentence of acquittal from the great and mer-
ciful Judge of mankind."
Sir Matthew himself had prepared the following
36o
REIGN OF CHARLES II.
CHAP, simple epitaph, which was inscribed on a plain marble
monument erected to his memory :
Hisepi- " HIC 1NHUMATUR CORPUS
taph. MATTHEI HALE, MIL1TIS ;
ROBERTI HALE ET JOANN^E
UXOKIS EJUS FII.II UNICI,
NATI IN HOC PAROCHIA DE AI.DERLEY
PRIMO WE NOVEMBRIS,
A.D. 1609.
DENATI VERO IBIDEM
VICESIMO OUINTO DIE DECEMBRIS,
A.D. 1676.
>ETATIS SU/E LXVII." '
In the list of our great magistrates there is no name
more venerated than Hale, and I can add nothing to
exalt his judicial reputation.
He mixed so little in politics, that he is hardly to
be enumerated among our statesmen ; but in revolu-
tionary times he must be allowed to have acted a mod-
erate, consistent, and meritorious part.
As a jurist, I doubt whether sufficient justice has
yet been done to his memory. Coke had as much
professional knowledge, but he considered what he
had amassed as a mere congeries of arbitrary rules,
without principle, system, or dependence. Hale cul-
tivated law as a science, — having distinct objects to
which it might or might not be adapted, — admitting
and requiring alterations and amendments, according
to the varying circumstances of society. He had a
fine head for analysis, and, with a due reverence for
existing institutions, he recollected the maxim, that
" Time is the greatest innovator." Hence he beauti-
fully methodized the code which he found to be in
force, and he gave invaluable instructions as to the
manner in which it might be improved. We have
from Bishop Burnet the following interesting account
i. " Here lies buried the body of Matthew Hale, Knight : only son
of Robert Hale and Joanna his wife ; born in this parish of Alderley on
the first day of November, A.D. 1609. Died in the same place on the
25th day of December, A.D. 1676. Aged 67."
Hale as a
jurist.
LIFE OF CHIEF JUSTICE HALE. 361
of his first attempt in this direction, which shows that
the subject had long occupied his thoughts :
"Some complaining to him that 'they looked on the com-
mon law as a study that could not be brought into a scheme. Hale's
first at-
nor formed into a rational science, by reason of the indigested- tempt to
ness of it, and the multiplicity of the cases in it which rendered [he* code"
it very hard to be understood ; ' he said, ' he was not of their
mind,' and so, quickly after, he drew with his own hand a
scheme of the whole order and parts of it in a large sheet of
paper, to the great satisfaction of those to whom he sent it.
Upon this hint some pressed him to compile a body of the Eng-
lish law. But he said, 'as it was a great and noble design
wmch would be of vast advantage to the nation, so it was too
much for a private man to undertake ; it was not to be entered
upon but by the command of a prince, and with the communi-
cated endeavors of some of the most eminent of the profes-
sion.' " 1
He actually did publish an " Analysis of the Civil Haie's
part of our Law," which supplied Sir William Black- and Tract
stone with the plan of his immortal COMMENTARIES.2 subject.
He likewise left behind him a Tract entitled " Consid-
erations touching the Amendment of the Law," — to be
studied by all law reformers, and by all who think that
the law should remain unchanged from generation to
generation. Having first pointed out the evils arising
from " overhaste and forwardness," he proceeds to
remark on " the over-tenacious holding of laws, not-
withstanding apparent necessity for, and safety in, the
change : "
" We must remember," says he, "that laws were not made His re-
for their own sakes, but for the sake of those who were to be I™"*3 on
"the over-
guided by them ; and though it is true that they are and ought tenacious
to be sacred, yet if they be or are become un useful for their ia^s!"e °
end, they must either be amended, if it may be, or new laws be
1. Burnet, p. 39.
2. Pronounced by Hargrave "a superstructure raised on the foun-
dation of Lord Haie's previous Digest." (Preface to Law Tracts,
xii.)
362 REIGN OF CHARLES II.
CHAP, substituted, and the old repealed, so it be done regularly, de-
liberately, and so far forth only as the exigence or convenience
justly demands it ; and in this respect the saying is true. Salus
populi suprema lex esto.1 He that thinks a state can be exactly
steered by the same laws in every kind as it was two or three
hundred years ago, may as well imagine that the clothes that
fitted him when a child should serve him when he was grown
a man. The matter changeth, the custom, the contracts, the
commerce, the dispositions, educations, and tempers of men
and societies, change in a long tract of time, and so must their
laws in some measure be changed, or they will not be useful
for their state and condition ; and besides all this, time is the
wisest thing under heaven. These very laws, which at first
seemed the wisest constitution under heaven, have some flaws
and defects discovered in them by time. As manufactures,
mercantile arts, architecture, and building, and philosophy itself,
secure new advantages and discoveries by time and experience,
so much more do laws which concern the manners and customs
of men. " 2
Upon these admirable principles he proceeded
when at the head of the Commission for the Amend-
ment of the Law under Cromwell ; and on his sugges-
tions chiefly are founded the ameliorations of our code
which have illustrated the reigns of William IV. and
His book Queen Victoria. We have not yet a Register of
mend a Deeds, but this is not the fault of Hale, for he wrote a
Deeds." ° book on purpose to recommend it, — in which he tri-
umphantly shows the objection which prevents its
adoption — that it would disclose the incumbrances
with which estates are charged — to be one of its great-
est advantages.
Having completed his " Commonplace Book," he,
in the early part of his career, wrote many separate
law treatises. The one upon which he bestowed most
labor, and which has been most frequently quoted, is
his " HISTORY OF THE PLEAS OF THE CROWN," which
1. " The safety of the people shall be the first law."
2. Published by Hargrave in his Law Tracts.
LIFE OF CHIEF JUSTICE HALE. 363
is a complete digest of the criminal law as it existed in
his day. His " HISTORY OF THE COMMON LAW OF
ENGLAND " may be considered a sketch of what might
have been expanded into a complete Civil Code. All
his MSS. and records he left by his will to the library
of Lincoln's Inn, pronouncing them " a rare collection,
— a treasure worth having and keeping, — and not fit
for every man's view." From this repository the late
Mr. Hargrave published, to the great benefit of the
community, two very valuable Tracts by Hale, — " DE His two
published
PORTUBUS MARTS," and "ON THE JURISDICTION OFTracts.
THE LORDS' HOUSE OF PARLIAMENT," — both of which
show a familiarity with our legal antiquities, and
powers of distribution and illustration, worthy of the
highest admiration.
But he only valued himself for his success in poe-
trv, — in philosophy, — and in divinity ; and such is the
weakness of human nature, that he evidently thought
he had secured to himself a lasting reputation in these
departments of genius and learning.1 A collection of
hymns, written by him, was published ; and Bishop
Burnet, who says "he had great vivacity in his fancy,
as may appear from his inclination to poetry," praises
a Christmas Carol, which thus begins :
I. Roger North says, "It is most certain his vanity was excessive;
which grew out of a self-conversation, and being little abroad. But when
he was off from the seat of justice and at home, his conversation was with
none but flatterers. He was allowed on all hands to be the most profound
lawyer of his time ; and he knew it ; but that did not serve him, but he
would be also a profound philosopher, naturalist, poet, and divine, and
measured his abilities in all these by the scale of his learning in the law,
which he knew how to value ; and if he postponed any, it was the law to
all the rest ; for he was so bizarre in his dispositions that he almost sup-
pressed his collections and writings of the law, which were a treasure,
and, being published, would have been a monument of him beyond the
power of marble." (i. 115.) But Roger confesses that he was influenced
by his brother's envy of Hale : " He was very much concerned to see
the generality, both gentle and simple, lawyers and laymen, idolize him,
as if there had never been such a miracle of justice since Adam." (i.
119.)
364 REIGN OF CHARLES II.
CHAP. " Blessed Creator ! who before the birth
Of time, or e'er the pillars of the earth
of'hJs"16 Were fixt or form'd, didst lay that great design
poetry Of man's redemption, and didst define
C°mHpd h '" t*1'ne eterna' councils all the scene
Burnet. Of tnat stupendous business, and when
It shall appear, and though the very day
Of its epiphany concealed lay
Within thy mind, yet thou weit pleas'd to show
Some glimpses of it unto men below." '
His doc- While living in retirement, shortly before the Res-
s™£!jnre" toration, he wrote a pamphlet on the " Maintenance of
the main- fae poor;" jn which, in entire ignorance of the ele-
thepoor. ments of political economy, and amiably led away by
communist doctrines, he proposes that in every parish
there should be an association of operatives, who,
being supplied with materials, should carry on some
manufacture for their common benefit. Refusal to
work he would punish, upon a conviction before mag-
istrates ; but he is as silent as Louis Blanc, in our day,
with respect to the necessary stimulus to exertion
where the listless and the laborious were to share
equally ; and he says not a word about the requisite
supply of capital, or the demand for his manufactured
produce.2
His exper- In his latter years he was smitten by the rage for
natural philosophical discovery which prevailed among the
founders of the Royal Society. At Acton he had a
laboratory, and he engaged in long courses of chemical
experiments. The result of these he from time to
time gave to the world, in pamphlets, which called
forth eulogies from sycophants who surrounded him,
but made the judicious grieve. His book on " THE
ORIGINATION OF MANKIND " has the merit of contain-
1. I must admit that this rather justifies Roger North's criticism :
" He published much in speculative devotion, part prose, part verse ; and
the latter hobbled so near the style of the other as to b~ distinguished
chiefly by being worse."
2. See an analysis of this pamphlet in Sir Frederick Morton Eden's
History of the Poor Laws, i. 214.
LIFE OF CHIEF JUSTICE HALE. 365
ing the refutation of atheism from the mechanism of ^VIIL
a watch, of which Paley has availed himself. After
supposing one to have been presented in an assembly
of Greek philosophers, and giving their various unsat-
isfactory explanations of its structure and movements,
he finally introduces the maker, and puts this speech
into his mouth :
"Gentlemen, you have discovered very much excellency of His refuta-
invention touching this piece of work that is before you, but atheism
you are all miserably mistaken ; for it was I that made this "°"l th?
' J mechanism
watch and brought it hither, and I will show you how I made of a watch,
it. I wrought the spring, and the fasce, and the wheels, and
the ballance, and the case, and table ; I fitted them one to
another, and placed these several axes that are to direct the
motions of the index to discover the hour of the day, of the fig-
ure that discovers the phases of the moon, and the other various
motions that you see. "
But his speculations about the manner in which the
heavens and the earth were created, and his geological
explanation of the effects of Noah's flood, are by no
means edifying.1 His " CONTEMPLATIONS," and other Character
... . of his de-
devotional writings, have passed through many edi-votionai
tions, and, I doubt not, have done much good ; but I w
believe that they acquired their celebrity from being
the productions of a lawyer of high station, and that
if they had come from an ecclesiastic, whether Church-
man or Dissenter, they would have attracted little
notice. Even Burnet says " they are not so contracted
as it is very likely he would have writ them if he had
been more at leisure to have brought his thoughts into
a narrower compass and fewer words."
Of all his writings the most popular are nis " LET- His Letters
of Advice to
TERS OF ADVICE TO HIS SONS AND HIS GRANDCHIL-hischildren
DREN." They are certainly very moral, and may be children" "
I. This publication seems to have had no success. Roger North says
that it is " very remarkable for a childish ignorance of the subject, and
that scarce any one ever read or will read it."
366 REIGN OF CHARLES II.
CHAP, perused with much advantage ; but I must admit that
they are very dull and unattractive, and the fashion of
using them as a text-book for domestic education, I
am sorry to say, has made the hero of this memoir to
be regarded as a great bore by the rising generation.
Thus he addresses his granddaughter Anne, whom he
describes as " of a sanguine but melancholy complex-
ion," and his granddaughters Mary and Frances, who
were, it seems, "of .a sanguine and choleric complex-
ion : "
His no- " I would have you learn all points of good housewifery,
female ed- and practise it as there shall be occasion ; as spinning of linen,
ucation. tne ordering of dairies, and to see to the dressing of meal, salt-
ing and dressing of meat, brewing and baking, and to under-
stand the common prices of corn, meat, malt, wool, butter,
cheese, and all other household provisions; and to see and
know what stores of all things necessary for the house are in
readiness, what and when more are to be provided ; to have the
price of linen, cloths, stuffs, and woollen cloth for your neces-
sary use and the use of a family ; to cast about to provide all
things at the best hand ; to take and keep account of all things ;
to know the condition of your poultry about the house, for it is
no discredit to a woman to be a hen-housewife ; to cast about
how to order your clothes with the most frugality, to mend them
when they want, and to buy but when it is necessary, and with
ready money ; to love to keep at home. A good wife is a por-
tion of herself, but an idle or expensive wife is most times an ill
bargain, though she bring a great portion. " 1
Burnet says, " he neglected the study of the
tongues ; " he tells that he had entirely forgotten his
Greek, and I presume that he avoided all dramatic
writings in English as profane ; but it is wonderful
that his familiar acquaintance with the authorized
translation of the Bible (that well of English undented)
I. Hannah More, in her " Hints towards the Character of a Princess,"
recommends " the occasionally committing to memory a rule of conduct
from Sir Matthew Hale." I do not know whether she had the above
admonition in her eye.
LIFE OF CHIEF JUSTICE HALE. 367
did not make his style more nervous and more harmo- ^vrn'
nious. As a writer, however, he pleased the late Lord
Ellenborough, who said " he was as competent to ex-
press as he was able to conceive." '
Above all, he was reverenced in his own time, and .His *""£•
ion tinged
has been so ever since, for the example he set of spot- with suPer-
stition.
less purity and of genuine piety, although it must be
confessed that in his ascetic life he fled from social
duties, and that he was not entirely free from super-
stition. He gravely narrates that he was led to the
strict observance of the Sabbath day because, once
profaning it by riding a journey, his horse was super-
natunrlly lamed ; 2 and he always retained his puritani-
cal dislike to changes of posture during divine service,
and even to bowing at the name of Jesus.3
He was likewise coxcombical in his own way. Hisdress.
" His habit," says Baxter, " was so coarse and plain,
that I, who am thought guilty of a culpable neglect
therein, have been bold to desire him to lay aside
some things which seemed too homely."4 Then, al-
though he would have no visiting intercourse with
the great and the learned, he invited his poorest
1. 5 East, 17.
2. Baxter, in his Preface to "Gouge's Surest and Safest Way of
Thriving," Svo, 1676, says, " The Lord Hale hath told me how the strange
providences of God, in laming and disabling his horses, and other impedi-
tions in a journey towards London for worldly advantages, did convince
him and engage him ever after to spend the day as he hath done."
3. Baxter says, " His behavior in the church was conformable but pru-
dent," and describes his innocent contrivances to satisfy his conscience
without violating the Rubric. (Relig. Baxter, part iii. p. 181.) Although
we must regret that he was so narrow-minded on such points, it is credit-
able to him that he did not — like most Dissenters who, on their rising in
the world, have conformed — go over furiously to the high-Church party,
and persecute his former co-religionists.
4. Unconscious that he himself tried to attract notice and gain distinc-
tion by peculiarity of dress, he rebuked any symptoms of this passion in
others. He was particularly severe on attorneys who wore swords ; and
he expressed high displeasure at the young barristers who wore periwigs,
which were then beginning to be fashionable, — apprentices having hitherto
appeared in their natural long locks, and sergeants being adorned with the
coif or black velvet nightcap. Burnet, p. 52.
368 REIGN OF CHARLES II.
CHAP, neighbors to dinner, and made them sit at his own
table. He thus rendered his house very disagreeable
Hischii- to hjs children, who might have turned out well if
better society and suitable amusements had been pro-
vided for them at home. " All his sons died in the
sink of lewdness and debauchery ; and if he was to
blame in their education, it was by too much rigor
rather than of liberty." !
His disre- His style of living by no means proceeded from an
maoney! avaricious or miserly disposition. " He did not take
the profits that he might have had by his practice, for
in common cases, when those who came to ask his
counsel gave him a piece, he used to give back the
half, and to make ten shillings his fee in ordinary mat-
ters that did not require much time or study." : He
often acted as an arbitrator, but would never accept
any fee for his pains, — saying, " In these cases I am
made a judge, and a judge ought to take no money."
If they told him that he lost much of his time in con-
sidering their business, and so ought to be acknowl-
edged for it, he asked " Can I spend my time better
than to make people friends ? Must I have no time
allowed me to do good in?" He regularly set apart
a tenth part of his gains for the poor, and laid out
large sums in charity besides. Accordingly, notwith-
standing, his extensive business at the bar, and long
tenure of office, the whole increase of his estate was
from ioo/. to gool. a year, and this arose chiefly from
a large legacy left to him by his friend Selden.3
r. North's Life of Guilford, i. 117.
2. At this time the client consulted the barrister in person, and paid
him the honorarium without the intervention of attorney or clerk.
3. He showed his disinterestedness as one of the executors of this
extraordinary man, who had, by his will, left his noble library of 8,000
volumes and many costly MSS. to the University of Oxford, but, taking
offence with that learned body because he was refused the loan of a book
without giving security for it, had, by a codicil, left the whole to his
executors. The executors, thinking this a mere temporary ebullition of
LIFE OF CHIEF JUSTICE HALE. 369
His biographers add a proof of his extreme scrupu- CHAP.
lousness, which gives us a strange notion of the times Notions in
. . . the reign of
in which such conduct was thought to deserve special Charles u.
praise. " Another remarkable instance," says a bishop, knowingly
who has not the arrogance to say he imitated him, " of Cad5'"
his justice and goodness was, that when he found ill™
money had been put into his hands, he would never
suffer it to be vented again, for he thought it was no
excuse for him to put false money in other people's
hands because some had put it into his. A great heap
of this he had, gathered together, for many had so
abused his goodness as to mix base money among the
fees that were given him." *
Sir Matthew Hale was a handsome man, with a Haie'scon-
stilution
strong constitution, which he preserved bv short meals and habits-
and always rising from table with an appetite. I sus-
pect, however, that he indulged to great excess in the
use of tobacco, under pretence that, from some pecu-
liarity of constitution, it was necessary to him. Hav-
ing exhorted his grandchildren to shun this pernicious
plant, he says to them, " Herein your grandfather's
practice must not be an example to you, nor to any
else that is not of his complexion, government, and
prudent ordering of himself; for your grandfather
hath ever been of a cold complexion and constitution,
and therefore tobacco hath been his physic, and a
great preservative of his health. But your constitu-
tions are hot, dry, and choleric, and it is hurtful for
you."2
His first wife was a daughter of Sir Henry Moore, Hist
of Faly, in Berkshire. By her he had ten children, allwi
spleen, carried into effect the original design. — Ath. Ox. i. pp. xxxvii,
xxxviii.
1. This hoard was at last seized by thieves, who broke into his house,
and thought they had gained a great prize. They probably did not
scruple to circulate it, as it had belonged to a Saint.
2. Page 159
wo
ves.
370 REIGN OF CHARLES II.
CHAB. of whom he outlived except his eldest daughter and
his youngest son. When pretty far advanced in life,
having been some time a widower, he married the
daughter of Mr. Joseph Bishop, of Faly, by whom he
had no issue. Roger North says that "she was his
own servant-maid, and that, for excuse, he said ' There
is no wisdom below the girdle.'"1 Baxter charitably
observes, " Some made it a scandal ; but his wisdom
chose it for his convenience, that in his age he married
a woman of no estate, suitable to his disposition, to be
to him as a nurse. This good man more regarded his
own daily comfort than man's thoughts and talk." ;
The arrangement turned out well, and he speaks affec-
tionately and respectfully of her, both in his will and
in his advice to his grandchildren, — whom he com-
mitted to her care.
Hisrepre- xhe estate of Alderley is still in the possession of a
sentatives. .
lineal descendant of Sir Matthew Hale. I remember
that this gentleman served the office of High Sheriff
for the county of Gloucester when I went the Oxford
Circuit, and that he was treated with peculiar respect
by the Judges and the bar, from our profound vener-
ation for the memory of his illustrious ancestor.
In writing this memoir, it has been painful to me,
in the impartial discharge of my duty, to impute a few
errors and defects to him whose infallibility and abso-
lute perfection are considered by many to be essential
to the cause of true religion ; but I have pleasure in
concluding with a sketch of his character drawn by
one who was intimately acquainted with him for many
years, and who may be confidently relied upon both
for discernment and sincerity. Richard Baxter, with
a small pecuniary legacy left him as a token of regard
by his old friend, purchased a copy of the great Cam-
1. Life of North, p. 116.
2. Relig. Baxter, part iii. p. 176.
LIFE OF CHIEF JUSTICE HALE. 371
bridge Bible, and prefixed to it a print of the Judge, CHAP.
with the following encomium :
" Sir Matthew Hale, that unwearied student, that prudent Sketch of
man, that solid philosopher, that famous lawyer, that pillar and acte°r by"
basis of justice — (who would not have done an unjust act for Baxter-
any worldly price or motive), — the ornament of his Majesty's
government, and honor of England, the highest faculty of the
soul of Westminster Hall, and pattern to all the reverend and
honorable Judges ; that goodly, serious, practical Christian, the
lover of goodness and all good men ; a lamenter of the clergy's
selfishness, and unfaithfulness, and discord, and the sad divis-
ions following hereupon ; an earnest desirer of their reforma-
tion, concord, and the Church's peace, and of a reformed Act
of Uniformity as the best and necessary means thereto ; that
greater contemner of the riches, pomp, and vanity of the world ;
that pattern of honest plainness and humility, who, while he
fled from the honors that pursued him, was yet Lord Chief Jus-
tice of the King's Bench, after his long being Lord Chief Baron
of the Exchequer ; living and dying, entering on, using, and
voluntarily surrounding his place of judicature with the most
universal love, and honor, and praise, that ever did English
subject in this age, or any that just history doth record."
372 REIGN OF CHARLES II.
CHAPTER XIX.
CHIEF JUSTICES FROM THE RESIGNATION OF SIR MAT-
THEW HALE TILL THE APPOINTMENT OF JEFFREYS.
CHAP. ON the resignation of Sir Matthew Hale the times
XIX
state of' were yet tolerably quiet, and, there being no Govern-
A.D.' i67& ment job to be done in the Court of King's Bench, a
disposition existed to appoint a respectable man to
succeed him ; but a great penury of learning and
ability was discovered in looking to those, either at
the bar or on the bench, whose fitness was canvassed,
and, at last, Lord Nottingham,1 who now held the
Great Seal, decided that he could not do better than
Sir Richard promote SIR RICHARD RAYNSFORD, a Puisne Judge of
Raynsford. tnjs court> to be Chief Justice. He was a man of good
family, fair estate, decent character, and agreeable
manners, with a sufficient portion of understanding
and learning to keep him above contempt.
careerar'y Descended from the Raynsfords of Raynsford, in
the county of Lancaster, he was of a branch of the
family settled at Dullington, in Northamptonshire.
He began life as a younger brother, and was bred
to the bar at Lincoln's Inn. His relations were
strong Cavaliers, and he himself entertained, in his
heart, a thorough hatred of Roundheads ; but, enter-
ing upon his professional career when the parliament
had gained a complete ascendency over the King,
I. Heneage Finch, the first Earl of Nottingham, was a lawyer and
politician. He was educated at Westminster School and Christchurch,
Oxford, and was called to the bar in 1645. In 1673 he was made Lord
Keeper of the Seal. Blackstone describes him as " a person of the
greatest abilities and most uncorrupted integrity, a thorough master and
zealous defender of the laws and constitution of his country." — Beeton's
Bio?. Diet.
LIFE OF CHIEF JUSTICE RAYNSFORD. 373
he deemed it more prudent to submit to the ruling
powers, and in 1653 he was chosen Deputy Recorder
of Northampton ; but he neither obtained nor sought
any farther preferment till the Restoration. By the
death of his elder brother he obtained possession of
the patrimonial property, reckoned worth 6oo/. a year,
and he was to have been made one of the " KNIGHTS
OF THE ROYAL OAK" if that order, which was in
contemplation, had been established. Although he
represented the county of Northampton in the Con-
vention Parliament and that which followed, and he
was looked upon rather as a country squire than a
lawyer, he had a liking for the profession, and he con-
tinued to attend the courts and to go the circuit. In NOV. 16;
1663 he was made a Baron of the Exchequer, and for He is made
six years he sat, almost dumb, listening to profound the Ex-
elucidations of the law from the lips of Lord Chief0
Baron Hale. It was then convenient that he should Feb. 6,
be transferred to the King's Bench,1 where he still A Puisne
maintained his reputation for good sense and discre- the King's
tion. No one having dreamed of his going higher,
the news of his appointment as Chief Justice of Eng- chief jus-
land caused considerable surprise ; but, on account April 12,
of his inoffensiveness and gentlemanlike deportment, *
there was a general inclination to support him and to
speak well of him.
He held his office two years,— till the Popish Plot 2 ^ l6?6~
1. 2 Keble, 469. On this occasion he took precedence of a King's
Bench Puisne who had been made a judge after him : " Et donque sans
autre ceremony, il seu sure le ba. supra Morton, quia, il fust Baron deve-
nant que Morton fust fait Justice." — I Sid. 408.
2. The Popish Plot was the name given to an imaginary conspiracy of
the Catholics in the reign of Charles II. Though, no doubt, there were
some projects for an attempt against the Government agitated by the
English Catholics, there is little doubt that the " plot " owed its existence
chiefly to the imagination of Titus Oates and other informers. Gates
was an English clergyman of bad character, who had become a Roman
Catholic, and joined the Jesuits at St. Omer. In 1678 he deposed before
a magistrate that he knew the particulars of a papist scheme, by which
374
REIGN OF CHARLES II.
CHAP, broke out, and the Government deemed it necessary
to substitute for him a tool better fashioned for doing
the horrid work then on hand to their mind — SIR
WILLIAM SCROGGS ; who, next to JEFFREYS, — and at a
very short distance from him, — is considered the most
infamous judge who ever sat on the English bench.
During Lord Chief Justice Raynsford's time, one
case of great public interest arose, and this he dis-
posed of very satisfactorily. The famous Earl of
Shaftesbury — having been sent to the Tower by the
House of Peers, under a warrant which merely stated
that it was " for high contempts committed against
this House," without specifying what the offence was
— sought to be discharged by a writ of habeas corpus,
He decides
the great
case of
privilege
on the
commit-
ment of
Lord
Shaftes-
bury.
the King was to be killed, a Roman Catholic ministry appointed, and a
massacre of the Protestants prepared with the assistance of a French
army. A few days afterwards Sir Edmondbury Godfrey, the magistrate
before whom Gates had sworn, was found murdered on Primrose Hill,
and a universal panic spread over the nation, which seemed for the time
to have lost its senses. The wildest stories of Gates and the informers
who arose were believed without question. Parliament met on Oct. 21,
and the Commons resolved, " that there hath been, and still is, a damnable
and hellish plot, carried on by papist recusants for assassinating the King,
the subverting the Government, and for rooting out the Protestant relig-
ion." The plot was taken up by Shaftesbury as a weapon against his
political opponents and the Duke of York. On the evidence of Gates,
Dangerfield, Carstairs, and Bedloe, many leading Roman Catholics were
tried, convicted, and imprisoned or executed, and Gates went so far as
to swear that he had heard the Queen give her consent to the King's mur-
der. On Nov. 30 an act was passed " for disabling papists from sitting in
either Houses of Parliament." In March of the following year (1679) the
bill to exclude the Duke of York from the throne was brought in, and
though Charles deferred it for that year by a dissolution, it was carried
through the Commons in November, 1680, and rejected in the House of
Lords. In December, 1680, Lord Stafford, the most distinguished of the
victims of the Popish Plot, was executed. But by this time a reaction
had set in. The judges would no longer convict on the evidence of the
informers, and the people were alienated by what seemed like a Whig
persecution of the Duke of York. In March, 1681, Charles dissolved his
fifth Parliament, and governed without one during the remainder of his
reign ; and later in the year one of the false witnesses, College, was put
on his trial, and condemned at Oxford, and Shaftesbury himself was pros-
ecuted by the Crown for treason, though the bill was thrown out by the
grand jury in London. — Low and Pulling 's Did. of Eng. Hist.
LIFE OF CHIEF JUSTICE RAYNSFOKD. 375
returnable in the King's Bench, — on the ground that
the warrant was illegal; and he and his counsel argued
very plausibly that every freeman was entitled to
know the charge on which he was deprived of his
liberty, and that what the Lords construed as a high
contempt might, in reality, be an act perfectly inno-
cent, or such as it was the duty of the party im-
prisoned to do under the obligation of a statute or of
the common law.
At this time Shaftesbury was highly obnoxious to
Danby,1 the Prime Minister, who earnestly desired
to detain his rival in custody ; otherwise, no one
can tell how the point of privilege would have been
settled. We are bound, however, to suppose that all
the Judges of the Court looked only to the just prin-
ciples on which parliamentary privilege is founded,
and to Chief Justice Newdigate's decision in Sir Rob-
ert Pye's case during the Commonwealth.
Raynsford, C. J. : "This Court has no jurisdiction of the His ruling
cause, and therefore we cannot take into consideration the form
of the return. We ought not to extend our jurisdiction beyond
its due limits, and the practice of our ancestors will not warrant
us in such an attempt. The consequence would be very mis-
chievous if this Court should deliver a member of the House of
Peers or Commons, committed for contempt, for thereby the
public business may be retarded; for it may be the commitment
was for evil behavior or indecent reflections on other members,
to the disturbance of the affairs of Parliament. The commit-
ment in this case is not for safe custody, but in execution of the
judgment given by the Lords for the contempt ; and, therefore,
if he were bailed he would be delivered out of execution. For
a contempt in facie curice* there is no other judgment. This
Court has no jurisdiction, and therefore the prisoner must be
remanded."3
So he lay in custody till he was obliged to make
1. Thomas Osborne, Duke of Leeds, best known as Earl Danby, was
minister to Charles II., and played an important part in the revolution
of 1688. — Green's History of the Eng. People, vol. iii. p. 393.
2. "In the presence of the court." 3. 6 St. Tr. 1171.
376 REIGN OF CHARLES II.
CHAP. an abject apology to obtain his liberation, and he
seemed for ever ruined as a public man — when the
Popish Plot suddenly made him more popular and
more powerful than ever.
He is re- The shadow of this coming event was the signal
"ro^This for the dismission of Sir Richard Raynsford— the first
instance of such an exercise of the prerogative during
the present reign.1 Although there had been before
him four Chief Justices of the King's Bench appointed
by Charles II. in rapid succession, the first three had
died in office, and the fourth had voluntarily resigned.
Raynsford was very unwilling to retire, but, being
plainly told that this step was necessary for the King's
service, he at last quietly submitted, and, as he had no
May, 1678. quarrel with the Government, the act of cashiering
him was carried through with all becoming delicacy.
He retired to his country-house at Dullington, and
— having founded almshouses there for the good of his
soul, to maintain old men and old women, with an
His death, allowance of 2s. weekly to each — he died on the iyth
"6e7g/7' of December, 1679, in the 75th year of his age. A
monument was erected to his memory in the parish
church, with an inscription from which it might be
supposed that he was a greater Chief Justice than
Coke, Hale, Holt, or Mansfield. I will give a short
specimen of it :
His epi- " Richard! Raynsford Militis
taph. Nuper de Banco Regis Capitalis Justiciarii, etc.
Eximii sui seculi decus,
Quern non cceca sors, at spectata virtus,
Ad illos quos ornavit honores evexit,
Quern summa in Deum pietas, in patriam charitas,
In Regem, in ecclesiam, inconcussa fides,
In jure dicendo erudila probitas,
Asylum bonis, flagellum malis," etc., etc.'
1. "T. T. 3 Car. II., Mundum. This term Sir Richard Raynsford
was removed, and Sir William Scroggs, one of the Justices of the Com-
mon Pleas, was made Lord Chief Justice of the King's Bench." (i Vent.
329.1
2. [" To the memory of Richard Raynsford, Knight, lately Chief Jus-
LIFE OF CHIEF JUSTICE SCROGGS. 377
Never was there a more striking contrast than be-
.
tween Chief Justice Raynsford and his immediate sue- Contrast
between
cessor. SCROGGS ' had excellent natural abilities, and Raynsford
might have made a great figure in his profession ; but successor,
was profligate in his habits, brutal in his manners,
with only one rule to guide him — a regard to what
lie considered his own interest, — without a touch of
humanity, — wholly impenetrable to remorse.
It was positively asserted in his lifetime, and it has|'orythat
been often repeated since, that he was the son of awasthe
son of a
butcher, and that he was so cruel as a judge because butcher.
he had been himself accustomed to kill calves and
lambs when he was a boy.
A popular ballad, published at the time when he
tice of the King's Bench, etc. He was an ornament to his generation,
one whom not chance, but high character and worth, led forth to those
honors which he adorned ; he was religious, patriotic, loyal to his King
and the Church, learned in the law, and upright in performing his duty ; a
refuge for the good, a lash for the wicked," etc.] — Bridges' Northampton,
i. 495.
I. The last four of the Chief Justices of the King's Bench in the reign
of Charles II. — Scroggs, Pemberton, Saunders, and Jeffreys — may be
cited as remarkable proofs of the general profligacy of the period, each
having been elevated to his high position notwithstanding the notorious
looseness of his early life. The obloquy which is attached to the name of
Scroggs may serve as a warning to every man to avoid obsequiousness to
those from whom favor flows. An apostate, from party spirit, ambition,
or personal interest, to principles he had once strongly advocated, will
ever be repudiated by both panics and defended by neither. If there are
any good points in his character they will be misconstrued or misrepre-
sented ; and if there is the least blot in his escutcheon he will be sure to
have
" all his faults observed,
Set in a note-book, learn'd and conned by rote,
To cast into his teeth."
Such was the fate of Sir William Scroggs, whose extravagant zeal for each
of the contending parties, as he supposed one or the other to be in the
ascendant, led to the usual consequence — his fall between both ; his name
being blackened so universally that scarcely any writer shows the slight-
est tenderness to his memory, except Anthony Wood in his " Athenae
Oxonienses " (iv. 115). Even his lineage does not escape calumny, and
his reputed low birth, which in the height of his popularity would be men-
tioned to his credit, is blazoned as an addition to his disgrace when the
tables are turned. — Foss's Lives of the Judges.
378 LIFE OF CHIEF JUSTICE SCROGGS.
CHAP. was pouring forth innocent blood like water, contained
these stanzas:
Contera- " A butcher's son's Judge Capital,
P0,r,al7 Poor Protestants to inthrall,
ballad to
this effect. And England to enslave, sirs ;
Lose both our laws and lives we must,
When to do justice we intrust
So known an arrant knave, sirs.
" His father once exempted was
Out of all juries ; why ? because
He was a man of blood, sirs.
And why the butcherly son (forsooth !)
Should now be judge and jury both,
Cannot be understood, sirs.
" The good old man, with knife and knocks,
Made harmless sheep and stubborn ox
Stoop to him in his fury ;
But the bribed son, like greasy oaph,
Kneels down and worships golden calf,
And massacres the jury." '
prose There are many grave prose authorities to the
authorities. same egect Roger North,2 who must have known
him familiarly for many years, and highly approved
of his principles, says, " This Sir William Scroggs was
of a mean extract, having been a butcher's son ; "3 and
Sir William Dugdale, supposed to be the most accu-
rate of genealogists, being not only a man of profound
antiquarian learning, but at the head of heraldry as
GARTER KING AT ARMS/ wrote, in answer to inquiries
1. This metrical broadside is entitled " Justice in Masquerade."
2. Roger North, a younger son of Lord Dudley North, and a brother
of Sir Dudley North, was born about 1650. He studied law, and became
steward of the courts to Archbishop Sheldon. He was author of several
works, the most important of which is " The Lives of Francis North,
Lord Keeper of the Great Seal, Sir Dudley North, and Rev. John North "
(1740-42). This is written in an affected, pedantic style, but contains
valuable matter. Died in 1733. — Thomas' Biog. Diet.
3. Life of North, i. p. 296.
4. The Order of the Garter is the highest British order of knighthood,
and one of the oldest and most illustrious of the military orders of knight-
hood in Europe. Most writers agree that its institution dates from a
tournament at Windsor, held April 23, 1344, to which Edward invited the
most illustrious knights. It was founded in honor of the Trinity, the
Virgin Mary, and St. Edward the Confessor ; and St. George, who was
already the tutelar saint of England, was considered its especial patron
and protector. — Appl. Encyc., vol. vii. p. 631.
ROGER NORTH.
AFTER SIR PETEK LEI.Y.
LIFE OF CHIEF JUSTICE SCROGGS. 379
on the subject from Wood, the author of the ATHENA,
" Sir William Scroggs was the son of a one-eyed
butcher near Smithfield Bars ; and his mother was a
big fat woman, with a red nose like an alewife."1
Yet it is quite certain that the usual solution of frcur°ggs's
Scroggs's taste for blood is a pure fiction, for he was Parentage-
born and bred a gentleman. Some said, jocularly,
that he was descended from the ancient Welsh family
Kilmaddocks of Kilmaddocks? but, in truth, his father
was a squire, of respectable family and good estate, in
Oxfordshire. Young Scroggs was several years at a
grammar-school, and he took a degree with some 1643.
credit in the University of Oxford, having studied first
at Oriel, and then at Pembroke, College. He was
intended for the Church, and, in quiet times, might
have died respected as a painstaking curate, or as
Archbishop of Canterbury. But, the civil war break- He carries
., .,, . arms as a
ing out while he was still under age, he enlisted in thecavaiier.
King's cause, and afterwards commanded a troop of
horse, which did good service in several severe skir-
mishes. Unfortunately, his morals did not escape the
taint which distinguished both men and officers on the
Cavalier side.
The dissolute habits he had contracted unfitted
him entirely for the ecclesiastical profession, and he
was advised to try his luck in the law. He had a He studies
law.
quick conception, a bold manner, and an enterprising
mind ; and prophecies were uttered of his great suc-
cess if he should exchange the cuirass for the long
robe. He was entered as a student at Gray's Inn, and
he showed that he was capable, by short fits, of keen
application ; but his love of profligacy and of expense
1. Athens, vol. iv. p. 117. Wood cautions his readers against giving
implicit credit to this statement, as Dugdale had a spite against Scroggs,
who had refused to pay certain fees to the College of Arms, which had
been demanded of him when he was made a knight.
2. Kill — mad — ox.
38o
REIGN OF CHARLES II.
CHAP.
XIX.
June 25,
1669.
Hebe-
comes a
Sergeant.
Nov. 21.
A.D. 1669 —
1676.
still continued, and both his health and his finances
suffered accordingly.
However, he contrived to be called to the bar ; and
some of his pot companions being attorneys, they
occasionally employed him in causes likely to be won
by a loud voice and an unscrupulous appeal to the
prejudices of the jury. He practised in the King's
Bench, where, although he now and then made a
splashy speech, his business by no means increased in
the same ratio as his debts. " He was," says Roger
North, " a great voluptuary, his debaucheries egre-
gious, and his life loose ; which made the Lord Chief
Justice Hale detest him." Thinking that he might
have a better chance in the Court of Common Pleas,
where the men in business were very old and dull, he
took the degree of the coif, and he was soon after
made a King's Sergeant. Still, however, he kept com-
pany with Ken, Guy,1 and the high-Court rakes, and
his clients could not depend upon him. His visage
being comely, and his speech witty and bold, he was a
favorite with juries, and sometimes carried off wonder-
ful verdicts ; but, when he ought to have been con-
sulting in his chamber in Sergeants' Inn, he was in
a tavern or gaming-house, or worse place, near St.
James's Palace.2 Thus his gains were unsteady, and
1. Henry Guy (1631-1710) was a politician. His first appointment
about the Court was to the post of Cupbearer to the Queen, but he was soon
admitted among the boon companions of Charles II. On the resignation
in 1679 of Colonel Silas Titus, he became Groom of the Bedchamber, but
sold his office by December of that year. In March, 1679, he was ap-
pointed Secretary to the Treasury, and the payments from the public funds
passed through his hands until Christmas, 1688. — Stephen s National Biog.
2. Some quarter of a mile to the westward of Charing Cross, there
stood in very early times a hospital for leprous women ; it was a religious
foundation, and was dedicated to St. James the Less, Bishop of Jerusalem.
Henry VIII. set his covetous eyes upon the place, and pulled down the
old structure, and erected a stately mansion. " St. James's Manor House,"
as it was long called, has ever since been part and parcel of the palatial
establishment of the kings of England. But it was not until the burning
of Whitehall in the reign of William III. that it became the royal resi-
LIFE OF CHIEF JUSTICE SCROGGS. 381
the fees which he received were speedily spent in dis- C,H£P-
sipation, so that he fell into a state of great pecuniary
embarrassment. On one occasion, he was arrested by He is ar-
rested for
a creditor in Westminster Hall as he was about to debt,
enter his coach. The process being out of the King's
Bench, he complained to that Court of a breach of his
privileges as a Sergeant ; but Lord Chief Justice Hale
refused to discharge him. He afterwards pleaded his
privilege, and brought an action for what he called
the illegal arrest, contending that, as a Sergeant-at-
law, he could only be regularly sued in the Court of
Common Pleas. The Judges decided unanimously
against him, Hale observing, " Although Sergeants
have a monopoly of practice in the Common Pleas,
they have a right to practise, and do often practise, at
this bar; and if we were to assign one of them as
counsel, and he were to refuse to act, we should make
bold to commit him to prison." l
Meanwhile, Sergeant Scroggs8 was in high favor
dence — the scene of levees and drawing-rooms — the recognized seat of
royalty. William resided mostly at Hampton Court, though he occasion-
ally held councils at St. James's, and it was regarded as his town house.
But Anne constantly resided there when in town ; Caroline, Queen of
George II., died there ; George IV. was born there. "The Court,"
technically speaking, was held at St. James's during the whole reign of
George III. (it still continues to be held there), but the domestic town
residence of that monarch was Buckingham House. St. James's is now
merely the pavilion containing the apartments used on occasions of state
solemnity. — Knight's London, vol. ii. p. 369.
1. Freeman, 389 ; 2 Lev. 129 ; 3 Keb. 424, 439, 440; Roger North's
Lives of the Norths, i. 137.
2. Lord Danby was his principal patron, and to his influence Scroggs
entirely owed his next advances, as he had no reputation in his profession.
On October 23, 1676, a seat on the bench of the Common Pleas was
given to him, and nineteen months afterwards Sir Richard Raynsford was
discharged to make way for him as Lord Chief Justice of the King's Bench,
to which he was appointed on May 31, 1678. The Reports are so silent
as to his previous professional career that the three years during which he
presided in this court may be almost said to contain the whole history of
his legal life. It presents such a combination of ignorance, arrogance,
and brutality as fully to justify the censure almost universally pronounced
upon the judicial appointments of the latter part of this reign. — Fosss
Lives of the Judges.
382 REIGN OK CHARLES II.
CHAP. wjth Lord Shaftesbury's enemies, who, on the commit-
ment of that turbulent leader to the Tower for breach
of privilege, had gained a temporary advantage over
him. Through the agency of Chiffinch,1 superintend-
ent of the secret intrigues of every description which
were carried on at Whitehall, he had been introduced
troducedtoto Charles II., and the merry monarch took pleasure
Charles II. . „,. ,
in his licentious conversation. What was of more
importance to his advancement, he was recommended
to the Earl of Danby, the reigning Prime Minister,
as a man that might be useful to the Government
if he were made a judge. In consequence, on the
He is made 23d of October, 1676, he was knighted, and sworn
judge of in a Justice of the Court of Common Pleas. Sir
mon Pleas. Allan Broderick, in a letter to " the Honorable Law-
i676.23' rence Hyde," written a few days after, says, " Sir
William Scroggs, on Monday, being admitted Judge,
made so excellent a speech that my Lord Northamp-
ton, then present, went from Westminster to Whitehall
immediately, and told the King he had, since his
happy restoration, caused many hundred sermons to
be printed, all which together taught not the people
half so much loyalty ; therefore, as a sermon, desired
his command to have it printed and published in all
the market towns in England."5
A.D. 1678. Mr. Justice Scroggs gave himself little trouble with
He under-
minesLordlaw business that came before the Court; but, in
Chief Jus- ... ... , ,
tice Rayns- addressing grand juries on the circuit, he was loud
and eloquent against the proceedings of the " country
I.William Chiffinch (i6oa?-i688) was Closet-keeper to Charles II.
His employment showed itself to be of a disreputable nature as time wore
on, for he was a time-server and libertine, wasteful, unscrupulous, open
to bribery and flattery, ingratiating himself into the confidence of courtiers
and mistresses, delighting in intrigue of every kind except political plots ;
though even with these he sometimes meddled, but seldom skilfully.
Above all predecessors, he carried the abuse of backstairs influence to
scientific perfection. — Rose's Bias?. Diet.
2. Correspondence of the Earls of Clarendon and Rochester, vol. i.
p. 2.
LIFE OF CHIEF JUSTICE SCROGGS. 383
party," and he still continued to be frequently in the CS^'
circle at Whitehall, where he took opportunities not
only to celebrate his own zeal, but to sneer at Sir John
Raynsford, the Chief Justice of the King's Bench,
whose place he was desirous to fill.1 Chiffinch, and Chiffinch's
patronage.
his other patrons of the backstairs, were in the habit
of sounding his praise, and asserting that he was the
only man who, as head of the King's Bench, could
effectually cope with the manoeuvres of Shaftesbury.
This unconquerable intriguer, having been discharged
from custody, was again plotting against the Govern-
ment, was preparing to set up the legitimacy of Mon-
mouth, and was asserting that the Duke of York should
be set aside from the succession to the throne and
prosecuted as a Popish recusant. There had been a
reluctance to exercise the prerogative of cashiering
judges, which had been dormant during the long reign
of Elizabeth, and the abuse of which had caused such
scandal in the reigns of James I. and Charles I. But
these scruples being once overcome were wholly dis-
regarded. From this time the system recommenced Recom-
J mencement
of clearing the bench for political reasons, and it was °f clearing
the bench
continued till, the vilest wretch the profession of the for p°'it'-
cal reasons.
law could furnish being Chief Justice of England, his
tenure of the office became in some degree inde-
pendent.2
The immediate cause of Raynsford's removal was
the desire of the Government to have a Chief Justice
of the King's Bench on whose vigor and subserviency
reliance could be placed, to counteract the appre-
hended machinations of Shaftesbury.
On the 3ist of May, 1678, Sir William Scroggs was
1. In consequence of the intrigues of Puisne Judges desirous of be-
coming Chiefs in the reigns of Charles II. and James II., the rule was
laid down at the Revolution that a Puisne Judge is only to attend one
levee on his appointment, and is never again to appear at Court.
2. Sir Robert Wright, James II. 's last Chief Justice, who presided at
the trial of the Seven Bishops.
384 REIGN OF CHARLES II.
CHAP, sworn into the office,1 and he remained in it for a
Scroggsis period of three years. How he conducted himself in
made Chief ~ * . .
justice of civil suits is never once mentioned, for the attention of
the King's . .
Bench. mankind was entirely absorbed by his scandalous mis-
ioys.31' behavior as a Criminal Judge. He is looked to with
more loathing, if not with more indignation, than
Jeffreys, for in his abominable cruelties he was the
sordid tool of others, and in his subsequent career he
had not the feeble excuse of gratifying his own pas-
sions or advancing his own interests.
Although quite indifferent with regard to religion,
and ready to have declared himself a Papist, or a
Puritan, or a Mahometan, according to the prompting
The part of his superiors, — finding that the policy of the Govern-
Llm "e-y ment was to outbid Shaftesbury in zeal for Protestant-
theCpopish ism, he professed an implicit belief in all the wonders
revealed by Titus Gates,2 in the murder of Sir Ed-
mundbury Godfrey3 by Papists, and in the absolute
necessity for cutting off without pity all those who
1. I Vent. 329 ; Sir Thomas Raynard, 244.
2. Titus Oates, an infamous character, born about l6ig. He was the
son of a Baptist preacher, and received his education at Merchant Taylors'
School, whence he removed to Cambridge, and afterwards took orders.
In 1677 he pretended to turn Catholic, but on his return to England he
declared himself a Protestant, and, in conjunction with one Dr. Ezrael
Tongue, gave information of a pretended Popish Plot ; which met with
too ready a belief, and many innocent persons were executed. Oates was
rewarded with a pension of I.2OO/. a year ; but when James II. came to
the throne he was found guilty of perjury, pilloried, whipped, and ordered
to be imprisoned for life. In the reign of William III. he obtained his
liberty and a pension of 4OO/. a year. Died July 23, 1705. — Cooper's Biog.
Diet.
3. Sir Edmundbury Godfrey was the justice of the peace to whom
Oates gave formal information of the Popish Plot. Not very long after-
wards, there was found in a ditch the dead body of Godfrey with his own
sword thrust into it, and some marks of strangulation about the neck. A
cry was immediately raised by Oates and Bedloe that the Papists had
atrociously murdered him because he was a Protestant, and because he
had received Oates's deposition. The mystery of his death remains un-
solved. The most probable theory is that Oates and his desperate
associates caused Godfrey to be murdered to give color to their false
allegations, and to excite popular opinion in favor of their agitation. — •
Pike's History of Crime in Eng., vol. ii. p. 224.
LIFE OF CHIEF JUSTICE SCROGGS. 385
were engaged in the nefarious design to assassinate C,?AP-
the King, to burn London, and to extinguish the flames
with the blood of Protestants. He thought himself to
be in the singularly felicitous situation of pleasing the
Government while he received shouts of applause from
the mob. Burnet, speaking of his appointment, says,
" It was a melancholy thing to see so bad, so ignorant,
and so poor a man raised up to that great post. Yet
he, now seeing how the stream ran, went into it with
so much zeal and heartiness that he was become the
favorite of the people."1
The first of the Popish Plot judicial murders — NOV. 20.
which are more disgraceful to England than the
massacre of St. Bartholomew's is to France — was thatMurderof
of Stayly, the Roman Catholic banker. Being: tried at £uyiy, the
Roman
the bar of the Court of King's Bench, Scroggs, ac-Cat£olic
cording to the old fashion, which had gone out during
the Commonwealth, repeatedly put questions to the
prisoner, attempting to intimidate him, or to involve
him in contradictions, or to elicit from him some in-
discreet admission of facts. A witness having stated
that " he had often heard the prisoner say he would
lose his blood for the King, and speak as loyally as
man could speak," Scroggs exclaimed, "That is, when
he spoke to a Protestant ! " In summing up, having run
himself out of breath by the violence with which he
declaimed against the Pope and the Jesuits, he thus
apologized to the jury :
" Excuse me, gentlemen, if I am a little warm, when perils Scroggs's
are so many, murders so secret, that we cannot discover the up™"
murderer of that gentleman whom we all knew so well.2 When
things are transacted so closely, and our King is in great danger,
1. Own Times, ii. 69. He thus introduces our hero : "The Lord
Chief Justice at that time was Sir William Scroggs, a man more valued
for a good readiness in speaking well than either for learning in his pro-
fession or for any moral virtue. His life had been indecently scandalous,
and his fortunes were very low."
2. Sir E. Godfrey.
386 REIGN OF CHARLES II.
CHAP, and religion is at stake, I may be excused for being a little warm.
You may think it better, gentlemen, to be warm here than in
Smithfield. Discharge your consciences as you ought to do. If
guilty, let the prisoner take the reward of his crime, for per-
chance it may be a terror to the rest. I hope I shall never go
to that heaven where men are made saints for killing kings."
The verdict of guilty being recorded, Scroggs, C. J., said,
"Now, you may die a Roman Catholic ; and, when you come
to die, I doubt you will be found a priest too. The matter,
manner, and all the circumstances of the case make it plain ;
you may harden your heart as much as you will and lift up
your eyes, but you seem, instead of being sorrowful, to be ob-
stinate. Between God and your conscience be it ; I have noth-
ing to do with that ; my duty is only to pronounce judgment
upon you according to law — you shall be drawn to the place of
execution, where you shall be hanged by the neck, cut down
alive," etc., etc.
Stayiy's The unhappy convict's friends were allowed to
body sub- rj
jected to give him decent burial ; but, because they said a mass
indignities.
for his soul, his body was, by order of Lord Chief Jus-
tice Scroggs, taken out of the grave, his quarters
were fixed upon the gates of the City, and his head, at
the top of a pole, was set on London Bridge. So
proud was Scroggs of this exploit, that he had an
account of it written, for which he granted an IMPRI-
MATUR,' signed with his own name.2
A.D. 1679. I must not run the risk of disgusting my readers
murders by a detailed account of Scroggs's enormities on the
committed J .
by Scroggs. trials of Coleman, Ireland, VVhitebread, Langhorn,
and the other victims whom he sacrificed to the popu-
lar fury under pretence that they were implicated in
the Popish Plot. Whether sitting in his own court at
Westminster, or at the Old Bailey in the City of Lon-
don, as long as he believed that Government favored
the prosecutions, by a display of all the unworthy arts
1. " Let it be printed" — a license to print a book.
2. 6 St. Tr. 1501-1512. For this he probably received a good sum of
money.
TITUS GATES.
LIFE OF CHIEF JUSTICE SCROGGS. 387
of cajoling and intimidation he secured convictions.
A modern historian, himself a Roman Catholic priest,
says, with temper and discrimination, " The Chief Jus-
tice Scroggs, a lawyer of profligate habits and inferior
acquirements, acted the part of prosecutor rather than
of judge. To the informers he behaved with kindness,
even with deference, suggesting to them explanations,
excusing their contradictions, and repelling the impu-
tation on their characters ; but the prisoners were
repeatedly interrupted and insulted ; their witnesses
were browbeaten from the bench, and their condem-
nation was generally hailed with acclamations, which
the Court rather encouraged than repressed." '
Meanwhile the Chief Justice went the circuit; andTr'a'°fa
Popish
although the Popish Plot did not extend into the prov-Pr>est.
inces, it may be curious to see how he demeaned him-
self there. Andrew Bromwich being tried before him
capitally, for having administered the sacrament of the
Lord's Supper according to the rites of the Church of
Rome, thus the dialogue between them proceeded :
Prisoner : "I desire your Lordship will take notice of one Dialogue
thing, that I have taken the oaths of allegiance and supremacy, scrogg"
and have not refused any thing which might testify my loyalty. " an.d the
Scroggs, C. J. : "That will not serve your turn; you priests
have many tricks. What is that to giving a woman the sacra-
ment several times ? " Prisoner : ' ' My Lord, it was no sacra-
ment unless I be a priest, of which there is no proof." Scroggs :
' ' What ! you expect we should prove you a priest by witnesses,
who saw you ordained ? We know too much of your religion ;
no one gives the sacrament in a wafer, except he be a Popish
priest : you gave that woman the sacrament in a wafer ; ergo,
you are a Popish priest." Thus he summed up : "Gentlemen
of the Jury, I leave it upon your consciences whether you will let
priests escape, who are the very pests of Church and State ; you
had better be rid of one priest than three felons ; so, gentle-
men, I leave it to you. "
I. Lingard, xii. 161. See 7 St. Tr. 1-591.
388 REIGN OF CHARLES II.
CHAP. After a verdict of GUILTY, the Chief Justice said,
The ver- » Gentlemen, you have found a good verdict, and if I
diet and
sentence, had been one of you I should have found the same
myself." He then pronounced sentence of death,
describing what seemed to be his own notion of the
Divine Being, while he imputed this blasphemy to the
prisoner, — " You act as if God Almighty were some
omnipotent mischief, that delighted and would be
served with the sacrifice of human blood." *
A.D. 1679, Scroggs was more and more eager, and " ranted on
that side more impetuously," 2 when he observed that
Lord Shaftesbury, who, although himself too shrewd
to believe in the Popish Plot, had been working it
furiously for his own purposes, was taken into office
on the formation of Sir William Temple's3 new scheme
of administration, and was actually made President of
the Council. But he began to entertain a suspicion
that the King had been acting a part against his incli-
nation and his judgment, and, having ascertained the
real truth upon this point, he showed himself equally
versatile and violent by suddenly going over to the
opposite faction. Roger North gives the following
racy account of his conversion :
1. 7 St. Tr. 715-730.
2. Roger North.
3. On the impeachment of Danby in 1679, and his commitment to the
Tower, Charles II. looked to Temple as the only man who could help
him to weather the storm caused by the Popish Plot. Temple's proposal
was that a means should be adopted for including all parties in the gov-
ernment, and for this purpose proposed that the existing Privy Council
should be dissolved, and that a new Privy Council of thirty members
should be appointed, half of them to be. great officers of state, and the
other half independent noblemen and gentlemen of the greatest weight
in the country ; that the King should pledge himself to govern by the
constant advice of this body, to suffer all his affairs of every kind to be
freely dilated there, and not to reserve any part of the public business
for a secret committee. An attempt was made to carry out this scheme,
but it was soon found to be unworkable. The Council was too large
for practical purposes, and there was no party tie to bind the members
tog ther. — Low and Pulling' s Did. of Eng. Hist.
LIFE OF CHIEF JUSTICE SCROGGS. 389
" It fell out that when the Earl of Shaftesbury had sat some
short time in the Council, and seemed to rule the roast, yet Scroggs
Scroggs had some qualms in his politic conscience; and com- 5id^f es
ing from Windsor in the Lord Chief Justice North's coach, he
took the opportunity and desired his Lordship to tell him seri-
ously if my Lord Shaftesbury had really so great power with the
King as he was thought to have. His Lordship answered quick,
'No, my Lord, no more than your footman hath with you.'
Upon that the other hung his head, and, considering the matter,
said nothing for a good while, and then passed to other dis-
course. After that time he turned as fierce against Gates and
his plot as ever before he had ranted for it."1
The first Popish Plot case which came on after this *;"• l68°-
conversion was the trial of Sir George Wakeman, the cures th«
acquittal of
Queen's physician, against whom Gates and Bedloe 2 sir George
Wakeman.
swore as stoutly as ever ; making out a case which
implicated, to a certain degree, the Queen herself.
But Chief Justice Scroggs now sneered at the mar-
vellous memory or imagination of Oates ; and, taking
very little notice, in his summing up, of the evidence
of Bedloe, thus concluded :
" If you are unsatisfied upon these things put together, and,
well weighing, you think the witnesses have not said true, you
will do well to acquit." Bedloe : " My Lord, my evidence is not
right summed up. " Scroggs, C. J.: "I know not by what
authority this man speaks. Gentlemen, consider of your ver-
dict."
An acquittal taking place, not only were Oates and Attacks on
- Chief Jus-
Bedloe in a furious rage, but the mob were greatly tice
disappointed, for their belief in the plot was still un-
1. Life of Guilford, i. 297.
2. William Bedloe, who assumed the title of Captain, was an infamous
adventurer of low birth, who had travelled over a great part of Europe
under different names and disguises, and had passed himself off with
several ignorant persons as a man of rank and fortune. Encouraged by
the success of Titus Oates, he turned King's evidence, gave an account of
the murder of Sir Edmundbury Godfrey, and added many circumstances
to the narrative of the former. A reward of joo/. was voted to Bedloe
by the House of Commons. Died Aug. 20, 1680. — Cooper s Biog. Diet.
390 REIGN OF CHARLES II.
CHAP, shaken, and Scroggs, who had been their idol a few
hours ago,1 was in danger of being torn in pieces by
them. Although he contrived to escape in safety to
his house, he was assailed next morning by broadsides,
ballads sung in the streets, and libels in every imagina-
ble shape.
On the first day of the following term, he bound
over in open court the authors, printers, and singers of
some of the worst of them, and made the following
speech :
Eloquent ' ' I would have all men know, that I am not so revengeful in
hmTin his my nature, nor so nettled with this aspersion, that I could not
own vindi- jiave passed by this and more ; but the many scandalous libels
cation. *
that are abroad, and reflect on public justice as well as upon my
private self, make it the duty of my place to defend one, and the
duty I owe to my reputation to vindicate the other. This is the
properest occasion for both. If once our courts of justice come
to be awed or swayed by vulgar noise, it is falsely said that men
are tried for their lives or fortunes ; they live by chance, and
enjoy what they have as the wind blows, and with the same cer-
tainty. Such a base fearful compliance made Felix, willing to
please the people, leave Paul bound. The people ought to be
pleased with public justice, and not justice seek to please the
people. Justice should flow like a mighty stream ; and if the
rabble, like an unruly wind, blow against it, the stream they
made rough will keep its course. I do not think that we yet
live in so corrupt an age that a man may not with safety be just,
and follow his conscience ; if it be otherwise, we must hazard
our safety to preserve our integrity. As to Sir George Wake-
man's trial, I am neither afraid nor ashamed to mention it. I
will appeal to all sober and understanding men, and to the long
robe more especially, who are the best and properest judges in
such cases, for the fairness and equality of my carriage on that
occasion. For those hireling scribblers who traduce me, who
write to eat and lie for bread, I intend to meet with them another
way, for, like vermin, they are only safe while they are secret.
And let those vipers, those printers and booksellers by whom
I. " By his zeal in the Protestant cause he gained for a while an
universal applause throughout the whole nation." — Athena, iv. 116.
WILLIAM BEDLOE.
LIFE OF CHIEF JUSTICE SCROGGS. 39!
they vend their false and braided ware, look to it ; they shall CHAP.
know that the law wants not power to punish a libellous and Eloquent
licentious press, nor I resolution to put the law in force. And j^fin his
this is all the answer fit to be given (besides a whip) to those ow» vindi-
hackney writers and dull observators that go as they are hired or continued,
spurred, and perform as they are fed. If there be any sober and
good men that are misled by false reports, or by subtlety deceived
into any misapprehensions concerning that trial or myself, I
should account it the highest pride and the most scornful thing
in the world if I did not endeavor to undeceive them. To such
men, therefore, I do solemnly declare in the seat of justice,
where I would no more lie or equivocate than I would to God
at the holy altar, I followed my conscience according to the best
of my understanding in all that trial, without fear, favor, or
reward, without the gift of one shilling, or the value of it directly
or indirectly, and without any promise or expectation whatsoever.1
Do any think it an even wager, whether I am the greatest villain
in the world or not — one that would sell the life of the King,
my religion, and country, to Papists for money? He that says
great places have great temptations, has a little if not a false
heart himself. Let us pursue the discovery of the plot in God's
name, and not balk anything where there is suspicion on reason-
able grounds ; but do not pretend to find what is not, nor count
him a turncoat that will not betray his conscience nor believe
incredible things. Those are foolish men who think that an
acquittal must be wrong, and that there can be no justice with-
out an execution."2
Many were bound over ; but I do not discover more
than one prosecution brought to trial, — that against May 29,
Richard Radly, who was convicted of speaking scan-
dalous words of the Lord Chief Justice Scroggs, and
fined 2oo/.
When the Earl of Castlemaine3 — the complaisant
1. From this asseveration a suspicion arises of pecuniary corruption,
but I believe that Scroggs was swayed in this instance by a disinterested
love of rascality.
2. 7 St. Tr. 687-706.
3. Roger Palmer. Earl of Castlemain, was son of Sir James Palmer,
of Dorney, Buckinghamshire, and was created Earl of Castlemain by
Charles II. He was very zealous in promoting the Catholic interest,
392 REIGN OF CHARLES II.
CHAP, husband of the King's mistress — was brought to trial
Acquittal for being concerned in the Plot, Scroggs was eager to
of Castie- get him off, still despising popular clamor. Bedloe
being utterly ruined in reputation, Dangerfield1 was
now marched up, as the second witness, to support
Gates. He had been sixteen times convicted of infa-
mous offences ; and, to render him competent, a pardon
under the Great Seal was produced. But the Chief
Justice was very severe upon him, saying, in summing
up, to the jury, " Whether this man be of a sudden
become a saint because he has become a witness, I
leave that to you to consider. Now I must tell you,
though they have produced two witnesses, if you
believe but one, this is insufficient. In treason, there
being two witnesses, the one believed, the other disbe-
lieved, may there be a conviction ? I say, no. Let us
deal fairly and aboveboard, and so preserve men who
are accused and not guilty." The defendant being
acquitted, the Chief Justice was again condemned as a
renegade.8
and this was the cause of his being prosecuted at the time of Oates's plot,
when, however, he was acquitted. After James II. ascended the throne,
Lord Castlemain was distinguished on several occasions, but principally
by being sent on an embassy to Pope Innocent XI. An account of this
embassy, illustrated with splendid engravings, was afterwards published
in Italian and English by Michael Wright, painter, and major-domo to
the Earl. After the Revolution his Lordship was confined in the Tower
for some time, and on gaining his liberty he retired to the Continent for
several years, but died in Wales, 1705. — Cooper's Biog. Diet.
1. Thomas Dangerfield (d. 1685), the inventor of the "Meal-tub
Plot," was a man of profligate life, who had been more than once
branded, whipped, and imprisoned for felony. His disclosures implicat-
ing the Presbyterian leaders were not believed, and his retractation and
subsequent accusation of the Catholics led fortunately to no judicial mur-
ders, as in the case of his fellow-informers Oates and Bedloe. On the
accession of James II. Dangerfield was convicted of libel in connection
with the Meal-tub Plot, and was put in the pillory and whipped. On
his way back to prison he was brutally assaulted by a Roman Catholic
lawyer named Francis, and a few days afterwards died. — Low and
Pulling' s Diet, of Eng. htsi.
2. 7 St. Tr. 1067-1112.
LIFE OF CHIEF JUSTICE SCROGGS. 393
He further made himself obnoxious to the charge
of having gone over to the Papists, by his conduct on £f
the trial of Mrs. Elizabeth Cellier,1 who, if she hadCellier-
been prosecuted while he believed that the Govern-
ment wished the Plot to be considered real, would
unquestionably have been burnt alive for high treason,
but now was the object of his especial protection and
favor. The second witness against her was Danger-
field, who, when he was put into the box, before any
evidence had been given to discredit him, was thus
saluted by Chief Justice Scroggs :
"We will not hoodwink ourselves against such a fellow as Dialogue
this, that is guilty of such notorious crimes. A man of mod- gerfield.
esty, after he hath been in the pillory, would not look a man in
the face. Such fellows as you are, sirrah, shall know we are
not afraid of you. It is notorious enough what a fellow this is.
I will shake all such fellows before I have done with them."
Dangerfield: "My Lord, this is enough to discourage a man
from ever entering into an honest principle." Scroggs, C. J. :
"What? Do you, with all mischief that hell hath in you, think
to have it in a court of justice ? I wonder at your impudence,
that you dare look a court of justice in the face, after having
been made appear so notorious a villain. Come, gentlemen of
the jury, this is a plain case ; here is but one witness in a case
of treason ; therefore lay your heads together, and say not guilty."
Mrs. Cellier was set at liberty, and Dangerfield was
committed to occupy her cell in Newgate.8
1. The Meal-tub Plot (1679) was a pretended conspiracy fabricated
by the informer Dangerfield, who hoped thereby to emulate Dates and
Bedloe. He declared that the Presbyterians were conspiring to raise an
army and establish a republic. At first he was believed, but his impos-
ture being discovered, he was committed to Newgate, when he suddenly
turned round and declared that the pretended conspiracy was an impos-
ture concocted by the Papists to hide a real Popish Plot, which had for
its object the murder of the King. The papers relating to this plot were,
he declared, concealed in a Meal-tub in the house of Mrs. Cellier, a
Roman Catholic lady, who was tried with Lady Powys for the alleged
plot, but acquitted. — Low and Pulling' s Diet, of Eng. Hist.
2. 7 St. Tr. 1013-1055.
394
REIGN OF CHARLES II.
CHAP. When holding assizes in the country, he took every
Chief ' opportunity of proclaiming his slavish doctrines.
Atkyns is Going the Oxford Circuit with Lord Chief Baron
forPoPPos- Atkyns,1 he told the grand jury that a petition from
sJroggs's the Lord Mayor and citizens of London to the King,
doarines. for calling a parliament, was high treason. Atkyns, on
the contrary, affirmed " that the people might petition
the King, and, so that it was done without tumult,
it was lawful." Scroggs, having peremptorily denied
this, went on to say that " the King might prevent
printing and publishing whatever he chose by procla-
mation." Atkyns mildly remarked, " that such matters
were fitter for parliament, and that, if the King could
do this work of parliament, we were never like to have
parliaments any more." Scroggs, highly indignant,
sent off a despatch to the King, stating the unconsti-
tutional and treasonable language of Chief Baron At-
kyns. This virtuous Judge was in consequence super-
seded, and remained in a private station till he was
reinstated in his office after the Revolution.2
ingenious Before Scroggs was himself prosecuted and dis-
extinguish missed from his office with disgrace, he swelled the
ofeth'e ' y number of his delinquencies by an attack on the liberty
of the press, which was more violent than any that had
ever been attempted by the Star Chamber, and which,
if it had been acquiesced in, would have effectually
established despotism in the country. Here he was
directly prompted by the Government, and it is sur-
prising that this proceeding should so little have
1. Sir Robert Atkyns, an eminent English lawyer and judge, a son of
Edward Atkyns, who was a Baron of the Exchequer, was born in Glouces-
tershire hi 1621. He was knighted at the coronation of Charles II., and
appointed a Judge of the Court of Common Pleas in 1672. Refusing to be
subservient to the designs of the corrupt Court, he resigned or was re-
moved in 1680. After the Revolution which dethroned James II. he was
appointed Chief Baron of the Exchequer in 1689. Died in 1709. —
Thomas' Biog. Diet.
2. 5 Parl. Hist. 309.
LIFE OF CHIEF JUSTICE SCROGGS. 395
attracted the notice of historians who have dwelt upon
the arbitrary measures of the reign of Charles II.
The object was to put down all free discussion, and
all complaints against misrule, by having, in addition
to a licenser, a process of injunction against printing, —
to be summarily enforced, without the intervention of
a jury, by fine, imprisonment, pillory, and- whipping.
There was then in extensive circulation a newspaper
called "The Weekly Pacquet of Advice from Rome, ^™£ly
or the History of Popery," .which reflected severely ^"f of
upon the religion now openly professed by the Duke£om „
of York and secretly embraced by the King himself.
In Trinity Term, 1680, an application being made to
the Court of King's Bench on the ground that this
newspaper was libellous, Scroggs, with the assent of
his brother Judges, granted a rule absolute in the first
instance, forbidding the publication of it in future.1
The editor and printer being served with the rule, the
journal was suppressed till the matter was taken up in
the House of Commons, and Scroggs was impeached.
The same term, he gave the crowning proof of his frcur°tfftses
servility and contempt of law and of decency. Shaftes-theattemPt
to indict
bury, to pave the way for the Exclusion Bill,2 resolved the Duke
J of York as
to prosecute the Duke of York as a " Popish recusant." a Popish
recusant by
The heir presumptive to the throne was clearly liable discharg-
to this proceeding and to all the penalties, forfeitures, gnrandejury.
1. " Die Mercurii proxima post tres septimanas Sanctae Trinitatis Anno
32 Car. II. Regis, Ordinatum est quod Liber intitulat, The Weekly
Pacquet of Advice from Rome, or the History cf Popery, non ulterius im-
primatur vel publicetur per aliquam personam quamcunque. Pvr CUR."
[" On the Wednesday following the three weeks of Holy Trinity, in the
32d year of the reign of Charles II., it was ordered that a Book bearing the
title, ' The Weekly Pacquet of Advice from Rome, or the History of
Popery,' should not be published by any person whomsoever."] — 8 SI.
Tr. 198.
2. The Exclusion Bill was first brought into the House of Commons
in 1679. It proposed that the crown should descend to the heirs of the
Duke of York, on Charles's demise, in the same manner as if the Duke
were himself dead.
REIGN OF CHARLES II.
CHAP. and disqualifications which it threatened, for he had
been educated a Protestant, and, having lately returned
from torturing the Covenanters in Scotland, he was in
the habit of ostentatiously celebrating the rites of the
Romish religion in his chapel in London. An inclict-
june 16. ment against him was prepared in due form, and this
was laid before the grand jury for the county of Mid-
dlesex by Lord Shaftesbury, along with Lord Russell,1
Lord Cavendish, Lord Grey de Werke, and other
members of the country party. This alarming news
being brought to Scroggs while sitting on the bench,
he instantly ordered the grand jury to attend in court.
The bailiff found them examining the first witness in
support of the indictment; but they obeyed orders.
As soon as they had entered the court, the Chief Jus-
tice said to them, " Gentlemen of the grand jury, you
are discharged, and the country is much obliged to
you for your services."
It would have been consolatory to us, in reading an
account of the base actions of Scroggs, if we could
have looked forward to his suffering on a scaffold like
Tresilian, or dying ignominiously in the Tower of
London like Jeffreys. He escaped the full measure of
retribution which he deserved, but he did not go un-
punished.
There were two classes whom he had offended, of
very different character and power, — the witnesses in
support of the Popish Plot, and the Exclusionist
Charges
against
Scroggs
before the
King in
Council.
l. William Lord Russell (1630-1683) appears as one of the chiefs of
the Opposition towards the close of the Long Parliament of Charles II.
In 16*3 Russell was accused of participation in the Rye House Plot (a
plot to murder the King and the Duke of York), though it is almost cer-
tain that Russell and his friends had merely discussed the possibility of a
popular agitation for a new Parliament, and did not contemplate the em-
ployment of force. He was tried for high treason at the Old Bailey on
July 13, 1683, declared guilty, and executed on the 2ist, refusing to the
last, in spite of the arguments of Tillotson and Burnet, to assent to the
doctrine of non-resistance. — Appl. Encyc. of Biog.
LIFE OF CHIEF JUSTICE SCROGGS. 397
leaders. The first began by preferring Articles against C,HAP.
2uXi
him to the King in Council, which alleged, among
other things, that at the trial of Sir George Wakeman
" he did browbeat and curb Dr. Titus Gates and Cap-
tain Bedloe, two of the principal witnesses for the
King, and encourage the jury impanelled to try the
malefactors to disbelieve the said witnesses, by speak-
ing of them slightingly and abusively, and by omitting
material parts of their evidence : That the said Chief
Justice, to manifest his slighting opinion of the evi-
dence of the said Dr. Titus Gates and Captain Bedloe
in the presence of his most sacred Majesty and the
Lords of his Majesty's most honorable Privy Council,
did dare to say that Dr. Titus Gates and Captain Bed-
loe always had an accusation ready against any body :
That the said Lord Chief Justice is very much addicted
to swearing and cursing in his common discourse, and
to drink to excess, to the great disparagement of the
dignity and gravity of his office."
It seems surprising that such charges from such a Reason
quarter, against so high a magistrate, should have been
entertained, although he held his office during the
pleasure of the Crown. The probability is that, being
in favor with the Government, it was considered to be
the most dexterous course to give him the opportunity
of being tried before a tribunal by which he was sure
of being acquitted, in the hope that his acquittal would
save him from the fangs of an enraged House of Com-
mons.
He was required to put in an answer to the Arti-
cles, and a day was appointed for hearing the case.
When it came on, to give greater telat to the certain
triumph of the accused, the King presided in person.
Gates and Bedloe were heard, but they and their wit-
nesses were constantly interrupted and stopped, on the
ground that they were stating what was not evidence,
398 REIGN OF CHARLES II.
CHAP. or what was irrelevant ; and, after a very eloquent and
witty speech from the Chief Justice, in the course of
which he caused much merriment by comments on his
Scroggs supposed immoralities, judgment was given that the
quitted, complaints against him were false and frivolous.
But Shaftesbury was not so easily to be diverted
NOV. 23. from his revenge. On the meeting of parliament, he
Proceed- cause(j a motiOn to be made in the House of Commons
hfmhfthe for an inquiry into the conduct of Lord Chief Justice-
Commons. Scroggs in discharging the Middlesex grand jury and
in other matters. A committee was accordingly ap-
pointed, which presented a report recommending that
Dec. 23. he should be impeached. The report was adopted by
a large majority, and Articles of Impeachment were
The eight voted against him. These were eight in number. The
Articles of . TTT.,,.
impeach- first charged in general terms "that the said William
Scroggs, Chief Justice of the King's Bench, had trait-
orously and wickedly endeavored to subvert the
fundamental laws and the established religion and
government of the kingdom of England." The second
was for illegally discharging the grand jury, " whereby
the course of justice was stopped maliciously and
designedly, — the presentments of man)' Papists and
other offenders were obstructed, — and in particular a
bill of indictment against James Duke of York, which
was then before them, was prevented from being pro-
ceeded upon." The third was founded on the illegal
order for suppressing the Weekly Pacquet newspaper.
The three following articles were for granting general
warrants, for imposing arbitrary fines, and for illegally
refusing bail. The seventh charged him with defam-
ing and scandalizing the witnesses who proved the
Popish Plot. The last was in these words: "VIII.
Whereas the said Sir William Scroggs, being advanced
to be Chief Justice of the Court of King's Bench,
ought, by a sober, grave, and virtuous conversation, to
LIFE OF CHIEF JUSTICE SCROGGS. 399
have given a good example to the King's liege people,
and to demean himsell answerable to the dignity of so
eminent a station ; yet, on the contrary thereof, he
cloth, by his frequent and notorious excesses and de-
baucheries, and his profane and atheistical discourses,
daily affront Almighty God, dishonor his Majesty,
give countenance and encouragement to all manner of
vice and wickedness, and bring the highest scandal on
the public justice of the kingdom."
These articles were carried to the House of Peers J|£ 7,
bv Lord Cavendish, who there, in the name of all The arti-
3 cles carried
the Commons of England, impeached Chief Justice yp '° the
Scroggs for "high treason, and other high crimes and
misdemeanors."
The articles being read, the accused, who was
present, sitting on the Judge's woolsack, was ordered
to withdraw. A motion was then made that he be
committed ; but the previous question was moved and
carried, and a motion for an address to suspend him
from his office till his trial should be over was got rid
of in the same manner. He was then called in, and
ordered to find bail in io,ooo/., to answer the articles
of impeachment, and to prepare for his trial.
Luckily for him, at the end of three days the par- He is saved
liament was abruptly dissolved. It would have been sudden dis-
, . . _ solution of
difficult to make out that any ot the charges amounted pariia-
to high treason ; but in those days men were not at all™'
nice about such distinctions, and a dangerous but con-
venient doctrine prevailed, that, upon an impeachment,
the two Houses of Parliament might retrospectively
declare anything to be treason, according to their
discretion, and punish it capitally. At any rate, con-
sidering that the influence of Shaftesbury in the
Upper House was so great, and that Halifax 1 and the
I. George Savile or Saville, Marquis of Halifax, an English statesman,
born in 1630, was the son of Sir William Savile, of Yorkshire, and grand-
400 REIGN OF CHARLES II.
respectable anti-exclusionists could not have defended
or palliated the infamous conduct of Scroggs, had his
case come to a hearing, he could not have got off with-
out some very severe and degrading punishment.
Reasons Although he escaped a judicial sentence, his char-
. acter was so blown upon, and juries regarded him with
such horror and were so much inclined to go against
his direction, that the Government found that he
would obstruct instead of facilitating their, designs
against the Whig leaders, and that it was necessary to
get rid of him. After the dissolution of the Oxford
parliament the Court was completely triumphant, and,
being possessed for a time of absolute power, had only
to consider the most expedient means of perpetuating
despotism, and wreaking vengeance on the friends of
freedom. Before long, Russell, Sidney,1 and Shaftes-
bury were to be brought to trial, that their heads
father of Lord Chesterfield. In 1668 his loyalty to the Stuart family was
rewarded by a peerage, with the title of Viscount Halifax. In the reign
of Charles II. he was the rival of Shaftesbury. He was a man of eminent
abilities and accomplishments, and acquired great influence in Parliament
by his readiness in debate, his copious eloquence, and his extensive knowl-
edge. In 1679 he was appointed member of the Council of Thirty, and
in 1682 was made a marquis. He opposed the bill for the exclusion of the
Duke of York from the throne, and was Speaker of the Lords in the Con-
vention or Parliament which settled the succession in the Revolution of
1688. At the accession of William III. Halifax was appointed Lord Privy
Seal, but resigned that office in 1690, and joined the Opposition. He was
called "the trimmer of trimmers " in politics, and censured for incon-
stancy. Macaulay, however, represents him as " the most accomplished,
the most enlightened, and, in spite of great faults, the most estimable " of
the statesmen who were formed in the corrupt Court of Charles II. He
wrote two political tracts, — " The Character of a Trimmer" and " Anat-
omy of an Equivalent," — which entitle him to a place among English
classical authors. He left an only son, at whose death, about 1700, the
title became extinct. Died in 1695. — Thomas' Riog. Diet.
I. Algernon Sidney, an English statesman, born about 1622, executed
on Tower Hill, London, December 7, 1683. He was the second surviving
son of the second Earl of Leicester of that creation, by the eldest daughter
of the Earl of Northumberland, and grandnephew of Sir Philip Sidney.
In 1646 Sidney was appointed Lieutenant-General of Horse in Ireland, and
Governor of Dublin. In the same year he entered Parliament for
Cardiff, and in May. 1647, received the thanks of Parliament for his
services In Ireland, and was made Governor of Dover Castle. He acted
ALGERNON SIDNEY.
LIFE OK CHIEF JUSTICE SCKOUUS. 4OI
might pay the penalty of the Exclusion Bill ; but if
Scroggs should be their judge, any jury, whether in-
clined to Protestantism or to Popery, would probably
acquit them.
Accordingly, in the beginning of April, to make
room for one who, it was hoped, would have more^ril>
influence with juries, and make the proceedings medi-
tated against the City of London and other corpora-
tions pass off with less discredit, while he might be
equally subservient, Sir William Scroggs was removed
from his office of Chief Justice of the King's Bench.
So low had he fallen, that little regard was paid to his
feelings, even by those for whom he had sacrificed
his character and his peace of mind ; and, instead of
a " resignation on account of declining health," it was
abruptly announced to him that a superseded* had
issued, and that SIR FRANCIS PEMBERTON, who had
been a puisne judge under him, was to succeed him
as Chief Justice.
His disgrace caused general joy in Westminster Hfedis-
Hall, and over all England; for, as Jeffreys had not c*"5?5 gen-
yet been clothed in ermine, the name of Scroggs was
the byword to express all that could be considered
loathsome and odious in a judge.
He was allowed a small pension, or retired allow-
ance, which he did not long enjoy. When cashiered,
as one of the judges of the King, but refrained from signing the warrant
for his execution, although he subsequently characterized it as "the
justest and bravest action that ever was done in England or anywhere
else." Intent upon establishing an English republic, in 1665 he sought
the assist .nee of the Dutch Government and the influence of the French
ministers towards that end. Failing in both instances, he retired to the
south of France, where he lived till 1677. On the discove of the Rye
House Plot in June, 1683, Sidney, with his illustrious companion in mis-
fortune, William Lord Russell, was arrested on a charge of complicity
with the conspirators, and imprisoned in the Tower. Garbled extracts
from a theoretical work on government, in manuscript, which had been
found among Sidney's papers, were read in evidence against him, and
were deemed sufficient to convict. Sidney met his death " with the
fortitude of a Stoic." — Appl. Encyc.. vol. xv. p. 23.
4O2 KEIGN OF CHARLES II.
CHAP, finding no sympathy from his own profession, or from
XIX.
any class of the community, he retired to a country
He retires *
into the house which he had purchased, called Weald Hall,
country.
near Brentwood, in Essex. Even here his evil fame
caused him to be shunned. He was considered by
the gentry to be without religion and without honor ;
while the peasantry, who had heard some vague ru-
mors of his having put people to death, believed that
he was a murderer, whispered stories of his having
dealings with evil spirits, and took special care never
to run the risk of meeting him after dark. His con-
stitution was undermined by his dissolute habits ; and,
in old age, he was still a solitary selfish bachelor.
His death. After languishing, in great misery, till the 25th day
1683. ' of October, 1683, he then expired, without a relation
or friend to close his eyes. He was buried in the
parish church of South Weald ; the undertaker, the
sexton, and the parson of the parish, alone attending
He leaves the funeral. He left no descendants; and he must
dants. either have been the last of his race, or his collateral
relations, ashamed of their connection with him, had
changed their name, — for, since his death, there has
been no Scroggs in Great Britain or Ireland. The
word was long used by nurses to frighten children ;
and as long as our history is studied, or our language
Hischar- js SpOken or read, it will call up the image of a base
and bloody-minded villain. With honorable principles,
and steady application, he might have been respected
in his lifetime, and left an historical reputation behind
him. " He was a person of very excellent and nimble
parts," l and he could both speak and write our lan-
guage better than any lawyer of the I7th century,
Francis Bacon alone excepted. He seems to have
been little aware of the light in which his judicial
conduct would be viewed ; for it is a curious fact that
i. Wood.
LIFE OF CHIEF JUSTICE SCROGGS. 403
the published Reports of the State Trials at which he c£™'-
presided were all revised and retouched by himself;1
and his speeches, which fill us with amazement and
horror, he expected would be regarded as proofs of
his spirit and his genius. Thank Heaven, we have
no such men in our generation : it is better for us to
contemplate dull, moral mediocrity, than profligate
eccentricity, however brilliant it may be.3
Scroggs may be considered as having been of HOW he
some use to his country, by making the character S o^se
of a wicked judge so frightfully repulsive that he£nd.ng~
may have deterred many from giving way to his bad
propensities. Dean Swift says, " I have read some-
where of an Eastern king who put a judge to death
for an iniquitous sentence, and ordered his hide to be
stuffed into a cushion, and placed upon the tribunal
for the son to sit on, who was preferred to his father's
office. I fancy such a memorial might not have been
unuseful to a son of Sir William Scroggs ; and that
both he and his successors would often wriggle in
their seats as long as the cushion lasted." 8
1. One of the charges against him was, that he made a traffic in selling
to booksellers the exclusive right of publishing trials before him. It was
said he bargained to receive 150 guineas for the Report of Sir George
Wakeman's trial, and 100 guineas more if it was not finished in one day.
2. See 8 St. Tr. 163-224.
3. Drapier's Letters, No. V. See 2 Shower, 155 ; l Ventris, 329, 354 ;
Macph. State Papers, i. 106.
END OF VOLUME II.
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