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GOLDWIN    SMITH. 


MICROFORMED  BY 

PR  ES  E  Fl  V  A  i 


MAY  2  6  1987 


THE  LIVES 


OF 

\  I 


THE    CHIEF  JUSTICES 


ENGLAND. 


FROM  THE  NORMAN  CONQUEST  TILL  THE  DEATH 
OF  LORD  TENTERDEN. 


BY  JOHN  LOBD  CAMPBELL,  LLJX,  F.E.S.E., 

AUTHOR  OP 
'  THE   LIVES  OF   THE   LORD   CHANCELLORS   OF   ENGLAND.' 


THIRD  EDITION. 
IN  FOUK  VOLUMES.—  VOL.  L 


LONDON: 
JOHN  MUERAY,   ALBEMARLE  STREET. 

1874. 

The  right  of  Translation  is  reserved. 


\  i  I. 


Uniform  with  the  present  Work. 

LIVES  OF  THE  LOED  CHANCELLOES,  AND 

KEEPERS  OF  THE  GREAT  SEAL  OF  ENGLAND,  from  the  Earliest 
Times  till  the  Reign  of  George  the  Fourth.  By  JOHN  LORD 
CAMPBELL,  LL.D.  Fourth  Edition.  10  vols.  Crowij  8vo.  6s. 
each. 

"  A  work  of  sterling  merit — one  of  very  great  labour,  of  richly  diversified 
interest,  and,  we  are  satisfied,  of  lasting  value  and  estimation.  We  doubt  if 
there  be  half-a-dozen  living  men  who  could  produce  a  Biographical  Series  on 
such  a  scale,  at  all  likely  to  command  so  much  applause  from  the  candid  among 
the  learned  as  well  as  from  the  curious  of  the  laity." — Quarterly  Keview. 


LONDON  :   HUNTED   BY    WILLIAM   CLOWES   AND  SONS,   8TAMFOKD  STEEET 
AND    CHARING   CBO88. 


TO   THE 

HONOUEABLE  DUDLEY  CAMPBELL. 

MY  DEAR  DUDLEY, 

As  you  have  chosen  the  noble  though  arduous 
profession  of  the  Law,  I-  dedicate  to  you  the  LIVES 
OF  THE  CHIEF  JUSTICES,  in  the  hope  that  they  may 
stimulate  in  your  bosom  a  laudable  ambition  to 
excel,  and  that  they  may  teach  you  industry,  energy, 
perseverance,  and  self-denial.  Learn  that,  by  the 
exercise  of  these  virtues,  there  is  no  eminence  to 
which  you  may  not  aspire, — and,  from  the  examples 
here  set  before  you,  ever  bear  in  mind  that  truly 
enviable  reputation  is  only  to  be  acquired  by  inde- 
pendence of  character,  by  political  consistency,  and 
by  spotless  purity  both  in  public  and  private  life. 

I  cannot  hope  to  see  you  enjoying  high  profes- 
sional distinction ;  but,  when  I  am  gone,  you  may 
rescue  my  name  from  oblivion,  and,  if  I  should  be 
forgotten  by  all  the  world  besides,  you  will  tenderly 
remember 

Your  ever  affectionate  Father, 

CAMPBELL. 


PREFACE 

TO 

VOLUMES  I.  AND  II.  OF  THE  OEIGINAL  EDITION. 

[PUBLISHED  rs  1849.] 


MY  original  design  was  to  be  the  biographer  of  the 
most  eminent  Magistrates  who  have  presided  in  West- 
minster Hall.  This  was  not  completed  by  writing  the 
LIVES  OF  THE  CHANCELLORS,  for  many  of  our  most  im- 
portant and  interesting  legal  worthies  never  held  the 
Great  Seal.  Some  of  them — as  LORD  COSE  and  LORD 
HALE— had  not  the  offer  of  it,  from  the  preference 
naturally  given  to  mediocrity;  and  others — as  LORD 
HOLT  and  LORD  MANSFIELD — resolutely  refused  the 
offer,  because  they  preferred  the  functions  of  a  Common 
Law  Judge.  I  should  not,  therefore,  have  contributed 
my  proposed  share  of  honour  to  the  deceased,  or  of 
instruction  to  the  rising  generation,  without  adding  the 
LIVES  OF  THE  CHIEF  JUSTICES. 

I  confess,  likewise,  that  I  was  eager  to  trace  the 
history  of  those  who  had  illustrated  the  department  of 
English  jurisprudence  to  which,  while  at  the  bar, 
I  chiefly  addicted  myself.  I  may  not  be  altogether 
unqualified  for  the  task,  as  I  have  been  long  familiar 


vi  PREFACE. 

with  their  characters,  and  I  am  entitled  to  speak  with 
some  little  confidence  of  their  decisions. 

However,  I  cannot  venture  to  draw  the  CHIEF 
JUSTICES  at  full  length  in  a  consecutive  series.  The 
CHANCELLORS,  although  sometimes  insignificant  as  in- 
dividuals, were  all  necessarily  mixed  up  with  the 
political  struggles  and  the  historical  events  of  the 
times  in  which  they  flourished ;  but  CHIEF  JUSTICES 
occasionally  had  been  quite  obscure  till  they  were 
elevated  to  the  bench,  and  then,  confining  themselves 
to  the  routine  discharge  of  their  official  duties,  were 
known  only  to  have  decided  such  questions  as  "  whether 
beasts  of  the  plough  taken  in  vetito  namio  may  be 
replevied  ?"  So  many  of  them  as  I  could  not  reasonably 
hope  to  make  entertaining  or  edifying,  I  have  used  the 
freedom  to  pass  over  entirely,  or  with  very  slight 
notice.  But  the  high  qualities  and  splendid  career  of 
others  in  the  list  have  excited  in  me  the  warmest 
admiration.  To  these  I  have  devoted  myself  with 
unabated  diligence;  and  I  hope  that  the  wearers  of 
the  "  Collar  of  S  S  "  *  may  be  deemed  fit  companions 
for  the  occupiers  of  the  "  Marble  Chair,"  who  have  been 
so  cordially  welcomed  by  the  Public. 

I  have  been  favoured  with  a  considerable  body  of 
new  information  from  the  families  of  the  later  Chief 
Justices, — of  Lord  Chief  Justice  Holt,  Lord  Chief 
Justice  Lee,  and  Lord  Chief  Justice  Eyder.  But  my 
special  thanks  are  due  to  my  friend  Lord  Murray, 

*  This  has  been  from  great  antiquity  who  suffered  martyrdom  under  the  Em- 

the    decoration    of  the  Chief  Justices,  peror  Dioclesian:    "tJeminae  vero  S  S 

Dugdale  says  it  is  derived  from  the  name  indicabant  Sancti  Simplicii  nomen." — 

of  SAIST  SIMPLICIUS.  a  Christian  Judge,  (Or.  Jur.  xxxv.) 


PREFACE.  vii 

Judge  of  the  Supreme  Court  in  Scotland,  for  the 
valuable  materials  with  which  he  has  supplied  me  for 
the  Life  of  his  illustrious  kinsman,  Lord  Mansfield, 
hitherto  so  strangely  neglected  or  misrepresented. 

I  had  intended  to  add  the  Lives  of  LORD  KENYON, 
LORD  ELLENBOROUGH,  and  LORD  TENTEKDEN, — well  re- 
collecting the  first  when  I  was  a  law  student,  and 
having  practised  many  years  under  the  two  others. 
But  I  am  afraid  of  hurting  the  feelings  of  surviving 
relations  and  friends ;  and  whatever  other  biographical 
sketches  I  may  compose  I  shall  leave  to  be  given  to  the 
world  when  this  risk  has  passed  away,  and  when 
the  author  will  be  beyond  the  reach  of  human  censure. 
In  taking  farewell  of  the  Public,  I  beg  permission 
to  return  my  sincere  thanks  for  the  kindness  I  have 
experienced  both  from  friends  and  strangers  who  have 
pointed  out  mistakes  and  supplied  deficiencies  in  my 
biographical  works, — and  earnestly  to  solicit  a  con- 
tinuance of  similar  favours. 

STBATHEUEN  HOUSE, 
August  10,  1849. 


PREFACE 

TO 

VOLUME  HI.  OF  THE  OEIGINAL  EDITION. 

[PUBLISHED  IN  1858.] 


I  COMPLETE  my  engagement  with  the  public  by  bring- 
ing down  this  work  to  the  death  of  Lord  Chief  Justice 
Tenterden.  A  quarter  of  a  century  having  elapsed 
since  that  event,  I  hope  that  I  may  now  continue  my 
series  of  Chief  Justices  from  Lord  Mansfield,  without 
being  liable  to  the  censure  of  wantonly  wounding  the 
feelings  of  the  relations  and  friends  of  those  whose 
names  appear  in  my  narrative. 

I  cannot  think  that  the  circumstance  of  my  having 
myself  in  the  mean  time  become  a  Chief  Justice  dis- 
qualifies me  for  being  the  biographer  of  my  pre- 
decessors, or  that  it  should  induce  me  in  any  measure 
to  vary  the  principle  on  which  my  "  Lives  "  have  been 
composed.  I  still  consider  it  my  duty  to  extenuate 
nothing,  being  sure  that  I  do  not  set  down  aught  in 
malice.  By  some  persons,  probably  very  respectable, 
though  given  to  HERO-WORSHIP,  I  have  been  blamed  for 
following  this  course, — even  with  respect  to  Judges 
who  for  centuries  have  been  reposing  in  the  tomb.  I 
have  incurred  much  obloquy  by  representing  that  Lord 
Chancellor  Sir  Christopher  Hatton,  so  deservedly  emi- 


PEEFACE.  ix 

nent  for  his  dancing,  was  "  no  Lawyer ; "  and  for 
saying  that  Lord  Bacon,  the  greatest  philosopher,  and 
one  of  the  finest  writers  his  country  ever  produced,  was 
justly  liable  to  the  charges  of  taking  bribes  from 
suitors  on  whose  causes  he  was  to  adjudicate, — of 
inflicting  torture  on  a  poor  parson  whom  he  wished  to 
hang  as  a  traitor  for  writing  an  unpublished  and  un- 
preached  sermon, — and  of  labouring  to  blacken  the 
memory  of  the  young  and  chivalrous  Earl  of  Essex, 
from  whom  he  had  received  such  signal  favours. 

But,  at  all  hazards,-  in  relating  actions  and  in 
drawing  characters,  I  shall  still  strive  to  discriminate 
between  what  is  deserving  of  praise  and  of  censure. 

I  add,  with  perfect  sincerity, 

— hanc  veniam  petimusque  damusque  vicissim. 

If  my  own  humble  career  should  ever  become  the 
subject  of  biographical  criticsm, — with  what  measure  I 
mete,  be  it  measured  to  me  again.  And  this  I  say  not 
in  arrogance  or  self-confidence, — but  deeply  conscious 
of  deficiencies  which  may  be  imputed  to  me,  and  of 
errors  into  which  I  have  fallen, — yet  hoping  that  the 
slender  merit  may  be  allowed  me  of  having  attempted 
well. 

I  beg  leave  to  call  in  aid  the  admirable  justification 
of  the  discriminating  and  impartial  biographer  by  my 
friend  Sir  Francis  Palgrave : — "  He  is  in  no  wise  re- 
sponsible for  the  defects  of  his  personages,  still  less  is 
their  vindication  obligatory  upon  him.  This  conven- 
tional etiquette  of  extenuation  mars  the  utility  of  his- 
torical biography  by  concealing  the  compensations  so 
mercifully  granted  in  love,  and  the  admonitions  given 
by  vengeance.  Why  suppress  the  lesson  afforded  by 
the  depravity  of  the  '  greatest,  brightest,  meanest  of 


x  PBEFACB. 

mankind ;'  lie  whose  defilements  teach  us  that  the 
most  transcendent  intellectuality  is  consistent  with  the 
deepest  turpitude  ?  The  labours  of  the  panegyrists 
come  after  all  to  naught.  You  are  trying  to  fill  a 
broken  cistern.  You  may  cut  a  hole  in  the  stuff,  but 
you  cannot  wash  out  the  stain."  * 

Before  concluding  I  must  renew  the  notice  by  which 
I  have  derived  many  favours  both  from  strangers  and 
from  friends, — "  I  shall  be  most  grateful  to  all  who  will 
point  out  omissions  to  be  supplied,  or  mistakes  to  be 
corrected." 

I  have  only  further  to  express  my  satisfaction  in 
thinking  that  a  heavy  weight  is  now  to  be  removed 
from  my  conscience.  So  essential  did  I  consider  an 
Index  to  be  to  every  book,  that  I  proposed  to  bring  a 
Bill  into  parliament  to  deprive  an  author  who  publishes 
a  book  without  an  Index  of  the  privilege  of  copyright ; 
and,  moreover,  to  subject  him,  for  his  offence,  to  a 
pecuniary  penalty.  Yet,  from  difficulties  started  by  my 
printers,  my  own  books  have  hitherto  been  without  an 
Index.  But  I  am  happy  to  announce  that  a  learned 
friend  at  the  bar,  on  whose  accuracy  I  can  place  entire 
reliance,  has  kindly  prepared  a  copious  Index,  which 
will  be  appended  to  this  work,  and  another  for  the  new 
stereotyped  edition  of  the  LIVES  OF  THE  CHANCELLORS. 

STRATHEDEN  HOUSE, 
April  6th,  1857. 


*  Hist.  oT  Norm,  and  Kng.,  b.  ii.  p.  67. 


CONTENTS  OF  THE  FIKST  VOLUME. 


CHAPTER  I. 

LIVES  OF  THE  CHIEF  JUSTICES  FROM  THE  CONQUEST  TO  THE  REIGN  OF 
EDWARD  I. 

Origin  and  Functions  of  the  Office  of  Chief  Justiciar,  or  Chief  Justice,  of 
England,  Page  1.  Odo,  the  first  Chief  Justiciar,  4.  His  Birth,  4. 
He  accompanies  William  the  Conqueror  in  the  Invasion  of  England,  5. 
He  is  appointed  Chief  Justiciar,  6.  Cause  tried  before  him,  7.  His 
Quarrel  with  the  King,  8.  He  is  liberated  from  Imprisonment,  9. 
He  conspires  against  William  Rufus,  10.  He  is  banished  from 
England,  12.  His  Death,  12.  William  Fitz-Osborne  Chief  Justiciar, 

13.  William  de  Warrenne  and  Richard  de  Benefacta  Chief  Justiciars, 

14.  William  de   Carilefo   Chief  Justiciar,   16.      Flambard   Chief 
Justiciar,    17.     First   Sittings  in  Westminster   Hall,    17.      Roger, 
Bishop   of    Salisbury,   Chief    Justiciar,    18.      Ralph    Basset   Chief 
Justiciar,  19.     Prince  Henry  (afterwards  Henry  II.)  Chief  Justiciar,  ' 
19.     Richard  de  Luci  Chief  Justiciar,  20.     Robert,  Earl  of  Leicester, 
Chief  Justiciar,  21.     Ranulfus  de  Glanville,  22.    His  Birth,  22.     He 
is  Sheriff  of  Yorkshire,  23.     He  takes  William  the  Lion,  King  of 
Scots,  Prisoner,  23.     How  the  News  was  received  by  Henry  II.,  25. 
Glanville  made  Chief  Justiciar,  27.     Glanville  as  a  Law  Writer,  29. 
Preface  to  Glanville's  Book,  30.     Mode  of  Trial  by  Grand  Assize  or 
by  Battle,  31.     Glanville's  Conduct  to  the  Welsh,  34.     Glanville's 
Prohibition  in  the  Suit  between  Henry  II.  and  the  Monks  of  Canter- 
bury,   35.     A  new   Crusade,    37.      Glanville   takes    the   Cross,    38. 
Glanville  is  killed  at  the  Siege  of  Acre,  40.     Hugh  Pusar,  Bishop  of 
Durham,  Chief  Justiciar,  40.     His  licentious  youth,  41.     His  meri- 
torious  middle  age,  41.     His  seven  years  of  Blindness,    42.     His 
Death,  43.     William  Longchamp,  43.     Walter  Hubert,  Archbishop 
of  Canterbury,  Chief  Justiciar,  44.     Case  of  William-with-the-Long- 
Beard,  44.     Hubert    deposed  from  the  Justiciarship,  47.     Geoffrey 
Fitzpeter  Chief  Justiciar,  47.     Trial  of  the  Case  of  Fauconbridge  t. 
Fauconbridge,   49.     Peter  de   Rupibus,  51.     Peter   de  Rupibus  in 
favour  with  Henry  III.,  51.     He  takes  the  Cross,  53.     He  gains  a 
Battle  for  the  Pope,  54.     His  Death,  54.     Hubert  de  Burgh,  54. 


ii  CONTENTS  OF  VOL.  I. 

Hubert  de  Burgh  under  Richard  I.,  55.  His  Character  by  Shaks- 
peare,  55.  Hubert  de  Burgh  appointed  Chief  Justiciar  for  life,  58. 
Hubert  removed  from  his  office  of  Chief  Justiciar,  and  takes  to 
Sanctuary,  59.  He  is  confined  in  the  Tower  of  London,  61.  Death 
of  Hubert  de  Burgh,  62.  Stephen  de  Segrave,  46.  Obscure  Chief 
Justiciars,  65.  Hugh  Bigod  Chief  Justiciar,  65.  Hugh  le  Despencer 
Chief  Justiciar,  67.  Death  of  Hugh  le  Despencer,  69.  Philip  Basset 
Chief  Justiciar,  70.  His  Death,  71.  Whether  Simon  de  Montfort 
was  ever  Chief  Justiciar  ?  71.  Henry  de  Bracton  Chief  Justiciar,  73. 
Bracton's  Book,  "  De  Legibus  et  Consuetudinibus  Angliae,"  74.  First 
Chief  Justice  who  acted  merely  as  a  Judge,  75.  Lord  Chief  Justice 
Bruce,  76.  Origin  of  the  Bruces,  76.  Scottish  Branch  of  the  Bruces, 
77.  Birth  of  the  Chief  Justice,  78.  He  is  educated  in  England,  78. 
He  is  a  Puisne  Judge,  78.  He  is  taken  Prisoner  in  the  Battle  of 
Lewes,  78.  He  is  made  Chief  Justice,  79.  He  loses  the  Office  on  the 
Death  of  Henry  III.,  79.  He  returns  to  Scotland,  80.  He  is  a  Com- 
missioner for  negotiating  the  Marriage  of  the  Maid  of  Norway  with 
the  Son  of  Edward  I.,  80.  On  her  Death  he  claims  the  Crown  of 
Scotland,  81.  He  acknowledges  Edward  I.  as  Lord  Paramount  of 
Scotland,  81.  Decided  against  him,  82.  His  Death,  82.  His 
Descendants,  82. 


CHAPTER  II. 

THE  LIVES  OF  THE  CHIEF  JUSTICES  FROM  THE  ACCESSION  OF  EDWAED  I. 
TO  THE  APPOINTMENT  OF  CHIEF  JUSTICE  TRESILIAN. 

Judicial  Institutions  of  Edward  I.,  83.  Ralph  de  Hengham  Chief 
Justice  of  the  Court  of  King's  Bench,  85.  His  Origin,  85.  His 
Progress  in  the  Law,  85.  Law  Books  composed  by  him,  86.  He  is 
appointed  Guardian  of  the  Kingdom,  88.  He  is  charged  with  Bribery, 
88.  Convictions  of  the  Judges,  89.  De  Hengham  is  fined  7000 
Marks,  89.  Opinions  respecting  him  in  after-times,  90.  He  is 
restored  to  public  Employment,  91.  His  Death,  91.  De  Weyland 
Chief  Justice  of  the  Common  Pleas,  91.  His  Conduct,  91.  He 
absconds  in  Disgrace,  91.  His  Punishment  and  Infamy  in  after- 
times,  92.  De  Thornton  Chief  Justice  of  King's  Bench,  93.  Roger 
le  Braba9on,  93.  He  is  employed  by  Edward  I.  in  the  Dispute  about 
the  Crown  of  Scotland,  94.  His  Address  to  the  Scottish  Parliament, 
95.  He  assists  in  subjecting  Scotland  to  English  Jurisdiction,  96. 
He  is  made  Chief  Justice  of  the  King's  Bench,  97.  His  Speech  at 
the  Opening  of  the  English  Parliament,  98.  His  Death,  99.  Sir 
William  Howard,  qu.  whether  a  Chief  Justice  ?  99.  Henry  le  Scrope, 
101.  Summoned  to  the  House  of  Lords,  101.  Chief  Justice  of  the 
King's  Bench,  102.  Henry  de  Staunton  Chief  Justice  of  the  King's 
Bench,  102.  Ballad  on  Chief  Justice  Staunton,  104.  Sir  Robert 
Parnyng,  105.  Sir  William  de  Thorpe,  105.  His  professional 
Progress,  105.  He  is  made  Chief  Justice  of  the  Court  of  King's 
Bench,  106.  His  Addresses  to  the  two  Houses  of  Parliament,  106. 
He  is  charged  with  Bribery,  107.  He  is  found  guilty :  qu.  whether 


CONTENTS  OF  VOL.  I.  xiii 

he  was  sentenced  to  death?  107.  Sir  William  Shareshall  Chief 
Justice  of  the  King's  Bench,  109.  His  Addresses  to  both  Houses  of 
Parliament,  109.  Sir  Henry  Green,  111.  Sir  John  Knyvet,  111. 
Sir  John  de  Cavendish,  111.  His  Origin.  111.  He  is  made  Chief 
Justice  of  the  King's  Bench.  111.  He  is  put  to  death  in  Wat  Tyler's 
Rebellion,  112.  His  Descendants,  113. 


CHAPTER  III. 
CHIEF  JUSTICES  TILL  THE  DEATH  OF  SIR  WILLIAM  GASCOIGNE. 

Sir  Robert  Tresilian,  114.  He  is  made  a  Puisne  Judge  of  the  Court  of 
King's  Bench,  114.  Chief  Justice  of  the  King's  Bench,  115.  His 
Plan  to  enable  Richard  II.  to  triumph  over  the  Barons,  116.  The 
Opinion  of  the  Judges  on  the  Privileges  of  Parliament,  116. 
Measures  prompted  by  Tresilian  against  the  Barons,  119.  The 
Barons  gain  the  Ascendency,  119.  Tresilian  prosecuted  for  High 
Treason,  120.  He  absconds,  121.  Proceedings  in  Parliament,  121. 
Tresilian  attainted,  123.  He  comes  to  Westminster  in  Disguise, 
123.  He  is  discovered,  apprehended,  and  executed,  124.  His  Cha- 
racter, 127.  Sir  Robert  Belknappe,  128.  His  Family,  128.  He 
is  made  Chief  Justice  of  the  Common  Pleas,  129.  The  Manner  in 
which  he  was  coerced  into  the  giving  of  an  illegal  Opinion,  129.  He 
is  arrested  and  convicted  of  High  Treason,  130.  Judges  attainted  of 
High  Treason,  131.  The  Sentence  commuted  for  Transportation  to 
Ireland,  132.  He  is  allowed  to  return  to  England,  133.  His  Death, 
134.  Sir  William  Thirnynge,  134.  Chief  Justice  of  the  Common 
Pleas,  135.  Justification  of  the  part  he  took  in  the  Deposition  of 
Richard  II.,  135.  He  is  appointed  to  carry  to  Richard  II.  the  Re- 
nunciation of  the  Allegiance  of  the  Nation,  138.  The  account  of 
the  Manner  in  which  he  executed  this  Commission,  139.  He  acts  as 
Chief  Justice  under  Henry  IV.,  141.  His  Death,  142.  Sir  William 
Gascoigne,  143.  His  Origin  and  Education,  143.  His  Success  at  the 
Bar,  143.  He  is  appointed  Attorney  to  represent  Bolingbroke,  after- 
wards Henry  IV.,  144.  His  Proceedings  in  this  capacity  on  the 
Death  of  John  of  Gaunt,  144.  He  is  appointed  Chief  Justice  of  the 
King's  Bench,  145.  His  Refusal  to  try  a  Prelate  and  a  Peer,  146. 
Story  of  his  committing  the  Prince  of  Wales  to  Prison  ;  qu.  whether 
it  be  authentic  ?  148.  When  and  where  first  mentioned,  149.  Story 
as  related  by  Sir  Thomas  Elyot,  150.  Represented  on  the  Stage,  152. 
How  the  Story  is  treated  by  Shakspeare,  153.  Refutation  of  the 
Claims  of  other  Judges,  155.  Merit  of  Sir  W.  Gascoigne  in  this 
transaction,  156.  Sir  William  Gascoigne's  Law  Reforms,  157.  Curious 
Case  in  which  he  acted  as  an  Arbitrator,  159.  Refutation  of  the 
Assertion  that  he  died  in  the  Reign  of  Henry  IV.,  159.  His  Wjll, 
160.  His  tomb  and  Epitaph,  162. 


xiv  CONTENTS  OF  VOL.  I. 


CHAPTER  IV. 

CHIEF   JUSTICES  TILL  THE   APPOINTMENT   OF   CHIEF   JUSTICE   FITZ- 
JAMES  BY   KING   HENRY  VIII. 

Sir  William  Hankford,  163.  His  ingenious  Suicide,  163.  His  Monu- 
ment and  Epitaph,  164.  Obscure  Chief  Justices  passed  over,  165. 
Sir  John  Fortescue,  165.  Sir  John  Markham,  166.  His  professional 
Progress,  166.  He  is  a  Puisne  Judge,  166.  He  is  appointed  Chief 
Justice  of  the  King's  Bench,  167.  His  Conduct  on  the  Trial  of  Sir 
Thomas  Cooke,  168.  He  is  dismissed  from  his  Office,  169.  His 
Death,  169.  His  Character,  170.  Sir  Thomas  Billing,  170.  His 
obscure  Origin,  170.  He  starts  as  a  Lancastrian,  171.  He  is  made 
King's  Serjeant,  171.  He  goes  over  to  the  Yorkists,  172.  He  is 
made  a  Puisne  Judge,  173.  Trials  for  Treason  before  him,  173. 
He  is  made  Chief  Justice  of  the  King's  Bench,  174.  Trial  of  Rex  v. 
Burdet,  175.  Billing  again  a  Lancastrian,  178.  Billing  again  a 
Yorkist,  179.  His  Conduct  on  the  Trial  of  the  Duke  of  Clarence,  180. 
His  Death,  181.  Sir  John  Hussey,  182.  His  legal  Studies,  182. 
He  is  made  Attorney  General,  182.  He  is  made  Chief  Justice  of  the 
King's  Bench,  183.  His  Submission  to  Richard  III.,  184.  He  is 
continued  in  his  Office  by  Henry  VII.,  185.  His  Death,  187.  Sir 
John  Fineux,  187.  Tripartite  Division  of  his  Life,  187. 

CHAPTER  V. 

CHIEF   JUSTICES   TILL  THE    APPOINTMENT  OF   CHIEF   JUSTICE   POPHAM 
BY    QUEEN   ELIZABETH. 

Sir  John  Fitzjames,  189.  His  early  Intimacy  with  Cardinal  Wolsey,  190. 
He  is  made  Attorney  General,  190.  He  conducts  the  Prosecution 
against  the  Duke  of  Buckingham,  190.  He  is  made  a  Puisne 
Judge,  191.  Chief  Justice  of  the  King's  Bench,  191.  His  base 
Conduct  on  the  Fall  of  Wolsey,  191.  Fitzjames  assists  in  drawing 
up  the  Articles  of  Accusation  against  Wolsey,  193.  Fitzjames  con- 
demns to  death  Protestants  and  Roman  Catholics,  194.  Trial  of 
Bishop  Fisher,  195.  Trial  of  Sir  Thomas  More,  197.  Trial  of  Anne 
Boleyn  and  her  supposed  Gallants,  198.  Death  of  Fitzjames,  199. 
Sir  Edward  Montagu,  200.  His  Family,  200.  His  professional 
Progress,  201.  He  is  returned  to  the  House  of  Commons :  how  a 
Leader  of  Opposition  was  dealt  with  by  Henry  VIII.,  201.  Grand 
Feast  when  Montagu  was  called  Serjeant,  202.  He  is  made  Chief 
Justice  of  the  King's  Bench,  203.  Pleasures  and  Discomforts  ex- 
perienced by  him,  203.  Gives  an  Opinion  on  the  Invalidity  of  the 
King's  Marriage  with  Anne  of  Cleves,  204.  His  Opinion  on  the 
Proofs  against  Catherine  Howard,  204.  He  exchanges  his  Office  for 
the  Chief  Justiceship  of  the  Common  Pleas,  205.  His  Conduct  on 
the  Trial  of  the  Duke  of  Norfolk,  207.  He  is  employed  to  make  the 
Will  of  Edward  VI.  in  favour  of  Lady  Jane  Grey,  208.  He  loses  his 
Office  on  the  Accession  of  Queen  Mary,  209.  His  Death,  210.  The 
Five  obscure  Chief  Justices  of  the  King's  Bench,  211.  Sir  James 


CONTENTS  OF  VOL.  I.  Xv 

Dyer,  Lord  Chief  Justice  of  the  Common  Pleas,  211.  Latin 
Verses  in  his  Praise,  211.  His  Origin  and  Education,  212.  His 
early  Genius  for  Reporting,  212.  His  Merits  as  a  Reporter,  213, 
He  is  Speaker  of  the  House  of  Commons,  213.  He  is  made 
Queen's  Serjeant,  214.  He  conducts  the  Prosecution  against  Sir 
Nicholas  Throckmorton,  214.  He  is  made  a  Puisne  Judge,  217. 
Chief  Justice  of  Common  Pleas,  217.  His  Reports,  218.  Case 
on  the  Marriage  of  Minors,  219.  Case  on  the  Benefit  of  Clergy, 
220.  Cases  on  the  Law  of  Villeinage,  220.  His  Conduct  on  the 
Trial  of  the  Duke  of  Norfolk,  223.  Charge  against  him  for  arbi- 
trary Conduct  as  Judge  of  Assize,  225.  His  Death,  226.  Publica- 
tion of  Reports,  227.  Sad  Fate  of  the  Last  of  his  House,  228.  Sir 
Robert  Catlyne  Chief  Justice  of  the  King's  Bench,  228.  His  Descent 
from  Cataline  the  Conspirator,  228.  Feast  when  he  was  called 
Serjeant,  229.  He  is  made  a  Puisne  Judge,  231.  Chief  Justice,  231. 
He  assists  at  the  Trial  of  the  Duke  of  Norfolk,  231.  Qu.  whether 
the  fact  of  a  Witness  being  a  Scot  renders  him  incompetent,  or  only 
goes  to  his  credit  ?  232.  Chief  Justice  Catlyne  passes  Sentence  on 
Hickford,  234.  His  Death  and  Burial,  236.  His  Descendants,  236. 
Sir  Christopher  Wray,  236.  His  doubtful  Parentage,  236.  He  is  a 
Serjeant-at-Law,  237.  He  is  Speaker  of  the  House  of  Commons,  237. 
He  is  made  Chief  Justice  of  the  King's  Bench,  240.  He  tries 
Campion  the  Jesuit,  240.  Trial  of  William  Parry  for  Treason,  242. 
Wray  presides  in  the  Star  Chamber  on  the  Trial  of  Secretary 
Davison,  243.  Trial  of  the  Earl  of  Arundel,  245.  Death  of  Chief 
Justice  Wray,  245.  His  Character,  245. 


CHAPTER  VI. 

CHIEF   JUSTICES   FROM   THE   DEATH   OF   SIR   CHRISTOPHER   WHAT 
TILL  THE   APPOINTMENT   OF   SIR   EDWARD  COKE   BY  JAMES  L 

Sir  John  Popham,  247.  His  Birth,  247.  At  Oxford,  248.  His 
Profligacy  when  a  Student  in  the  Temple,  248.  He  takes  to  the 
Road,  248.  He  reforms,  249.  His  professional  Progress,  250. 
He  is  made  Solicitor-General,  and  Speaker  of  the  House  of  Commons, 
251.  His  address  to  the  Queen  at  the  end  of  the  Session,  253. 
He  becomes  Attorney-General,  253.  Proceeding  in  the  Star 
Chamber  on  the  Death  of  the  Earl  of  Northumberland,  254.  Tilney's 
Case,  255.  He  prosecutes  Secretary  Davison  for  sending  off  the 
Warrant  for  the  Execution  of  Queen  Mary,  257.  Popham  is  made 
Chief  Justice  of  the  King's  Bench,  259.  His  gallant  Conduct  in 
Essex's  Rebellion,  260.  Essex's  Trial,  260.  Trial  of  Essex's 
Accomplices,  261.  Sir  Walter  Raleigh  tried  before  Popham, 
263.  Practice  of  putting  Questions  to  the  Prisoner  in  Criminal 
Trials,  265.  The  Gunpowder  Plot,  266.  Trial  of  Garnet, 
Superior  of  the  Jesuits,  266.  Death  of  Popham,  268.  Legend 
respecting  the  manner  in  which  he  acquired  the  Manor  of  Littlecote, 
269.  His  Reports,  271.  His  Fortune,  271.  Sir  Thomas 
Fleming,  the  Rival  of  Bacon,  272.  His  Laboriousness,  272.  He  is 


xvi  CONTENTS  OF  VOL.  I. 

made  Solicitor-General  in  preference  to  Lord  Bacon,  273.  He  breaks 
down  in  the  House  of  Commons,  275.  He  refuses  to  resign  the  office 
of  Solicitor-General  in  favour  of  Bacon,  276.  He  is  made  Chief 
Baron  of  the  Exchequer  by  James  I.,  276.  "  The  Great  Case  of 
Impositions,"  276.  Fleming  appointed  Chief  Justice  of  the  King's 
Bench,  279.  His  Judgment  in  the  Case  of  the  Postnati,  279. 
Prosecution  of  the  Countess  of  Shrewsbury,  280.  Death  of  Chief 
Justice  Fleming,  281. 

CHAPTER  VII. 

LIFE  OP  LORD  CHIEF  JUSTICE  SIR  EDWARD  COKE,  FROM  HIS  BIRTH 
TILL  HE  WAS  MADE  CHIEF  JUSTICE  OF  THE  COURT  OF  COMMON 
PLEAS. 

Merits  of  Sir  Edward  Coke,  282.  His  Family,  283.  His  Birth,  284. 
At  School,  284.  At  the  University,  285.  A  Student  of  Law,  285. 
He  is  called  to  the  Bar,  287.  His  first  Brief,  288.  He  is  Counsel  in 
"  Shelley's  Case,"  289.  His  great  Success  and  professional  Profits,  290. 
His  first  Marriage,  290.  He  is  appointed  Recorder  of  Coventry,  &c., 
291.  He  is  made  Solicitor-General,  291.  He  is  elected  Speaker  of 
the  House  of  Commons,  292.  His  Conduct  as  Speaker,  294.  His 
Address  to  the  Queen  on  the  Dissolution  of  Parliament,  295.  Rivalry 
between  Coke  and  Bacon  for  the  office  of  Attorney-General,  296. 
Coke  is  preferred,  297.  He  examines  State  Prisoners  and  superintends 
the  Infliction  of  Torture,  297.  His  brutal  Behaviour  on  the  Trial  of 
the  Earl  of  Essex,  298.  Coke  in  Private  Life,  299.  Death  of  his  first 
Wife,  299.  His  Courtship  of  Lady  Hatton,  299.  He  breaks  a  Canon 
of  the  Church,  302.  He  is  prosecuted  in  the  Ecclesiastical  Court, 

302.  His  Quarrels  with  his  second  Wife,  303.    Accession  of  James  I., 

303.  Coke   is   knighted,    304.      His   insulting   Language   to   Sir 
Walter  Raleigh,  304.      Logomachy  between  Coke  and  Bacon,  307. 
Bacon's  Letter  of  Remonstrance  to  Coke,  308.     Coke  conducts  the 
Prosecution  of  Guy  Fawkes,  308.     Trial  of  Garnet  the  Jesuit,  312. 
Coke  made  Chief  Justice  of  the  Common  Pleas,  314. 

CHAPTER  VIII. 

CONTINUATION  OF  THE  LIFE  OF  SIR  EDWARD  COKE  TILL  HE  WAS 
DISMISSED  FROM  THE  OFFICE  OF  CHIEF  JUSTICE  OF  THE  COURT 
OF  KING'S  BENCH. 

His  meritorious  Conduct  as  a  Judge,  316.  Part  taken  by  him  in  the 
Case  of  the  Postnati,  317.  He  opposes  the  Court  of  High  Commission, 
318.  He  resists  the  Claim  of  the  King  to  sit  and  try  Causes,  319. 
He  checks  the  arbitrary  Proceedings  of  other  Courts,  322.  He 
denies  the  Power  of  the  Crown  to  alter  the  Law  by  "  Proclamation," 
322,  Coke  against  his  will  is  made  Chief  Justice  of  the  King's 
Bench,  325.  He  gives  a  qualified  Support  to  "  Benevolences,"  327. 
His  laudable  Conduct  in  Peacham's  Case,  327.  He  exerts  himself  to 
bring  to  justice  the  Murderers  of  Sir  Thomas  Overbury,  329. 
Bacon  afraid  that  Coke  would  be  made  Lord  Chancellor,  331.  Coke's 


CONTENTS  OF  VOL.  I.  xvii 

Dispute  with  Lord  Ellesmere  about  Injunctions,  332.  Coke  incurs 
the  King's  high  Displeasure  in  the  Case  of  Commendams,  333.  He 
stops  a  Job  of  the  Duke  of  Buckingham,  337.  Coke  is  summoned 
before  the  Privy  Council :  frivolous  Charges  against  him,  338.  He 
is  suspended  from  his  office  of  Chief  Justice,  338.  Alleged  Errors  in 
his  Reports,  339.  Proceedings  against  Coke  before  the  Privy 
Council,  340.  Coke  is  dismissed  from  his  office  of  Chief  Justice  of 
the  King's  Bench,  343.  He  sheds  Tears  on  his  Dismissal,  344.  He 
soon  rallies,  and  behaves  with  Firmness,  344. 


CHAPTER  IX. 

CONTINUATION    OF    THE    LIFE    OF    BIB    EDWARD    COKE    TILL   HE   WAS 
SENT   PRISONER  TO  THE   TOWER. 

Coke's  Conduct  after  his  Disgrace,  346.  His  Plan  to  circumvent 
Bacon  by  marrying  his  Daughter  to  Sir  John  Villiers,  347.  Resent- 
ment of  Lady  Hatton,  who  carries  off  and  conceals  their  Daughter, 
348.  Coke's  March  at  the  Head  of  an  armed  Band  of  Men  to  rescue 
his  Daughter,  349!  He  succeeds,  350.  Bacon's  indiscreet  Efforts  to 
break  off  the  Match,  351.  Coke  is  prosecuted  in  the  Star  Chamber 
for  carrying  off  his  Daughter,  352.  Lady  Hatton  confined  and 
prosecuted  for  her  part  in  this  affair,  352.  Bacon,  in  danger  of 
being  dismissed  from  his  office  of  Chancellor,  supports  the  Match, 
353.  Letter  of  the  Lady  Frances  Coke  to  her  Mother,  354.  The 
Wedding,  355.  Lady  Hatton  restored  to  Liberty  and  to  Favour  at 
Court,  355.  Coke  attends  to  the  judicial  business  of  the  Privy 
Council,  356.  He  sits  in  the  Star  Chamber,  357.  Coke  a  Lord 
Commissioner  of  the  Treasury,  358.  A  new  Parliament  to  be  called, 
359.  Coke  is  returned  for  Liskeard,  359.  His  Treatment  of  the 
Presentation  Copy  of  Bacon's  Novum  Organum,  360.  Coke  disap- 
pointed in  not  being  made  Lord  Treasurer,  360.  He  completes  his 
"  Reports,"  and  proceeds  with  his  Commentary  on  Littleton,  361. 
Parliament  meets,  361.  Coke  prompts  and  conducts  the  Proceedings 
which  led  to  the  Downfall  of  Bacon,  362.  His  rebuke  to  a  Member 
of  the  Rouse  of  Commons  who  scoffed  at  the  Observance  of  the 
Sabbath  Day,  363.  He  exposes  the  Abuse  of  Monopolies,  364. 
Charges  against  Bacon  for  taking  Bribes,  365.  Coke  procures  the 
Impeachment  of  Bacon,  365.  Sentence  against  Bacon,  366.  Coke 
exasperated  by  the  Appointment  of  Williams  as  Lord  Keeper,  366. 
Struggle  respecting  the  King's  power  to  order  the  two  Houses  to 
adjourn,  367.  Lord  Coke  a  "Free  Trader,"  368.  He  defends 
Archbishop  Abbott  from  the  Charge  of  Manslaughter,  368.  Coke 
Leader  of  the  Opposition  in  the  House  of  Commons,  369.  The  King 
forbids  the  House  of  Commons  to  discuss  Matters  of  State,  and  denies 
their  Privileges.  370.  Coke's  vindication  of  the  Privileges  of  the 
House,  370.  He  moves  a  "  Protestation,"  which  is  ngreed  to  and 
entered  in  the  Journals,  371.  The  King  tears  the  "Protestation" 
from  the  Journals,  372.  Parliament  dissolved,  372 

VOL.    I.  b 


CONTENTS  OF  VOL.  I. 


CHAPTER  X. 

CONCLUSION   OF   THE   LIFE   OF  SIR   EDWARD   COKE. 

Coke  committed  to  the  Tower,  373.  He  employs  himself  on  "  Co.  Litt." 
374.  He  is  released  on  the  Intercession  of  the  Prince  of  Wales,  374. 
Coke  defeats  an  Attempt  to  banish  him  to  Ireland,  375.  Coke  for  a 
short  time  reconciled  to  Buckingham,  376.  Coke  conducts  the  Im- 
peachment of  the  Earl  of  Middlesex,  376.  Accession  of  Charles 
I.,  377.  Coke's  Moderation,  377.  His  Motion  for  an  Inquiry  into  the 
Expenditure  of  the  Crown,  378.  Abrupt  Dissolution  of  Parlia- 
ment, 378.  Expedient  to  exclude  Coke  from  the  new  Parliament 
by  making  him  a  Sheriff,  379.  He  is  returned  for  Norfolk,  379. 
Qu.  whether  he  was  disqualified  by  reason  of  his  being  a  Sheriff?  379. 
Coke  serves  the  office  of  Sheriff  with  great  distinction,  380.  Arbi- 
trary Measures  of  the  Government,  381.  Coke  Member  for  Bucking- 
hamshire in  a  New  Parliament,  381.  The  King  tries  to  intimidate 
the  Parliament,  381.  Coke's  Defence  of  Public  Liberty,  382.  Coke's 
patriotic  Regard  for  the  Glory  of  England,  384.  Coke  brings  for- 
ward the  Petition  of  Right,  384.  Proviso  introduced  in  the  House 
of  Lords  to  save  the  "  Sovereign  Power  of  the  Crown,"  386.  On  the 
Recommendation  of  Coke  this  is  rejected  by  the  Commons,  386.  The 
King's  Attempt  to  return  an  evasive  Answer,  387.  Coke's  Denun- 
ciation of  the  Duke  of  Buckingham,  388.  The  Petition  of  Right 
receives  the  Royal  Assent  in  due  form,  388.  Bill  for  Supply  passes, 
which  Coke  carries  up  to  the  House  of  Lords,  389.  Sudden  Proro- 
gation, 389.  Coke  absent  from  the  short  stormy  Session  of  1629,  390. 
He  retires  from  Public  Life,  391.  His  Occupations,  391.  His  dislike 
to  Physic,  391.  Attempt  of  his  Friends  to  give  him  the  Benefit  of 
Medical  Advice,  392.  He  meets  with  an  Accident,  392.  Prosecution 
for  a  Libel  upon  him,  393.  Coke  supposed  to  have  advised  Hampden 
to  resist  Ship-Money,  394.  His  Papers  seized  by  the  Secretary  of 
State  when  he  was  on  his  Death-bed,  394.  His  Death,  395.  "His 
Funeral  395.  His  Epitaph,  395.  His  Ignorance  of  Science,  and  his 
Contempt  for  Literature,  395.  His  solitary  Joke,  396.  His  Great  - 
ness  as  a  Lawyer  and  a  Judge,  397.  Coke  as  an  Author,  398.  His 
Reports,  398.  "Coke  upon  Littleton,"  399.  Second,  Third,  and 
Fourth  Institutes,  401.  His  passionate  Love  of  his  Profession,  402. 
The  Distribution  of  his  Time,  403.  His  Style  of  Living,  408.  His 
Habits  and  Manners,  404.  Contemporary  Testimonies  in  his  Favour, 
404.  He  is  unjustly  censured  by  Hallam,  405.  Whether  would  you 
have  been  Coke  or  Bacon  ?  405.  Part  taken  by  Lady  Hatton  in  the 
Civil  War,  406.  Coke's  Descendants,  407. 


CONTENTS  OF  VOL.  I.  xix 


CHAPTER  XI. 

LIVES  OF  THE  CHIEF   JUSTICES  FEOM  THE   DISMISSAL  OF  SIB  EDWARD 
COKE   TILL  THE   ESTABLISHMENT  OF   THE   COMMONWEALTH. 

Sir  Henry  Montagu,  409.  His  Family,  409.  His  Education,  410. 
His  professional  Progress,  411.  His  Speeches  in  the  House  of  Com- 
mons, 411.  He  is  elected  Recorder  of  London,  412.  He  becomes 
a  Courtier,  412.  He  is  made  King's  Serjeant,  413.  He  conducts  the 
Prosecution  against  the  Earl  and  Countess  of  Somerset,  413.  He  is 
appointed  Chief  Justice  of  the  King's  Bench,  415.  Lord  Ellesmere's 
Inaugural  Address  to  Chief  Justice  Montagu,  416.  He  awards  Execu- 
tion against  Sir  Walter  Raleigh,  419.  He  becomes  Lord  High  Trea- 
surer, and  a  Peer,  421.  He  is  induced  to  be  Lord  President  of  the 
Council,  423.  His  Decendants,  424.  Multiplication  of  the  Monta- 
gus, 425.  Sir  James  Ley,  425.  His  Origin  and  Education,  425.  He 
goes  as  Chief  Justice  to  Ireland,  426.  He  returns  to  England  and 
becomes  a  favourite  with  James  I.,  426.  He  is  made  Chief  Justice  of 
the  King's  Bench,  428.  He  is  appointed  Speaker  of  the  House  of 
Lords,  429.  He  pronounces  the  Sentence  against  Lord  Bacon,  429. 
Impeachment  of  Floyde,  431.  He  becomes  Lord  High  Treasurer,  and 
a  Peer,  431.  He  is  induced  to  be  President  of  the  Council,  432.  His 
Descendants,  433.  Milton's  oonnet  to  Ley's  Daughter,  434.  Sir 
Randolf  Crewe,  369.  His  noble  Independence  of  Character,  434. 
His  Family,  435.  He  studies  at  Lincoln's  Inn,  436.  His  skill  in 
Heraldry  and  Genealogy,  437.  He  is  elected  Speaker  of  the  House  of 
Commons,  337.  He  is  appointed  Chief  Justice  of  the  King's  Bench, 
438.  His  famous  Speech  in  the  Oxford  Peerage  Case,  439.  He  is 
displaced  for  his  Honesty,  440.  His  Letter  to  Buckingham  after  his 
Removal,  443.  His  Mode  of  Life  in  Retirement,  445.  Hollis's 
Panegyric  upon  him  in  the  Long  Parliament,  446.  The  Respect 
entertained  for  him,  447.  His  death,  447.  His  Descendants,  448. 


LIVES 


OP  THE 


CHIEF  JUSTICES  OF  ENGLAND, 


CHAPTER  I. 

LIVES  OF  THE  CHIEF  JUSTICES  FROM  THE  CONQUEST  TO  THE 
REIGN  OF  EDWARD  I. 

THE  office  of  CHIEF  JUSTICE,  or  CHIEF  JUSTICIAR,  was 
introduced  into    England   by  William   the 
Conqueror  from   Normandy,   where   it  had   ^^ions'of 
long   existed.*     The   functions   of  such   an    the  office  of 

0  ,  ,      ,  .,,  ,     ,          -11         Chief  Jus- 

omcer  would    have   ill   accorded   with   the    tidar,  or 

,.  »  A        i     a  -i         Chief  Justice, 

notions  of  our  Anglo-Saxon  ancestors,  who    Of  England. 
had  a  great  antipathy  to  centralisation,  and 
prided  themselves  upon  enjoying  the  rights  and  the 
advantages  of  self-government.     The  shires  being  par- 
celled into  hundreds,  and  other  subdivisions,  each  of 
these   had   a  court,   in   which    suits,   both   civil   and 
criminal,   might  be  commenced.     A  more  extensive 


Prior  vox  In  juris  nostri  fornmlls,  solum-     every  other  which  existed  in  England 
modb  videtur  usitata,  usque  ad  .setatem     under  the  Norman  kings,  the  word  Jus- 


VOL.  I. 


2  WILLIAM  THE  CONQUEKOR.  CHAP.  I. 

jurisdiction  was  exercised  by  the  County  Court,  a 
tribunal  of  high  dignity,  over  which  the  Bishop,  and 
the  Earl,  or  Alderman,  presided  jointly.  Cases  of  im- 
portance and  difficulty  were  occasionally  brought  by 
appeal  before  the  Witenagemote,  and  here  they  were 
disposed  of  by  the  voice  of  the  majority  of  those  who 
constituted  this  assembly.  We  do  find,  in  the  Anglo- 
Saxon  records,  a  notice  of  "  Totius  Angliae  Alder- 
mannus,"  but  such  a  creation  seems  to  have  taken 
place  only  on  rare  emergencies,  and  we  have  no  cer- 
tain account  of  the  duties  intrusted  to  the  person  so 
designated.*  In  Normandy  the  interference  of  the 
supreme  government  was  much  more  active  than  iii 
England,  and  there  existed  an  officer  called  CHIEF 
JUSTICIAR,  who  superintended  the  administration  of 
justice  over  the  whole  dukedom,  and  on  whom,  accord- 
ing to  the  manners  of  the  age,  both  military  and  civil 
powers  of  great  magnitude  were  conferred.! 

Before  William  had  entirely  completed  his  subjuga- 
tion of  England,  eager  to  introduce  into  it  the  laws 
and  institutions  of  his  own  country,  so  favourable  to 
princely  prerogative, — while  he  separated  the  civil  and 
ecclesiastical  jurisdiction,  and  confined  the  County  Court 
(from  which  the  Bishop  was  banished)  to  the  cognizance 
of  petty  suits, — preparatory  to  the  establishment  of  the 
feudal  system  in  its  utmost  rigour,  he  constituted  the 
office  of  CHIEF  JOSTICIAR.  His  plan  was  to  have  a  grand 
central  tribunal  for  the  whole  realm,  which  should  not 

*  Pupd.  Or.  Jur.,  ch.  vil.  Mad.  Ex.,  sions,  are  the  organs  of  the  petty  confe- 

ch.  i.  Spel.  Gloss.  "  Justitia."  Lord  derated  republics  into  which  England  Is 

Coke's  2nd  Inst.,  ch.  vii.  parcelled  out, — in  France,  whether  the 

t  It  is  curious  to  observe  that,  not-  form  of  government  be  nominally  mo- 
withstanding  the  sweeping  change  of  narchical  or  republican,  no  one  can  alter 
laws  and  institutions  introduced  at  the  the  direction  of  a  road,  build  a  bridge,  or 
Conquest,  the  characteristic  difference  open  a  mine,  without  the  authority  of 
between  Frenchmen  and  Englishmen,  in  the  "Ministre  des  Fonts  ft  Chaussees." 
the  management  of  local  affairs,  still  In  Ireland,  there  being  much  more  Celtic 
exists  after  the  lapse  of  so  many  cen-  than  Anglo-Saxon  blood,  no  self-reliance 
turies;  kand  that  while  with  us  parish  is  felt,  and  a  disposition  prevails  to 
vestries,  town  councils,  and  county  ses-  throw  every  thing  upon  the  government. 


CHAP.  I.  OFFICE  OF  CHIEF  JUSTICIAR.  3 

only  be  a  court  of  appeal,  but  in  which  all  causes  of 
importance  should  originate  and  be  finally  decided. 
This  was  afterwards  called  CURIA  EEGIS,  and  sometimes 
AULA  EEGIS,  because  it  assembled  in  the  hall  of  the 
King's  palace.  The  great  officers  of  state,  the  Con- 
stable, the  Mareschal,  the  Seneschal,  the  Chamberlain, 
and  the  Treasurer,  were  the  judges,  and  over  them 
presided  the  Grand  Justiciar.  "  Next  to  the  King 
himself,  he  was  chief  in  power  and  authority,  and  when 
the  King  was  beyond  seas  (which  frequently  happened) 
he  governed  the  realm  like  a  vice  roy."  *  He  was  at  all 
times  the  guardian  of  the  public  peace  as  Coroner- 
General,f  and  he  likewise  had  a  control  over  the 
finances  of  the  kingdom.^  In  rank  he  had  precedence 
of  all  the  nobility,  and  his  power  was  greater  than  that 
of  all  other  magistrates.§ 

The  administration  of  justice  continued  nearly  on 
the  same  footing  for  eight  reigns,  extending  over 
rather  more  than  two  centuries.  Although,  during  the 
whole  of  this  period,  the  AULA  KEGIS  was  preserved, 
yet,  for  convenience,  causes,  according  to  their  dif- 
ferent natures,  were  gradually  assigned  to  different 
committees  of  it, — to  which  may  be  traced  the  Court 
of  King's  Bench,  the  Court  of  Common  Pleas,  the  Court 
of  Exchequer,  and  the  Court  of  Chancery.  A  distinct 
tribunal  for  civil  actions  was  rendered  necessary,  and 
was  fixed  at  Westminster  by  the  enactment  of  MAGNA 
CHARTA — "  Communia  placita  non  sequantur  curiam 
nostram,  sed  teneantur  in  aliquo  certo  loco ;"  but  the 

*  Madd.  Exch.  xi.,  where  it  is  said,  J  It  is  supposed  to  be  a  remnant  of 

"  he  was  wont  to  be  styled  Just icia  Regis,  this  power,  that,  upon  the  sudden  death 

Justiciarius  Regis,  and  absolutely  Jus-  or  resignation  of  the  Chancellor  of  the 

ticia  or  Justiciarius;  afterwards  he  was  Exchequer,   the   Chief  Justice   of  the 

sometimes    styled   Justiciarius    Regis  King's  Bench  does  the  formal  duties  of 

Anglue,  probably  to  distinguish  him  from  the  office  till  a  successor  is  appointed, 

the  King's  Justiciar  of  Ireland,  Nor-  $  "  Dignitate  onmes   regni   proceres, 

mandy,"  &c.  potestate  omnes  superabat  magistrates. " 

t  The    Chief  Justice  of   the  King's  —Spd.  Gloss,  p.  331. 
Bench  is  still  Chief  Coroner  of  England. 

B    2 


4  WILLIAM  THE  CONQUEROR.  CHAP.  I. 

suitors  in  other  causes  were  long  after  obliged  to  resort 
alternately  to  York,  Winchester,  Gloucester,  and  other 
towns,  in  which  the  King  sojourned  at  different  seasons 
of  the  year.*  At  last  a  great  legislator  modelled  our 
judicial  institutions  almost  exactly  in  the  fashion  in 
which,  after  a  lapse  of  six  centuries,  they  present  them- 
selves to  us  at  the  present  day,  showing  a  fixity  un- 
exampled in  the  history  of  any  other  nation. 

The  Chief  Justiciar  was  then  considerably  lowered 
in  rank  and  power,  but  the  identity  of  the  office  is  to 
be  distinctly  traced,  and  therefore  it  will  be  proper  that 
I  should  introduce  to  the  reader  some  of  the  individuals 
who  filled  it  in  its  greatest  splendour. 

The  first  Chief  Justiciar  of  England  was  ODO.  The 
beautiful  Arlotta,  the  tanner's  daughter  of 

Odo  the  first  .  '  & 

chief  Jus-       Fcuaise,  who,  standing  at  her  fathers  door, 
had  captivated  Robert,  Duke  of  Normandy, 
— after  living  with  him  as  his  mistress,  bringing  him 
a  son,  the  founder  of  the  royal  line  of  England,  lament- 
ing his  departure  for  the  Holy  Land,  and  weeping  for 
his  death, — was  married  to  Herluin,  a  Norman  knight, 
by  whom  she  had  three  children.     Odo,  the 

His  birth.  J  , 

second  of  thesej  possessing  bright  parts  and 
an  athletic  frame,  was  bred  both  to  letters  and  to  arms, 
and,  while  he  took  holy  orders,  he  still  distinguished 
himself  in  all  knightly  achievements.  He  was  a  special 
favourite  with  his  brother  the  young  Duke,  who  made 
him  at  an  early  age  Bishop  of  Bayeux.  Nevertheless 
he  still  continued  to  assist  in  the  military  enterprises 
by  which  William  extended  and  consolidated  his  con- 
tinental dominions,  and  attracted  warriors  from  all  the 
surrounding  states  to  flock  to  his  standard. 

*  The  Court  of  King's  Bench  is  still  f  The  eldest  was  Robert,  Earl  of  Mor- 

supposed  to  be  ambulatory,  and  by  ori-  taigne ;  and   the   youngest  a  daughter, 

ginal  writs  the  King  orders  the  defen-  Countess  of  Albemarle.    Will.  Gem.  vii. 

dant  to  appear  on  a  day  named,  "  where-  3 ;  vili.  37.    Pict.  1 53. 21 1.    Orderie.  255. 
soever  we  shall  then  be  in  England." 


A.D.  1066.  ODO,  CHIEF  JUSTICIAR.  5 

When,  on  the  death  of  Edward  the  Confessor,  the 
Duke  of  Normandy  claimed   the   crown   of 
England,  and  prepared  to  wrest  it  from  the 

Heaccom- 


A.D.  1066. 

perjured  Harold,  Odo  preached  the  crusade 


in  the  pulpit,  and  zealously  exerted  himself  conqueror  in 
in  levying  and  training  the  troops.  From  KgCT 
Bayeux  he  carried  a  chosen  band  of  men-at- 
arms  in  ten  ships,  with  which  ho  joined  the  main  fleet 
at  a  short  distance  from  St.  Valery.  He  was  one  of  the 
first  to  jump  ashore  at  Pevensey,  and  he  continued  to 
ply  his  double  trade  of  a  priest  and  a  soldier. .  At  day- 
break of  the  ever-memorable  15th  of  October,  1066,  he 
celebrated  mass  in  the  Norman  camp,  wearing  a  coat  of 
mail  under  his  rochet.  He  then  mounted  a  gallant 
white  charger,  carried  a  marshal's  baton  in  his  hand, 
and  drew  up  the  cavalry,  with  the  command  of  which 
he  was  intrusted.  In  the  fight  he  performed  prodigies 
of  valour,  and  he  mainly  contributed  to  the  victory 
which  had  such  an  influence  on  the  destinies  of  England 
and  of  France.  The  famous  Bayeux  tapestry  represents 
him  on  horseback,  and  in  complete  armour,  but  without 
any  sword,  and  bearing  a  staff  only  in  his  hand,  with 
the  superscription  "Hie  Odo  Epis.  baculum  tenens 
confortat,"  as  if  he  had  merely  encouraged  the  soldiers. 
Although  there  might  be  a  decency  in  mitigating  his 
military  prowess  in  the  eyes  of  those  whose  souls  he 
had  in  cure,  there  is  no  doubt  that  on  this  day  he 
acted  the  part  of  a  skilful  cavalry  officer  and  of  a 
valiant  trooper. 

When  the  ceremony  of  the  coronation  was  to  take 
place  in  Westminster  Abbey,  he  wished  to  conse- 
crate the  new  monarch,  and  to  put  the  diadem  on  his 
head ;  but,  to  soften  the  mortification  of  the  English, 
and  to  favour  the  delusion  that  the  kingdom  was  to  be 
held  under  the  will  of  the  Confessor  and  by  the  volun- 
tary choice  of  the  people,  Aldred  the  Archbishop  of 


6  WILLIAM  THE  CONQUEROR.  CHAP.  I. 

York  was  preferred,  and  he  asked  the  assembled  multi- 
tude "  if  they  would  have  William  for  their  King  ? " 
Odo,  as  a  reward  for  his  services,  received  a  grant  of 
large  possessions  in  Kent,  and  was  created  Earl  of  that 
county.  In  contemplation  of  the  establishment  of  the 
AULA  EEGIS,  by  the  agency  of  which  the  Norman  juris- 
prudence was  to  be  introduced  into  England,  and 
Norman  domination  perpetuated  there,  Odo  was  like- 
wise appointed  GRAND  JUSTICIAB.  Like  many 

He  is  ap-  .rr  .          •     i  •          ,      , 

pointed  chief  ecclesiastics  of  that  time,  he  had  attended  to 
the  Eoman  civil  law  and  the  learning  of 
feuds,  as  well  as  to  the  canon  law ;  and  it  was  expected 
that  he  would  be  useful  not  only  in  judicial  proceedings, 
but  in  the  meetings  of  the  national  assembly,  by  which 
the  Conqueror  thought  of  giving  an  appearance  of 
legality  to  his  rule. 

This  arrangement  was  highly  successful ;  and  so 
quiet  did  all  things  appear  to  be  in  England, 
that  in  the  following  year  William  returned 
to  Normandy  to  show  his  new  grandeur  to  his  country- 
men, and  remained  there  eight  months,  taking  with 
him  Edgar  Atheling,  the  legitimate  heir  to  the  throne, 
and  many  of  the  principal  English  nobility.  Odo  was 
left  behind  as  Justiciar ;  and  William  Fitz-Osborne,  a 
redoubted  knight,  related  to  the  ducal  family,  was  asso- 
ciated with  him  in  the  regency.  The  Norman  chroniclers 
pretend  that  Odo  on  this  occasion  displayed  prudence 
and  humanity,  but  had  to  encounter  fickleness  and 
ingratitude  ;  while  the  Saxon  chroniclers  assert  that 
he  oppressed  and  insulted  the  natives  so  as  to  drive 
them  into  rebellion.  The  result  was  a  general  insur- 
rection all  over  England,  and  William  was  obliged  to 
return  and  to  reconquer  the  kingdom.  Odo  was  again 
most  useful  to  him  both  in  council  and  in  the  field, 
and  was  confirmed  in  his  office  of  Justiciar,  which  he 
exercised  for  some  years  with  undivided  sway.  Henry 


A.D.  1068-82.  ODO,  CHIEF  JUSTICIAE.  7 

of  Huntingdon,  after  giving  an  account  of  William 
having  put  down  all  resistance,  and  of  the  splendour 
of  his  court,  enumerates  among  the  grandees  present, 
"  Odo  Episcopus  Baiocensis,  Justiciarius  et  Princeps  totius 
Anglice."  * 

I  find  the  report  of  only  one  cause  tried  before  him, 
Gundulph,  Bishop  of  Bochester  v.  Pechot,  Sheriff 
of  Cambridgeshire.  The  defendant  had  seised 
the  land  of  Fracenham  in  right  of  the  King, 
and  it  was  claimed  by  the  plaintiif  in  right 
of  his  Church.  The  King  ordered  the  trial  to  take 
place  before  Odo,  the  Grand  Justiciar.  He,  going  to 
the  spot,  summoned  a  folkmote,  or  general  meeting  of 
the  freeholders,  who,  after  an  impartial  summing  up^ 
found  a  verdict  for  the  Crown.f 

There  was  another  trial  of  high  interest  soon  after, 
at  which  Odo,  the  Justiciar,  could  not  well  preside,  as 
he  was  the  party  sued.  Lanfranc,  an  Italian  ecclesiastic, 
having  succeeded  Stigand,  the  Saxon,  as  primate,  com- 
plained that  the  Earl  of  Kent  unlawfully  kept  pos- 
session of  large  territories,  in  that  county,  which  of 
right  belonged  to  the  See  of  Canterbury.  Geoffrey, 
Bishop  of  Coutance,  was  specially  appointed  by  the 
King  to  act  as  Justiciar  on  this  occasion.  The  trial 
took  place  in  a  temporary  court  erected  on  Penenden 
Heath,  and  lasted  three  days ;  at  the  end  of  which  time 
judgment  was  given  for  the  Archbishop  against  the 
Earl.| 

*  L.  vi.  p.  371.    The  Saxon  Chronicle  pit,  nt  omnes  illius  comitatus  homines 

says :   "  Fult    (Odo)   admodum  potens  congregarentur  et  eorum  judicio  cujus 

Episcopus  in  Normannia  et  Regi  om-  terra  deberet  rectius  esse  probaretur," 

nlum   maxime   fidelis.     Habuit  autem  &c. — Ex  L'rnulfi  Hut.  apud  Angl.  Sax. 

comitatum  in  Anglia,  et  quum  Rex  erat  t.  i.  p.  339. 

in  Normannia  full  ille  primus  iii  hac  J  The  report  of  the  case,  one  of  the 

terra." — Chron.  Sax.  p.  190.  n.  20,  25.  earliest  to  be  found  in  our  books,  thus 

t  Hanc  enim  Vicecomes  Regis  esse  begins:  "De  placito  apud  Pinendenam, 
terrain  dictbat;  sed  Episcopus  eandem  inter  Lanfrancum  Archiepiscopum,  et 
S.  Andreas  potius  esse  affirmabat.  Quare  Odonem  Baiocensem  Kpiscopum.  Tern- 
ante  Regem  venerunt  Rex  vero  praece-  pore  Magni  Regis  Wilielmi  qui  Angli- 


8  WILLIAM  THE  CONQUEEOE.  CHAP.  I. 

Odo,  however,  was  soon  indemnified  from  the  spoils 
of  the  Anglo-Saxon  nobles ;  and  being  allowed,  not- 
withstanding heavy  complaints  against  him,  to  retain 
his  office  of  Chief  Justiciar,  he  amassed  immense  riches. 
By  turns  he  officiated  as  a  prelate,  celebrating  mass  in 
the  King's  chapel, — he  sat  as  supreme  judge  in  the 
AULA.  EEGIS, — and  he  commanded  the  King's  troops  in 
putting  down  insurrections.*  Although  scrupulous 
when  presiding  on  the  bench,  it  is  said  that  when 
intrusted  with  a  military  command  he  thought  it  un- 
necessary to  discriminate  between  guilt  and  innocence ; 
he  executed  without  investigation  all  natives  who  fell 
into  his  hands,  and  he  ravaged  the  whole  country.f 
••  After  he  had  held  his  office  of  Chief  Justiciar  nearly 
A.D.  1082.  fifteen  years,  he  quarrelled  with  the  King,  by 
wuVthe™61  entering  into  a  mad  enterprise  which  might 
Kin&-  have  materially  weakened  the  Norman  power 

in  England.  An  astrologer  had  foretold  that  he  should 
reach  the  papacy  and  become  sovereign  of  all  Italy. 
The  fortune  of  Guiscard,  in  Sicily,  had  excited  the  most 
extravagant  expectations  among  his  countrymen,  and 
they  openly  boasted  that  the  whole  of  Europe  would 
soon  be  under  Norman  rule.  Odo  expected  to  gain  his 
object,  partly  by  corruption,  and  partly  by  force  of 
arms.  Gregory,  the  reigning  Pope,  was  still  in  the 
vigour  of  manhood,  but  somehow  a  vacancy  was  to  be 
occasioned,  and  was  to  be  filled  up  by  the  Bishop  of 

cum    regnum   armls    conquisivit,    &c.  possession  of  many  manors  belonging  to 

HuicplacitointerfueruntGorsl'ridusCon-  the  archbishopric.    See  the  proceedings 

stantiensis,  qui  in  loco  Regis   fuit   et  at  length  in  Selden's  Spicilegium,  p.  197. 

Justlciam    illam    tenuit ;    Lanfrancus  *  "  In  seculari   ejus    functione,  non 

Episcopus  qui  piacitavit ;  Comes  Cantiae,  solum    rem   exercuit  judiciariam :    sed 

&e.,  et  alii  multi  Barones  Regis  et  ipsius  bellis  utique  assuefactus  exercitum  Ran- 

Archiepiscopi,    et  alii   aliorum  comita-  dulphi    Comitis   Estanglias,  suorumque 

tuum  homines  etiam  cum  isto  toto  comi-  confiederatorum,  profligavit :  et  in  ul  tione 

tatu,  multi  et  magnse  auctoritatis  viri  necis    Walter!    Dunelmensis    Episcopi, 

Francigen»  scilicet  et  Angli,"  bc.—Ex  Northumbrian!    late    populatus  est." — 

Ernulfi   Hist,  apud   Angl.  Sax*  t.  i.  Spel.  Gloss,  p.  337. 

p.  234.    It  was  clearly  proved  that,  while  f  Sim.  47.    Malm.  62.    Chron.  Sax. 

Stigand  was  in  disgrace,  Odo  had  taken  184.    Flor.  639. 


A.D.  1087.  ODO,  CHIEF  JUSTICIAR.  9 

Bayeux.  With  this  view  he  bought  a  stately  palace  at 
Rome ;  he  transmitted  immense  sums  of  money  to 
Italy ;  and  he  induced  Hugh,  Earl  of  Chester,  and  a 
number  of  other  Norman  nobles  settled  in  England, 
to  whom  he  promised  Italian  principalities,  to  join 
him,  accompanied  by  a  considerable  body  of  military 
retainers,  and  to  embark  with  him  for  a  port  in  the 
Mediterranean.  This  enterprise  had  been  carefully 
concealed  from  the  knowledge  of  the  King.  But 
William,  hearing  of  it  before  the  fleet  sailed,  highly 
disapproved  of  it,  dreading  that,  after  such  a  loss  of 
treasure  and  soldiers,  -the  mutinous  Anglo-Saxons 
might  shake  off  his  yoke.  He  therefore  seized  the 
money  and  stores  prepared  for  the  enterprise,  and  gave 
orders  that  Odo  should  be  arrested.  The  officers  of 
justice,  out  of  respect  for  the  immunities  which 
ecclesiastics  now  assumed,  scrupled  to  execute  the 
command.  William  thereupon  arrested  his  brother  with 
his  own  hands.  Odo  insisted  that  he  was  a  prelate, 
and  therefore  exempt  from  all  temporal  jurisdiction; 
whereupon  William  exclaimed,  "God  forbid  that  I 
should  touch  the  Bishop  of  Bayeux,  but  I  make  the  Earl 
of  Kent  my  prisoner."  The  Earl-Bishop  was  imme- 
diately sent  over  to  Normandy,  and  kept  in  close  con- 
finement there  for  five  years  among  many  other  state 
prisoners.* 

At  last,  the    Conqueror  being  on  his  death-bed,  it 
was  suggested  to  him  by  his  ghostly  advisers,   & 
that  if  he  hoped   for  mercy   from  God  he   He  is  iibe- 

,  ,  i    .  ,     rated  from 

ought  to  show  mercy  to  man,  and  to  set  at   imprison- 
liberty  the  noble  captives  whom  he  had  long   r 
immured  in  the  dungeons  of  Rouen.     After  trying  to 
justify  their  detention,  partly  on  the  ground  of  their 
treasons,  partly  on  the  plea  of  necessity,  he  assented  to 
the  request,  but  long  insisted  on  excepting  his  brother 

*  Chron.  Sax.  184.  •  Flor.  641.   Malm.  63.    EL  Hunt,  731.    Angl.  Sax.  i.  258. 


10  ODO,  CHIEF  JUSTICIAR.  CHAP.  I. 

Odo,  a  man,  he  observed,  whose  turbulence  would  be 
the  ruin  both  of  England  and  Normandy.  The  friends 
of  the  prelate,  by  repeated  solicitations,  extorted  from 
the  reluctant  monarch  an  order  for  his  immediate  en- 
largement. 

Odo,  at  the  moment  when  he  recovered  his  liberty, 
hearing  that  the  Conqueror  had  expired,  and  that  his 
naked  corpse  lay  neglected  on  the  floor  of  a  chamber  of 
the  deserted  palace,  instead  of  seeing  to  the  decent 
interment  of  his  brother  and  benefactor,  proceeded 
with  all  speed  to  England  to  make  advantage  of  the 
election  to  the  vacant  throne.  On  condition  of  being 
restored  to  all  his  vast  estates  in  Kent,  and  to  his  office 
of  Chief  Justiciar,  he  agreed  to  support  the  claim  of 
Eufus,  and  assisted  at  the  coronation  of  the  new  sove- 
reign.* Accordingly,  he  presided  in  the  sittings  of  the 
AULA  EEGIS  held  at  the  Feast  of  Christmas,  1087,  and  the 
Feast  of  Easter,  1088.  But  his  unreasonable  demands 
of  further  aggrandisement  being  refused,  and  his  re- 
sentment being  inflamed  against  Lanfranc  the  primate, 
to  whom  he  imputed  his  sufferings  in  the  end  of  the 
last  reign,  as  well  as  his  present  disappointment,  he 

entered  into  a  conspiracy  with  Geoffrey  de 
against"1"1  '  Coutance,  Eoger  Montgomery,  Hugh  Bigod, 
i^'fug"11  Hugh  de  Grantmesnil,  and  other  Norman 

barons,  to  invite  over  Robert  Curthose,  his 
elder  nephew,  and  to  make  him  sovereign  of  England 
as  well  as  of  Normandy,  on  the  specious  pretences  that 
the  right  of  primogeniture  should  be  respected,  and 
that  those  who  held  estates  both  in  Normandy  and  in 
England  could  not  be  safe  unless  both  countries  were 
ruled  by  the  same  sovereign.  The  confederates  imme- 
diately took  the  field,  expecting  Robert  to  join  them 
with  a  large  army.  Odo  intrusted  his  strong  castle  of 
Rochester  to  the  care  of  Eustace,  Count  of  Boulogne, 

*  H.  Hunt,  lib.  vii.  p.  212. 


A.D.  1087.  ODO,  CHIEF  JTJSTICIAR.  11 

with  a  garrison  of  five  hundred  knights,  and  himself 
retired  to  Pevensey,  to  await  the  arrival  of  his  nephew 
and  to  proclaim  him  king.  But  Eufus,  having  detached 
a  body  of  troops  to  lay  siege  to  Eochester,  marched  in 
person  in  pursuit  of  the  Earl-Bishop,  shut  him  up  within 
the  walls  of  a  castle  on  the  sea-shore,  and,  after  a 
blockade  of  seven  weeks,  compelled  him  to  surrender, — 
Robert,  with  his  usual  giddiness,  having  occupied  him- 
self with  frivolous  amusements,  instead  of  hastening 
across  the  Channel  to  claim"  his  birthright.  By  the 
terms  of  capitulation,  life  and  liberty  were  granted  to 
Odo,  on  condition  that  he  should  swear  to  deliver  up 
the  Castle  of  Eochester,  and  to  abjure  the  realm  of 
England  for  ever. 

His  resources  were  not  yet  quite  exhausted.  Being 
conducted  by  a  small  escort  to  the  fortress,  he  was  ad- 
mitted into  the  presence  of  Eustace,  and  ordered  him  to 
surrender  it,  but  made  him  a  private  signal  that  he 
wished  to  be  disobeyed.  The  shrewd  governor  up- 
braided him  as  a  traitor  to  the  cause,  and  made  prisoners 
both  him  and  his  guard.  Eufus  was  excited  to  the 
highest  indignation  by  the  success  of  this  artifice,  and 
pressed  the  siege  with  the  utmost  rigour,  being  sup- 
ported by  a  band  of  natives,  who  on  this  occasion 
rallied  round  him  to  be  revenged  for  the  oppressions 
they  had  suffered  from  the  Grand  Justiciar.  However, 
the  place  was  as  obstinately  defended  by  Odo,  till  the 
ravages  of  a  pestilential  disease  compelled  him  to  pro- 
pose a  surrender  on  honourable  conditions.  With  con- 
siderable difficulty  he  obtained  a  promise  that  the  lives 
of  the  garrison  should  be  spared  ;  but  the  demand  that 
they  should  all  depart  with  the  honours  of  war,  and 
that,  as  he  himself  withdrew,  the  besiegers,  out  of 
respect  to  his  sacred  character,  should  abstain  from 
every  demonstration  of  triumph,  was  contemptuously 
rejected.  Accordingly,  his  men  were  all  obliged  to  lay 


12  ODO,  CHIEF  JUSTICIAE.  CHAP.  I. 

down  their  arms,  and  when  he  himself  appeared, 
although  clad  only  in  canonicals,  the  trumpets  being 
ordered  to  sound  a  flourish,  as  he  passed  through  the 
ranks  the  English  shouted  "  halter  and  gallows"  in  his 
ears.  Knowing  that,  by  the  immunities  of 

He  is  ba-  .  °    ,  * 

nishedfrom  churchmen,  his  life  was  safe,  he  muttered 
threats  and  defiance ;  but  he  was  immediately 
put  on  board  a  ship  for  Normandy,  with  a  solemn 
admonition  that,  if  he  ever  again  set  foot  on  English 
ground,  nothing  should  save  him  from  an  ignominious 
death.* 

It  was  charitably  hoped  that,  renouncing  the  pomps 
of  this  world,  he  would  pass  the  remainder  of  his  days 
in  superintending  his  diocese,  which  he  had  long 
grievously  neglected,  and  in  seeking  to  make  atonement 
by  penance  for  the  irregularities  of  his  civil  and  his  mili- 
tary career ;  but,  after  spending  a  short  time  at  Bayeux, 
he  could  endure  a  life  of  tranquillity  no  longer,  and,  as 
he  was  debarred  from  revisiting  England,  he 
A-D-toae!'  wandered  about  from  country  to  country  on 
the  Continent  in  quest  of  adventures,  and  at 
last  died  in  a  state  of  great  destitution  at  Palermo. 

One  original  historian,  in  drawing  his  character, 
says  (I  am  afraid  with  too  much  justice),  that  "  instead 
of  attending  to  the  duties  of  his  station  he  made  riches 
and  power  the  principal  objects  of  his  pursuit  ;"f  while 
another,  who  had  probably  shared  in  his  bounty,  declares 
that  "  he  was  a  prelate  of  such  rare  and  noble  qualities, 

*  Chron,  Sax.  195.  Order.  Vit.  668.  he  was  celebrated  for  his  munificence  lo 
Sim.  215.  In  Halstead's  "  Kent "  there  the  see  of  Bayeux,  which  he  filled  about 
is  a  drawing  of  his  seal,  on  one  side  of  fifty  years,  rebuilding  from  the  ground 
which  he  appears  as  an  Earl,  mounted  the  church  of  Our  Lady  of  Bayeux,  fur- 
on  his  war  horse,  clad  in  armour,  and  nishlng  it  with  costly  vestments  and 
holding  a  sword  in  his  right  hand ;  but  ornaments  of  gold  and  silver,  and  en- 
on  the  reverse  he  appears  in  the  character  dowing  a  chantry  for  twelve  monks  to 
of  a  Bishop,  dressed  in  his  pontifical  pray  for  his  soul, "  bestowing  his  wealth, 
habit  and  pronouncing  the  benediction,  however  indirectly  gotten,  on  the  church 
In  the  former  capacity  he  left  a  natural  and  poor." 
son,  who  afterwards  gained  great  renown  f  Order.  Vit.  255. 
in  the  court  of  Henry  I.  In  the  latter 


A.D.  1066.  WILLIAM  FITZ-OSBORNE.  13 

that  the  English,  barbarians  as  they  were,  could  not 
but  love  and  fear  him."  * 

There  were  several  other  Chief  Justiciars  in  the 
reign  of  William  the  Conqueror,  but  none  of  their  pro- 
ceedings connected  with  the  administration  of  the  law 
are  handed  down  to  us,  excepting  the  famous  trial  on 
Penenden  Heath  between  Odo  and  Lanfranc ; — and  a 
very  short  notice  of  them  will  be  sufficient. 

William  Fitz-Osborne,  for  a  short  time  associated  in 
the  office,  was  related  to  the  Dukes  of  Nor-  wmiam 
mandy  both  by  father  and  mother,  and  he  Fitz-osbome 
had  been  brought  up  with  the  CONQUEROR  tieiar. 
from  infancy.  Under  his  advice  William  A'D' 10  ' 
acted  in  all  the  negotiations  with  Edward  the  Confessor 
and  Harold  respecting  the  succession  to  the  crown  of 
England,  and  preparations  were  at  last  made  to  seize 
it  by  force  of  arms.  To  the  praise  of  consummate 
wisdom  in  the  cabinet  he  added  that  of  unsurpassed 
courage  in  the  field,  and  he  acted  a  conspicuous  part  in 
the  decisive  battle  of  Hastings,  insomuch  that  he  was 
proclaimed  to  be  "  the  pride  of  the  Normans  and  the 
scourge  of  the  English."f  The  earldom  of  Hereford 
was  conferred  upon  him,  with  large  possessions  in  the 
marches  of  Wales.  During  the  time  when  he  was  Chief 
Justiciar,  "  Edric  the  Wild,"  whose  possessions  lay  in 
that  country,  in  conjunction  with  several  other  Anglo- 
Saxon  Thanes,  and  backed  by  the  Princes  of  Wales,  set 
his  authority  at  defiance,  and  continued,  after  various 
repulses,  to  make  head  against  him  till  William  re- 
turned from  Normandy,  and  effectually  put  down  the 
insurrections  which  had  taken  place,  in  his  absence,  in 
this  and  other  parts  of  the  kingdom.  Notwithstanding 
their  general  good  understanding,  differences  would 

*  Pict.  153.  aliis  omnibus,   ad   invasionem  Anglise 

f  Pict.  151.  Order.  Vit.'203.  Spelman  excitavit,  funestoque    illo   Hastingense 

says :"  Acerrimus  autem  Anglorum  bog-  pralio   tertiam   aciein    duxit." — o'loss. 

tis  fuit,  et  qui  Normanniae  Ducem  prse  p.  336. 


14  WILLIAM  THE  CONQUEROR.  CHAP.  I. 

occasionally  arise  between  the  Conqueror  and  this 
favoured  captain.  It  is  related  that,  on  one  occasion, 
Fitz-Osborne,  being  steward  of  the  household,  or 
"  Dapifer,"  had  set  upon  the  royal  table  the  flesh  of 
a  crane  scarcely  half  roasted,  when  the  King,  who  in 
old  age  was  much  of  a  gourmand,  and  particularly 
prized  crane  when  well  cooked,  in  his  anger  aimed  a 
blow  at  him ;  this  was  warded  off  by  Eudo,  another 
favourite,  but  it  so  enraged  Fitz-Osborne  that  he  in- 
stantly threw  up  his  office.  He  was  succeeded  by 
Eudo,  who  is  thenceforth  designated  by  chroniclers  as 
"  Eudo  Dapifer."  Fitz-Osborne,  having  been  restored 
to  the  favour  of  his  sovereign,  and  created  Lord  of  the 
Isle  of  Wight,  died  in  the  year  1072.* 

Geoffrey,  Bishop  of  Coutance,  appointed  Chief  Jus- 
ticiar  for  a  special  occasion,!  was  one  of  the  fighting 
prelates  who  accompanied  William,  with  the  sanction 
of  the  Pope,  in  his  memorable  expedition ;  but  having 
given  judgment  against  Odo,  he  incurred  the  dis- 
pleasure of  this  powerful  favourite,  and  his  prefer- 
ment in  England  was  stopped. 

On  Odo's  disgrace,  William  de  Warrenne  and  Richard 
de  Benefacta  were  jointly  appointed  to  the 

William  de          —  f    rvi  •   f      T      ±-    •      '         Tni,        f 

Wan-enne  omce  ot  Chief  Justiciar.  The  former,  a 
de'Ben'efacta  countryman  and  companion  of  the  Conqueror, 
tkiarsJu8~  *8  cnien<y  noticed  as  being  the  ancestor  of  the 
celebrated  William  de  Warrenne  who  gained 
such  renown  by  his  actions  in  the  reigns  of  Henry  III. 
and  Edward  I. ;  and  is  still  more  celebrated  for  his 
answer,  on  being  required  to  show  his  title  to  his 
estate, — when,  drawing  his  sword,  he  exclaimed,  "  Wil- 
liam the  Bastard  did  not  conquer  the  kingdom  for 
himself  alone ;  my  ancestor  was  a  joint  adventurer  in 

*  Order.  Vit.  218.  Mad.  Ex.  i.  31-40.  tenuit  in  illo  notabiliplacitoapudPinen- 

Will.  Malm.  396-431.  dene,  inter  Lanfrancum  Archiepis- 

f  "  Goisfridus  Constanciensis  Episco-  copum  Cantuar.  et  Odonem  Comitem 

pus,  in  loco  Kegis  fuit,  et  Justiciam  Cantii." — Textus  Buff.  f.  50. 


A.D.  1072. 


WILLIAM  DE  CAKILEFO. 


15 


the  enterprise ;  what  he  gained  by  the  sword,  by  the 
sword  I  will  maintain."  * 

How  Richard  de  Benefacta  came  by  this  surname  has 
puzzled  antiquaries.  He  was  originally  called  Richard 
Fitz-Gislebert,  or  Fitz-Gilbert,  being  the  son  of  Gisle- 
bert,  or  Gilbert,  Count  of  Brion  in  Normandy.  He 
gained  distinction  at  Hastings,  and  as  a  reward  for  his 
bravery  he  received  8  lordships  in  Surrey,  35  in  Essex, 
3  in  Cambridgeshire,  2  in  Kent,  1  in  Middlesex,  1  in 
Wiltshire,  and  95  in  Suffolk,  besides  all  the  burgages 
in  the  town  of  Ipswich.  He  took  an  active  part  in  the 
great  survey  recorded  in  Domesday  ;  in  which,  as  may 
be  supposed,  his  name  very  frequently  appears.  His 
descendants  enjoyed  much  distinction  during  the  reigns 
of  all  the  Norman  kings. 

These  two  Grand  Justiciars,  during  their  joint  ad- 
ministration, invented  a  new  punishment,  to  be  inflicted 
on  disturbers  of  the  public  peace.  Having  encountered 
and  defeated  a  powerful  band  of  insurgents  at  a  place 
called  Fagadune,  they  cut  off  the  right  foot  of  all  they 


*  The  first  William  de  Warrennedied 
1089,  and  was  buried  in  the  chapter- 
house of  a  monastery  he  had  founded  at 
Lewes  for  monks  of  the  Cluniac  order. 
The  following  epitaph  was  engraved  on 
his  tomb : — 

"  Hie  Guilelmus  Comes,  locus  est  laudis 

tihi  femes, 

Hujus  fnndator,  et  largussedisamator. 
Iste  tuum  funus  decorat,  placuit  quia 

nmnna 
Pauperibus   Christi,    quod    prompta 

mente  dedisti 
Ille   tuos  cineres   servat   Pancratius 

has  res, 
Sanctorum  castris,  qul  te  sociabit  in 

astris. 
Optime  Pancrati,  fer  opem  te^  glorifi- 

canti; 
Daque  poli  sedem,  talem  tibi  qni  dedit 

sedem." 

It  is  reported  that  "  this  Earl  William 
did  violently  detain  certain  lands  from 


the  monks  at  Ely,  for  which  being  often 
admonished  by  the  abbot,  and  not 
making  restitution,  he  died  miserably; 
and,  though  his  death  happened  very  far 
from  the  Isle  of  Ely,  the  same  night  he 
died,  the  abbot,  lying  quietly  in  his  bed 
and  meditating  on  heavenly  things, 
heard  the  soul  of  the  Earl,  in  its  carriage 
away  by  the  devil,  cry  out  loudly,  and 
with  a  known  and  distinct  voice,  '  Lord 
have  mercy  on  me !  Lord  have  mercy  on 
me  1'  And,  moreover,  that  the  next  day 
the  abbot  acquainted  all  the  monks  in 
chapter  therewith ;  and  likewise  that, 
about  four  days  after,  there  came  a  mes- 
senger to  them  from  the  wife  of  this  Earl, 
with  one  hundred  shillings  for  the  good 
of  his  soul,  who  told  them  that  he 
died  the  very  hour  the  abbot  heard  that 
outcry ;  but  that  neither  the  abbot  nor 
any  of  the  monks  would  receive  it,  not 
thinking  it  safe  for  them  to  take  the 
money  of  a  damned  person." — See  Dug- 
dale's  "  Baronage,"  pp.  73,  74. 


16  REIGN  OF  WILLIAM  RUFUS.  CHAP.  I. 

took  alive,  including  the  ringleaders,  the  Earls  of  Nor- 
folk and  Hereford.  It  seems  then,,  to  have  been  con- 
sidered that  in  times  of  rebellion  the  Judges  were  to 
exercise  martial  law,  or  to  disregard  all  law,  according 
to  their  own  arbitrary  will. 

There  is  only  one  other  Chief  Justiciar  recorded  as 

having  served  under  the  Conqueror ;  William 

William  de     de  Carilefo,  or  Karilegho,  who  was  a  pious 

Carilefo  Chief          .  . '  &       '        . 

Justiciar.  priest,  and  fought  only  with  spiritual  weapons. 
He  was  Abbot  of  St.  Vincent's  in  Normandy, 
and  without  having  been  in  the  host  which  invaded 
England,  or  ever  having  put  on  a  hauberk  (strange  to 
say  !),  from  the  mere  reputation  of  his  sanctity  he  was 
nominated  to  the  bishopric  of  Durham.  He  was  con- 
secrated at  Gloucester  by  the  Archbishop  of  Canterbury, 
in  the  presence  of  the  King  and  the  assembled  prelates 
of  the  realm.  Simeon,  having  described  this  ceremony, 
adds, "  Erat  acerrimus  ingenio,  subtilis  consilio,  magnae 
eloquentise  simul  et  sapientiae."  He  is  much  celebrated 
for  the  purity  and  impartiality  with  which  he  admi- 
nistered justice  when  placed  at  the  head  of  the  AULA. 
KEGIA.  ;  as  well  as  the  vigour  which  he  displayed  in 
asserting  the  privileges  of  his  see  against  the  King. 
In  the  succeeding  reign  he  was  Chief  Jus- 
ticiar a  second  time  after  the  fall  of  Odo; 
but  soon  quarrelled  with  Eufus,  who  was  a  notorious 
spoliator  of  Church  property,  and  he  was  obliged  to 
fly  into  Normandy,  the  temporalities  of  his  see  being 
seised  into  the  King's  hands.  However,  when  Eufus 
made  a  northern  progress  to  receive  the  homage  of 
Malcolm,  King  of  Scotland,  and  perceived  the  venera- 
tion with  which  the  exiled  bishop  was  regarded,  he  had 
the  generosity  to  recall  him  to  his  see,  and  made  resti- 
tution of  the  lands  of  which  he  had  deprived  it.  The 
prelate  employed  the  ample  revenues  thus  restored  to 
him  in  the  munificent  work  of  erecting  a  new  and 


A.D.  1087.   RALPH  FLAMBAKD,  CHIEF  JUSTICIAR.       17 

splendid  cathedral  at  Durham,  on  a  plan  which  he  had 
brought  with  him  from  France.  He  also  presented  to 
the  Church  a  large  store  of  books  and  ornaments  col- 
lected by  him  during  his  banishment.  Again  falling 
under  the  King's  displeasure,  and  being  obliged  to  obey 
a  mandate  to  travel  towards  Windsor  under  the  pres- 
sure of  severe  illness,  he  expired  soon  after  his  arrival 
there,  on  the  morrow  of  the  Epiphany,  in  the  year 
1095.  Such  was  his  modesty,  that  he  declined  in  his 
last  moments  the  honour  of  burial  in  his  cathedral  near 
the  holy  relics  of  St.  Cuthbert ;  and  he  was,  by  his  own 
desire,  interred  on  the  north  side  of  the  chapter-house. 
But  he  himself  was  regarded  as  a  Saint ;  miracles  were 
worked  at  his  shrine ;  and  this  continued  the  cherished 
place  of  sepulture  of  succeeding  bishops.  The  monkish 
historians  of  Durham,  in  addition  to  encomiums  on  his 
piety,  his  liberality,  his  zeal  for  the  rights  of  the 
Church,  his  genius,  and  his  learning,  praise  him  loudly 
for  the  simplicity  of  his  manners  and  the  temperance 
of  his  life.* 

Rufus's  only  other  Chief  Justiciar,  in  all  respects  a 
contrast  to  his  predecessor,  was  Ralph  Flam-    . 

1  '  "  Flambard 

bard,  the  "  devouring  Torch,"  who  for  some   chief  jus- 
time  held  the  Great  Seal,  and  whom  I  have 
consequently  described  in  my  LIVES  OF  THE  CHANCELLORS. 
To  this  work  I  must  refer  such  of  my  readers  as  would 
become  acquainted  with  his  revolting  atrocities  and  his 
edifying  penitence.     I  may  add,   that   while  he   was 
Chief  Justiciar  the  sittings  of  the  Curia  Kegis 
were  first  held  in  Westminster  Hall.     The   First  sittings 
Saxon  Kings  had  founded  a  monastery  on  a   tterfiUL 
piece   of   ground    then   surrounded  by  the 
Thames,  and  called  "  Thorney  Island."     In  relation  to 
its  direction  from  the  City  of  London,  the  metropolis 
of  the  kingdom,  the  new  foundation  received  the  name 

*  Godwin  de  Prass.  731.    Roger  de  Wendover,  xl.  32.   Will.  Milm.  486. 
VOL.  I.  C 


18  EEIGN  OF  HENKY  I.  CHAP.  I. 

of  "  Westminster ;"  and  here  a  royal  palace  was  erected, 
which  was  enlarged  and  beautified  by  Edward  the  Con- 
fessor, but  was  still  mean,  compared  with  the  stately 
structures  erected  by  the  Normans  at  Eouen.  The 
Conqueror,  although  he  observed  that  it  contained  no 
hall  in  which  the  great  council  of  the  nation  could 
assemble,  or  in  which  justice  could  conveniently  be 
administered,  had  been  too  much  occupied  with  graver 
matters  to  supply  the  defect ;  but  William  Eufus  built, 
adjoining  to  the  palace  at  Westminster,  the  magnificent 
hall  which  is  looked  upon  with  such  veneration  by 
English  lawyers,  and  which  is  the  scene  of  so  many 
memorable  events  in  English  history.  This  being  com- 
pleted at  Whitsuntide  1099,  the  Chief  Justiciar,  Flam- 
bard,  sat  here  in  the  following  Trinity  Term ;  and  the 
superior  courts  of  justice  have  been  held  in  it  for  750 
years.  The  concentration  thus  established  has  perhaps 
contributed  to  the  ascendancy  which  English  law  and 
English  lawyers  have  so  long  enjoyed.* 

It  might  have  been  expected  that  Henry  I.,  who  at 
the  commencement  of  his  reign  wished  to 
make   himself  popular  by  restoring   Saxon 
institutions,    would   have  abolished   or  reformed   the 
office  of  Chief  Justiciar,   of  which  such  heavy  com- 
plaints had  been  made  by  the  natives  ;  but  he  allowed 
it  to  remain  in  full  vigour,  and  he  soon  appointed  to  it 
the  famous  Roger,  Bishop  of  Salisbury,  who  rendered 
it  more  odious  than  it  had  ever  been  before. 

Roger, 

Bishop  of       The  extraordinary  vicissitudes  of  his  career, 

Salisbury,  „  ..  .  ...  .,, 

Chief  Jus-       irom  his  reading  mass  as  a  village  curate  in 
Normandy  till  he  was  obliged  to  surrender 
his    castle    of    Devizes   to    King   Stephen,   and    died 
miserably,  I  have  already  recorded.^ 

*  Independently  of  the  prestige  at-  perse  themselves  in  separate  bodies  over 

taching  us  to  Westminster  Hall,  I  would  different  regions  of  the  metropolis, 

caution  my  brethren  against  the  desire,  f  Lives  of  Chancellors,  vol.  i.  ch.  si. 
from  some  partial  convenience,  to  dis- 


A.D.  1087.     PRINCE  HENRY,  CHIEF  JUSTICIAR.  19 

The  only  other  Chief  Justiciar  of  much  note  during 
this  reign  was  Ealph  Basset,  son  of  one  of  the 
companions  of  the  Conqueror  and  the  founder   Ralph  Basset 

f        f       -i      •       T7-       i       j       f  L    T   j.-      -L-          Chief  Jus- 

oi  a  iamily  in  England  oi  great  distinction  ticiar. 
for  many  generations.*  Of  his  judicial  ex- 
ploits there  is  no  record,  except  at  a  grand  assize  which, 
during  the  King's  absence  in  Normandy,  he  held  at 
Huncote  in  Leicestershire.  Here  he  convicted  capitally, 
and  executed,  no  fewer  than  four  score  and  four  thieves, 
and  deprived  six  others  of  their  eyes  and  their  virility ; 
drawing  upon  himself  the  imputation  of  cruelty,  and 
not  escaping  the  suspicion  that  he  was  influenced  by  a 
desire  to  enrich  himself  from  the  forfeitures  which  were 
incurred.f  He  held  the  office  for  a  long  period,  and 
was  much  more  praised  for  the  vigour  than  the  clemency 
or  justice  with  which  he  exercised  its  functions.^ 

The  Chief  Justiciars  of  King  Stephen  were  not  men 
of  much  renown  § — till  the  last, — who  was 
no  other  than  Prince  Henry,  afterwards  his   nsi.us 
successor,  and  so  famous  under  the  name  of  A  D  U53 
Henry  II.     After  the  long  struggle  for  the   rrince  Henry 

f  -m       t       J    v   4.  XT.       j ^        -UX  f    (afterwards 

crown  of  England  between  the  daughter  oi   Henry  n.) 
Henry  I.  and  him  who  pretended  to  be  the   titiar.  U8 
heir  male  of  the  Conqueror,  it  was  at  last 
settled  that  he  should  reign  during  his  life,  and  that 

*  Now  represented  by  the  Baroness  dum  gravis  fuit  his  annus.    Qui  quic- 

Basset.  quam  honorum    habebat,    iis   privatus 

-f-  A.D.  11 24.     "  Toto  hoc  anno  fuit  oral  per  magna  vectigalia,  et  per  iniqua 

Rex  Henricus  in  Normannia.     Hoc  ipso  decreta;  qui  nihil,  habebat  periit  fame." 

anno,  post    S.   Andre®    festum    taii.it  — Chron.  Sax.  ad  ann.  1124. 

Radulfus   Basset  et  Regis  Theini  Pro-  J  He  was  succeeded  by  his  son  Richard 

cerum    Concilium   in   Lethecjestrescire  Basset,  of  whom  I  do  not  find  any  more 

apud  Hunde-hoge,  et  suspenderunt  ibi  precise  notice  than  by  Ordericus  Vitalis, 

tot  fures  quot  antea  numquam ;  scilicet  who  says,  '  Ricardus  Basset,   cujus  in 

in  parvo  tomporis  spatio,  omnino  qua-  Anglia,  vivente  Henrico  Rege,  putentia 

tuor  et  quadrasinta  viros.  Sex  item  viros  utpote  Capitalis  Justitiarii,  magna  fuit." 

privarunt   oculis   et   testiculis."     The  — Ord.  Vit.  ad  ann.  1136. 

writer  goes  on  pathetically  to  describe  }  Geoffrey  Eidel,  Geoffrey  do  Clin'on 

the  oppressed  condition  of  his  country-  and  Alberic  de  Vere. 
men  under  the  Chief  Justiciar :  "  Admo- 

c  2 


20  EEIGN  OF  HENEY  I.  CIIAP.  I. 

her  son  by  Geoffrey  Plantagenet  should  be  immediately 
appointed  Chief  Justiciar,  and  should  mount  the  throne 
on  Stephen's  death.*  I  shall  not  attempt  to  rival  Lord 
Lyttleton  by  attempting  a  history  of  this  Chief  Jus- 
ticiar from  his  cradle  to  his  grave.  I  must  content 
myself  with  saying  that  he  held  the  office  above  a  year. 
During  the  first  six  months  he  actually  presided  in  the 
AULA  EEGIS,  and,  with  the  assistance  of  the  Chancellor 
and  the  other  great  officers  of  state,  decided  the  causes 
civil  and  criminal  which  came  before  this  high  tribunal. 
He  then  paid  a  visit  to  the  continental  dominions  which 
he  held  in  his  own  right  and  in  right  of  Eleanor  his 
wife,  extending  from  Picardy  to  the  mountains  of 
Navarre.  Sojourning  in  Normandy  when  he  heard  of 
the  death  of  Stephen,  he  was  impatient  to  take  pos- 
session of  the  crown  which  had  been  secured 
to  him  by  the  late  treaty.  A  long  con- 
tinuance of  stormy  weather  confined  him  a  prisoner 
in  the  haven  of  Barfleur,  but  at  last  he  reached  South- 
ampton, and,  being  crowned  King  of  England,  the  first 
act  of  his  reign  was  to  appoint  a  new  Chief  Justiciar. 
The  object  of  his  choice  was  Eichard  de  Luci,  a 
powerful  baron  of  a  distinguished  Norman 

Richard  de        r  ° 

Luci  Chief      family,   who  was   expected    to   govern    the 

Justiciar.  •,  .,•,  ,        -,     ,  •  TT  » 

realm  with  absolute  sway  in  Henrys 
name.  Although  he  long  nominally  retained  his  office, 
it  was  soon  stripped  of  all  its  power  and  splendour. 
The  Lord  Chancellor  had  hitherto  been  a  subordinate 
officer,  but  the  towering  ambition  and  lofty  genius  of 
Thomas  a  Beeket,  almost  from  the  moment  when  he 
received  the  Great  Seal,  reduced  all  the  other  ministers 
of  the  crown  to  insignificance,  and,  till  the  time  when, 

*  "AnnoGratias  1153,  qui  est.  annus  Anglice  sub  ipso,  et  omnia  negotia  per 

18  regni  Regis  Stephani,  pax  Anglian  eum  tenninabantur.    Et  ab  illo  tempore 

reddita  est,  pacificatis  ad  invicem  Rege  Rex  et  Dux  iinanlraes  erant  in  reglmine 

Stephano  tt  Henrico  Duce  Normnnnlie.  Regni." — Hoveden,  vol.  i.  p.  490.  n.  40. 
Rex  vero  constituit  Ducem  Justiciarium 


A.D.  1154.  KICHAKD  DE  LUCI,  CHIEF  JUSTICIAR.         21 

becoming  Archbishop  of  Canterbury,  he  quarrelled 
with  his  benefactor,  all  the  power  of  the  state  was 
concentrated  in  his  hands.  Encroaching  on  the  func- 
tions of  the  Chief  Justiciar,  he  not  only  ruled  all  ques- 
tions that  came  before  the  AULA  REGIS,  although  only 
sixth  in  point  of  rank  of  those  who  sat  as  judges  there,* 
but  the  domestic  government  of  the  country  and  foreign 
negotiations  were  exclusively  intrusted  to  him,  and  when 
war  broke  out  he  commanded  the  royal  army  in  the  field. 

After  the  King's  quarrel  with  the  Archbishop,  the 
importance  of  De  Luci  was  very  much  en- 
hanced, and  we  not  only  find  judicial  proceed- 
ings recorded  as  having  taken  place,  "  Coram  Kicarclo 
de  Luci  et  aliis  Baronibus  apud  Westmonasterium," 
but  we  learn  that  he  went  about  administering  justice 
all  over  the  kingdom,  and  that  he  quelled  a  dangerous 
insurrection  in  London.  To  him  we  are  chiefly  in- 
debted for  the  CONSTITUTIONS  OF  CLARENDON,  by  which 
a  noble  effort  was  made  to  shake  off  the  tyranny  of 
Eome,  and  which  were  adopted  as  the  basis  of  our 
ecclesiastical  'polity  at  the  Reformation.!  He  was  ex- 
communicated for  the  part  he  had  taken  in  this  heretical 
production,  but  afterwards  made  his  peace  with  the 
Church.  At  last  he  was  overwhelmed  by  the  terrors  of 
superstition,  and,  abandoning  worldly  t  cares  and  gran- 
deur, he  laid  down  his  office,  became  a  monk,  and  died 
wearing  the  cowl  in  a  monastery  which  he  had  founded.1 

His   successor  was   Robert  Earl  of  Leicester.      Al- 
though inferior  men  now   held  the   Great   Robert  Earl 
Seal,  the  office  of  Chief  Justiciar  did  not  re-  &{£ jut* 
cover  its  splendour  till  near  the  end  of  this   ticiar- 
reign,  when  it  was  filled  by  one  of  the  greatest  men 

*  "  He  canie  after  the  Justiciar,  the  relictu,  Justiciaria,  potestate,  factus  c-st 

Constable,  the  Marcschall,  the  Seneschall,  Canonicus  regularis  in  Abbatia"  de  Leslies 

and  the  Chamberlain." — Jfadd.Exch.c.ii.  quam  ipse  in  fundo  suo  fecerat." — 

f  Madd.  Exch.  i.  146-701.  K.  Jfoveden,  f.  337,  (a). 

J  "  Kic.  de  Luci  Justiciarius  Anglian, 


22  REIGN  OF  HENRY  I.  CHAP.  I. 

who  have  appeared  in  English  history.  We  are  in- 
formed of  only  one  judgment  of  the  King's  Court  while 
the  Earl  of  Leicester  presided  there,  and  this  was  upon 
the  ex-Chancellor,  Thomas  a  Becket,  who  was  first 
amerced  in  500Z.,  and  proving  contumacious,  was 
ordered  to  "be  imprisoned.* 

I  will  therefore  pass  on  to  KANULFUS  DE  GLANVILLE, 
equally  distinguished  as  a  lawyer,  a  statesman,  and  a 
soldier. 

He  was  "born  in  the  end  of  the  reign  of  Henry  I., 
at  Stratford,  in  the  county  of  Suffolk ; 

Eanulfus  de  /. 

cianviiie.       his  family  was   noble,    "but   I   do  not    find 

His  birth.  /.      ,  '  j.        TT 

any  particulars  01  his  progemtors.y  He 
afforded  a  rare  instance  in  those  days  of  a  layman  being 
trained  as  a  good  classical  scholar,  and  being  initiated 
in  all  the  mysteries  of  the  feudal  law.  At  the  same 
time  he  was  a  perfect  knight,  being  not  only  familiar 
with  all  martial  exercises,  but  having  studied  the  art  of 
mano3uvring  large  bodies  of  men  in  the  field,  according 
to  the  most  scientific  rules  then  known.  He  attached 
himself  to  several  Chief  JuRticiars,|  sometimes  assist- 
ing them  in  despatching  business  in  the  AULA  EEGIS, 
and  sometimes  accompanying  them  in  their  campaigns. 
He  inherited  a  considerable  estate  from  his  father, 
and  he  obtained  large  possessions  in  right  of  his  wife 
Berta,  daughter  and  heiress  of  Theobald  de  Valeyinz, 
Lord  of  Parham.  Part  of  these  were  situate  in  the 
county  of  York,  where  he  seems  to  have  established  his 
principal  residence.  Under  King  Stephen  he  was  re- 
ceiver for  the  forfeited  Earldom  of  Conan,  and  collector 
of  the  rents  of  the  Crown  in  Yorkshire  and  Westmoreland .  § 

*  Hoved.  vol.  ii.  494.   n.  1.  10.  20;  all  the  forms  of  procedure,  there  seems 

495.  n.  10.  reason  to  think  that  he  must  some  time 

f  "RanulphdeGlanvillafuitvir  pra-  have  acted  as  prothonotary  or  clerk  of 

clarissimus   genere,    utpote   de    nobile  the  court,  although  never  in  orders, 

sanguine."— See  Preface  to  Lord  Coke's  $  Madd."  Exch.  1.   297   (#),    430  (6), 

8th  Rep.  xxi.  328  (p) ;  Ii.  183  (y),  200  (0). 

J  From  his  knowledge  of  practice,  and 


A.D.  1162.  EANULFUS  DE  GLANVILLE.  23 

During  the  year  1174,  the  20th  of  Henry  II.,  he 
was  High  Sheriff  of  Yorkshire,  and  in  this  He  gh 
capacity  he  conferred  greater  glory  on  his  of  Yorkshire, 
country  than  any  Englishman,  before  or 
since,  holding  merely  a  civil  office.  Henry  II.  "being 
hard  pressed  in  his  continental  dominions  by  the 
unnatural  alliance  between  his  rebellious  sons  and 
Louis  VII.,  the  Scots  under  their  King,  William  the 
Lion,  invaded  England,  and  committed  cruel  ravages 
in  the  northern  counties.  Being  stopped  on  the  banks 
of  the  Tyne  by  the  obstinate  defence  of  the  Castle  of 
Prudhoe,  Geoffrey,  Bishop  of  Lincoln,  the  King's  son 
by  the  Fair  Kosamond,  collected!  a  large  army  to  en- 
counter them.  At  his  approach  they  retreated  to  the 
north,  and  he,  thinking  that  they  had  recrossed  the 
Tweed,  marched  back  to  his  see,  singing  TE  DEUM,  and 
celebrating  very  boastfully  the  supposed  success  which 
he  had  gained.  The  King  of  Scots,  however,  took 
several  strong  castles  in  Northumberland,  which  had 
at  first  withstood  his  assault,  and  laid  siege  to  Alnwick 
with  his  regular  forces,  sending  skirmishing  parties 
even  beyond  the  Tyne  and  the  Tees  to  collect  provisions 
and  levy  contributions.  One  of  these,  commanded  by 
Duncan,  Earl  of  Fife,  surprised  the  town  of  Wark- 
worth,  which  they  burned  to  the  ground,  massacring 
all  the  inhabitants  without  distinction  of  age  or  sex, 
and  not  sparing  even  those  who  had  taken  sanctuary 
in  the  churches  and  convents. 

Eanulfus   de    Glanville,   the    sheriff  of    Yorkshire, 
hearing    of   these   excesses,    without    wait-   Hetake8 
ing  for  orders  from  the  government,  issued   wuiiamthe 

,.          ,.  .    •          ,1  ..    ,  Lion,  King 

a  proclamation  ior  raising  the  posse  cormtatus,   of  Scots,  pri- 
and   all   classes   of  the   inhabitants   flocked 
eagerly  to   his  standard.     With  a  body  of  horse,  in 
which  were  about  four  hundred  knights,  after  a  hard 
day's  march,  he  arrived  at  Newcastle.     There  he  was 


24  REIGN  OF  HENRY  II.  CHAP.  I. 

told  that  William  the  Lion,  instead  of  repressing, 
encouraged  the  devastation  committed  by  the  ma- 
rauders, and,  believing  that  there  was  no  longer  any 
army  to  face  him,  entirely  neglected  all  the  usual  pre- 
cautions of  military  discipline.  The  gallant  sheriff 
resolved  to  push  forward  next  morning,  in  the  hope 
of  relieving  Alnwick  and  surprising  the  besiegers. 
The  English  accordingly  began  their  march  at  break 
of  day,  and,  though  loaded  with  heavy  armour,  in  five 
hours  had  proceeded  nearly  thirty  miles  from  New- 
castle. As  they  were  then  traversing  a  wild  heath 
among  the  Cheviot  Hills  they  were  enveloped  in  a 
thick  fog.  and  the  advice  was  given  that  they  should 
try  to  find  their  way  back  to  Newcastle;  but  Glan- 
ville,  rather  than  stain  his  character  with  the  infamy 
of  such  a  flight,  resolved  to  proceed  at  all  hazards, 
and  his  men  gallantly  followed  him.  They  proceeded 
some  miles  in  darkness,  being  guided  by  a  mountain 
stream,  which  they  thought  must  conduct  them  to 
the  level  country.  Suddenly  the  mist  dispersed,  and 
they  saw  before  them  in  near  view  the  castle  of  Aln- 
wick beleaguered  by  straggling  bands  of  Scots,  and  the 
Scottish  King  amidst  a  small  troop  of  horsemen  divert- 
ing himself  with  the  exercises  of  chivalry,  free  from 
any  apprehensions  of  danger.  William  at  first  mistook 
the  English  for  a  party  of  his  own  countrymen  return- 
ing loaded  with  the  spoils  of  a  foray.  Perceiving  his 
error,  he  was  undismayed,  and,  calling  out  "  Noo  it 
will  be  seen  whilk  be  true  knichts"*  he  instantly 
charged  the  enemy.  In  a  few  minutes  he  was  over- 
powered, unhorsed,  and  made  prisoner.  Some  of  his 
nobles  coming  to  the  rescue,  and  finding  their  efforts 
ineffectual,  voluntarily  threw  themselves  into  the  hands 

*  These  words  he  must  have  spoken  spoken  in  French,  which  was  then  the 

that    they  might  be  understood  by  his  language  of  the  higher  orders  in  Scotland 

Lowland  common  soldiers     Addressing  as  well  as  in  England, 
the  knights  themselves,  he  would  have 


A.D.  1174.  KANULFUS  DE  GLANVILLE.  25 

of  the  English,  that  they  might  be  partakers  in  the 
calamity  of  their  sovereign.  Glanville,  prudently  con- 
sidering that  he  might  be  endangered  by  the  reassem- 
bling of  the  scattered  bands  of  the  Scots,  immediately 
set  off  with  his  prisoners  for  Newcastle,  and  arrived 
there  the  same  evening.  Thus  did  the  valiant  civilian 
in  one  day,  after  the  fatigue  of  a  long  march,  ride  at 
the  head  of  a  band  of  heavy  armed  horse  above  seventy 
miles,  charge  a  national  army,  and  make  captive  a 
King  who  had  threatened  to  carry  war  and  desolation 
into  the  very  heart  of  England.  Having  secured  his 
royal  prize  in  the  strong  castle  of  Eichmond,  he  sent 
off  a  messenger  to  London  to  announce  his  victory. 

It  so  happened  that,  the  same  hour  at  which 
William  was  taken  at  Alnwick,  Henry  had  HOW  the 
been  doing  penance  at  the  tomb  of  St.  ^TveXby 
Thomas  of  Canterbury.*  Alarmed  by  the  Hen]7ir- 
dangers  which  surrounded  him  from  domestic  and 
foreign  enemies,  and  dreading  that  he  had  offended 
Heaven  by  the  rash  words  he  had  spoken  which  led 
to  the  martyrdom  of  the  Archbishop,  he  had  thought 
it  necessary  to  visit  the  shrine  of  the  new  saint.  At 
the  distance  of  three  miles  discovering  the  towers  of 
Canterbury  Cathedral,  he  alighted  from  his  horse,  and 
walked  thither  barefoot,  over  a  road  covered  with 
rough  and  sharp  stones,  which  so  wounded  his  feet 
that  in  many  places  they  were  stained  with  his  blood. 
His  bare  back  was  then  scourged  at  his  own  request  by 
all  the  monks  of  the  convent,  and  he  continued  a  whole 
day  and  night  before  the  tomb,  kneeling  or  lying  pros- 
trate on  the  hard  pavement,  employed  in  prayer,  and 
without  tasting  nourishment.  He  then  journeyed  on 

*  All  Europe  was  now  ringing  with  day  of  his  death,  "  In  order  that,  being 

the  fame  of  his  miracles,  and,  by  a  papal  continually  applied  to  by  the  prayers  of 

bull  issued  the  year  before,  he  had  been  the  faithful,  he  should  intercede  with  God 

declared  a  Saint  and  a  Martyr,  an  anni-  for  the  clergy  and  people  of  England." 
versary  festival  being  appointed  on  the 


26  EEIGN  OF  HENRY  II.  CHAP.  I. 

to  Westminster;  and  he  was  lying  in  bed,  very  sick 
from  the  penance  he  had  undergone,  when,  in  the  dead 
of  night,  a  messenger,  stained  with  the  soil  of  many 
counties,  arrived  at  the  palace,  and,  declaring  that  he 
was  the  bearer  of  important  despatches,  swore  that  he 
must  see  the  King.  The  warder  at  the  gate  and  the 
page  at  the  door  of  the  bedchamber  in  vain  opposed  his 
entrance,  and,  bursting  in,  he  announced  himself  as  the 
servant  of  Ranulfus  de  Glanville.  The  question  being 
asked,  "Is  all  well  with  your  master?"  he  answered, 
"  All  is  well,  and  he  has  now  in  his  custody  your  enemy 
the  King  of  Scots."  "Repeat  those  words,"  cried 
Henry,  in  a  transport  of  joy.  The  messenger  repeated 
them,  and  delivered  his  despatches.  Henry,  having 
read  them,  was  eager  to  communicate  the  glad  tidings 
to  his  courtiers,  and,  expressing  gratitude  to  Eanulfus 
de  Glanville,  piously  remarked  that  "  the  glorious  event 
was  to  be  ascribed  to  a  higher  power,  for  it  had  hap- 
pened while  he  was  recumbent  at  the  shrine  of  St. 
Thomas."* 

Glanville  was  ordered  forthwith  to  appear  with  his 
prisoner,  and  to  carry  him  to  Falaise  in  Normandy. 
Here  William  the  Lion  was  kept  in  strict  confinement, 
till  the  negotiation  was  concluded  by  which  he  was  un- 
generously compelled  to  acknowledge  himself  the  liege- 
man of  the  King  of  England. 

The  sheriff  was  immediately  promoted  to  be  one  of 
the  Justiciars  appointed  to  assist  the  great  officers  in 
the  AULA  REGIS,  and  to  go  tiers  or  circuits  for  adminis- 
tering justice  periodically  in  different  parts  of  Eng- 
land.'j'  In  this  new  capacity  he  showed  as  much  zeal 

*  Xewb.  ii.  36.     Get-vase,  1427.  Dal-  After  the  mention  of  his  name  with  five 

rymp.  Annals,  i.  129.    R.  Hoved.  529.  others,  there  is  the  following  observation 

t  There  seems  reason  to  think  that  he  in  Maddox: — "Isti  sex  sunt  Justitia;  in 

was  one  of  a  court  appointed  to  receive  curia  regis  constitutl  ad  audiendum  cla- 

petitions  in  the  first  instance,  and  to  mores  populi." 
report  upon  them  to  the  Aula  Regis. 


A.D.  1174.  EANULFUS  DE  GLANVILLE.  27 

as  when  leader  of  a  military  band,  and  the  only  fault 
imputed  to  him  was  that  he  sometimes  displayed 
"  a  vigour  beyond  the  law."  These  stretches  of  au- 
thority, however,  were  justified  or  palliated  by  the 
turbulence  of  the  times.  He  now  possessed  the  entire 
confidence  of  the  King,  and  he  gradually  acquired 
more  influence  than  any  other  minister. 

One  task  of  peculiar  delicacy  was  committed  to  him. 
Henry,  although  he  owed  so  much  to  his  wife,  proved 
to  her  the  worst  of  husbands ;  and  he  not  only  enter- 
tained the  Fair  Eosamond  and  other  mistresses,  but  he 
actually  shut  up  Eleanor  as  a  prisoner  in  the  castle  of 
Winchester.  The  government  of  this  fortress,  with  the 
care  of  the  royal  captive,  was  now  assigned  to  Glan- 
ville,  and  was  continued  to  him  till  the  death  of  Henry, 
after  a  lapse  of  sixteen  years.  He  had  contrived,  how- 
ever, to  give  satisfaction  to  both  parties,  for  the  King 
praised  him  for  his  watchfulness  and  the  Queen  for  his 
kindness.* 

As  a  reward  for  all  these  services,  Glanville  at  last 
gained  the  object  of  his  ambition,  and  was 
installed  in  the  office  of  Chief  Justiciar.     It   Gia'nvme' 
had  been  some  time  in  commission,  the  com-   ^ticiar"* 
missioners  being  the  Bishops  of  Winchester, 
Norwich,  and  Ely ;  but  as  soon  as  the  Pope  heard  of 
their  appointment  he  wrote  to  say  that  "  it  was  the 
duty  of  pastors  to  feed  their  flocks,  not  to  act  the  part 
of  secular  magistrates,"  and  he  recalled  them  from  the 
courts  in  which  they  presided  to  the  care  of  the  dioceses 
to  which  they  had  been  consecrated.     On  their  resigna- 
tion, Eanulfus  de  Grlanville,  with  universal  applause, 
was   appointed  to  the  office  with  sole  and  undivided 
sway.f     He  is  the  first  who  filled  it  who  is  celebrated 
for  learning,  impartiality,  and  other  qualities  purely 

*  See  the  authorities  collected  by  Miss     Eleanor. 
Strickland  in  her  excellent  Life  of  Queen         f  Dice-to  606.    R.  Hoved.  337. 


28  EEIGN  OF  HENRY  II.  CHAP.  I. 

judicial.  Under  him  the  AULA  REGIS  deserved  the  praise 
bestowed  upon  it  by  Peter  de  Blois  in  a  letter  to  the 
King  :— "  If  causes,"  said  be,  "  are  tried  in  the  presence 
of  your  Highness  or  your  Chief  Justiciar,  then  neither 
gifts  nor  partiality  are  admitted ;  there  all  things  pro- 
ceed according  to  the  rules  of  judgment  and  justice ;  nor 
does  ever  the  sentence  or  decree  transgress  the  limits 
of  equity.  But  the  great  men  of  your  kingdom,  though 
full  of  enmity  against  each  other,  unite  to  prevent  the 
complaints  of  the  people  against  the  exactions  of  sheriffs, 
or  other  officers  in  any  inferior  jurisdictions,  whom 
they  have  recommended  and  patronise,  from  coming  to 
your  royal  ears.  The  combination  of  these  magnates 
can  only  be  truly  compared  to  the  conjunction  of  scales 
on  the  back  of  the  Behemoth  of  the  Scriptures,  which 
fold  over  each  other,  and  form  by  their  closeness  an 
impenetrable  defence."* 

Yet  my  Lord  Chief  Justiciar  Glanville  himself  did 
not  escape  calumny.   The  story  was  circulated 

AJ>   1184 

against  him,  and  is  recorded  by  a  contem- 
porary historian,  that,  to  get  possession  of  the  wife  of 
Gilbert  de  Plumpton,  he  brought  a  false  charge  of  rape 
against  that  potent  baron  before  the  AULA  REGIS,  sitting 
at  Worcester,  and  sentenced  him  to  be  hanged;  but 
that  the  King,  taking  pity  upon  the  prisoner,  and 
knowing  the  motive  for  the  prosecution,  spared  his  life, 
and  commuted  the  sentence  to  perpetual  imprisonment.^ 
This  is  probably  a  scandalous  perversion  of  the  truth 
by  an  enemy ;  for  we  have  every  reason  to  believe  that 

*  Epistle  95  ad  Hen.  Ilegcm.  pietate  commotns  prsecepit  cnstoditum 

f  A.D.  1184.    "  Eodem  anno  cum  Gil-  manere;  sciebat  enim  quod  per  invidiam 

bertus  de  Plumtun  Miles  nobili  prosapia  fecerat  hsec  illi  Ranulfus  de  Glanvilla, 

ortus    ductus   esset  in  vinculis  usque  qui  eum  morti  tradere  volebat  propter 

Wigorniam,  et  accusatus  csset  de  raptu  uxorem  suam.    Sic  itaque  Miles  ille  a 

coram  Domine  Rege  a  Ranulfo  de  Glan-  morte  liberatus  usque  ad  obitum  Regis 

villa  Justiciario  Anglise,  qui  eum  con-  fuit   incarceratus." — R.  Hoced.    vol.  ii. 

demnare  volebat,  injusto  judicio  judi-  pp.  622,  623. 
catus   est   suspend!  in  patibulo.    Rex 


A.D.  1184.  RANULFUS  DE  GLANVILLE.  29 

the  Chief  Justiciar  was  a  man  of  pure  morals  and  hon- 
ourable principles ;  and  it  is  incredible  that  Henry, 
who  was  renowned  for  his  love  of  justice,  should  have 
continued  to  employ,  in  a  post  of  high  power  and  trust, 
one  whom  he  had  detected  in  attempting  such  an  enor- 
mity. We  need  not  doubt  that  the  punishment  was 
mitigated  on  account  of  some  extenuating  circumstances, 
which  might  have  been  brought  to  the  King's  notice 
by  the  Judge  himself. 

Glanville  continued  to  fill  the  office  of  Chief  Justiciar 
for  five  years  longer ;  and  his  judicial  repu- 
tation   still  went  on  increasing.     He  now   a  lawwrtter. 
composed  and  published  in  Latin,  'A  Trea- 
tise  on   the  Laws   and  Customs  of  the   Kingdom   of 
England,'  which  on  some  points  is  still  of  authority, 
and  which  may  be  perused  with  advantage  by  all  who 
take  an  interest  in  our  legal  antiquities.     This  author 
is  to  be  considered  the  father  of  English  iuris- 

AD    118H 

prudence.  Bracton,  who  wrote  in  the  follow- 
ing century,  is  more  methodical  and  elegant,  but  he 
draws  largely  from  the  Roman  civil  law,  and  is  some- 
times rather  speculative ;  while  Glanville  actually  de- 
tails to  us  the  practice  of  the  AULA  REGIS,  in  which  he 
presided, — furnishes  us  with  a  copious  supply  of  pre- 
cedents of  writs  *  and  other  procedure  then  in  use, — 
and  explains  with  much  precision  the  distinctions  and 
subtleties  of  the  system  which,  in  the  fifth  Norman 
reign,  had  nearly  superseded  the  simple  juridical  insti- 
tutions of  our  Anglo-Saxon  ancestors.  The  general 
reader  may  be  amused  by  a  translation  of  his  PRE- 
FACE : — 

"  The  Majesty  of  the  King  should  not  merely  be  supported 
•with  arms  to  restrain  rebels  and  to  repel  foreign  invaders,  but 

*  It  is  curious  to  obsorve  that   his     those  used  in  the  reign  of  William  IV. 
"  Pnpcipe   quod   roddat  "   and  various     when  real  actions  were  abolished, 
other  writs  are    precisely  the  same  as 


30  REIGN  OF  HENEY  II.  CHAP.  I. 

ought  likewise  to  be  adorned  with  laws  for  the  peaceful  govern- 
Preface  to  merit  of  the  people.*  May  our  most  illustrious 
uianviiie's  Sovereign  conduct  himself  with  such  felicity  both  in 
peace  and  in  war, — by  the  force  of  his  right  hand 
crushing  the  insolence  of  the  proud  and  the  violent,  and  with  the 
sceptre  of  equity  moderating  his  justice  to  the  humble  and 
obedient, — so  that,  as  he  may  be  always  victorious  over  his 
enemies,  so  he  may  on  all  occasions  show  himself  impartially 
just  in  the  government  of  his  subjects  ! 

"  How  vigorously,  how  skilfully,  how  gracefully  our  most  ex- 
cellent King  has  conducted  his  arms  and  baffled  his  foes  is  mani- 
fest to  all,  since  his  fame  has  now  spread  over  the  whole  world, 
and  his  splendid  actions  have  reached  even  the  extremities  of  the 
globe.  How  justly,  how  discreetly,  and  how  mercifully  he  who 
loves  peace,  and  is  the  author  of  it,  has  conducted  himself 
towards  his  subjects  is  evident,  since  the  Court  of  his  Highness 
is  regulated  with  so  strict  a  regard  to  equity,  that  none  of  the 
judges  have  so  hardened  a  front  or  so  rash  a  presumption  as  to 
dare  to  deviate,  however  slightly,  from  the  path  of  justice,  or  to 
utter  a  sentence  in  any  measure  contrary  to  truth.f  Here, 
indeed,  no  poor  man  is  oppressed  by  the  power  of  his  adversary, 
and  the  balance  of  justice  is  not  swayed  by  love  or  by  hatred. 
Every  decision  is  governed  by  the  laws  of  the  realm,  and  by 
those  customs  which,  founded  on  reason  in  their  origin,  have  for 
a  long  time  been  established.  What  is  still  more  laudable,  our 
King  disdains  not  to  avail  himself  of  the  advice  of  such  men 
(although  his  subjects)  who,  in  gravity  of  manners,  in  familiarity 
with  the  laws  and  customs  of  the  realm,  in  wisdom  and  in 
eloquence,  are  known  to  surpass  others,  and  whom  he  has  found 
by  experience  to  use  most  despatch  (as  far  as  is  consistent  with 
reason)  in  the  administration  of  justice,  by  deciding  difficult 
questions  and  ending  suits  ;  acting  now  with  more  severity,  now 
with  more  lenity,  as  they  see  most  expedient.! 

"  The  English  laws,  although  not  written,  may,  without  im- 
propriety, be  termed  laws.  Indeed,  we  adopt  the  maxim,  '  That 
which  pleases  the  prince  has  the  force  of  law.'§  But  I  refer 
more  particularly  to  those  laws  which  evidently  were  promul- 
gated by  the  advice  of  the  nobles  and  the  authority  of  the  prince. 
If  from  the  mere  want  of  writing  only  they  should  not  be 
considered  as  laws,  then,  indeed,  writing  would,  seem  to  confer 

*  This  commencement  is  imitated  by  Lady  Plumpton. 

Bracton,  Fleta,  and  the  Scottish  "REGIAM  £  This  is  said  to  afford  proof  that  our 

MAGISTRATUM."  system  of  equitable  jurisprudence  is  to 

t  The  writer  seems  not  to  have  sus-  be  traced  to  the  Aula  Regis, 

pected  the  scandalous  tales  spread  abroad  }  Justin.  Inst.  11.  t.  2,  s.  C. 
respecting  himself  and  Sir  Gilbert  and 


A.D.  1188.  RANULFUS  DE  GLANVILLE.  31 

more  authority  upon  laws  than  either  the  authority  of  those 
framing  them,  or  the  equitable  principles  on  which  they  are 
framed. 

"  To  reduce  in  every  instance  the  laws  and  constitution  of  this 
realm  into  writing  would  in  our  times  be  absolutely  impossible, 
as  well  on  account  of  the  ignorance  of  writers  as  of  the  confused 
multiplicity  of  enactments.  But  there  are  some  well  established 
rules,  which,  as  they  more  frequently  arise  in  court,  it  appears  to 
me  not  presumptuous  to  put  into  writing,  to  assist  the  memory 
and  for  general  reference.  A  certain  portion  of  these  I  mean  to 
submit  to  the  reader  in  the  following  work,  purposely  making 
use  of  a  familiar  style,  and  of  words  which  occur  in  legal 
proceedings.  My  object  has  been  to  instruct  not  only  the  pro- 
fessional lawyer,  but  such  as  are  less  accustomed  to  technical 
learning.  For  the  sake  of  perspicuity  I  have  divided  the  present 
work  into  BOOKS  and  CHAPTERS.''* 

As  a  specimen  I  may  give  the  proceedings  in  a  suit 
for  land, — leading  either  to  "  Trial  by  Battle,"  or  "  the 
Grand  Assize :" 

"  After  three  reasonable  essoins,  which  accompany  the  view  ot 
the  land,  both  parties  being  again  present  in  court,  Mode  of  trial 
the  demandant  shall  claim  in  this  manner : — '  I  de-  by  Grand 
mand  against  this  H.  half  a  knight's  fee,  or  two  Assize  or  by 
ploughlands,  in  such  a  vill,  as  my  right  and  inherit- 
ance, of  which  my  father  was  seised  in  his  demesne  as  of  fee,  in 
the  time  of  King  Henry  I.,  and  from  which  he  took  the  profits 
to  the  value  of  5s.  at  least,  in  corn,  hay,  and  other  produce  ;  and 
this  I  am  ready  to  prove  by  my  freeman,  I.,  to  whom  his  father, 
when  on  his  death-bed,  enjoined,  by  the  faith  which  a  son  owes 
to  his  father,  that  if  he  ever  heard  a  claim  concerning  that  land, 
he  should  prove  this  as  that  which  his  father  saw  and  heard.' 

"  The  demand  being  thus  made,  it  shall  be  at  the  election  of 
the  tenant  either  to  defend  himself  by  the  Duel,  or  to  put  himself 
upon  the  King's  Grand  Assize,  and  require  a  recognition  '  which 
of  the  two  has  the  greater  right  to  the  land  in  dispute  ? '  But 

*  Lord  Coke  says:    "Ranulphus  de  which  words,  spoken  so  many  hundred 

Glanvilla,  in  the  reign  of  King  Henry  II.,  years  since,  it  appeareth  that  then  there 

learnedly  and  profoundly  wrote  of  part  were  laws  and  customs  of  this  kingdom 

of  the  laws  of  England  (whose  works  grounded  upon  reason  and  of  ancient 

remain  extant  at  this  day) ;  and  in  the  time  obtained,  which  he   neither  could 

Preface  he  writeth  that   the  King  did  nor  would  have  affirmed  if  they  had  been 

govern  this  realm  by  the  laws  of  this  so  recently  and  almost  presently  before 

kingdom,  and  by  customs  founded  upon  that  time  instituted  by  the  Conqueror. — 

reason  and  of  ancient  time  obtained.  By  Preface  to  8i/t  Rep.  xviii. 


32  EEIGN  OF  HENRY  II.  CHAP.  I. 

here  we  would  observe,  that  after  the  tenant  has  once  waged  the 
Duel,  he  must  abide  by  his  choice,  and  cannot  afterwards  put 
himself  upon  the  Assize. 

"  In  the  Duel,  the  tenant  may  defend  himself  either  in  his 
own  person  if  he  chose  so  to  do,  or  by  any  other  unobjectionable 
witness  as  his  champion.  But  it  frequently  happens  that  a  hired 
champion  is  produced  in  court,  who,  for  reward,  has  undertaken 
the  proof.  If  the  adverse  party  should  except  to  such  a  cham- 
pion, alleging  him  to  be  an  improper  witness,  from  having 
accepted  a  reward,  and  that  he  is  ready  to  prove  this  accusation 
against  the  champion,  this  matter  shall  be  tried,  and  the  principal 
duel  shall  be  deferred.  If  upon  this  charge  the  champion  or  the 
demandant  should  be  convicted  and  conquered  in  the  duel,  then 
his  principal  shall  lose  the  suit,  and  the  champion  shall  never 
from  thenceforth  be  admitted  in  court  as  a  witness  for  the  purpose 
of  making  proof  by  duel  for  any  other  person.  But,  with  respect 
to  himself,  he  may  be  admitted  either  in  defending  his  own 
body,  or  in  prosecuting  any  atrocious  personal  injury,  as  being  a 
violation  of  the  King's  peace  ;  and  he  may  also  defend  by  duel 
his  right  to  his  own  fee  and  inheritance." 

The  proceedings  are  described  till  at  last  we  come  to 
the  writ  of  possession  : — 

"  The  King  to  the  Sheriff  of ,  greeting  :  I  command  you 

that  without  delay  you  give  possession  to  M.  of  half  a  knight's 

fee  in  the  vill  of ,  in  your  bailiwick,  concerning  which  there 

was  a  suit  between  him  and  H.  in  my  court ;  because  such  land 
is  adjudged  to  him  in  my  court  by  the  duel.  Witness,"  &c.* 

I  add  the  mode  of  proceeding  in  cases  of  treason: — 

"  When  any  one  is  charged  with  the  King's  death,  or  with 
having  raised  a  sedition  in  the  realm  or  in  the  army,  either  a 
certain  accuser  appears,  or  not.  If  the  public  voice  alone  accuses 
him,  he  shall  be  required  to  give  bail,  or  he  shall  be  imprisoned. 
The  truth  of  the  charge  shall  then  be  inquired  into  in  the  presence 
of  the  Justices,  who  weigh  each  conjecture  that  makes  for,  or 
against,  him.  If  on  the  trial  by  the  ordeal  a  person  is  convicted 
of  a  capital  crime  the  judgment  is  of  life  and  members,  which  are 
at  the  King's  mercy. 

"  Should,  however,  a  certain  accuser  appear,  and  give  security 
to  prosecute  his  plea  and  propound  his  charge, — that  he  had  seen, 
or  by  other  evidence  could  prove  in  court,  the  accused  guilty  of 
having  conspired  against  the  King's  life,  or  having  raised  a 

"  B.  ii.  ch.  i.— i7. 


A.D.  1188.  EANULFUS  DE  GLANYILLE.  33 

sedition  in  the  realm  or  in  the  army,  and  the  accused  on  the 
other  hand  deny  every  thing  the  other  had  asserted,  it  is  usual  to 
decide  the  plea  by  the  Duel.  And  here  it  should  be  observed, 
that  from  the  moment  the  duel  is  waged  neither  party  can  add 
or  diminish  any  thing  from  the  words  employed  in  waging  the 
duel,  or  in  any  other  measured  ecline  or  recede  from  his  under- 
taking, without  being  held  as  conquered,  and  liable  to  the  penal 
consequences  of  defeat.  Nor  can  the  pnrties  be  afterwards 
reconciled  to  each  other  by  any  other  mode  than  the  King's 
licence  or  that  of  his  justices."  * 

It  is  said  that  Glanville  drew  up  this  compendium  of 
the  laws  of  England  for  the  public  use  by  the  command 
of  Henry  Il.f  It  remained  in  MS.  till  the  year  1554, 
when  it  was  first  printed  at  the  instance  of  Sir  William 
Stanford,  a  grave  and  learned  judge  of  the  Court  of 
Common  Pleas.}  Its  merits  have  been  very  generally 
acknowledged.  Dr.  Eobertson,  in  his  observations  upqn 
the  early  part  of  the  12th  century,  says,  "that  in  no 
country  of  Europe  was  there  at  that  time  any  collec- 
tion of  customs,  nor  had  any  attempt  been  made  to 
render  law  fixed :  the  first  undertaking  of  that  kind 
was  by  Glanville,  Lord  Chief  Justice  of  England,  in 
his  Tractatus  de  Legibus  et  Consuetudinibus,  composed  about 
the  year  1189."§  Lord  Coke  thus  assigns  the  reason  for 
giving  a  valuable  sketch  of  Glanville's  life. — "in  token 
of  my  thankfulness  to  that  worthy  Judge  for  the  fruit 
which  I  confess  myself  to  have  reaped  out  of  the  fair 
fields  of  his  labours.  I  will,  for  the  honour  of  him,  and 
of  his  name,  and  posterity  which  remain  to  this  day, 
impart  and  publish,  to  all  future  and  succeeding  ages, 
what  I  have  found  of  great  antiquity  and  of  undoubted 
verity."|| 

*  Book  xiv.  c.  1.  The  most  recent  in-  J  4  Inst  345.  n. 

stance  we  have  of  a  duel  of  this  sort  is  $  Charles  V.  vol.  i.  p.  296.  The  hfs- 
that  between  Henry  of  Bolingbroke  and  torian,  however,  seems  to  have  over- 
Thomas  Mowbray,  Duke  of  Norfolk,  looked  the  "Assizes  of  Jerusalem,"  com- 
whfch  is  very  graphically  described  in  posed  in  1099;  highly  valued  by  Lord 
the  first  act  of  Shakspeare's  play  of  Loughborough  and  by  Gibbon. 
Richard  II.  II  "  Ne  reverendissimo  illi  judici  videar 

t  Madd.  Exch.  123.  ingratus  pro  fructu  quern  ex  pulcherri- 

VOL.   I.  D 


34  EEIGN  OF  HENKY  H.  CHAP.  I. 

Some,  I  am  well  aware,  have  lately  attempted  to 
deprive  Glanville  of  the  honour  of  the  authorship  of 
the  treatise  which  had  so  long  passed  under  his  name  ; 
but,  in  suggesting  that  it  must  have  been  written  by 
an  ecclesiastic  employed  by  him,  they  appear  to  have 
little  other  reason  beyond  the  assumed  incompetency  of 
one  who  was  a  layman  and  a  warrior  to  write  it ;  and 
they  forget  the  manners  of  the  age  when  they  object 
to  a  grave  and  learned  judge  throwing  off  his  robes 
and  laying  aside  his  pen,  to  put  on  a  coat  of  mail  and 
to  grasp  a  spear.* 

Glanville  continued   with    energy  to   exercise   the 

functions  of  his  office  in  preserving  the  peace 

conduct  to       of  the  kingdom,  as  well  as  in  presiding  in 

the  AULA  REGIS.   In  the  year  1 181,  the  Welsh, 

during  the  King's  absence  in  Normandy,  having  made 

an  incursion  into   England,  and  killed  Eanulfus   de 

Poer,  sheriff  of  Gloucestershire,  the  Chief  Justiciar,  as 

guardian  of  the  realm,  drew  together  an  army,  marched 

against  the  mountaineers,  and  drove  them  back  to  the 


mis  ejns  operum  arvis  me  collegisse  con-  which  arises  from  the  title-page  in  the 

fiteor,  in  honorem  ejus,  et  nominis,  et  most  ancient  MS.  copy  of  the  work, 

nobilis  hodie  florentis,  in  secula  futura  saying,  that  it  was  written  in  the  time 

emittere,  et  in  medium  proferri,  visum  of  Henry  IL,  "  the  illustrious  Ranulph 

est,  quae  magnae  fore  vetustatis  et  explo-  de  Glanville,  who,  of  all  in  those  days 

rate  veritatis  saepissime  sum  expertus."  was  the  most  skilled  in  the  law  and 

— Preface  to  8th  Rep.  xviii.  ancient  customs  of  the  realm,  then 

Spelman  says,  "  Hie  cum  ad  snam  holding  the  helm  of  justice.  It  is  truly 

usque  retatem  (tnstar  rhetrarum  Lycurgl)  observed  that  he  would  not  thus  have 

aypo^os  id  est  non  scripta  mansisset,  praised  himself,  but  the  title-page  is 

maxima  pars  juris  nostri ;  omnium  pri-  evidently  the  composition  of  a  later  age. 

museyypox/Hji'reddere  aggressus  est,  com-  Hoveden  evidently  considered  Glanville 

posito  illius  argument!  libro  quodam,  cui  the  author  of  the  book  which  goes  by 

in  antiquis  MSS.  iste  titulus  Tractatus  his  name,  and  probably  thought  that  the 

de  legibus  et  consuetudinibus  Regni  learning  and  ability  which  it  displays 

Anglice,  tempore  Regis  Henrici  II.  contributed  to  his  elevation, — thus  nar- 

compositus,  justitia  gubernacula  tenente  rating  his  appointment  as  Chief  Jus- 

•illustri  viro  Ranulpho  de  Glanvitta,  ticiar:— "  Henricus  Rex  Anglia?,  pater, 

Juris  Regni  et  Antiquarum  consuetudi-  constituit  Ranulphum  de Glanvilla suum 

num  eo  tempore  peritusimo." — Gloss.  Justiciarium  totius  Anglise,  cujus  sapi- 

p.  338.  entia  conditas  sunt  leges  subscript*  quas 

*  The  objection  hardly  deserves  notice,  Anglicanas  vocamus." 


A.D.  1185.  RANULFUS  DE  GLANVILLE.  35 

woods  and  fastnesses  of  their  own  country.*     A  par- 
tisan warfare  was  kept  up  between  the  two 

AD    1185 

nations  for  some  years,  till  at  last  Glanville 
was  sent  by  Henry  to  treat  with  Eees  ap  Gryffith,  and  the 
other  chiefs  of  South  Wales,  not  only  for  the  purpose  of 
finishing  the  war,  and  bringing  back  those  who  were 
called  rebels  to  their  fealty,  but  likewise  for  retaining 
a  body  of  their  foot  to  serve  in  the  English  army  against 
Philip,  King  of  France.  Glanville's  mission  was  in  all 
respects  most  successful.  He  perceived,  as  Lord  Chatham 
did  with  respect  to  the  Scotch  Highlanders  six  centu- 
ries afterwards,  that  the  best  way  of  preventing  them 
from  annoying  England  was  to  employ  them  against 
foreigners,  and  that  they  would  be  faithful  in  propor- 
tion as  they  themselves  were  trusted.  The  Welsh  very 
readily  agreed  to  keep  within  their  ancient  boundaries, 
and  to  acknowledge  Henry  as  their  sovereign  liege 
lord:  they  furnished  a  body  of  auxiliaries,  who  served 
with  high  reputation  against  his  enemies  on  the  Conti- 
nent ;  and  a  basis  of  conciliation  was  established,  which 
subsisted  till  Edward  I.  determined  to  crush  the  Princes 
of  Wales,  and  to  bring  the  whole  principality  under 
his  own  immediate  rule.f 

As  an  acknowledgment  of  Glanville's  services,  civil 
and  military,  there  was  now  conferred  upon   A.D  1U<6. 
him  the  additional  dignity  of  Dapifer.f  p^Son 

The  only  other  important  affair,  during   j° the  snit 
the  present  reign,  in  which  our  Chief  Jus-   Henry  n. 
ticiar  is  stated  to  have  been  concerned  was   monks  of 
a  dispute  between  the  King  and  the  monks   Canterbnry- 
of  Canterbury.     As  they  collected  immense  riches  from 
the  miracles  of  St.  Thomas,  Henry  had  attempted  to 
establish  a  rival  foundation  near  this  city ;   and,  that 
they  might  preserve  their  monopoly,  they  prevailed  on 

*  Benedict.  Abbas,  ad  ann.  1181.  J  Madd.  Exch.  i.  24. 

t  Benedict.  Abbas,  ad  ann.  1185, 1186. 

D   2 


3d  KEIGN  OF  HENKY  II.  CHAP.  I. 

Pope  Urban  III.  to  send  him  an  apostolical  mandate, 
ordering  him  to  put  a  stop  to  the  building. 

Supported  by  the  present  Archbishop  of  Canter- 
bury, much  more  obsequious  than  his  sainted  pre- 
decessor, he  disregarded  the  mandate,  and  was  more 
eager  than  ever  to  mortify  the  monks.  His  Holiness 
thereupon  appointed  the  abbots  of  Battle,  Feversham, 
and  St.  Augustine  to  enforce  the  execution  of  the  man- 
date. They,  holding  an  ecclesiastical  court  under  the 
Pope's  authority,  were  about  to  issue  process  against 
all  connected  with  the  new  foundation,  when  Glanville, 
as  Chief  Justiciar,  issued  a  writ  of  prohibition,  which 
is  still  extant,  in  the  following  form : — 

"  E.  de  Glanville,  &c.,  to  the  Abbot  of  Battle,  greeting  :  I 
command  you  on  behalf  of  our  Lord  the  King,  by  the  allegiance 
which  you  owe  him,  and  by  the  oath  which  you  have  sworn  to 
him,  that  you  by  no  means  proceed  in  a  suit  between  the  Monks 
of  Canterbury  and  the  Lord  Archbishop  of  that  See,  until  you 
shall  have  answer  made  to  me  thereupon ;  and,  all  delay  and 
excuses  being  laid  aside,  that  you  appear  before  me  in  London, 
on  Saturday  next  after  the  Feast  of  St.  Margaret  the  Virgin, 
there  to  make  answer  in  the  premises.  Witness,"  &c.* 

The  suit  being  spun  out  for  some  years,  and  Clement, 
a  new  Pope,  vigorously  taking  up  the  cause  of  the 
monks,  Glanville  attempted  to  bring  about  an  amicable 
settlement  of  the  difference,  and  took  a  journey  to 
Canterbury,  that  upon  the  spot  he  might  negotiate 
with  better  effect.  The  subprior  said  that  he  and  his 
brethren  much  desired  the  King's  mercy, — Glanville, 
C.  J.  "  You  yourselves  will  have  no  mercy ;  but,  from 
your  attachment  to  the  Court  of  Kome,  refuse  to  submit 
to  the  advice  of  your  sovereign  or  of  any  other  person." 
— Subprior.  "Saving  the  interests  of  our  monastery, 
and  the  rights  of  the  Church,  we  are  ready  to  submit  to 
the  King ;  but  we  are  greatly  deterred  from  implicitly 

*  Appendix  to  Litt.  Hist.  H.  II.  vol.  vi.     similar  writ  to  each  of  the  two  other 
427.    it  is  supposed  that  there  was  a     legates,  but  this  is  the  only  one  extant. 


A.D.  1188.  KANULFUS  DE  GLANVILLE.  37 

trusting  to  the  King,  by  reason  that  he  has  suffered  us 
to  remain  during  almost  two  years  deprived  of  all  our 
possessions,  and  in  a  measure  imprisoned  within  our 
walls." — Glanville,  C.  J.  "  If  you  doubt  the  King,  there 
are  bishops  and  abbots  of  your  order,  and  there  are 
barons  and  churchmen  belonging  to  the  court,  who, 
should  you  trust  your  cause  to  them,  would  certainly 
do  you  justice." — Subprior.  "  All  these  you  mention  are 
so  partial  on  the  side  of  the  archbishop,  so  complaisant 
to  the  King,  and  so  unfriendly  to  us,  that  we  do  not 
venture  to  confide  in  their  arbitration." — Glanville,  C.  J. 
(hasting  away  with  much  indignation).  "  You  monks 
turn  your  eyes  to  Rome  alone;  and  Rome  will  one  day 
destroy  you!"  —  This  controversy  was  at  last  com- 
promised, and  there  was  religious  peace  in  the  country 
during  the  remainder  of  the  reign  of  Henry  II. 

The  passions  of  men  were  now  absorbed  in  the  new 
Crusade.     Europe  had  been   thrown  into  a 

r  A  new  Cru- 

state  of  consternation  and  alarm  by  the  intel-   sade. 

AD  1188 

ligence  that  Saladin  had  taken  Jerusalem, 
and  that  nearly  all  the  conquests  of  the  first  crusaders 
had  been  recovered  by  the  infidels.  A  parliament 
being  held  on  the  30th  of  January,  in  the  year  1189, 
the  Archbishop  of  Canterbury,  "by  the  authority  of 
God,  of  the  blessed  apostles  Peter  and  Paul,  and  of  the 
Chief  Pontiff,  denounced  excommunication  against  all 
persons  who  for  seven  years  should  begin  or  foment 
any  war  among  Christians;  and  declared  a  plenary 
absolution  from  all  sins  to  all  persons,  whether  eccle- 
siastics or  laymen,  who  should  take  the  cross."  The 
same  day  the  Primate,  and  his  vicar  the  Bishop  of 
Rochester,  preached  before  the  King  and  Parliament 
on  the  mystery  of  the  Cross ;  and,  pointing  out  the  sin 
and  shame  imputable  to  all  who  professed  to  be  dis- 
ciples of  Jesus,  from  his  sepulchre  being  left  in  the 
hands  of  believers  in  the  false  prophet  Mahomet, 


38  KEIGN  OF  HENRY  II.  CHAP.  1. 

exhorted  men  of  all  degrees,  from  the  King  on  his 
throne  to  the  meanest  of  his  subjects,  forthwith  to 
join  the  gallant  and  pious  bands  who  were  marching 
for  the  East,  and,  by  assisting  in  the  great  enterprise, 
to  insure  to  themselves  bright  glory  in  this  world,  and 
eternal  salvation  in  the  next.  The  King  expressed  his 
determination  to  march  for  Palestine  as  soon  as  the 
affairs  of  state  in  which  he  was  engaged  would  permit. 
But  what  was  the  astonishment  of  all  present,  when 
the  Chief  Justiciar,  Ranulfus  de  Glanville — 
Gianviiie  known  to  be  vigorous  and  energetic,  but  not 

takes  the  +'»•,. 

cross.  suspected  of  enthusiasm,  now  well  stricken 

in  years,  who  had  spent  the  best  part  of  his 
life  in  studying  the  law  and  administering  justice,  who 
had  a  wife  and  many  children  and  grandchildren  the 
objects  of  his  tender  attachment — rose  up  as  soon  as 
the  King  had  concluded  his  speech,  and,  asking  the 
Archbishop  to  invest  him  with  the  cross,  was  enlisted 
as  a  crusader  with  all  the  vows  and  rites  used  on  such 
a  solemn  occasion. 

So  much  in  earnest  was  he,  that  he  wished  forthwith 
to  set  forward  for  the  Holy  Land.  From  the  accu- 
mulated profits  of  his  office,  he  was  abundantly  able  to 
equip  himself  and  the  knights  whom  he  meant  to  take 
in  his  train,  without  following  the  general  example  of 
selling  or  mortgaging  his  lands.  But  the  young  princes 
engaged  in  another  unnatural  rebellion,  and  the  King 
laid  his  commands  on  the  Chief  Justiciar  to  delay  his 
3  UBS  j°urriey  till  tranquillity  should  be  restored. 
Before  this  consummation,  the  unhappy 
Henry  expired  at  Chinon  of  a  broken  heart. 

Glanville  was  present  at  the  scene  when,  on  the 
approach  of  Richard,  blood  gushed  from  the  dead  body, 
in  token,  according  to  the  superstition  of  the  age,  that 
the  son  had  been  the  murderer  of  the  father.  The  new 
monarch,  now  stung  with  remorse,  renounced  all  the 


A.D.  1189.  RANULFUS  DE  GLANVILLE.  39 

late  companions  of  his  youth  who  had  misled  him,  and 
offered  to  confirm  all  his  father's  councillors  in  their 
offices.  This  offer  was  firmly  refused  by  Glanville,  who 
had  serious  misgivings  as  to  the  sincerity  of  Eichard, 
and  who,  now  wearing  the  cross,  was  bound  by  his  vow, 
as  well  as  incited  by  his  inclination,  to  set  forward  for 
the  recovery  of  Jerusalem.  However,  he  discharged  the 
duties  of  the  office  for  some  weeks,  till  a  successor  might 
be  appointed ;  and  he  attended,  with  the  rank  of  Chief 
Justiciar,  at  Richard's  coronation — when  he  exerted 
himself  to  the  utmost  to.  restrain  the  people  from  the 
massacre  of  the  Jews,  which  disgraced  that  solemnity. 

Some  authors  represent  that  he  was  deprived  of  his 
office  at  the  death  of  Henry  II.,  and  obliged  to  pay 
a  heavy  fine  for  imputed  judicial  delinquency;  but 
there  is  no  foundation  for  the  story,  beyond  his  volun- 
tarily contributing  a  sum  of  money  towards  the  equip- 
ment of  the  army  now  embarking  for  Palestine.  He 
was  treated  with  the  greatest  favour  not  only  by  the 
new  King,  but  by  Eleanor,  the  Queen  Mother,  who 
had  long  been  his  prisoner,  and  who,  being  now  set  at 
liberty,  was  destined  to  be  Eegent  of  the  kingdom.* 

Eichard  himself  had  taken  the  cross,  and  was  pre- 
paring for  that  glorious  expedition  in  which,  by  his 
unrivalled  gallantry,  he  acquired  his  appellation  of 
"the  Lion-hearted."  He  therefore  asked  Glanville  to 
accompany  him,  and  to  fight  under  his  banner.  But 
such  was  the  impatience  of  the  Chief  Justiciar  to  tilt 

*  Richard  of  Devizes  says,  "  Ranulfus  hoc  nomine.  Ranulfus  de  Glanvilla,  quo 

de  Glanvilla,  regni  Anglorum  rector  et  multus  fucrat  suo  tempore  desertior  dum 

regis  oculus,  deportatus  et  custodiae  tra-  prepotuit,  privatus  jam  factus  ex  prin- 

ditus,  ire  saltern  sibi  liberum  et  redire  cipe,  in  tantum  hebuit  prse  dolore,  ut 

redemit  quindecim  mille  libris  argenti,  gener  ejus  Radulfus  de  Ardennaejusdem 

et  cum  hoc  nomen  Glanvilla  tanta  fuisset  oris  ratione  deperderet  quicquid  oris  ejus 

die  praeterito,  nomen  scilicet  super  omne  judicio   fuerat  consecutus "   (pp.  1,  8). 

nomen,  ut  quisque,  cui  concessum  esset  But  this  chronicler,  like  some  of  his  suc- 

a  Domino,  loquerelur  inter  principes  et  cessors,  is  much  given  to  exaggeration, 

adoraretur  a  populo,  proximo  mane  non  and  sacrifices  accuracy  for  effect. — See 

superfuit  unus  in  terra  qui  vocaretur  Hoveden,  iii.  20-35. 


40  KEIGN  OF  RICHARD  I.  CHAP.  I. 

with  a  Saracen,  that  he  declined  the  offer,  and  joined  a 
band  of  Norman  knights,  who  were  to  march  through 
France  and  to  take  ship  at  Marseilles  for  Syria. 

Unfortunately,  no  farther  account  has  come  down  to 
us  of  his   iourney  ;    and  we  read  no  more 

Glanvilleis  J  . 

killed  at  the  of  him,  except  that  in  the  following  year 
Acre,°  he  was  killed,  fighting  valiantly  at  the  siege 

A-D-'190  of  Acre.* 

Of  Glanville's  numerous  offspring,  only  three  daugh- 
ters survived  him.  They  were  married  to  great  nobles ; 
and  he  divided  among  them  his  vast  possessions  before 
he  joined  the  crusade.  Collateral  branches  of  his  family 
continued  to  flourish  till  the  end  of  the  17th  century ; 
and  the  name  of  Glanville,  although  now  without  a 
living  representative,  will  ever  be  held  in  honoured 
remembrance  by  Englishmen-! 

King  Richard  I.,  eager  to  rescue  the  holy  sepulchre 
A.D.  iiF9.  from  the  Infidels,  and  reckless  as  to  the 

Hugh  Pusar,  ,  ,          ,      .  .  T          /> 

Bishop  of  means  he  employed  to  raise  supplies  for 
Chief'jus-  the  equipment  of  his  expedition,  upon  the 
ticiar.  resignation  of  Ranulfus  de  Glanville,  put  up 

the  office  of  Chief  Justiciar  to  sale,  and  the  highest 

*  Richard  of  Devizes,   after   stating  setate  ad  Terram  Sanctam  properavlt,  et 

that  Baldwin,  Archbishop  of  Canterbury,  ibidem  contra    inimicos   crucis  Christi 

and  Runulf  de  Glanville,  with  others,  had  strenuissime  usque  ad  necem  dimicarit." 

been  sent  forward  by  the  Kings  of  France  — Preface  to  8th,  Rep.  xvlii. 

and    England    with  a  powerful  army,  Spelman    says,   "Exutus  autem  est 

adds,    "  ex  quibus    Baldewinus    archi-  offlcio  Justitiarii  anno  I.  Ricardi  I.  et 

episcopus  et  Ranulfus  de  Glanvilla  obie-  deinde  profectus  in  Terram  Sanctam  in 

runt  in  obsidione  civitatis,  quam  Latini  obsidione  Aeon  morlturus  est." — Gloss. 

Acras,  Judaei  Accaron   dicunt,  dum  ad  p.  338. 

hue  reges  in  Sicilia  morarentur."  JKicar-  This  celebrated  siege  lasted  two  whole 

dus  Divisiensis,  de  Rebus  gestis  Ricardi  years,  and  Acre  held  out  till  after  the 

Primi,  p.  19.  arrival  of  Richard  I.  in  the  summer  of 

In  Stou<el  v.   Lard  Zouch,  Plowden  1191,  when  he  performed  the  prodigies  of 

368.  6,  where  Catline,  C.J.,  in  citing  the  valour  which  placed  him  at  the  head  of 

authority  of  his  great  predecessor,  says,  crusading  chivalry. 

"  Glanville  was  a  judge  of  this  realm  a  t  See  Lord  Lyttleton's  Hist,  of  H.  II., 

long  time  ago,  for  he  died  in  the  time  of  vol.  iii.  135-440.     Rot.  Cur.  R.  6.  R.  I. 

King  Richard  I.  at  the  city  of  Acres  in  Roger  de  Wendover,  iii.  36.    Hoveden, 

the  borders  of  Jury."  ad  an.  1190. 

Lord  Coke  merely  says,  "  Provectiori 


A.D.  1153.       HUGH  PUSAK,  CHIEF  JUSTICIAR.  41 

bidder  was  Hugh  Pusar,  Bishop  of  Durham.     The  two 
extremes  of  the   career  of  this  prelate  were  marked 
by  extraordinary  profligacy,  while  during  a  long  in- 
terval between  them  he  was  much  honoured  for  his 
virtues  and  his  good   conduct.     Being  a  nephew  of 
King  Stephen,  he  was  brought  up  in  the  court  of  that 
worthless  sovereign,  and  his  morals  were  depraved  even 
beyond  the  common  licentious  standard  prevailing  there. 
Nevertheless,  taking  priest's  orders,  he  was  made  Arch- 
deacon of  Winchester ;  and,  without  any  symptom  of 
reformation,  was  appointed  to  the  bishopric 
of  Durham.     If  any  sort  of  external  decorum   22nd  Jan- 
was  preserved,  the  lives  of  churchmen  were 
not  strictly  scrutinised  in  those  days :   but   ™8  Ucen', 

,,  ,,  ,  ,  •        i        tious  youth. 

the  archdeacon  had  openly  and  ostentatiously 
kept  a  harem  in  his  parsonage-house,  and  the  Arch- 
bishop of  York  refused  to  consecrate  him, — objecting, 
that  he  had  not  reached  the  canonical  age  for  being 
made  a  successor  of  the  apostles ;  and  reprobating  his 
bad  moral  character,  evidenced  by  his  having  three 
illegitimate  sons  by  as  many  mothers.  The  bishop 
elect  complained  bitterly  of  this  stretch  of  authority, 
and  appealed  to  Eome.  While  the  appeal  was  pending, 
both  the  Pope  and  the  Archbishop  died;  and  Hugh, 
backed  by  royal  solicitations,  induced  the  new  Arch- 
bishop to  consecrate  him,  on  an  expression  of  penitence 
and  promise  of  amendment. 

He  was  as  good  as  his  word ;  and,  turning  over  a 

new  leaf,  he  devoted  himself  to  his  spiritual    . 

t     •  -11  •   •  . men" 

duties,  and  became  a  shining  ornament  to    torious 

the  episcopate.  So  he  went  on  steadily  for 
no  less  than  forty  years.  During  this  long  period  he 
built  many  churches  in  his  diocese,  and  he  added  to  his 
cathedral  the  beautiful  structure  called  the  GALILEE, 
which  remains  to  this  day  a  monument  of  his  taste. 
So  much  respected  was  he  by  his  own  order,  that  he 


42  EEIGN  OF  RICHAED  I.  CHAP.  I. 

represented  the  province  of  York  at  the  Council 
of  Tours  in  1163,  and  at  the  Council  of  Lateran  in 
1179. 

But,  at  the  moment  when  he  was  doing  penance  for 
His  seven       ^*s  earty  s^ns'  Grodric,  a  pious  hermit,  had  fore- 
years  of        told  that,  "although  he  would  long  see  the 
light  very  clearly,  he  was  to  be  afflicted  with 
blindness  seven  years  before  his  death."     His  physical 
vision  remained  unimpaired  till  his  eyes  were  finally 
closed ;  but  the  prophecy  was  supposed  to  be  fulfilled 
by  his  foolish  and  vicious  actions  during  the  last  seven 
years  of  his  life.    On  the  death  of  Henry  II., 

A  D    1189 

of  whom  he  had  stood  in  great  awe,  he  felt  a 
sudden  ambition  to  mix  in  politics,  and  he  had  an  easy 
opportunity  to  gratify  his  inclination.  Notwithstanding 
his  princely  liberality,  he  had  amassed  immense  riches, 
and  the  highest  offices  and  honours  of  the  state  were 
now  venal.  At  a  vast  price,  he  bought  from  Eichai'd 
the  Chief  Justiciarship,  and  the  Earldom  of  Northum- 
berland,— not  then  a  mere  empty  title,  but  a  dignity 
to  which  important  jurisdictions  and  emoluments  were 
still  attached.  It  is  said  that  the  King,  when  girding 
him  with  a  sword  at  his  investiture,  could  not  refrain 
from  a  jest  upon  his  own  cleverness  in  converting  an 
old  bishop  into  a  young  earl.  Very  soon  afterwards 
he  was  installed  in  the  AULA  EEGIS.  Although  he  had 
a  slight  tincture  of  the  civil  and  canon  law,  he  was 
utterly  ignorant  of  our  municipal  institutions.  But  he 
showed  that  all  he  cared  for  was  to  reimburse  himself 
for  his  great  outlay,  and  he  was  guilty  of  rapine  and 
extortion  exceeding  anything  practised  by  any  of  his 
predecessors. 

Kichard,  whose  departure  for  Palestine  had  been 
delayed  longer  than  was  expected,  heard  of  these  enor- 
mities, and  declared  that,  as  a  check  upon  the  Bishop 
of  Durham,  William  Longchamp,  the  Chancellor,  must 


A.D.  1191.  WILLIAM  LONGCHAMP.  43 

be  associated  with  him  in  the  office  of  Chief  Justiciar. 
Pusar,  having  in  vain  remonstrated,  came  to  the  compro- 
mise that  England  should  be  divided  between 
the  two  Justiciars,  and  that  all  the  counties 
north  of  the  Trent  should  be  left  at  his  mercy.  He 
now  tried  to  levy  upon  this  poorer  moiety  the  revenue 
he  had  expected  to  draw  from  the  whole  kingdom ;  but 
at  last  made  himself  so  odious,  that  Longchamp  marched 
a  small  military  force  to  the  north,  deposed  him  entirely 
from  the  Chief  Justiciarship,  deprived  him  of  the  Earl- 
dom of  Northumberland,  made  him  prisoner,  and  kept 
him  in  close  custody  till  he  gave  hostages  to  deliver  up 
all  the  castles  committed  to  his  charge.  He  appealed 
to  Eichard,  now  performing  prodigies  of  valour  in  the 
East;  and  that  monarch,  wishing,  or  pretending  to 
wish,  to  do  him  justice,  sent  letters  ordering  him  to  be 
restored  ;  but  these  were  entirely  disregarded  by  Long- 
champ.  The  ex-Chief  Justiciar  died  unre- 
dressed  and  unpitied,  affording  (as  it  was 
said)  a  fine  illustration  of  the  text  of  Scripture,  "  No 
man  can  serve  God  and  Mammon."  * 

William  Longchamp,  who,  uniting  in  himself  the 
offices  of  Lord  Chancellor  and  Chief  Justiciar, 
ruled  England  during  the  absence  of  Eichard 
in  Palestine  and  his  captivity  in  Germany,  is 
one  of  the  most  interesting  characters  to  be  found  in  me- 
diaeval history ;  but  I  have  already  published  whatever 
I  have  been  able  to  collect  respecting  his  extraordinary 
career.f 

*  "Tlanulphus    de  Glanevilla  Regni  human!  Minister  extitisset,  com  nemo 

Procurator,  cum  jam  grandsevus  esset  et  possit  utrique  prout  dlgnum  est  deser- 

videret  a  Rege  novitio  multa  minus  con-  vire,  secundum  illud  Dominicum,  Nan 

suite   et  improvide  actitari,  solemniter  potestii  Deo  gervire  et  Mammona," — 

renuncians  officio,   Dunelmensem  Epi-  Chron.   Walt.  Hem.  ch.  48.     See  God. 

scopum  habuit  successorem,  qui  nee  ob-  Praes.  753.    Roger  de  Wendover,  ii.  298  ; 

luctans  injunctum  a  Rege  suscepit  offl-  cxi.  8-15. 

cium:  sed  si  proprlo  fuisset  contentus        f  Lives  of  Chancellors,  vol.  i.  ch.  v. 
officio  divini  juris  nmlto  deceutius  quain 


44  EEIGN  OF  EICHAED  I.  CHAP.  I. 

After  his  fall,  WALTER  HUBERT,  who,  from  "being  a 

poor  boy,  educated  out  of  charity  by  Ranulfus 

Hubert,         de   Glanville,   had    reached  the   dignity   of 


Archbishop  of  Canterbury,  had  the  secular 
bury,  Chief  office  of  Chief  Justiciar  likewise  betowed 

Justiciar. 

upon  him. 
From  the  rolls  of  the  Curia  Regis  still  extant,*  and 

from  contemporary  chroniclers,  I  am  enabled 
A.D.  1193.  ^o  give  an  account  of  the  manner  in  which 
William  Hubert,  while  Chief  Justiciar,  dealt  with  a 

with-the-  ..  .         „  . 

Long-Beard,  demagogue,  who  for  some  time  gave  great 
disturbance  to  his  government.  William 
Fitz-Osbert,  a  citizen  of  London,  being  bred  to  the  law, 
is  denominated  "  legis  peritus,"  although  he  possessed 
but  a  very  small  portion  of  learning  ;  he  was  of  a  lively 
wit,  and  surpassing  eloquence  ;  and  he  is  the  earliest 
instance  recorded  in  England  of  a  man  trying  to  raise 
himself  by  popular  arts.  His  stature  being  mean,  he 
endeavoured  to  give  importance  to  his  looks  by  nourish- 
ing his  beard,  contrary  to  the  custom  of  the  Normans. 
Hence  he  was  generally  called  "  Willyam-wiih-ihe-longe- 
berde"  Although  of  Norman  descent,  he  pretended  to 
take  part  with  the  Anglo-Saxons,  and  to  be  their  a&yo- 
cate.  The  dominant  race  settled  in  London  had  a  tovhp. 
of  their  own,  "  Ealdormannabyrig,"  still  known  as  the* 
ALDERMANBURY  ;  while  the  rest  of  the  city  was  inhabited 
by  the  oppressed  natives.  Long-beard  first  distinguished 
himself  by  speaking  at  the  Folkmotes,  which  were  still 

*  The  Rolls  of  the  Curia  Regis  held  —  exhibit  what  the  world  cannot  else- 

before  the  Chief  Justiciar,  from  the  6  where  show,  the  judicial  system  of  a 

Richard  I.,  1194,  have  been  published  by  great    and    powerful    nation    running 

the  Record  Commissioners.     Sir  Francis  parallel  in  development  with  the  social 

Palgrave.  in  his  Introduction  to  them,  advancement  of  the  people  whom  that 

says,  in  very  striking  language,  —  "Com-  system  ruled."    The  Rolls  of  the  Curia 

paring  these  records  with  the  commen-  Regis  are  not  so  interesting  as  might 

tary  furnished  by  the  Year  Books,  and,  have  been  expected,  as  they  for  the  most 

lastly,  opening  the  volumes  of  the  Re-  part  merely  si  ate  the  names  of  the  par- 

porters  properly  so  called,  we  could  —  if  ties,  the  nature  of  the  action,  the  plea, 

human  life  were  adequate  to  such  a  task  and  the  judgment. 


A.D.  1193.    WALTER  HUBERT,  CHIEF  JUSTICIAR.  45 

allowed  to  be  held  for  laying  on  assessments,  although 
not  to  assist  in  making  laws  as  in  former  times.  Not 
succeeding  so  well  as  he  expected  in  obtaining  the 
applause  of  the  mob,  he  suddenly  became  a  great 
courtier,  and  tried  to  gain  the  favour  of  Coeur  de  Lion 
by  pretending  that  he  had  discovered  a  treasonable  plot, 
into  which  his  elder  brother,  Kichard  Fitz-Osbert,  had 
entered.  Having  appealed  him  of  high  treason  before 
the  Curia  Eegis,  he  swore  that,  at  a  meeting  to  consider 
of  a  further  aid  to  pay  the  King's  ransom,  he  had  heard 
the  appellee  say,  "  In  recompense  for  the  money  taken 
from  me  by  the  Chancellor  within  the  Tower  of  London, 
I  would  lay  out  forty  marks  to  purchase  a  chain  in  which 
the  King  and  the  'Chancellor  might  be  hanged  together. 
Would  that  the  King  might  always  remain  where  he 
now  is !  And,  come  what  will,  in  London  we  never  will 
have  any  other  king  except  our  mayor,  Henry  Fitz- 
Ailwin,  of  London  Stone."  The  appellee  pleaded  not 
guilty ;  and,  availing  himself  of  his  privilege  as  a  citizen 
of  London  to  defend  himself  by  compurgation,  many 
respectable  persons  came  forward  to  attest  their  belief 
in  his  innocence;  and  he  was  acquitted.  Longbeard 
complained  bitterly  that  Hubert,  the  Chief  Justiciar, 
had  decided  the  cause  corruptly ;  and,  returning  to  the 
patriotic  side,  he  now  contrived,  by  inveighing  against 
Norman  oppression,  to  raise  an  insurrection  against  the 
Government,  52,000  citizens  enrolling  themselves  as  his 
adherents.  He  likewise  called  a  folkmote  in  St.  Paul's 
Churchyard,  and  here  delivered  a  forcible  and  capti- 
vating discourse  to  the  assembled  people,  inviting  them 
to  adhere  to  him  steadily  as  the  protector  of  the  poor 
and  the  vindicator  of  their  ancient  rights.  For  some 
time  he  set  the  Government  at  defiance ;  but,  his  popu- 
larity rapidly  declining,  Hubert,  the  Chief  Justiciar, 
sent  a  body  of  troops  into  the  City  to  apprehend  him. 
After  a  slight  skirmish,  he  was  obliged  to  take  refuge 


46  EEIGN  OF  EICHAKD  I.  CHAP.  I. 

in  the  church  of  St.  Mary-le-Bow,  and  he  retired  to  the 
lofty  spire,  in  which  he  proposed  to  stand  a  siege.  The 
Archbishop,  having  in  vain  sent  him  a  summons  to 
"  come  out  and  abide  the  law,"  thought  that  he  might 
use  a  freedom  with  his  own  church  which  would  have 
been  sacrilege  in  a  layman,  and  directed  that  the  struc- 
ture should  be  set  on  fire.  Longbeard  was  obliged  to 
abandon  his  stronghold,  and,  attempting  to  escape, 
he  was  secured,  bound  with  fetters  and  manacles,  and 
carried  to  the  Tower  of  London.  Here  an  extraordi- 
nary sitting  of  the  AULA  REGIS  was  held;  and  the 
"  proceres,"  or  more  wealthy  citizens  of  London,  being 
called  in  as  a  jury,  or  as  assessors,  they  advised  that  he 
should  be  condemned  to  instant  death.  Sentence  was 
immediately  pronounced,  and  executed  with  great  bar- 
barity. Stripped  naked,  and  tied  by  a  rope  to  a  horse's 
tail,  Longbeard  was  dragged  over  the  rough  streets  and 
flinty  roads  to  Tyburn,  where  his  lacerated  and  almost 
lifeless  carcase,  after  the  infliction  of  many  cruelties, 
was  hung  in  chains.* 

Hubert  thus  acquired  a  temporary  triumph ;  but  his 

violation  of  the  right  of  sanctuary,  and  the 

A-D-1196-  v     i.  j  -^  j  v       ^     f 

outrage  he  had  committed  on  a  church  of 

uncommon  sanctity,  caused  great  scandal,  and  after- 
wards led  to  his  own  fall.  The  clergy,  as  a  body,  took 
up  the  matter,  partly  from  religious  feeling,  and  still 
more  from  envy  towards  the  Archbishop ;  and  the 
monks  of  Canterbury  in  particular  complained  to  the 
Pope  that  their  Archbishop  acted  as  a  Justiciar,  sitting 

*  Rot.    Cur.    Regis,    vol.  1.    69.  95.  retyke  called  With-the-Longe-Berde  was 

Hoveden,  668.  765.    Neubrigensis,  557.  drawen   and   hanged   for  heresye   and 

562.    Diceto,  691.    M.  Paris,  181.    Ger-  cursed  doctryne  that  he  had  taughte." 

vasins,  1591.  Knyghton,  1412.  Sir  Fran-  From  this  it  would  appear  that  the  Arch- 

cis  Palgrave,  in  his  Introduction  to  the  bishop  had  attempted  to  give  a  religious 

Rotuli  Curiae  Regis,  quotes  an  authority  turn  to  the  affair,  and  excuse  his  own 

which   I   have    not  seen,  "Annals  of  sacrilege   by   imputing   heresy  to   his 

London  contained  in  Liber  de  Antiquis  victim. 
Legibus,  MS.,"  describing  "  how  the  He- 


A.D.  1196.         FITZPETER,  CHIEF  JUSTTCIAR.  47 

as  a  judge  in  capital  cases — whereby  he  not  only  broke 
the  canons  forbidding  ecclesiastics  to  meddle  in  affairs 
of  blood,  but  was  so  entirely  engrossed  in  secular 
pursuits  that  all  his  ecclesiastical  duties  were  entirely 
neglected  and  cast  aside.  They  concluded  their  accusa- 
tion with  a  statement  how,  "  contrary  to  all  the  privi- 
leges and  immunities  of  Holy  Church,  he  had  violated  the 
sanctuary  of  St.  Mary-le-Bow,  whence  William-wiih-the- 
Loud-Berde  was  forcibly  taken,  condemned  to  death,  and 
hanged  on  the  tree."  The  Pope  addressed  a  mandate  to 
Richard,  requiring  him,  as  he  tendered  his  soul's  health, 
to  remove  the  Archbishop  from  the  Justiciarship.  This 
would  have  been  quite  enough  to  satisfy  the  peti- 
tioners ;  but,  to  the  great  mortification  of  the  hierarchy, 
his  Holiness  furthermore  enjoined  the  King  thenceforth 
to  abstain  from  employing  any  prelate  in  secular  affairs, 
and  he  addressed  a  concurrent  mandate  to  the  prelates 
strictly  prohibiting  them  from  accepting  employments 
so  uncongenial  to  their  station  in  the  Church.  The 
King  obeyed,  and  Hubert  was  deposed  from 
the  Chief  Justiciarship ;  but  the  general  re- 
gulation  produced  very  little  fruit ;  for  the 
grasping  Archbishop  contrived  to  obtain  a 
high  civil  office  in  the  next  reign,  and  ecclesiastical 
ambition  soon  became  more  rampant  in  England  than 
it  had  ever  been.* 

King  Eichard  appointed,  in  Archbishop  Hubert's 
place,  GEOFFREY  FITZPETER,  a  powerful  Baron, 
with  great  possessions  both  by  inheritance 
and  marriage  ;  and,  like  Grlanville,  well  skilled 
in  the  laws  and  customs  of  the  realm.  He 
had  acted  as  a  Justice  of  the  Forest,  as  a  Justice  Itine- 
rant, and  as  a  Puisne  Judge  in  the  Aula  Eegis.f  He 

*  Lives  of  Chancellors,  vol.  1.  ch.  vi.  from  the  payment  of  scutage  and  other 

Gervasius,    1614.     Hoveden,  119.     M.  assessments,  and  in  the  entry  recording 

Paris,  193.  the  fact  he  is  described  as  "  resident  at 

t  On  this  account  he  was  exempted  the  Exchequer." — Mad.  Exch  ii. 390. n. 


48  KEIGN  OF  KING  JOHN.  CHAP.  I. 

was  at  the  same  time  sheriff  of  the  united  counties  of 
Hertford  and  Essex,  in  which  he  held  many  manors. 
His  military  talents  were  likewise  distinguished.  The 
contemporary  chroniclers  inform  us  that,  as  soon  as 
he  was  appointed  "  Proto-Justiciarius  Anglise,"  he  led  a 
powerful  army  against  the  Welsh,  and  entirely  defeated 
the  restless  Gwenwynwyn,  who  had  besieged  the 
English  garrison  placed  by  William  de  Brause  in 
Maud's  Castle.  Three  thousand  seven  hundred  of  the 
enemy  are  said  to  have  been  killed  in  the  conflict,  and 
the  single  Englishman  who  fell  is  said  to  have  been 
killed  by  the  erring  shaft  of  a  fellow-soldier.* 

On  the  death  of  Richard  I.,  Fitzpeter  was  continued 
in  his  office  of  Chief  Justiciar  by  John,  and 
was  very  active  in  executing  the  measures  of 
the  Government,  as  well  as  in  the  administration  of 
justice.  "  At  the  same  time  he  appears  to  have  joined 
in  the  King's  amusements,  as  a  payment  of  five  shillings 
was  made  to  him,  ad  ludum  suum.  In  11  John  there  is 
a  curious  entry  on  the  Great  Eoll  of  his  fining  in  ten 
palfreys  and  ten  hawks,  that  the  King  of  Scotland's 
daughter  might  not  be  committed  to  his  custody  ;  but 
he  was  excused  the  palfreys.  He  was,  no  doubt,  famous 
for  his  choice  of  hawks,  for  which  he  seems  to  have  had 
an  expensive  taste,  if  we  may  judge  from  his  having 
purchased  one  from  the  King  at  the  extravagant  price 
of  four  tunels  of  wine."  j  Withal  he  must  have  been 
a  bon  vivant,  for  we  are  told  that  he  paid  a  penalty  for 
breaking  the  canons  of  the  Church  by  eating  flesh  on 
fast  days  4 

However,  neither  by  the  great  nor  the  agreeable  qua- 
lities which  he  possessed  could  he  long  retain 

A.D.  1202. 

the  favour  of  the  capricious  tyrant  now  on  the 

*  Hoveden,  7PO,  781.  Gervasius,  164,  Documents,  272,  275.  Madd.  Excheq.  i. 

165.  R.  de  Diceto,  703.  462.  Rot.  de  Fin.  6  John,  243. 

t  Foss's  JudgesofEngland.vol.il.  64,  J  Rot.  Misie.  14  John.  Cole's  Doc. 

cites  1  Rot.  de  Prast.  7  John.  Cole's  248. 


A.D.  1202.         FITZPETER,  CHIEF  JUSTICIAE.  49 

throne ;  and,  having  in  vain  remonstrated  against  the 
course  of  policy  which  produced  such  disasters,  he  re- 
signed his  office.  Till  the  year  1213  he  remained  in  a 
private  station.  Then  he  was  reappointed,  at  the  request 
of  the  Barons,  in  the  hope  that  he  might  put  an  end  to 
the  confusion  and  misery  in  which  the  kingdom  was 
involved.  All  ranks  submitting  willingly  to  his  sway, 
he  had  wonderful  success  in  restoring  order  and  the 
due  administration  of  justice,  and  every  one  was  de- 
lighted except  the  infatuated  John,  who  grieved  to  see 
himself  crossed  in  his  love  of  tyranny.  Unhappily,  this 
able  Chief  Justiciar  died  suddenly  in  the  following 
year.  When  the  King  heard  of  his  death,  he  laughed 
loudly,  and  said,  with  a  profane  oath,  "  Now  I  am  again 
King  and  Lord  of  England  !"  * 

A  contemporary  historian  thus  sounds  his  praise : — 
"  He  was  the  chief  pillar  of  the  state, — being  a  man  of 
high  birth,  learned  in  the  law,  possessed  of  great  wealth, 
and  closely  connected  with  all  the  chief  nobility  by 
blood  or  friendship.  Hence  the  King  dreaded  him 
above  all  other  mortals.  He  steadily  ruled  the  realm. 
But,  after  his  decease,  England  resembled  a  ship  tossed 
about  in  a  storm  without  a  rudder."  f 

Shakspeare,  in  his  drama  of  KING  JOHN,  introduces 
this  Chief  Justiciar  as  one  of  the  dramatis 

-,  .    .   -,  ,     „         jii  Trial  of  the 

personce,  and  gives  us  a  trial  betore  the  AD  LA   case  of 
EEGIS,   the   King  himself  being  present  in   bridge^. 
person.     This  was  what  the  lawyers  call  a 
"  legitimacy  case"  the  action  being  brought  to 
recover  the  large  estates,  in  Northamptonshire,  of  the 

*  "  Accepto  vero  de  morte  ejus  nuncio,  natibus  sanguine  vel  amicitia  confcede- 

Rex  cachinnando  dixit:  'Perpedes  Do-  ratus.    Unde  Eex  ipsum  pne  omnibus 

mini,  nnnc  primb  sum  Rex  et  Dominus  mortalibus  sine  delectione  fonnidabat : 

Anglias.' " — M.  Par.  in  ann.  1214.   •  ipse  enim  lora  regni  gubernabat.    Unde 

f  "  Erat  autem  flrmissima  Regni  co-  post  ejus  obitum,  facta  estAnglla  quasi 

lumna ;    utpote   vir  generosus,   legum  in  tempestate  navis  sine  gubernaculo." 

peritus,  thesauris,  reditibos  et  omnibus  — M.  Farit. 
bonis  instauratus,  omnibus  Anglise  Mag- 

VOL.   I.  E 


50  KEIGN  OF  KING  JOHN.  CHAP.  I. 

late  Sir  Robert  Fauconbridge,  Knt.,  which  were  claimed 
by  the  plaintiff,  as  his  son  and  true  heir,  on  the  ground 
that  an  elder  brother  who  had  got  possession  of  them 
was  the  son  of  Eichard  Coeur  de  Lion.  The  trial  is 
represented  as  having  been  conducted  with  great  fair- 
ness ;  for  the  doctrine  was  admitted,  "  Pater  est  quern 
nuptiae  demonstrant,"  subject  to  the  exception  of  the 
absence  of  the  husband  extra  quatuor  maria,  and  it  was 
satisfactorily  shown  that.at  the  time  to  which  the  eldest 
son's  origin  must  by  the  laws  of  nature  be  ascribed, 
while  Lady  Fauconbridge  was  in  England,  old  Sir 
Eobert  was  employed  upon  an  embassy  in  Germany. 
Much  weight  was  given  to  the  evidence  of  the  Dowager 
Queen,  Eleanor,  who  declared  that  the  defendant  had 
"  a  trick  of  Coeur  de  Lion's  face,"  that  she  "  read  in  his 
composition  the  tokens  of  her  son,  and  that  she  was 
sure  she  was  his  grandame."  So,  by  the  advice  of  Lord 
Chief  Justice  Fitzpeter,  judgment  was  given  for  the 
plaintiff;  while  the  defendant,  kneeling  before  the  King, 
rose  SIR  EICHARD  PLANTAGENET.* 

In  right  of  his  wife,  this  chief  of  the  law  became 
Earl  of  Essex;  and  the  earldom  was  enjoyed  by  his 
descendants  till  1646,  when  it  became  extinct  by  the 
death  of  Eobert  Devereux,  Earl  of  Essex,  the  great 
parliamentary  general,  without  issue.f 

John's  intervening  Chief  Justiciars,  Simon  de  Pate- 
shull,  Eustace  de  Fauconberg,  Eichard  de  Mucegos, 
Walter  de  Crespiny,  and  Saherus,  Earl  of  Winchester, 
did  not  gain  much  celebrity  either  by  their  administra- 
tion of  the  law  or  by  their  military  exploits.  When 
Fitzpeter  died  he  was  succeeded  by  PETER  DE  EUPIBUS,| 

*  King  John,  Act  I.    Scene  I.    This  his  use  of  legal  phraseology,  which  no 

scene  corroborates  the  supposition  that  mere  quickness  of  intuition  can  account 

Shakspeare,  either  before  he  left  Strat-  for. 

ford  or  on  his  coming  to  London,  had  t  Dug.  Bar.  i.  703.  See  Roger  de  Wen- 
been  employed  in  an  attorney's  office,  dover,  cxi.  49-273. 
He  is  uniformly  right  in  his  law  and  in  t  Sometimes  called  "  JOes  Roches." 


A.D.  1221. 


PETER  DE  EUPIBUS. 


51 


who  seems  to  have  enjoyed  great  admiration  in  his  own 

time,  although  he  has  not  been  much  known 

by  posterity.    Ho  was  a  native  of  Poictou, 

and  distinguished  himself  as  a  stout  soldier 

in  the  wars  of  Eichard  I.,  by  whom  he  was  knighted. 

Although,  by  his  education  and  habits,  better  qualified 

to  command  an  army  than  to  preside  over  a  diocese, 

yet,  being  liked  by  King  John,  who   did  not  stand 

on  such  niceties,  he  was  made  Bishop  of  Win-   A  D  1204 

Chester,  and  afterwards  Chief  Justiciar.*  His 

elevation  caused  much  envy,  which  he  was 

at  no  pains  to  soften  ;  and  on  this  occasion  he  remained 

but  a  short  time  in  office,  although  he  showed    A  D  J214 

vigour  and   ability  .f    His   great  rival  was 

Hubert  de  Burgh,  who  contrived  within  a 

year  after  his  elevation  to  supersede  him,  and  to  hold 

the  office  of  Chief  Justiciar  till  the  death  of  King 

John. 

Peter  de  Eupibus,  however,  was  again  in  favour  at 
the  commencement  of  the  next  reign,  and 
was  appointed  tutor  to  the  infant  Sovereign, 

,  i  ••     j    ,      i  •  TT 

who  became  very  much  attacned  to  him.  He 
was  employed  at  the  coronation  to  consecrate 
his  royal  pupil  ;  and,  being  restored  to  his 
office  of  Justiciar,  he  was  first  minister  as  well  as 
supreme  judge.  However,  he  increased  the  ill-will 
which  prevailed  against  him  by  advising  the  resump- 
tion of  grants  of  the  domain  and  revenues  of  the  Crown 
which  the  King,  with  a  boyish  levity,  had  lavished 
upon  his  courtiers  ;  and  he  made  himself  still  more 
unpopular  by  betraying  such  a  partiality  for  his 

*  This  commission   is  still    extant  :  Ideo  vobis  mandamus  quod  el  tanquam 

"  Rex  Archiepiscopis,  &c.   Constituimus  Justic.  nostro  Anglite  inteiidentes  sitls  et 

Justitiarium  nostrum  Anglise  P.  Win-  respondentes.    Dat."  &c. 

ton.    Episcopum  qnamdiu  nobis  placu-  •)-  "  Diu  non  dnravit  in  offlcio:  prn- 

erit  ad  custodiendum  loco  nostro  terram  dens  autem  et  potens."  —  Spel.  Gloss.  340 
nostram  Anglite  et  pacem  regni  nostrl. 

B   2 


Peter  de 

Rupibus  in 

favour  with 


52  KEIGN  OF  HENKY  III.  CHAP.  I. 

countrymen,  the  Poictevans,  that  they  engrossed  almost 
every  place  of  honour  or  profit.  About  this  time  sprung 
up  in  England  that  jealousy  of  foreigners,  and  that 
disposition  to  despise  them,  which  have  ever  since 
actuated  the  great  mass  of  our  countrymen.  The  Nor- 
mans had  been  highly  popular  at  the  Court  of  the  later 
Anglo-Saxon  Kings.  Having  conquered  the  country, 
they  long  regarded  all  of  Anglo-Saxon  blood  as  helots, 
while  they  treated  Frenchmen  and  Italians  who  came 
here  in  quest  of  preferment  as  equals.  But,  after  the 
loss  of  the  Continental  possessions  which  had  belonged 
to  the  Kings  of  England,  our  nobles  of  Norman  extrac- 
tion began  to  consider  themselves  as  Englishmen,  and 
there  was  a  rapid  fusion  of  the  two  races  into  one 
nation.  The  intercourse  of  the  inhabitants  of  this  island 
with  the  Continent  was  very  much  lessened,  and  the 
prejudices  as  well  as  the  virtues  of  islanders  gathered 
strength  among  them  from  generation  to  generation. 
Peter  de  Eupibus  excluded  all  who  were  born  in  Eng- 
land from  employment,  and  treated  them  with  con- 
tumely, after  the  fashion  of  the  Justiciars  of  the  Con- 
queror and  his  sons.  By  preferring  a  foreigner  to  a 
piece  of  ecclesiastical  preferment  which  was  coveted 
by  the  famous  Eoger  Bacon,  then  one  of  the  King's 
chaplains,  he  incurred  the  enmity  of  that  philosopher, 
who  took  every  opportunity,  both  in  his  sermons  and 
in  private  conversation,  to  set  the  King  against  him. 
It  is  related  that  on  one  occasion  Eoger  asked  Henry 
"  what  things  a  prudent  pilot  in  steering  a  ship  was 
most  afraid  of?"  and  Henry  answering  that  "Eoger 
himself  ought  best  to  know,  as  he  had  himself  made 
many  voyages  to  distant  parts,"  Eoger  replied,  "  Sir, 
he  who  steers  a  trireme,  and  he  who  steers  the  vessel 
of  the  state,  should,  above  all  things,  beware  of  stones 
and  rocks,  or  '  Petrae  et  Eupes.' "  Hubert  de  Burgh, 
his  old  rival,  took  advantage  of  the  combination  against 


A.D.  1233.  HUBEKT  DE  BUEGH.  53 

the  favourite,  and  contrived  again  to  turn  him  out 
from  the  place  of  Chief  Justiciar,  and  to  become  his 
successor. 

Peter  de  Kupibus,  now  yielding  to  the  passion  of  the 
age,  took  the  cross,  and  found  no  difficulty  in   A  D  m7 
obtaining  a  dispensation  to  bear  arms  in  so   He  takes  the 

it  t  TT       cross. 

pious  a  cause,  although  wearing  a  mitre.  He 
is  said  to  have  fought  valiantly  in  Palestine,  but  we 
have  no  particulars  of  his  single  combats,  or  the  num- 
bers he  killed  in  the  general  melee.* 

After  an  absence  of  several  years  he  returned,  and  all 
the  affection  of  his  royal  pupil  towards  him 

•          J  TT  •        1-      J    It,  f     A.D.  1231. 

was  revived.  He  again  had  the  patronage  of 
the  Court,  and  again  he  yielded  to  the  besetting  sin  of 
preferring  his  countrymen.  "  Naturales,"  says  M.  Paris, 
"  curiae  suse  ministros  a  suis  removit  officiis,  et  Picta- 
venses  extraneos  in  eorum  ministeriis  surrogavit."  He 
even  carried  his  insolence  so  far  as  to  declare  publicly 
that  "  the  Barons  of  England  must  not  pretend  to  put 
themselves  on  the  same  footing  with  those  of  France, 
or  assume  the  same  rights  and  privileges."!  The 
consequence  was,  that  the  English  Bishops  combined 
against  him  with  the  English  Barons,  and  a  law  was 
passed,  to  which  the  King  most  unwillingly  gave  the 
royal  assent,  "  That  all  foreigners  holding  office  under 
the  Crown  should  be  banished  the  realm."  They  went  so 
far  as  to  declare  "  that  if  the  King  did  not  immediately 
dismiss  his  foreigners  they  would  drive  both  him  and 
them  out  of  the  kingdom,  and  put  the  crown  on  another 
head  more  worthy  to  wear  it."i  Peter  made 

AJX  1233. 

a  stout  resistance,  but,  owing  to  the  jealousy 

of  his  spiritual  brethren,  he  was  excommunicated  and 

obliged  to  fly. 

*  Spelman,  who  had  examined  all  the  ejus   anspicils  gesta    stint  feliciter." — 

chronicles,  is  obliged  to  say  in  general  Gloss,  p.  346. 

terms,  "  Exacto  munere  Terrain  Sanctam  -f-  M.  Paris,  265. 

cruce-signatiis  proficiscitur.     Multa  illic  t  Ibid.  265. 


54  REIGN  OF  HENRY  III.  CHAP.  I. 

He  went  to  Eome  to  appeal  against  the  injustice 
which  had  been  done  him.  Here  his  military 
battie'for*  prowess  stood  him  in  good  stead.  Finding 
the  Pope.  pOpe  Gregory  IX.  engaged  in  war,  he  put 
himself  at  the  head  of  his  Holiness's  army  and  gained 
a  great  battle.  In  consequence,  he  was  not  only  ab- 
solved from  excommunication,  but  ordered  to  be  rein- 
stated in  his  bishopric.  Accordingly  he  returned  to 
England,  and  was  received  in  solemn  procession  by  the 
monks  and  clergy  of  his  cathedral.  At  the  last  stage  of 
his  career  he  devoted  himself  wholly  to  his  spiritual 
duties,  and,  in  the  odour  of  sanctity,  he  died, 
His  death  *n  ^s  episc°Pal  palace  at  Farnham,  on  the 
5th  of  June,  1238.  He  was  buried  in  the 
north  aisle  of  Winchester  Cathedral,  where  is  still  to 
be  seen  a  mutilated  figure  representing  him  in  black 
marble,  with  a  mitre  on  his  head,  but  without  a  sword 
by  his  side.  Although  he  had  gone  through  so  many 
adventures,  founded  several  religious  houses  both  for 
monks  in  his  own  diocese  and  for  pilgrims  at  Joppa, 
and  filled  such  a  space  in  the  eyes  of  his  contemporaries, 
he  is  now  only  mentioned  in  the  dry  chronicles  of  the 
Bishops  of  Winchester  or  of  the  Chief  Justiciars  of 
England. 

His  rival  still  makes  a  conspicuous  figure  in  English 
history.  HUBERT  DE  BURGH  had  the  advan- 
"ta§e  °f  being  born  in  England,  although, 
like  all  the  nobility  of  the  time,  he  was  of 
foreign  extraction.  William  Fitzadeline,  his  father's 
elder  brother,  had  been  Steward  to  Henry  II.,  and, 
accompanying  that  monarch  into  Ireland,  established 
there  the  powerful  and  distinguished  family  now  repre- 
sented by  my  friend  the  present  Marquess  of  Clan- 
ricarde.  Hubert,  afterwards  the  famous  Justiciar,  was 
early  left  an  orphan,  and  was  very  slenderly  provided 
for,  but  he  received  from  nature  the  highest  gifts  both 


A.D.  1238.  HUBEKT  DE  BURGH.  55 

of  person  and  understanding,  and,  through  the  care  of 
his  maternal  relations,  he  was  carefully  educated  not 
only  in  all  martial  exercises,  but  in  all  the  learning  of 
the   age.      He   gained  some   distinction   by 
serving  in  the  army  under  Eichard  I.,  to-   Hubert  de 

0  »       «  •     i  •  i  Burgh  under 

wards  the  conclusion  of  the  reign   of  that   Richard  i. 
monarch;*  and,   on  the  accession   of  King 
John,  he  was  sufficiently  prominent  at  court  to  be  one 
of  the  pledges  that  the  convention  of  the  new  Sovereign 
with  Eeginald,  Earl  of  Boulogne,  should  be  faithfully 
observed.f  Soon  after,  he  was  made  Lord  Chamberlain ; 
and  now  it  is  that  Shakspeare  assigns  to  him.  the  custody 
of  Arthur,  the  son  of  Geoffrey. 

It  is  not  easy  to  discover  the  view  taken  by  our 
immortal  dramatist  of  the  character  of  Hubert    „. 
de  Burgh,  whom  he  represents  with  a  very   racter  by 
tender  heart,  but  who  is  made  to  say,  when 
solicited   to  rid   the  usurper   of  the   "serpent  in  his 
way,"  "  He  shall  not  live  ;"  and  who  deliberately  and 
seriously  makes  preparations  for  putting  out  the  poor 
young  Prince's  eyes  with   hot   irons.J     According  to 
true  history,  the  Chamberlain  always  showed  kindness 
to  Arthur,  and  never  on  any.  occasion  pandered  to  the 
evil  inclinations  of  John.     Yet  he  enjoyed  the  favour 
of  this  capricious  tyrant,  and  was  constituted  by  him 
Warden  of  the  Marches  of  Wales,  Governor  of  the  Castle 

*  One  of  the  earliest  notices  of  him  in        Therefore  I  will  be  sudden,  and  de- 
our  records  is,  that  he  was  surety  to  the  spatch." 

Crown  for  Petrus  de  Maillai,  who  agreed 

to  pay  7000  marks,   "pro  habenda  in  And,  after  the  fit  of  compass.on  had  con- 

uxorem  Ysabellam   flliam   Roberti  de  £"ered   hlm-    he    thus    ^dresses   the 

Turneham  cum  jure  suo,"  &c.— Mad.  ' 

Exch.ii.ZU.  "Well,  see  to  live:  I  will  not  touch 

f  Rot.  Chart.  1  John,  30.  36.  tnine  eye8 

J  Hubert  exclaims  <wMe,and  therefore  For  all  the  treaBure  that  thine  uncle 

sincerely—  Owe8. 

"  If  I  talk  to  him,  with  his  Innocent  Yet  I  am  sworn,  and  I  did  purpose, 

prate  boy, 

He  will  awake  my  mercy,  which  lies  With  this  same  very  Iron  to  burn  them 

dead :  out."            King  John,  act  iv.  sc.  i. 


56  KEIGN  OF  HENKY  III.  CHAP.  I. 

of  Dover,  and  Seneschal  of  Poictou.  He  was  likewise 
sent  by  him  as  ambassador  to  France,  and  he  negotiated 
a  peace  between  the  two  kingdoms.  In  the  midst  of 
these  high  employments,  he  condescended  to  act  as 
Sheriff  of  several  English  counties,  being  responsible 
for  the  preservation  of  the  peace,  and  for  the  due  collec- 
tion of  the  royal  revenues  within  them. 

In  the  controversies  which  arose  between  John  and 
the  Barons,  Hubert  remained  faithful  to  his  master, 
but  gave  him  good  advice,  and  tried  to  instil  into  him 
some  regard  for  truth  and  plighted  faith.  Being  present 
with  him  at  Eunymede,  he  prevailed  upon  him  to  sign 
the  Great  Charter,  and  he  afterwards  sincerely  lamented 
the  violation  of  its  provisions. 

Though  praised  warmly  by  historians  for  his  open 
and  straightforward  conduct,  I  am  afraid  that  he  was 
seduced  into  duplicity  and  intrigue  by  his  desire  to 
obtain  the  office  of  Chief  Justiciar,  the  darling  object  of 
his  ambition.  He  professed  much  friendship  for  Peter 
de  Eupibus,  but  he  is  suspected  of  having  tripped  up 
his  heels  in  the  end  of  the  year  1215,  and  to  have 
taken  an  unfair  advantage  of  the  unpopularity  under 
which  this  prelate  then  laboured.  He  was  now  ap- 
pointed Chief  Justiciar,  but  had  little  en- 

A.D.  1215.  f  .        ,    .          ,  .  „,         ,    .  , 

joyment  in  his  elevation.  The  kingdom  was 
in  a  state  of  distraction  from  internal  discord,  and  its 
independence  was  threatened  by  the  invasion  of  a 
French  army.  He  gallantly  defended  Dover  Castle 
against  Prince  Louis,  and  gained  a  considerable  vic- 
tory over  a  French  fleet  in  the  Channel.  The  ad- 
ministration of  justice,  however,  was  long  entirely 
suspended,  insomuch  that  Hubert  had  never  been 
installed  in  the  AULA  EEGIS,  when  his  functions  were 
determined  by  the  King's  miserable  death  in  the 
Castle  of  Newark. 

For  the   first  three   years   of  the  new  reign,   the 


A.D.  1224. 


HUBEET  DE  BUKGH. 


57 


office  of  Chief  Justiciar  was  superseded  by  the  ap- 
pointment of  the  Earl    of  Pembroke,   the 
Earl  Marshal,  as  Protector   of  the    realm, 
with  absolute  power.     On  the  death  of  that  nobleman, 
Hubert  was  restored  to  the  office  of  Chief  Jus- 

,.    .  .,.  AJ).  1219. 

ticiar,  and  there  was  an  apparent  reconcilia- 
tion between  him  and  Peter  de  Eupibus,  who  was  in- 
trusted with  the  education  of  the  young  King.*     The 
wily  Poictevan,  availing  himself  of  his  influ- 
ence over  the  mind  of  his  pupil,  by-and-by 
had  his  revenge,  and,  once  more  Chief  Justiciar,   he 
engrossed  all  the  powers  of  the  Crown.     Hubert  retired 
from  Court,  and  prudently  "  bided  his  time."     Perceiv- 
ing the  odium  into  which  his  rival  had  fallen, 
he   formed   a   confederation   of   nobles   and 
churchmen  against  him,  and  compelled  him  to  seek 
for  safety  by  taking  the  cross,  and  setting  off  for  the 
Holy  Land.f 


*  M.  Paris,  247-251.  Waverley,  183. 
Gul.  Armor.  90. 

f  Dr.  Lingard  gives,  from  the  contem- 
porary chronicles,  the  following  graphic 
account  of  "  an  event  which  established 
the  authority  of  Hubert,  and  induced  his 
rival  to  banish  himself  from  the  island 
under  pretence  of  making  a  pilgrimage. 
Among  the  foreigners  enriched  by  John, 
was  a  ferocious  and  sanguinary  ruffian 
named  Fawkes,  who  held  the  castle  of 
Bedford  by  the  donation  of  that  monarch. 
At  the  assizes  at  Dunstable,  he  had  been 
amerced  for  several  misdemeanors  In 
the  sum  of  30002. :  but,  instead  of  sub- 
mitting to  the  sentence,  he  waylaid  the 
judges  at  their  departure,  and  seizing  one 
of  them,  Henry  de  Brinbruok,  confined 
him  in  the  dungeon  of  the  castle.  Hu- 
bert willingly  grasped  the  opportunity  of 
wreaking  his  vengeance  on  a  parti.-an  of 
the  Bishop  of  Winchester.  The  King 
was  induced  to  invest  in  person  the  for- 
tress of  this  audacious  rebel;  and  the 
clergy  spontaneously  granted  him  an  aid 
from  themselves  and  their  free  tenants. 


Two  towers  of  wood  were  raised  to  such 
a  height  as  to  give  the-  archers  a  full 
view  of  the  interior  of  the  castle ;  seven 
military  engines  battered  the  walls  with 
large  stones  from  morning  till  evening ; 
and  a  machine,  termed  a  cat,  covered  the^ 
sappers  in  their  attempts  to  undermine 
the  foundations.  Fawkes,  who  had  re- 
tired into  the  county  of  Chester,  had  per- 
suaded himself  that  the  garrison  would 
be  able  to  defend  the  castle  for  twelve 
months.  But  the  barbican  was  first 
taken  by  assault;  soon  alterwards  the 
outer  wall  was  forced,  and  the  cattle, 
horses,  and  provender,  iu  the  adjacent 
ward,  fell  into  the  hands  of  the  victors : 
a  breach  was  then  made  in  the  second 
wall  by  the  miners;  and  the  royalists, 
though  with  considerable  loss,  obtained 
possession  of  the  inner  ward :  a  few  days 
later  the  sappers  set  fire  to  the  props 
which  they  had  placed  under  the  founda- 
tions of  the  keep ;  one  of  the  angles  sank 
deep  into  the  ground,  and  a  wide  rent 
laid  open  the  interior  of  the  fortress. 
The  garrison  now  despaired  of  success. 


58  EEIGN  OF  HENEY  III.  CHAP.  I. 

For  some  years  Hubert  exercised  despotic  sway  in 
Hubert  de  England.  He  was  created  Earl  of  Kent, 
Burgh  ap-  and,  in  the  vain  hope  of  perpetuating  his 
justiciarfor  power,  he  obtained  a  grant  for  life  of  the 
office  of  Chief  Justiciar,  which  hitherto  had 
always  been  held  during  pleasure.  Moreover,  he 
usurped  a  similar  appointment  to  the  Chief  Justiciar- 
ship  of  Ireland. 

"When  without  a  rival,  it  is  admitted  that  he  con- 
ducted himself  honourably  as  well  as  prudently.  He 
displayed  a  knowledge  of  the  law,  and  a  zeal  to  do 
justice  to  all  suitors  who  came  before  him,  for  which 
he  had  not  hitherto  had  credit;  while  he  preserved 
tranquillity  at  home,  and  raised  the  consideration  of 
England  with  foreign  nations  to  a  pitch  unknown 
since  the  death  of  Coeur  de  Lion.  "  Multa  bene  in  re 
judiciaria,"  says  Matthew  Paris,  "  multa  strenue  in 
militiS,  gessit."* 

The  only  grave  act  of  misgovernment  imputed  to 
him  was  the  annulling  of  the  CHARTER  OF  THE  FOREST, — 
a  concession  which  was  most  reasonable,  and  which 
had  been  passionately  claimed  both  by  the  nobility 
and  the  people.f  However,  Hume  doubts  whether 
this  act  was  done  by  his  advice,  characterising  him  as 
"  a  man  who  had  been  steady  to  the  Crown  in  the  most 

They  planted  the  royal  standard  on  the  bench,  he  was,  like  other  Justiclars, 
tower,  and  sent  the  women  to  implore  always  ready  to  exercise  a  vigour  be- 
the  King's  mercy.  But  Hubert  resolved  yond  the  law  when  in  the  field.  In  the 
to  deter  men  from  similar  excesses  by  15th  year  of  Henry  III.,  hearing  that 
the  severity  of  the  punishment.  The  the  Welsh  had  committed  great  out- 
knights  and  others  to  the  number  of  rages,  especially  about  Montgomery,  he 
eighty  were  hanged;  the  archers  were  marched  thither,  and,  having  taken  many 
sent  to  Palestine  to  fight  against  the  prisoners,  he  struck  off  their  heads  and 
Turks;  and  Fawkes,  who  now  surren-  sent  them  to  the  King;  which  so  pro- 
dered  himself  at  Coventry,  was  banished  voked  Llewelyn,  Prince  of  Wales,  that, 
from  the  island,  together  with  his  wife  raising  all  the  power  he  could,  he  reta- 
and  family."— See  M.  Paris,  270.  Dunst.  liated  on  the  English,  setting  fire  even 
142-145.  New  Rym.  1?5.  Rot.  Claus..  to  the  churches,  in  which  crowds  who 
639.  Annal.  Wig.  486.  had  taken  sanctuary  were  burned. 

*  M.  Paris,  ad  ann.  1232.    But  though         f  M.  Paris,  p.  232. 
very   scrupulous  while  sitting  on  the 


A.D.  1232.  HUBEET  DE  BUEGH.  59 

difficult  and  dangerous  times,  and  who  yet  showed  no 
disposition  in  the  height  of  his  power  to  enslave  or 
oppress  the  people."* 

But,  while  others  were  obliged  to  surrender  valuable 
possessions  which  they  held  under  royal  letters  patent, 
he  was  annually  enriched  by  new  grants  of  forfeitures, 
escheats,  and  wardships;  and  those  whom  he  dis- 
obliged declared  that  he  was  guilty  of  much  greater 
rapacity  than  his  banished  rival,  or  any  of  his  prede- 
cessors. The  temper  of  the  times  may  be  estimated 
from  the  derisive  title  of  "  Hubert's  Folly "  given  to 
a  castle  ineffectually  erected  by  him  to  repress  the 
incursions  of  the  Welsh.'f  An  unsuccessful  expedition 
into  France,  in  which  he  accompanied  the  King,  in- 
flamed the  public  discontent,  and  precipitated  his  fall. 

It  so  happened  that  at  this  very  time  Peter  de  Eu- 
pibus  returned  to  England  from  Palestine, 
having  been  preceded  by  exciting  reports  of 
the  gallantry  which  he  had  displayed  in  assisting  to 
recover  the  holy  sepulchre,  while  his  old  enemy  had 
been  enjoying  ease  and  amassing  riches  at  home.     All 
now  predicted   the   fall    of  the    obnoxious 
minister.      By    the    subtle    advice    of   his   Hubert  re- 
enemies,  instead   of  any  violence   being  of-    from  his 
fered  to  him   a   great   council  was   called,    cSef  jL- 
and  an  order  was  made  upon  him  to  answer  ^gg't*nd 
for  all  the  wardships  which  he  had  held,  all    sanctuary, 
the  rents  of  the  royal  demesnes  which  he  had 
received,  and  all  the  aids  and  fines  which  had  been 
paid  into  the  Exchequer  while  he  filled  the  office  of 
Chief  Justiciar.     Seeing  that  his  ruin  was  determined 
upon,  he  took  to  sanctuary  in  the  priory  of  Merton. 
Being  immediately  removed  from  his  office  of  Chief 
Justiciar,  he  asserted   that  he  held  the  appointment 
for  life,  by  a  grant  under  the  Great  Seal ;  but  he  was 

*  Hist,  of  Eng.  ii.  159.  f  Roger  de  Wendover.  Iv.  173. 


60  REIGN  OF  HENRY  III.  CHAP.  I. 

told  that  the  patent  was  illegal  and  void ;  and  Stephen 
de  Segrave  was  appointed  his  successor,  at  the  instiga- 
tion of  Peter  de  Kupibus,  who  at  present  preferred  the 
enjoyment  of  power  without  the  envy  of  office. 

Proclamation  was  now  made  through  the  City  of 
London  by  a  herald,  that  "  all  manner  of  persons  who 
had  any  charge  to  make  against  the  ex-Chief  Justiciar 
were  to  come  forth,  and  rthey  should  be  heard."  He 
was  not  only  accused  of  treason  to  the  King  in  the 
negotiations  he  had  carried  on,  but  of  poisoning  some 
of  the  nobility,  of  abstracting  from  the  royal  treasury 
a  gem  which  had  the  virtue  of  "rendering  the  wearer 
invulnerable,  and  of  gaining  the  King's  favour  by 
sorcery  and  enchantment. 

It  was  first  resolved  to  drag  him  from  his  asylum  by 
force,  and,  with  this  view,  the  Mayor  of  London  and  a 
body  of  armed  citizens  were  sent  to  storm  the  priory  ; 
but  the  King,  being  warned  by  the  Archbishop  of 
Dublin  of  the  sacrilege  about  to  be  committed,  agreed 
to  allow  the  accused  to  remain  there  unmolested  for 
five  months,  that  he  might  prepare  for  his  trial.  Hu- 
bert, finding  himself  no  longer  watched,  left  his  sanc- 
tuary and  proceeded  towards  Bury  St.  Edmunds  to  visit 
his  wife ;  but  the  Government,  afraid  of  his  intentions, 
despatched  a  body  of  300  horsemen  with  orders  to  arrest 
him  and  convey  him  to  the  Tower  of  London.  Being 
in  bed  when  he  heard  of  their  approach,  he  fled  naked 
to  the  parish  church  of  Boisars,  and,  on  the  steps  of 
the  altar,  with  the  consecrated  host  in  one  hand  and  a 
silver  cross  in  the  other,  awaited  the  arrival  of  his 
pursuers.  Unmoved  by  the  sanctity  of  the  scene  which 
they  beheld,  they  seized  him,  placed  him  on  horseback, 
tied  his  feet  under  the  horse's  belly,  and  proceeded  with 
their  captive  towards  the  metropolis  amidst  the  derisive 
shouts  of  the  populace.  The  Bishop  of  Winchester, 
either  respecting  the  privileges  of  the  Church,  or  afraid 


A.D.  1232.  HUBEET  DE  BUKGH.  61 

of  exciting  sympathy  in  favour  of  a  depressed  rival, 
caused  orders  to  be  given  that  the  prisoner  should  be 
replaced  on  the  steps  of  the  altar  from  which  he  had 
been  taken ;  and  the  Sheriff  of  Essex  was  charged 
under  penalty  of  death  to  prevent  his  escape.  To 
render  this  impracticable,  a  deep  moat  was  dug  round 
the  sacred  building  in  which  he  was  confined,  and  on 
the  fortieth  day  hunger  or  despair  compelled  him  to 
surrender  himself.  After  a  short  confine- 
ment in  the  Tower,  he  was  brought  before  Jfed  in°the 
a  council  of  his  peers  assembled  in  Cornhill. 
The  accusations  against  him  being  read,  he 
declared  that  he  should  make  no  defence,  and  that  he 
placed  his  body  and  his  lands  and  goods  at  the  King's 
pleasure.  Sentence  was  passed,  whereby,  being  al- 
lowed to  retain  his  patrimonial  inheritance  and  the 
lands  he  had  gained  by  marriage,  he  was  to  forfeit  all 
the  rest  of  his  property  to  the  Crown,  and  was  to  be 
kept  in  safe  custody  in  the  Castle  of  Devizes  till  he 
should  enter  the  order  of  the  Knights  Templars. 

The  following  year  he  was  dreadfully  alarmed  by 
the  news  that  the  custody  of  this  castle  had  been 
transferred  to  a  retainer  of  Peter  de  Eupibus;  and, 
that  he  might  not  fall  into  the  hands  of  his  mortal 
enemy,  he  dropped  from  the  castle  wall  into  the  moat, 
in  the  obscurity  of  the  night,  and  again  took  sanctuary 
in  a  neighbouring  church.  The  guard  hastened  after 
him  with  lights  and  clubs,  and  finding  him  pros- 
trate before  the  high  altar  with  a  cross  in  his  hands, 
carried  him  back  again  into  stricter  custody  in  the 
castle.  The  Bishop  of  Salisbury,  within  whose  diocese 
this  outrage  had  been  committed,  threatened  to  excom- 
municate all  concerned  in  it.  In  accordance  with  the 
respective  obligations  and  privileges  of  the  parties,  the 
King  restored  Hubert  to  the  church  from  which  he 
had  been  forced,  but  at  the  same  time  ordered  the 


62  REIGN  OF  HENRY  III.  CHAP.  I. 

Sheriff  of  Wiltshire  to  besiege  him  there,  and  to  starve 
him  to  death  unless  he  chose  voluntarily  to  surrender. 
In  this  desperate  condition,  two  of  the  soldiers  who  had 
formerly  served  under  him  took  compassion  upon  him, 
furnished  him  with  some  food,  clothed  him  in  a 
military  habit,  and,  convoying  him  into  Wales,  put 
him  under  the  protection  of  the  Earl  of  Pembroke. 
Afterwards,  at  an  assembly  of  the  Barons  held  at  West- 
minster, the  King  preferred  articles  of  im- 
A.D.  1239.  r  ,  . 

peachment    against    him,  accusing   him    of 

usurping  the  office  of  Chief  Justiciar,  of  treason,  of 
rapacity,  and  of  trying  to  prevent  the  King's  marriage 
with  the  daughter  of  the  Duke  of  Austria  by  saying  that 
the  King  squinted,  had  a  leprous  appearance,  and  was 
not  qualified  for  wedlock.*  By  his  answers  he  denied 
all  these  charges,  insisting  that  he  had  been  appointed 
Justiciar  by  King  John  at  Eunymede,  and  that  he  had 
never  exercised  the  powers  of  that  office  without  due 
warrant.f 

Finally,  a  compromise  was  effected  by  which  he  sur- 
rendered four  of  his  strongest  castles,  and  released  all 
right  to  the  office  of  Chief  Justiciar, — receiving  a 
pardon  for  all  offences,  and  being  allowed  to  retain  all 
Kliis  .other  possessions.  He  now  became  disgusted  with 
public  life,  and  he  spent  the  rest  of  his  days  in  seclu- 
Death  of  sion.  After  repenting  of  his  many  irregu- 
Hubertde  larities,  and  receiving  the  consolations  of 
religion,  he  quietly  expired  at  Banstede,  in 
Surrey,  on  the  12th  day  of  May,  1243. 

His  body,  being  brought  to  London,  was  honourably 
interred  in  the  church  of  the  Black  Friars  in  Holborn  ; 
a  house  to  which  he  was  a  benefactor,  having  given  it, 
amongst  other  things,  his  inn  at  Westminster,  which 
became  the  town  residence  of  the  Archbishops  of  York, 

*  "  Prorsus  inutilis  amplexibus  alicqjus  ingenuse  mulieris." — M.  Paris. 
f  1  St.  Tr.  14. 


A.D.  1243.  HUBEET  DE  BUKGH.  63 

and  afterwards  the  royal  palace  of  Whitehall.  He  was 
married  four  times  ;  all  his  wives  being  high  born,  and 
the  last  no  less  a  person  than  the  daughter  of  William 
the  Lion,  King  of  Scotland.  This  marriage  took  place 
at  York  when  he  was  Chief  Justiciar  the  second  time, 
the  Archbishop  of  Canterbury  performing  the  ceremony, 
and  the  King  and  many  of  the  nobility  assisting  at  it.* 
His  descendants,  after  flourishing  for  some  generations, 
became  extinct  in  the  male  line.  He  was  not  an  author 
like  Glanville,  but  he  is  supposed  to  have  patronised 
Bracton,  who,  as  a  jurist,  was  the  great  glory  of  this 
reign. 

The  most  touching  panegyric  ever  pronounced  upon 
Hubert  was  by  an  Essex  blacksmith,  who,  being  re- 
quired to  forge  fetters  to  secure  him  when  they  were 
carrying  him  prisoner  to  the  Tower  of  London,  ex- 
claimed, "  Do  what  you  please  with  me ;  I  would  rather 
die  than  put  fetters  on  him.  Is  he  not  the  faithful  and 
magnanimous  Hubert,  who  has  so  often  rescued  Eng- 
land from  the  ravages  of  foreigners,  and  restored 
England  to  the  English — who  served  his  Sovereign  so 
firmly  and  faithfully  in  Normandy  and  Gascony  that 
he  was  sometimes  compelled  to  eat  horse-flesh,  his  very 
enemies  admiring  his  constancy — who  preserved  Dover, 
the  key  of  England,  against  the  King  of  France  and  all 
his  power — and  who  secured  our  safety  by  subduing 

*  Spelman,  340.    See  Dugdale's  Ba-  pable  of  solemnizing  the  marriage."  The 

ronage,  and  Hasted's  '  History  of  Kent.'  defence  made  by  Hubert  was,  "  that  he 

Notwithstanding  the  open  and  solemn  knew  nothing  of  any  treaty  for  marrying 

manner  in  which  this  marriage  was  cele-  the   Princess  of  Scotland  to  Henry  or 

brated,  it  was  alterwards  made  an  article  Richard;  that  the  Princesses  were  to  be 

of  charge   against  him,  "that  whereas  bestowed  In  marriage  by  the  King  of 

William,  King  of  Scots,  had  delivered  England,  with  the   approbation  of  the 

two  of  his  daughters  to  John,  King  of  nobility,  and  that  in  consequence  the 

England,  under  condition  that  the  eldest  eldest  was  so  bestowed  on  him,  Hubert." 

should  be  married  to  Henry,  Prince  of  "  If  the   controverted  article   existed," 

England,  or,  in  the  event  of  his  death,  to  says  Lord  Hales,  "  we  must  admire  the 

Richard,  Earl   of    Cornwall,   yet   that  effrontery  of  Hubert ;  if  not,  the  igno- 

Hubert  himself  had  taken  her  to  wife  ranee   or  malice   of    his    accusers." — 

while  Henry  was  under  age,  and  inca-  Annals  of  Scotland,  i.  170. 


64  EEIGN  OF  HENKY  III.  CHAP.  I. 

our  enemies  at  sea  ?    May  God  "be  judge  between  him 
and  you  for  such  unjust  and  inhuman  treatment."* 

After  the  rivalry  of  Peter  de  Eupibus  and  Hubert 
de  Burgh  had  been  terminated  by  the  ruin  of  both, 
there  began  the  struggle  between  the  Crown  and  the 
Barons,  which  was  not  terminated  till  Simon  de  Mont- 
fort  fell  in  the  fatal  battle  of  Evesham,  more  than 
thirty  years  afterwards.  During  this  period,  several 
reached  the  dignity  of  Chief  Justiciar  who  were  neither 
distinguished  as  judges,  nor  gained  much  political  or 
military  renown ;  and  whom  we  shall,  therefore,  quickly 
despatch.  Hubert's  immediate  successor  was  Stephen 

de  Segrave,  who  had  previously  been  a  corn- 
Stephen  de  V      .   .  .          .    ,        . 
Segrave.         mon  justiciar,  or  puisne  judge,  in  the  AULA 

REGIS.!  He  was  a  rare  instance,  in  those 
days,  of  a  man  being  in  a  high  civil  station  who  was  of 
obscure  origin ;  but  this  was  accounted  for  by  the  cir- 
cumstance of  his  having  begun  his  career  as  a  church- 
man. He  was  then  knighted,  and  showed  extraordinary 
prowess  in  the  field.  Last  of  all,  he  addicted  himself  to 
jurisprudence.  When  he  had  gained  the  object  of  his 
highest  ambition,  he  cared  little  for  the  interests  of  the 
suitors,  he  recommended  arbitrary  measures  to  the  King, 
and  he  enriched  himself  by  rapacity.  Having  obtained  a 
dispensation  from  the  Pope  to  marry,  notwithstanding 
his  religious  vows,  he  made  good  use  of  his  privilege,  for 
he  had  successively  two  wives  of  the  distinguished  fami- 
lies of  Le  Despencer  and  Hastings ;  and  the  Earls  of 
Berkeley,  the  Earls  of  Egremont,  and  all  the  branches 
of  the  house  of  Howard,  are  descended  from  him.J 

*  See  Roger  de  Wendover,  iv.  247-  humili  genere  orlundus,  strenuitate  sua 

253;    Rot.  Liberat.   10;   Rot.  Pat.  11;  ultimis  diebus  adeo  ditatus  et  exaltatus 

Roger  de  Wendover,  ill.  293-380;   Rot.  est,  ut  inter  primes  regni  reputatus,  pro 

Claus.  i.  319-322.  Jnsticiario  habitus  est,  et    omnia  i'ere 

f  Madd.  Exch.  i.  63.  65.  regni    negotia  pro  libitu  disposuit,  sed 

j  SeeSpelman,341.  He  is  thus  pithily  semper  plus  sui  amicns  quam  reipub- 

despatched  by  M.  Paris : — "  In  juven-  lic»." 
tute  sua  de  clerico  factus  Milts,  licet  de 


A.D.  1235.      HUGH  BIGOD,  CHIEF  JUSTICIAK.  65 

Next  came  Hugo  de   Pateshulle,  who    had   the  re- 
putation of  integrity  as   a  judge,  but  no-   A. 0.1235. 
thing  is   said    of   his    learning   or   ability,    chief  jus- 
He  resigned  his  office  on  being  elected  Bishop    ticiars. 
of  Lichfield  and  Coventry.     Of  his  successor,    AJ>>  1239- 
Gilibertus  de  Segrave,  still  less  is  known,  for  the  in- 
dustrious Spelman  is   obliged  to  say,  "  Ego  vero  nihil 
de  eo  reperi :"  and  all  that  is  related  of  Philip  Lovel, 
who  followed,  is,  that  when  he  was  thrust  out  of  office 
by  the  Barons  he  died  of  grief.*      Concerning  John 
Maunsel,  whom  the   Barons  substituted  as 
Chief  Justiciar,  I  have  already  told  all  that 
is   memorable,   as  he  had   before  filled   the  office   of 
Lord  Chancellor.f 

We  now  come  to  a  Chief  Justiciar  pronounced  to 
have    been    "a   distinguished    soldier,    and   A.D.  1259. 
learned  in  the  law  of  the  land."| 

Hugh  Bigod  was  a   younger  son  of   Eoger  Bigod, 
Earl  of  Norfolk ;   and,  although  he  declined   . 

«•      -i-i  Hugh  Bigod 

to    take    orders,  he    afforded   an  extraordi-   Chief  Jus- 

r>        i  .    .  ticiar. 

nary  instance  ot  a  layman  acquiring  a  pro- 
found knowledge  both  of  the  civil  and  municipal 
law.  At  the  same  time  he  was  initiated  in  military 
exercises,  and  was  considered  a  gallant  and  accom- 
plished knight.  He  was  appointed  governor  of  the 
Castle  of  Pickering ;  and  he  accompanied  the  King  in 
an  expedition  against  the  Welsh,  as  well  to  assist  in 
negotiation  as  in  the  field.  But  he  was  persuaded  by 
his  elder  brother,  the  famous  Eoger  Bigod,  the  fourth 
Earl  of  Norfolk  of  that  name,  who  headed  the  Barons 
against  Henry,  to  join  their  party ;  and  at  the  parlia- 

*  "  Judicio  Baronum  ejicltur  ex  of-  stituerunt  sibi  Justlciarium  Militem  il- 

ficio,  an.  1258,  et    sequent!   anno    pro  lustrem  et   legum  terrae  perltnm   Hu- 

mentis    amaritudine   diem   obilt." — M.  gonem  Bigod,  qui  officium  Justiciarise 

Paris.  strenue  peragens,  nullatenus  permtttat 

f  Lives  of  Chancellors,  i.  ch.  vil.  jus  regni  vacillare." — Jf.  Paris. 

j  "  Noblles  firmius  confcederati  con- 
VOL.   I.  P 


66  EEIGN  OF  HENRY  III.  CHAP.  I. 

men!  held  at  Oxford,  when  the  famous  "  PROVISIONS  " 
•were  agreed  to  which  vested  the  royal  au- 
thority in  a  small  oligarchy,   he  was  con- 
stituted Chief  Justiciar  and  the  Tower  of  London  was 
committed  to  his  charge. 

Notwithstanding  the  violent  manner  in  which  he  was 
appointed,  he  administered  justice  with  great  impar- 
tiality as  well  as  vigour ;  and  it  was  said  that  there 
had  not  been  such  a  judge  in  England  since  Eanulfus 
de  Glanville.  With  Eoger  de  Thurkolby  and  Gilbert  de 
AJ>.  Preston,  two  very  learned  puisnies ,  as  his 
1159,  HBO.  companions,  he  made  a  circuit  through  every 
county  in  the  kingdom,  putting  down  disturbances, 
punishing  malefactors,  and  justly  deciding  civil  rights. 
He  cashiered  Eichard  de  Grey,  who  had  been  constable 
of  Dover  Castle,  and  warden  of  the  Cinque  Ports ;  and 
he  was  as  little  moved  by  the  piteous  looks  of  the  poor 
as  by  the  scornful  glances  of  the  powerful.* 

For  some  reason  not  satisfactorily  explained  to  us, 
while  universally  applauded,  and  while  the  party  by 
whom  he  had  been  elevated  was  yet  triumphant,  he 
resigned  his  office  when  he  had  held  it  little  more  than 
a  year.  Some  say  that  the  Barons  had  resolved  to  make 
it  an  annual  office ;  some,  that  they  were  jealous  of  his 
popularity;  and  others,  that  he  would  no  longer  be 
associated  with  them  in  their  scheme  to  usurp  the 
prerogatives  of  the  Crown.  He  afterwards  again  took 
the  King's  side,  and  fought  for  him  in  the  battle  of 
Lewes.  When  the  rout  began,  he  fled  the  field,  but  was 
accompanied  by  the  Earl  of  Warrenne  and  other  brave 
knights.  Notwithstanding  the  proofs  they  had  given 
of  their  courage,  they  did  not  escape  the  satirical  notice 
of  Peter  Langtoft,  who  thus  described  their  flight : — 

*  "Angliam  de  comitatu  in  comita-     pauperum,  nee  potentum  flaccidus  sn- 
tum   circuit,   omnibus  justitiam   lance     percilio." — See  SpeL  341. 
sequissima  distribuens :  vultu  nee  motus 


A.D.  1258.  HUGH  LE  DESPENCEK.  67 

"  The  Erie  of  Warenne,  I  wote,  he  escaped  over  the  se. 
And  Sir  Hugh  Bigote  als  with  the  Erie  fled  he." 

When  the  royal  authority  was  restored  by  the  victory 
at  Evesham,  he  was  again  appointed  to  the  government 
of  Pickering  Castle ;  but  the  office  of  Chief  Justiciar, 
such  as  it  had  been,  was  thought  to  be  too  powerful  to 
be  given  to  any  subject,  and  it  could  not  well  be  offered 
to  him  shorn  of  its  splendour. 

We  have  no  particulars  of  the  closing  scene  of  his 
life,  but  it  must  have  occurred  soon  after,  as  we  know, 
from  the  Fine  Kolls,  that  on  the  7th  of  November,  1266, 
his  son  Roger  did  homage  to  the  King  at  Kenilworth 
as  heir  to  his  lands.* 

On  the  resignation  of  Hugh  Bigod,  the  Barons  ap- 
pointed Hugh  le  Despencer  as  his  successor.  Hugh  ie  De- 
This  Justiciar  was  celebrated  more  for  his  cwef  jus- 
bravery  than  for  his  learning ;  but  if  he  was  ticiar- 
not  always  quite  impartial  as  a  judge,  he  at  least  had 
the  merit  of  being  always  true  to  his  party.  He  was 
said  to  have  been  descended  from  Robert  le  Despencer, 
steward  to  William  the  Conqueror;  but  as  the  royal 
steward  for  the  time  being  was  called,  long  after  the 
Conquest,  "  Le  Despencer,"  there  is  a  doubt  as  to  the 
time  when  the  name  of  the  office  passed  into  a  sur- 
name,! an<i  whether  his  ancestor  was  not  some  noble 
who  had  held  it  more  recently.  Antiquaries  dispute 
even  as  to  the  immediate  ancestors  of  Hugh,  although 
they  all  agree  that  he  was  of  noble  blood.  We  do  not 
know  much  of  his  training,  and  he  is  first  mentioned 
by  historians  as  the  companion  of  Richard,  King  of 
the  Romans,  the  brother  of  Henry  III.,  when  that  prince 

*  Rot.  Fin.  ii.  448.  at  the  English  court — of  which  we  have 

f  In  Scotland  the  office  retained -its  a  proof  in  the  office  of  taking  charge  of 

Saxon  appellation,  and  hence  we  have  the  royal  table-linen  having  given  rise  to 

the  illustrious   family  name  of  Stewart  the  name,  so  distinguished  in  our  day, 

or  Stuart ;  although,  generally  speaking,  of  Napier. 

French  was  spoken  at  the  Scotch  as  well  as 

F   2 


68  REIGN  OF  HENEY  III.  CHAP.  I. 

went  into  Germany  in  pursuit  of  the  imperial  crown. 
AJ>.  1257.  On  his  return  to  England  he  joined  the 
A.D.  1258.  <  Barons,  who  were  in  arms  against  the  King ; 
and  when  they  carried  the  "  Provisions  of  Oxford,"  he 
was  one  of  the  twelve  commissioners  in  whom  the 
exercise  of  the  royal  prerogative  was  vested.  In  the 
course  of  the  following  year,  he  went  as  an  Itinerant 
Justice  into  several  counties,  and  gave  entire  satisfac- 
tion to  the  ruling  powers,  although  not  to  the  suitors. 

When  he  was  elected  Chief  Justiciar,  there  were  soon 
heavy  complaints  against  him ;  and  his  partiality  or 
incapacity  very  much  strengthened  the  reaction  in 
favour  of  the  royal  authority.  At  last,  Henry,  having 
received  from  the  Pope  a  dispensation  from  his  oath 
to  observe  the  "  Provisions  of  Oxford,"  assembled  a 
Parliament  at  Westminster,  in  which  he  had  a  large 
majority.  Here  Le  Despencer  being  ordered  to  deliver 
up  the  Rolls  of  Chief  Justiciar*  at  the  same  time  that 
the  usurping  Chancellor  was  ordered  to  deliver  up  the 
Great  Seal,  they  joined  in  saying  that  they  could  not 
do  so  without  the  consent  of  the  Barons,  by  whom 
they  had  been  appointed ;  but  the  King,  with  general 
J  i  i26i  approbation,  dismissed  him,  and  appointed 
Philip  Basset  Chief  Justiciar  in  his  stead. 

Hugh  le  Despencer,  maintaining  that  he  had  not 

been  lawfully  superseded,  still  claimed  to  be  entitled  to 

perform  the  functions  of  the  office,  and,  the  tide  again 

turning  in  favour  of  the  Barons,  the  King  was  obliged 

to  recognise  him  as  Chief  Justiciar.      The 

A.D.  1263.  or,.  T.         ......          l       •  J 

following  year,  open  hostilities  being  resumed, 
he  placed  himself  at  the  head  of  a  strong  military  force, 
destroyed  the  houses  of  Philip  Basset  and  the  loyalist 

*  At   this   time  the  Chief  Justiciar  Cancellario  nuper  institutis  a  Baronibus, 

seems  to  have  held  in  his  hand  certain  sigillum  suum  sibi  reddl,  et  rotulus  de 

parchment  rolls  as  the  emblem  of  his  Justiciario  sibi  mandavit  restitui." — See 

office:  "  Rex  vocatis  ad  se  Justiciario  et  Spel.  341. 


A.D.  1263.  PHILIP  BASSET.  69 

nobles  in  Westminster,  imprisoned  the  King's  judges' 
even  pillaged  foreign  merchants,  and  extorted  large 
sums  of  money  by  cruelties  on  the  Jews. 

In  the  battle  of  Lewes  our  Chief  Justiciar  commanded 
one  of  the  wings  of  the  army,  and  with  his  own  hand 
took  prisoner  Marmaduke  de  Twenge,  whose  ransom 
was  fixed  at  700  marks.  Immediately  after,  no  fewer 
than  six  strong  castles  were  placed  under  his  govern- 
ment, and  he  had  a  grant  of  1000  marks  for  his  better 
sustentation  in  the  office  of  Chief  Justiciar.  He  was 
likewise  appointed  one  of  the  six  commissioners  to  treat 
with  the  Pope's  legate  and  the  King  of  France,  as  me- 
diators relative  to  the  reformation  of  the  state. 

He  continued  to  do  the  judicial  business  of  the  office 
regularly  till  again  called  into  the  field,  to  make  head 
against  the  formidable  force  assembled  under  Prince 
Edward  for  the  re-establishment  of  the  royal  authority. 
When  the  two  armies  came  in  sight  of  each   4th  Aug. 
other,  near  Evesham,  the  Earl  of  Leicester,    12(55- 
in  consideration  of  his  age  and  infirmities,  advised  him 
to  leave  the  field,  but  he  refused  to  disgrace   ^^  of 
his  ermine  by  such  poltroonery ;  and  the  two    Hugh  ie 

,    .        J        ,      r  .,  ,        ,      Despencer. 

were  slain  together,  manfully  making  head 

against  mighty  odds,  and  refusing  quarter  which  was 

offered  to  them. 

Hugh  le  Despencer  is  to  be  considered  the  last  of 
those  remarkable  men  who,  for  above  two  centuries, 
exercised  conjointly  the  functions  now  belonging  to 
the  first  judge  in  the  land  and  to  the  commander-in- 
chief  of  the  forces.  Such  a  combination  (as  was  seen 
in  the  Roman  republic)  certainly  has  a  powerful 
tendency  to  develop  the  highest  faculties  of  the  mind, 
and  produces  characters  of  greater  eminence  than  are 
to  be  found  when  the  sword  and  the  gown  are  per- 
manently disunited. 

The   son   and   grandson   of  the   last  of  the   Chief 


70  REIGN  OF  HENRY  III.  CHAP.  I. 

Justiciars  acquired  a  most  unenviable  celebrity  in  the 
reign  of  Edward  II. ;  but  he  is  now  honourably  re- 
presented by  the  present  Baroness  le  Despencer,  and 
some  of  the  most  illustrious  of  the  nobility  of  England 
are  descended  from  him. 

We  need  not  be  long  delayed  by  Philip  Basset,  the 
Philip  Bas-     rival  Chief  Justiciar.     He  was  of  the  great 
set  Chief  Jus-   fami]y  of  that  name  which  I  have  before  men- 
tioned, and  which  occurs    much    more    fre- 
quently than  any  other  name  in  our  judicial  annals. 
He  began  his  political  life  in  opposition,  being  associated 
with  the  Barons  under  De  Montfort ;  but  he  soon  went 
over  to  the  Court,  and  became  a  special  favourite  of  the 
feeble  Henry.     He  was  enriched  by  grants  of  various 
wardships,  forfeitures,  and  shrievalties ;  was 

A  D    1253 

constituted  governor  of  the  castles  of  Oxford, 
Bristol,  Corff,  and  Shireburn,  and  managed  all  the  affairs 
of  the  King  of  the  Eomans.  He  had  a  very  uneasy 
place  as  Chief  Justiciar,  but  there  was  an  in- 
terval while  he  enjoyed  the  title  when  he 
actually  was  allowed  to  perform  the  duties  of  the  office, 
and  during  a  short  absence  of  the  King  in  Gascony  he 
acted  as  Eegent  of  the  kingdom.*  The  royal  cause  de- 
clining, his  house  in  Westminster  was  burned  by  his 
rival,  and  he  was  obliged  to  fly  for  safety.  At  the  battle 
of  Lewes  he  fought  bravely  in  the  royal  cause,  and  he 
resisted  the  victorious  rebels  sword  in  hand,  until  he 
fell  from  loss  of  blood,  when  he  was  taken  prisoner 
along  with  his  Sovereign.  He  was  then  placed  in 
Dover  Castle,  and  kept  a  close  prisoner  there  in  the 
care  of  a  younger  son  of  the  Earl  of  Leicester,  till  he 
was  liberated  on  the  final  overthrow  of  that  chieftain. 
It  was  generally  thought  that  he  would  be  restored  to 
his  office  of  Chief  Justiciar;  but  the  resolution  had 

*  Still  he  went  through  the  routine     dates  on  the  Fine  Roll  are  signed  by  him. 
business  of  his  office,  and  all  the  man-     — JKot.  /'in.  ii.  278-385. 


A.D.  1266.  SIMON  DE  MONTFORT.  71 

been  taken  to  reform  it,  and,  till  this  object  should  be 
fully  accomplished,  the  more  prudent  course  seemed  to 
be  to  fill  it  with  a  man  who  was  well  acquainted  with 
the  administration  of  justice,  and  who  never  could  be 
formidable  as  a  military  leader.     However,  the  ex- 
Chief  Justiciar  continued  to  enjoy  the  royal  favour. 
He  was  one  of  those  appointed  to  carry  into 
execution  the  "  Dictum  of  Kenilworth,"  and 
he  continued  a  member  of  the  King's  Council  till  hia 
death.     This  must  have  happened  in   the 
autumn  of  1271 ;  for  in  the  Fine  Roll,  under 
date  2nd  November,  56  Hen.  III.,  there  is  an  entry  of 
an  order  for  the  constable  of  the  Castle  of  Devizes  to 
give  it  up  to  Elyas  de  Rabeyn,  "  because  Philip  Basset, 
his  lord,  is  gone  the  way  of  all  flesh." 

He  is  reckoned  by  some  antiquaries  the  last  of  the 
true  Chief  Justiciars,  as  they  consider  Hugh  le  De- 
spencer  an  usurper  of  the  office  between  the  battle  of 
Lewes  and  the  battle  of  Evesham,  and  they  hold  that 
its  character  was  entirely  altered  before  the  conclusion 
of  this  reign.* 

I  wish  that  I  could  have  been  justified  in  concluding 
the  list  of  Chief  Justiciars  with  Simon  de 
Montfort   himself:  a  life  of  him  might  be   Whether 

0  Simon  de 

made  most  interesting  and  instructive,  for   Montfort  was 
not  only  did  he  achieve  wonderful  adventures    j^sticiar? 
by  political  intrigue  and  by  military  skill, 
and  meet   with  striking  vicissitudes   of  fortune,  but 
he  is  to  be  honoured  as  the  founder  of  a  representa- 
tive system  of  government  in  this  country,  and  the 
chief  framer  of  that  combination  of  democracy  with 
monarchy  and  aristocracy  which  has  served  as  a  model 
for  all  modern  nations  among    whom  freedom    has 

*  Dugdale  says:  "Of  those  who  had  and  Common  Pleas  having  afterwards 
the  office  of  Justiciarius  Anglise,  Philip  one  in  each  court." — Or.  Jur.f.  20:  and 
Basset  was  the  last,  the  King's  Bench  see  Spel.  Gloss,  p.  342. 


72  REIGN  OF  HENRY  III.  CHAP.  I. 

flourished.  I  might  make  a  pretence  for  an  attempt 
to  narrate  his  exploits  and  delineate  his  character,  for 
he  has  been  introduced  among  the  Chief  Justiciars ; 
and  three  records  are  quoted,  bearing  date  respectively 
10th  May,  7th  June,  and  8th  June,  1265,  in  which  the 
Earl  of  Leicester  is  styled  "Justiciarius,"  which,  possibly, 
might  mean  "  Justiciarius  Angliae,"  the  title  by  which 
Bigod,  Le  Despencer,  and  Basset  were  sometimes  de- 
signated when  they  undoubtedly  filled  the  highest 
office  in  the  law.  But  an  attentive  examination  of 
these  records  will  show  that  he  had  only  sat  on  a 
special  commission  :  there  is  no  proof  that  he  ever  was 
appointed  to  the  office  of  Chief  Justiciar,  or  acted  in 
it ;  and  there  is  no  period  to  which  his  tenure  of  the 
office  can  be  ascribed,  except  when,  with  his  entire 
concurrence,  it  was  filled  by  Hugh  le  Despencer,  his 
partisan  and  dependant.  When  he  called  his  famous 
parliament,  with  representatives  from  counties  and 
boroughs  to  mingle  in  legislation  with  the  hereditary 
nobility,  he  might  easily  have  assumed  the  office  of 
Chief  Justiciar  if  he  had  been  so  inclined  ;  but,  on  the 
contrary,  he  seems,  with  other  constitutional  improve- 
ments, to  have  meditated  its  abolition  or  reform,  and 
there  is  great  reason  to  believe  that  he  suggested  the 
new  judicial  system  which  was  fully  adopted  and 
established  in  the  succeeding  reign,  and  under  which 
justice  is  administered  at  this  day  in  England.* 

After  the  Barons  had  been  effectually  crushed,  a  par- 
tial trial  of  this  system  was  made  during  the  remainder 
of  the  life  of  the  feeble  Henry,  with  the  sanction  of  his 
energetic  son,  who,  before  setting  forth  for  Palestine, 
established  a  wise  system  of  administration — a  foretaste 
of  his  own  happy  reign.  From  the  confusion  intro- 
duced by  the  Barons'  wars,  and  the  consequent 

*  Spelman,  342;  Brady's  England,  i.     Coll.  ii.  378;   Lives  of  Chancellors,  i. 
650,  651;   Rot.  Fin.   ii.  405;    Lcland's     ch.  be. 


A.D.  1265-68.  HENKY  DE  BKACTON.  73 

defective  state  of  our  records  of  that  era,  a  doubt  has 
been  started  whether  the  office  of  Chief  Justiciar  was 
filled  up  between  the  death  of  Hugh  le  Despencer  in 
August,  1265,  and  March,  1268,  when  Eobert 
de   Brus    was    appointed   to   it.     There  is,    1268. 
however,  strong  reason  to  believe  that  in   Henry  de 

.  °  Bracton 

this    interval    it   was    held   by  Henry   de   Chief  JUB- 
Bracton,  one  of  the  greatest  jurists  who  ever 
lived  in  any  age  or  any  country.     He  was,  undoubt- 
edly, a  Justiciar  at  this  time :  in  the  commissions  in 
which  his  name  is  mentioned  no  one  had  precedence  of 
him ;  and  we  have  the  authority  of  Lord  Ellesmere  and 
others,  who  have  carefully  investigated  the  subject,  for 
concluding  that  he  was  Chief  Justiciar. 

It  would  be  a  matter  of  the  highest  interest  to  know 
how  a  man  so  enlightened  and  accomplished  was 
formed  during  the  very  darkest  period  of  English 
history,  when  the  civilisation  introduced  by  the 
Normans  seemed  to  be  entirely  obliterated,  and  when 
the  amalgamation  of  races  in  this  country  had  not  yet 
begun  to  produce  the  native  energy  and  refinement 
which  afterwards  sprang  from  it :  but  while  we  have 
the  pedigree,  at  least  up  to  the  Conquest,  and  a  minute 
account  of  the  military  exploits,  of  those  who  were 
employed  in  desolating  the  world,  we  have  no  infor- 
mation whatever  of  the  origin,  and  very  little  of  the 
career,  of  a  man  who  explained  to  his  savage  country- 
men the  benefits  to  be  derived,  from  an  equitable 
system  of  laws  defining  and  protecting  the  rights  of 
every  class  of  the  community, — who,  drawing  his 
sentiments  from  the  rich  fountain  of  Eoman  jurispru- 
dence, expressed  them  in  the  Latin  tongue  with  a  purity 
seldom  reached  by  the  imitators  of  the  Augustan  age, 
and  who  was  rivalled  by  no  English  juridical  writer 
till  Blackstone  arose  five  centuries  afterwards.  He  is 
said,  on  uncertain  authority,  to  have  studied  at  Oxford, 


74  REIGN  OF  HENKY  HI.  CHAP.  I. 

and  there  to  have  obtained  the  degree  of  Doctor  of  both 
laws.  We  know  that  he  had  taken  holy  orders,  for,  by 
letters  patent,  granting  to  him  a  house  during  the 
minority  of  the  heir,  he  is  designated  "  dilectus  clericus 
noster."  He  is  supposed  to  have  practised  in  the 
common  law  courts  of  Westminster,  and  he  certainly 
must  have  had  great  practical  experience  in  juridical 
procedure,  as  well  as  a  profound  scientific  knowledge 
of  jurisprudence  in  all  its  departments.  But  we  are 
not  clearly  informed  of  any  part  of  his  professional 
career  till  we  find  that,  in  the  year  1245,  he  was 
appointed  a  justice  Itinerant  for  the  counties  of 
Nottingham  and  Derby,  and  in  the  following  year  for 
the  northern  counties.  Such  employment  was  com- 
patible with  his  continuing  to  practise  as  a  barrister 
during  the  terms,  and  his  name  does  not  appear  in  the 
Fine  Eolls  till  four  years  later.  He  then 
certainly  was  a  Justiciar  or  Judge  of  the 
Aula  Eegis,  and  so  he  continued  for  many  years.* 

The  probability  is,  that  he  was  promoted  to  be  Chief 
Justiciar  in  1265,  soon  after  the  battle  of  Evesham, 
and  that  he  held  the  office  till  he  died  in  the  end  of  the 
year  1267.  All  notice  of  him  in  the  Rolls  then  ceases, 
and  we  certainly  know  that  another  Chief  Justiciar 
was  appointed  in  the  beginning  of  1268.  We  have  no 
information  respecting  his  descendants,  although  the 
greatest  nobles  in  England  might  have  been  proud  to 
trace  him  in  their  line. 

His  memory  will  be  preserved  as  long  as  the  law  of 
Bracton-s  England,  by  his  work,  "  De  Legibus  et  Con- 
LegftuBIet  suetudinibus  Anglise."  It  must  have  been 
Cpnsuetu-  finished  iust  about  the  time  when  he  is  sup- 

dimbus  J  ... 

Anglise."        posed  to  have  been  Chief  Justiciar,  for   it 
contains  references  to  changes  in  the  law  introduced 

*  He  is  sometimes  named  Bratton,     identical  Henry  de  Bracton  of  whom  we 
and  sometimes  Bretton,  in   the  Rolls ;     are  treating, 
but  these  are  distinctly  proved  to  be  the 


A.D.  1265-68.  HENRY  DE  BEACTON.  75 

shortly  before,  and  it  takes  no  notice  of  the  statute 
of  Marlbridge,  which  passed  in  the  52nd  year  of 
Henry  III.  The  chief  defect  imputed  to  the  work  is 
its  frequent  introduction  of  the  Roman  civil  law  ;  but 
this  will  be  found  to  be  by  way  of  illustration,  not  as 
authority ;  and  there  seems  great  reason  to  regret  that 
the  prejudices  of  English  lawyers  in  all  ages  have 
inclined  them  to  confine  their  attention  almost  exclu- 
sively to  the  technicalities  of  their  own  peculiar  code, 
— ever  more  distinguished  for  precision  than  for  en- 
larged principles.  The  work  we  are  considering  cer- 
tainly gives  a  complete  view  of  the  municipal  law  of 
England  in  all  its  titles  as  it  stood  when  the  author 
wrote;  and  for  systematic  arrangement,  for  per- 
spicuity, and  for  nervousness,  it  cannot  be  too  much 
admired.* 

I  now  come  to  a  "  CHIEF  "  who,  we  certainly  know 
by  existing  records,  was  appointed  "  CAPI-         126g 

TALIS    JUSTICIARIUS     AD     PLACITA    CORAM    REGE    First  Chief 

TENENDA,"  the  modern  designation  of  the  j^'meTeiy 
presiding  Judge  in  the  Court  of  King's  asaJud8e. 
Bench ;  and  he  is  placed  by  Dugdale  at  the  head  of 
the  new  list,  who  have  exercised  merely  judicial 
functions.  However,  there  had  been  no  law  passed  by 
the  Legislature  since  MAGNA  CHART  A  to  change  our 
judicial  system  ;  and,  although  a  separate  tribunal  now 
existed  for  civil  suits,  there  is  reason  to  think  that  the 
AULA  REGIS  continued  till  the  accession  of  Edward  1. 
without  any  farther  statutable  alteration,  there  being 
merely  an  understanding  that  the  person  who  presided 
in  it  was  no  longer  to  interfere  in  military  affairs  or  in 
the  government  of  the  kingdom,  whether  the  sovereign 
was  at  home  or  abroad. 

The  choice  made  of  a  Chief,  who  was  to  be,  like 

*  See  Reeves's  Hist,  of  Eng.  Law,  ii.     2  St.  Tr.  693;  Rot.  Cl.  ii.  11;  Rot.  Fin. 
86,  281 ;  Lives  of  Chancellors,  i.,  ch.  ix. ;     82-458. 


76  REIGN  OF  HENRY  III.  CHAP.  I. 

Bracton,  a  mere  civilian,  seems  a  curious  one;  for, 
instead  of  a  lawyer,  born  in  obscurity,  who  had  pushed 
himself  into  notice  by  success  in  his  profession,  he  was 
the  head  of  a  great  Norman  baronial  house  ;  he  had  in 
his  veins  the  blood  of  the  Kings  of  Scotland ;  he  enjoyed 
Lord  cwef  large  possessions  in  that  kingdom  ;  he  was 
justice  in  the  succession  to  a  throne ;  he  actually 

became  a  competitor  for  it ;  his  grandson 
after  giving  the  English  the  severest  defeat  they  ever 
sustained,  swayed  the  sceptre  with  glory  and  felicity ; 
and  our  gracious  Queen,  Victoria,  in  tracing  her  line  to 
the  Conqueror,  and  to  Cerdic,  counts  this  Chief  Justiciar 
among  her  ancestors. 

Eobert   de   Brus,  or  Bruis  (in  modern  times   spelt 
origin  of  the    Bruce),  was  one  of  the  companions  of  the 

Conqueror;  and  having  particularly  distin- 
guished himself  in  the  battle  of  Hastings,  his  prowess 
was  rewarded  with  no  fewer  than  ninety-four  lordships, 
of  which  Skelton,  in  Yorkshire,  was  the  principal. 
The  Norman  knights,  having  conquered  England  by 
the  sword,  in  the  course  of  a  few  generations  got  pos- 
session of  a  great  part  of  Scotland  by  marriage. 
They  were  far  more  refined  and  accomplished  than 
the  Caledonian  thanes;  and,  flocking  to  the  court  of 
the  Scottish  Kings,  where  they  made  themselves 
agreeable  by  their  skill  in  the  tournament,  and  in 
singing  romances,  they  softened  the  hearts  and  won 
the  hands  of  all  the  heiresses.  Hence  the  Scottish 
nobility  are  almost  all  of  Norman  extraction ;  and  most 
of  the  great  families  in  that  kingdom  are  to  be  traced 
to  the  union  of  a  Celtic  heiress  with  a  Norman  knight. 
Eobert,  the  son  of  the  first  Robert  de  Brus,  whom  we 
have  commemorated,  having  married  early,  and  had  a 
son,  Adam,  who  continued  the  line  of  De  Brus  of  Skelton, 
became  a  widower  while  still  a  young  man,  and,  to 
assuage  his  grief,  paid  a  visit  to  Alexander  I.,  then 


A.D.  1224-68.  KOBEET  DE  BRUS.  77 

King  of  Scots,  who  was  keeping  his  court  at  Stirling. 
There  the  beautiful  heiress  of  the  immense    e 

Scottish 

lordship  of  Annandale,  one  of  the  most  con-  branch  of  the 
siderable  fiefs  held  of  the  Crown,  fell  in 
love  with  him ;  and  in  due  time  he  led  her  to  the  altar. 
A  Scottish  branch  of  the  family  of  De  Brus  was  thus 
founded  under  the  designation  of  Lords  of  Annandale. 
The  fourth  in  succession  was  "  Eobert  the  Noble,"  and 
he  raised  the  family  to  much  greater  consequence 
by  a  royal  alliance,  for  he  married  Isabel,  the  second 
daughter  of  Prince  David,  Earl  of  Huntingdon,  grand- 
son of  David  I.,  sometimes  called  St.  David,  and  said 
to  have  been  "a  sore  saint  to  the  Crown,"  from  the 
number  of  monasteries  he  had  endowed  from  the  royal 
domains.*  Eobert  de  Brus,  the  subject  of  this  sketch, 
was  their  eldest  son. 

From  the  time  of  William  the  Conqueror  and  Malcolm 
Canmore,  until  the  desolating  wars  occasioned  by  the 
dispute  respecting  the  right  of  succession  to  the  Scottish 
crown,  England  and  Scotland  were  almost  perpetually 
at  peace ;  and  there  was  a  most  familiar  and  friendly 
intercourse  between  the  two  kingdoms,  insomuch  that 
nobles  often  held  possessions  in  both,  and  not  unfre- 
quently  passed  from  the  service  of  the  one  government 
into  that  of  the  other.  Thus  we  account  for  the  exact 
uniformity  of  the  laws  of  the  two  nations,  which  is  so 
great  that  Scottish  antiquaries  have  contended  that 
their  code,  entitled  "  Eegiam  Majestatem,"  was  copied 
by  the  English ;  although  there  can  be  no  reasonable 
doubt  that  the  northern  and  more  barbarous  people 
were  the  borrowers. 

Our   Eobert,   son  of  "Eobert  the  Noble"  and  the 
Scottish  Princess,  was  born  at  the  Castle  of  A  D  1224_ 
Lochmaben,  about  the  year  1224.  TheSkelton   1268- 

*  Four  of  these  are  within  a  few  miles  — Jedburgh,  Melrose,  Dryburgh,  and 
from  the  spot  where  1  am  now  writing,  Kelso. 


78  EEIGN  OF  HENEY  III.  CHAP.  I. 

branch  of  the  family  still  flourished,  although  it  be- 
Birthofthe  came  extinct  in  the  next  generation  by  the 
Chief  Justice,  death,  without  issue  male,  of  Peter  de  Brus,  the 
eighth  in  descent  from  Eobert  who  fought  at  Hastings. 
At  this  time  a  close  intercourse  was  kept  up  between 
the  Noble  "  and  his  Yorkshire 


H  is  edu 

catedin          cousins;  and  he  sent  his  heir  to  be  educated 

England.  .  .  . 

in  the  south  under  their  auspices.  It  is  sup- 
posed that  the  youth  studied  at  Oxford  ;  but  this  fact 
does  not  rest  on  any  certain  authority.  In  1245,  his 
father  died,  and  he  succeeded  to  the  lordship  of  Annan- 
dale.  One  would  have  expected  that  he  would  now 
have  settled  on  his  feudal  principality,  exercising  the 
rights  of  furca  et  fossa,  or  "  pit  and  gallows,"  which  he 
possessed  without  any  limit  over  his  vassals  ;  but  by 
his  English  education  he  had  become  quite  an  English- 
man, and,  paying  only  very  rare  visits  to  Annandale, 
he  sought  preferment  at  the  court  of  Henry  III.  What 
surprises  us  still  more  is,  that  he  took  to  the  gown, 
not  the  sword  ;  and  instead  of  being  a  great  warrior, 
like  his  forefathers  and  his  descendants,  his  ambition 
seems  to  have  been  to  acquire  the  reputation  of  a  great 
lawyer.  There  can  be  little  doubt  that  he  practised  as 

an  advocate  in  Westminster  Hall  from  1245 

He  is  a 

Puisne  till  1250.  In  the  latter  year,  we  certainly 
know  that  he  took  his  seat  on  the  bench  as  a 
Puisne  Judge,  or  Justiciar;  and,  from  thence  till  1263, 
extant  records  prove  that  payments  were  made  for 
assizes  to  be  taken  before  him,  —  that  he  acted  with 
other  Justiciars  in  the  levying  of  fines,  —  and  that  he 
went  circuits  as  senior  judge  of  assize.  In  the  46th 
year  of  Henry  III.  he  had  a  grant  of  401.  a  year  salary, 
He  is  taken  which  one  would  have  supposed  could  not 
thTbattie11of  have  been  a  great  object  to  the  Lord  of  An- 
nandale. In  the  Barons'  wars,  he  was  always 
true  to  the  King  ;  and,  although  he  had  no  taste  for 


A.D.  1268.  KOBEKT  DE  BEUS.  79 

the  military  art,  he  accompanied  his  royal  master  into 
the  field,  and  was  taken  prisoner  with  him  at  the 
battle  of  Lewes. 

The  royal  authority  being  re-established  by  the 
victory  at  Evesham,  he  resumed  his  functions  as  a 
Puisne  Judge;  and  for  two  years  more  there  are  entries 
proving  that  he  continued  to  act  in  that 

AD    12fi8 

capacity.   At  last,  on  the  8th  of  March,  1268,    He  is  made 


52  Henry  III.,  he  was  appointed  "  Capitalis 
Justiciarius  ad  placita  coram  Eege  tenenda." 
Unless  his  fees  or  presents  were  very  high,  he  must 
have  found  the  reward  of  his  labours  in  his  judicial 
dignity,  for  his  salary  was  very  small.  Hugh  Bigod 
and  Hugh  le  Despencer  had  received  1000  marks  a 
year  "ad  se  sustentandum  in  officio  Capitalis  Justitiarii 
Angliae,"  but  Chief  Justice  De  Brus  was  reduced  to  100 
marks  a  year.  Such  delight  did  he  take  in  playing 
the  Judge,  that  he  quietly  submitted  both  to  loss  of 
power  and  loss  of  profit. 

He  remained  Chief  Justice  till  the  conclusion  of  this 
reign,  a  period   of  four  years   and  a   half, 
during  which  he  alternately  went  circuits  and   J^ra  the 
presided  in  Westminster  Hall.     None  of  his   ^**h  otlu 
decisions  have  come  down  to  us,  and  we  are 
very  imperfectly  informed  respecting  the  nature  of  the 
cases  which  came  before  him.    The  boundaries  of  juris- 
diction between  the  Parliament,  the  Aula  Eegis,  and 
the  rising  tribunal  afterwards  called  the  Court  of  King's 
Bench,  seem  to  have  been  then  very  much  undefined. 

On  the  demise  of  the  Crown,  Bobert  de  Brus  was 
desirous  of  being  reappointed;    but  it  was 
resolved  to  fill  the  ofiice  with  a  regularly 
trained  lawyer,  and  there  is  reason  to  fear  that  he  was 
not  much  better  qualified  for  it  than  the  military  chiefs 
who  had  presided  in  the  AULA  EEGIS  before  the  common 
law  of  England  was  considered  a  science.    He  was  so 


80  KEIGN  OF  EDWARD  I.  CHAP.  I. 

much  mortified  by  being  passed  over,  that  he  resolved 
to  renounce  England  for  ever  ;  and  he  would  not  even 
wait  to  pay  his  duty  to  Edward  I.,  now  returning  from 
the  holy  wars. 

The  ex-Chief  Justice  posted  off  for  his  native  country, 

and  established  himself  in  his  castle  of  Loch- 
to6Scotiand.  maben,  where  he  amused  himself  by  sitting 

in  person  in  his  court  baron,  and  where  all 
that  he  laid  down  was,  no  doubt,  heard  with  reverence, 
however  lightly  his  law  might  have  been  dealt  with 

in  Westminster  Hall.     Occasionally  he  paid 

A  D   1286 

visits  to  the  court  of  his  kinsman,  Alexander 
III.,  but  he  does  not  appear  to  have  taken  any  part  in 
Scottish  politics  till  the  untimely  death  of  that  mon- 
arch, which,  from  a  state  of  peace  and  pros- 

A.D.  1290.  '  ,  r.  L    . 

perity,  plunged  the  country  into  confusion 
and  misery. 

There  was  now  only  the  life  of  an  infant  female, 
residing  in  a  distant  land,  between  him  and  his  plausible 

claim  to  the  Scottish  crown.  He  was  nomi- 
missioner  for  nated  one  of  the  negotiators  for  settling 
"hTma^ale  *^e  Carriage  between  her  and  the  son  of 
°!t!^e^aid  Edward  I.,  which,  if  it  had  taken  place, 
with  the  son  would  have  entirely  changed  the  history  of 

the  island  of  Great  Britain.  From  his 
intimate  knowledge  both  of  Scotland  and  England, 
it  is  probable  that  the  "  Articles "  were  chiefly  of 
his  framing,  and  it  must  be  allowed  that  they  are 
just  and  equitable.  For  his  own  interest,  as  well  as 
for  the  independence  of  his  native  country,  he  took 
care  to  stipulate  that,  "failing  Margaret  and  her 
issue,  the  kingdom  of  Scotland  should  return  to  the 
nearest  heirs,  to  whom  of  right  it  ought  to  return, 
wholly,  freely,  absolutely,  and  without  any  subjection."* 

*  Some  historians,  both  English  and     Bruce  employed  in  this  negotiation  was 
Scotch,  have  supposed  that  the  Robert     the  son  of  the  Chief  Justice  who  so  ro- 


A.D.  1291.  ROBERT  DE  BRUS.  81 

The  Maid  of  Norway  having  died  on  her  voyage 
home,  the  ex-Chief  Justice  immediately  ap- 
peared at  Perth  with  a  formidable  retinue,  and 
was  in  hopes  of  being  immediately  crowned 
King  at  Scone ; — and  he  had  nearly  accom- 
plished his  object,  for  John  Baliol,  his  most  formidable 
competitor  in  point  of  right,  always  feeble  and  remiss 
in  action,  was  absent  in  England.     But,  from  the  vain 
wish  to  prevent  future  disputes  by  a  solemn  decision  of 
the    controversy  after  all   parties  should  have  been 
heard,  the  Scotch  nobility  in  an  evil  hour 
agreed  to  refer  it,  according  to  the  fashion  of 
the  age,  to  the  arbitration  of  a  neighbouring  sovereign ; 
and  fixed  upon  Edward  I.  of  England,  their  wily  neigh- 
bour. 

It  is  a  great  reproach  to  the  memory  of  the  ex-Chief 
Justice  that,  at  the  famous  meeting  on  the 
banks  of  the  Tweed,  when  the  English  Chan-   ledges 
cellor,  in  the  presence  of  the  notables  of  both   L^pl™.*8 
nations,   asked  him  "  whether  he  acknow-   mount  °f 

Scotland. 

ledged  Edward  as  Lord  Paramount  of  Scot- 
land, and  whether  he  was  willing  to  ask  and  receive 
judgment  from   him  in  that  character,  he  expressly, 
definitively,  and  absolutely  declared  his  assent."* 

He  afterwards  pleaded  his  own  cause  with  great 
dexterity,  and  many  supposed  that  he  would  succeed. 
Upon  the  doctrine  of  representation,  which  is  familiar 
to  us,  Baliol  seems  clearly  to  have  the  better  claim,  as 
he  was  descended  from  the  eldest  daughter  of  the  Earl 
of  Huntingdon ;  but  Bruce  was  one  degree  nearer  the 
common  stock ;  and  this  doctrine,  which  was  not  then 
firmly  established,  had  never  been  applied  to  the  de- 
scent of  the  crown.f 

mantically  became  Earl  of  Carrick,  by  lather. — See  Dalrymple's  Annals,  i.  198, 

bsing  forced  by  the  heiress  of  that  great  204. 

domain  to  marry  her ;  but  Lord  Hales  *  R.  Feed.,  vol.  ii.  545. 

clearly  proves  that  it  was  Hubert  the  f  See  Dalryniple'a  Annals,  i.  215-213. 

VOL.   I.  G 


82  EEIGN  OF  EDWARD  I.  CHAP.  1. 

When  Edward   I.  determined   in  favour   of  Baliol, 

influenced  probably  less  by  the   arguments 

A.D.  1292.       jn  kjg  favour  than  by  the  consideration  that 

Decided          from  the  weakness  of  his  character  he  was 

against  him. 

likely  to  be  a  more  submissive  vassal,  Eobert 

de  Brus  complained  bitterly  that  he  was  wronged,  and 

resolutely  refused  to  acknowledge  the  title  of  his  rival. 

He  retired  in  disgust  to  his  castle  of  Loch- 

maben,  where  he  died  in  November,  1295,  in 

the  seventy-second  year  of  his  age. 

While  resident  in  England  he  had  married  Isabel, 
His  descend-  daughter  of  Gilbert  de  Clare,  Earl  of  Glou- 
cester, by  whom  he  had  several  sons.  Robert, 
the  son  of  Eobert  the  eldest,  became  Eobert  I.,  and 
one  of  the  greatest  of  heroes.  The  descent  of  the 
crown  through  him  to  the  Stuarts  is,  of  course,  uni- 
versally known.  The  family  of  the  Chief  Justice  is 
still  kept  up  in  the  male  line  by  the  descendants  of  his 
younger  son,  John,  among  whom  are  numbered  the 
Earl  of  Elgin,  the  Earl  of  Cardigan,  and  the  Marquess 
of  Aylesbury.* 

*  See  Dug.  Chr.  Ser.  Rot.  Fin.  ii.  79.  545 ;  Dug.  Bar.  Coll.  Peerage. 


A.i>.  1272.  JUDICIAL  INSTITUTIONS.  83 


CHAPTER  II. 

THE  LIVES  OF  THE  CHIEF  JUSTICES  FROM  THE  ACCESSION  OF 
EDWARD  I.  TO  THE  APPOINTMENT  OF  CHIEF  JUSTICE  TRE- 
SILIAN. 

WE  now  arrive   at  the  ^era  when  our  judicial  insti- 
tutions were  firmly  established  on  the  basis 

A.D   1272 

on  which,  with  very  little  alteration,   they 
have   remained   to   the  present  day.      Although   the 
AULA  EEGIS  had   existed   down   to  the  conclusion  of 
the  reign   of  Henry  III.,  and   cases   of  peculiar  im- 
portance or  difficulty  were   decided  before  the  Chief 
Justiciar,  assisted  by  the  great  officers  of  state,*  it  had 
gradually  ceased  to  be  a  court  of  original  jurisdiction 
and  it  had  been  separating  into  distinct  tribunals  to 
which  different  classes  of  causes  were  assigned.  Edward 
I.,  our  JUSTINIAN,  now  not  only  systematised    Judicial 
and  reformed  the  principles  of  English  juris-    institutions 
prudence,  but  finally  framed  the  courts  for 
the  administration  of  justice  as  they  have   subsisted 
for  six  centuries.     "  In  his  time  the  law  did  receive  so 
sudden  a  perfection,  that  Sir  Matthew  Hale  does  not 
scruple  to  affirm  that  more  was  done  in  the  first  thirteen 
years  of  his  reign  to  settle  and  establish  the   distri- 
butive justice  of  the  kingdom,  than  in  all  the  ages 

*  A  remnant  of  the  Aula  Regis  sub-  prevailed — that  both  in  civil  and  crtmi- 

slsted  to  our  own  time  in  the  "  Exche-  nal  cases  the  opinions  of  the  majority  of 

quer  Chamber"  Into -which  cases  of  great  the  judges  in  the  Exchequer  Chamber 

importance  and  difficulty  continued  to  should  over-rule    the  opinions   of   the 

be  adjourned,  to  be  argued  before  all  the  majority  of  the  judges  of  the  court  in 

judges.   The  practice  of  judges  reserving  which  the  cases  originated,  and  in  which 

points  of  criminal  law — arising  before  formal   judgment    was   to   be    given — 

them  on  the  circuit,  I  consider  as  having  admits  of  no  other  solution, 
had  a  similar  origin.    The  rule  which 

o  2 


84  EEIGN  OF  EDWARD  I.  CHAP.U. 

since  that  time  put  together."*  The  AULA  REGIS  he 
utterly  abolished  as  a  court  of  justice  ;  and  he  decreed 
that  there  should  no  longer  be  a  Justiciar  with  military 
and  political  as  well  as  judicial  functions.  "  The 
Court  of  our  Lord  the  King  before  the  King  himself," 
or  "  Court  of  King's  Bench,"  was  constituted.  Here 
the  King  was  supposed  personally  to  preside,  assisted 
by  the  first  common  law  judge,  denominated  "  Chief 
Justice,  assigned  to  hold  pleas  in  the  Court  of  our 
Lord  the  King  before  the  King  himself,"  and  by  other 
justices  or  "  puisne  judges."  This  was  the  supreme 
court  of  criminal  jurisdiction,  and  was  invested  with  a 
general  superintendence  over  inferior  tribunals.  MAGNA 
CHARTA  had  enacted  that  civil  actions  should  be  tried 
before  judges  always  sitting  in  the  same  place,  so  that 
the  suitors  might  not  be  compelled  to  follow  the  King 
in  his  migrations  to  the  different  cities  in  his  do- 
minions ;  and  the  section  of  the  AULA  REGIS  which 
had  subsequently  sat  at  Westminster  now  became  the 
"  Court  of  Common  Pleas,"  having  a  Chief  Justice  and 
Puisnies,  with  an  exclusive  jurisdiction  which  it  still 
preserves  over  "  real  actions," — although,  by  ingenious 
fictions,  other  courts  stripped  it  of  much  of  its  business 
in  the  trial  of  "  personal  actions."  The  management  of 
the  estates  and  revenues  of  the  Crown  had  been  early 
intrusted  to  certain  members  of  the  AULA  REGIS,  who 
were  called  "Barons  of  the  Exchequer."  They  now 
formed  an  entirely  separate  tribunal  called  the  "  Court 
of  Exchequer,"  with  the  Lord  Treasurer  and  the  Chan- 
cellor of  the  Exchequer  to  preside  over  them — being  in 
strictness  confined  merely  to  fiscal  matters  in  which 
the  Crown  was  concerned,  but  gradually  usurping 
both  legal  and  equitable  jurisdiction  between  subject 
and  subject,  by  countenancing  the  fiction  that  the 
suitors  were  the  King's  debtors,  or  the  King's  ac- 

*  4  Bl.  Com.  425 ;  Bale's  Hist.  C.  L.  p.  162. 


A.D.  1272.  RALPH  DE  HENGHAM.  85 

countants.  The  Chancellor,  from  being  the  sixth  in 
precedence  of  the  great  officers  of  state,  was  now 
advanced  to  be  the  first,  and  he  was  intrusted  with 
the  power  of  doing  justice  to  the  subject  where  no 
remedy  was  provided  by  the  common  law.  The  ap- 
pellate jurisdiction  of  the  AULA  REGIS  was  vested  in 
the  great  council  of  the  nation  now  called  the  Parlia- 
ment, and,  on  the  division  of  the  legislature  into  two 
chambers  which  soon  followed,  remained  with  the  Lords 
Spiritual  and  Temporal,  who  had  the  Judges  as  their 
assessors. 

All  juridical  knowledge  was  long  monopolized  by  the 
clergy ;  but  while  the  civil  and  common  law 
continued  to  be  cultivated   by  them  exclu-    Ralph  de 

»  Hengham 

sively,  a  school  of  municipal  or  common  law   chief  justice 
had  been  established  for  laymen,  who  gra-    of  King's 
dually  formed  themselves  into  societies  called    f^ms. 
"  Inns   of  Court,"    devoting   their  lives   to 
legal  pursuits.     From  the   body  of  professional  men 
thus  trained,  Edward  resolved   to  select  his  Judges ; 
and  he  appointed  RALPH  DE  HENGHAM  Chief  Justice  of 
the  King's    Bench,   and   THOMAS  DE  WETLAND   Chief 
Justice  of  the  Common  Pleas,  allowing  them  a  salary 
of  only  sixty  marks  a  year,  but  adding  a  small  pittance 
to  purchase  robes,  and  stimulating  their  industry  by 
fees  on  the  causes  they  tried. 

The  De  Henghams  had  long  been  settled  at  Thetford 
in  Norfolk;    and   the   head   of  the   family, 
towards  the  end  of  the  reign  of  Henry  III., 
had  gained  distinction  as  a  knight  in  several  passages 
of  arms,  had  been  a  Judge  in  the  AULA  REGIS,  and  had 
acted  as  a  Justice  in  Eyre.     Ralph,  a  younger  son  of 
his,  having  a  greater  taste  for  law  than  for  military 
exercises,  was,  while  yet  a  boy,  placed  in  the   His  progress 
office  of  a  prothonotary  in  London,  and  not    in  the  law- 
only  made  himself  master  of  the  procedure  of  the 


86  EEIGN  OF  EDWARD  I.  CHAP.  II. 

courts,  but  took  delight  in  perusing  Glanville,  Bracton, 
and  Fleta,  which,  in  those  simple  and  happy  times, 
composed  a  complete  law  library.  Without  the  clerical 
tonsure,  he  became  a  candidate  for  business  at  the 
bar ;  but  such  was  the  belief,  that  the  characters  of 
causidicus  and  clericus  must  be  united,  that,  to  further 
his  success,  he  was  obliged  to  take  holy  orders,  and  he 
was  made  a  canon  of  St.  Paul's.*  His  reputation  in 
Westminster  Hall  was  now  greater  than  that  of  any 
man  of  his  time ;  and  while  he  was  little  more  than 
thirty  years  of  age,  on  the  pinciple  of  detur  digniori  he 
was  made  Chief  Justice  of  the  Court  of  King's  Bench, 
and  received  the  honour  of  knighthood. 

He  fully  answered  the  expectation  which  had  been 
La  book  f°rmed  of  him  for  industry,  learning,  and 
composed  by  ability.  His  great  object  was  to  establish  a 

regular  procedure  in  his  court  calculated  to 
expedite  suits  and  to  prevent  fraud.  He  began  with 
publishing  a  collection  of  writs  which  he  had  carefully 
made  and  revised,  known  by  the  name  of  EEGISTEUM 
BREVIUM,  and  pronounced  by  Lord  Coke  to  be  "  the 
most  ancient  book  on  the  law."f  Kext,  he  composed 

an  original  work,  which  is  still  extant,  and 
i286.1278"  quoted  in  Westminster  Hall  as  the  "  Summse 

of  Lord  Chief  Justice  Hengham."  It  is 
written  in  Latin,  and  divided  into  two  books,  called 
"Hengham  Magna"  and  "Hengham  Parva,"  giving 
instructions  with  regard  to  the  mode  of  conducting 
actions,  particularly  writs  of  right,  of  dower,  and  of 
assize,  from  the  praecipe  to  the  execution  of  the  judgment. 
It  continued  in  MS.  till  the  reign  of  James  I.,  when  it 

*  It  was  to  conceal  the  want  of  clerical  f  4  Inst.  140 ;  3  Rep.  Preface,  vil.    He 

tonsure,  that  the  serjeants-at-law,  who  means,  of  permanent  authority  in  the 

soon   monopolized    the   practice  of  the  common   law;    which    earlier  treatises 

Court  of  Common  Pleas,  adopted  the  coif,  could  not  be  considered, 
or  black  velvet  cap,  which  became  the 
badge  of  their  order. 


A.D.  1278-86.  BALPH  DE  HENGHAM.  87 

was  printed  and  published  with  the   following  title- 
page  :— 

"  RADDLPHI 

de 

HEJJGHAH 

EDWARDI  Regis  I. 

Capitals  olim  Justitiarii 

•SCMM.E, 

Magna  Hengham  et  Parva  vulgo 

nuncupate,  nunc  primum  ex  vet.  Codd. 

MSS.  lucem  prodeunt. 

LONDISI. 
Biblicpolarum,  Corpori  excuditur. 

M.DCJCVI." 

The  Latinity  is  barbarous  even  for  a  lawyer,  and 
the  arrangement  not  very  good.  From  a  quaint 
analogy  to  the  Mosaic  account  of  the  creation,  he 
supposes  the  work  of  conducting  a  suit  to  be  divided 
into  six  days ;  and  he  describes  what  is  to  be  done 
each  day — in  "  casting  an  essoin,"  "  demanding  a  view," 
&c.*  But  it  may  be  considered  as  creating  order  out  of 
chaos  in  the  legal  world,  and,  with  all  its  faults,  it 
must  have  been  of  essential  service  to  those  who  were 
to  practise  before  the  learned  author. 

He  gave  much  satisfaction  by  his  despatch  of 
judicial  business.  The  Judges  of  the  King's  Bench 
still  travelled  about  with  the  Sovereign,  and  mounted 
their  tribunal  wherever  he  might  be.  Thus  Chief 
Justice  Hengham  led  a  wandering  life,  and  was  sta- 
tioned from  time  to  time  at  Winchester,  Gloucester, 
York,  and  other  cities.  He  was  summoned  to  the 
parliament  held  at  Shrewsbury,  and  joined  in  the  in- 
human sentence  by  which  the  Prince  of  Wales  was 
condemned  to  die  as  a  traitor  for  gallantly  defending 
the  independence  of  his  country,  f 

*  I  give  a  specimen : —  ipso  die  offerat  se  lit!  sic  versus  Ipsum 

'•SECTJNDUS  DIES.     Secundo  die  pla-  reum  ln  hac^erba:  -Rchardus  le  Jay 

citi  potest  reus  facere  defaltam  si  velit  ex  s6  Profre  vere  William  Huse  de  play  de 

consuetudine  regni,  dum  tamen  essonla-  terre-"  &•— Hengham.  Magna,  ch.  vili. 

tug  f uerit  primo die ordine prwmonstrato.  "°*-  """1-  6  Ed.  L 

Petens  autem  expectans  quartam  diem 


88  REIGN  OF  EDWARD  I.  CHAP.  II. 

The  conquest  and  settlement  of  Wales  being  com- 
pleted, Edward  went  abroad  in  order  to 
make  peace  between  Alphonso,  King  of  Ara- 

gon,  and  Philip  the  Fair,  who  had  lately  succeeded 
Philip  the  Hardy  on  the  throne  of  France. 

pointed1*"  Jn  sucn  favour  was  Chief  Justice  de  Hengham, 
om  tliat  he  wa6  appointed  Guardian  of  the 
kingdom,  although  this  trust  no  longer  was 

attached  to  his  office; — the  King  declaring,   like  the 

Duke  of  Vienna, — 

..."  You  must  know  we  have  with  special  soul 

Elected  him  our  absence  to  supply ; 

Lent  him  our  terror,  drest  him  with  our  love, 

And  given  his  deputation  all  the  organs 

Of  our  own  power." 

The  courtiers  probably  replied, — 

"  If  any  in  all  England  be  of  worth 
To  undergo  such  ample  grace  and  honour, 
It  is  De  Hengham." 

Yet  he  was  supposed  to  have   misconducted  himself 
almost  as  much  as  "  Lord  Chief  Justice  Angelo." 

The  King  remained  in  Aquitaine  nearly  three  years, 
and  at  last  coming  home  rather  unexpectedly, 
though  not   in   disguise,   found   many   dis- 
orders to  have  prevailed,  both  from  open  violence  and 
from  the  corruption  of  justice.     Tumults  had  broken 
out  in  many  parts  of  England  (it  was  said)  from  the 
rapacity  of  De  Hengham ;  and  robberies  on  the  high- 
ways had  become  so  frequent,  that  no  one  could  travel 
from  town  to  town  without  a  strong  escort. 
He  is  What  was  worse,  it  was  alleged  that  the  Lord 

charged  with 

bribery.         Chief  Justice,  instead  of  vigorously  and  im- 
partially enforcing  the  law,  had  himself  taken 
bribes,  and  had  connived  at  a  wholesale  trade  in  bribery 
carried  on  by  his  brother  Judges. 


A.D.  1289.  EALPH  DE  HENGHAM.  89 

The  King,  without  inquiry,  threw  -them  all  into 
prison,  and  summoned  a  parliament,  before  which  they 
might  be  brought  to  trial.  The  kingdom  was  certainly 
found  in  a  very  disturbed  state,  but  no  specific  act  of 
misgovernment  could  be  fastened  on  De  Hengham.  He 
and  most  of  the  other  Judges,  however,  had  taken 
money  from  the  suitors,  which  was  considered  evidence 
of  judicial  corruption.  They  were  put  to  0onvIctloI18 
answer  at  the  bar  of  the  House  of  Lords,  of  the 
and  many  witnesses  were  examined  against 
them.  All  except  two,  John  de  Matingham  and  Elias 
de  Beckingham,  were  found  guilty,  dismissed  from  their 
offices,  and  heavily  fined.  To  disgrace  them  still  more, 
their  successors  were  required  to  swear,  when  entering 
on  office,  "that  they  would  take  no  bribe,  nor  money, 
nor  gift  of  any  kind,  from  such  persons  as  had  suits 
depending  before  them, — except  a  breakfast."  * 

De  Hengham  was  fined  7000  marks,  and  for  some 
time  laboured  under  deep  disgrace.f    But  the 
evidence  against  him  is  not  preserved,  and    De  Hengham 

,T_.    -,     ,i      ,    i  <r       j  is  fined  7000 

there  is  reason  to  think  that  he  sutiered  un-   marks, 
justly  from  popular  prejudice  and  royal  preci- 
pitancy. The  salary  allowed  to  him  was  so  exceedingly 
small,  that  he  could  not  subsist  without  fees,  and,  the 

*  1  Part.  Hist  38. 

t  Tyrrell,  In  his  History,  sets  down  the  fines  as  follows  :•— 

"  Sir  Ralph  de  Hengham,  C.J.     .     .     .  7000  marks. 

Sir  John  Loveton      .' 3000      „ 

Sir  William  Brompton 3000 

Sir  Solomon  Rochester 4000 

Sir  Richard  Boyland 4000 

Sir  Thomas  Soddington 2000 

Sir  Walter  Hopton 2000 

Sir  William  Saham 3000 

Robert  Lithbury 1000 

Roger  Leicester 1000 

I  Escheator  and 

Henry  Bray 1000      „       |    Judge  for  the  Jews. 

And,  what  is  more  remarkable,  Adam  de     new  money,  besides  jewels  and  silver 
Stratton,  a  certain  Clerk  of  the  Court,     plate." 
was  fined  no  less  than  32,000  marks  of 


Justice  of  Assize. 
>Justioes  Itinerant. 

Master  of  the  Rolls. 


90  EEIGN  OF  EDWARD  I.  CHAP.  II. 

amount   of  these  not  always  being  well  denned,  the 
taking  of  them  was  liable  to  be  misconstrued  into  ex- 
tortion or  bribery.   In  after-times  the  current 

Opinions  re-         /»        -.-i.  ..*  ••      .      ^  •      /. 

specting  him    ot  public  opinion  ran  strongly  in  his  favour  ; 
tlnws61          an(l  in  Kichard  III.'s  reign  it  was  said  "  the 
only  crime  proved  against  him  was,  that,  out 
of  mere  compassion,  he  had  reduced  a  fine  which  he 
had  set  upon  a  poor  man  from  13s.  4d.  to  6s.  Sd"  *   The 
tradition  prevailing  in  the  reign  of  Elizabeth  was,  that 
from  the  fine  upon  the  Chief  Justice  himself  a  clock- 
house  was  built  at  Westminster,  furnished  with  a  clock 
to  be  heard  in  Westminster  Hall.f     Upon  this  story, 
however,  Blackstone  remarks,  "  that  (whatever  instances 
may  be  found  of  the  private  exertion  of  mechanical 
genius  in   constructing   horological   machines)   clocks 
came    not  into   common  use   till  an  hundred    years 
afterwards,  about  the  end  of  the  14th  century."  | 
The  ex-Chief  Justice  bore  his  misfortunes  with  mag- 
nanimity, and  gradually  recovered  the  con- 
fidence both  of  the  King  and  of  the  public. 
About  eleven  years  afterwards  we  find  him  one  of  the 
Justices  in  Eyre  for  the  general  perambulation  of  the 
forests  ;§  and  near  the  conclusion  of  this  reign 
he  was  employed  to  negotiate  a  treaty  with 
the  Scots,  the  King  having  failed  in  all  his  attempts  to 
rob  them  of  their  independence.  || 

*  Year-Book,  M.  2  Richard  III.  10.  was  entered  into  the  roll.    And  almost 
t  3  Inst.  72  ;  4  Inst.  255.  in  the  like  case  in  the  reign  of  Queen 
J  Comm.  vol.  ill.  410.    Lord  Coke  was  Elizabeth,  Sir  Robert  Catlyn,  Chief  Jus- 
more  credulous,  and  thus  palavers  in  his  tice  of  England,  would  have  had  Justice 
4th  Institute  (f.  255)  : — "  Radulphus  de  Southcote  (one  of  his  companions,  justice 
Ingham,  Chief  Justice  of  England,  a  very  of  the  King's  Bench)  to  have  altered  a 
poor  man    being   fined  before   him  at  record,  which  the  justice  denyed  to  doe 
13s.  4d!.,  in  another  tearm,  moved  with  and  said  openly  In  court  'that  he  meant 
pity,  caused  the  record  to  be  rased  and  not  to  build  a  clock-house.'"— See  3  Pryn. 
made  6s.  8d. ;  for  which  he  (for  his  fine)  Rec.  401,  402 ;    Dugd.  Chron.  Ser.  26  ; 
made  the  clock  (to  be  heard  into  West-  1  Hale,  P.  C.  646,  647. 
minster  Hall)  and  the  clock-house  In        $  Rot.  in  Fur.  Lond.,  29  Ed.  L  m.  8. 
Westminster,  which  cost  him  800  marks,         ||  Rot.  Parl.,  33  Ed.  L 
and  continueth  unto  this  day,  which  sum 


A.D.  1305.  DE  WEYLAND.  91 

At  the  accession  of  Edward  II.,  De  Hengham  was 
again  actually  replaced  on  the  Bench,  being 
appointed  Chief  Justice  of  the  Court  of  Com-    stored  to 
mon  Pleas;*  and  he 'continued  to  fill   this    payment!" 
office  with  much  credit  till  his  death  in  the    i307July> 
end  of  the  following  year.     He  was  buried    His  death. 
in  St.  Paul's  Cathedral,  where  a  marble  mo- 
nument was  erected  to  his  memory  with  the  following 
rhyming  epitaph  : — 

"  Per  versus  patet  hos,  Angloru  qd  jacet  hlc  flos; 
Legum  qui  tuta  dictavit  vera  statuta, 
Ex  Hengha  diet'  Kadulph'  vir  benedict'." 

He  may  be  truly  considered  the  father  of  the  Common 
Law  Judges.  He  was  the  first  of  them  who  never  put 
on  a  coat  of  mail;  and  he  has  had  a  long  line  of 
illustrious  successors  contented  with  the  ermined  robe. 

Of  the   contemporary  Judge,   DE  WEYLAND,  I   find 
nothing  related  prior  to  his  appointment  of 
Chief  Justice  of  the  Common  Pleas.   He  like-    chief  j^stLs 
wise  was  esteemed  a  great  lawyer,  and  he    ^niS." 
long  gave  high  satisfaction  as  a  magistrate. 
He  several  times  acted  as  Justice  Itinerant,  and  was 
zealous  in  detecting  and  punishing  criminals.!     But  un- 
fortunately, his  salary  being  only  sixty  marks    His  con- 
a  year,  he   seems  without  scruple  to  have    c 
resorted  to  very  irregular  courses  for  the  purpose  of 
increasing  his  riches. 

When  arrested,  on  the  King's  return  from  Aquitaine, 
conscious  of  his  guilt,  he  contrived  to  escape 

A.D.  1289. 

from  custody,  and,  disguising  himself  in  the 
habit  of  a  monk,  he  was  admitted  among  friars-minors 
in  a  convent  at  Bury  St.  Edmund's.     However,  being 
considered  a  heinous  offender,  sharp  pursuit    He  absconds 
was  made  after  him,  and  he  was  discovered    in  dis«race- 
wearing  a   cowl  and  a  serge  jerkin.      According  to 

*  Dugd.  Chron.  Ser.  34.  f  Madd.  Exch.  ii.  66,  c.  1  k. 


92  EEIGN  OF  EDWABD  I.  CHAP.  II. 

the  law  of  sanctuary,  then  prevailing,  he  was  allowed 
to  remain  forty  days  unmolested.  »At  the  end  of  that 
time  the  convent  was  surrounded  by  a  military  force, 
and  the  entry  of  provisions  into  it  was  prohibited. 
Still  it  would  have  been  deemed  sacrilegious  to  take 
him  from  his  asylum  by  violence  ;  but  the  Lord  Chief 
Justice  preferred  surrendering  himself  to  perishing 
from  want.*  He  was  immediately  conducted  to  the 
Tower  of  London.  Eather  than  stand  a  trial,  he  peti- 
tioned for  leave  to  abjure  the  realm ;  this  favour  was 
granted  to  him  on  condition  that  he  should  be  attainted, 
and  forfeit  all  his  lands  and  chattels  to  the  Crown.f 

Having  walked  barefoot  and  bareheaded, 
menfand*"  with  a  crucifix  in  his  hand,  to  the  sea-side 
aftertimes  a*  Dover,  ne  was  Pu*  on  hoard  a  ship  and 

deported  to  foreign  parts.  He  is  said  to  have 
died  in  exile,  and  he  left  a  name  often  quoted  as  a  re- 
proach to  the  Bench  till  he  was  superseded  by  Jeffreys 
and  Scroggs.J 

*  One  account  says,  "  He  took  upon  the  kingdom  as  unworthy  to  live  in  that 

him  the  habit  of  a  grey  friar,  but,  being  state  against  which  he    had  so  much 

discovered  by  some  of  his  servants,  he  offended." 

was  watched  and  guarded,  and  after  two  Llngard    says    that   "  Weyland  was 

months'  siege,  went  out,  forsaking  his  found  guilty  of  having  first  instigated 

friar's  coole,  and  was  taken  and  sent  to  his  servants  to  commit  murder,  and  then 

the  Tower." — See  4  JSloomJUld's  A'orfolk,  screened  them  from  punishment "  (vol.iii. 

631.  270);  but  he  cites  no  authority  to  sup- 

t  The  property  forfeited  by  him  was  port  so  serious  a  charge :  and  the  histo- 

said  to    have  been  worth  upwards  of  rian  on  this  occasion  does  not  display  his 

100, 000  marks,  or  10,0001.,"  an  incredible  usual  accuracy,  as  he  makes  Weyland 

sum,"  says  Blackstone,  "  in  those  days,  Chief  Justice  of  the  King's  Bench,  ele- 

before  paper  credit  was  in  use,  and  when  vating  De  Hengham  at  the  same  time  to 

the  annual  salary  of  a  Chief  Justice  was  the  office  of  "  Grand  Justiciary." 

only  sixty  marks." — Com.  iii.  410.  In  a  MS.  chronicle  in  the  Bodleian 

J  Oliver  St.  John,  in  his  speech  in  the  Library,  cited  by  Dugdale  (Chron.  Ser. 

Long  Parliament  against  the  Judges  who  1288),  there  is  this  entry:    "Tbo.   de 

decided  in  favour  of  ship-money,  com-  Wej'land,  eo  quod  male  tractavit  popu- 

pares  them  with  the  worst  of  their  pre-  lum,  ab  officio  Justiciarii  amotus,  exhre- 

decessors :  —  "  Weyland,  Chief  Justice  redatus,  et  a  terra  exulatus." 

of  the  Common  Pleas    in  the  time  of  Speed  gives  a  melancholy  account  of 

Edward  I.  was  attainted  of  felony  for  the    sufferings  of  the  English,  at  this 

taking  bribes,  and  his  lands  and  goods  time,  between  the  Jews  and  the  Judges, 

forfeited,  as  appears  in  the  "Pleas  of  Par-  "  While  the  Jews  by  their  cruel  usuries 

liament,  18  Ed.  I.,  and  he  was  banished  had  one  way  eaten  up  the  people,  the 


A.D.  1289.  EOGEK  LE  BRABA9ON.  93 

The  immediate  successor  of  De  Hengham  as  Chief 
Justice  of  the  King's  Bench  was  GILBERT  DE 
THORNTON,  who,  I  make   no   doubt,   was  a    DeThornton 

Chief  Justice 

worthy  man,  but  who  could  not  have  been    of  King's 

Bench 

very  distinguished,  for  all  that  I  can  find    A.D.  1239. 
respecting  him  is  that  he  was   allowed  a 
salary  of  40Z.  a  year.*     He  was  overshadowed,  as  some- 
times happens,  by  a  puisne  who  sat  by  him,  and  who 
at  last  supplanted  him.     This  was  EOQER  LE 
BRABAC.ON,|  who,  from  the  part  he  took  in    iS^n. 
settling  the  disputed  claim  to  the  crown  of 
Scotland,  is  an  historical  character.     His  ancestor,  cele- 
brated as  "the  great  warrior,"  had  accompanied  the 
Conqueror  in  the  invasion  of  England,  and  was  chief 
of  one  of  those  bands  of  mercenary  soldiers  then  well 
known  in  Europe  under  the  names  (for  what  reason, 
historians  are  not  agreed)  of  Eoutiers,  Cottereaux,  or 
Brabanponsj..     Being  rewarded  with  large  possessions 
in  the  counties  of  Surrey  and  Leicester,  he 

A  D   1291 

founded  a  family  which  flourished  several 
centuries  in  England,  and  is  now  represented  in  the 
male  line  by  an  Irish  peer,  the  tenth  Earl  of  Meath. 
The  subject  of  the  present  sketch,  fifth  in  descent  from 
"  the  great  warrior,"  changed  the  military  ardour  of  his 
race  for  a  desire  to  gain  distinction  as  a  lawyer.  He 

Justiciars,  like  another  kind  of  Jews,  J  Hume,  who  designate*  them  "  des- 
had  ruined  them  with  delay  in  their  perate  ruffians,"  says,  "  Troops  of  them 
suits,  and  enriched  themselves  with  were  sometimes  enlisted  in  the  service  of 
wicked  convictions."  He  then  relates  one  prince  or  baron,  sometimes  in  that 
with  great  glee  "  how  Sir  Thomas  Wey-  of  another;  they  often  acted  in  an  inde- 
land,  being  stripped  of  all  his  lands,  pendent  manner,  and  under  leaders  of 
goods,  and  jewels,  which  he  had  so  their  own.  The  greatest  monarchs  were 
wickedly  got,  was  banished  like  the  not  ashamed,  on  occasion,  to  have  re- 
felons  be  had  tried." — Sist.o/G.B.p. 55*.  course  to  their  assistance;  and  as  their 

*  "  Gilbertus  de  Thornton,  capitalis  habits  of  war  and  depredation  had  given 

Justic.  habet  XL!,  per  annum,  ad  se  sus-  them  experience,  hardiness,  and  courage, 

tentandum." — Lib-  18  Ed.  1.  m.  1.  they  generally  composed  the  most  for- 

f  The  name  is  sometimes  spelt  Bra-  midable  part  of  those  armies  which  de- 
bacon,  Braban9on,  Brabason,  and  Bra-  cided  the  political  quarrels  of  princes." — 
banson.  Vol.  i.  438. 


94  REIGN  OF  EDWARD  I.  CHAP.  II. 

was  regularly  trained  in  all  the  learning  of  "  Essoins  " 
and  "Assizes,"  and  he  had  extensive  practice  as  an 
advocate  under  Lord  Chief  Justice  de  Hengham.  On 
the  sweeping  removal  of  almost  all  the  Judges  in  the 
year  1190,  he  was  knighted,  and  appointed  a  Puisne 
Justice  of  the  King's  Bench,  with  a  salary  —  which  one 
would  have  thought  must  have  been  a  very  small  ad- 
dition to  the  profits  of  his  hereditary  estates  —  of 
331.  6s.  Sd.  a  year.*  He  proved  a  most  admirable 
Judge  ;  and,  in  addition  to  his  professional  knowledge, 
being  well  versed  in  historical  lore,  he  was  frequently 
referred  to  by  the  Government  when  negotiations  were 
going  on  with  foreign  states. 

Edward  I.,  arbitrator  by  mutual  consent  between  the 
He  is  em-       aspirants  to  the  crown  of  Scotland,  resolved 
UP  a  c^a^m  ^or  himself  as  liege  lord  of 


dispute          that  kingdom,  and  Brabacon  was  employed, 

aboutthe  °.  V  *      * 

crown  of  by  searching  ancient  records,  to  nnd  out  any 
plausible  grounds  on  which  the  claim  could 
be  supported.  He  accordingly  travelled  diligently  both 
through  the  Saxon  and  Norman  period,  and  —  by  making 
the  most  of  military  advantages  obtained  by  Kings  of 
England  over  Kings  of  Scotland,  by  misrepresenting 
the  nature  of  homage  which  the  latter  had  paid  to  the 
former  for  possessions  held  by  them  in  England,  and 
by  blazoning  the  acknowledgment  of  feudal  subjection 
extorted  by  Henry  II.  from  William  the  Lion  when 
that  prince  was  in  captivity,  without  mentioning  the 
express  renunciation  of  it  by  Richard  I.  —  he  made  out 
a  case  which  gave  high  delight  to  the  English  Court. 
Edward  immediately  summoned  a  parliament  to  meet 
at  Korham,  on  the  south  bank  of  the  Tweed,  marched 
thither  at  the  head  of  a  considerable  military  force,  and 
carried  Mr.  Justice  Braba9on  along  with  him  as  the 
exponent  and  defender  of  his  new  suzerainete.  The 

*  Dug.  Chr.  Ser.  A.D.  1290. 


A.D.  1291.  EOGEB  LE  BRABA^ON.  95 

Scottish  nobles  being  induced  to  cross  the  river  and  to 
assemble  in  the  presence  of  Edward,  under  pretence 
that  he  was  to  act  only  as  arbitrator,  Sir  Eoger  by  his 
order  addressed  them  in  French  (the  language  then 
spoken  by  the  upper  classes  both  in  Scotland 

j    -n       i       ix     i-     i      •  •  11th  May. 

and  England),  disclosing  the  alarming  pre- 
tensions about  to  be  set  up.     The  following  is  said  to 
be  the  substance  of  this  speech  : — 

"  Lords,  Thanes,  and  Knights  of  Scotland, — The  reason  of  our 
supreme  Lord   coming    here,   and    of   your  being    „. 
summoned  together,  is,  that  he,  in  his  fatherly  kind-    to  the 
ness  for  all  in  any  way  depending  upon  him,  taking    Scottish 
notice  of  the  confusion  in  which  your  nation  has   Parliament- 
been  since  the  death  of  Alexander  your  last  King,  and  from  the 
affection  he  bears  for  that  kingdom,  and  all  the  inhabitants 
thereof,  whose  protection  is  well  known  to  belong  to  him,  has 
resolved,  for  the  more  effectually  doing  right  to  all  who  claim  the 
kingdom,  and  for  the  preservation  of  the  peace  thereof,  to  show 
you  his  superiority  and  direct  dominion  *  over  the  same  out  of 
divers  chronicles  and  ancient  muniments  preserved  in  several 
monasteries  in  England." 

He  then  appears  to  have  entered  into  his  proofs ;  and 
he  thus  concluded : — 

"  The  mighty  Edward,  to  whom  you  have  appealed,  will  do 
justice  to  all  without  any  usurpation  or  diminution  of  your 
liberties ;  but  he  demands  your  assent  to,  and  recognition  of,  his 
said  superiority  and  direct  dominion." 

A  public  notary  and  witnesses  were  in  attendance, 
and  in  their  presence  the  assumed  vassals  were  formally 
called  upon  to  do  homage  to  Edward  as  iheir  suzerain, 
of  which  a  record  was  to  be  made  for  a  lasting  me- 
morial. The  Scots  saw  too  late  the  imprudence  of 
which  they  had  been  guilty  in  choosing  such  a  crafty 
and  powerful  arbitrator.  For  the  present  they  refused 
the  required  recognition,  saying  that  "  they  must  have 

*  Here  Is  the  well-known  feudal  dis-     nium  utile,  which  belongs  to  the  feuda- 
tinction  between  the  dominium  directum,     tory. 
which  belongs  to  the  lord,  and  the  dumi- 


96  EEIGN  OF  EDWAED  I.  CHAP.  II. 

time  for  deliberation,  and  to  consult  the  absent  members 
of  their  different  orders."  Braba9on,  after  advising  with 
the  King,  consented  that  they  should  have  time  until 
the  following  day,  and  no  longer.  They  insisted  on 
further  delay,  and  showed  such  a  determined  spirit  of 
resistance,  that  their  request  was  granted  ;  and  the  1st 
day  of  June  following  was  fixed  for  the  ceremony  of  the 
recognition.  Braba£on  allowed  them  to  depart  ;  and  a 
copy  of  his  paper,  containing  the  proofs  of  the  alleged 
superiority  and  direct  dominion  of  the  English  Kings  over 
Scotland,  was  put  into  their  hands.  He  then  returned 
to  the  south,  where  his  presence  was  required  to  assist 
in  the  administration  of  justice,  leaving  the  Chancellor 
Burnel  to  complete  the  transaction.  Although  the 
body  of  the  Scottish  nobles,  as  well  as  the  body  of  the 
Scottish  people,  would  resolutely  have  withstood  the 
demand,  the  competitors  for  the  throne,  in  the  hopes  of 
gaining  Edward's  favour,  successively  acknowledged 
him  as  their  liege  lord,  and  their  example  was  followed 
by  almost  the  whole  of  those  who  then  constituted  the 
Scottish  Parliament.  But  this  national  disgrace  was 
effaced  by  the  glorious  exploits  of  Wallace  and  Bruce  ; 
and  Brabagon  lived  to  see  the  fugitives  from  Bannock- 
burn,  and  to  hear  from  them  of  the  saddest  overthrow 
ever  sustained  by  England  since  Harold  and  his  brave 
army  were  mowed  down  at  Hastings. 

"When  judgment  had  been  given  in  favour  of  Baliol, 

Braba<jon  was  still  employed  to  assist  in  the 

He'assistsm    plan  which  had  been  formed  to  bring  Scot- 


entire   subjection.      There  being 
?n?H?!i.        a  meeting   at  Newcastle   of  the  nobles   of 

jurisdiction.  ' 

the  two  nations,  when  the  fe\idatory  King 
did  homage  to  his  liege  lord,  complaint  was  made 
by  Eoger  Bartholomew,  a  burgess  of  Berwick,  that 
certain  English  judges  had  been  deputed  to  exer- 
cise jurisdiction  on  the  north  bank  of  the  Tweed. 


A.D.  1296.  KOGER  LE  BEABA9ON.  97 

Edward  referred  the  matter  to  Braba9on  and  other 
commissioners,  commanding  them  to  do  justice  accord- 
ing to  the  laws  and  customs  of  his  kingdom.  A  peti- 
tion was  then  presented  to  them  on  behalf  of  the  King 
of  Scotland,  setting  forth  Edward's  promise  to  observe 
the  laws  and  customs  of  that  kingdom,  and  that  pleas 
of  things  done  there  should  not  be  drawn  to  exami- 
nation elsewhere.  Braba$on  is  reported  thus  to  have 
answered : — 

"  This  petition  is  unnecessary,  and  not  to  the  purpose ;  for  it 
is  manifest,  and  ought  to  be  "admitted  by  all  the  prelates  and 
barons,  and  commonalty  of  Scotland,  that  the  King,  our  master, 
has  performed  all  his  promises  to  them.  As  to  the  conduct  of 
his  Judges,  lately  deputed  by  him  as  SUPERIOR  and  DIRECT  LORD 
of  that  kingdom,  they  only  represent  his  person ;  he  will  take 
care  that  they  do  not  transgress  his  authority,  and  on  appeal  to 
him  he  will  see  that  right  is  done.  If  the  King  had  made  any 
temporary  promises  when  the  Scottish  throne  was  vacant,  in 
derogation  of  his  just  suzerainete,  by  such  promises  he  would  not 
have  been  restrained  or  bound." 

Encouraged  by  this  language,  Maccluff,  the  Earl  of 
Fife,  entered  an  appeal  in  the  English  House  of  Lords 
against  the  King  of  Scotland ;  and,  on  the  advice  of 
Braba9on  and  the  other  Judges,  it  was  resolved  that 
the  respondent  must  stand  at  the  bar  as  a  vassal,  and 
that,  for  his  contumacy,  three  of  his  principal  castles 
should  be  seised  into  the  King's  hands.* 

Although  historians  who  mention  these  events  de- 
signate Braba9on  as  "  Grand  Justiciary,"  it  is  quite 
certain  that,  as  yet,  he  was  merely  a  Puisne  Judge ; 
but  there  was  a  strong  desire  to  reward  him    ATt  1296 
for  his  services,  and,  at  last,  an  opportune    He  is  made 

.   .          -i  ,     ••  f-,-,  •    /.  T      i-          Chief  Justice 

vacancy  arising,  he  was  created  Chief  Justice  Of  the  King's 
of  the  King's  Bench. 

Of  his  performances  in  this  capacity  we  know  nothing, 
except  by  the  general  commendation  of  chroniclers ;  for 

*  Rym.  it.  605,  615,  Cc6.    Rot.  Scot.i.  11, 16. 
VOL.   I.  H 


98  EEIGN  OF  EDWARD  II.  CHAP.  II. 

the  Year-Books,  giving  a  regular  account  of  judicial 
decisions,  do  not  begin  till  the  following  reign.  The 
Court  of  King's  Bench,  still  following  the  person  of  the 
sovereign,  was,  on  one  occasion,  in  Brabagon's  time, 
held  in  Roxburgh  Castle,  then  in  the  possession  of  the 
English;  but  we  have  no  report  of  any  of  the  pro- 
ceedings, which  came  before  it.* 

He  was  still  employed  in  a  political  capacity ;  and 
in  the  parliament  held  -at  Lincoln  in  the  year  1301,  he 
thus  declared  the  reasons  for  calling  it,  and  pressed  for 
a  supply : — 

"  My  lords,  knights,  citizens,  and  burgesses :  The  King  has 

ordered  me  to  let  you  understand  that  whatever  he 

A.D.  i30i.        jiatn  foue  JQ  ^js  jate  wars  kath  been  carried  on  by 

the  opening*  your  joint  consent  and  allowance.  But  of  late  time, 
of  the  by  reason  of  the  sudden  incursion  of  the  Scots  and 

hnghsh    ,      the  malicious  contrivance  of  the  French,  his  Highness 

parliament.       ,        .  , .  °    , 

has  been  put  to  such  extraordinary  expenses,  that, 
being  quite  destitute  of  money,  he  therefore  desires  a  pecuniary 
aid  from  you ;  and  trusts  that  you  will  not  offer  him  less  than 
one  fifteenth  of  your  temporal  estates." 

"  Hereupon,"  says  the  reporter,  "  the  nobility  and 
commons  began  to  murmur, f  and  complained  grievously 
against  the  King's  menial  servants  and  officers  for 
several  violent  depredations  and  extortions."  How- 
ever, the  wily  Chief  Justice  soothed  them  by  making 
the  King  go  through  the  ceremony  of  confirming  the 
Great  Charter  and  the  Charter  of  Forests,  and  he 
obtained  the  supply  he  had  asked  for.J — Wo  read 
nothing  more  that  is  very  memorable  of  him  during 
the  present  reign. § 

On  the  accession  of  Edward  II.  Brabagon  was  re- 

*  Hale,  Hist.  C.  L.  200.  cheering  was  not  by  "hear !  hear ! "  but 

f  We  are  not  told  whether  they  ex-  by  "  amen  !  amen ! " 

claimed  "oh!  oh!"  or  what  was  the        J  1  Part.  Hist.  46. 

prevailing  fashion  of  interjectional  dis-         $  See  3  Tyrrell,  IS. 

sent.  For  centuries  after,  parliamentary 


A.D.  1307.  WILLIAM  HOWARD.  99 

appointed   Chief  Justice   of  the  King's  Bench,*   and 
he  continued  very  creditably  to  fill  the  office    8th  July> 
for  eight  years  longer.      He  was   fated   to    1307- 
deplore  the  fruitless  result  of  all  his  efforts  to  reduce 
Scotland   to  the  English  yoke, — Eobert  Bruce  being 
now  the  independent  sovereign  of  that  kingdom,  after 
humbling  the  pride  of  English  chivalry. 

At  last,  the  infirmities  of  age  unfitting  Braba9on  for 
the  discharge  of  his  judicial  duties,  he  resigned  his 
gown  ;  but,  to  do  him  honour,  he  was  sworn 
a  member  of  the  Privy  Council,  and  he  con- 
tinued to  be  treated  with  the  highest  respect  by  all 
ranks  till  his  death,  which  happened  about 

'  His  death. 

two  years  afterwards. — He  was  married  to 
Beatrice,  daughter  of  John  de  Sproxton,  but  had  by  her 
only  one  child,  a  son,  who  died  an  infant.     The  Earls  of 
Meath  are  descended  from  his  brother  Matthew,  f 

Collins,  in  his  "  Peerage,"  which,  generally  speaking, 
is  a  book  of  authority,  here  introduces  Sir 
William  Howard  as  "  Chief  Justice  of  Eng-    gjjjg^. 
land."     Although  he  is  so  described  under   whether  a 

.  .  .,    .      °  .     ,  <?   ,1          i          v       x     Chief  JUB- 

his  portrait  in  the  window  of  the  church  at   tice? 
Long  Melford,  in  Suffolk,!  I  doubt  whether 
he  ever  reached  this  dignity ;  but,  for  the  honour  of 
the  law,  I  cannot  refuse  to  introduce  him  from  whom 
flowed  all  the  blood  of  all  the  Howards. 

The  name  was  originally  spelt  Haward,  and  must 
have  been  of  Saxon  origin.  His  pedigree  does  not 
extend  higher  than  his  grandfather,  who  was  a  private 
gentleman,  of  small  estate,  near  Lynn,  in  Norfolk. 

*  He   was   sworn   in  before  Walter  Baron  Cha worth.— See  Grandeur  of  the 

Reginald,  the  Deputy  Treasurer.— Dug.  Law,  p.  182. 
Chr.  Ser.  t  He    appears   there    in    his  judge's 

t  His  descendant,  Sir  William  le  Bra-  robes,   with   these   words,    in   ancient 

bacjon,  was  Vice-Treasurer  of  Ireland,  black-letter  characters:  "  Pray  for  the 

and  died  in  1552.  An  Irish  earldom  was  good   state   of  William  Haward,  Chef 

conferred  on  the  family  in  1627,  and  in  Justis   of  England." — Dug,   Or.   Jar. 

1831  the  present  Earl  was  created  a  peer  p.  109. 
of  the  United  Kingdom  by  the  title  of 

H   2 


100  KEIGN  OF  EDWAED  II.  CHAP.  II. 

His  father  likewise  was  contented  to  lead  a  quiet  life 
in.  the  country, — intermarrying  with  the  daughter  of 
a  respectable  neighbour,  and  neither  increasing  nor 
diminishing  his  patrimonial  property.  But  young 
William,  hearing  of  the  great  fame  and  riches  acquired 
by  De  Hengham  and  other  lawyers,  early  felt  an  am- 
bition to  be  inscribed  in  their  order,  and  was  sent  to 
study  the  law  in  London.  There  is  no  cer- 
tain account  of  his  success  at  the  bar,  but 
we  know  that  in  the  21st  Edward  I.  he  was  assigned, 
with  seven  others,  to  take  the  assizes  throughout  the 
realm,  in  aid  of  the  Justices  of  both  benches.  The 
district  to  which  he  was  appointed  comprehended  the 
counties  which  now  constitute  the  Northern  circuit 
(except  Durham),  with  Nottingham  and  Derby,  now 
belonging  to  the  Midland.  Four  years  after, 

A.D.  1297. 

he  was  appointed  one  of  the  Judges  of  the 
Common  Pleas  ;  and  on  the  accession  of  Edward  IT.  he 
was  again  sworn  into  the  same  office.*  Our  judicial 
records  do  not  mention  any  higher  distinction  acquired 
by  him;  and  I  suspect  that  the  chiefship  was  only 
conferred  upon  him  by  flatterers  of  his  descendants 
when  they  were  rising  to  greatness.  Nevertheless,  he 
was  certainly  a  very  able  and  upright  magistrate ;  and, 
from  his  profits  as  a  barrister,  and  his  ofiicial  fees,  (his 
salary  was  little  more  than  301.  a  year,)  he  bought 
large  possessions  at  Terrington,  Wiggenhall,  East 
Winch,  and  Melford,  in  Suffolk.  These  were  long  the 
principal  inheritance  of  the  Howards,  who,  for  several 
generations,  did  not  rise  higher  than  being  gentlemen 
of  the  bedchamber,  sheriffs  of  Norfolk  and  Suffolk, 
governors  of  Norwich  Castle,  and  commissioners  of 
array, — without  being  ennobled.  At  last,  Sir  Eobert 
Howard,  descended  from  the  Judge's  eldest  son,  married 
the  heiress  of  Thomas  Mowbray,  Duke  of  Norfolk ;  and 

*  Dugd.  Chron.  Ser. 


A.D.  1313.  HENEY  LE  SCROPE.  101 

Eichard  III.  conferred  on  John,  the  son  of  this  mar- 
riage, (the  famous  "  Jockey  of  Norfolk,"  who  fought 
and  fell  at  Bosworth,)  the  dukedom  still  enjoyed,  after 
repeated  attainders,  by  the  eldest  representative  of  the 
family ;  while  many  earldoms  and  baronies  have  been 
conferred  on  its  junior  branches. 

The  next  authentic  Chief  Justice  of  the  King's  Bench 
was  Henry  le  Scrope,  the  first  who,  by  success  in  the 
law,  founded  a  family,  and  was  himself  ennobled. 
Many  of  ancient  lineage,  like  the  Grand  Justiciars,  had 
held  judicial  offices;  and  several,  like  Sir  William 
Howard,  raised  themselves  to  eminence,  and  left  de- 
scendants afterwards  enrolled  in  the  peerage.  Henry 
le  Scrope,  of  an  obscure  origin,  from  emi- 
nence in  the  legal  profession  sat  in  the  House  ^.™^ le 
of  Lords  as  a  Baron ;  and  great  chancellors 
and  warriors  were  proud  to  trace  him  in  their  pedigree. 
He  was  the  son  of  William  le  Scrope,  a  small  'squire, 
who  lived  at  Bolton,  in  Yorkshire.  Having  studied 
at  Oxford,  he  was  transplanted,  when  very  young,  to 
London,  to  study  the  law  in  one  of  the  societies  then 
forming,  which  were  afterwards  denominated  "  Inns  of 
Court."  He  was  much  distinguished  for  industry  and 
ability,  and,  in  the  end  of  the  reign  of  Edward  I., 
gained  great  wealth  and  reputation  as  ari  advocate. 
In  the  second  year  of  Edward  II.,  he  was  made  a  Puisne 
Judge  of  the  Common  Pleas;  and  at  the  end  of  six 
years,  while  he  still  continued  in  the  same 
office,  he  was  summoned  to  parliament  not 
merely  to  advise,  like  the  other  judges,  but  to 
assent  to,  the  measures  to  be  brought  forward. 
It  is  a  curious  circumstance,  that,  although  he  took  his 
seat  as  a  member  of  the  House,  he  did  not  receive  a 
similar  summons  to  any  subsequent  parliament.* 

*  The  doctrine  that  "  summons  and     is  now  fully  established,  and  has  often 
sitting  constitute  an  hereditary  peerage,"     been  acted  upon ;  but  in  early  times  the 


102  EEIGN  OF  EDWAKD  II.  CHAP.  II. 

Two  years  afterwards,  he  was  made  Chief  Justice  of 

the  King's   Bench ;  and  he  held  the  office, 

A.D.  i33o.        with  high  reputation,  for  ten  years,  when  he 

S?l?  J,?.sti<P    was  removed  from  it  in  the  convulsions  which 

of  the  King  s 

Bench.  marked  the  conclusion  of  this  reign.  But  he 

was  restored  to  the  bench  when  Edward  III. 
had  established  his  authority,  as  sovereign,  by  putting 
down  his  mother  and  her  paramour ;  and  he  died  in 
1336,  full  of  days  and  of  honours. 

From  him  were  descended  the  Lords  Scrope  of  Bolton  ; 
and  his  younger  son,  after  being  a  great  warrior,  be- 
coming Lord  Chancellor,  established  another  branch  of 
this  illustrious  house.* 

On  his  first  removal  he  was  succeeded  by  Henry  de 

Staunton,   who   filled   a  greater  variety  of 

Henry  de        mdicial   offices  than  any  lawyer  I  read  off 

otaunton  «  . 

Chief  Justice    in  the   annals   of  Westminster  Hall.     This 

of  the  King's  , 

Bench.  extraordinary  man  was  a  younger  brother 

of  a  respectable  family  that  had  long  been 
seated  in  the  county  of  Nottingham.  He  seems,  when 
quite  a  boy,  to  have  conceived  a  passion  for  the  law ; 
and,  to  gratify  him,  he  was  sent  to  an  inn  of  court, 
without  having  been  at  any  university.  His  steadiness 
in  juridical  studies  was  equal  to  his  ardour :  and,  while 
yet  a  young  man,  having  served  his  "  apprenticeship  " 
with  great  credit,  he  reached  the  dignity  of  serjeant,  and 
was  in  great  and  profitable  practice  in  all  the  courts. 
For  nine  years  he  was  a  Puisne  Judge  of  the  Common 
Pleas — from  1306  to  1315.  He  was  then  transferred  to 
the  Exchequer,  being  first  a  Puisne  Baron,  and  then 
1st  June,  Chancellor  of  the  Exchequer.  On  the  1st  of 
1323.  June,  1323,  he  was  made  Chief  Justice  of  the 


King  seems  to  have  exercised  the  prero-  of  again  summoning  him,  or  of  snmmon- 

gatlve  of  summoning  any  knight  to  sit  ing  his  descendants  after  his  death, 

in  the  House  of  Lords  for  a  single  par-  *  See  Lives  of  the  Chancellors,  vol.  i. 

liament,  without  incurring  the  obligation  ch.  xvi. ;  Dagd.  Bar.  and  Ch.  Ser. 


A.D.  1324.  HENRY  DE  STAUNTON.  103 

King's  Bench,  retaining  his  former  place,  which  he  was 
to  execute  by  deputy.  In  a  few  months,  however,  he 
ceased  to  be  a  pluralist,  and  the  Chancellorship  of  the 
Exchequer  was  given  to  the  Bishop  of  Exeter.* 

De  Staunton  remained  Chief  Justice  of  the  King's 
Bench  little  more  than  a  year,  when  he  was 

AD    1324 

made  Chief  Justice  of  the  Common  Pleas, 
which  was  the  more  profitable,  and  for  several  centuries 
afterwards  was  reckoned  the  more  eligible,  appoint- 
ment.f  Finally,  he  concluded  his  career  as  Lord  Chief 
Baron  of  the  Exchequer— an  office  which  I  think  he 
must  have  accepted  as  an  honourable  retreat  in  his  old 
age,  as,  although  attended  with  little  labour,  it  has 
always  been  the  lowest  chiefship,  both  in  emolument 
and  rank.  This  he  held  till  his  death. | 

He  left  no  descendants ;  and,  having  felt  the  want 
of  early  education,  he  bequeathed  his  fortune  to  the 
foundation  of  a  college  in  the  University  of  Cambridge. 

*  "  Rex  omnibus  ad  quos,  &c.   Sciatls  cellor  of  the  Exchequer  Is  called  Henry, 

quod  cum  dilectusClericusetfidelisnoster  and  in  the  other  Hervey  de  Staunton; 

Henricus  de  Stannton  Cancellarii  Scac-  but,  from  the  context,  it  is  clear  that  the 

carli  nostri  de  mandate  nostro  intendat  names  Henry  and  Hervey  are  applied  to 

officio  Capitalis  Justiciarii  nostri  adpla-  the  same  individual.    I  may  also  add, 

cita  coram  nobis  tenenda  per  quod  dicto  that  there  is  a  variance  in  the  date  of  tbe 

officio  Cancellarii  ad  praesens  intendere  appointment  of  the  Bishop  of  Exeter; 

non  potest  Custodian!  Sigilli  nostri  Scac-  the  one  record  giving  tbe  27th  of  Sept., 

carli  pradicti  Venerablli  Patri  W.  Ex-  and  the  other  the  17th,  although  it  is 

oniensi  Episcopo  Thesaurario  nostro  evident  that  the  one  refers  to  the  other, 
commisimus,"  &c.  "  Teste  Rege  apud  t  "  Memorandum  quod  die  Jovis  in 

Skergill  xxvij  die  Septembris.  Per  breve  Vigilia  sancti  Jacobi  Apostoli.  anno  regis 

de  private  Sigillo." — Pat.  11.  Ed.  2.  p.  1.  hujus  vicesimo  incipiente,  Hervicus  de 

m.  9.  et  iterum,  m.  16.  Staunton  prastitit  sacramentum,  coram 

"  Dominus  Rex  mandavit  W.   Exo-  Venerabilibus    patribus  W.   Archiepi- 

niensi  Episcopo  Thesaurario  per  breve  scopo  Eboracensl  Angliae  Primate  the- 

suum  de  private  sigillo  suo  cujus  data  saurarioW.  Exoniensi  Episcopo  Magistro 

est  apud  Skergill  xvij  die  Septembris  hoc  R.   de   Baldock   Cancellario    Regis,   et 

anno  quod  quia  Hervicus  de  Stannton  baronibns  de  Scaccario  et  Justiciarii  de 

Capitalis  Justiciarius  de  Banco  Regis,  qui  communi  banco  de  bene  et  fideliter  se 

habnit  custodiam  Sigilli  de  Cancellar[ia]  habendo  In  offlciis  capltalis  jnsticiarii  de 

hujus  Scaccarii  de  cietero  ad  custodiam  banco  prout  moris  est."  And  at  the  same 

offidi  Cancellar[ii]    intendere  non  po-  time  Robert  de  Ayleston   was   sworn 

test,"  &c. — Mich.  Commun.  17  Ed.  2. ;  Chancellor  of  the  Exchequer. — Afadd. 

Rot.  i.  6.    In  these  two  records   it    Is  Exch. 
observable,  that  iu  the  one  the  Chan-        J  Dug.  Chr.  Ser. ;  Beatson. 


104  REIGN  OF  EDWARD  III.  CHAP.  II. 

The  following  metrical  history  of  him  is  given  by  the 
poet  Eobert  Cade,* — duly  celebrating  his  early  legal 
proficiency,  but  unaccountably  omitting  his  highest 
official  preferments : — 

R  "  Sir  William  Staunton,  Knight,  was  next, 

Chief  Jiistice  Dame  Athelin  was  his  wife> 

Staunton  ^*r  Ge°ffrey  Staunton,  Knight,  their  heire, 

Both  voide  of  vice  and  strife. 

"  And  Sir  Henrie  his  brother  was, 
Who  gave  himselfe  to  learne, 
That  when  he  came  unto  man's  state, 
He  could  the  Lawes  discerne. 

"  And  in  the  same  went  forward  still, 

And  profited  muche,  I  know, 
At  Ynnes  of  Courte  a  Counsailer 
And  Serjeant  in  the  Lawe. 

"  And  in  processe  of  tyme  iudeede, 

A  Judge  he  came  to  bee 
In  the  Common  Benche  at  Westminster 
Such  was  his  highe  degree. 

"  A  Baron  wise  and  of  great  wealthe, 

Who  built  for  Scholers  gaine, 
Sainct  Michaels  house  in  Cambridge  Towne, 
Good  learninge  to  attaine; 

"  Which  deed  was  done  in  the  eighteenth  yeare 

Of  Second  Edwards  King, 
One  thousande  three  hundred  twenty  foure, 
For  whom  they  praye  and  singe. 

"  In  which  said  house  the  Stauntons  may 

Send  Students  to  be  placed, 
The  Founder  hath  confirmed  the  same 
It  cannot  be  defaced. 

"  This  Lord  Baron  no  yssue  had, 

We  cannot  remember  his  wife, 

Nor  where  his  body  tombed  was 

When  death  had  cut  off  life."  f 


*  See  Thoroton's  History  of  Netting-  14  Edward  II.,  reference  is  made'to  in- 

hamshire.  quests  taken  before  Johannes  de  Insula, 

t  He  is  frequently  mentioned  in  con-  Hervicus  de  Staunton,   and  Adam   de 

temporary  records,  and  must  have  been  Lymbergh, "  quaa  sunt  in  Sccio  : "  1  Eot. 

a  very  considerable  person  in  his  day,  Parl.  372  a. 

although  now  fallen  into  such  obscurity.  In   1325,   19  Edward  II.,  it  appears 

In  the  8th  Edward  II.,  Hervicus  de  that  Henry  le  Swan  was  tried  "at  the 

Staunton   and   others  are   directed  to  Eire  of_Lpndon  "  darreine  passe  devant 

assess  and  levy  a  tallage  on  the  City  of  Sire  Henr  de  Staunton' :  "    Eot.  Parl. 

London :  1  Rot.  Parl.  449.  And  in  1320,  And  in  the  Patent  Roll,  3  Edward  III., 


A.D.  1343.  CHIEF  JUSTICE  THOKPE.  1Q5 

There  was  no  other  Chief  Justice  of  much  note  till 
Sir  Eobert  Parnyng,  who,  for  his  great  learn- 
ing and  ability,  was  placed  in  the  "  marble 
chair,"  and  whom  I  have  already  commemo-    *-D-  ^*°- 
rated  in  the  LIVES  OP  THE  CHANCELLORS.* 

After  an  obscure  Chief  Justice,  called  SIR  WILLIAM 
ScoT,f  came  a  very  eminent  but  very  unprin- 
cipled one,  Sir  WILLIAM  DE  THORPE,  who  was 
at  first  supposed  to  be  an  ornament  to  his 
profession,  but  who  brought  deep  disgrace  upon  it. 
From  an  obscure  origin  -he  rose  to  power  and  wealth, 
without  being  a  churchman, — a  very  unusual  occur- 
rence in  those  days;  but  the  law  was  becoming,  what 
it  has  since  continued,  one  rof  the  ties  by  which  the 
middling  and  lower  ranks  in  England  are  bound  up 
with  the  aristocracy, — preventing  the  separation  of  the 
community  into  the  two  castes  of  noble  and  roturier, 
which  has  been  so  injurious  in  the  continental  states. 

Having  with  difficulty  obtained  an   adequate  edu- 
cation, soon  after  his  call  to  the  bar  he  got 
business  and  favour  by  singular  zeal  for  his    Hisprofes- 
clients     and    subserviency   to    his    patrons,    sionaipro- 

JTTCSS. 

While  of  less  than  ten  years'  standing  as 
a  barrister,  he  received  the  high  rank  of  King's  Ser- 
jeant, and  the  following  year  he  was  made  Attorney 
General,  and  was  knighted.    He  remained  in 
this  office  five  years,  during  which  time  he  had 
the  good  fortune  to  gain   the  personal  confidence  of 
Edward  III.,  who  was  in  the  habit  of  consulting  him 
respecting  the  most  expedient  manner  of  managing  the 
House  of  Commons,  and  obtaining  supplies  to  carry  on 
the   French   war.     In   1347   he  was   elevated   to   the 
office  of  Chief  Justice  of  the  King's  Bench,  and  he 

certain  proceedings  are  referred  to  in  an  a  les  plez  le  dit  vie*  piere  tenir  assignez." 

Inspeximus,  as  having  taken  place  in  — 2  Rot.  Parl.  427. 
the  17th  Edward  II.,  "  devantSire  Henry  *  Vol.  i.  ch.  xiv. 
de  Staunton  et  ses  compaignons  justices  f  Dug.  Chr.  Ser.  44. 


106  KEIGN  OF  EDWAED  HI.  CHAP.  H. 

was  for  a  time  the  King's  principal  adviser.  On  the 
A.U.  1347.  premature  death  of  Parnyng,  the  Great  Seal 
cwef  justice  was  Pu*  ^n^°  *ne  hands  of  men  of  little  ex- 
of  King^  Faience  in  business,  and  Lord  Chief  Justice 
Bench.  Thorpe  was  intrusted  with  the  domestic  go- 

vernment of  the  kingdom. 

At  the  parliament  held  on  the  King's  return  after 
A.D.  i34s.  the  glorious  battle  of  Cresci,  Sir  William 
His  addresses  Thorpe  was  employed,  in  place  of  the  Chan- 
Houses  of  cellor,  to  declare  the  causes  of  the  summons  ; 
and  he  very  dextrously  flattered  the  Com- 
mons by  telling  them  that  "  it  was  the  King's  special 
desire  to  be  advised  by  them  respecting  the  mode  of 
carrying  on  the  war,  and,  next,  how  the  peace  of  the 
nation  might  be  better  kept."* 

After  grave  deliberation,  the  Commons  answered 
that  "  they  were  not  able  to  advise  any  thing  respect- 
ing the  war,  and,  therefore,  desired  to  be  excused  as  to 
that  point, — being  willing  to  confirm  and  establish 
whatever  the  council  and  the  nobles  should  determine 
thereupon.  But  as  to  better  keeping  the  peace  of  the 
nation,  their  advice  was,  that  in  everji  county  there 
should  be  six  persons,  of  whom  two  to  be  the  greatest 
men  in  it,  two  knights,  and  two  men  of  the  law,  or 
more  or  less  as  need  should  be,  and  they  to  have  power 
and  commission  out  of  Chancery  to  hear  and  determine 
matters  concerning  the  peace.  And  because  they  had 
been  so  long  in  parliament,  to  their  great  cost  and 
damage,|  they  might  have  a  speedy  answer  to  their 
petitions,  in  order  to  get  soon  back  to  their  own 
homes."  On  Thorpe's  suggestion,  the  measure  so  recom- 
mended was  promised,  and  hence  our  Justices  of  the 
Peace  and  Courts  of  Quarter  Sessions.  But,  there  being 
still  an  unwillingness  to  vote  an  adequate  supply,  par- 

*  During  the  Plantagenet  reigns,  there     foreign,  as  well  as  domestic,  policy, 
are  frequent  instances  of  the  King  con-        t  The  session  had  lasted  above  a  fort- 
suiting  the  Commons  on  questions  of     night. 


A.D.  1349.  CHIEF  JUSTICE  THORPE.  107 

liament  was  dissolved,  and  great  pains  were  used  in 
influencing  the  elections  for  the  new  one  which  was 
called. 

When  it  met,  Chief  Justice  Thorpe  again  made  the 
speech  by  which  the  session  was  opened,  and 
tried  to  rouse  the  indignation  of  the  Com- 
mons by  asserting  that  "  the  French  had  broken 
the  conditions  of  the  truce  lately  granted  to  them  at 
Calais,  and  were  preparing  a  puissant  army  where- 
with to  invade  the  realm."  He  therefore  urged  that 
"  they  should  be  armed  betimes  against  the  worst 
which  might  happen,  and  see  that  this  war,  which  was 
undertaken  by  the  advice  and  consent  of  the  parlia- 
ment, might  have  a  prosperous  ending."  A  liberal 
supply  was  granted,  and  the  Chief  Justice  speedily, 
in  the  King's  name,  pronounced  the  prorogation.* 

Although   he   now   seemed   so   powerful  and   pros- 
perous, disgrace  and  ruin  were  hanging  over  him.    Par- 
liament again  met  in  the  following  year,  but,  instead 
of    opening    it    with    royal    pomp    in    the 
King's  name,  he   stood   at  the   bar  of  the   He  is 
House  of  Lords  as  a  criminal.     He  had  been   bribery, 
detected  in  several  gross  acts  of  bribery,  for 
which  he  was  now  impeached.     The  record  of  his  trial 
is  not  preserved,  and  we  have  no  particulars  of  the 
offences   laid  to   his   charge.      The  common 
tradition  is,  that  sentence  of  death  was  actu-   guilty  :°qu. 
ally  passed  upon  him ;  and  Oliver  St.  John,   wafsen-1**1 
in  his  famous  speech  on  ship-money,  in  the 
reign   of    Charles   I.,   says,  — "  Sir  William 
Thorpe,  Chief  Justice  of  the  King's  Bench  in  Edward 
III.'s  time,  having  of  five  persons  received  five  several 
bribes,  which  in  all  amounted  to  100Z.,  was  for  this 
alone  adjudged  to  be  hanged,  and  all  his  lauds  and  goods 
forfeited."     I  cannot  help  thinking,  however,  that  this 

»  1  Parl.  Hist.  115-118. 


108  KEIGN  OF  EDWARD  III.  CHAP.  II. 

is  an  exaggeration ;  no  treason  was  alleged  against  the 
Chief  Justice,  and,  as  mere  bribery  could 
not  be  construed  into  a  capital  offence  by 
any  known  law,  he  could  not  have  received  such  a 
sentence,  unless  under  an  act  of  attainder ;  and  there  is 
no  ascertained  instance  of  such  a  proceeding  before  the 
reign  of  Henry  VIII.  The  entry  in  the  Close  Eoll, 
recording  the  appointment  of  a  new  Chief  Justice, 
merely  says,  "  Will,  de  Thorpe,  Capitalis  Justic.  pro 
quibusdam  maleficiis,  &c.,  omnia  bona  terras,  &c.,  foris- 
fecit."*  It  is  possible  that  a  capital  sentence  might 
have  been  pronounced ;  [and  St.  John,  pretending  to 
have  seen  the  original  record,  says,  "  The  reason  of  this 
record  is  entered  in  the  Eoll  in  these  words,  '  Quia 
prsedictus  Willielmus  Thorpe,  qui  sacramentum  domini 
regis  erga  populum  suum  habuit  ad  custodiendum,  fre- 
git  malitiose,  false  et  rebelliter,  quantum  in  ipso  fuit,' 
because  that  he  as  much  as  in  him  lay  had  broken  the 
King's  oath  unto  the  people  which  the  King  had 
intrusted  him  withal.  The  next  year,  25  Edward  III., 
it  1  was  debated  in  parliament  whether  this  judgment 
was  legal  et  nullo  contradicente,  it  was  declared  to  be 
just  and  according  to  the  law ;  and  that  the  same  judg- 
ment may  be  given  in  time  to  come  upon  the  like  occa- 
sion. This  case  is  in  point  that  it  is  death  for  any 
judge  wittingly  to  break  his  oath  or  any  part  of  it." 
Yet  I  suspect  that  the  patriotic  orator,  inveighing 
against  the  Judges  who  had,  contrary  to  their  oaths, 
decided  for  the  legality  of  ship-money,  invented  the 
capital  sentence  upon  Thorpe,  whose  guilt  he  repre- 
sents as  comparatively  venial,  f  The  delinquent  cer- 
tainly did  not  suffer  the  last  penalty  of  the  law ;  but, 

*  Claus.  24  Ed.  III.,  in  dorso,  m.  4.  Parliament  passed  the  famous  Statute  of 

•f-  3  St.  Tr.  1273.    The  improbability  Treasons  (25   Ed.  III.  st.  5.  c.  2.),  by 

of  such  a  resolution  being  come  to  in  which    the    subject    is    so   anxiously 

the  25th  Ed.  III.  is  very  great  indeed,  guarded  against  such  vague  charges, 
•when  we  consider  that  in  this  very  year 


A.D.  1353.         CHIEF  JUSTICE  SHARESHALL.  1Q9 

being  degraded  from  his  office,  and  stripped  of  all  his 
ill-gotten  wealth,  he  languished  a  few  years,  and  died 
a  natural  death.* 

He  was  succeded  by  Sir  William  Shareshall,  a  Puisne 
Judge  of  the  Common  Pleas,t  of  whom  little    26th  Oct. 
is  known  except  that  he  was  employed  to    1351- 

,        ,  f  ,  -  r     •'  Sir  William 

make  the  opening  speech  to  the  two  Houses    Shareshall 
at  the  commencement  of  three  successive  par-   Of  'the  K\uga 
liaments.  Bench- 

On  the  first  occasion  he  enlarged  upon  the  internal 
state  of  the  country,  and  .upon  his  recommendation  were 
passed  the  famous  "Statute  of  Treasons,"  defining 
crimes  against  the  state,  and  the  "  Statute  of 

T     ,  „      -,          •  March,  1352. 

.Labourers,'    showing  our  ancestors   to   have 
been  then  under  the  delusion,  now  so  fatal  to  our  conti- 
nental neighbours,  that  the  "  organisation  of  labour  "  is 
a  fit  subject  for  legislation. 

In  the  following  year,  the  war  with  France  being 
renewed,  the  Chief  Justice  thus  tried  to  ex-  . 

.        '  His  addresses 

cite  indignation  and   to  obtain  supplies : —       to  both 

Houses  of 

"  You  are  assembled  to  consider  the  title  of  our  j^,1'^^*' 
Lord  the  King  to  the  crown  of  France.  You  know 
that  Philip  de  Valois  usurped  it  all  his  life;  and  not  only  so, 
"but  testified  his  enmity  to  England  by  stirring  up  war  against 
our  King  in  Gascony,  and  other  dominions  belonging  to  him, 
seizing  upon  his  rights  and  possessions,  and  doing  all  possible 
mischief  to  him  both  by  sea  and  land.  In  former  parliaments  this 
matter  has  been  propounded  to  you  on  behalf  of  the  King,  and  your 
advice  requested  what  was  best  to  be  done.  After  good  deliberation 
you  declared  that  you  knew  no  other  course  than  that  the  King, 
procuring  allies,  should  go  against  his  adversary  by  main  force, 
and  to  enable  him  to  do  this  you  promised  to  aid  him  with  body 

*  We  are  not  told  the  amount  of  his  same  budg :  and  for  his  livery  at  Christ- 
salary  as  Chief  Justice,  but  Dugdale  says,  mas,  half  a  cloth  likewise  colour  curt, 
"  Sir  William  Thorpe,  21  Ed.  I.,  then  one  hood  containing  xxxii  bellies  of  mi- 
Chief  Justice  of  the  King's  Bench,  was  never  helf  pur,  one  fur  of  minever  con- 
allowed  out  of  the  King's  wardrobe  at  taining  seven  tires  and  two  furs  of  silk, 
the  Feast  of  All  Saints,  for  his  Winter  each  ofseven  tires."— Or.  Jur.  p.  98. 
Robes,  half  a  cloth  colour  curt,  three        f  Dug-  Cher.  Ser. 
furs  of  white  bndg,  and  one  hood  of  the 


110  REIGN  OF  EICHAED  II.  CHAP.  II. 

and  goods.  Whereupon  he  made  alliances  with  several  foreign 
princes  and  powers,  and  by  the  help  of  the  good  people  of  England, 
and  the  blessing  of  God,  he  gained  great  victories,  yet  without 
being  able  to  obtain  a  lasting  peace.  The  King  has  assented  to 
truces,  but  his  adversary  deceitfully  broke  these,  actuated  by  im- 
placable malice  against  him  and  his  friends.  Now,  after  Philip's 
decease,  John,  his  son,  has  wrongfully  possessed  himself  of  the 
kingdom  of  France,  has  broken  the  existing  truce  both  in  Gas- 
cony  and  Brittany,  and  has  sent  to  Scotland  to  renew  the  ancient 
alliance  with  that  country,  tending  to  the  utter  subversion  and 
destruction  of  the  people  of  England.  Wherefore  the  King,  much 
thanking  you,  his  faithful  Commons,  for  the  aids  you  have 
already  given  him,  and  for  the  good  will  he  has  always  found  in 
you,  now  submits  the  matter  to  your  consideration,  and  prays 
that  you  will  take  time  to  consult  about  it,  and  that  at  sunrise 
on  the  morrow  you  will  come  to  the  Painted  Chamber  to  hear  if 
the  King  will  say  anything  further  to  you,  and  to  show  him 
your  grievances,  so  that  relief  may  be  given  to  them  at  this 
meeting.  Further,  I  charge  the  Commons,  in  the  King's  name, 
to  shorten  your  stay  in  town,  and  that,  for  the  quicker  despatch 
of  business,  you  immediately  make  choice  of  twenty-four  or 
thirty  persons  out  of  your  whole  number,  and  he  will  send  a 
number  of  Lords  to  confer  with  them  about  the  business  of  the 
nation." 

This  harangue  of  the  Chief  Justice  was  very  favour- 
ably received,  and  the  Commons  granted  to  the  King 
three  tenths  and  three  fifteenths,  "  in  order  to  supply 
his  great  necessities."* 

Chief  Justice  Shareshall's  final  political  performance 
was  in  April,  1355,  when,  on  the  first  day  of  the  par- 
liament, to  induce  the  Commons  vigorously  to  carry  on 
the  war,  he  expressed  the  King's  earnest  desire  to  make 
peace  on  honourable  terms ;  and  he  asked  them  "  if  they 
would  agree  to  a  peace,  if  it  could  be  had  by  treaty  ?  " 
They  answered,  "  that  what  should  be  agreeable  to  the 
King  and  his  council,  should  be  agreeable  to  them." 
Alarmed  by  their  pacific  tone,  and  trusting  to  their 
anti-Gallican  prejudices,  he  ventured  to  ask  them  "  if 
they  consented  to  a  perpetual  peace  if  it  might  be  had  ? " 

*  1  Part.  Hist.  119. 


A.D.  1366.          CHIEF  JUSTICE  CAVENDISH.  HI 

when,  to  his  great  annoyance,  "  they  all  unanimously 
cried  out  '  yea !  yea !' "    However,  a  supply  was  ob- 
tained ;  and,  the  French  King  becoming  insolent  from 
the  belief  that  Edward's  subjects,  tired  of 
the  war,   would  desert  him,   the  immortal    1356.    ' 
victory  of  Poictiers  followed. 

In  1358  the  office  of  Chief  Justice  of  the  King's  Bench 
was  again  vacant ;  but  whether  by  the  death  or  resigna- 
tion of  Shareshall,  I  have  been  unable  to 
ascertain.     He  was  succeeded  by  Sir  Henry   Greenenry 
Green,  of  whom  I  find  nothing  memorable. 
Then  came  the  famous  Sir  John  Knyvet,  who  after- 
wards held  the  Great  Seal,  and  of  whom  I   sir  John 
have  already  told  all  that  I  know.*  Knyyet- 

Next  we  come  to  a  Chief  Justice  whose  career  ex- 
cites considerable  interest :  Sir  John  de  Caven- 
dish, the  ancestor  of  the  Duke  of  Devonshire.   £ir  JohnJ?e 

Cavendish. 

The  original  name  of  the  family  was  Ger-   HIS  origin, 
non,  or  Gernum;   and  they  changed  it   on 
marrying  the  heiress  of  the  manor  of  Cavendish,  in 
the  county  of  Suffolk.     This,  however,  was  only  a  small 
possession;  and  John,  the  son  of  the  marriage,  being 
of  an  aspiring  nature,  and  seeing  that  in  peaceable 
times  promotion  was  to  be  gained  by  civil  rather  than 
military  service,  studied  the  law,  was  called  to  the  bar, 
and  soon  gained  the  first-rate  practice  as  an  advocate. 
Such  was  his  reputation,  that,  in  the  year  1366,  Ed- 
ward III.,  after  the  peace  of  Bretigni,  being  desirous 
of  making  himself  popular  by  good  judicial  appoint- 
ments, raised  John  de  Cavendish  to  the  office 
of  Chief  Justice  of  the  King's  Bench,  al-   A-D- 1366- 
though  he  had  not  filled  the  office  of  Attor-   cwef  ?ullice 
ney  or  Solicitor  General,  or  even  reached  the   ^nth King>s 
dignity  of  the  coif.     The  appointment  gave 
universal  satisfaction;   and,  with  De  Cavendish  pre- 

*  Lives  of  the  Chancellors,  vol.  i.  p.  266. 


112  REIGN  OF  RICHARD  II.  CHAP.  II. 

siding  over  the  common  law,  and  Knyvet  over  equity, 
it  was  admitted  that  justice  had  never  been  so  satis- 
factorily administered  in  Westminster  Hall. 

Lord  Chief  Justice  Cavendish  held  his  office  sixteen 
years,  being  reappointed  on  the  accession  of  Eichard  II. 
with  an  advance  in  his  salary  to  100  marks  a  year.  At 
last  he  fell  a  victim  to  the  brutality  of  the 
A.D.  1382.  populace  in  Wat  Tyler's  insurrection.  After 
death  FiTwat  that  rebel  chief  had  been  killed  in  Smithfield 
bfiiion.re~  by  Sir  William  Wai  worth,  there  was  a  rising 
in  Norfolk  and  Suffolk,  under  the  conduct 
of  a  leader  much  more  ferocious,  who  called  himself 
Jade  Straw,  and  incited  his  followers  to  more  frightful 
devastations  than  any  ever  committed  before  or  since 
in  a  jacquerie  movement  in  England,  where,  in  the  worst 
times,  some  respect  has  been  shown  to  the  influence  of 
station  and  the  dictates  of  humanity.  A  band  of  them, 
near  50,000  strong,  as  infuriated  as  the  canaille  of  Paris 
or  the  peasants  of  Gallicia  in  the  crisis  of  a  revolution, 
marched  to  the  Chief  Justice's  mansion  at  Cavendish, 
which  they  plundered  and  burned.  The  venerable 
Judge  made  his  escape,  but  was  taken  in  a  cottage  in 
the  neighbourhood.  Unmoved  by  his  grey  hairs,  they 
carried  him  in  procession  to  Bury  St.  Edmund's,  as  if 
to  open  the  assizes,  and,  after  he  had  been  subjected  to 
a  mock  trial  in  the  market-place,  he  was  sentenced  to 
die;  Jack  Straw's  Chief  Justice  magnanimously  de- 
claring, "  that,  in  respect  of  the  office  of  dignity  which 
his  brother  Cavendish  had  so  long  filled,  instead  of  being 
hanged,  he  should  be  beheaded."  It  was  resolved, 
however,  that  he  should  be  treated  with  insult  as  well 
as  with  cruelty;  for  his  head  being  immediately  struck 
off,  it  was  placed  in  the  pillory  amidst  the  savage  yells 
and  execrations  of  the  bystanders.* 

He  seems  to  have  been  moderate  in  his  accumulation 

*  Walsingham. 


A.D.  1382.          CHIEF  JUSTICE  CAVENDISH.  113 

of  wealth;  for  he  added  very  little  to  his  landed 
estates,  and  his  posterity  for  some  generations  re- 
mained in  obscurity.  The  next  eminent 
Cavendish  we  read  of  was  Sir  William,  ^j£>ts. 
lineally  descended  from  the  Chief  Justice's 
eldest  son,  John.  This  individual,  at  starting,  was 
not  very  high  in  office,  being  only  gentleman-usher  to 
Cardinal  Wolsey.  But  he  will  ever  be  remembered 
with  honour  for  his  affectionate  fidelity  to  his  master, 
and  for  his  inimitable  Life  of  him,  the  earliest  and 
one  of  the  very  best  specimens  of  English  biography. 
After  Wolsey's  fall,  he  was  taken  into  favour  by 
Henry  VIII.,  and  became  auditor  of  the  Court  of 
Augmentations,  Treasurer  of  the  Chamber,  and  a 
Privy  Councillor.  Taking  the  side  of  the  Eeforma- 
tion,  he  received  under  Edward  VI.  large  grants  of 
abbey  lands  in  the  county  of  Derby.  His  son  was 
ennobled  in  the  reign  of  James  I.  by  the  title  of  Baron 
Cavendish.  In  a  subsequent  generation,  there  were 
two  dukedoms  in  the  family:  Cavendish,  Duke  of 
Devonshire,  still  flourishing;  and  Cavendish,  Duke 
of  Newcastle,  which  became  extinct. 


VOL.    I. 


KEIGN  OF  RICHARD  II.  CHAP.  III. 


CHAPTER  III. 

CHIEF   JUSTICES  TILL  THE  DEATH   OF   SIR   WILLIAM 

GASCOYNE. 

WE  next  come  to  a  Chief  Justice  of  the  King's  Bench 
who  actually  suffered  the  last  penalty  of  the 
Tresiiian11'      ^aw — an(^  deservedly — in  the  regular  adminis- 
tration of  retributive  justice, — Sir  Robert  Tre- 
silian, — hanged  at  Tyburn. 

I  can  find  nothing  respecting  his  origin  or  education, 
except  a  doubtful  statement  that  he  was  of  a  Cornish 
family,  and  that  he  was  elected  a  fellow  of  Exeter 
College,  Oxford,  in  1354.*  As  far  as  I  know,  he  is 
the  first  and  last  of  his  name  to  be  found  in  our  judicial 
or  historical  records.  The  earliest  authentic  notice  of 
him  is  at  the  commencement  of  the  reign  of  Richard  II., 
H  is  ad  when  he  was  made  a  serjeant-at-law,  and 
Puisne  appointed  a  Puisne  Judge  of  the  Court  of 

the  King's  King's  Bench.f  The  probability  is,  that  he 
had  raised  himself  from  obscurity  by  a  mix- 
ture of  good  and  evil  arts.  He  showed  learning  and 
diligence  in  the  discharge  of  his  judicial  duties ;  but, 
instead  of  confining  himself  to  them,  he  mixed  deeply 
in  politics,  and  showed  a  determination,  by  intrigue, 
to  reach  power  and  distinction.  He  devoted  himself 
to  De  Vere,  the  favourite  of  the  young  King,  who,  to 
the  great  annoyance  of  the  princes  of  the  blood,  and 

*  Gentleman's   Magazine,   vol.  Ixiv.        f  Close  Roll,  1  Eich.  II.    Liberal,  ab 
p.  325.    I  suspect  that  he  is  assigned  to     anno  i.  usque  ult. — Ric.  II.  m.  15. 
Cornwall  on  the  authority  of— 
"  By  Tre,  Pol,  and  Pen, 
Yon  know  Cornish  men." 


A.D.  1382.  CHIEF  JUSTICE  TRESILIAX.  115 

the  body  of  the  nobility,  was  created  Duke  of  Ireland, 
was  vested  for  life  with  the  sovereignty  of  that  island, 
and  had  the  distribution  of  all  patronage  at  home.  By 
the  influence  of  this  minion,  Tresilian,  soon  after  the 
melancholy  end  of  Sir  John  Cavendish,  was 
appointed  Chief  Justice  of  the  King's  Bench ;  Chief  Justice 
and  he  was  sent  into  Essex  to  try  the  rebels.  Bench. 
The  King  accompanied  him.  It  is  said  that, 
as  they  were  journeying,  "  the  Essex  men,  in  a  body 
of  about  500,  addressed  themselves  barefoot  to  the  King 
for  mercy,  and  had  it  granted  upon  condition  that  they 
should  deliver  up  to  justice  the  chief  instruments  of 
stirring  up  the  rebellion;  which  being  accordingly 
done,  they  were  immediately  tried  and  hanged,  ten 
or  twelve  on  a  beam,  at  Chelmsford,  because  they  were 
too  many  to  be  executed  after  the  usual  manner,  which 
was  by  beheading."* 

,  Tresilian  now  gained  the  good  graces  of  Michael  de 
la  Pole,  the  Lord  Chancellor,  and  was  one  of  the  prin- 
cipal advisers  of  the  measures  of  the  Government,  being 
ever  ready  for  any  dirty  work  that  might  be  assigned 
to  him.  In  the  year  1385,  it  was  hoped  that  he  might 
have  got  rid,  by  an  illegal  sentence,  of  John  of  Gaunt, 
who  had  become  very  obnoxious  to  the  King's  favour- 
ites. "  For  these  cunning  flatterers,  having,  by  forged 
crimes  and  accusations,  incensed  the  King  against  him, 
contrived  to  have  him  suddenly  arrested,  and  tried 
before  Judge  Tresilian,  who,  being  perfectly  framed 
to  their  interests,  would  be  ready  enough,  upon  such 
evidence  as  they  should  produce,  to  condemn  him."f 
But  the  plot  got  wind,  and  the  Duke,  flying  to  Ponte- 
fract  Castle,  fortified  himself  there  till  his  retainers 
came  to  his  rescue. 

In  the  following  year,  when  there  was  a  change  of 
ministry  according  to  the  fashion  of  those  times,  Tre- 

*  Kennet,  i.  248.  t  H>-  '-^53. 

i  2 


116  KEIGN  OF  RICHARD  II.  CHAP.  III. 

silian  was  in  great  danger  of  being  included  in  the 
impeachment  which  proved  the  ruin  of  the 
enabte  °  Chancellor ;  but  he  escaped  by  an  intrigue 
to  trtamph  with-  the  victorious  party,  and  he  was  sua- 
sions? pected  of  having  secretly  suggested  the  com- 
mission signed  by  Richard,  and  confirmed  by 
Parliament,  under  which  the  whole  power  of  the  state 
was  transferred  to  a  commission  of  fourteen  Barons. 
He  remained  very  quiet  for  a  twelvemonth,  till  he 
thought  that  he  perceived  the  new  ministers  falling 
into  unpopularity,  and  he  then  advised  that  a  bold 
effort  should  be  made  to  crush  them.  Meeting  with 
encouragement,  he  secretly  left  London,  and,  being- 
joined  by  the  Duke  of  Ireland,  went  to  the  King,  who 
was  at  Nottingham  in  a  progress  through  the  midland 
counties.  He  then  undertook,  through  the  instrumen- 
25th  Aug.  tality  of  his  brother  Judges,  to  break  the 
commission,  and  to  restore  the  King  and  the 
favourite  to  the  authority  of  which  it  had  deprived 
them.  His  plan  was  immediately  adopted,  and  the 
Judges,  who  had  just  returned  from  the  summer  assizes, 
were  all  summoned  in  the  King's  name  to  Nottingham. 
On  their  arrival,  they  found  not  only  a  string  of 
questions,  but  answers,  prepared  by  Tresilian.  These 
he  himself  had  signed,  and  he  required  them  to  sign. 
Belknappe,  the  Chief  Justice  of  the  Common  Pleas,  and 
the  others,  demurred,  seeing  the  peril  to  which  they 
might  be  exposed  ;  but,  by  promises  and  threats,  they 
were  induced  to  acquiesce.  The  following  record  was 
accordingly  drawn  up,  that  copies  of  it  might  be  dis- 
tributed all  over  England : — 

"  Be  it  remembered,  that  on  the  25th  of  Aug.,  in  the  llth 

„,  year  of  the  reign  of  K.  Rich.  II.,  at  the  Castle  of 

The  opinion      \,      .      .  ,°Z  -j    i     j    j.i       -rr-         T>  i 

of  the  Judges    Nottingham,  before  our  said  lord  the  Kmg,  Kob. 

on  the  privi-    Tresilian,  chief  justice  of  England,  and  Rob.  Bel- 
Parliament,      knappe,  chief  justice  of  the  common  bench  of  onr 
said  lord  the  King,  John  Holt,  Roger  Ful thorp,  and 


A.D.  1387.  CHIEF  JUSTICE  TRESILIAN.  117 

Wm.  de  Burgh,  knights,  justices,  &c.  and  John  de  Lokton, 
the  King's  serjeant-at-law,  in  the  presence  of  the  lords  and 
other  witnesses  under-written,  were  personally  required  by 
our  said  lord  the  King,  on  the  faith  and  allegiance  wherein  to 
him  the  said  King  they  are  bound,  to  answer  faithfully  unto 
certain  questions  nere  under  specified,  and  to  them  then  and 
there  truly  recited,  and  upon  the  same  to  declare  the  law  accord- 
ing to  their  discretion,  viz. : — 

"  1.  It  was  demanded  of  them,  '  Whether  that  new  statute, 
ordinance,  and  commission,  made  and  published  in  the  last  parl. 
held  at  Westm.  be  not  derogatory  to  the  royalty  snd  prerogative 
of  our  said  lord  the  King  ? '  To  which  they  unanimously  an- 
swered that  the  same  are  derogatory  thereunto,  especially  because 
they  were  against  his  will. 

"  2.  '  How  those  are  to  be  punished  who  procured  that  statute 
and  commission  ? ' — A.  That  they  were  to  be  punished  with  death, 
except  the  King  would  pardon  them. 

"  3.  '  How  those  are  to  be  punished  who  moved  the  King  to 
consent  to  the  making  of  the  said  statute  ? ' — A.  That  they  ought 
to  lose  their  lives  unless  his  Maj.  would  pardon  them. 

"  4.  '  What  punishment  they  deserved  who  compelled,  straight- 
ened, or  necessitated  the  King  to  consent  to  the  making  of  the 
said  statute  and  commission  ? ' — A.  That  they  ought  to  suffer  as 
traitors. 

"  5.  '  How  those  are  to  be  punished  who  hindered  the  King 
from  exercising  those  things  which  appertain  to  his  royalty  and 
prerogative  ? ' — A.  That  they  are  to  be  punished  as  traitors. 

"  6.  '  Whether  after  in  a  parl.  assembled,  the  affairs  of  the 
kingdom,  and  the  cause  of  calling  that  parl.  are  by  the  King's 
command  declared,  and  certain  articles  limited  by  the  King  upon 
which  the  lords  and  commons  in  that  parl.  ought  to  proceed ;  if 
yet  the  said  lords  and  commons  will  proceed  altogether  upon 
other  articles  and  affairs,  and  not  at  all  upon  those  limited  and 
proposed  to  them  by  the  King,  until  the  King  shall  have  first 
answered  them  upon  the  articles  and  matters  so  by  them  started 
and  expressed,  although  the  King's  command  be  to  the  contrary ; 
whether  in  such  case  the  King  ought  not  to  have  the  governance 
of  the  parl.  and  effectually  overrule  them,  so  as  that  they  ought 
to  proceed  first  on  the  matters  proposed  by  the  King  :  or  whe- 
ther, on  the  contrary,  the  lords  and  commons  ought  first  to  have 
the  King's  answer  upon  their  proposals  before  they  proceeded 
further?' — A.  That  the  King  in  that  behalf  has  the  governance, 
and  may  appoint  what  shall  be  first  handled,  and  so  gradually 
what  next  in  all  matters  to  be  treated  of  in  parl.,  even  to  the  end 
of  the  parl. ;  and  if  any  act  contrary  to  the  King's  pleasure  made 
known  therein,  they  are  to  be  punished  as  traitors. 


118  REIGN  OF  RICHARD  II.  CHAP.  III. 

"  7.  '  Whether  the  King,  whenever  he  pleases,  can  dissolve  the 
parl.  and  command  the  lords  and  commons  to  depart  from 
thence,  or  not  ? ' — A.  That  he  can ;  and  if  any  one  shall  then 
proceed  in  parl.  against  the  King's  will,  he  is  to  be  punished  as 
a  traitor. 

"  8.  '  Since  the  King  can,  whenever  he  pleases,  remove  any  of 
his  judges  and  officers,  and  justify  or  punish  them  for  their 
offences  ;  whether  the  lords  and  commons  can,  without  the  will 
of  the  King,  impeach  in  parl.  any  of  the  said  judges  or  officers 
for  any  of  their  offences  ? ' — A.  That  they  cannot ;  and  if  any  one 
should  do  so,  he  is  to  be  punished  as  a  traitor. 

"  9. '  How  is  he  to  be  punished  who  moved  in  parl.  that  the 
statute  should  be  sent  for  whereby  Edw.  II.  (the  King's  great- 
grandfather) was  proceeded  against  and  deposed  in  parl. ;  by 
means  of  sending  for  and  imposing  which  statute,  the  said  late 
statute,  ordinance,  and  commission  were  devised  and  brought 
forth  in  parl.  ?  ' — A.  That  as  well  he  that  so  moved,  as  he  who 
by  pretence  of  that  motion  carried  the  said  statute  to  the  parl., 
are  traitors  and  criminals  to  be  punished  with  death. 

"10. 'Whether  the  judgment  given  in  the  last  parl.  held 
at  Westm.  against  Mich,  de  la  Pole,  earl  of  Suffolk,  was  erro- 
neous and  revocable,  or  not  ? ' — A.  That  if  that  judgment  were 
now  to  be  given,  they  would  not  give  it ;  because  it  seems  to 
them  that  the  said  judgment  is  revocable,  as  being  erroneous  in 
every  part  of  it. 

"  In  testimony  of  all  which,  the  judges  and  Serjeants  afore- 
said, to  these  presents  have  put  their  seals  in  the  presence  of 
the  rev.  lords,  Alex.  abp.  of  York,  Rob.  abp.  of  Dublin,  John 
bp.  of  Durham,  Tho.  bp.  of  Chichester,  and  John  bp.  of  Bangor, 
Rob.  duke  of  Ireland,  Mich,  earl  of  Suffolk,  John  Rypon,  clerk, 
and  John  Blake,  esq. ;  given  the  place,  day,  month,  and  year 
aforesaid." 

Tresilian  exultingly  thought  that  he  had  not  only 
got  rid  of  the  obnoxious  Commission,  but  that  he  had 
annihilated  the  power  of  Parliament  by  the  destruction 
of  parliamentary  privilege,  and  by  making  the  pro- 
ceedings of  the  two  Houses  entirely  dependent  on 
the  caprice  of  the  Sovereign. 

He  then  attended  Eichard  to  London,  where  the 
opinion  of  the  Judges  against  the  legality  of  the  Com- 
mission was  proclaimed  to  the  citizens  at  the  Guild- 
hall ;  and  all  who  should  act  under  it  were  declared 


A.D.  1387.  CHIEF  JUSTICE  TKESILIAN.  119 

traitors.     A  resolution  was  formed  to  arrest  the  most 
obnoxious  of  the  opposite  faction,  and  to  send    , 

»*  .  Measures 

them  to  take  their  trials  before  the  Judges  prompted  by 
who  had  already  committed  themselves  on  the  against  the 
question  of  law ;  and,  under  the  guidance 
of  Tresilian,  a  bill  of  indictment  was  actually  prepared 
against  them  for  a  conspiracy  to  destroy  the  royal 
prerogative.  Thomas  Ush,  the  under  sheriff,  promised 
to  pack  a  jury  to  convict  them  ;  Sir  Nicholas  Brambre, 
who  had  been  thrice  Lord  Mayor,  undertook  to  secure 
the  fidelity  of  the  citizens ; '  and  all  the  City  Companies 
swore  that  they  would  live  and  die  with  the  King, 
and  fight  against  his  enemies  to  their  last  breath. 
Arundel,  Bishop  of  Ely,  was  still  Chancellor;  but 
Tresilian  considered  that  the  Great  Seal  was  now 
within  his  own  grasp,  and,  after  the  recent  examples, 
in  Parnynge  and  Knyvet,  of  Chief  Justices  becoming 
Chancellors,  he  anticipated  no  obstacle  to  his  eleva- 
tion. 

At  such  a  slow  pace  did  news  travel  in  those  days, 
that,  on  the  night  of  the  10th  of  November,  Richard 
and  his  Chief  Justice  went  to  bed  thinking  that  their 
enemies  were  annihilated,  and  next  morning  they  were 
awoke  by  the  intelligence  that  a  large  force,  under  the 
Duke  of  Gloucester  and  the  Earls  of  Arundel 
and  Nottingham,  was  encamped  at  Highgate.    J^  Nov> 
The  confederate  Lords,  hearing  of  the  pro- 
ceedings at  Nottingham,  had  immediately  rushed  to 
arms,  and  followed  Richard  towards  London,  with  an 
army  of  40,000  men.     Tlte  walls  of  London    The  Barong 
were   sufficient   to  repel  a  sudden   assault:    gain  the 

j  i  i  x-        f     v    j     j.1.          i        c    ascendency. 

and  a  royal  proclamation  forbade  the  sale  of 
provisions  to  the  rebels, — in  the  hope  that   famine 
might  disperse  them.     But,  marching  round  by  Hack- 
ney, they  approached  Aldgate,  and  they  appeared  so 
formidable,  that  a  treaty  was  entered  into,  according 


120  KEIGN  OF  RICHARD  II.  CHAP.  III. 

to  which  they  were  to  be  supplied  with  all  necessaries, 
on  payment  of  a  just  price,  and  deputies  from  them 
were  to  have  safe  conduct  through  the  City  on  their 
way  to  the  King  at  Westminster.  Eichard  himself 
agreed  that  on  the  following  Sunday  he  would  re- 
ceive the  deputies,  sitting  on  his  throne  in  West- 
minster Hall. 

At  the  appointed  hour  he  was  ready  to  receive  them, 
but  they  did  not  arrive,  and  he  asked  "  how  it  fortuned 
that  they  kept  not  their  promise  ?  "  Being  answered, 
"  Because  there  is  an  ambush  of  a  thousand  armed  men 
or  more  in  a  place  called  the  Mews,  contrary  to  cove- 
nant ;  and  therefore  they  neither  come,  nor  hold  you 
faithful  to  your  word," — he  said,  with  an  oath,  that 
"  he  knew  of  no  such  thing,"  and  he  ordered  the 
sheriffs  of  London  to  go  thither  and  kill  all  they  could 
lay  hands  on.  The  truth  was,  that  Sir  Nicholas 
Brambre,  in  concert  with  Tresilian,  had  planted  an 
ambush  near  Charing  Cross,  to  assassinate  the  Lords 
as  they  passed  ;  but,  in  obedience  to  the  King's  order, 
the  men  were  sent  back  to  the  City  of  London.  The 
Lords,  at  last,  reached  Westminster,  with  a  gallant 
troop  of  gentlemen ;  and  as  soon  as  they  had  entered 
the  great  hall,  and  saw  the  King  in  his  royal  robes 
sitting  on  the  throne,  with  the  crown  on  his  head  and 
the  sceptre  in  his  hand,  they  made  obeisance  three 
times  as  they  advanced,  and  when  they  reached  the 
steps  of  the  throne  they  knelt  down  before  him  with 
all  seeming  humility.  He,  feigning  to  be  pleased  to 
see  them,  rose  and  took  each  of  them  by  the  hand,  and 
said,  "  he  would  hear  their  plaint,  as  he  was  desirous 
to  render  justice  to  all  his  subjects."  There- 
prosTCuted  upon  they  said,  "  Most  dread  Sovereign, 
treaswl!  we  appeal  of  high  treason  Eobert  Tresilian, 
that  false  justice,  Nicholas  Brambre,  that 
disloyal  knight ;  the  Archbishop,  of  York ;  the  Duke 


A.D.  1389.  CHIEF  JUSTICE  TRESILIAN.  121 

of  Ireland  ;  and  the  Earl  of  Suffolk :" — and,  to  prove 
their  accusation  to  be  true,  they  threw  down  their 
gauntlets,  protesting,  by  their  oaths,  that  they  were 
ready  to  prosecute  it  to  battle.  "  Nay,"  said  the  King, 
"  not  so ;  but  in  the  next  Parliament  (which  we  do 
appoint  beforehand  to  begin  the  morrow  after  the  Pu- 
rification of  Our  Lady),  both  they  and  you,  appearing, 
shall  receive  according  to  law  what  law  doth  require, 
and  right  shall  be  done." 

It  being  apparent  that  the  confederate  Lords  had  a 
complete  ascendency,  the -accused  parties  fled.  The 
Duke  of  Ireland  and  Sir  Nicholas  Brambre  made  an 
ineffectual  attempt  to  rally  a  military  force ;  but  Chief 
Justice  Tresilian  disguised  himself,  and  remained  in 
concealment  till  he  was  discovered,  after  being  attainted 
in  the  manner  to  be  hereafter  described. 

The  elections  for  the  new  Parliament  ran  strongly 
in  favour  of  the  confederate  Lords ;  and,  on   3rd  peb> 
the  day  appointed  for  its  meeting,  an  order   1389> 
was  issued  under  their  sanction  for  taking  into  cus- 
tody all  the  Judges  who  had  signed  the  Opinion  at 
Nottingham.     They  were  all  arrested  while 

,,  ....  ,,       ,          ,  ,   m  •    P    He  absconds. 

they  were  sitting  on  the  bench,  except  Chief 
Justice  Tresilian ;  but  he  was  nowhere  to  be  found. 

When  the  members  of  both  Houses  had  assembled 
in  Westminster  Hall,  and  the  King  had  taken  his 
place  on  the  throne,  the  five  Lords,  who  were  called 
APPELLANTS, 

"  Entered  in  costly  robes,  leading  one  another  hand  in  hand, 
an    innumerable    company   following    them,    and, 
approaching  the  King,   they  all   with  submissive    Proceedings 
gestures  reverenced  him.     Then  rising,  they  declared    ment.r ' 
their  appellation  by  the  mouth  of  their  speaker,  who 
said,  '  Behold  the  Duke  of  Gloucester  comes  to  purge  himself  of 
treasons  which  are  laid  to  his  charge  by  the  conspirators.'    To 
•whom  the  Lord  Chancellor,  by  the  King's  command,  answered, 
'  My  Lord  Duke,  the  King  conceiveth  so  honourably  of  you, 


122  REIGN  OF  RICHARD  II.  CHAP.  III. 

that  he  cannot  be  induced  to  believe  that  you,  who  are  of 
kindred  to  him,  should  attempt  any  treason  against  him.'  The 
Duke  with  his  four  companions,  on  their  knees,  humbly  gave 
thanks  to  the  King  for  his  gracious  opinion  of  their  fidelity. 
And  now,  as  a  prelude  to  what  was  going  to  be  acted,  each  of 
the  Prelates,  Lords,  and  Commons*  then  assembled  had  the 
following  oath  administered  to  them  upon  the  rood  or  cross  of 
Canterbury  in  full  parliament :  '  You  shall  swear  that  you  will, 
keep,  and  cause  to  be  kept,  the  good  peace,  quiet,  and  tranquil- 
lity of  the  kingdom ;  and  if  any  will  do  to  the  contrary  thereof, 
you  shall  oppose  and  disturb  him  to  the  utmost  of  your  power ; 
and  if  any  will  do  any  thing  against  the  bodies  of  the  five  Lords, 
you  shall  stand  with  them  to  the  end  of  this  present  parliament, 
and  maintain  and  support  them  with  all  your  power,  to  live  and 
die  with  them  against  all  men,  no  person  or  thing  excepted, 
saving  always  your  legiance  to  the  King  and  the  prerogatives  of 
his  crown,  according  to  the  laws  and  good  customs  of  the  realm.'  "f 

Written  articles  to  the  number  of  thirty-nine  were 
then  exhibited  by  the  appellants  against  the  appellees. 
The  other  four  are  alleged  to  have  committed  the 
various  acts  of  treason  charged  upon  them,  "  by  the 
assent  and  counsel  of  Robert  Tresilian,  that  false  Jus- 
tice ; "  and  in  most  of  the  articles  he  bears  the  brunt  of 
the  accusation.  Sir  Nicholas  Brambre  alone  was  in 
custody  ;  and  the  others  not  appearing  when  solemnly 
called,  their  default  was  recorded,  and  the  Lords  took 
time  to  consider  whether  the  impeachment  was  duly 
instituted,  and  whether  the  facts  stated  in  the  articles 
amounted  to  high  treason.  Ten  days  there- 

Feb  13 

after,  judgment  was  given  "  that  the  im- 
peachment was  duly  instituted,  and  that  the  facts 
stated  in  several  of  the  articles  amounted  to  high 
treason."  Thereupon,  the  prelates  having  withdrawn, 
that  they  might  not  mix  in  an  affair  of  blood,  sentence 

*  It  will  be  observed,  that  although  being  the  judges;   but  all    appeals  of 

the  Commons  took  this  oath  they  had  treason  in  Parliament  were  taken  away 

nothing  to  do  with  the  trial,  either  as  by  1  Hen.  IV.  c.  14. — See  Bract.  119  a; 

accusers  or  judges.    At  this  time  there  3  Inst.  132. 

might  be  an  appeal  of  treason  in  Par-  f  1  St.  Tr.  89-101;  1  Parl.  Hist.  196- 

liament  by  private  persons,  the   Lords  210. 


A.D.  1389.  CHIEF  JUSTICE  TEESILIAN.  123 

was  pronounced,  "  that  Sir  Eobert  Tresilian,  the  Duke 
of  Ireland,  the  Archbishop  of  York,  and  Earl   Tresilian 
of  Suffolk,  should  be  drawn  and  hanged  as   attaint«i- 
traitors  and  enemies  to  the  King  and  kingdom,  and 
that  their  heirs  should  be  disinherited  for  ever,  and 
that  their  lands  and  tenements,  goods  and  chattels, 
should  be  forfeited  to  the  King." 

Tresilian  might  have  avoided  the  execution  of  his 
sentence,  had  it  not  been  for  the  strangest  infatuation 
related  of  any  human  being  possessing  the  use  of  reason. 
Instead  of  flying  to  a  distance,  like  the  Duke,  the 
Archbishop,  and  the  Earl,  none  of  whom  suffered, — 
although  his  features  were  necessarily  well 
known,  he  had  come  to  the  neighbourhood  He  comes  to 

f  -ITT     j  TT   n  J.-L      £      L    3  £  j.1.        Westminster 

oi  Westminster  Hall  on  the  first  day  ol  the    in  disguise. 
session  of  parliament ;  and,  even   after  his 
own  attainder  had  been  published,  trusting  to  his  dis- 
guise, his  curiosity  induced  him  to  remain  to  watch 
the  fate  of  his  associate,  Sir  Nicholas  Brambre. 

This  chivalrous  citizen,  who  had  been  knighted  for 
the  bravery  he  had  displayed  in  assisting 
Sir  William  Walworth  to  kill  Wat  Tyler 
and  to  put  down  the  rebellion,  having  been  appre- 
hended and  lodged  in  the  Tower  of  London,  was  now 
produced  by  the  constable  of  the  Tower  to  take  his 
trial.  He  asked  for  further  time  to  advise  with  his 
counsel,  but  was  ordered  forthwith  to  answer  to  every 
point  in  the  articles  of  treason  contained.  Thereupon 
he  exclaimed,  "Whoever  hath  branded  me  with  this 
ignominious  mark,  with  him  I  am  ready  to  fight  in  the 
lists  to  maintain  my  innocency  whenever  the  King 
shall  appoint !  "  "  This,"  says  a  chronicler,  "  he  spake 
with  such  a  fury,  that  his  eyes  sparkled  with  rage,  and 
he  breathed  as  if  an  Etna  lay  hid  in  his  breast ;  choosing 
rather  to  die  gloriously  in  the  field,  than  disgracefully 
on  a  gibbet." 


124  EEIGN  OF  RICHARD  II.  CHAP.  III. 

The  appellants  said  "  they  would  readily  accept  of 
the  combat,"  and,  flinging  down  their  gages 
before  the  King,  added,  "  we  will  prove  these 
articles  to  be  true  to  thy  head,  most  damnable  traitor!" 
But  the  Lords  resolved,  "  that  battle  did  not  lie  in  this 
case ;  and  that  they  would  examine  the  articles  with 
the  proofs  to  support  them,  and  consider  what  judg- 
ment to  give,  to  the  advantage  and  profit  of  the  King 
and  kingdom,  and  as  they  would  answer  before  God." 

They  adjourned  for  two  days,  and  met  again,  when 
a  number  of  London  citizens  appeared  to  give  evidence 
against  Brambre.  For  the  benefit  of  the  reader,  the 
chronicler  I  have  before  quoted  shall  continue  the 
story : — 

"  Before  they  could  proceed  with  his  trial,  they  were  inter- 
rupted by  unfortunate  Tresilian,  who  being  got  upon 
He  is  dis-  the  top  of  an  apothecary's  house  adjoining  to  the 
prebend'edlT  palace,  and  descended  into  a  gutter  to  look  about 
and  executed,  him  and  observe  who  went  into  the  palace,  was 
discovered  by  certain  of  the  peers,  who  presently  sent 
some  of  the  guard  to  apprehend  him ;  who  entering  into  the 
house  where  he  was,  and  having  spent  long  time  in  vain  in 
looking  for  him,  at  length  one  of  the  guard  stept  to  the  master  of 
the  house,  and  taking  him  by  the  shoulder,  with  his  dagger 
dr.awn,  said  thus,  '  Show  us  where  thou  hast  hid  Tresilian,  or 
else  resolve  thy  days  are  accomplished.'  The  master,  trembling 
and  ready  to  yield  up  the  ghost  for  fear,  answered,  '  Yonder  is 
the  place  where  he  lies  ;'  and  showed  him  a  round  table  covered 
with  branches  of  bays,  under  which  Tresilian  lay  close  covered. 
When  they  had  found  him  they  drew  him  out  by  the  heels, 
wondering  to  see  him  wear  his  hair  and  beard  overgrown,  with 
old  clouted  shoes  and  patched  hose,  more  like  a  miserable  poor 
beggar  than  a  judge.  When  this  came  to  the  ears  of  the  peers, 
the  five  appellants  suddenly  rose  up,  and,  going  to  the  gate  of 
the  hall,  they  met  the  guard  leading  Tresilian  bound,  crying,  as 
they  came,  'We  have  him,  we  have  him.'  Tresilian,  being 
come  into  the  hall,  was  asked  '  what  he  could  say  for  himself 
why  execution  should  not  be  done  according  to  the  judgment 
passed  upon  him  for  his  treasons  so  often  committed  ? '  but  he 
became  as  one  struck  dumb,  he  had  nothing  to  say,  and  his  heart 
was  hardened  to  the  very  last,  so  that  he  would  not  confess 


A.D.  1389.  CHIEF  JUSTICE  TRESILIAN.  125 

himself  guilty  of  any  thing.  Whereupon  he  was  without  delay 
led  to  the  Tower,  that  he  might  suffer  the  sentence  passed 
against  him :  his  wife  and  his  children  did  with  many  tears 
accompany  him  to  the  Tower ;  but  his  wife  was  so  overcome 
with  grief,  that  she  fell  down  in  a  swoon  as  if  she  had  been  dead. 
Immediately  Tresilian  is  put  upon  an  hurdle,  and  drawn  through 
the  streets  of  the  city,  with  a  wonderful  concourse  of  people 
following  him.  At  every  furlong's  end  he  was  suffered  to  stop, 
that  he  might  rest  himself,  and  to  see  if  he  would  confess  or 
acknowledge  any  thing ;  but  what  he  said  to  the  friar,  his  con- 
fessor, is  not  known.  When  he  came  to  the  place  of  execution 
he  would  not  climb  the  ladder,  until  such  time  as  being  soundly 
beaten  with  bats  and  staves  he  was  forced  to  go  up ;  and,  when 
he  was  up,  he  said,  '  So  long  as  I  do  wear  anything  upon  me,  I 
shall  not  die ;'  wherefore  the  executioner  stript  him,  and  found 
certain'  images  painted  like  to  the  signs  of  the  heavens,  and  the 
head  of  a  devil  painted,  and  the  names  of  many  of  the  devils 
wrote  in  parchment ;  these  being  taken  away  he  was  hanged  up 
naked,  and  after  he  had  hanged  some  time,  that  the  spectators 
should  be  sure  he  was  dead,  they  cut  his  throat,  and  because  the 
night  approached  they  let  him  hang  till  the  next  morning, 
and  then  his  wife,  having  obtained  a  licence  of  the  King,  took 
down  his  body,  and  carried  it  to  the  Gray-Friars,  where  it  was 
buried."  * 

I  add  an  account  of  this  scene  from  Froissart,  which 
is  still  more  interesting  : — 

"  Understanding  that  the  King's  uncles  and  the  new  Council 
at  England  would  keep  a  secret  parliament  at  Westminster,  he 
(Tresilian)  thought  to  go  and  lie  there  to  learn  what  should  be 
done ;  and  so  he  came  and  lodged  at  Westminster  the  same  day 
their  Council  began,  and  lodged  at  an  ale-house  right  over 
against  the  palace  gate,  and  there  he  was  in  a  chamber  looking 
out  of  a  window  down  into  the  court,  and  there  he  might  see 
them  that  went  in  and  out  to  the  Council,  but  none  knew  him 
because  of  his  apparel.  At  last,  on  a  day,  a  squire  of  the  Duke 
of  Gloucester's  knew  him,  for  he  had  oftentimes  been  in  his 
company  :  and  as  soon  as  Sir  Robert  Tresilian  saw  him  he  knew 
him  well,  and  withdrew  himself  out  of  the  window.  The  squire 
had  suspicion  thereof,  and  said  to  himself,  'methinks  I  see 
yonder  Sir  Robert  Tresilian ; '  and,  to  the  intent  to  know  the 
truth,  he  entered  into  the  lodging,  and  said  to  the  wife,  '  Dame, 
who  is  that  that  is  above  in  the  chamber  ?  is  he  alone,  or  with 

*  iSt.  Tr.  115-118. 


126  EEIGN  OF  EICHAED  II.  CHAP.  III. 

company  ? '  '  Sir,'  quoth  she,  '  I  cannot  shew  you,  but  he  has 
been  here  a  long  space.'  Therewith  the  squire  went  up  the 
better  to  advise  him,  and  saluted  him,  and  saw  well  it  was  true ; 
but  he  feigned  himself,  and  turned  his  tale,  and  said,  '  God  save 
you,  good  man,  I  pray  you  be  not  discontented,  for  I  took  you 
for  a  farmer  of  mine  in  Essex,  for  you  are  like  him.'  '  Sir,'  quoth 
he,  '  I  am  of  Kent,  and  a  farmer  of  Sir  John  of  Hollands,  and 
there  be  men  of  the  Bishop  of  Canterbury's  that  would  do  me 
wrong ;  and  I  am  come  hither  to  complain  to  the  Council.' 
'  Well,'  quoth  the  squire,  '  if  you  come  into  the  palace  I  will 
help  to  make  your  way,  that  you  shall  speak  with  the  Lords  of 
the  Council.'  '  Sir,  I  thank  you,'  quoth  he,  '  and  I  shall  not 
refuse  your  aid.'  Then  the  squire  called  for  a  pot  of  ale,  and 
drank  with  him,  and  paid  for  it,  and  bade  him  farewell,  and 
departed ;  and  never  ceased  till  he  came  to  the  Council  Chamber 
door,  and  called  the  usher  to  open  the  door.  Then  the  usher 
demanded  what  he  would,  because  the  Lords  were  in  Council ; 
he  answered  and  said,  '  I  would  speak  with  my  lord  and  master 
the  Duke  of  Gloucester,  for  a  matter  that  right  near  toucheth 
him  and  all  the  Council.'  Then  the  usher  let  him  in,  and  when 
he  came  before  his  master  he  said,  '  Sir,  I  have  brought  you  great 
tidings.'  '  What  be  they  ? '  quoth  the  Duke.  '  Sir,'  quoth  the 
squire,  '  I  will  speak  aloud,  for  it  toucheth  you  and  all  my  lords 
here  present.  I  have  seen  Sir  Robert  Tresilian  disguised  in  a 
vil Iain's  habit,  in  an  alehouse  here  without  the  gate.'  '  Tresilian  ? ' 
quoth  the  Duke.  '  Yea,  truly,  sir,'  quoth  the  squire,  '  you  shall 
have  him  ere  you  go  to  dinner,  if  you  please.'  '  I  am  content,' 
quoth  the  Duke,  '  and  he  shall  show  us  some  news  of  his  master 
the  Duke  of  Ireland ;  go  thy  way  and  fetch  him,  but  look  that 
thou  be  strong  enough  so  to  do  that  thou  fail  not.'  The  squire 
went  forth  and  took  four  Serjeants  with  him,  and  said, '  Sirs, 
follow  me  afar  off;  and  as  soon  as  I  make  to  you  a  sign,  and  that 
I  lay  my  hand  on  a  man  that  I  go  for,  take  him  and  let  him  not 
escape.'  Therewith  the  squire  entered  into  the  house  where 
Tresilian  was,  and  went  up  into  the  chamber ;  and  as  soon  as  he 
saw  him,  he  said,  '  Tresilian,  you  are  come  into  this  country  on 
no  goodness  ;  my  lord,  the  Duke  of  Gloucester,  commandeth  that 
you  come  and  speak  with  him.'  The  knight  would  have 
excused  himself,  and  said, '  I  am  not  Tresilian,  I  am  a  farmer  of 
Sir  John  of  Hollands.'  '  Nay,  nay,'  quoth  the  squire,  '  your  body 
is  Tresilian,  but  your  habit  is  not;'  and  therewith  he  made 
tokens  to  the  Serjeants  that  they  should  take  him.  Then  they 
went  up  into  the  chamber  and  took  him,  and  so  brought  him  to 
the  palace.  Of  his  taking,  the  Duke  of  Gloucester  was  right 
joyful,  and  would  see  him,  and  when  he  was  in  his  presence  the 
Duke  said,  '  Tresilian,  what  thing  makes  you  here  in  this 


A.D.  1389.  CHIEF  JUSTICE  TRESILIAN.  127 

country  ?  where  is  the  King  ?  where  left  you  him  ? '  Tresilian, 
when  he  saw  that  he  was  so  well  known,  and  that  none  excim- 
tion  could  avail  him,  said,  '  Sir,  the  King  sent  me  hither  to  learn 
tidings,  and  he  is  at  Bristol,  and  hunteth  along  the  river  Severn.' 
'  What,'  quoth  the  Duke,  '  you  are  not  come  like  a  wise  man,  but 
rather  like  a  spy  ;  if  you  would  have  come  to  have  learnt  tidings, 
you  should  have  come  in  the  state  of  a  knight.'  '  Sir,'  quoth 
Tresilian,  '  if  I  have  trespassed,  I  ask  pardon,  for  I  was  caused 
this  to  do.'  '  Well,  sir,'  quoth  the  Duke,  '  and  where  is  your 
master  the  Duke  of  Ireland  ? '  '  Sir,'  quoth  he,  '  of  a  truth  he  is 
with  the  King.'  '  It  is  showed  us  here,'  quoth  the  Duke,  '  that 
he  assembleth  much  people,  and  the  King  for  him  ;  whither  will 
he  lead  that  people  ? '  '  Sir,'  quoth  he,  '  it  is  to  go  into  Ireland.' 
'  Into  Ireland ! '  quoth  the  Duke  of  Gloucester.  '  Yea,  sir,  truly,' 
quoth  Tresilian :  and  then  the  Duke  studied  a  little,  and  said, 
4  Ah,  Tresilian,  Tresilian !  your  business  is  neither  fair  nor  good ; 
you  have  done  great  folly  to  come  into  this  country,  for  you  are 
not  beloved  here,  and  that  shall  well  be  seen  ;  you,  and  such 
other  of  your  affinity,  have  done  great  displeasure  to  my  brother 
and  me,  and  you  have  troubled  to  your  power,  and  with  your 
counsel,  the  King,  and  divers  others,  nobles  of  the  realm  ;  also 
you  have  moved  certain  good  towns  against  us.  Now  is  the  "day 
come  that  you  shall  have  your  payment ;  for  he  that  doth  well, 
by  reason  shall  find  it.  Think  on  your  business,  for  I  will 
neither  eat  nor  drink  till  you  be  dead.'  That  word  greatly 
abashed  Tresilian ;  he  would  fain  have  excused  himself  with  fair 
language,  in  lowly  humbling  himself,  but  he  could  do  nothing  to 
appease  the  Duke.  So  Sir  Robert  Tresilian  was  delivered  to  the 
hangman,  and  so  led  out  of  Westminster,  and  there  beheaded, 
and  after  hanged  on  a  gibbet."  * 

Considering  the  violence  of  the  times,  Tresilian's 
conviction  and  execution  cannot  be  regarded   HIS  cha- 
as  raising  a  strong  presumption  against  him  :    racter- 
but  there  seems  little  doubt  that  he  flattered  the  vices 
of  the  unhappy  Kichard ;  and  historians  agree,  that,  in 
prosecuting  his  personal  aggrandisement,  he  was  utterly 
regardless  of  law  and  liberty  .f    He  died  unpitied,  and, 

*  Frols.  part  2.  fol.  110.  took,  if  the  King  should  cause  the  Duke 

t  Thus   Guthrie   says    (A.D.    1384),  to  be  arrested,  to  proceed  against  him  as 

"  Richard  was  encouraged  in  hisjealousy  a  common  traitor."— Vol.  11.  p.  326. 

of  the  Duke  of  Lancaster  both  by  the  ••  Tresilian  had  no  rule  of  judgment 

clergy  about  his  person,  and  Tresilian,  but  the  occasion  it  was  to  serve,  and  he 

his  infamous  chief  justiciary,  who  under-  knew  no  occasion  which  he  could  not 


128  REIGN  OF  RICHARD  II.  CHAP.  III. 

notwithstanding  the  "  historical  doubts  "  by  which  wo 
are  beset,  no  one  has  yet  appeared  to  vindicate  his 
memory. 

He  left  behind  him  an  only  child,  a  daughter,  who 
was  married  into  the  respectable  family  of  Howley, 
from  whom  descended  the  late  venerable  Archbishop  of 
Canterbury.* 

I  must  now  give  some  account  of  his  contemporary, 
SIR  EGBERT  BELKNAPPE,  Chief  Justice  of  the  Common 
Pleas,  who,  although  trepanned  into  the 
unconstitutional  and  illegal  act  of  signing 
the  answers  which  Tresilian  had  prepared 
at  Nottingham,  with  a  view  to  overturn  the  party  of 
the  Duke  of  Gloucester  and  the  Barons,  appears  to  have 
been  a  respectable  Judge  and  a  worthy  man. 

The  name  of  his  ancestor  (spelt  Belknape)  is  to 
be  found  in  the  list  of  the  companions  of  William 
the  Conqueror  who  fought  at  Hastings, 
miy'  preserved  in  Battle  Abbey  .f  The  family 
continued  in  possession  of  a  moderate  estate  in  the 
county  of  Essex,  without  producing  any  other  member 
who  gained  distinction  till  the  reign  of  Edward  III. 
Robert,  a  younger  son,  was  then  sent  to  push  his 
fortune  in  the  inns  of  court,  and  he  acquired  such  a 
taste  for  the  law,  that  on  the  death  of  his  father  and 
elder  brother,  while  he  was  an  apprentice,  he  resolved 
still  steadily  to  follow  his  profession,  and  to  try  for  its 
honours.  After  some  disappointments  he  was  made  a 
King's  Serjeant;^  and  finally  his  ambition  was  fully 

render  suitable  to  law.  He  was  too  ig-        *  Gentleman's   Magazine,   voL   Ixiv. 

norant  to  be   serviceable   even  to  the  p.  325. 

wretched  politics  of  that  court,  any  fur-         f  Thierry,  .N or.  Con.  ii.  385. 
ther  than  by  blind  compliance.    Thus,        J  While  King's  Serjeant,  he  seems  to 
like  a  dog  chained  up  in  darkness,  when  have  had  a  salary  of  201.  a  year,  Jn  re- 
unmuzzled    he  was   more   fierce,  and,  spect  of  which  he  was  sometimes  sent  as 
without  distinction,  tore  down  all  whom  a  judge  of  assize,  and  sometimes   he 
his  wicked  keepers  turned  into  his  tre-  pleaded  crown  cases  as  an  advocate : — 
mendous  haunt." — Vol.  ii.  p.  349. 


A.D.  1387.          CHIEF  JUSTICE  BELKNAPPE.  129 

gratified  with  the  office  of  Chief  Justice  of  the  Common 
Pleas.    He  gave  high  satisfaction  as  a  Judge,    A  D  1367 
and,  being  esteemed   by  all  parties,  it  was    A-D;  ms- 
expected  that  on  the  accession  of  Richard  II.    chief  justice 
he  would  have  been  appointed  Chief  Justice    monpSw." 
of  the   King's   Bench ;    but   he  was  passed    AJ>- 1377- 
over  through  the   intrigues   of    Tresilian.      He   was 
permitted,   however,    to    retain    "  the    pillow   of   the 
Common   Pleas ;"    and  with  this   he  was   quite   con- 
tented, for,  devoting  himself  to  his  judicial  duties,  he 
had  no  desire  to  mix  in  the  factions  which  then  divided 
the  state. 

He  did  not  take   any  part   in  the   struggle  which 
ended  in  the  Commission  for  making  fourteen  Barons 
viceroys  over  the  King ;  and  he  went  on  very  quietly 
and  comfortably  till  the  month  of  August,  1387,  when, 
returning  from  the  summer  circuit,  he  was 
summoned  in  the  King's  name  to  attend  a   The  manner 
council  at  Nottingham.     On  his  arrival  there    in  which  5f 

&  ^  wag  coerced 

he    was    received    by    Lord   Chief   Justice    into  the 

m        -T  i  i    •       j  j.     T_  •        j/i          giving  of  an 

iresman,  who  at  once  explained  to  him  the    illegal 
plan   which  had   been   devised  for   putting   opmion- 
down  the  Duke  of  Ireland  and  the  Barons  ;  and  showed 
him  the  questions  to  be  submitted  to  the  Judges,  with 
the  answers  which  they  were  desired  to  return.     He 
saw  that  many  of  these  answers  were  contrary  to  law, 
and,  though  extrajudicial  opinions  were  given  without 
scruple  by  the  Judges  to  the  Crown  ages  afterwards, 

"  Issue  Roll,  44  Edward  III.  "To   the   same  Robert,  one  of  the 

(To  Robert  Belknappe,  King's  Serjeants,  in  money  delivered  to 

one  of  the  Justices  to  nim  in  discharge  of  the  10J.  payable  to 

hold  the  assizes  in  dl-  nim  at  Michaelmas  Term  last  past,  for 

vers   counties   in    the  tne  z°l-  yearly  which  the  Lord  the  King 

kingdom  of  England,  and  to  deliver  the  latelv  granted  to  the  same  Robert,  to  he 

gaols  there,  receiving  yearly  20Z.  for  his  rece>ved  at  the  Exchequer  in  aid  of  his 

fee  in  the  office  aforesaid.    In  money  expenses  in  prosecuting  and  defending 

delivered   to  him  for  half  a  year's  pay-  his  busine8s.  Wl."— Devon's  Issue  Rolls , 

ment,  10Z.  P-  369. 
VOL.   I. 


130  REIGN  OF  EICHAED  II.  CHAP.  III. 

he  was  startled  by  the  danger  to  which  he  must  expose 
himself  by  openly  flying  in  the  face  of  those  who  were 
actually  in  possession  of  supreme  power.  He  therefore 
flatly  refused  to  sign  the  answers,  and  he  did  not  yield 
till  the  Duke  of  Ireland  and  the  Earl  of  Suffolk  were 
called  in  and  threatened  to  put  him  to  death  if  he 
remained  contumacious  any  longer.  Thereupon  he  did 
sign  his  name  under  Tresilian's,  saying,  "  Now  I  want 
nothing  but  a  hurdle  and  halter  to  bring  me  to  that 
death  I  deserve.  If  I  had  not  done  this,  I  should  have 
been  killed  by  your  hands ;  and,  now  I  have  gratified 
the  King's  pleasure  and  yours  in  doing  it,  I  have 
well  deserved  to  die  for  betraying  the  nobles  of  the 
land."  * 

Belknappe  observed  with  great  dismay  the  King's 

march  to  London,  and  the  ensuing  civil 
restedand  war  which  terminated  in  favour  of  the 
high'trlason.  Barons ;  but  he  remained  unmolested  till  the 

3d  day  of  February  following,  when  he  was 
arrested  while  sitting  in  the  Court  of  Common  Pleas, 

and,  along  with  the  other  Judges,  was  com- 

A  D   1389 

mitted  to  the  Tower  of  London.  There  he 
lay  till  after  the  trial  of  Brambre  and  the  apprehension 
and  execution  of  Tresilian. 

The  House  of  Commons  then  took  up  the  prosecution 
against  Sir  Eobert  Belknappe,  and  the  other 

2nd  March.  °  i      ••       i  i     /. 

Judges,  and  impeached  them  betore  the 
House  of  Lords,  "  for  putting  their  hands  and  seals  to 
the  questions  and  answers  given  at  Nottingham,  as 
aforesaid,  by  the  procurement  of  Sir  Eobert  Tresilian, 
already  attainted  for  the  same."  Some  of  them  pre- 

*  Another  account  makes  him   say,  worthy  of  my  desert ;  and  I  know  that 

"  Now  I  want  nothing  but  a  ship  or  a  if  I  had  not  done  this,  I  should  not  have 

nimble  horse,  or  a  halter,  to  bring  me  to  escaped  your  hands ;  so  that  for  your 

that  death  I  deserve"  (3  Tyrrett,  906):  pleasures  and  the  King's  1  have  done  it, 

and  a  third,  "  Now  here  lacketh  nothing  and  thereby  deserve  death  at  the  bands 

but  a  rope,  that  I  may  receive  a  reward  of  the  Lords." — (3  Holin.  456.) 


A.D.  1389.          CHIEF  JUSTICE  BELKNAPPE.  131 

tended  that  their  answers  had  not  been  faithfully 
recorded ;  but  Sir  Eobert  Belknappe  pleaded  the  force 
put  upon  him,  declaring  "  that  when  urged  to  testify 
against  the  Commission,  so  as  to  make  it  void,  he  had 
answered,  that  the  intention  of  the  Lords,  and  such  as 
assisted  in  making  it,  and  the  statute  confirming  it, 
was  to  support  the  honour  and  good  government  of  the 
King  and  kingdom  :  that  he  twice  parted  from  the 
King,  having  refused  to  sign  the  answers :  that,  being 
put  in  fear  of  his  life,  what  he  had  done  proceeded  not 
from  his  will,  but  was  the  effect  of  the  threats  of  the 
Archbishop  of  York,  the  Duke  of  Ireland,  and  the  Earl 
of  Suffolk ;  and  that  he  was  sworn  and  commanded,  in 
presence  of  the  King,  upon  pain  of  death,  to  conceal 
this  matter.  He  therefore  prayed  that,  for  the  love  of 
God,  he  might  have  a  gracious  and  merciful  judgment." 
The  Commons  replied,  that  "  the  Chief  Justice  and  his 
brethren,  now  resorting  to  such  shifts,  were  taken  and 
holden  for  sages  in  the  law ;  and  they  must  have  known 
that  the  King's  will,  when  he  consulted  them  at  Not- 
tingham, was,  that  they  should  have  answered  the 
questions  according  to  law,  and  not,  as  they  had  done, 
contrary  to  law,  with  design,  and  under  colour  of  law, 
to  murther  and  destroy  the  Lords  and  loyal  lieges  who 
were  aiding  and  assisting  in  making  the  Commission 
and  the  statute  confirming  it,  in  the  last  Parliament : 
— therefore,  they  ought  all  to  be  adjudged,  convicted, 
and  attainted  as  traitors." 

,     The  Lords  Spiritual  withdrew,  as  from  a  case  of 
blood ;    and  the  Lords  Temporal,  having  deliberated 
upon  the  matter,  pronounced  the  following  sentence : — 
"That  inasmuch   as   Sir  Eobert   Belknappe   and  his 
brethren,  now  impeached  by  the  Commons, 
were  actually  present  in  the  late  parliament   tainted  of 
when  the  said  Commission  and  statute  re- 
ceived  the  assent  of  the  King  and  the  three   estates 

K  2 


132  REIGN  OF  RICHARD  II.  CHAP.  III. 

of  the  realm,  being  contrived,  as  they  knew,  for 
the  honour  of  God,  and  for  the  good  government  of 
the  state,  of  the  King,  and  whole  kingdom ;  and  that 
it  was  the  King's  will  they  should  not  have  answered 
otherwise  than  according  to  law ;  yet  they  had  answered 
in  manner  and  with  the  intent  charged  against  them  : 
they  were,  by  the  Lords  Temporal,  and  by  the  assent  of 
the  King,  adjudged  to  be  drawn  and  hanged  as  traitors, 
their  heirs  to  be  disinherited,  and  their  lands  and 
tenements,  goods  and  chattels,  to  be  forfeited  to  the 
King."  * 

Eichard  himself  sat  on  the  throne  during  the  trial, 
and  was  much  shocked  at  this  proceeding.  But,  to  his 
unspeakable  relief,  as  soon  as  the  sentence  was  pro- 
nounced, the  Archbishop  of  Canterbury  and  all  the 
prelates  returned,  and  prayed  that  "  the  execution,  as  to 
the  lives  of  the  condemned  Judges,  might  be  respited, 
and  that  they  might  obtain  their  lives  of  the  King." 
This  proposal  was  well  relished,  both  by  Lords  and 
Commons;!  and,  after  some  consultation,  the  King 
ordered  execution  to  be  stayed,  saying  that  "  he  would 
grant  the  condemned  Judges  their  lives,  but  the  rest  of 
the  sentence  was  to  be  in  full  force,  and  their  bodies 
were  to  remain  in  prison  till  he,  with  the  advice  of  the 
Lords,  should  direct  otherwise  concerning  them."J 
A  few  days  afterwards,  while  the  Parliament  was 

still  sitting,  it  was  ordained  that "  they  should 
commuted  all  be  sent  into  Ireland,  to  several  castles  and 
portation  to  places, — there  to  remain  during  their  lives ; 

each  of  them  with  two  servants  to  wait  upon 
him,  and  having  out  of  their  lands  and  goods  an  allow- 

*  1  Parl.  Hist.  197-211 ;    1  St.  Tr.         This  Parliament  was  rather  unjustly 

89 — 123.  called    "The    Merciless  Parliament." — 

t  "  The  Parliament  considered  that  4  Rapin,  49.    Others  more  justly  styled 

the  whole  matter  was  managed  by  Tre-  it  "  The  Wonder-working  Parliament." 

silian,  and  that  the  rest  of  the  Judges  —1  Kennet,  262. 
were  surprised  and  forced  to  give  their         J  3  Tyrrell,  630,  632. 
opinion." — 1  Kennet,  263. 


A.D.  1389.          CHIEF  JUSTICE  BELKNAPPE.  133 

ance  for  their  sustenance."     Belknappe's  was  placed  at 
the  rather  liberal  sum  of  40Z.  a-year.* 

He  was  accordingly  transported  to  Ireland,  then 
considered  a  penal  colony.  At  first  he  was  stationed  at 
Drogheda,  having  the  liberty  of  walking  about  within 
three  leagues  of  that  town.f  He  was  subsequently 
transferred  to  Dublin;  and,  after  he  had 
suffered  banishment  for  nine  years,  he  had 
leave  to  return  to  his  own  country,  and  to 
practise  the  law  in  London.^  This  mitiga- 
tion was  at  first  complained  of,  as  being  contrary  "to  a 
sentence  pronounced  in  full  parliament — but  it  was 
acquiesced  in,  and,  although  the  attainder  never  was 
reversed,  King  Richard,  considering  him  a  martyr, 
made  him  a  grant  of  several  of  his  forfeited  estates. 

He  never  again  appeared  in  public  life,  but  retired 
into  the  country,  and,  reaching  extreme  old  age,  became 
famous  for  his  piety  and  his  liberality  to  the  Church. 
By  a  deed  bearing  date  October  8th,  in  the  second  year 
of  King  Henry  IV.,  he  made  over  a  good  estate  to  the 
Prior  of  St.  Andrew  in  Eochester,  to  celebrate  mass  in 

*  "  5th  Nov.  an.  13  Eic.  II.    To  Sir  grace,  with  the  assent  of  his  council,  of 

Thomas   Belknappe,   knight,  who,   by  the  13th  day  of  July,  in  the  12th  year  of 

force  of  a  judgment  pronounced  against  his  reign,  granted  to  the  same  Robert  401. 

him  in  the  King's  last  parliament  as-  yearly,  to  be  received  during  his  life  out 

sembted  at  Westminster,  was  condemned  of  the  issues  and  revenues  of  the  manor 

to   death;    and    all   and    singular  the  lands  and  tenements  aforesaid,  to  be  paid 

manors,  lands,  and   tenements,   goods,  by  the  bands  of  the  farmers  thereof  for 

and  chattels  whatsoever,  which  belonged  the  time  being,  &c.,  according  to  an  ordi- 

to  the  aforesaid  Robert,  were  seised  into  nance  of  the  Parliament  aforesaid.  •  In 

the  King's   bands,  as  forfeited  to  the  money   paid  to  him  by  the  hands  of 

*  King  for  the  reason  aforesaid :  where-  Juliana   his   wife,  viz.   by  assignment 

upon  the  said  Lord  the  King  being  moved  made  to  the  same  Juliana  this  day,  20J., 

with  mercy  and  pity,  and  wishing  and  and  in  money  counted,  201.  and — 4oj.  (A 

being  desirous  of  making  a  competent  list  of  the  horses,  with  a  description  of 

provision  for  the  support  of  the  same  them,  belonging  to  the  said  Robert,  is 

Robert,  towards  whom  he  was  moved  entered  on  this  Roll.)"— Devon't  Ittue 

with  pity,  did  remit  and  pardon   the  Rotts,  240. 

execution  cf  the  judgment  aforesaid,  at  t  "  Drouda  et  infra  praecinctum  trium 

the  request  of  very  many  of  the  pre-  leucarum  circa  dictum  villam." — Rymer, 

lates,  great  men  of  the  estate,  and  other  vol.  vii.  591. 

nobility  of  this  realm,  lately  attending  J  3  Tyrrel,  959;  1  Kennet,  274. 
the  said  parliament ;  and  of  his  especial 


134  EEIGN  OF  EICHARD  II.  CHAP.  III. 

the  cathedral  church  there  for  ever,  for  the  soul  of  his 

father  John,  of  his  mother  Alice,  and  for  the  souls  of 

himself  and  all  his  heirs.*     He  died  a  few 

His  death. 

months  afterwards. 

He  was  married  to  Sibbella,  daughter  and  heiress  of 
John  Dorsett,  of  an  ancient  family  in  Essex.  Holding 
estates  in  her  own  right,  these  were  not  forfeited  by 
her  husband's  attainder  ;  and,  bringing  an  action  during 
his  banishment  for  an  injury  done  to  one  of  them,  the 
question  arose,  whether  she  could  sue  alone,  being  a 
married  woman  ?  But  it  was  adjudged  that,  her  hus- 
band being  disqualified  to  join  as  a  plaintiff,  she  was 
entitled  to  the  privilege  of  suing  as  a/eme  sole ;  although 
Chief  Justice  Markham  exclaimed, — 

"  Ecce  modo  mirum,  quod  foemina  fert  breve  regls, 
Non  nominando  virum  conjunctum  robore  legis."  f 

The  attainder  was  reversed  in  favour  of  Sir  Hamon 
Belknappe,  the  Chief  Justice's  son.  The  male  line  of 
the  family  failed  in  a  few  generations ;  but  the  Stan- 
hopes, the  Cokes,  and  the  Shelleys,  now  flourishing,  are 
proud  of  tracing  their  pedigree  to  the  Chief  Justice, 
notwithstanding  the  ignominious  sentence  passed  upon 
him. 

There  is  only  one  other  Chief  Justice  who  flourished 
in  the  reign  of  Richard  II.  of  sufficient 
Th^ynge11  eminence  to  be  commemorated, — Sir  WILLIAM 
THIRNYNGE,  who  pronounced  upon  that  un- 
fortunate monarch  the  sentence  of  deposition.  The 
family  of  this  great  lawyer  seems  to  have  been  unknown, 
both  before  and  after  his  short  illustration  of  it.  He 

*  This  estate  still  belongs  to  the  Dean  been  banished  into  Gascony  "  relegatus 

and  Chapter  of  Rochester. — See  Hasted's  in  Vasconiam,"  and  that  he  continued 

Kent,  iii.  474.  there  1n  the  reign  of  Henry  IV. — whereas 

t  Lord  Chancellor  Ellpsmere.in  citing  Ireland  was  the  place  of  his  banishment, 

this  decision  in  the  case  of  thePASTNATr,  and  he  had  been  recalled  by  Richard  II. 

states  that  Sir  Robert  Belknappe  had  —See  2  St.  Tr.  559. 


A.D.  1399.          CHIEF  JUSTICE  THIBNYNGE.  135 

was  made  a  Puisne  Judge  of  the  Common    Pleas  in 
the  year  1388  *  at  a  famous  time   for  pro-    , 

*  f  Chief  Justice 

motion  in  Westminster  Hall,  one  Chief  Jus-  oftheCom- 
tice  being  hanged,  and  all  the  other  Judges 
being  cashiered,  attainted,  and  banished.f  He  probably 
was  not,  previously,  of  much  mark  or  likelihood,  but  he 
proved  to  be  one  of  the  most  distinguished  magistrates 
who  ever  sat  on  the  English  bench,  being  not  only 
deeply  versed  in  his  profession,  but  of  spotless  purity 
and  perfect  independence.  On  the  death  of  Sir  Eobert 
de  Charleton,  who  had  been  appointed  Chief  Justice  of 
the  Common  Pleas  in  the  room  of  Belknappe,  he  suc- 
ceeded to  that  office,  J  which  he  filled  with  high  credit 
in  three  reigns. 

There  are  many  of  hia  decisions  to  be  found  in  the 
YEAR-BOOKS,  but  they  are  all  respecting  aid-prayers, 
essoins,  and  other  such  subjects,  which  have  long  been 
obsolete;  and  I  must  confine  myself  to  the  part  he 
bore  in  an  historical  transaction  which  must  ever  be 
interesting  to  Englishmen. 

While  we  honour  Lord  Somers  and  the  patriots  who 
took  the  most  active  part  in  the  revolution 
of  1688,  by  which  a  King  was  cashiered,  jUsiiflCation 
hereditary  right  was  disregarded,  and  a  new 
dynasty  was  placed  on  the  throne,  we  are 
apt  to  consider  the  Kings  of  the  house  of 
Lancaster  as  usurpers,  and  those  who  sided  with  them 
as  rebels.  Yet  there  is  great  difficulty  in  justifying 
the  deposition  of  James  II.,  and  condemning  the  depo- 
sition of  Eichard  II.  The  latter  sovereign,  during  a 

*  Hth  April,  Pat.  11  Rich.  II.  p.  2,  Common    Bench,   receiving   yearly  40 

m.  21.  marks  for  his  fee  in  the  office  aforesaid. 

f  The  salary  of  a  puisne  could  not  In  money  paid  to  him  by  the  hands  of 

have  been  very  attractive  to  a  barrister  William  Vaux.  in  discharge  of  20  marks 

in  good  practice,  for  It  was  still  only  40  paid  to  him  for  this  his  fee.    By  writ, 

marks  a  year: —  &C..13J.  6s.  8d." — Dev.  Jssue  RoUt,  263. 

"  16th  Oct.,  19  Richard  II.  To  William  J  Pat.  19  Rich.  11.  p.  1,  m.  1. 
Thtrnyng,  one  of  the  Justices  of  the 


136  KEIGN  OF  KICHAED  II.  CHAP.  III. 

reign  of  above  twenty  years,  had  proved  himself  utterly 
unfit  to  govern  the  nation,  and,  after  repeated  attempts 
to  control  him,  and  promises  on  his  part  to  submit  to 
constitutional  advice,  he  was  still  under  the  influence 
of  worthless  favourites,  and  was  guilty  of  continued 
acts  of  tyranny  and  oppression;  so  that  the  nation, 
which,  with  singular  patience,  had  often  forgiven  his 
misconduct  from  respect  to  the  memory  of  his  father 
and  his  grandfather,  was  now  almost  unanimously  re- 
solved to  submit  no  longer  to  his  rule. 

I  therefore  cannot  blame  Chief  Justice  Thirnynge  for 
attempting  to  rescue  the  country  from  the  state  of  con- 
fusion into  which  it  had  fallen,  and  to  restore  regular 
government  under  a  new  sovereign,  who,  although  he 
was  not  next  in  succession  according  to  the  rules  of 
hereditary  descent,  was  of  the  blood  royal, — who  was 
by  birth  the  nearest  to  the  throne  of  those  who  could 
be  placed  upon  it  in  such  an  exigency,* — who,  by  his 
vigour  and  his  prudence,  had  shown  capacity  to  govern, 
— and  to  whom  all  classes  of  the  community  looked  as 
their  deliverer.  Thirnynge  neither  gained  nor  expected 
to  gain  any  personal  advantage  from  the  change,  and 
he  does  not  appear  to  have  been  actuated  by  any  im- 
proper motive. 

Henry  of  Bolingbroke  being,  soon  after  his  landing 
at  Eavenspurg,  de  facto  master  of  the  kingdom,  writs 
were  issued  in  Eichard's  name  for  a  new  parliament  to 
meet  at  Westminster  on  the  30th  of  September,  when 
it  was  planned  that  there  should  be  a  formal  transfer 
of  the  crown.  Thirnynge  certainly  lent  himself  to  this 
design,  and  was  the  principal  agent  in  carrying  it  into 
effect.  On  the  day  before  parliament  was  to  assemble, 
he  went  with  several  other  commissioners  to  the  Tower 
of  London,  where  Eichard  was  confined,  to  remind  him 

*  The  Earl  of  March,  the  legitimate  heir  after  Richard  II.,  was  then  a  boy 
only  seven  years  old. 


A.D.  1399. 


CHIEF  JUSTICE  THIENYNGE. 


137 


of  a  promise  he  had  recently  made  at  Bristol  that  he 
would  abdicate,  and  to  obtain  from  him  a  formal  renun- 
ciation of  his  rights.  According  to  the  account  then 
published  (which  must  be  regarded  with  some  sus- 
picion), Richard  spontaneously  and  cheerfully  signed 
a  paper,  whereby  he  absolved  all  his  subjects  from  their 
allegiance,  and  confessed  himself  to  be  "  utterly  insuf- 
ficient and  unuseful  for  rule  and  government."* 

Next  day,  when  the  Lords  and  Commons  assembled 
in  Westminster  Hall,  the  throne  being  vacant,  and 
Bolingbroke  still  sitting  on  the  left  side  of  it,  occupying 
the  uppermost  place  on  the  Duke's  bench,  this  resigna- 


*  Sir  John  Hayward  says,  that  when 
Thirnynge  and  his  companions  came  to 
the  Tower,  "  the  unhappy  monarch  was 
brought  forth,  apparelled  in  his  royal 
robes,  the  diadem  on  his  head,  and  the 
sceptre  in  his  hand,  and  was  placed 
among  them  in  a  chair  of  state."  He 
adds,  that,  after  a  little  pause,  the  King 
arose  from  his  seat,  and  spoke  to  the 
following  effect  :— 

"  I  assure  myself  that  some  at  this 
present,  and  many  hereafter,  will  account 
my  case  lamentable;  either  that  I  have 
deserved  this  dejection,  if  it  be  just ;  or 
if  it  be  wrongful,  that  I  could  not  avoid 
it.  Indeed  I  do  confess,  that  many  times 
I  have  showed  myself  both  less  provi- 
dent and  less  painful  for  the  benefit  of  the 
commonwealth,  than  I  should,  or  might, 
or  intended  to  do  hereafter;  and  have  in 
many  actions  more  respected  the  satis- 
fying of  my  own  particular  humour, 
than  either  justice  to  some  private  per- 
sons, or  the  common  good  of  all ;  yet  I 
did  not  at  any  time  either  omit  duty  or 
commit  grievance,  upon  natural  dulness 
or  set  malice;  but  partly  by  abuse  of 
corrupt  counsellors,  partly  by  error  of 
my  youthful  judgment.  And  now  the 
remembrance  of  these  oversights  is  so 
unpleasant  to  no  man  as  to  myself;  and 
the  rather  because  I  have  no  means  left, 
either  to  recompense  the  injuries  which 
I  have  done,  or  to  testify  to  the  world 
my  reformed  aflections,  which  experi- 
ence and  stayedness  of  years  had  already 
corrected,  and  would  daily  have  framed 
to  more  perfection.  But  whether  all  the 
imputations  wherewith  I  am  charged  be 


true,  either  in  substance,  or  in  such 
quality  as  they  are  laid;  or  whether, 
being  true,  they  be  so  heinous  as  to  en- 
force these  extremities ;  or  whether  any 
other  prince,  especially  in  the  heat  of 
youth,  and  in  the  space  of  22  years, 
the  time  of  my  unfortunate  reign,  doth 
not  sometimes,  either  for  advantage,  or 
upon  displeasure,  in  as  deep  manner 
grieve  some  particular  subject,  I  will  not 
now  examine :  it  helpeth  not  to  use  de- 
fence, neither  booteth  it  to  make  com- 
plaint ;  there  is  no  place  left  for  the  one, 
nor  pity  for  the  other :  and  therefore  I 
refer  it  to  the  judgment  of  God,  and  your 
less  distempered  considerations.  I  accuse 
no  man,  I  blame  no  fortune,  I  complain 
of  nothing;  I  have  no  pleasure  in  such 
vain  and  needless  comforts;  and  if  I 
listed  to  have  stood  upon  terms,  I  know 
I  have  great  favourers  abroad;  and  some 
friends,  I  hope,  at  home,  who  would 
have  been  ready,  yea  forward  on  my 
behalf,  to  set  up  a  bloody  and  doubtful 
war ;  but  I  esteem  not  my  dignity  at  so 
high  a  price,  as  the  hazard  of  so  great 
valour,  the  spilling  of  so  much  English 
blood,  and  the  spoil  and  waste  of  so 
flourishing  a  realm,  as  thereby  might 
have  been  occasioned.  Therefore,  that 
the  commonwealth  may  rather  rise  by  my 
fall,  than  I  stand  by  the  ruin  thereof,  I 
willingly  yield  to  your  desires;  and  am 
here  come  to  dispossess  myself  of  all 
public  authority  and  title,  and  to  make 
it  free  and  lawful  for  you  to  create  for 
your  king,  Henry  duke  of  Lancaster,  my 
cousin  german,  whom  I  know  to  be  as 
worthy  to  take  that  place,  as  I  see  you 
willing  to  give  it  to  him." 


138  EEIGN  OF  KICHARD  II.  CHAP.  III. 

tion  was  produced  and  read.  But,  lest  doubts  should 
afterwards  be  started  respecting  its  validity,  on  the 
ground  that  it  was  executed  under  duress,  Thirnynge 
advised  that  articles  should  be  exhibited,  charging 
Richard  with  misconduct,  whereby  he  had  forfeited 
the  crown,  and  that  sentence  of  deposition  should  be 
formally  passed  upon  him  by  the  states  of  the  realm. 
Accordingly,  a  sort  of  indictment  was  produced,  con- 
sisting of  no  fewer  than  thirty-three  counts,  which 
charged  the  unhappy  Richard  with  many  very  grave 
and  some  rather  frivolous  offences.  We  do  not  exactly 
see  how  this  step  materially  legalised  or  formalised  the 
proceeding,  for  he  was  never  called  upon  to  plead,  and 
he  had  no  opportunity  of  urging  any  defence.  The 
Record  that  was  made  up,  after  setting  forth  the  articles, 
thus  proceeds : — 

"  And  because  it  seemed  to  all  the  estates  of  the  realm,  being 
asked  their  judgments  thereupon,  as  well  severally  as  jointly, 
that  these  crimes  and  defaults  were  sufficient  and  notorious  to 
depose  the  said  King,  considering  also  his  own  confession  of  his 
insufficiency,  and  other  things  contained  in  the  said  renuncia- 
tion, the  said  states  did  unanimously  consent  that,  ex  abundanti, 
they  should  proceed  to  a  deposition  of  the  said  King." 

Thirnynge  and  several  other  commissioners  were  then 
He  is  ap-  appointed  to  pronounce  the  deposition,  and  it 
carry'to*0  was  pronounced  accordingly.  Next  followed 
Richard  II.  a  form  which  we  should  think  very  unne- 

the  renuncia-  .  • 

tion  of  the  ai-    cessary  and  valueless,  but  to  which  great  im- 

legiance  of  ,  .  ,    ° 

the  nation.      portance  seems  to  have  been  attached : — 

"  Furthermore,"  says  the  Record,  "  the  said  states,  willing 
that  nothing  should  be  wanting  which  might  be  of  value  or 
ought  to  be  required  touching  the  premises,  being  severally 
interrogated  thereupon,  did  constitute  the  same  persons  that 
were  before  nominated  commissioners  to  be  their  procurators, 
jointly  and  separately,  to  resign  and  give  back  to  the  said  King 
Richard  the  homage  and  fealty  to  him  before  made." 

But,  without  waiting  for  this   intimation,   Boling- 


A.D.  1399.          CHIEF  JUSTICE  THIRNYNGE.  139 

broke,  by  Thirnynge's  advice,  seated  himself  on  the 
throne,  saying  "  In  the  name  of  Fader,  Son,  and  Holy 
Ghost,  I,  Henry  of  Lancaster,  challenge  this  rewme  of 
Ynglond  and  the  croun  with  all  the  members  and  the 
appurtenances  thereto  belonging." 

Although  Henry  now  took  upon  himself  the  full 
exercise  of  royalty,  and  forthwith  in  his  own  name 
summoned  the  parliament  to  meet,  still,  to  perfect  his 
title,  Thirnynge  and  his  brother  mandatories  went  next 
day  to  the  Tower  to  resign  to  Eichard  the  homage  and 
fealty  of  the  nation,  and,  drew  up  with  his  own  hand  a 
report,  still  extant,  of  what  then  occurred,  which  is 
interesting  both  to  the  philologist  and  the  historian, 
as  it  affords  us  a  genuine  specimen  of  the  construction 
and  orthography  of  our  language  in  the  fourteenth 
century : — 

"  The  Words  which  William  Thirnyng  spake  to  Monsire  Richard, 
late  King  of  England,  at  the  Tower  of  London,  in  his  cham- 
ber, on  Wednesday  next  after  the  feast  of  St.  Michael  the 
Archangel,  were  as  follow : 

"  Sire, — It  is  wele  know  to  zou,*  that  ther  was  a  parlement 
somon'd  of  all  the  states  of  the  reaume  for  to  be  at 
Westmystre,  and  to  begin  on  the  Tuesday  in  the  morn    ^"t,*0001111* 
of  the  fest  of  St.  Michel  the  Archangel,  that  was    manner  in 
zesterday ;  by  cause  of  the  which  summons  all  the    which  n?  . . 

f   .-,.      i      j  ,1  j      ,j     ,1  i  •   r      executed  this 

states  of  this  lond  were  there  gadyr  d,  the  which  commission, 
states  hole  made  thes  same  persones  that  ben  comen 
here  to  zowe  now,  her  procurators,  and  gaven  hem  full  autorite 
and  power,  and  charged  hem  for  to  say  the  words  that  we  shall 
say  to  zowe  in  their  name,  and  on  their  behalve ;  that  is  to 
wytten,  the  Bishop  of  Seint  Assa  for  ersbishoppes  and  bishoppes, 
the  Abbot  of  Glastenbury  lor  abbots  and  priours,  and  all  other 
men  of  holy  chirche,  seculers  and  rewelers,  the  Earle  of  Glou- 
cestre  for  dukes  and  erls,  the  Lord  of  Berkeley  for  barons  and 
banerettes,  Sir  Thomas  Irpyngham,  chamberleyn,  for  all  the 
bachilers  and  commons  of  this  lond  be  south ;  Sir  Thomas 

*  It  is  curious  that  the  letter  z  then  in     stood  for  the  sound  now  denoted  by  y. 
England,  as  long  afterwards  in  Scotland, 


140  EEIGN  OF  EICHAKD  II.  CHAP.  III. 

Grey  for  all  the  bachilers  and  commons  by  north,  and  my 
felawe  Johan  Markham  and  me  for  to  come  with  hem  for  all 
thes  states.  And  so,  sire,  these  words,  and  the  doing  that  we 
shall  say  to  zowe,  is  not  onlych  our  wordes  but  the  doyngs  of  all 
the  states  of  this  lond,  and  our  charge  in  her  name. — And  he 
answered  and  said,  that  he  wyste  wele  that  we  wold  noght  say 
but  as  we  were  charged. — Sire,  ze  remembre  zowe  wele  that  on 
Moneday,  in  the  fest  of  Seint  Michel  the  Archaungel,  ryght  here 
in  this  chamber,  and  in  what  -presence  ze  renounced  and  cessed 
of  the  state  of  kynge  and  of  lordeship,  and  of  all  the  dignite  and 
wyrship  that  longed  thereto,  and  assoiled  all  zour  leiges  of  her 
leigance  and  obeisance  that  longed  to  zowe  uppe  the  fourme  that 
is  contened  in  the  same  renunciation  and  cession,  which  ze  redde 
zour  self  by  zour  mouth,  and  affermed  it  by  zour  othe,  and  by 
zour  owne  writing.  Upon  which  ze  made  and  ordeined  your 
procurators  the  Ersbishop  of  Zork  and  the  Bishop  of  Hereford 
for  to  notifie  and  declare  in  zour  name  thes  renunciation  and 
cession  at  Westmynstre  to  all  the  states,  and  all  the  people  that 
was  there  gadyr'd,  bycause  of  the  summons  aforesaid,  the  which 
thus  don  yesterday  by  thes  lords  zour  procuratours,  and  wele 
herde  and  understouden,  thes  renunciation  and  cession  were 
plenelich  and  frelich  accepted,  and  fullich  agreed  by  all  the 
states  and  people  aforesaid.  And  over  this,  sire,  at  the  instance 
of  all  thes  states  and  people,  there  ware  certain  articles  of 
defautes  in  zour  governance  zedde  there,  and  tho  wele  herd  and 
pleinelich  understouden  to  all  the  states  foresaid,  hem  thoght 
hem  so  trewe,  and  so  notorie,  and  knowen,  that  by  tho  causes 
and  by  no  other,  as  thei  sayd,  and  havyng  consideration  to  zour 
own  wordes  in  zour  own  renunciation  and  cession,  that  ze  were 
not  worthy,  no  sufficient  ne  able  for  to  governe,  for  zour  owne 
demerites,  as  it  is  more  pleinelich  contened  therein ;  hem  thoght 
that  was  reasonable  and  cause  for  to  depose  zowe,  and  her  com- 
missaries that  they  made  and  ordein'd,  os  it  is  of  record,  ther 
declared  and  decreed,  and  adjudged  zow  for  to  be  deposed,  and 
pryved  zowe  of  the  astate  of  king,  and  of  the  lordeship  conteined 
in  the  renunciation  and  cession  forsayd,  and  of  all  the  dignite 
and  wyrshippe,  and  of  all  the  administration  that  longed  thereto. 
And  we  procurators  to  all  thes  states  and  people  forsayd  os  we 
be  charged  by  hem,  and  by  her  autorite  gyfien  us,  and  in  her 
name  zelde  zow  uppe  for  all  the  states  and  people  forsayd, 
homage,  leige,  and  feaute,  and  all  leigeance,  and  all  other  bondcs, 
charges,  and  services  thar  long  thereto,  and  that  non  of  all 
thes  states  and  people  fro  thys  tyme  forward  ne  bere  zowe  feyth, 
ne  do  zowe  obeisance  os  to  that  king. — And  he  answered  and 
seyd,  that  he  loked  not  ther  after,  but  he  seyd,  that  after  all  this 
he  hoped  that  is  cosyn  wolde  be  gude  lord  to  hyrn." 


A.D.  1399.          CHIEF  JUSTICE  THIRNYNGE.  141 

When  Parliament  again  met  on  the  6th  of  October, 
under  new  writs  from  the  Duke  of  Lancaster,  without 
any  change  in  the  members,*  Thirnynge  gave  an 
account  of  the  manner  in  which  he  had  executed  his 
duty  in  surrendering  the  allegiance  of  the  nation  to 
the  discrowned  King ;  and  then,  the  oaths  being  taken 
to  Henry  IV.,  the  march  of  government  proceeded  as  if 
the  heir  apparent  had  been  proclaimed  on  the  demise  of 
his  father. 

Thirnynge  received  a  new  patent  as  Chief  Justice  of 
the  Common  Pleas,  and  continued  to  fill  the 
office  during  the  whole  of  this  reign,  without  chieTjuTtice 
any  increase  to  his  dignity,  but  with  ever-  ^der  Henry 
growing  respect  from  the  public.  He  did 
not  again  mix  in  politics,  even  so  much  as  Sir  Wm. 
Gascoigne,  who  became  Chief  Justice  of  the  King's 
Bench.  During  the  insurrections  of  the  Percys  and 
Owen  Glendower,  he  quietly  continued  administering 
justice  at  Westminster  ;  and  the  only  battles  he  wit- 
nessed were  a  few  in  Tothill  Fields,  between  champions 
on  trials  of  writs  of  right,  when  he  and  his  brethren, 
attired  in  their  scarlet  robes,  attended  to  see  that  the 
laws  of  the  ring  were  observed,  and  to  award  the  fruits 
of  victory  to  the  successful  side.  He  was  summoned 
to  every  parliament ;  but  he  merely  gave  his  opinion 
on  juridical  questions,  when  consulted,  for  the  guidance 
of  the  House  of  Lords.  Although  he  was  sworn  a 
privy  councillor,  the  King  being  his  own  minister, 
this  was  little  more  than  an  honorary  distinction  to 
him. 

Thirnynge,  on   the   death   of  Henry  IV.,  had   the 


*  Afterwards  the  contrivance  resorted  CONVENTION — and  then,  a  King  being  put 

to  when   a  meeting  of  the  states  was  on  the  throne,  to  turn  it  into  a  Parlia- 

wanted  and  could  not  be  summoned  by  ment  by  an  act  passed  by  his  authority 

the  King,  whose  authority  was  to  be  and  that  of  the  two  Houses;  as  in  1660 

recognised,  was  to  call  the  meeting  a  and  1689. 


142  REIGN  OF  HENRY  IV.  CHAP.  III. 

satisfaction  to  see  his  son's  title  universally  acknow- 
ledged, and  the  Lancastrian  line  seemed  for 
ever  established  on  the  throne.  It  was 
expected  that  this  venerable  magistrate  would  now 
be  displaced  to  make  way  for  some  one  recommended 
by  the  profligate  companions  of  the  new  King  when 
Prince  of  Wales;  but  he  was  continued  in  his  office, 
with  high  compliments  to  his  ability  and  integrity,* 
and  he  was  again  sworn  of  the  Privy  Council,  along 
with  the  other  faithful  servants  of  the  late  King,  who 
were  thanked  for  having  tried  to  repress  the  excesses 
of  the  heir  apparent.  Within  a  year  he  was  attacked 
by  a  disease  which  compelled  him  to  resign, 
and  he  expired  long  before  the  commence- 
ment of  the  fatal  War  of  the  Roses.  Had  this  been 
foreseen,  it  would  probably  have  induced  him  to  advise 
his  countrymen  rather  to  submit  to  the  capricious 
tyranny  of  Kichard,  than  to  encounter  the  danger  of 
a  disputed  succession,  which  was  for  many  years  to 
deluge  the  kingdom  with  blood. 

I  believe  it  is  long  since  there  were  any  Thirnynges 
in  any  part  of  England  ;  and  we  have  here  an  instance 
of  a  name  being  utterly  extinguished, — while  other 
families  have  multiplied  so  as  to  form  a  crowded 
population  in  extensive  districts,  and,  by  migrations, 
are  found  in  the  remotest  parts  of  the  kingdom,  j 

The  great  contemporary  Judge  who  gave  lustre  to 
the  reign  of  Henry  IV.  was  SIR  WILLIAM  GASCOIGNE  | 

*  Pat.  1  Hen.  v.  p.  1,  m.  36.  coygne,  Gascoinge,  Gascoyn,  Gascun.Gas- 
f  Of  course  I  do  not  refer  to  names  ken,  Gaskyn,  Gaskun,  Gaston,  Gastoue, 
taken  from  trades,  such  as  Smith,  nor  to  Gastoyn,  Gastoynge,  Gasquin,  Guas- 
patronymics,  such  as  Johnson,  which  quyne,  Gawsken,  Vascon,  Guascoyn,  Gas- 
may  have  been  assumed  and  borne  by  koigne,  and  De  Gasquone.  For  Christian 
different  families  wholly  unconnected  in  name,  "  William  "  was  the  great  patro- 
bluod.  nymic  in  the  family,  perhaps  in  compli- 
J  I  have  preferred  the  more  modern  ment  to  the  Conqueror;  and  in  their 
spelling  of  this  name,  but  it  is  found  pedigree  are  counted  16  Williams  lineally 
spelt  In  more  than  twenty  other  dif-  succeeding  each  other, — 7  before,  and  8 
ferent  manners,— Gaskin,  Gauscin,  Gas-  after,  the  Chief  Justice. 


A.D.  1398.          CHIEF  JUSTICE  GASCOIGNE.  143 

— familiar  to  us  all  from  the  anecdote  of  his  having 
committed  the  Prince  of  Wales  to  prison,  and   Sir  wiiuam 
from  being  a  conspicuous  character  in  one   Ga8CO|gne. 
of  the  most  popular  of  the  dramas  of  Shakspeare. 

He  was  born  about  the  middle  of  the  reign  of 
Edward  III.,  at  Gawthorp,  in  the  county  of  mg  orf  . 
York,  where  his  family — of  Norman  extrac-  apd  educa- 
tion— had  been  seated  for  several  centuries. 
Instead  of  being  distinguished,  like  his  ancestors,  for 
military  prowess,  his  ambition  was  to  be  a  profound 
lawyer  and  a  great  judge.  While  yet  a  boy,  he  was 
sent  to  the  University  of  Cambridge,  where  he  was 
initiated  in  grammar  and  philosophy  ;  and,  after  a  few 
years'  residence  there,  he  was  transferred  to  the  Inns 
of  Court.  Two  of  these  (although  their  written  records 
do  not  extend  so  far  back)  contend  for  the  honour  of 
having  had  him  as  a  member.  The  Middle-Temple 
men  assert  that,  according  to  certain  traditions,  he 
belonged  to  them ;  while  the  Gray's  Inn  men  rely  upon 
the  fact  that  his  arms  are  to  be  found  in  a  window  in 
their  hall,  among  those  of  the  dignitaries  of  their 
society.  He  certainly  devoted  himself  to  the  study  of 
the  common  law  with  extraordinary  zeal  and  perseve- 
rance. After  a  seven  years'  course,  and  many  exami- 
nations and  disputations  to  test  his  proficiency,  he  was 
admitted  to  practise  as  an  "  utter  barrister." 
From  his  learning  and  assiduity  he  was  soon 
in  considerable  business;  and  among  his 
clients  was  John  of  Gaunt,  to  whom  he  rendered 
valuable  assistance,  in  managing  the  concerns  of  the 
Duchy  of  Lancaster. 

When  Henry  of  Bolingbroke  and  the  Duke  of  Norfolk, 
being  about  to  engage  in  single  combat  in 

Sept   1398 

the  lists  at  Coventry,  were  banished  from 

the  kingdom,  Eichard  II.  gave  each  of  them  power 

to  name  an  attorney,  or  agent,  who  might  claim  and 


144  REIGN  OF  HENRY  IV.  CHAP.  III. 

sue  for  any  inheritance  that  should  fall  to  them  in 
He  is  ap-  their  absence.  Gascoigne  was  named  attorney 
pointed  at-  for  the  former,  on  the  suggestion  of  the 

forney  to  ee 

represent        "  time-honoured  Lancaster,"  who  saw  himself 

Bolinebroke,  ,  ••  j       j?    i_  •       i  i 

afterwards  near  the  end  ot  his  long  career,  and  was 
enryiv.  anxious  that  the  best  measures  should  be 
taken  to  secure  his  vast  possessions  for  his  exiled  son. 
Richard,  pretending  to  be  very  friendly  to  his  uncle 
and  his  cousin,  confirmed  the  nomination ;  and,  out 
of  compliment  to  them,  appointed  Gascoigne  King's 
Serjeant,  which  placed  him  at  the  head  of  the  Bar.* 

On  the  death  of  John  of  Gaunt,  in  the  beginning  of 
Feb.  1399.  *ke  following  year,  Gascoigne,  as  the  attorney 
His  proceed-  of  his  son?  the  Duke  of  Hereford,  now  Duke 
capacity  on  of  Lancaster,  sued  in  the  Court  of  Wards 

the  death  of  -.    T  •          •          , ,      ,         .    .  .    -,   .    n  . 

John  of  and  Liveries,  that  seisin  might  be  given  to 
Gaunt.  kim  of  the  Ducky  and  County  Palatine  of 

Lancaster  and  his  other  lands  held  of  the  Crown ; 
offering  to  do  homage,  and  swear  allegiance,  in  the 
name  of  the  absent  heir :  but  Richard,  being  again 
in  the  hands  of  worthless  favourites  who  wished  to 
divide  these  spoils  among  themselves,  declared  a  reso- 
lution to  retain  them  in  his  own  hands,  at  least  till 
the  ten  years  had  expired  for  which  the  sentence 
of  banishment  had  been  pronounced.  Gascoigne  pre- 
sented a  respectful  memorial,  reminding  the  King  how 
his  appointment  as  attorney  for  Hereford  had  been 
confirmed  under  the  broad  seal ;  and  prevailed  on  the 
Duke  of  York  to  remonstrate,  in  a  speech  of  which  the 
following  is  probably  a  pretty  accurate  report : — 

"  Take  Hereford's  rights  away,  and  take  from  time 
His  charters,  and  his  customary  rights. 

how  art  thou  a  king, 

But  by  fair  sequence  and  succession  ? 
Kow,  afore  God  (God  forbid,  I  say  true !) 
If  you  do  wrongfully  seize  Hereford's  rights, 

*  Dugd.  Cbr.  Ser. 


A.D.  1399.          CHIEF  JUSTICE  GASCOIGNE.  145 

Call  in  the  letters  patents  that  he  hath         • 
By  his  attornies-general  to  sue 
His  livery,  and  deny  his  offerM  homage, 
You  pluck  a  thousand  dangers  on  your  head. 
You  lose  a  thousand  well-disposed  hearts, 
And  prick  my  tender  patience  to  those  thoughts 
Which  honour  and  allegiance  cannot  think." 

However,  the  fatal  answer  was  given, — 

"  Think  what  you  will ;  we  seize  into  our  hands 
His  plate,  his  goods,  his  money,  and  his  lands."  * 

Accordingly,  a  supersedeas  was  passed  under  the 
Great  Seal,  revoking  Gascoigne's  authority  to  sue  as 
attorney  for  the  banished  Duke  ;  and  the  whole  of  his 
property,  real  and  personal,  was  taken  possession  of  as 
forfeited  to  the  Crown.f 

Gascoigne  sent  intelligence  of  this  outrage  to  the 
young  Duke  of  Lancaster,  who,  as  soon  as  he  had  made 
the  necessary  preparations,  landed  at  Eavenspurg ;  at 
first  only  claiming  his  rights  as  a  subject,  but  soon 
openly  aiming  at  the  crown. 

During  the  struggle,  Gascoigne  did  not  join  Henry 
in  the  field,  but,  remaining  in  London,  advised  measures 
for  aiding  his  cause;  and,  when  the  nation  had  de- 
clared for  him,  acted  in  concert  with  Chief  Justice 
Thirnynge  in  smoothing  his  way  to  royalty. 

Henry  IV.  being  proclaimed  King,  one  of  the  first 
acts  of  his  reign  was  to  appoint  Gascoigne    Hei8ap. 
Chief  Justice  of  the  Court  of  King's  Bench,    P0^  cfhlef 

°  Justice  of 

and  to  confer  upon  him  the  honour  of  knight-    the  King's 

Bench. 

hood.j 

*  Shaks.  Rich.  II.  act  ii.  sc.  1.  might  prosecute  for  livery  to  him  to  be 

t  The  revocation  of  Gascoigne's  autho-  made  of  all  manner  of  inheritance  or 

rity  to  represent  Henry  was  made  one  of  successions  belonging  to  him,  and  that 

the  charges  against  Richard,  for  which  his  homage  should  be  respited  paying  a 

sentence  of  deposition  was  pronounced  certain  reasonable  fine, — he  injuriously 

against  him.    "  Art.  12. — After  the  said  did   revoke   the    said    letters    patent, 

King  had  graciously  granted  his  letters  against   the  laws  of  the  land,  thereby 

patent  to  the  Lord  Henry,  now  Duke  of  incurring  the  crime  of  perjury." — 1  St. 

Lancaster,  that  in  his  absence,   whilst  Ti:  143. 

he  was  banished,  his  general  attornies  J  See  Dug.  Chr.  Ser. — The  exact  riate 

VOL.  I.  L 


146  KEIGN  OF  HENRY  IV.  CHAP.  III. 

Never  was  the  seat  of  judgment  filled  by  a  more 
upright  or  independent  magistrate.  He 
was  likewise  celebrated  for  the  soundness 
of  his  decisions.  The  early  ABRIDGMENTS  swarm  with 
them  ;*  but  it  is  only  to  an  antiquarian  lawyer  that 
they  now  possess  any  interest.  Traits  of  disinter- 
estedness, fortitude,  and  magnanimity,  showing  an 
enlightened  sense  of  what  is  fit,  and  a  determina- 
tion, at  every  risk  and  every  sacrifice,  to  do  what 
duty  requires,  please  and  edify  all  future  genera- 
tions. Therefore,  although  the  ashes  of  Sir  William 
Gascoigne  have  reposed  upwards  of  four  centuries 
beneath  the  marble  which  protects  them,  and  although 
since  his  time  there  has  been  a  complete  change 
of  laws  and  manners, — when  we  see  him  despise 
the  frown  of  power,  our  sympathies  are  as  warmly 
excited  as  by  the  contemplation  of  a  Holt  or  a 
Camden. 

The  first  recorded  instance  of  an  independent  spirit 
A  D  1405  being  displayed  by  him,  to  the  wonder  of 
His  refusal  his  contemporaries,  was  when  he  attended 
Henry  IV.  to  the  north,  to  assist  in  putting 
down  an  insurrection,  planned  by  Scrope  the 
Archbishop  of  York  and  Thomas  Mowbray,  son  of  the 
banished  Duke  of  Norfolk  who  had  died  abroad.*  The 

of  Gascoigne's  appointment  to  this  office  office ;  and  Sir  William  Gascoigne's  opi- 
has  not  been  ascertained ;  and  some  have  nions  as  Chief  Justice  are  to  be  found 
deferred  it  for  a  year  or  two,  chiefly  on  in  the  Year-Books  from  the  very  com- 
the  ground  that  in  the  first  parliament  mencement  of  Henry's  reign, 
of  Henry  IV.  the  confession  of  John  *  See  references  to  them  in  Gascoigne's 
Hall,  concerned  in  the  murder  of  Thomas,  Year-Book,  part  vi.,  reign  of  Henry  IV., 
Duke  of  Gloucester,  by  smothering  him  and  Life  in  the  Biographia  Britannlca. 
between  two  feather  beds  at  Calais,  was  t  It  is  a  curious  fact  that  the  military 
taken  by  Sir  Walter  Clopton,  who  had  functions  of  the  Grand  Justiciar,  al- 
been  Chief  Justice  of  the  King's  Bench  though  no  longer  belonging  to  the  Chief 
in  the  reign  of  Richard  II.,  and  that  the  Justice  of  the  King's  Bench  virtute 
same  Sir  Walter  Clopton  was  summoned  officii,  were  sometimes  specially  as- 
to  parliament  the  following  year.  But  signed  to  him.  Thus,  in  the  rebellion  of 
all  this  is  .consistent  with  his  having  the  Percys,  two  years  before,  Chief  Jus- 
been  removed  to  an  inferior  judicial  tice  Gascoigne  had  been  sent  to  quell  it, 


A.D.  1408.          CHIEF  JUSTICE  GASCOIGNE.  147 

King,  having  made  these  two  rebels  prisoners,  directed 
Gascoigne,  as  Chief  Justice  of  England,  immediately  to 
sit  in  judgment  upon  them,  and,  by  his  own  authority, 
to  sentence  them  to  death.  But,  notwithstanding 
repeated  solicitations,  he  peremptorily  refused,  saying, 
"  Much  am  I  beholden  to  your  Highness,  and  all  your 
lawful  commands  I  am  bound  by  my  allegiance  to 
obey ;  but  over  the  life  of  the  prelate  I  have  not,  and 
your  Highness  cannot  give  me,  any  jurisdiction.  For 
the  other  prisoner,  he  is  a  peer  of  the  realm,  and  has  a 
right  to  be  tried  by  his  peers."  A  more  obsequious 
agent  was  found  in  Sir  "William  Fulthorpe,  a  worthless 
Puisne  Judge,  who,  in  the  hope  of  seeing  Gascoigno 
disgraced,  and  of  succeeding  to  the  office  of  Chief 
Justice,  having  placed  himself  on  a  high  throne  in  the 
Archbishop's  palace,  called  both  the  prisoners  before 
him,  and,  without  indictment,  or  form  of  trial,  con- 
demned them  both  to  be  beheaded.  The  sentence  was 
immediately  carried  into  execution.*  When  the  Par- 
liament was  afterwards  called  upon  to  ratify  this 
proceeding,  the  Lords  said  it  demanded  inquiry  and 
deliberation ;  and  the  matter  was  thus  laid  at  rest  for 
ever.j  It  is  pleasing  to  reflect  that  Fulthorpe  was 
disappointed  in  his  hope  of  promotion,  and  that  the 
virtuous  Chief  Justice  continued  to  hold  his  office  with 
increased  reputation.! 

Still  enjoying  the  confidence  of  the  King,  Gascoigne 
was  employed  by  him    "  to  treat  and  com- 
pound with,  and  offer  clemency  to,  the  ad- 
herents of  the  Earl  of  Northumberland ;    likewise  to 

fortified  with  a  commission  of  array,  visitation  of  Heaven  upon  him  for  the 

which  empowered  him  to  raise  forces  in  violent  death  of  the  Archbishop;  while 

the  northern  counties.    The  authority  to  Judge  Gascoigne  received  many  bless- 

press  into  the  service,  extends  to  "per-  ings  for  refusing  to  be  concerned  in  this 

sons  of  what  state,  degree,  or  condition  sacrilege.  —  Stow's    Annals,    fol.    333 ; 

whatsoever."—  Rym.  Feed.  vol.  viii.  319.  Mayd.   Hist.   Marty.;    Richard  Scrope, 

*  Rymer's  Feed.  vol.  viii.  319.  Ang.  Sac.  vol.  ii.  37<\ 

t  A  leprous  disease,  which  soon  after  J  Rot.  Parl.  iii.  606,  viii.  605;  Wals. 

attacked  the  King,  was  supposed  to  be  a  373 ;  Hall,  ii.  310. 

L   2 


148  EEIGN  OF  HENRY  IV.  CHAP.  III. 

receive  their  fines,  and  pay  them  into  the  Exchequer."* 
At  last,  all  the  attempts  of  the  discontented  Barons 
were  effectually  defeated,  and  Henry's  throne  was  as 
firmly  established  as  if  it  had  been  based  on  hereditary 
right. 

His  chief  anxiety  now  arose  from  the  irregularities 
of  his  son,  the  Prince  of  Wales,  who,  having  distin- 
guished himself  by  military  skill  and  bravery  in  the 
early  part  of  the  reign,  had  subsequently  abandoned 
himself  to  dissipation,  and  had  consorted  not  only  with 
buffoons,  but  with  persons  accustomed  to  minister  to 
their  profligate  expenses  by  forced  contributions  from 
travellers  on  the  highways. 

These  excesses  led  to  an  event  which  drew  great 
applause  upon  the  Prince  himself,  on  the  King,  'and 
still  more  on  Lord  Chief  Justice  Gascoigne.  But  I 
must  begin  by  showing  that  this  is  not  a  poetical 
fiction.  Formerly,  everything  recorded  by  historians 
was  believed ;  now,  everything  is  denied  or  doubted ; 
and  the  fact  of  the  commitment  of  the  Prince  of  Wales, 
afterwards  Henry  V.,  to  the  King's  Bench 
prison,  long  considered  as  authentic  as  his 

story  of  his     victory  at  Agincourt,   has   lately   been  re- 
committing J  '  ^  .  , 
the  Prince  of    ferred  to  the  same  class  of  narrative  as  the 

pnaien-t0qu  landing  of  King  Brute  after  the  siege  of 
^authentic?  Trov>  or  the  exploits  of  King  Arthur  and 

the  Knights  of  the  Eound  Table.f 
The  only  ground  on  which  this  scepticism  rests  is, 
that  the  story  cannot  be  pointed  out  in  any  written 
composition  given  to  the  world  till  rather  more  than  a 
century  after  Sir  William  Gascoigne's  death.  The  ob- 
jection would  have  been  very  strong,  if,  in  his  life- 
time, there  had  been  newspapers,  magazines,  annual 
registers,  and  memoirs,  detailing  all  the  proceedings 
of  courts  of  justice,  and  all  the  occurrences  of  political 

*  Rymer's  Feed.  vol.  viii.  520.        f  See  Tyler's  Life  of  Henry  V.,  vol.  i.  c.  16. 


A.  D.  1410— 
1412. 


A.D.  1412.  CHIEF  JUSTICE  GASCOIGNE.  149 

and  private  life,  which  can  be  interesting  to  any  class 
of  readers.  Even  in  that  case,  a  little  consideration 
should  be  had  of  the  probable  unwillingness  to  pro- 
claim to  all  mankind  anecdotes  discreditable  to  the 
heir  apparent ;  and  certainly  several  respecting  George 
IV.  when  Prince  of  Wales,  which  have  not  as  yet  ap- 
peared in  print,  have  been  circulated  in  society,  and 
may  hereafter  be  related  by  grave  historians.  But 
during  the  fifteenth  century, — although,  from  the  Close 
Koll,  the  Pell  Eoll,  and  the  Parliament  Eoll,  we  have 
minute  information  of  the  appointment  of  judges,  the 
assembling  and  prorogation  of  parliaments,  and  other 
such  matters  as  were  considered  "  of  record," — many 
interesting  events,  the  universal  subjects  of  conversa- 
tion when  they  occurred,  long  rested  on  tradition, 
and  were  orally  transmitted  by  one  generation  to 
another,  till  a  chronicler  arose,  who  embraced  the 
period  to  which  they  were  ascribed,  and  who  related 
them  substantially  as  they  happened,  although  he 
might  be  chargeable  with  some  inaccuracy  or  exag- 
geration. 

The  first  book  in  which  there  is  an  account  of  the 
imprisonment  of  Henry  the  Prince  of  Wales    when  and 
by  Sir  W.  Gascoigne  was  printed  in  the  year   where  first 

.     '  .      r  •*  mentioned. 

1534 ;  but  no  intervening  writer  could  rea- 
sonably have  been  expected  to  relate  it.  We  should 
remember  that,  during  a  great  portion  of  this  period, 
literature,  which  had  made  wonderful  progress  for  half 
a  century  before,  was  nearly  extinguished  by  the  War 
of  the  Eoses,  and  that  Sir  Thomas  More's  History 
(ascribed  by  some  to  Cardinal  Morton),  the  only  his- 
torical work  in  the  English  language  previously  pub- 
lished, begins  with  the  reign  of  Edward  V. 

Sir  Thomas  Elyot,  who  thus  narrates  the  transac- 
tion in  his  work  entitled  "  THE  GOVERNOR,"  dedicated 
to  King  Henry  VIII.,  was  no  romancer,  but  introduces 


150  REIGN  OF  HENRY  IV.  CHAP.  III. 

it  as  a  true  statement  of  facts,  among  other  historical 
anecdotes  which  cannot  be  questioned : — 

"  The  moste  renouned  prince  king  Henry  the  fyfte,  late  kynge  of 
storv  as  re-  Englande,  durynge  the  lyfe  of  his  father,  was  noted 
iated  by  Sir  to  be  fiers  and  of  wanton  courage :  it  hapned,  that 
Thomas  one  Of  njs  seruatmtes,  whom  he  fauoured  well,  was, 
for  felony  by  him  committed,  arrained  at  the  kynges 
benche :  whereof  the  prince  being  aduertised  and  incensed  by 
lyghte  persones  aboute  him,  in  furious  rage  came  hastily  to  the 
barre  where  his  seruante  stode  as  a  prisoner,  and  conimaunded 
him  to  be  vngyued  and  set  at  libertie :  whereat  all  men  were 
abashed,  reserved  the  chiefe  Justice,  who  humbly  exhorted  the 
prince  to  be  contented,  that  his  seruaunt  mought  be  ordred, 
accordynge  to  the  aunciente  lawes  of  this  realme  :  or  if  he  wolde 
haue  hym  saued  from  the  rigour  of  the  lawes,  that  he  shulde 
obteyne,  if  he  moughte,  of  the  kynge  his  father,  his  gratious 
pardon,  wherby  no  lawe  or  justyce  shulde  be  derogate.  With 
whiche  answere  the  prince  nothynge  appeased,  but  rather  more 
inflamed,  endeuored  hym  selfe  to  take  away  his  seruant.  The 
iuge  considering  the  perillous  example  and  inconuenience  that 
mought  therby  ensue,  with  a  valyant  spirite  and  courage,  com- 
manded the  prince  vpon  his  alegeance,  to  leave  the  prisoner,  and 
depart  his  way.  With  which  commandment  the  prince  being 
set  all  in  a  fury,  all  chafed  and  in  a  terrible  maner,  came  vp  to 
the  place  of  iugement,  men  thynking  that  he  wold  haue  slayne 
the  iuge,  or  haue  done  to  hym  some  damage :  but  the  iuge 
sittynge  sty  11  without  mouing,  declaring  the  maiestie  of  the 
kynges  place  of  iugement,  and  with  an  assured  and  bolde  coun- 
tenaunce,  had  to  the  prince  these  wordes  followyng : 

"  '  Syr,  remembre  yourselfe,  I  kepe  here  the  place  of  the  kyng 
your  soueraine  lorde  and  father,  to  whom  ye  owe  double  obe- 
dience :  wherfore  eftsoones  in  his  name,  I  charge  you  desyste  of 
your  wylfulnes  and  vnlaufull  enterprise,  &  from  hensforth  giue 
good  example  to  those,  whyche  hereafter  shall  be  your  propre 
subjectes.  And  nowe,  for  your  contempte  and  disobedience,  go 
you  to  the  prysone  of  the  kynges  benche,  wherevnto  I  commytte 
you,  and  remayne  ye  there  prysoner  vntyll  the  pleasure  of  the 
kynge  your  father  be  further  knowen.' 

"  With  whiche  wordes  being  abashed,  and  also  wondrynge  at 
the  meruaylous  gravitie  of  that  worshypfulle  justyce,  the  noble 
prince  layinge  his  weapon  aparte,  doying  reuerence,  departed, 
and  wente  to  the  kynges  benche,  as  he  was  commanded.  Wherat 
his  servauntes  disdaynynge,  came  and  shewed  to  the  kynge  all 
the  hole  affaire.  Whereat  he  awhyles  studyenge,  after  as  a  man 


A.D.  1412.  CHIEF  JUSTICE  GASCOIGNE.  151 

all  rauyshed  with  gladues,  holdynge  his  eien  and  handes  vp  to- 
warde  heuen,  abraided,  saying  with  a  loude  voice,  '  0  mercifull 
God,  howe  moche  am  I,  aboue  all  other  men,  bounde  to  your 
infinite  goodnes,  specially  for  that  ye  haue  gyuen  me  a  iuge,  who 
feareth  nat  to  minister  iustyce,  and  also  a  sonne,  who  can  suffre 
semblably,  and  obeye  iustyce  ! ' " 

Hall,  whose  Chronicle  was  published  at  the  com- 
mencement of  the  reign  of  Edward  VI.,  gives  another 
version  of  the  story,  varying  as  to  some  particulars  — 
in  the  same  manner  as  he  might  vary  from  other 
writers  in  relating  the  Battle  of  Bosworth.  Says  he — 
"  For  imprisonment  of  one  of  his  wanton  mates  and 
unthrifty  playfaires,  the  Prince  strake  the  Chief  Justice 
with  his  fist  on  his  face  ;  for  which  offence  he  was  not 
only  committed  to  streight  prisone,  but  also  of  his 
father  put  out  of  the  privie  council  and  banished  the 
court."* 

I  next  call  as  witnesses  two  lawyers,  very  dull,  but 
very  cautious,  men,  Sir  Eobert  Catlyne,  Chief  Justice 
of  the  King's  Bench,  and  Sir  John  Whiddin,  a  Puisne 
Judge  of  that  Court,  in  the  beginning  of  the  reign  of 
Queen  Elizabeth,  who,  sticking  to  the  YEAR-BOOKS, 
probably  had  never  read  either  Elyot  or  Hall,  and  who 
knew  nothing  of  Gascoigne  except  by  the  sure  tra- 
ditions of  Westminster  Hall.  Crompton,  an  accurate 
juridical  writer,  who  then  published  a  book  entitled 
"  Authoritie  et  Jurisdiction  des  Courts,"  in  reporting 
a  decision  of  the  Court  of  King's  Bench,  says, — 

"  Whidden  cites  a  case  in  the  time  of  Gascoigne,  Chief  Justice 
of  England,  who  committed  the  Prince  to  prison  because  he 
would  have  taken  a  prisoner  from  the  bar  of  the  King's  Bench ; 
and  he,  very  submissively  obeying  him,  went  thither,  according 
to  order :  at  which  the  King  was  highly  rejoiced  in  that  he  had 
a  Judge  who  dared  to  minister  justice  upon  his  son  the  Prince, 
and  that  he  had  a  son  who  obeyed  him." 

*  4th  ed.  p.  46. 


152 


KEIGN  OF  HENKY  IV.  CHAP.  III. 


Catlyne  C.  J.  is  then  represented  as  assenting  and 
rejoicing  in  the  praises  of  his  predecessor.* 

The  drama  making  rapid  progress,  and  historical 
plays  coming  into  fashion,  there  was  soon 
ra  thHtege.  a^ter  produced  a  very  popular  piece,  with 
the  title  of  "  Henry  the  Fyfte,  his  Victories, 
containing  the  honorable  battle  of  Agincourt,  &c." 
The  first  act  exhibits  many  of  his  pranks  while  he 
was  Prince  of  Wales,  with  the  scene  between  him  and 
Chief  Justice  Gascoigne.  The  author  folhrw^Hall  in 
supposing  that  a  blow  had  actually  been  inflicted, — 
which  I  make  no  doubt  was  an  exaggeration.  Of  one 
of  the  representations  of  this  play  we  have  a  very 
amusing  account  in  a  book  entitled  "  TARLETON'S  JESTS," 
published  in  the  reign  of  James  I.  The  famous  co- 
median of  that  name,  who  died  in  1592,  had  been  long 
the  delight  of  the  public  in  the  part  of  the  "  Clown," 
— disregarding  the  precept  to  "  speak  no  more  than 
was  set  down  for  him."  But,  though  this  was  his 
forte,  he  could,  on  a  pinch,  take  a  graver  character,  and 
personate  a  Ghost  or  a  Judge.  It  so  happened  that 
when  "  Henry  the  Fyfte  "  had  drawn  a  crowded  house, 
it  was  discovered  that  Lord  Chief  Justice  Gascoigne 
had  got  so  excessively  drunk  that  he  could  not  take  his 
place  upon  the  bench,  and  Tarleton  agreed  to  "  sit  for 
him,"  still  retaining  his  own  part  of  the  Clown,  who, 
luckily,  was  not  to  appear  in  the  presence  of  his 
lordship.  The  author,  after  intimating  the  difficulty 
into  which  the  company  had  been  thrown,  and  the  ex- 
pedient resorted  to,  thus  proceeds  : — 

"  In  this  play  the  judge  on  the  bench  was  to  receive  a  blow  of 
Prince  Henry,  who  was  represented  by  one  Knoll,  another  droll 

*  4th   ed.    1594,  p.  79.     "  Whidden  luy  obey  hurablement,  et  ala  auxi  a  sou 

vouche  un  case  en  temps  Gascoign  Chief  commandment ;  In  que  le  Roy  grande- 

Justice    D'Englitierr,    que    commit    le  ment  rejoice  in  ceo  quil  avoit  Justice  que 

Prince  (que  voile  aver  pris  un  prisoner  osast  minister  Justice  a  son  fits  le  Prince 

del  barre  in  Banco  Regis)  al  prison ;  que  et  que  il  avoit  Fits  que  luy  obey." 


A.D.  1412.  CHIEF  JUSTICE  GASCOIGNE.  153 

comedian  of  those  times  ;  and,  when  it  was  to  be  done,  lie  struck 
the  Chief  Justice  Tarlton  such  a  swinging  box  on  the  ear  as 
almost  felled  him  to  the  ground,  and  set  the  whole  house  in  an 
uproar  of  merriment.  When  '  Tarlton  the  Judge '  went  off,  pre- 
sently after  entered  '  Tarlton  the  Clown  ;'  and,  according  to  that 
liberty  wherewith  the  players  in  those  days  were  indulged,  of 
intruding  interrogatories  of  their  own  in  the  midst  of  their  acting, 
he  very  simply  and  unconcernedly  asked  the  occasion  of  that 
laughter,  like  one  who  was  an  utter  stranger  to  it.  '  0,'  said 
another  of  the  actors,  '  hadst  thou  been  here  thou  hadst  seen 
Prince  Henry  hit  the  Judge" a  terrible  bos  on  the  ear.'  '  What! 
strike  a  Judge  ! '  quoth  Tarlton.  '  Nothing  less,'  said  t'other. 
'  Then,'  replied  he,  '  it  must  be  terrible  to  the  Judge,  since  the 
very  report  of  it  so  terrifies  me,  that  methinks  the  place  remains 
so  fresh  still  on  my  cheek  that  it  burns  again.'  This,  it  seems, 
raised  a  greater  acclamation  in  the  house  than  there  was  before ; 
and  this  was  one  example  of  that  extempore  wit  or  humour  for 
which  Tarlton  was  so  much  admired  and  remembered  many 
years  after  his  death." 

The  case  which  I  advocate  is,  I  think,  materially 
strengthened  by  the  evidence  of  WILLIAM 
SHAKSPEARE,  who,  in  his  historical  plays,  al-  story  is6 
though  very  careless  about  dates,  is  scrupu- 
lously  accurate  about  facts,  and  never  intro- 
duces any  which  do  not  rest  upon  what  he  considered 
good  authority ;  insomuch  that  our  notions  of  the 
Plantagenet  reigns  are  drawn  from  him  rather  than 
from  Hollinshed,  Rapin,  or  Hume.  On  the  faith  of 
tradition,  or  of  books  which  he  had  read,  he  evidently 
had  in  the  truth  of  the  story  a  strong  belief,  which  is 
constantly  breaking  out.  Thus,  when  the  Chief  Justice 
is  first  seen  at  a  distance,  Falstaff's  page  says,  "  Sir, 
here  comejs  the  nobleman  that  committed  the  Prince 
for  striking  him  about  Bardolph."* 

Again,  on  news  arriving  of  the  death  of  Henry  IV., 
we  have  the  following  dialogue : — 

Ch.  Justice.     "  I  would  his  majesty  had  called  me  with  him : 
The  service  that  I  truly  did  his  life 
Hath  left  me  open  to  all  injuries." 


*  Second  Part  of  Henry  IV.  act  i.  sc.  2. 


154  KEIGN  OF  HENRY  IV.  CHAP.  III. 

Warwick.        "  Indeed,  I  think  the  young  King  loves  you  not." 
Ch.  Justice.     "  I  know  he  doth  not;  and  do  arm  myself 

To  welcome  the  condition  of  the  time ; 

Which  cannot  look  more  hideously  upon  me 

Than  I  have  drawn  it  in  my  fantasy. 

Sweet  princes,  what  I  did  I  did  in  honour, 

Led  by  the  impartial  conduct  of  my  soul ; 

And  never  shall  you  see  that  I  will  beg 

A  ragged  and  forestall'd  remission. 

If  truth  and  upright  innocency  fail  me, 

I'll  to  the  King  my  master  that  is  dead, 

And  tell  him  who  hath  sent  me  after  him." 

When  the  Prince  enters,  as  Henry  V.,  he  thus  ad- 
dresses the  Chief  Justice  : — 

"  You  are,  I  think,  assur'd  I  love  you  not." 
Ch.  Justice.     "  I  am  assur'd,  if  I  b3  measur'd  rightly, 

Your  Majesty  hath  no  just  cause  to  hate  me." 
King.  "  No ! 

How  might  a  prince  of  my  great  hopes  forget 

So  great  indignities  you  laid  upon  me  ? 

What !  rate,  rebuke,  and  roughly  send  to  prison 

The  immediate  heir  of  England !   Was  this  easy  ? 

May  this  be  wash'd  in  Lethe,  and  forgotten  ?" 
Ch.  Justice.     "  I  then  did  use  the  person  of  your  father ; 

The  image  of  his  power  lay  then  in  me : 

And,  as  you  are  a  king,  speak  in  your  state, 

What  I  have  done  that  misbecame  my  place, 

My  person,  or  my  liege's  sovereignty." 
King.  "  You  are  right,  Justice,  and  you  weigh  this  well ; 

Therefore,  still  bear  the  balance  and  the  sword : 

And  I  do  wisli  your  honours  may  increase, 

Till  you  do  live  to  see  a  son  of  mine 

Offend  you,  and  obey  you,  as  I  did."  * 

It  was  imagined  that  the  authority  of  Shakspeare  on 
this  question  was  demolished,  and  a  great  triumph  was 
claimed  over  him  by  the  assertion  that  Sir  William 
Gascoigne  at  this  time  could  not  feel  any  apprehension 
of  the  earthly  consequences  of  any  deed  he  had  done  in 
the  body,  as  he  was  sleeping  in  his  grave,  having  died 
some  months  before  his  patron,  Henry  IV. ;  but  I  shall 
hereafter  prove  to  demonstration  that  Sir  William  Gas- 
coigne survived  Henry  IV.  several  years,  and  actually 
filled  the  office  of  Chief  Justice  of  the  King's  Bench 
under  Henry  V/j" 

*  Second  Part  of  Henry  IV.  act.  v.  sc.  2.     his  father's  death  on  the  20th  of  March, 
•}•  Henry  V.,  having  become  King  by     1413,  was  crowned  on  the  9th  of  April 


A.D..1412.  CHIEF  JUSTICE  GASCOIGNE.  155 

In  the  same  reckless  spirit  of  questioning  what  has 
long  been  taken  for  implicit  truth,  several  who  were 
not  bold  enough  to  deny  that  Henry  V.,  when  Prince 
of  Wales,  was  committed  to  prison,  have  denied  the 
honour  of  the  act  to  Sir  William  Gascoigne,  Refutation  of 
and  have  started  other  candidates  for  it.  the  claims  of 
The  "  Devonians,"  who  think  that  nothing 
great  or  good  can  have  been  done  in  England  unless 
by  a  "worthy  of  Devon,"  taking  advantage  of  the 
language  of  chroniclers,  who  trusting  to  the  noto- 
riety of  the  story,  mentioned  the  judge  only  under 
the  designation  of  the  "Chief  Justice,"  claim  the 
commitment  of  the  Prince  of  Wales  for  two  of  their 
countrymen,  Chief  Justice  Hankford  and  Chief  Justice 
Hody.*  When  I  hear  of  high  Devonian  pretensions, 
I  confess  I  am  reminded  of  the  celebrated  saying  of 
Serjeant  Davy,  that  "the  oftener  he  went  into  the 
West,  he  better  understood  how  the  WISE  MEN  came 
from  the  East."  In  this  instance  it  is  quite  certain 
that  the  pretension  proceeds  on  gross  ignorance  and 
carelessness,  for  Sir  William  Hankford  was  not  ap- 
pointed Chief  Justice  of  the  King's  Bench  till  some 
time  after  Henry  V.  had  actually  been  on  the  throne, 
and  (better  still)  Sir  John  Hody  was  not  appointed  Chief 
Justice  of  the  King's  Bench  till  many  years  after 
Henry  V.  had  been  in  his  grave,  viz.,  the  eighteenth 
year  of  the  reign  of  his  son  and  successor,  Henry  VI. f 

following ;  and  all  historians,  chroniclers,  Elm.  16.  Trussell's  Continuation  of 
and  biographers,  agree  that  the  following  Daniel  introduces  Guscoigne's  name,  and 
day,  when  his  council  was  sworn  in  (for  makes  Henry,  after  relating  the  commit- 
still  the  Kings  of  England  were  not  con-  ment,  thus  conclude:  "  For  which  act  of 
sidered  as  fully  entitltd  to  rule  before  justice  I  shall  ever  hold  him  worthy  of 
their  coronation),  he  made  a  speech  in  the  place  and  my  favour,  and  wish  all 
which  he  renounced  his  former  lewd  my  judges  to  have  the  like  undaunted 
companions,  he  forgave  his  father's  coun-  courage  to  punish  offenders  of  whatever 
cillors  who  had  offended  him  by  trying  rank." — Cited  in  Fuller's  Worthies,  505. 
to  correct  his  faults,  and  he  reappointed  *  Prince's  Worthies  of  Devon;  Ri»- 
such  of  the  judges  as  had  best  done  don's  Worthies  of  Devon, 
their  duty,  and  were  most  in  his  father's  t  Dudgd.  Chron.  Ser. 
confidence.— See  Wals.  382 ;  Otturb.  273 ; 


156  KEIGN  OF  HENRY  IV.  CHAP.  III. 

The  same  impossibility  does  not  stand  in  the  way  of 
a  claim  set  up  for  Sir  John  Markham  by  his  descend- 
ants, on  the  strength  of  some  supposed  family  papers 
which  have  not  been  communicated  to  the  public. 
He  was  a  Chief  Justice  from  the  20th  of  Eichard  II. 
to  9th  Henry  IV. ;  but  then  he  was  Chief  Justice  of 
the  Common  Pleas,  and,  although  the  commitment  is 
sometimes  said  to  have  been  to  the  Fleet — the  prison 
of  that  Court — it  is  quite  clear  that  no  arraignment 
of  Bardolph,  or  any  other  associate  of  the  Prince,  could 
have  taken  place  in  the  Court  of  Common  Pleas,  which 
has  cognizance  only  of  civil  actions.* 

I  think  I  am  now  fully  entitled  to  ask  for  a  verdict 
in  favour  of  my  client,  Sir  William  Gascoigne.  For 
the  honour  of  the  profession  to  which  I  am  proud  to 
belong,  I  do  feel  anxious  to  establish  the  fact  which 
has  been  taken  for  true  by  so  many  chroniclers,  his- 
torians, moralists,  and  poets. 

There  was  here  no  official  insolence,  or  strain  of 
Merit  fsir  jurisdiction,  for  the  sake  of  gaining  popu- 
w.  Gas-  larity.  Independently  of  the  blow,  which 

coigne  in  *  «  i         ••«  i_  i«          i  •  •    . 

this  trans-  may  be  safely  disbelieved,  as  inconsistent 
with  the  generous  feeling  by  which  Henry 
was  actuated  in  his  wildest  moments, — he  had  insulted 
the  first  Criminal  Judge,  sitting  on  his  tribunal, — and 
he  had  no  privilege  from  arrest  beyond  that  of  a 
peer — which  did  not  extend  to  such  an  enormity. 
But  there  had  been  no  precedent,  in  the  history  of  this 
or  any  other  European  monarchy,  of  a  Temporal  Judge, 
with  delegated  authority,  for  an  insult  offered  to  him- 
self, sending  to  gaol  the  son  of  the  Sovereign,  who 
must  himself  mount  the  throne  on  his  father's  death, — 
to  be  detained  there  in  a  solitary  cell,  or  to  associate 

*  Baker's  Chronicle  says,  that  the  com-     the  Prince's  servant,  which  gave  rise  to 
mitment  was  to  the  Fleet,  but  at  the     it,  was  at  the  King's  Bench  bar. 
same  time  says  that  the  arraignment  of 


A.D.  1412.  CHIEF  JUSTICE  GASCOIGNE.  157 

with  common  malefactors.  We  must  remember  that 
Gascoigne  held  his  office  during  pleasure,  and  that,  while 
by  this  act  there  seemed  a  certainty  of  his  being  dis- 
missed, and  made  an  object  of  royal  vengeance,  on  a 
demise  of  the  Crown,  —  there  was  a  great  danger  of  his 
incurring  the  immediate  resentment  of  the  reigning 
Sovereign,  who  might  suppose  that  the  divinity  which 
ought  to  hedge  the  blood  royal  had  been  profaned. 
Every  thing  conspires  to  enhance  the  self-devotion  and 
elevation  of  sentiment  which  dictated  this  illustrious 
act  of  an  English  Judge  ;  and  the  noble  independence 
which  has  marked  many  of  his  successors  may,  in  no 
small  degree,  be  ascribed  to  it  :  — 

"  While  dauntless  Gascoigne,  from  the  judgment-seat, 
To  justice  does  make  princely  power  submit, 
Dares  tame  by  law  him  who  all  laws  could  break,  , 

And  to  a  hero  raise  a  royal  rake  : 
While  we  such  precedents  can  boast  at  home, 
Keep  thy  Fabricius  and  thy  Cato,  Rome  !"  * 

Shakspeare,  who,  although  adhering  to  substantial 
facts,  in  dramatising  English  history,  never  minds 
anachronisms,  even  with  respect  to  events  that  had 
happened  very  shortly  before  his  own  time  f,  represents 
the  commitment  of  the  Prince  of  Wales  by  Chief 
Justice  Gascoigne  to  have  been  before  the  insurrection 
led  by  Archbishop  Scrope  in  the  year  1405  ;  but  other 
arthorities  place  it,  with  more  probability,  in  the  latter 
part  of  the  reign  of  Henry  IV.,  when  the  Prince  had 
taken  to  dissolute  courses  from  want  of  public  employ- 
ment, and  had  been  dismissed  from  the  Privy  Council,  — 
making  way  for  his  graver  brother  John,  i 

We  do  not  read  of  any  other  remarkable  achieve- 
ment of  the  Chief  Justice,  except  as  a  SirWilIiam 
law  reformer.  There  were  heavy  complaints 


.,        TT  r.     /-i  I'll  law  reforms. 

in   the   House   ot    Commons  —  which    have 

*  See  Biog.  Britan.,  title  "  Gascoigne."        J  See  Hume,  vol.  iii.  p.  86  ;  Lingard, 
f  The    play   of   King    Henry    VIII.     vol.  iv.  319,  voL  v.  2. 
abounds  with  them. 


158  EEIGN  OF  HENRY  IV.  CHAP.  III. 

continued  down  to  our  time — that  exorbitant  fees  were 
levied  upon  litigants  by  the  officers  of  the  different 
Courts.  In  consequence,  Gascoigne  instituted  an  in- 
quiry upon  the  subject,  and,  with  the  concurrence  of 
the  other  Judges,  published  a  table  of  such  fees  as 
might  be  legally  demanded.*  A  more  general  griev- 
ance was  stated  to  be  the  multiplication  of  attor- 
neys. In  the  reign  of  Edward  I.  there  were  only 
140  in  all  England,  and  their  number  now  exceeded 
2000.  This  was  a  proof  of  increasing  population, 
wealth,  and  civilisation ;  but  a  general  cry  arose 
"  that  the  people  were  pilled  by  barrators  and 
pettifoggers ;"  and  there  was,  no  doubt,  a  want  of 
regulations  to  prevent  the  admission  of  improper 
persons  into  the  profession,  and  to  punish  those  who 
acted  discreditably.  To  meet  these  evils,  Chief  Justice 
Gascoigne  framed  a  statute,  which  was  adopted  by  the 
legislature, — whereby  attorneys  were  subjected  to  an 
examination  before  they  were  admitted ;  and,  if  con- 
victed of  any  fraud,  "  should  never  after  be  received  to 
make  any  suit  in  any  Court  of  the  King."f  He 
likewise,  with  the  assent  of  his  brethren,  promulgated 
a  rule  of  Court  that  attorneys  should  be  sworn  every 
term  "  to  deal  faithfully,  and  make  their  ransom  to  the 
King's  will." 

Besides  administering  justice  to  the  parties  who 
came  regularly  before  his  tribunal  by  judicial  process, 
Gascoigne  followed  a  practice  which  continued  in  use 


*  Cotton's  Records,  p.  409.  delgnez  est  et  establiz  que  toutz  les  at- 

f  4  Hen.  IV.  c.  18.     The  preamble  tournees  soient  examinez  par  lez  Jus- 

(no  doubt  drawn  by  Gascoigne)  affords  a  tices.''  &c. 

curious  specimen  of  legislative  language  Till  the  stat.  West.  2,  c.  10,  allowing 

in  those  days: — "  Item  pur  pleusours  attorneys  to  be  made  to  prosecute  and 

damages   et   meschiefs  quont   advenuz  defend     an    action,    every  suitor    was 

devaunt  ces  heures  as  diverses  gentz  du  obliged  to  appear  in  person,  unless  by 

Roialme  par  le  grant  nombre  des  attour-  special  licence  under  the  King's  letters 

nees  nient  sachantz  naprises  de  la  loye  patent.— 3  SI.  Com.  26. 
come  ils  soloient  estre  pardevant;  or- 


A.D.  1412.  CHIEF  JUSTICE  GASCOIGNE.  159 

among  Judges  of  the  highest  rank,  down  to  the  time  of 
Sir  Matthew  Hale,  in  the  reign  of  Charles  II., 
of  settling  differences  privately  by  arbitra- 
tion, on  the  voluntary  submission  of  the  parties.     We 
are  minutely  informed  of  the  circumstances  of  one  case 
thus  referred  to  him,  illustrating  graphically  the  man- 
ners of  the  age  : — 

"  William  Lord  Eoos  complained  to  the  King  of  Sir  Eobert 
Therwit,  a  Puisne  Judge  of  the  King's  Bench,  for  not 
only  unjustly  depriving  him  of  certain  lands  in  the  Curious  case 
county  of  Lincoln,  but  for  lying  in  wait  with  500  men  j£t^  ag  ane 
to  seize  and  ill  use  him.  Sir  Robert  confessed  his  arbitrator, 
fault  in  using  such  violent  means  to  assert  his  right, 
and  offered  to  abide  by  the  order  of  two  Lords  of  the  com- 
plainant's own  kindred  as  to  the  mode  of  settling  the  dispute. 
They  enjoined  Sir  Eobert  to  make  a  great  feast  at  Melton  le 
Roos,  the  scene  of  the  riot ;  that  he  should  prepare  two  fat  oxen, 
twelve  sheep,  two  tuns  of  Gascogny  wine,  with  other  suitable 
provisions,  and  then  assemble  thither  all  such  knights,  esquires, 
and  yeomen  as  had  been  his  accomplices;  that  they  should 
confess  their  misbehaviour  to  the  Lord  Roos,  crave  his  pardon, 
and  make  him  an  offer  of  500  marks  in  recompence ;  that  the 
Lord  Roos  should  refuse  their  money,  but  pardon  them,  and 
partake  of  their  dinner  in  token  of  his  reconciliation  ;  and  that 
the  title  to  the  land  should  be  settled  by  that  learned  and  revered 
Judge,  SIB  WILLIAM  GASCOIGNE.  We  are  not  told  what  his 
award  was ;  but  we  need  not  doubt  that  it  did  ample  justice 
between  the  parties."  * 

Having  narrated  all  that  I  find  interesting  in  the 
life  of  Lord  Chief  Justice  Gascoigne,  I  have 
only  to    discuss  the   controverted   question    Refutation  of 

•  i  •  «•    i  •        -i        -i          T-i    1-1          the  assertion 

respecting  the  time  of  his  death.     Fuller   that  he  died 
(generally  a  trustworthy  authority)  fixes  it    Of  Henry  r^. 
on  Sunday  the  17th  day  of  December,  1412, 
— vouching  an  inscription  on  the  Judge's  tomb  ; — and 
this  date  was  long  considered  as  irrevocably  fixed, — 
writer  after  writer  pointing  out  the  flagrant  violation 
of  history  by  Shakspeare,  in  bringing  the  deceased 

*  Cotton's  Records,  anno  1411. 


160  EEIGN  OF  HENEY  IV.  CHAP.  III. 

Chief  Justice  on  the  stage  along  -with  King  Henry  V., 
and  recording  a  dialogue  between  them.* 

But  a  difficulty  arose  from  the  1 7th  of  December,  1412, 
having  fallen  not  on  a  Sunday  but  on  a  Saturday.  Then 
came  a  discovery,  that  in  the  summonses  for  a  new 
parliament  issued  by  Henry  V.  on  the  22d  of  March, 
1413,  the  day  after  he  was  proclaimed  King,  is  found  one 
to  "  Sir  William  Gascoigne,  Knight,  Chief  Justice  of  our 
Lord  the  King,  assigned  to  hold  pleas  before  our  Lord 
the  King  before  the  King  himself."  But  as  his  name  is 
not  mentioned  in  the  roll  of  the  proceedings  of  the 
House  of  Lords,  when  Parliament  met  in  the  month  of 
May  following,  it  was  supposed  that  this  summons  must 
be  a  mistake ;  and  an  assertion  was  made,  that  Sir 
William  Hankford,  his  successor,  had  previously  been 
appointed  Chief  Justice.  Some  who  could  not  believe 
that  the  date  1412  was  right,  carried  it  on  to  1413, 
when  the  1 7th  of  December  did  fall  on  a  Sunday ;  but 
still  insisted,  that  Gascoigne  never  was  Chief  Justice 
of  the  King's  Bench  under  Henry  V.,  and  that,  being 
displaced  on  the  demise  of  Henry  IV.,  the  story  of  his 
having  committed  the  Prince  of  Wales  to  prison  could 
receive  no  confirmation  from  the  dialogue  at  his  sup- 
posed reappointment. 

The  matter,  however,  has  been  placed  beyond  all 
doubt  by  the  discovery  of  the  Chief  Justice's 
last  will  and  testament,  in  the  registry  of 
the  Ecclesiastical  Court  at  York.  It  bears  date,  accor- 
ding to  the  mode  then  in  fashion  of  computing  time, 
which  Puseyites  wish  to  revive,  on  "  Friday  after  St. 
Lucy's  Day,  A.D.  1419."  St.  Lucy's  Day  that  year  fell  on 
Wednesday,  1 3th  of  December ;  and,  consequently,  the 
will  was  made  on  Friday,  the  1 5th  of  December.  Probate 
was  granted  on  the  23d  of  the  same  month.  Conse- 
quently, the  Chief  Justice  must  have  died  on  the  17th  of 

*  See  Gentleman's  Magazine,  vol.  xi.  p.  516. 


A.D.  1412-19.      CHIEF  JUSTICE  GASCOIGNE.  161 

December,  1419,  which  was  that  year  again  on  a 
Sunday.  The  testator  declares,  that  he  was  "weake 
in  bodie,  though  of  sounde  and  disposing  minde  and 
understanding."* 

We  must,  therefore,  inevitably  come  to  the  conclu- 
sion, that  Sir  William  Gascoigne  did  survive  Henry 
IV.,  that  he  was  reappointed  by  Henry  V.,  and  that  he 
was  summoned  as  Chief  Justice  of  the  King's  Bench  to 
the  first  parliament  of  that  monarch.  The  probability 
is,  that  soon  afterwards,  either  being  struck  by  some 
disease,  or  weakened  by  the  infirmities  of  age,  he 
voluntarily  resigned  his  office,  and  spent  his  last  years 
in  retirement,  preparing  for  the  awful  change  which 
awaited  him. 

On  withdrawing  from  the  Bench,  he  must  have 
carried  with  him  the  respect  of  the  profession  and  the 
public :  and  we  know  that  he  was  still  treated  with 
courtesy  and  kindness  by  his  young  Sovereign ;  for  there 
is  now  extant  a  royal  warrant,  dated  28th  November, 
1414,  the  year  after  his  retirement,  granting  to  "  our 
deare  and  well-beloved  William  Gascoigne,  Knt.,  an 
allowance,  during  the  term  of  his  natural  life,  of  four 
bucks  and  four  does  every  year  out  of  our  Forest  of 
Pontifract."t 

He  had  an  ample  patrimonial  estate  to  retire  upon ; 
and  to  such  an  extent  had  he  increased  his  riches,  that 
he  lent  large  sums  of  money  to  the  King.J 

He  was  buried  in  the  parish  church  of  Harwood  in 
Yorkshire,  near  Gawthorp. 

*  He  does  not  designate  himself  as  — See  Tyler's  Life  of  Henry  V.  vol.  i. 

"  late  Chief  Justice,"  but  the  identity  of  p.  376. 

the  testator  with  the  Chief  Justice  is  f  See  Tyler's  Life  of  Henry  V.  vol  i. 

placed  beyond  all  doubt  by  his  mention  p.  379. 

of  different  members  of  his  family,  and  J  The   Pell   Roll,    14th   May,  1420, 

particularly  of  his  two  wives ;  the  latter  within  half  a  year  of  his  death,  states 

of  whom  was  then  alive,  and  in  her  will,  the  repayment  to  his  executors  of  a  sum 

subsequently  made  and  preserved  in  the  which  he  had  advanced  without  security 

same  register,  styles  herself  "  widow  of  to  the  Royal  Exchequer. 
William  Gascoyne,  late  Chief  Justice." 

VOL.   I.  M 


162  REIGN  OF  HENRY  IY.  CHAP.  III. 

A  tomb  was  afterwards  erected  there  to  his  memory, 
which  represents  him  in  a  kneeling  posture, 

ami  epitaph  *n  ^s  Judge's  robes,  with  a  large  purse  tied 
to  his  girdle,  a  long  dagger  in  his  right  hand, 

and  his  wives  kneeling  on  either  side  of  him.*    A  brass 

plate,  affixed  to  it,  bears  an  inscription,  of  which  the 

following  words  are  still  legible : — 

"Orate  pro  Gulielmo  Gascoyne  et  Elizabeths  et  Johannse  uxorihns  ejus 
Hie  jacet  Gulielmus  Gascoyne  nuper  Capitalis  Justiciar.  de  Banco  Henrici  nuper 
Regis  Angl. 

Obiit  Die  Dominica  17  Dec.  A.D. ."f 

The  rest  of  the  brass  plate  is  wanting,  and  is  said  to 
have  been  torn  off  by  one  of  Cromwell's  soldiers  during 
the  civil  wars. 

His  wife  Elizabeth  was  the  daughter  and  sole 
heiress  of  Sir  Alexander  Mowbray,  of  Eutlington,  in 
the  county  of  York ;  and  his  wife  Joan  was  the 
daughter  of  Sir  "William  Pickering,  and  relict  of  Sir 
Ealph  Greystoke,  one  of  the  Barons  of  the  Exchequer. 
By  both  of  them  he  had  a  numerous  issue ;  and  several 
great  families,  still  flourishing,  trace  him  in  their  line. 
His  eldest  son,  Sir  William  Gascoigne  of  Gawthorpe, 
was  one  of  Henry  V.'s  best  officers,  and  gained  high 
distinction,  not  only  in  the  Battle  of  Agincourt,  but  in 
the  subsequent  campaigns  of  Bedford  and  Talbot. 

I  must  confess  that  I  am  proud  of  Sir  William 
Gascoigne  as  an  English  Judge,  and  reluctant  to  bid 
him  adieu  for  others  of  much  less  celebrity  and  much 
less  virtue. 

*  There  is  a  good  portrait  of  him  from  p.  623,  professes  to  give  this  inscription, 

the  monument,  in  the  Gentleman's  Ma-  but  interpolates,  after  "A.D.,"  "1412, 

gazine,  vol.  xli.  p.  566.  14  Hen.  Quatre." 

t  The  Gentleman's  Magazine,  vol.  xli. 


A.D.  1413. 


CHIEF  JUSTICE  HANK  FORD. 


163 


CHAPTER  IV. 


CHIEF  JUSTICES  TILL  THE  APPOINTMENT  OF  CHIEF  JUSTICE 
FITZJAMES   BY   KING   HENRY   VIII. 

SIR  WILLIAM  HANKFORD,  the  next  Chief  Justice  of  the 
King's  Bench,  although  he  was   eminent  in  the   law 
during  three  reigns,  is  hardly  recollected  for  anything 
he  did  in  his  lifetime,  except  the  ingenious  and  suc- 
cessful manner  in  which  he  plotted  his  own 
death.     He   is    one    of    the   "  Worthies    of  sir  William 
Devon"  for   whom    his   countrymen    claim 
the  merit  of  having  committed  the  Prince  of  Wales 
to  prison;    and  he  certainly  was  born  at  Amerie  in 
that  county,  whatever    may  be   the   share   of   glory 
which  he   confers   upon   it.     Till  the  termination  of 
his   career,  all  that   I  can  relate   respecting   him  on 
authentic  testimony  is,  that  he  was  called  Serjeant  in 
the  14th  of  Eichard  II.,  was  made  a  Puisne  Judge  of 
the  Common  Pleas  in  21st  of  Eichard  II.,  was  promoted 
to  be  Chief  Justice  of  the  King's  Bench  in  1st  of  Henry 
V.,*  and  was  reappointed  to  that  office  in  1st  of  Henry 

VLt 

He  had  been  a  well-conducted  man,  but  he  was  of  a 
melancholy   temperament,   and    he    became   mgin 
tired  of  life,  notwithstanding  the  high  posi-    genipus 
tion  which  he  occupied,  and  the  respect  in 

*  There  is  some  doubt  as  to  the  exact  December,  1413,  for  on  that  day  writs 

date  of  this  promotion.    It  must  have  were  issued  for  a  new  parliament  to 

been  subsequent  to  22nd  March,  1413,  meet  on  the  29th  January  following,  and 

when  Henry  V.  issued  writs  for  his  first  to  this  Sir  William  Hankford  is  sum- 


parliament,  to  which  Sir  William  Gas- 
coigne  was  summoned ;  and  prior  to  1st 


moned  as  Chief  Justice, 
f  Uugd.  Chr.  Ser. 


M    2 


164  REIGN  OF  HENEY  VI.  CHAP.  IV. 

which  he  was  held.  He  wished  to  shuffle  off  this  mor- 
tal coil,  but  he  was  afraid  to  commit  suicide  in  any 
vulgar  way,  at  a  time  when  a  verdict  offelo  de  se  always 
followed  such  an  act,  and  the  body  of  the  supposed 
delinquent  was  buried  in  a  cross  road  with  a  stake 
thrust  through  it.  He  at  last  resorted  to  this  novel 
expedient,  by  which  he  hoped  not  only  that  the  for- 
feiture of  his  goods  would  be  saved,  but  that  his  family 
would  escape  the  anguish  and  the  shame  arising  from 
the  belief  that  he  had  fallen  by  his  own  hand.  Several 
of  his  deer  having  been  stolen,  he  gave  strict  orders  to 

his  keeper  to  shoot  any  person  met  with  in 
1442  U22~  or  near  *ke  Park»  a*  night,  who  would  not 

stand  when  challenged.  He  then,  in  a  dark 
night,  threw  himself  in  the  keeper's  way,  and,  refusing 
to  stand  when  challenged,  was  shot  dead  upon  the 
spot.  "  This  story  "  (says  Prince,  the  author  of  WOR- 
THIES OF  DEVON*)  "  is  authenticated  by  several  writers, 
and  the  constant  traditions  of  the  neighbourhood  ;  and 
I,  myself,  have  been  shown  the  rotten  stump  of  an  old 
oak  under  which  he  is  said  to  have  fallen,  and  it  is 
called  HANKFORD'S  OAK  to  this  day." 

His  monument  stands  in  Amerie  church,  with  the 

following  epitaph  inscribed  upon  it : — 

His  monn- 

cpitaph          "Hie  jacet  Will.  Hankford,  Mibs,  quondam  Capita lis 
Justiciarius  Domini  R.  de  Banco,  qui  obiit  duodecimo 
Die  Decembris  Anno  Domin.  1422." 

His  figure  is  pourtrayed  kneeling ;  and  out  of  his  mouth, 
in  a  label,  these  two  sentences  proceed : — 

1.  "  Miserere  mei  Deus,  secundum  magnam  misericordiam  tuam !" 

2.  "  Beati  qui  custodiunt  judicium  et  fuciunt  justitiam  omni  tempore." 

Fuller,  in  a  true  Christian  spirit,  adds  :  "  No  cha- 
ritable reader,  for  one  unadvised  act,  will  condemn  his 

*  Page  362. 


A.D.  1422-42.     CHIEF  JUSTICE  FORTESCUE.  165 

memory,  who,  when  living,  was  habited  with  all  re- 
quisites for  a  person  of  his  place."* 

During  the  reign  of  Henry  V.,  the  nation,  intent  on 
the  conquest  of  France,  paid  little  attention  to  the  ad- 
ministration of  justice  or  domestic  policy,  and  for  the 
first  twenty  years  of  the  reign  of  Henry  VI.  the  office 
of  Chief  Justice  of  the  King's  Bench  continued  to  be 
held  by  very  obscure  men,  —  Sir  William 
Cheyne,f  Sir  John  Ivyn,|  and  Sir  John  chiefUJus- 


Hody,§—  who  seem  decently  to  have  dis- 
charged  their  judicial  duties,  without  gaining 
distinction  either  by  decisions  or  law  reforms,  and 
without  mixing  in  any  of  the  political  struggles  which 
agitated  the  country.  The  reader  will  therefore  will- 
ingly excuse  me  from  inquiring  into  their  birth, 
their  education,  their  marriages,  and  their  places  of 
sepulture. 

Next  comes  one  of  the  most  illustrious  of  Chief  Jus- 
tices, Sir  John  Fortescue,||  for  ever  to  be  had    A  D  U42 
in  remembrance  for  his   judicial   integrity,    sir  John 
and  for  his  immortal  treatise  DE  LAUDIBVS   Fortescue- 
LEGVM  ANGLIJE.     But,  as  he  held   the   Great   Seal  of 
England  while  in  exile,  although  he  never  filled  the 
"  marble  chair  "  in  Westminster  Hall,  I  have  already 
sounded  his  praise  to  the  best  of  my  ability  in  the 
LIVES  OF  THE  CHANCELLORS.! 

He  held  the  office  of  Chief  Justice  above  twenty 
years  with  universal  applause.  During  the  latter  half 
of  this  period  the  War  of  the  Roses  was  raging  ;  and 
he,  being  a  devoted  Lancastrian,  not  only  sat  in 
judgment  on  Yorkists  when  indicted  before  him,  but 

*  Fuller,  i.  281.  Hody  Capitalis  Justic.  habet  CXL.  marcas 

•f-  21st  January,  1424-5.  annuas  sibi  conccssas,  ad  statum  suum 

J  2()th  January,  1439-40.  deeentitu  manutenendum."  —  Pat.  18 

$  I3th  April,  1440.  It  would  seem  Henry  VI.  p.  3,  m.  5. 

that  in  his  time  the  judges'  salaries  had  ||  25th  Jan.  1442-43. 

been  thought  to  require  an  increase,  as  ^[  VoL  i.  ch.  xxii. 

we  meet  with  this  entry  :   "  Johannes 


1 66  EEIGN  OF  HENKY  VI.  CHAP.  IV. 

valiantly  met  them  in  the  field.    At  last,  after  the  fatal 

battle  of  Towton,  where  he  fought  by  the 

side   of  Morton,   afterwards  Archbishop   of 

Canterbury,  he  fled  into  Scotland,  and,  Edward  IV. 

being  placed  on  the  throne,  he  was  superseded  by  a 

Yorkist  Chief  Justice.     This  was  SIR  JOHN 

MarkhSn.       MARKHAM,*  of  whom  some   particulars  are 

known  which  may  not  be  uninteresting. 
He  was  descended  from  an  ancient  family  (the  Mark- 
hams  of  that  ilk)  who  had  been  seated  at  Markham  in 
Nottinghamshire  from  time  immemorial,  possessing  a 
small  estate  which  had  remained  without  addition  or 
diminution  for  many  generations.  John,  born  in  the 
reign  of  Henry  IV.,  not  contented  to  plough  his  paternal 
acres  without  being  (although  entitled  to  coat  armour) 
more  wealthy  than  yeomen  and  merchants  who  lived 
near  him,  determined  to  eclipse  his  ancestors  by  fol- 
lowing the  law,  which  was  now  becoming  the  highway 
to  riches  and  distinction.  Having  been  called 

Hisprofes-  ° 

sionaipro-  to  the  bar  when  very  young,  by  great  in- 
dustry, joined  to  great  sharpness,  he  soon  got 
into  extensive  practice,  and  began  to  realise  the  pros- 
pects which  had  dazzled  him  when  a  boy.  In  the  year 
1444  he  was  placed  at  the  head  of  his  profession  by 
being  made  King's  Serjeant,  and  soon  after  accepted  the 
office  of  a  Puisne  Judge  of  the  Court  of  King's  Bench, 
probably  hoping  ere  long  to  reach  the  dignity  of  a 
chiefship.  Such  hopes,  however,  are  often  delusive. 
AJ>  1442—  -^e  remaiDed  a  puisne  nineteen  years,  and 
1462.  would  have  died  a  puisne  but  for  the 

Puisne  civil  war  which  broke   out  respecting  the 

right  to  the  crown.  He  took,  very  honestly, 
a  different  view  of  the  controversy  from  his  chief,  Sir 
John  Fortescue,  who  had  actually  written  pamphlets  to 

*  13th  May,  1462. 


A.D.  1442-62.      CHIEF  JUSTICE  MAKKHAM.  167 

prove  that  Richard  II.  was  rightfully  deposed,  that 
Henry  IV.  had  been  called  to  the  throne  by  the  estates 
of  the  kingdom  and  the  almost  unanimous  voice  of  the 
people,  and  that  now,  in  the  third  generation,  the  title 
of  the  House  of  Lancaster  could  not  be  questioned  by 
any  reasonable  politician  or  any  good  citizen. 

Markham  did  not  venture  to  publish  anything  on 
the  other  side,  but  in  private  conversation,  and  in 
"  moots "  at  the  Temple,  such  as  that  in  which  the 
white  and  red  roses  were  chosen  as  the  emblems  of  the 
opposite  opinions,  he  did  not  hesitate  to  argue  for  in- 
defeasible hereditary  right,  which  no  length  of  pos- 
session could  supersede,  and  to  contend  that  the  true 
heir  of  the  crown  of  England  was  Richard,  Duke  of 
York,  descended  from  the  second  son  of  Edward  III. 
His  sentiments  were  well  known  to  the  Yorkist  leaders, 
and  they  availed  themselves  of  the  legal  reasoning  and 
the  historical  illustrations  with  which  he  furnished 
them.  He  never  sallied  forth  into  the  field,  even  when, 
after  the  death  of  Richard,  the  gallant  youth  his  eldest 
son  displayed  the  high  qualities  which  so  wonderfully 
excited  the  energies  of  his  partisans.  However,  when 
Henry  VI.  was  confined  as  a  prisoner  in  the  Tower, 
and  Fortescue  and  all  the  Lancastrian  leaders  had  fled, 
Markham  was  very  naturally  and  laudably  He  is 
selected  for  the  important  office  of  Chief  pointed  chief 
Justice  of  the  King's  Bench.  Although  he  the  King's 
was  such  a  strong  Legitimist,  he  was  known 
not  only  to  be  an  excellent  lawyer,  but  a  man  of  honour- 
able and  independent  principles.  The  appointment, 
therefore,  gave  high  satisfaction,  and  was  considered  a 
good  omen  of  the  new  regime. 

He  held  the  office  above  seven  years,  with  unabated 
credit.      Not  only  was  his  hand  free  from 
bribes,  but  so  was  his  mind  from  every  im-    x 
proper    bias.      An   old    author    relates  the 


168  REIGN  OF  HENRY  VI.  CHAP.  IV. 

following  anecdote,  to  illustrate  his  purity  and  his  good 
humour : — 

"  A  lady  would  traverse  a  suit  of  law  against  the  will  of  her 
husband,  who  was  contented  to  huy  his  quiet  by  giving  her 
her  will  therein,  though  otherwise  persuaded  in  his  judgment 
the  cause  would  go  against  her.  This  lady,  dwelling  in  the 
shire  town,  invited  the  Judge  to  dinner,  and  (though  thrifty 
enough  herself)  treated  him  with  sumptuous  entertainment. 
Dinner  being  done,  and  the  cause  being  called,  the  Judge  clearly 
gave  it  against  her.  And  when,  in  passion,  she  vowed  never  to 
invite  Judge  again,  '  Nay,  wife,'  said  he,  'vow  never  to  invite  a 
just  judge  any  more.' "  * 

It  was  allowed  that,  when  sitting  on  the  bench,  no 
one  could  have  discovered  whether  he  was  Yorkist  or 
Lancastrian ;  the  adherents  of  the  reigning  dynasty 
complaining  (I  dare  say  very  unjustly),  that,  to  obtain 
a  character  for  impartiality,  he  showed  a  leaning  on  the 
Lancastrian  side.j 

At  last,  though  he  cherished  his  notions  of  hereditary 
His  conduct  T^S^  with  unabating  constancy,  he  forfeited 
on  the  trial  Ing  office  because  he  would  not  prostitute  it 
Thomas  to  the  purpose  of  the  King  and  the  Ministers 
in  wreaking  their  vengeance  on  the  head  of 
a  political  opponent.  Sir  Thomas  Cooke,  who  inclined 
to  the  Lancastrians,  though  he  had  conducted  himself 
with  great  caution,  was  accused  of  treason,  and  com- 
mitted to  the  Tower.  To  try  him,  a  special  commission 
was  issued,  over  which  Lord  Chief  Justice  Markham 
presided,  and  the  Government  was  eager  for  a  con- 
viction. But  all  that  could  be  proved  against  the 
prisoner  was,  that  he  entered  into  a  treaty  to  lend,  on 


*  Fuller,  ii.  248.  one   of  them  favoured  the  HOUSE  OF 

t  Fuller,  in   praising  Fortescue  and  LAKCASTEB,  and  the  other  of  YORK,  in 

Markham,  says,  "  These  I  may  call  two  the  titles  to  the  crown,  both  of  them 

Chief  Justices  of  the  Chief  Justices,  for  favoured     the  HOUSE    OF    JUSTICE    iu 

their  signal  integrity ;   for  though  the  matters  betwixt  party  and  party." 


A.D.  1462-69.      CHIEF  JUSTICE  MABKHAM.  169 

good  security,  a  sum  of  1000  marks,  for  the  use  of  Mar- 
garet, the  Queen  of  the  dethroned  Henry  VI.  The 
security  was  not  satisfactory,  and  the  money  was  not 
advanced.  The  Chief  Justice  ruled  that  this  did  not 
amount  to  treason,  but  was  at  most  inisprision  of  trea- 
son. Of  this  last  offence  the  prisoner  being  found 
guilty,  he  was  subjected  to  fine  and  imprisonment,  but 
he  saved  his  life  and  his  lands.  King  Edward  IV.  was 
in  a  fury,  and,  swearing  that  Markham,  notwithstand- 
ing his  high  pretensions  to  loyalty,  was  himself  little 
better  than  a  traitor,  ordered  that  he  should 
never  sit  on  the  bench  any  more ;  and  ap-  JJfg^fj^ 
pointed  in  his  place  a  successor,  who,  being  his  office. 
a  puisne,  had  wished  to  trip  up  the  heels  of  1470.  M 
his  chief,  and  had  circulated  a  statement,  to 
reach  the  King's  ear,  that  Sir  Thomas  Cooke's  offence 
was  a  clear  overt  act  of  high  treason.*  Markham  bore 
his  fall  with  much  dignity  and  propriety, — in  no  re- 
spect changing  his  principles,  or  favouring  the  move- 
ment which  for  a  season  restored  Henry  VI.  to  the 
throne  after  he  had  been  ten  years  a  prisoner  in  the 
Tower.  Fuller  says,  "  John  Markham,  being  ousted  of 
his  Chief  Justiceship,  lived  privately  but  plentifully 
the  remainder  of  his  life,  having  fair  lands  by  his  mar- 
riage with  an  heiress,  besides  the  estate  he  acquired  by 
his  practice  and  his  paternal  inheritance." 

The  ex-Chief  Justice  died  some  time  after  the  resto- 
ration of  Edward  IV.,  and  was  buried  in    His  death. 
Markham  church,  a  gravestone  being  placed  over  his 
remains,  with  this  simple  inscription  : — 

"Orate  pro  anima  Johannis  Markham  Justiciarii." 


*  Stow  says  that  he  lost   his   office  reign  of  Henry  IV.,  but  it  is  quite  clear 

through    the   Lord    Rivers    and    the  that  neither  of  them  took  place  before 

Duchess  of  Bedford  :  p.  420.  Markham's  him.— See  1  St.  Tr.  894 ;  1  Kale's  Pleas 

dismissal  has  been  connected  with  two  of  Crown,  115. 
other  celebrated  trials  for  treason  in  the 


170  REIGN  OF  EDWARD  IV.  CHAP.  IV. 

For  ages  after  his  death  he  was  held  up  as  the  pat- 
His  cha-         tern  of  an  upright  judge.     Thus  Sir  Nicholas 
Throckmorton,  when  tried  before  Lord  Chief 
Justice  Bromley,  in  the  reign  of  Elizabeth,  said, — 

"  I  would  you,  my  Lord  Chief  Justice,  should  incline  your  judg- 
ments rather  after  the  example  of  your  honourable  predecessors, 
Justice  Markham  and  others, which  did  eschew  corrupt  judgments, 
judging  directly  and  sincerely  after  the  law,  and  in  principlesin  the 
same,  than  after  such  men  as,  swerving  from  the  truth,  the  maxim, 
and  the  law,did  judge  corruptly, maliciously, and  affectionately."* 

Upon  the  dismissal  of  Sir  John  Markham,  Edward 
IV.,  who  no  longer  showed  the  generous  spirit  which 
had  illustrated  his  signal  bravery  while  he  was  fight- 
ing for  the  crown,  and  now  abandoned  himself  by  turns 
to  voluptuousness  and  cruelty,  tried  to  discover  the 
fittest  instrument  that  could  be  found  for  gratifying 
his  resentments  by  a  perversion  of  the  forms  of  law, 
and  with  felicity  fixed  upon  SIR  THOMAS 
s  BILLING,  who,  by  all  sorts  of  meannesses, 
frauds  and  atrocities, — aided  by  natural 
shrewdness,  or,  rather,  low  cunning, — had  contrived  to 
raise  himself  from  deep  obscurity  to  be  a  Puisne  Judge 
of  the  King's  Bench ;  and  in  that  situation  had  shown 
himself  ready  to  obey  every  mandate  and  to  pander  to 
every  caprice  of  those  who  could  give  him  still  higher 
elevation.  This  is  one  of  the  earliest  of  the  long  list 
of  politico-legal  adventurers  who  have  attained  to  emi- 
nence by  a  moderate  share  of  learning  and  talent,  and 
an  utter  want  of  principle  and  regard  for  consistency. 

His  family  and  the  place  of  his  education  are  un- 
His  obscure  known.t  He  was  supposed  to  have  been  the 
origin.  clerk  of  an  attorney ;  thus  making  himself 

well  acquainted  with  the  rules  of  practice,  and  the 

*  1  St.  Tr.  894.  both  as  to  his  ancestors  and  descendants, 

f  Fuller  says   that  he  was  born  in  and  is  evidently  ashamed  of  introducing 

Northamptonshire,  and  held   lands  at  such  a  character  among  "  Worthies." 

Ashwell  in  that  county;  but  is  silent 


A.D.  1450.  CHIEF  JUSTICE  BILLING.  171 

less  reputable  parts  of  the  law.     However,  he   con- 
trived (which  must  have   been  a  difficult   matter  in 
those  days,  when  almost  all  who  were  admitted  at  the 
Inns   of  Court  were  young  men  of  good  birth   and 
breeding)  to  keep  his  terms  and  to  be  called  to  the 
bar.    He  had  considerable  business,  although 
not  of  the  most  creditable  description ;  and 
in  due  time  he  took  the  degree  of  the  coif. 

His  ambition  grew  with  his  success,  and  nothing 
would   satisfy  him  but   official  preferment.    , 

•vr        ,  .He  starts  as 

Now  began  the  grand  controversy  respecting    a  Lancas- 
the  succession  to  the  crown ;  and  the  claim 
to  it  through  the  House  of  Mortimer,  which  had  long 
been  a  mere  matter  of  speculation,  was  brought  into 
formidable  activity  in  the  person  of  Richard,  Duke  of 
York.     Billing, — thinking  that  a  possession  of  above 
half  a  century  must    render    the    Lancastrian   cause 
triumphant,   notwithstanding    the   imbecility   of  the 
reigning    sovereign, — was    outrageously    loyal.       He 
derided  all  objections  to  a  title  which  the  nation  had 
so  often  solemnly  recognised ;  enlarging  on  the  prudence 
of  Henry  IV.,  the  gallantry  of  Henry  V.,  and  the  piety 
of  the  holy  Henry  VI.,  under  whose  mild  sway  the 
country  now  flourished, — happily  rid  of  all  its  Con- 
tinental dependencies.     He  even  imitated  the  example 
of  Sir  John  Fortescue,  and  published  a  treatise  upon 
the  subject ;  which  he  concluded  with  an  exhortation 
"  that  all  who  dared,  by  act,  writing,  or  speech,  to 
call  in  question  the  power   of   Parliament  to  accept 
the  resignation  of  Eichard  II.,  or  to  depose  him  for 
the   crimes   he    had    committed    and   to    call   to   the 
throne  the  member  of  the  royal  family  most 
worthy  to  fill  it  according  to  the  fashion  of  Kin^smac 
our   Saxon   ancestors,   should  be   proceeded   Seiieant- 
against  as  traitors."     This  so  pleased  Wayn- 
flete  the  Chancellor,  and  the  other  Lancastrian  leaders, 


172  HENRY  VI.  AND  EDWARD  IV.         CHAP.  IV. 

that  Billing  was  thereupon  made  King's  Serjeant,  and 
knighted. 

When  the  right  to  the  crown  was  argued,  like  a 

peerage  case,  at  the  bar  of  the   House   of 

Lords,*    Billing    appeared    as    counsel    for 

Henry  VI.,  leading  the  Attorney  and  Solicitor-General ; 

but  it  was  remarked  that  his  fire  had  slackened  much, 

and  he  was  very  complimentary  to  the  Duke  of  York, 

who,  since  the  battle  of  Northampton,  had  been  virtually 

master  of  the  kingdom. 

We  know  nothing  more  of  the  proceedings  of  this 
unprincipled  adventurer  till  after  the  fall  of  Duke 
A.D.  i46i.  Eichard,  when  the  second  battle  of  St.  Alban's 
to^the68  °ver  ka(l  placed  hig  eldest  son  on  the  throne.  In- 
Yorkists.  stantly  Sir  Thomas  Billing  sent  in  his  ad- 
hesion ;  and  such  zeal  did  he  express  in  favour  of  the 
new  dynasty,  that  his  patent  of  King's  Serjeant  was 
renewed,  and  he  became  principal  law  adviser  to 
Edward  IV.  When  Parliament  assembled,  receiving 
a  writ  of  summons  to  the  House  of  Lords,  he  assisted 
in  framing  the  acts  by  which  Sir  John  Fortescue  and 
the  principal  Lancastrians,  his  patrons,  were  attainted, 
and  the  three  last  reigns  were  pronounced 
tyrannical  usurpations.  He  likewise  took 
an  active  part  in  the  measures  by  which  the  per- 
severing efforts  of  Queen  Margaret  to  regain  her  as- 
cendency were  disconcerted,  and  Henry  VI.  was  lodged 
a  close  prisoner  in  the  Tower  of  London. 

Sir  John  Markham,  the  honourable  and  consistent 
Yorkist,  now  at  the  head  of  the  administration  of  the 
criminal  law,  was  by  no  means  so  vigorous  in  con- 
victing Lancastrians,  or  persons  suspected  of  Lancas- 
trianism,  as  Edward  and  his  military  adherents  wished ; 
and  when  state  prosecutions  failed,  there  were  strong 
murmurs  against  him.  In  these  Mr.  Serjeant  Billing 

*  Lives  of  Chancellors,  vol.  i.  ch.  xxii. 


A.D.  1463.  CHIEF  JUSTICE  BILLING.  173 

joined,  suggesting  how  much  better  it  would  be  for 
the  public  tranquillity  if  the  law  were  properly 
enforced.  It  would  have  appeared  very  ungracious  as 
well  as  arbitrary  to  displace  the  Chief  Justice  who  had 
been  such  a  friend  to  the  House  of  York,  and  was  so 
generally  respected.  That  there  might  be  one  Judge 
to  be  relied  upon,  who  might  be  put  into  A.D.  MBS. 
commissions  of  oyer  and  terminer,  Billing  *Je.is  made  "• 
was  made  a  Puisne  Justice  of  the  Court  of  Judge. 
King's  Bench.  He  was  not  satisfied  with  this  elevation, 
which  little  improved  his  position  in  the  profession ; 
but  he  hoped  speedily  to  be  on  the  woolsack,  and  he 
was  resolved  that  mere  scruples  of  conscience  should 
not  hold  him  back. 

Being  thus  intrusted  with  the  sword  of  justice,  he 
soon  fleshed  it  in  the  unfortunate   Walter    T  . 
Walker,  indicted  before  him  on  the  statute   treason  be- 

n i-  -rm  j   TTT      f  '  -i    •  '          fore  him- 

2o  Edward  111.,  lor  compassing  and  imagin- 
ing the  death  of  the  King.  The  prisoner  kept  an  inn 
called  the  CROWN,  in  Cheapside,  in  the  City  of  London ; 
and  was  obnoxious  to  the  Government  because  a  club 
of  young  men  met  there  who  were  suspected  to  be 
Lancastrians,  and  to  be  plotting  the  restoration  of  the 
imprisoned  King.  But  there  was  no  witness  to  speak 
to  any  such  treasonable  consult ;  and  the  only  evidence 
to  support  the  charge  was,  that  the  prisoner  had  once, 
in  a  merry  mood,  said  to  his  son,  then  a  boy,  "  Tom, 
if  thou  behavest  thyself  well,  I  will  make  thee  heir  to 
the  CROWN." 

Counsel  were  not  allowed  to  plead  in  such  cases 
then,  or  for  more  than  three  centuries  after ;  but  the 
poor  publican  himself  urged  that  he  never  had  formed 
any  evil  intention  upon  the  King's  life, — that  he  had 
ever  peaceably  submitted  to  the  ruling  powers,— and 
that  though  he  could  not  deny  the  words  imputed  to 
him,  they  were  only  spoken  to  amuse  his  little  boy, 


174  KEIGN  OF  EDWAED  £V.  CHAP.  IV. 

meaning  that  he  should  succeed  him  as  master  of  the 
Crown  Tavern,  in  Cheapside,  and,  like  him,  employ 
himself  in  selling  sack. 

Mr.  Justice  Billing,  however,  ruled — 

"  That  upon  the  jnst  construction  of  the  Statute  of  Treasons, 
•which  was  only  declaratory  of  the  common  law,  there  was  no 
necessity,  in  supporting  such  a  charge,  to  prove  a  design  to  take 
away  the  natural  life  of  the  King;  that  any  thing  showing  a 
disposition  to  touch  his  royal  state  and  dignity  was  sufficient ; 
and  that  the  words  proved  were  inconsistent  with  that  reverence 
for  the  hereditary  descent  of  the  crown  which  was  due  from 
every  subject  under  the  oath  of  allegiance :  therefore,  if  the  jury 
believed  the  witness,  about  which  there  could  be  no  doubt,  as  the 
prisoner  did  not  venture  to  deny  the  treasonable  language  which 
he  had  used,  they  were  bound  to  find  him  guilty." 

A  verdict  of  guilty  was  accordingly  returned,  and 
the  poor  publican  was  hanged,  drawn,  and  quartered.* 

Mr.  Justice  Billing  is  said  to  have  made  the  criminal 
law  thus  bend  to  the  wishes  of  the  King  and  the 
ministers  in  other  cases,  the  particulars  of  which  have 
not  been  transmitted  to  us ;  and  he  became  a  special 
favourite  at  Court,  all  his  former  extravagances  about 
cashiering  kings  and  electing  others  in  their  stead 
being  forgotten,  in  consideration  of  the  zeal  he  dis- 
played since  his  conversion  to  the  doctrine  of  "  divine 
right." 

Therefore,  when  the  Chief  Justice  had  allowed  Sir 
Thomas  Cooke  to  escape  the  penalties  of  treason,  after 
his  forfeitures  had  been  looked  to  with  eagerness  on 
account  of  the  great  wealth  he  had  accumulated,  there 
was  a  general  cry  in  the  palace  at  Westminster  that 
He  is  made  he  ought  not  to  be  permitted  longer  to  mis- 
rfthViffiS  lead  juries,  and  that  Mr.  Justice  Billing,  of 
Bench.  such  approved  loyalty  and  firmness,  should 

be  appointed  to  succeed  him,  rather  than  the  Attor- 

*  Baker's  Chron.  p.  299;  Kale's  Pleas  of  the  Crown,  vol.  i.  p.  115. 


A.D.  1470.  CHIEF  JUSTICE  BILLING.  175 

ney  or  Solicitor  General,  who,  getting  on  the  bench, 
might,  like  him,  follow  popular  courses. 

Accordingly,  a  supersedeas  to  Sir  John  Markham  was 
made  out  immediately  after  the  trial  of  Bex  v. 
Cooke,  and  the  same  day  a  writ  passed  the 
Great  Seal  whereby  "  the  King's  trusty  and 
well-beloved  Sir  Thomas  Billing,  Knight,  was  assigned 
as  Chief  Justice  to  hold  pleas  before  the  King  him- 
self." 

The  very  next  term  came  on  the  trial  of  Sir  Thomas 
Burdet.  This  descendant  of  one  of  the  Com- 
panions of  William  the  Conqueror  and  an- 
cestor of  the  late  Sir  Francis  Burdett,  lived  at  Arrow, 
in  Warwickshire,  where  he  had  large  possessions.  He 
had  been  a  Yorkist,  but  somehow  was  out  of 
favour  at  Court;  and  the  King,  making  a  Trial  of  Rex 
progress  in  those  parts,  had  rather  wantonly  v' Burdet- 
entered  his  park,  and  hunted  and  killed  a  white  buck, 
of  which  he  was  peculiarly  fond.  When  the  fiery 
knight,  who  had  been  from  home,  heard  of  this  affair, 
which  he  construed  into  a  premeditated  insult,  he 
exclaimed,  "  I  wish  that  the  buck,  horns  and  all,  were 
in  the  belly  of  the  man  who  advised  the  King  to  kill 
it ;"  or,  as  some  reported,  "  were  in  the  King's  own 
belly."  The  opportunity  was  thought  favourable  for 
being  revenged  on  an  obnoxious  person.  Accordingly 
he  was  arrested,  brought  to  London,  and  tried  at  the 
King's  Bench  bar  on  a  charge  of  treason,  for  having 
compassed  and  imagined  the  death  and  destruction  of 
our  lord  the  King. 

The  prisoner  proved,  by  most  respectable  witnesses, 
that  the  wish  he  had  rashly  expressed  was  applied 
only  to  the  man  who  advised  the  King  to  kill  the 
deer,  and  contended  that  words  did  not  amount  to 
treason,  and  that — although,  on  provocation,  he  had 
uttered  an  irreverent  expression,  which  he  deeply 


176  REIGN  OF  EDWARD  IV.  CHAP.  IV. 

regretted — instead  of  having  any  design  upon  the 
King's  life,  he  was  ready  to  fight  for  his  right  to  the 
crown,  as  he  had  done  before, — and  that  he  would 
willingly  die  in  his  defence. 

"  Lord  Chief  Justice  Billing  left  it  to  the  jury  to  consider  what 
the  words  were ;  for  if  the  prisoner  had  only  expressed  a  wish 
that  the  buck  and  his  horns  were  in  the  belly  of  the  man  who 
advised  the  King  to  kill  the  back,  it  would  not  be  a  case  of 
treason,  and  the  jury  would  be  bound  to  acquit ;  but  the  story  as 
told  by  the  witnesses  for  the  Crown  was  much  more  probable, 
for  Sovereigns  were  not  usually  advised  on  such  affairs,  and  it 
had  been  shown  that  on  this  occasion  the  King  had  acted  entirely 
of  his  own  head,  without  any  advisers,  as  the  prisoner,  when  he 
uttered  the  treasonable  words,  must  have  well  known  :  then,  if 
the  words  really  were  as  alleged  by  the  witnesses  for  the  Crown, 
they  clearly  did  show  a  treasonable  purjxse.  Words  merely 
expressing  an  opinion,  however  erroneous  the  opinion,  might  not 
amount  to  treason ;  but  when  the  words  refer  to  a  purpose,  ami 
incite  to  an  act,  they  might  come  within  the  statute.  Here  the 
King's  death  had  certainly  been  in  the  contemplation  of  the 
prisoner ;  in  wishing  a  violence  to  be  done  which  must  inevitably 
have  caused  his  death,  he  imagined  and  compassed  it.  This 
was,  in  truth,  advising,  counselling,  and  commanding  others  to 
take  away  the  sacred  life  of  his  Majesty.  If  the  wicked  deed 
had  been  done,  would  not  the  prisoner,  in  case  the  object  of  his 
vengeance  had  been  a  subject,  have  been  an  accessory  before  the 
fact  ?  But  in  treason  accessories  before  the  fact  were  principals, 
and  the  prisoner  was  not  at  liberty  to  plead  that  what  he 
had  planned  bad  not  been  accomplished.  Therefore  if  the  jury 
believed  that  he  had  uttered  the  treasonable  wish  directed 
against  bis  Majesty's  own  sacred  person,  they  were  bound  to 
convict  him." 

The  jury  immediately  returned  a  verdict  of  GUILTY  ; 
and  the  frightful  sentence  in  high  treason*  Being  pro- 
nounced, was  carried  into  execution  with  all  its  horrors. 
This  barbarity  made  a  deep  impression  on  the  public 
mind,  and,  to  aggravate  the  misconduct  of  the  Judge,  a 
rumour  was  propagated  that  the  late  virtuous  Chief 
Justice  had  been  displaced  because  he  had  refused  to 
concur  in  it.  After  the  death  of  Edward  IV.,  in  the 
famous  speech  delivered  to  the  citizens  of  London 


A.D.  1470.  CHIEF  JUSTICE  BILLING.  177 

to  induce  them  to  set  aside  his  children,  and  to  have 
the  Duke  of  Gloucester  for  their  King,  the  Duke  of 
Buckingham  says — 

"  Your  goods  were  taken  from  you  much  against  your  will,  so 
that  every  man  was  to  pay,  not  what  he  pleased,  but  what  the 
King  would  have  him  ;  who  never  was  moderate  in  his  demands, 
always  exorbitant,  turning  forfeitures  into  fines,  fines  into 
ransoms ;  small  offences  into  misprisions  of  treason,  and  mis- 
prision  into  treason  itself.  We  need  not  give  you  the  examples 
of  it.  Burdet's  case  will  never  be  forgot ;  who,  for  a  word  spoken 
in  haste,  was  cruelly  beheaded.  Did  not  Judge  Markham  resign 
his  office  rather  than  join  with  his  brethren  in  passing  that 
illegal  sentence  on  that  honest  man  ?  " 

On  this  rhetorical  authority,  Lord  Hale,  commenting 
in  his  PLEAS  OF  CROWN  upon  these  two  cases  of  Walker 
and  Burdet,  for  words,  observes,  "Both  were  attaint 
of  high  treason,  and  executed,  though  Markham,  Chief 
Justice,  rather  chose  to  lose  his  place  than  assent  to 
the  latter  judgment."*  But  I  believe  that  Burdet's 
prosecution  had  not  been  commenced  till  Markham's 
removal  had  been  caused  by  his  supposed  misconduct 
on  the  trial  of  Sir  John  Cooke.f 

Lord  Chief  Justice  Billing,  having  justified  his 
promotion  by  the  renegade  zeal  he  displayed  for  his 
new  friends,  and  enmity  to  his  old  associates,  was 
suddenly  thrown  into  the  greatest  perplexity,  and  he 


*  Vol.  i.  p.  115.      This  sentence  is  this   event  must  have  happened  long 

repeated  in  the  text  of  Blackstone  (Com.  before  the  fatal  quarrel  between  the  two 

vol.  iv.  p.  80).    Hume,  to  add  to  the  royal  brothers. 

effect  of  his  narrative,  thinks  fit  to  con-  f  'n  reference  to  this  case,  where  the 

nect  this  atrocity  with  the  murder  of  the  conviction  was  for  mispriiionoftreeuon, 

Duke  of  Clarence,  and  postpones  it  till  the  Duke  of  Buckingham  asks,  "  Were 

1477,  nearly  eight  years  after  Markham  you  not  all  witnesses  of  the  barbarous 

had  been  displaced,  and  Billing  had  been  treatment,  one  of  your  own  body,  the  wor- 

appointed   to   succeed   him. — (Vol.  iii.  shipful  Aldermau  Cook,  met  with ?  And 

p.  261.)    See  1  St.  Tr.  275.    Burdet  had  you  your  own  selves  know  too  well  how 

been   a   retainer  of  the  Duke  of  Cla-  many  instances  of  this  kind  I  might 

rence,  who  very  probably   reproached  name  among  you." — Sir  Thomas  More's 

Edward  IV.  with  his  violent  death,  but  History  of  Richard  III. ;  Kennet,  498. 

VOL.   I.  N 


178  EEIGN  OF  ED  WARD  IV.  CHAP.  IV. 

must  have  regretted  that  he  had  ever  left  the  Lancas- 
trians.     One    of    the    most    extraordinarv 

Billing  again  ,,..,.  ,  ,  J 

aLancas-  revolutions  in  history — when  a  long  con- 
tinuance of  public  tranquillity  was  looked 
for — without  a  battle,  drove  Edward  IV.  into  exile, 
and  replaced  Henry  VI.  on  the  throne,  after  he  had 
languished  ten  years  as  a  captive  in  the  Tower  of 
London. 

There  is  no  authentic  account  of  Billing's  deport- 
ment in  this  crisis,  and  we  can  only  conjecture  the 
cunning  means  he  would  resort  to,  and  the  pretences 
he  would   set  up,  to   keep   his   place   and  to  escape 
punishment.     Certain  it  is,  that  within  a  few  days 
from  the  time  when  Henry  went  in  procession  from 
his  prison  in  the  Tower  to  his  palace  at  Westminster, 
with  the  crown  on  his  head,  while  almost  all  other 
functionaries  of  the  late  Government  had  fled,  or  were 
shut  up  in  gaol,  a  writ  passed  the  Great  Seal,  bearing 
date  the  49th  year  of  his  reign,  by  which  he  assigned 
"  his  trusty  and  well-beloved  Sir  John  Billing,  Knight, 
as  his  Chief  Justice  to  hold  pleas  in  his  Court  before 
him."*     There  can  be  as  little  doubt  that  he 
was  present  at  the  parliament  which  was 
summoned  immediately  after  in  Henry's  name,  when 
the   crown  was  entailed    on    Henry   and    his    issue, 
Edward   was    declared   an   usurper,   his  most  active 
adherents  were  attainted,  and  all  the  statutes  which 
had  passed  during  his  reign  were  repealed.     It  is  not 
improbable  that  there  had  been  a  secret  understanding 
between  Billing  and  the  Earl  of  Warwick  (the  King- 
maker), who  himself  so  often  changed  sides,  and  who 
was  now  in  possession  of  the  whole  authority  of  the 
government. 

While  Edward  was  a  fugitive  in  foreign  parts,  the 
doctrine  of  divine  right  was,  no  doubt,  at  a  discount  in 

*  The  teste  is  "  apud  Westmonasterium,  9  Oct.  49  Henry  III."— Pat.  Roll,  m.  18. 


A.D.  1471.  CHIEF  JUSTICE  BILLING.  179 

England,  and  Billing  may  have  again  "bolted  his 
arguments  about  the  power  of  the  people  to  choose 
their  rulers ;  although,  according  to  the  superstition  of 
the  age,  he  more  probably  countenanced  the  belief  that 
Henry  was  a  Saint,  and  that  he  was  restored  by  the 
direct  interposition  of  Heaven. 

But  one  would  think  he  must  have  been  at  his  wits' 
end  when,  in  the  spring  of.  the  following 
year,   Edward  IV.  landed   at   Eavenspurg, 
gained  the  battle  of  Barnet,  and,  after  the  murder 
of  Henry  VI.  and  the  Prince  of  Wales,  was  again  on 
the  throne,  without  a  rival.     Billing   does   seem  to 
have  found  great  difficulty  in   making  his 
peace.     Though  he  was  dismissed  from  his 
office,  it  was  allowed  to  remain  vacant  about 
a  twelvemonth,  during  which  time  he  is  supposed  to 
have  been  in  hiding.     But  he  had  vowed  that,  what- 
ever  changes    might   take  place  on  the  throne,   he 
himself  should  die  Chief  Justice  of  the  King's  Bench : 
and  he  contrived  to  be  as  good  as  his  word. 

By  his  own  representations,  or  the  intercession  of 
friends,  or  the  hope  of  the  good  services  he  might  yet 
render  in  getting  rid  of  troublesome  opponents,  the 
King  was  induced  to  declare  his  belief  that  he  who  had 
sat  on  the  trials  of  Walker  and  Burdet  had  unwillingly 
submitted  to  force  during  the  late  usurpation  ;  and,  on 
tne  17th  of  June,  1472,  a  writ  passed  the  Great  Seal, 
by  which  his  Majesty  assigned  "  his  right  trusty  and 
well-beloved  Sir  John  Billing,  Knight,  as  Chief  Justice 
to  hold  pleas  before  his  Majesty  himself."* 

For  nearly  nine  years  after,  he  continued  in  the 
possession  of  his  office,  without  being  driven  again  to 
change  his  principles  or  his  party.  One  good  deed  he 
did,  which  should  be  recorded  of  him — in  advising 
Edward  IV.  to  grant  a  pardon  to  an  old  Lancastrian, 

*  Pat.  Roll,  11  Edward  IV.  p.  1,  m.  24;  Dugd.  Chron.  Ser. 

K    2 


180  REIGN  OF  EDWARD  IV.  CHAP.  IV. 

Sir  John  Fortescue.  But  for  the  purpose  of  reducing 
this  illustrious  Judge  to  the  reproach  of  inconsistency, 
which  he  knew  made  his  own  name  a  by-word,  he 
imposed  a  condition  that  the  author  of  DE  LAUDIBUS 
should  publish  a  new  treatise,  to  refute  that 
which  he  had  before  composed,  proving  the 
right  of  the  House  of  Lancaster  to  the  throne;  and 
forced  him  to  present  the  petition  in  which  he  assures 
the  King  "  that  he  hath  so  clearly  disproved  all  the 
arguments  that  have  been  made  against  his  right  and 
title  that  now  there  remaineth  no  colour  or  matter 
of  argument  to  the  hurt  or  infamy  of  the  same  right  or 
title  by  reason  of  any  such  writing,  but  the  same  right 
and  title  stand  now  the  more  clear  and  open  by  that 
any  such  writings  have  been  made  against  them."* 

There  are  many  decisions  of  Chief  Justice  Billing 
on  dry  points  of  law  to  be  found  in  the  TEAR-BOOKS, 
but  there  is  only  one  other  trial  of  historical  importance 
mentioned  in  which  he  took  any  part,  and  it  is  much 
to  be  feared  that  on  this  occasion  he  inflamed,  instead 
of  soothing,  the  violent  passions  of  his  master,  with 
whom  he  had  become  a  special  favourite. 

Edward  IV.,  after  repeated  quarrels  and  recon- 
ciliations with  his  brother  the  Duke  of 
Jan.  14.  Clarence,  at  last  brought  him  to  trial,  at  the 
on'the'triai  bar  of  the  House  of  Lords,  on  a  charge  of 
of  aanmw!  high  treason.  The  Judges  were  summoned 
to  attend,  and  Lord  Chief  Justice  Billing 
was  their  mouthpiece.  We  have  only  a  very  defective 
account  of  this  trial,  and  it  would  appear  that  nothing 
was  proved  against  the  first  prince  of  the  blood,  except 
that  he  had  complained  of  the  unlawful  conviction 
of  Burdet,  who  had  been  in  his  service,  that  he  had 
accused  the  King  of  dealing  in  magic,  and  had  cast 
some  doubts  on  his  legitimacy, — that  he  had  induced 

Rot.  Parl.  vi.  26,  69. 


A.D.  1478.  CHIEF  JUSTICE  BILLING.  181 

his  servants  to  swear  that  they  would  be  true  to  him, 
without  any  reservation  of  their  allegiance  to  their 
Sovereign, — and  that  he  had  surreptitiously  obtained, 
and  preserved,  an  attested  copy  of  an  act  of  parliament, 
passed  during  the  late  usurpation,  declaring  him  next 
heir  to  the  crown  after  the  male  issue  of  Henry  VI. 
The  Duke  of  Buckingham  presided  as  High  Steward, 
and  in  that  capacity  ought  to  have  laid  down  the  law 
to  the  Peers ;  but,  to  lessen  his  responsi-  Aj)  U7g 
bility,  he  put  the  question  to  the  Judges, 
"  Whether  the  matters  proved  against  the  Duke  of 
Clarence  amounted,  in  point  of  law,  to  high  treason?" 
Chief  Justice  Billing  answered  in  the  affirmative. 
Therefore,  an  unanimous  verdict  of  GUILTY  was  given ; 
and  sentence  of  death  was  pronounced  in  the  usual 
form.  I  dare  say  Billing  would  not  have  hesitated  in 
declaring  his  opinion  that  the  beheading  might  be 
commuted  to  drowning  in  a  butt  of  malmsey  wine ; 
but  this  story  of  Clarence's  exit,  once  so  current,  is 
now  generally  discredited,  and  the  belief  is,  that  he 
was  privately  executed  in  the  Tower,  according  to  his 
sentence.* 

Lord  Chief  Justice   Billing  enjoyed  the   felicitous 
fate  accorded  to  very  few  persons  of  any  distinction  in 
those  times, — that  he  never  was  imprisoned — that  he 
never   was   in   exile— and   that  he   died    a 
natural  death.     In  the  spring   of  the  year 
1482,  he  was  struck  with  apoplexy,  and  he  expired 
in  a  few  days, — fulfilling  his  vow — for  he  remained  to 
the  last  Chief  Justice  of  the  King's  Bench,  after  a 
tenure  of  office  for  seventeen  years,  in  the  midst  of 
civil  war  and  revolutions. 

He  amassed  immense  wealth,  but,  dying  childless,  it 
went  to  distant  relations,  for  whom  he  could  have  felt 
no  tenderness.  Notwithstanding  his  worldly  pros- 

*  Rot.  Parl.  vi.  193,  194,  195,  174. 


182  REIGN  OF  EDWARD  IV.  CHAP.  IV. 

perity,  few  would  envy  him.  He  might  be  feared  and 
flattered,  but  he  could  not  have  been  beloved  or 
respected,  by  his  contemporaries;  and  his  name, 
contrasted  with  those  of  Fortescue  and  Markham,  was 
long  used  as  an  impersonation  of  the  most  hollow, 
deceitful,  and  selfish  qualities  which  can  disgrace  man- 
kind. 

SIR  JOHN  HUSSEY,*  who  succeeded  him,  was  Chief 

Justice  during  four  reigns,  ever  preserving 
Hussey"  a  ^r  character  ; — for,  being  a  mere  lawyer, 

he  devoted  himself  exclnsively  to  the  duties 
of  his  office ;  and  he  was  promoted  to  the  highest 
honours  of  his  profession  without  mixing  in  any 
political  contest. 

He  was  the  younger  son  of  a  Lincolnshire  family  of 
respectable  station,  but  small  means,  and  he  had 
considerable  difficulties  to  struggle  with  in  early  life. 
But  he  was  endowed  with  much  energy,  perseverance, 

and  love  of  law.  His  favourite  manual  was 
studies*1  the  KEGISTRUM  BREVIUM  ;  and  Littleton's 

celebrated  treatise  on  TENURES  (destined  to 
be  commented  on  by  COKE)  being  now  completed,  and 
handed  about  in  MS.,  he  copied  it  with  his  own  hand, 
and  he  is  said  to  have  committed  it  to  memory. 

His  progress  at  the  bar  was  rapid;  and  in  1472,  on 

the  restoration  of  Edward  IV.  he  was  made 

He  is  made 

Attorney        Attorney  General.?     He  had  to  prosecute  a 

General.  ,  ,    .  ,  £  , 

good  many  Lancastrians ;  but  the  proceed- 
ings were  less  bloody  than  might  have  been  expected, 
and,  without  displeasing  the  King,  he  gained  some 
credit  for  moderation  and  humanity.  He  had  a  most 
painful  duty  to  perform  in  conducting  the  impeachment 


*  Often  spelt  Hnssee.  "  Cum   potestate  deputandi  Clericos  ac 

f  His  patent,  which  is  extant,  con-  officiarios  sub  se  in  qualibet  Curia  de 

tained  the  -words  still  introduced  into  recordo."—  Pat.  11  Edw.  IV.  p.  1,  m.  28. 

the   patent   of  the   Attorney-General: 


A.D.  1482.  CHIEF  JUSTICE  HUSSEY.  183 

of  the  Duke  of  Clarence  for  treason  ;  but  he  had  no  con- 
cern in  advising  this  proceeding,  and  he  is  not  sup- 
posed in  any  part  of  it  to  have  exceeded  the  line  of  his 
professional  duty.  If  the  sentence  of  beheading  was 
changed  to  drowning  in  malmsey,  he  must  have  been 
consulted  about  it  ;  but  there  is  no  record  of  his  opinion 
on  this  delicate  question. 

It  seems  strange  to  us  that  he  should  afterwards 
have  taken  the  degree  of  the  coif;  but  then,  and  long 
afterwards,  King's  Serjeants  had  precedence  of  the 
Attorney  and  Solicitor  General  on  all  occasions;  and 
all  other  Serjeants  claimed  the  like  precedence,  except 
in  conducting  the  King's  business.  Hussey,  therefore, 
although  Attorney  General,  to  add  to  his  dignity  was, 
in  the  year  1478,  called.  Serjeant,  with  ten  others,  and 
gave  a  grand  feast  to  the  King,  the  Lord  Mayor  and 
Aldermen  of  London,  all  the  Judges,  and  many  of  the 
nobility. 

On  the  death  of  Lord  Chief  Justice   Billing,   Sir 
William  Hussey,  who  had  now  for  ten  years 
ably  filled  the  office  of  Attorney  General,  was   A-D-.  1482- 
appointed  to  succeed  him,  with  the  increased   chief  Justice 

> 


salary  of  140  marks  a  year.*  There  is  some- 
times  great  disappointment  when  a  very 
eminent  counsel  is  raised  to  the  bench  ;  but  all  who 
mention  Hussey's  name  concur  in  giving  him  a  high 
character  for  judicial  excellence.  Without  any  im- 
proper compliances,  he  continued  to  enjoy  court  favour, 
as  well  as  the  respect  of  the  public;  and  it  was  not 
apprehended  that  his  tenure  of  office  could  be  exposed 
to  any  peril,  the  King  being  a  much  younger  man 
than  himself,  with  seeming  vigorous  health.  The  con- 


*  Will.  Hnsee  constit.  Capitalis  Justic.  decentius   manutenendo.    T.   E.  apud 

T.   R.  apud  West.  T  Mail."— Pat.  21  Westm.  12  Junii."    Pat .  21  Ed. IV.  p.  2, 

Edie.  IV. "  Idem  Will,  habet  CXL.  marcas  m.  6. 
annuas  sibi   concessas   pro   Btatu  suo 


184  EEIGN  OF  RICHARD  III.  CHAP.  IV. 

stitution  of  Edward,  however,  had  been  undermined 
by  licentious  indulgences,  and  he  was  sud- 
M83.1 9>  denly  carried  off  while  yet  only  in  the  forty- 
first  year  of  his  age. 

Hussey  was  supposed  to  be  in  great  jeopardy,  as 
Eichard  Duke  of  Gloucester,  made  Protector,  was  ex- 
pected to  fill  the  high  offices  of  the  law  with  instru- 
ments adapted  to  the  unprincipled  purposes  which  he 
was  suspected  to  entertain ;  but  this  extraordinary 
man,  ruthless  in  the  commission  of  deeds  of  blood,  had 
the  sagacity  to  perceive  that  he  would  facilitate  his 
ascent  to  supreme  power  by  the  reputation  of  a  regard 
for  the  pure  administration  of  justice.  Therefore, 
having,  in  the  name  of  the  young  King,  de- 
1483.  "  livered  the  Great  Seal  to  the  virtuous  John 
Russell,  he  reappointed  Sir  William  Hussey 
Chief  Justice  of  the  King's  Bench.* 

In  Easter  and  Trinity  Terms  following,  we  learn 
from  the  YEAR  BOOKS  that  Hussey  presided  in  that 
court,  as  the  representative  of  the  infant  Sovereign. 

On  the  26th  of  June  following,  the  Protector  changed 
his  own  title  to  that  of  King  ;  and  that  very  same  day, 
when  he  had  proceeded  from  Baynard's  Castle  to  West- 
minster, and  had  been  proclaimed,  having  experienced 
the  popularity  arising  from  the  appointment  of  able 
and  upright  judges,  he  caused  a  writ  to  pass  the  Great 
Seal  whereby  "  Richard  III.  by  the  grace  of  God  King 
of  England  and  France,  Lord  of  Ireland,  &c., 

His  snbmis-  ... 

sipn  to  assigned  his  right  trusty  and  well-beloved 

Sir  William  Hussey,  Knight,  his  Chief  Jus- 
tice, to  hold  pleas  in  his  Court  before  him,"f 

The  Chief  Justice  may  be  blamed  for  acquiescing  in 
this  usurpation ;  but  we  must  remember  that  he  had 
no  concern  in  bringing  it  about — that  plausible  reasons 

*  Pat.  1  Edw.  V.  m.  2.  t  26th  June,  Pat.  1  Ric.  III.  p.  1,  m.  12. 


A.D.  1485.  CHIEF  JUSTICE  HUSSEY.  185 

had  been  brought  forward  to  make  out  the  illegitimacy 
of  the  sons  of  Edward  IV., — that  no  danger  was  as  yet 
apprehended  for  their  lives, — and  that  Richard's  claim 
had  been  sanctioned  by  the  City  of  London  and  by  the 
will  of  the  nation. 

As  the  new  King  chose  to  get  rid  of  Hastings,  Eivers, 
Buckingham,  and  the  other  grandees  who  were  ob- 
noxious to  him,  by  summary  violence  rather  than  ju- 
dicial murder,  the  Chief  Justice  was  not  exposed  to 
any  difficulty  in  acting  under  his  authority ;  and  he 
continued  till  after  the  Battle  of  Bosworth,  amidst  in- 
surrections and  civil  war,  calmly  to  adjust  the  private 
rights  of  the  suitors  who  came  before  him.  Instead  of 
putting  on  a  coat  of  mail  taken  from  the  King's  ar- 
moury, like  Sir  John  Fortescue,  he  declared  that  it 
became  him  to  be  seen  by  the  public  only  in  the 
scarlet  robe,  lined  with  white  minever,  he  had  received 
from  the  King's  wardrobe. 

Henry  VII.,  who  had  a  deep  dislike  to  all  whom  he 
knew  or  suspected  to  be  Yorkists,  was  much  inclined 
to  cashier  Chief  Justice   Hussey  as  he  had 
done  Lord   Chancellor   John   Eussell ;    but,    *-I)-U85- 

'     He  is  con- 
after   a  month's   consideration,  came  to  the    tinned  in  MS 

conclusion  that  his  loyalty  might  be  safely    Henry  vn. 
trusted  to  any  King   de  facto,  and  accord- 
ingly reappointed  him  in  the  usual  form.*     The  Lan- 
castrian Sovereign  had  no  reason  to  repent  the  confi- 
dence he  reposed  in  the  Yorkist  Chief  Justice,  whose 
scruples  were,   no  doubt,  soothed  by  the  approaching 
royal  marriage  and  the  promised  union  of  the  Roses. 

When    Parliament   met,   the   chief  Justice    was   of 
essential    service     in    removing     difficulties 
which  presented  themselves  in  the  way  of 

*  Henry  dated  his  reign  from  22nd  of  "  Will.  Husee,  miles,  constitutus  Capi- 
August,  1485,  and  Hussey's  new  writ  pitalis  Justic.  T.  R.  apud  Westm.  1 
was  tested  20th  September  following.  Hen.  VII.  p.  1,  m.  22." 


186    REIGNS  OF  HENEY  VII.  AND  HENRY  VIII.  CHAP.  IV. 

legislation.  In  the  first  place,  Henry  himself  had 
been  attainted  by  an  act  passed  in  the  preceding 
reign,  and,  instead  of  mounting  a  throne,  and  explain- 
ing the  reasons  for  summoning  the  two  Houses, — 
according  to  the  letter  of  the  law,  he  was  liable  to 
lose  his  life  on  the  scaffold.  Nor  could  this  act  of 
attainder  be  reversed  in  the  usual  form,  as  the  King 
while  under  attainder  (it  was  suggested)  could  not 
lawfully  exercise  any  function  of  royalty.  The  ques- 
tion being  put  to  the  Judges,  Hussey  assembled  them 
in  the  Exchequer  Chamber,  and  induced  them  all  to 
agree  in  this  ingenious  solution  of  the  problem  that 
"  the  descent  of  the  crown  of  itself  takes  away  all 

defects  and  disabilities  arising  from  attainder, 
u95.148          an(i  therefore  that  the  act  of  attainder  must 

be  considered  as  already  virtually  reversed." 
Next,  it  was  ascertained  that  more  than  half  the 
Peers  who  were  summoned,  and  a  great  many  repre- 
sentatives returned  to  the  House  of  Commons,  had 
been  attainted  in  the  same  manner ;  and  the  question 
was,  whether  their  attainder  could  be  treated  as  a 
nullity,  on  the  ground  that  Richard  III.,  who  gave 
the  royal  assent  to  it,  was  a  usurper  ?  Hussey  being 
consulted,  prudently  answered,  "that  it  would  be 
of  dangerous  example  to  suffer  those  who  ought  to 
observe  a  law  to  question  the  title  of  the  Sovereign 
under  whom  the  law  had  been  enacted,  and  that  the 
attainted  peers  and  commoners  ought  not  to  take 
their  seats  in  either  house  till  their  attainder  had 
been  reversed  by  a  new  act  of  parliament  assented  to 
by  the  King  who  now  is"  All  the  Judges  concurred 
in  this  opinion,  of  which  Henry  made  dextrous  use 
by  obtaining  the  famous  statute,  indemnifying  all 
who  act  in  obedience  to  the  commands  of  a  King  de 
facto.* 

*  Roll  Part.  1  Henry  VII.;  1  Part.  Hist.  450;  Lord  Bacon's  Hist.  Henry  VII. 


A.D.  1485-95.         CHIEF  JUSTICE  FINEUX.  187 

Hussey  continued  Chief  Justice  of  the  King's  Bench 
under  Henry  VII.  for  a  period  of  ten  years,  when  he 
expired  full  of  days  and  of  honours.  He  assisted  in 
remodelling  the  Court  of  Star  Chamber,  and  occasion- 
ally sat  there  as  a  Judge,  but  none  of  its  sentences 
were  chargeable  with  excessive  severity  in  his  time. 
He  left  no  issue  behind  him ;  and  having  given  away 
much  in  charity  while  he  lived,  he  disposed  of  the 
residue  of  his  fortune  for  pious  uses,  which  in  the 
following  age  were  reckoned  superstitious. 

The  next   Chief  Justice  of  the  King's  Bench  was 
SIR  JOHN  FINEUX,  of  whom,  although  he  pre- 
sided in  that  court  twenty -eight  years,  I  find   f^e^ 
little  of  good  or  of  evil.     The  office  of  Chan- 
cellor, held  successively,  by  Morton,  Wareham,  Wolsey, 
and  More,  now  gained  such  an  ascendency,  that  the 
Common  Law  Judges  occupied  but  a  small   space  in 
the  public  eye,  and  their  names  are  seldom  connected 
with  events  of  historical  interest.     But  even  Fineux 
has  had  biographers,  and  they  divide  his  career  into 
three  portions  of  twenty-eight  years  each.      He  was 
quite   idle   for  twenty-eight   years,    during    Trf  artite 
which  he  spent  a  fair  estate  at  Swenkfield   division  of 
in  Kent,  inherited  by  him  from  his  ancestors  ; 
he  then  took  to  the  study  of  the  law,  in  which  he  made 
great  proficiency,  and  at  the  end  of  twenty-eight  years 
he   was  made    a   Judge.      But  I   find  nothing  more 
memorable  recorded  of  him  than  that  he  had  a  house 
in  Canterbury,  in  each  window  of  which  was  to  be 
seen  his  motto,  "  Misericordias  Domini  cantdbo  in  ceter- 
num" 

Kivalling  his  immediate  predecessor  in  posthumous 
piety,  he  left  for  the  good  of  his  soul  all  his  property 
to  St.  Augustine's  Priory,  in  Canterbury, — a  monk  of 
which  wrote  a  treatise  in  his  praise,  describing  him  as 
"  Vir  prudentissimus,  genere  insignis,  justitia  praa- 


188    KEIGNS  OF  HENRY  VII.  AND  HENRY  VIII.  CHAP.  IV. 

clarus,  pietate  refertus,  humanitate  splendidus,  et  cha- 
ritate  fcecundus."* 

He  died  in  Michaelmas  Term  in  the  seventeenth  year 
A.D.  1526.        of  the  reign  of  Henry  VIIL 

*  See  Fuller's  Worthies :  Kent. 


A.D.  1526.  CHIEF  JUSTICE  FITZJAMES.  189 


CHAPTER  V. 

CHIEF   JUSTICES   TILL   THE   APPOINTMENT   OF  CHIEF   JUSTICE 
POPHAM   BY    QUEEN   ELIZABETH. 

WE  know  more  of  the  next  Chief  Justice,  SIR  JOHN 
FITZJAMES,  but  very  little  to  his  credit.  Of 
obscure  birth,  and  not  brilliant  talents,  he 
made  his  fortune  by  his  great  good  humour, 
and  by  being  at  College  with  Cardinal  Wolsey.  It 
is  said  that  Fitzjames,  who  was  a  Somersetshire  man, 
kept  up  an  intimacy  with  Wolsey  when  the  latter  had 
become  a  village  parson  in  that  county ;  and  that  he 
was  actually  in  the  brawl  at  the  fair,  when  his  reve- 
rence, having  got  drunk,  was  set  in  the  stocks  by  Sir 
Amyas  Paulet.* 

While  Wolsey  tried  his  luck  in  the  Church  with 
little  hope  of  promotion,  Fitzjames  was  keeping  his 
terms  in  the  Inns  of  Court ;  but  he  chiefly  distinguished 
himself  on  gaudy  days,  by  dancing  before  the  Judges, 
playing  the  part  of  "  Abbot  of  Misrule,"  and  swearing 
strange  oaths, — especially  by  St.  Gillian,  his  tutelary 
saint.  His  agreeable  manners  made  him  popular  with 
the  "  Headers  "  and  "  Benchers  ;"  and  through  their 
favour,  although  very  deficient  in  "  moots "  and 
"bolts,"  he  was  called  to  the  outer  bar.  Clients, 
however,  he  had  none,  and  he  was  in  deep  despair, 
when  his  former  chum — having  insinuated  himself 
into  the  good  graces  of  the  stern  and  wary  old  man, 
Henry  VII.,  and  those  of  the  gay  and  licentious  youth, 
Henry  VIII. — was  rapidly  advancing  to  greatness. 

*  lives  of  Chancellors,  i.  444. 


190  KEIGN  OF  HENRY  VIII.  CHAP.  V. 

Wolsey,  while  Almoner,  and  holding  subordinate  offices 
about  the  Court,  took  notice  of  Fizjames,  ad- 
vised  him  to  stick  to  the  profession,  and 

Wolsey1  was  a^e  *°  throw  some  business  in  his  way 
in  the  Court  of  Wards  and  Liveries, — 

"  Lofty  and  sour  to  them  that  lov'd  him  not ; 
But  to  those  men  that  sought  him,  sweet  as  summer." 

Fitzjames  was  devotedly  of  this  second  class ;  and  was 
even  suspected  to  assist  his  patron  in  pursuits  which 
drew  upon  him  Queen  Catherine's  censure : — 

"  Of  his  own  body  he  was  ill,  and  gave 
The  clergy  ill  example." 

For  these  or  other  services  the  Cardinal,  not  long  after 
He  is  made      he  wrested  the  Great  Seal  from  Archbishop 
General        Wareham,  and  had  all  legal  patronage  con- 
A.D.  1519.        ferred   upon    him,    boldly    made    Fitzjames 
Attorney   General,    notwithstanding    loud    complaints 
from  competitors  of  his  inexperience  and  incapacity. 
The  only  state  trial  which  he  had  to  conduct  was 
that   of  the  unfortunate  Stafford,   Duke  of 
Buckingham,  who,  having  quarrelled  with 
Wolsey,  and  called  him  a  "  butcher's  cur,"  was  prose- 
cuted for  high  treason  before  the  Lord  High  Chancellor 
and  Court  of  Peers  on  very  frivolous  grounds. 
Fitzjames  had  little  difficulty  in  procuring 
a  conviction;  and  although  the  manner  in 
Bucking-        which  he  pressed  the  case  seems  shocking  to 

ham. 

us,  he  probably  was  not  considered  to  have 
exceeded  the  line  of  his  duty :  and  Shakspeare  makes 
Buckingham,  returning  from  Westminster  Hall  to  the 
Tower,  exclaim, — 

.    .    .    .  "  I  had  my  trial, 

And,  must  needs  say,  a  noble  one ;  which  makes  me 
A  little  happier  than  my  wretched  father."* 


*  Henry  VIII.  act  ii.  sc.  i.;  1  St.  Tr.  287—298. 


A.D.  1529.  CHIEF  JUSTICE  FITZ JAMES.  191 

The  result  was,  at  all  events,  highly  satisfactory  to 
Wolsey,  who,  in  the  beginning  of  the  follow-  Feb,  e.  1523. 
ing  year,  created  Fitzjames  a  Puisne  Judge  puj^^16* 
of  the  Court  of  King's  Bench,  with  a  promise  Judge. 
of  being  raised  to  be  Chief  Justice  as  soon  as  there 
should  be  a  vacancy.*  Sir  John  Fineux,  turned  of 
eighty,  was  expected  to  drop  every  term,  but  held  on 
four  years  longer.  As  soon  as  he  expired,  Fitzjames 
was  appointed  his  successor.!  Wolsey  still 
zealously  supported  him,  although  thereby  ^^j'J^ 
incurring  considerable  obloquy.  It  was  of  the  King's 
generally  thought  that  the  new  Chief  was 
not  only  wanting  in  gravity  of  moral  character, 
but  that  he  had  not  sufficient  professional  knowledge 
for  such  a  situation.  His  highest  quality  was  dis- 
cretion, which  generally  enabled  him  to  conceal  his 
ignorance,  and  to  disarm  opposition.  Fortunately  for 
him,  the  question  which  then  agitated  the  country, 
respecting  the  validity  of  the  King's  marriage  with 
Katherine  of  Aragon,  was  considered  to  depend  entirely 
on  the  canon  law,  and  he  was  not  called  upon 

•       •  -J.         TT      XT.  •      .1  Oct.  1529. 

to  give  any  opinion  upon  it.    He  thus  quietly 
discharged  the  duties  of  his  office  till  Wolsey's  fall. 

But  he  then  experienced  much  perplexity.     Was  he 
to  desert  his  patron,  or  to  sacrifice  his-  place  ? 
He  had  an  exaggerated  notion  of  the  King's   Sd-'on 
vengeful  feelings.    The  Cardinal  having  been    ^cisey 
not  only  deprived   of  the   Great  Seal,  but 
banished  to  Esher,  and  robbed  of  almost  the  whole  of 
his  property  under  process  of  prcemunire,  while  an  im- 
peachment for  treason  was  still  threatened  against  him, 
— the  Chief  Justice  concluded  that  his  utter  destruc- 
tion was  resolved  upon,  and  that  no  one  could  show 
him  any  sympathy  without  sharing  his  fate.     There- 
fore, instead  of  going  privately  to  visit  him,  as  some 

*  Pat.  13  Henry  VIII.  p.  2.  f  Pat- 17  Henry  VIII.  Rot.  1. 


192  EEIGN  OF  HENRY  VIII.  CHAP.  V. 

old  friends  did,  he  joined  in  the  cry  against  him,  and 
assisted  his  enemies  to  the  utmost.  Wolsey  readily 
surrendered  all  his  private  property,  but  wished,  for 
the  benefit  of  his  successors,  to  save  the  palace  at 
Whitehall,  which  belonged  to  the  see  of  York,  being 
the  gift  of  a  former  archbishop.  A  reference  was  then 
made  to  the  Judges,  "  whether  it  was  not  forfeited  to 
the  Crown?"  when  the  Chief  Justice  suggested  the 
fraudulent  expedient  of  a  fictitious  recovery  in  the 
Court  of  Common  Pleas,  whereby  it  should  be  adjudged 
to  the  King  under  a  superior  title.  He  had  not  the 
courage  to  show  himself  in  the  presence  of  the  man 
to  whom  he  owed  everything ;  and  Shelley,  a  Puisne 
Judge,  was  deputed  to  make  the  proposal  to  him  in  the 
King's  name.  "Master  Shelley,"  said  the  Cardinal, 
"  ye  shall  make  report  to  his  Highness  that  I  am  .his 
obedient  subject,  and  faithful  chaplain  and  bondsman, 
whose  royal  commandment  and  request  I  will  in  no 
wise  disobey,  but  most  gladly  fulfil  and  accomplish  his 
princely  will  and  pleasure  in  all  things,  and  in  especial 
in  this  matter,  inasmuch  as  the  fathers  of  the  law  all 
say  that  I  may  lawfully  do  it.  Therefore  I  charge  your 
conscience,  and  discharge  mine.  Howbeit,  I  pray  you 
show  his  Majesty  from  me  that  I  most  humbly  desire 
his  Highness  to  call  to  his  most  gracious  remembrance 
that  there  is  both  Heaven  and  Hell." 

This  answer  was,  no  doubt,  reported  by  Shelley  to 
his  brethren  assembled  in  the  Exchequer  Chamber, 
although,  probably,  not  to  the  King ;  but  it  excited  no 
remorse  in  the  breast  of  Chief  Justice  Fitzjames,  who 
perfected  the  machinery  by  which  the  town  residence 
of  the  Archbishops  of  York  henceforth  was  annexed  to 
the  Crown,  and  declared  his  readiness  to  concur  in  any 
proceedings  by  which  the  proud  ecclesiastic,  who  had 
ventured  to  sneer  at  the  reverend  sages  of  the  law, 
might  be  brought  to  condign  punishment. 


A.D.  1529.  CHIEF  JUSTICE  FITZJAMES.  193 

Accordingly,  when  parliament  met,  and  a  select  com- 
mittee of  the  House  of  Lords  was  appointed    Nov  g 
to  draw  up  articles  of  impeachment  against   Frames  as- 
Wolsey,  Chief  Justice   Fitzjames,   although   drawing  up 
only  summoned,  like  the  other  Judges,  as  an    of^Mtfon 
assessor,  was  actually  made  a  member  of  the    a#»nst 

,.,.-,,.,  .  ,     Wolsey. 

committee,  joined  in  their  deliberations,  and 
signed  their  report.*     Some  of  the  Articles  drawn  by 
him  indicate  a  pre-existing  envy  and  jealousy,  which 
he  had  concealed  by  flattery  and  subserviency : — 

"  XVI.  Also  the  said  Lord  Cardinal  hath  hindered  and  undone 
many  of  your  poor  subjects  for  want  of  dispatching  of  matters, 
for  he  would  no  man  should  meddle  but  himself ;  insomuch  that 
it  hath  been  affirmed,  by  many  wise  men,  that  ten  of  the  most 
wisest  and  most  expert  men  in  England  were  not  sufficient  in 
convenient  time  to  order  the  matters  that  he  would  retain  to 
himself;  and  many  times  lie  deferred  the  ending  of  matters 
because  that  suitors  should  attend  and  wait  upon  him,  whereof 
he  had  no  small  pleasure." — "  XX.  Also  the  said  Lord  Cardinal 
hath  examined  divers  and  many  matters  in  the  Chancery  after 
judgment  thereof  given  at  the  common  law,  in  subversion  of 
your  laws." — "  XXVI.  Also  when  matters  have  been  near  at 
judgment  by  process  at  your  common  law,  the  same  Lord 
Cardinal  hath  not  only  given  and  sent  injunctions  to  the  parties, 
but  also  sent  for  your  Judges,  and  expressly  by  threats  com- 
manding them  to  defer  the  judgment,  to  the  evident  subversion 
of  your  laws  if  the  Judges  would  so  have  ceased." — "  XXXVII. 
Also  he  hath  divers  times  given  injunction  to  your  servants, 
that  have  been  before  him  in  the  Star  Chamber,  that  they,  nor 
other  for  them,  should  make  labour,  by  any  manner  of  way, 
directly  of  indirectly,  to  your  Grace,  to  obtain  your  gracious 
favour  and  pardon ;  which  was  a  presumptuous  intent  for  any 
subject." 

The  authority  of  the  Chief  Justice  gave  such  weight 

*  It  appears  very  irregular  to  us,  that  of  the  realm,  or  the  Duke  of  Suffolk,  the 
Sir  Thomas  More,  the  Chancellor,  should  King's  brother-in-law.  In  early  times 
have  sat  upon  the  committee,  and  acted  the  committee  on  a  bill  was  not  con- 
as  chairman ;  for,  although  Speaker  by  sidered  necessarily  a  proceeding  of  the 
virtue  of  his  office,  he  was  not  a  member  House,  and  sometimes  a  bill  was  "  com- 
of  the  House,  and  was  only  entitled  to  put  mined  to  the  Attorney  and  Solicitor- 
the  question;  yet  he  signed  the  report  General." 
before  the  Duke  of  Norfolk,  the  first  peer 

VOL.   I.  0 


194  REIGN  OF  HENRY  VIII.  CHAP.  V. 

to  the  Articles  that  they  were  agreed  to  by  the  Lords 
nemine  contradicente  ;  but  his  ingratitude  and  tergiversa- 
tion caused  much  scandal  out  of  doors,  and  he  had  the 
mortification  to  find  that  he  might  have  acted  an 
honourable  and  friendly  part  without  any  risk  to  him- 
self, as  the  King,  retaining  a  hankering  kindness  for 
his  old  favourite,  not  only  praised  the  fidelity  of  Caven- 
dish and  the  Cardinal's  other  dependants  who  stuck  by 
him  in  adversity,  but  took  Cromwell  into  favour,  and 
advanced  him  to  the  highest  dignities,  pleased  with  his 
gallant  defence  of  his  old  master:  thus  the  Articles 
of  Impeachment  (on  which,  probably,  Fitzjames  had 
founded  hopes  of  the  Great  Seal  for  himself)  were  igno- 
miniously  rejected  in  the  House  of  Commons.* 

The  recreant  Chief  Justice  must  have  been  much 

alarmed  by  the   report  that  Wolsey,  whom   he   had 

abandoned,  if  not  betrayed,  was  likely  to  be  restored 

to  power,  and  he  must  have  been  considerably  relieved 

by  the  certain  intelligence  of  the  sad  scene  at 

Leicester  Abbey  in  the  following  autumn, 

which  secured  him  for  ever  against  the  fear  of  being 

upbraided  or  punished  in  this  world  according  to  his 

deserts. 

However,  he  had  now  lost  all  dignity  of  character, 
and  henceforth  he  was  used  as  a  vile  instrument  to 
apply  the  criminal  law  for  the  pleasure  of  the  tyrant 
on  the  throne,  whose  relish  for  blood  soon  began  to 
display  itself,  and  became  more  eager  the  more  it  was 
gratified. 

Henry  retaining  all  the  doctrines  of  the  Eoman 
Frames  Catholic  religion  which  we  Protestants  con- 
sider  most  objectionable,  but  making  himself 


Roman  "*  ^op6  **  England  in  place  of  the  Bishop  of 
Catholics.  Eome,  laws  were  enacted  subjecting  to  the 
penalties  of  treason  all  who  denied  his  supremacy  ;  and 

*  1  Part.  Hist.  492. 


A.D.  1534.  CHIEF  JUSTICE  FITZJAMES.  195 

many  of  these  offenders  were  tried  and  condemned  by  Lord 
Chief  Justice  Fitzjames,  although  he  was  suspected  of 
being  in  his  heart  adverse  to  all  innovation  in  religion. 

I  must  confine  myself  to  the   two  most  illustrious 
victims  sacrificed  by  him — Fisher,  Bishop  of  A.D.  1534. 
Eochester,  and  Sir  Thomas   More.     Henry,    £^°f 
not  contented  with  having  them  attainted  of  Fisher. 
misprision  of  treason,  for  which  they  were  suffering  the 
sentence  of  forfeiture  of  all   their  property  and  im- 
prisonment during  life,  was  determined  to  bring  them 
both  to  the  block ;  and  for  this  purpose  issued  a  special 
commission  to  try  them  on  the  capital  charge  of  having 
denied  his  supremacy.     The  Lord  Chancellor  was  first 
commissioner;  but  it  was  intended  that  the  responsi- 
bility and  the  odium  should  chiefly  rest  on  the  Lord 
Chief  Justice  Fitzjames,  who  was  joined  in  the  com- 
mission along  with  several  other  common  law  judges  of 
inferior  rank. 

The  case  against  the  Bishop  of  Eochester  rested  on 
the  evidence  of  Eich,  the  Solicitor  General, 

June  17. 

who  swore  he  had  heard  the  prisoner  say,  "  I 
believe  in  my  conscience,  and  by  my  learning  I  as- 
suredly know,  that  the  King  neither  is,  nor  by  right 
can  be,  supreme  head  of  the  Church  of  England  ;"  but 
admitted  that  this  was  in  a  confidential  conversation, 
which  he  had  introduced  by  declaring  that  "he  came 
from  the  King  to  ask  what  the  Bishop's  opinion  was 
upon  this  question,  and  by  assuring  him  that  it  never 
should  be  mentioned  to  any  one  except  the  King,  and 
that  the  King  had  promised  he  never  should  be  drawn 
into  question  for  it  afterwards."  The  prisoner  contend- 
ing that  he  was  not  guilty  of  the  capital  crime  charged 
for  words  so  spoken,  the  matter  was  referred  to  the 
Judges : — 

"  Lord  Chief  Justice  Fitzjames,  in  their  names,  declared  '  that 
this  message  or  promise  from  the  King  to  the  prisoner  neither 

0  2 


196  REIGN  OF  HENRY  VIII.  CHAP.  V. 

did  nor  could,  by  rigour  of  law,  discharge  him ;  but  in  so 
declaring  of  his  mind  and  conscience  against  the  supremacy — 
yea,  though  it  were  at  the  King's  own  request  or  commandment 
— he  committed  treason  by  the  statute,  and  nothing  can  discharge 
him  from  death  but  the  King's  pardon. 

Bishop  of  Rochester. — "  Yet  I  pray  you,  my  Lords,  consider 
that  by  all  equity,  justice,  worldly  honesty,  and  courteous 
dealing,  I  cannot,  as  the  case  standeth,  be  directly  charged 
therewith  as  with  treason,  though  I  had  spoken  the  words 
indeed,  the  same  not  being  spoken  maliciously,  but  in  the  way 
of  advice  or  coimsel  when  it  was  required  of  me  by  the  King 
himself;  and  that  favour  the  very  words  of  the  statute  do  give 
me,  being  made  only  against  such  as  shall  '  maliciously  gainsay 
the  King's  supremacy,'  and  none  other  ;  wherefore,  although  by 
rigour  of  law  you  may  take  occasion  thus  to  condemn  me,  yet  I 
hope  you  cannot  find  law,  except  you  add  rigour  to  that  law,  to 
cast  me  down,  which  herein  I  have  not  deserved." 

Fitzjames,  0.  J. — "  All  my  brethren  are  agreed  that  '  mali- 
ciously '  is  a  term  of  art  and  an  inference  of  law,  not  a  qualifica- 
tion of  fact.  In  truth,  it  is  a  superfluous  and  void  word  ;  for  if  a 
man  speak  against  the  King's  supremacy  by  any  manner  of  means, 
that  speaking  is  to  be  understood  and  taken  in  law  as  malicious" 

Bishop  of  Rochester. — "  If  the  law  be  so,  then  it  is  a  hard 
exposition,  and  (as  I  take  it)  contrary  to  the  meaning  of  them 
that  made  the  law,  as  well  as  of  ordinary  persons  who  read  it. 
But  then,  my  Lords,  what  says  your  wisdom  to  this  question, 
'  Whether  a  single  testimony  may  be  admitted  to  prove  me  guilty 
of  treason,  and  may  it  not  be  answered  by  my  negative?' 
Often  have  I  heard  it  said,  that  to  overcome  the  presumption 
from  the  oath  of  allegiance  to  the  King's  Majesty,  and  to  guard 
against  the  dire  consequences  of  the  penalties  for  treason  falling 
on  the  head  of  an  innocent  man,  none  shall  be  convicted  thereof 
save  on  the  evidence  of  two  witnesses  at  the  least." 

Fitzjames,  O.  J. — "  This  being  the  King's  case,  it  rests  much 
in  the  conscience  and  discretion  of  the  jury ;  and  as  they  upon 
the  evidence  shall  find  it,  you  are  either  to  be  acquitted  or  else  to 
be  condemned." 

The  report  says  that  "  the  Bishop  answered  with  many  more 
words,  both  wisely  and  profoundly  uttered,  and  that  with  a 
mervailous,  couragious,  and  rare  constancy,  insomuch  as  many  of 
his  hearers — yea,  some  of  the  Judges — lamented  so  grievously, 
that  their  inward  sorrow  was  expressed  by  the  outward  teares  in 
their  eyes,  to  perceive  such  a  famous  and  reverend  man  in  danger 
to  be  condemned  to  a  cruell  death  upon  so  weake  evidence,  given 
by  such  an  accuser,  contrary  to  all  faith,  and  the  promise  of  the 
King  himself." 


A.D.  1534.  CHIEF  JUSTICE  FITZJAMES.  197 

A  packed  jury,  being  left  to  their  conscience  and 
discretion,  found  a  verdict  of  GUILTY  ;  and  Henry  was 
able  to  make  good  his  saying,  when  he  was  told  that 
the  Pope  intended  to  send  Bishop  Fisher  a  cardinal's 
hat, — "'Fore  God,  then,  he  shall  wear  it  on  his 
shoulders,  for  I  will  have  his  head  off."  * 

The  conduct  of  the  Chief  Justice  at  the  trial  of  Sir 
Thomas  More  was  not  less  atrocious.     After 
the  case  for  the  Crown  had  been  closed,  the   ^id  of  sir*' 
prisoner,  in  an  able  address  to  the  jury,  clearly   Thomas 
proved  that  there  was  no  evidence  whatever 
to  support  the  charge,  and  that  he  was  entitled  to  an 
acquittal ;  when  Rich,  the  Solicitor  General,  was  per- 
mitted to  present  himself  in  the  witness  box,  and  to 
swear  falsely,  that  "  having  observed,  in  a  private  con- 
versation with  the  prisoner  in  the  Tower,  '  No  parlia- 
ment could  make  a  law  that  God  should  not  be  God/ 
Sir  Thomas    replied,   'No  more  can  the   Parliament 
make  the  King  supreme  head  of  the  Church.' " 

A  verdict  of  GUILTY  was  pronounced  against  the 
prisoner,  notwithstanding  his  solemn  denial  of  ever 
having  spoken  these  words.  He  then  moved,  in  arrest 
of  judgment,  that  the  indictment  was  insufficient,  as  it 
did  not  properly  follow  the  words  of  the  statute  which 
made  it  high  treason  to  deny  the  King's  supremacy, 
even  supposing  that  Parliament  had  power  to  pass  such 
a  statute.  The  Lord  Chancellor,  whose  duty  it  was,  as 
head  of  the  commission,  to  pass  the  sentence, — "  not 
willing,"  says  the  report,  "  to  take  the  whole  load  of 
his  condemnation  on  himself,  asked  in  open  court  the 
advice  of  Sir  John  Fitzjames,  the  Lord  Chief  Justice  of 
England,  whether  the  indictment  was  valid  or  no  ?  " 

Fitzjames,  C.  J. — "  My  Lords  all,  by  St.  Gillian  (for  that  was 
always  his  oath),  I  must  needs  confess  that  if  the  act  of  parlia- 

*  1  St.  Tr.  395-408. 


198  EEIGN  OF  HENRY  VIII.  CHAP.  V. 

ment  be  not  unlawful,  then  the  indictment  is  not,  in  my  con- 
science, invalid." 

Lord  Chancellor. — "  Quid  adhuc  desideramus  testimonium  f 
Reus  est  mortis.  Sir  Thomas  More,  you  being,  by  the  opinion 
of  that  reverend  Judge,  the  Chief  Justice  of  England,  and  of  all 
his  brethren,  duly  convicted  of  high  treason,  this  Court  doth 
adjudge  that  you  be  carried  back  to  the  Tower  of  London,  and 
that  you  be  thence  drawn  on  a  hurdle  to  Tyburn,  where  you  are 
to  be  hanged  till  you  are  half  dead,  and  then  being  cut  down 
alive  and  emboweled,  and  your  bowels  burnt  before  your  face, 
you  are  to  be  beheaded  and  quartered,  your  four  quarters  being 
set  up  over  the  four  gates  of  the  City,  and  your  head  upon 
London  Bridge."  * 

No  one1  can  deny  that  Lord  Chief  Justice  Fitzjames 
was  an  accessory  to  this  atrocious  murder. 

The  next  occasion  of  his  attracting  the  notice  of  the 

public  was  when  he  presided  at  the  trials 

Trial  of36       °f  Smeaton  and  the  other  supposed  gallants 

AnneBoieyn    of  Anne  Boleyn.    Luckily  for  him,  no  par- 

and  her  sup-        .  . 

posed  gai-  ticulars  of  these  trials  have  come  down  to  us, 
and  we  remain  ignorant  of  the  arts  by  which 
a  conviction  was  obtained,  and  even  a  confession, — 
although  there  is  every  reason  to  believe  that  the 
parties  were  innocent.  According  to  the  rules  of  evi- 
dence which  then  prevailed,  the  convictions  and  con- 
fessions of  the  gallants  were  to  be  given  in  evidence  to 
establish  the  guilt  of  the  unhappy  Queen,  for  whose 
death  Henry  was  now  as  impatient  as  he  had  once  been 
to  make  her  his  wife. 

When  the  Lord  High  Steward  and  the  Peers 
assembled  for  her  trial,  Fitzjames  and  the  other  Judges 
attended,  merely  as  assessors,  to  advise  on  any  point  of 
law  which  might  arise. 

I  do  not  find  that  they  were  consulted  till  the  verdict 
of  GUILTY  had  been  recorded,  and  sentence  was  to  be 
pronounced.  Burning  was  the  death  which  the  law 
appointed  for  a  woman  attainted  of  treason;  yet,  as 

*  1  St.  Tr.  385-396. 


A.D.  1539.  CHIEF  JUSTICE  FITZJAMES.  199 

Anne  had  been  Queen  of  England,  some  Peers  suggested 
that  it  might  be  left  to  the  King  to  determine  whether 
she  should  die  such  a  cruel  and  ignominious  death,  or 
be  beheaded,  a  punishment  supposed  to  be  attended 
with  less  pain  and  less  disgrace.  But  then  a  difficulty 
arose,  whether,  although  the  King  might  remit  all  the 
atrocities  of  the  sentence  on  a  man  for  treason,  except 
beheading,  which  is  part  of  it,  he  could  order  a  person 
to  be  beheaded  who  was  sentenced  to  be  burnt.  A 
solution  was  proposed,  that  she  should  be  sentenced  by 
the  Lord  High  Steward  to  be  "  burnt  or  beheaded  at 
the  King's  pleasure ;"  and  the  opinion  of  the  Judges 
was  asked,  "  whether  such  a  sentence  could  be  lawfully 
pronounced  ?  " 

Fitzjames,  C.  J. — "  My  Lords,  neither  myself  nor  any  of  my 
learned  brothers  have  ever  known  or  found  in  the  records,  or 
read  in  the  books,  or  known  or  heard  of,  a  sentence  of  death  in 
the  alternative  or  disjunctive,  and  incline  to  think  that  it  would 
be  bad  for  uncertainty.  The  law  delights  in  certainty.  Where 
a  choice  is  given,  by  what  means  is  the  choice  to  be  exercised  ? 
And  if  the  sheriff  receives  no  special  directions,  what  is  he  to  do  ? 
Is  sentence  to  be  stayed  till  special  directions  are  given  by  the 
King?  and  if  no  special  directions  are  given,  is  the  prisoner, 
being  attainted,  to  escape  all  punishment  ?  Prudent  antiquity 
advises  you  stare  super  antiouas  vias ;  and  that  which  is  without 
precedent  is  without  safety." 

After  due  deliberation,  it  was  held  that  an  absolute 
sentence  of  beheading  would  be  lawful,  and  it  was  pro- 
nounced accordingly ;  the  Court  being  greatly  com- 
forted by  recollecting  that  no  writ  of  error  lay,  and  that 
their  judgment  could  not  be  reversed.* 

Fitzjames  died  in  the  year  1539,  before  this  judgment 
served  as  a  precedent  for  that  upon  the  un-   Death  of 
fortunate  Queen  Catherine  Howard ;  and  he   Flt^ames- 
was  much  missed  when  the  bloody  statute  of  the  Six 
Articles  brought   so  many,  both  of  the  old  and  of 

»  St.  Tr.  410-434;    Hall's  Henry  VIII.  fol.  227  b;    Fox,  Mart.  li.  987;  Stow, 
572;  Speed,  1014. 


200  REIGN  OF  HENRY  VIII.  CHAP.  V. 

the  reformed  faith,  on  capital  charges  before  the  Court 
of  King's  Bench. 

He  left  no  descendants;  but  Sir  John  Fitzjames, 
descended  from  his  brother,  was  a  friend  and  patron  of 
Fuller,  the  author  of  the  WORTHIES,  who,  therefore, 
writes  this  panegyric  on  the  Chief  Justice : — "  There 
needs  no  more  be  said  of  his  merit,  save  that  King 
Henry  VIII.  preferred  him,  who  never  used  dunce  or 
drone  in  church  or  state,  but  men  of  activity  and  ability. 
He  sat  above  thirteen  years  in  his  place,  demeaning 
himself  so  that  he  lived  and  died  in  the  King's  favour." 
Fitzames,  although  not  considered  by  nature  cruel  or 
violent,  had  incurred  much  obloquy  by  his  ingratitude 
to  Cardinal  Wolsey,  and  by  his  sneaking  subserviency ; 
insomuch  that  he  had  not  the  influence  over  juries 
which  was  desirable  for  obtaining  at  all  times  an  easy 
conviction ;  and  Lord  Chancellor  Audley  suggested  the 
expediency  of  having  for  his  successor  a  man  of  fair 
and  popular  reputation,  who  at  the  same  time  would  be 
likely  to  make  himself  agreeable  to  the  King.  After 
the  office  of  Chief  Justice  of  the  King's  Bench 
^ad  been  kept  vacant  some  months,  it  was 
filled  by  SIR  EDWARD  MONTAGU,  another  legal 
founder  of  a  ducal  house  still  flourishing. 

Although  he  owed  his  rise  entirely  to  his  own  exer- 
tions, he  was  of  an  ancient  race.  His  ancestor,  having 
come  over  with  the  Conqueror,  built  a  castle  on  the  top 
of  a  sharp  hill  in  Somersetshire,  and  was  thence  called 
"  Eoger  de  Monte  acuto"  The  family  long  took  the  sur- 
name of  Montacute ;  and  the  elder  branch,  till  it  became 
extinct  in  the  beginning  of  the  reign  of  Henry  VI., 
for  several  generations  bore  the  title  of  Earl 

His  family. 

of  Salisbury.  The  Chief  Justice  was  the 
younger  brother  of  a  younger  brother ;  a  junior  branch 
of  the  family,  settled  at  Hemington  in  Northampton- 
shire, who  had  gradually  changed  their  name  to  Mon- 


A.D.  1539.  CHIEF  JUSTICE  MONTAGU.  201 

tagu.  He  was  born  at  Brigstock  in  that  county,  in 
the  latter  end  of  the  reign  of  Henry  VII.  Being  early 
destined  to  the  profession  of  the  law,  which  had  become 
the  highway  to  wealth  and  honours,  he  was  sent  when 
very  young  to  study  at  an  Inn  of  Chancery,  and  in  due 
time  was  entered  a  member  of  the  Society  of  the  Middle 
Temple.  Here  he  is  said  to  have  made  himself,  by 
indefatigable  industry,  complete  master  of  all  the 
learning  of  the  common  law,  not  neglecting  more  liberal 
pursuits,  which  the  example  of  Sir  Thomas  More  had 
made  fashionable  among  professional  men.  I  Hig  feg_ 
do  not  find  any  statement  of  his  call  to  the  sionai  pro- 
bar,  or  his  progress  in  business ;  but  so  highly 
was  he  esteemed  for  learning  by  the  Benchers,  that  he 
was  appointed  by  them  "Autumn  Eeader"  in  1524, 
and  "  Double  Eeader  "  a  few  years  afterwards. 

Enterprising  lawyers  now  began  to  get  on  by  politics  ; 
and   when  a  parliament  was  summoned  in 
1523,  Montagu  contrived  to  be  returned  as  a   tuniedtothe 
member  of  the  House  of  Commons.     But  this    aeon's- 
speculation  had  nearly  ended  fatally  to  him.    how  a  leader 

T  -i        o-       mi_  T»T  J  T       J    -D  -U        of  Opposition 

Like  bir  Thomas  More  and  Lord  Bacon,  he  was  dealt 
indiscreetly  made  a  maiden  speech  against  Henry Vm. 
granting  a  supply.  This  was  the  parlia- 
ment in  which  Sir  Thomas  More  was  chosen  Speaker, 
and  in  which  Wolsey  had  gone  down  to  the  House  of 
Commons  to  complain  of  the  tardy  progress  of  the 
money  bill.  Montagu,  thinking  that  he  had  found  a 
favourable  opportunity  for  his  debut,  made  a  violent 
harangue  on  the  breach  of  privilege  which  had  been 
committed.  But  the  next  day  he  was  sent  for  by  the 
King,  who  thus  addressed  him :  "  Ho !  will  they  not 
let  my  bill  pass  ?  "  The  young  patriot,  in  a  great  fright, 
knelt  down ;  when  Henry,  laying  his  hand  on  his  head, 
added,  "  Get  my  bill  to  pass  by  twelve  of  the  clock  to- 
morrow, or  else  by  two  of  the  clock  to-morrow  this 


202  EEIGN  OP  HENKY  VIII.  CHAP.  V. 

head  of  yours  shall  be  off."  In  an  instant  was  Montagu 
cured  of  his  public  spirit,  and  he  became  a  steady 
courtier  for  the  rest  of  his  days. 

When  he  "  put  on  the  coif,"  or  "  took  upon  himself 
the  degree  of  serjeant-at-law,"  he  gained  pro- 
digious applause.  A  call  of  Serjeants  in  those 
times  was  an  event  of  historical  importance,  by  reason 
of  the  festivities  attending  it,  and  of  its  marking  an 
sera  in  the  annals  of  Westminster  Hall.  The  chroniclers 
celebrate  the  call  of  Serjeants  which  included  Sir  Edward 
Montagu  as  the  most  splendid  on  record,  and  ascribe 
its  success  in  no  small  degree  to  his  liberality  and  taste. 
The  feast  was  held  in  Ely  House,  Holborn,  and  lasted 
Grand  feast  ^Y6  ^a7s  :  Friday,  the  10th  of  November, 
when  Mon-  and  Saturday,  Sunday,  Monday,  and  Tuesday 
called  following.  On  the  Monday,  which  was  the 

greatest  day,  King  Henry  and  Queen  Cathe- 
rine dined  there,  with  all  the  foreign  Ambassadors,  all 
the  Judges,  the  Lord  Mayor  and  Aldermen  of  London, 
all  the  King's  Court,  and  many  of  the  nobility.  "  It 
were  tedious,"  says  Dugdale,  "  to  set  down  the  prepa- 
ration of  fish,  flesh,  and  other  victuals  spent  in  this 
feast,  and  would  seem  almost  incredible,  and  wanted 
little  of  a  feast  at  a  coronation."* 

*  However,  he  gives  a  few  items  as  a  specimen,  "  noting  the  prices  to  show  how 
things  had  risen  in  a  century :" — 

"  There  were  brought  to  the  slaughter-house,—  £  s.  d. 

24  great  biefes,  at 1    6    8  the  piece. 

100  fat  muttons,  at 0    2  10 

61  great  veales,  at 048 

34  porkes,  at 033 

90  pigs,  at 006 

Capons  of  Greece,  10  dozen,  at 01-8 

Capons  of  Kent,  9  dozen  and  6,  at 010 

Cocks  of  Grose,  7  dozen  and  9,  at 008 

Cocks  course,  14  dozen  at  8d.  and  3d.  a-pieoe. 

Pullets,  the  best 002      ob. 

Pigeons,  37  dozen,  at 0    0  10  a  dozen. 

Swans,  13  dozen. 

Larks,  340  dozen,  at 008       „        " 

Dug.  Or.  Jur.  p.  128 ;  Stew's  Survey  of  London,  426. 


A.D.  1539.  CHIEF  JUSTICE  MONTAGU.  203 

This  must  have  been  almost  the  last  occasion  of  the 
King  being  seen  in  public  with  his  first  wife  ;  and  he 
would  have  been  much  obliged  to  the  Serjeants  if  they 
could,  by  their  cantrips,  have  put  Anne  Boleyn  in  her 
place  ;  but  they  contrived  to  satisfy  him  highly,  and  he 
declared,  on  his  departure,  that  "  the  entertainment 
had  been  much  to  his  good  liking."  He  took  great 
notice  of  Serjeant  Montagu,  whose  manners  were  par- 
ticularly agreeable,  and  invited  him  to  the  palace  at 
Westminster.  From  that  time,  there  was  a  personal 
intimacy  between  them,  and  Montagu  was  set  down  as 
a  royal  favourite  marked  for  promotion. 

However,  year  after  year  passed  away,  without  any 
change    in   his   position,    and    he    thought   He  is  made 
himself  doomed  to  perpetual  neglect,  when,          ' 


without  having  been  ever  Attorney  or  Soli-   Bencb- 

.,        ~  i  TT-       >      a      •          L  -n    •  Jan.  21.  1539 

citor  General,  or  King  s  berjeant,  or  Puisne   -40. 
Judge,   he   found  himself   one  day    Chief  Justice  of 
England. 

For  a  short  time  he,  no  doubt,  was  pleased  in  ob- 
serving the  ioy  of  his  wife  and  children  :  in   , 

P  J   J  '  Pleasures 

receiving  the  congratulations  of  his  friends  ;    and  discom- 

.      ,.    ,  .  ,  .     ,  forts  experi- 

in  listening  to  a  panegyric  on  his  learning  enced  by 
and  his  virtues  from  Lord  Chancellor  Audley  ;  ] 
in  appointing  his  officers  ;  in  giving  good  places  to  his 
dependants  ;  in  putting  on  his  scarlet  robes,  and  throw- 
ing the  collar  of  S.S.  round  his  neck  ;  in  witnessing  the 
worshipful  homage  paid  to  him  when  he  took  his  seat 
on  the  bench  ;  in  attending  divine  service  at  St.  Paul's, 
and  afterwards  dining  with  the  Lord  Mayor  of  London  ; 
in  hearing  discourse  addressed  to  him,  interlarded  with 
"  My  Lord,"  and  "  Your  Lordship  ;"  in  limners  soliciting 
leave  to  draw  his  portrait;  in  seeing  how  the  Bar 
not  only  nodded  submissively  to  his  law,  but  laughed 
vociferously  at  his  jests  ;  in  encountering  the  envy  and 
jealousy  of  his  enemies  and  his  rivals  ;  and  in  finding 


204  EEIGN  OF  HENRY  VIII.  CHAP.  V. 

that  his  small  salary  was  amply  made  up  to  him  from 
the  fees,  gratuities,  and  presents  which  flowed  in  upon 
him  from  all  quarters.  But  it  is  certain  that  these 
pleasures  soon  faded  away,  and  that  he  wished  himself 
again  a  serjeant-at-law,  quietly  and  drowsily  practising 
in  the  Court  of  Common  Pleas.  Unfortunately  for  his 
comfort  he  had  a  conscience,  —  and  he  was  unable  either 
to  obey  its  dictates  or  to  silence  its  reproaches.  A 
Chief  Justice  in  those  days,  long  to  relish  his  elevation, 
must  have  been  made  of  sterner  stuff  than  Sir  Edward 
Montagu. 

He  professed,  and,  I  believe,  sincerely,  an  inclination 
for  the  new  doctrines  in  religion  ;  but,  under  the 
statute  of  the  Six  ARTICLES,  he  was  often  called  upon  to 
convict  and  to  sentence  to  death  both  Papists  and  Pro- 
testants. He  was  still  more  annoyed  by  what  may  be 
called  the  extrajudicial  work  required  of  him.  When 
Anne  of  Cleves  was  to  be  divorced  because 

Gives  an  , 

opinion  on  her  person  after  marriage  was  found  not 
ityofthed~  agreeable,  and  the  King  declared  that  in 
'"  S  through  the  marriage  ceremony  he  had 


riag  with 

Anne  of         never,  in  his  own  mind,  given  his  consent  to 

Clcvcs 

the  marriage,  the  Chief  Justice  was  obliged 
to  give  an  opinion  that  the  marriage  had  not  been  duly 
contracted  and  ought  to  be  declared  null.  When  Crom- 
well, for  negotiating  this  marriage,  and  deceiving  the 
King  as  to  the  lady's  personal  charms,  was  to  lose  his 
head,  the  Chief  Justice  was  obliged  to  certify  to  the 
House  of  Lords  that  innocent  acts  which  he  had  done 
with  the  King's  authority  amounted  to  treason,  and 

afforded  sufficient  ground  for  passing  a  bill 

His  opinion          f          ,    .     -,  ,     ,  .  -ITT-L 

on  the  proofs  of  attainder  against  him.  When  Queen 
Catherine  Catherine  Howard,  who  certainly  had  been 
^7*546  guilty  of  incontinence  before  her  marriage, 
but  against  whom  there  was  no  sufficient 
evidence  of  such  misconduct  afterwards  as  would  sub- 


A.D.  1546.  CHIEF  JUSTICE  MONTAGU.  205 

ject  her  to  the  pains  of  treason,  was  to  be  put  to  death 
because  she  had  deceived  the  King  in  persuading  him 
that  she  had  come  a  virgin  to  his  arms,  the  Chief 
Justice  was  obliged  to  answer  in  the  affirmative  a 
question  submitted  to  him,  "  Whether,  as  the  accused 
party  was  a  Queen,  the  law  would  infer  that  she  had 
committed  adultery,  from  facts  which  in  the  case  of  a 
common  person  would  afford  no  such  inference  ?"  * 

This  last  affair  seems  to  have  weighed  heavily  on  his 
mind ;  he  thenceforth  openly  declared  that  he  was  tired 
of  his  dignity,  and  he  even  talked  of  resigning  it  and 
retiring  into  private  life.  But  he  was  tempted  to 
remain  by  large  grants  of  abbey  lands.  An  apologist 
says,  "  In  his  time,  though  the  golden  showers  of  abbey 
lands  rained  amongst  great  men,  it  was  long  before  he 
would  open  his  lap  (scrupling  the  acceptance  of  such 
gifts),  and  at  last  received  but  little  in  proportion  to 
others  of  that  age."  f  This  very  graphically  delineates 
his  character.  He  would  much  rather  have  gained  all 
his  objects  by  honourable  means, — but  he  could  not 
resist  temptation,  although  sin  was  followed  by  re- 
morse. In  truth,  he  partook  very  largely  of  the  spoils 
of  the  Church,  and,  in  spite  of  his  unhappiness,  he  was 
reluctant  to  renounce  not  only  the  emoluments  of  office, 
but  the  chance  of  further  aggrandisement. 

An  expedient  presented  itself,  of  which  he  eagerly 
availed  himself.     The  office  of  Chief  Justice   neex. 
of  the  Common  Pleas  became  vacant  by  the   c^n^8  bi? 

offiw  for  tnG 

sudden  death  of  Sir  John  Baldwin.    This  had   chief  Jus- 
now  acquired  the  name  of  the  "  pillow,"  from   the  common 
its  allowing  the  possessor  to  be  put  to  sleep   I 
by  the  somnolent  pleadings  of  the  Serjeants  who  ex- 
clusively practised  there,  in  conducting  real  actions, 

*  He  answered,  that  the  facts  put  to     presumption   that   adultery   had   been 
him  hypothetically,    "considering  the     committed." 
persons  implicated,  formed  a  satisfactory        f  Fuller. 


206  KEIGN  OF  HENRY  VIII.  CHAP.  V. 

without  any  excitement  from  criminal  or  political 
trials.  For  profit  it  was  superior  to  the  Chief  Justice- 
ship of  the  King's  Bench  ;  and  most  of  those  who  had 
the  good  luck  to  lay  their  heads  upon  it,  when  taken 
from  the  tumults  of  the  bar,  remained  fully  contented 
with  it  for  life.  Yet,  being  inferior  in  point  of  rank, 
an  etiquette  had  prevailed  that  no  one  could  accept  it 
who  had  been  in  the  higher  situation  of  Chief  Justice 
of  England.  Montagu  probably  had  some  scruples,  as 
usual  when  he  was  about  to  do  an  improper  action  ; 
but  if  he  had  any,  he  soon  overcame  them,  for  a  few 
days  after  Baldwin's  death  he  went  to  the  King,  and, 
after  making  a  parade  of  his  services,  and  his  loyalty, 
and  his  extreme  desire  still  to  be  of  service  to  his 
Highness,  he  feigned  ill-health  and  infirmity,  and 
prayed  that  he  might  be  allowed  to  be  Chief  Justice 
of  the  Common  Pleas  instead  of  the  King's  Bench. 
Wriothesly,  a  rigorous  Eoman  Catholic,  was  then 
Chancellor,  and  he  bore  no  good  will  to  Montagu,  who 
advocated  the  King's  supremacy,  and  was  a  grantee  of 
Church  property.  However,  he  thought  that  such  a 
character  would  be  less  mischievous  in  the  obscurer 
place  which  he  coveted,  and  by  his  advice  the  King 
consented  to  the  exchange.  Accordingly,  on  the  6th 
Nov.  1546,  Montagu  was  superseded  as  Chief  Justice 
of  the  King's  Bench,  and  took  his  seat  as  Chief  Justice 
of  the  Common  Pleas.* 

Now  he  was  like  a  ship  that,  having  been  tossed  on 
a  stormy  ocean,  suddenly  enters  a  creek  where  the 
winds  are  stilled  and  the  waters  are  smooth.  He 
might  feel  some  mortification  when  he  saw  Eichard 
Lyster,  whom  he  had  lately  snubbed  at  the  bar,  take 
precedence  of  him  in  judicial  processions  as  Lord  Chief 
Justice  of  the  King's  Bench;  and  when  he  thought 

*  Pat.  37  Henry  VIII.  p.  18.    Fuller     ascent  in  profit,— it  being  given  to  old 
remarks,  "  A  descent  in   honour,  but     age  rather  to  be  thrifty  than  ambitious." 


A.D.  1546.  CHIEF  JUSTICE  MONTAGU.  207 

that  his  decisions  were  liable  to  be  reversed  by  the 
caprice  of  that  court  where  his  word  had  been  law ; 
but  he  must  have  exulted  in  experiencing  the  quiet 
and  security  he  had  managed  to  obtain, — in  soothing 
his  conscience  by  resolutions  to  repent  of  past  trans- 
gressions, without  being  driven  to  commit  new  ones, — 
and  in  thinking  that,  when  the  golden  showers  of 
abbey  lands  again  fell,  he  might  still  open  his  lap. 

During  the  remainder  of  this  memorable  reign,  once, 
and  once  only,  he  was  in  danger  of  being 
subjected  to  the  like  perils,  pangs,  and  re- 
morse  to  which  he  had  been  exposed  when 
Chief  Justice  of  the  King's  Bench.  The  old 
Duke  of  Norfolk,  having  become  obnoxious  to  the 
Seymours,  who  were  gaining  an  ascendency  at  Court, 
was  under  prosecution  for  treason,  the  principal  charge 
against  him  being  that,  as  he  was  descended  from  the 
royal  family  through  a  female,  he  had  ever  since  his 
father's  death  quartered  on  his  shield  the  royal  arms  of 
England  with  a  difference.  The  two  Chief  Justices 
were  summoned  to  attend  his  examination  before  the 
Council,  and  it  was  expected  that  they  would  be  asked 
whether  this  pretension,  which  ought  to  have  been 
decided  by  the  College  of  Heralds,  amounted  to  a 
compassing  of  the  King's  death  under  the  statute  of 
25  Edw.  III.  But,  luckily  for  the  consciences  of  the 
Chief  Justices,  the  Duke,  knowing  the  hopelessness  of 
a  defence,  and  hoping  to  soften  the  King  by  submission, 
voluntarily  subscribed,  in  their  presence,  a  formal  con- 
fession of  his  guilt,  whereby  he  admitted  that  he  had 
quartered  the  royal  arms  in  the  manner  alleged,  which, 
as  he  knew,  by  the  laws  of  this  realm  amounted  to  high 
treason.  This  document  was  attested  by  the  two  Chief 
Justices  (Montagu  signing  after  Lyster*),  and  all  they 

*  1  St.  Tr.  458. 


208  REIGN  OF  EDWAED  VI.  CHAP.  V. 

could  be  blamed  for  was  that  they  did  not  caution  him 
against  such  an  indiscretion. 

As  soon  as  the  proceeding  had  been  completed  in  due 
form,  it  was  made  the  foundation  of  an  act  of  attainder, 
and  the  Duke  would  have  suffered  death  as  a  traitor 
if  there  had  not  been  an  opportune  demise  of  the  Crown 

early  in  the  morning  of  the  day  appointed 

for  his  execution. 

The  commission  of  Montagu  as  Chief  Justice  of  the 
Common  Pleas  was  renewed,  and  he  held  the  office 
during  the  whole  of  the  reign  of  Edward  VI.  Although 
he  had  been  named  one  of  Henry  VIII. 's  executors,  he 
long  contrived  to  steer  clear  of  the  violent  factions  by 
which  the  country  was  agitated.  But,  after  the  tragical 
end  of  both  the  Seymours,  Dudley,  Duke  of  Northum- 
berland, having  become  complete  master  of  the  kingdom, 
and  seeing  the  approaching  end  of  the  young  King, 
resolved  to  prolong  his  own  rule  by  defeating  the  suc- 
cession of  the  Princess  Mary.  He  thought  that  the 
Chief  Justice  of  the  Common  Pleas  would  be  a  useful 
instrument  in  carrying  into  effect  the  project  he  had 
formed.  This  was  to  induce  the  dying  Edward  to 

make  a  will  disinheriting  his  sisters,  Mary 

He  is  em-  ,_,,.,,,  ..,         .          . ,  ,. 

ployed  to  and  Elizabeth,  and  leaving  the  crown  to  his 

wm  of  Ed-  cousin,  Lady  Jane  Grey.     Of  all  the  Judges 

favourofin  on  ^e  bench,   Montagu   was   considered  to 

Lady  Jane  have  the  fairest  character,  with  the  weakest 

Grey. 

nerves  ;  and,  without  any  notice  of  the  busi- 
ness to  be  debated,  he  and  two  or  three  Puisnies,  over 
whom  he  was  supposed  to  have  influence,  were  sum- 
moned to  attend  a  council  at  Greenwich,  where  the 
Court  then  lay.  Being  required  to  prepare  a  will  for 
the  King  to  the  effect  before  stated,  he  was  thrown  into 
greater  perplexity  than  he  had  ever  experienced  when 
Chief  Justice  of  the  King's  Bench  under  Henry  VIII.  ; 
and,  although  charged  to  obey  upon  his  allegiance,  he 


A.D.  1553.  CHIEF  JUSTICE  MONTAGU.  209 

plucked  up  courage  to  refuse  till  he  should  have  an 
opportunity  to  look  into  the  acts  passed  for  regulating 
the  succession,  and  to  consult  the  whole  of  his  brethren. 
The  more  he  considered  the  matter,  the  more  he  was 
frightened,  for  he  saw  that  what  he  was  AJ)  1653 
asked  to  do  was  not  only  contrary  to  law, 
but  would  be  sure  to  expose  him  to  the  penalties  of 
treason.  Accordingly,  at  a  council  held  two  days  after, 
he  explained. that  by  act  of  parliament  the  crown  was 
entailed  on  the  Lady  Mary  after  the  death  of  his  High- 
ness without  issue,  and  that  nothing  short  of  an  act  of 
parliament  could  alter  this  destination.  But,  North- 
umberland threatening  the  utmost  violence  against  all 
who  should  attempt  to  thwart  his  inclination,  the  fol- 
lowing plan  was  resorted  to — that  a  commission  should 
pass  the  great  seal,  authorising  Montagu  to  draw  the 
will  in  the  prescribed  form;  that  it  should,  when 
drawn  and  executed  by  Edward,  be  signed  by  all  the 
Judges ;  and  that  a  pardon  at  the  same  time  should 
pass  the  great  seal  to  indemnify  them  for  any  offence 
against  the  law  which  they  might  thereby 
have  committed.  Thus  fortified,  Montagu 
drew  the  will,  and  under  it  the  Lady  Jane  Grey  was 
proclaimed  Queen  of  England. 

He  waited  upon  her  when  she  came  from  Sion  House 
to  the  Tower  of  London  preparatory  to  her  coronation  ; 
but  he  was  one  of  the  first  to  desert  her  when  he  heard 
of  the  general  expression  of  loyalty  in  favour  of  Queen 
Mary. 

For  some  time  he  was  in  considerable  danger  of  a 
capital  prosecution,  the  will  of  Edward  being 
in  his  handwriting,  and  a  report  being  spread    office  on  the 
that  he  had  furnished  the  arguments  in  law   Q^ 
by  which  an  attempt  had  been  made  to  sup- 
port it.     He  was    arrested,   confined    in  the    Tower, 
and  subjected  to  repeated  examinations;  but  Bishop 

VOL.   I.  P 


210  KEIGN  OF  QUEEN  MAKY.  CHAP.  V. 

Gardyner,  now  Chancellor  and  Prime  Minister,  was 
convinced  that  lie  had  acted  under  constraint,  and, 
while  others  expiated  on  the  scaffold  the  offence  in 
which  he  had  been  implicated,  after  six  weeks'  im- 
prisonment he  was  set  at  liberty,  being  punished 
only  by  the  loss  of  his  Chief  Justiceship,  by  a  fine  of 
1000Z.,  and  by  the  surrender  of  some  abbey  lands 
granted  to  him  at  the  recommendation  of  the  Protector 
Somerset. 

He  then  retired  to  his  country  house,  where  he  died 
on  the  10th  of  February,   1556.     He  was 

His  death.  .  4.  •        TT        • 

buried  with  his  ancestors  in  Hemington 
church,  and  a  splendid  marble  monument  was  there 
erected  to  his  memory,  with  the  following  semi-bar- 
barous inscription,  which,  if  prepared  by  himself,  shows 
that  he  did  not  concur  in  the  saying  that  "  the  receiver 
of  abbey  lands  can  have  no  faith  in  prayers  for  the 
dead." 

"OaATB  PRO  ANIMA  EDWARDI  MotTNTAGU  MlLTTIS  NtTPEB  CAPITALIS  JtJSTIC.  DE 

COMMUNI  BANCO  APUD  WESTM. 

"Montacute  pater,  legum  jurisque  inagister, 
0  Edwarde,  vale !  quern  disciplina  severa 
Furit  et  improbitas  hominum  scelerata  tlmebat. 
Moribus  antiquis  vixisti,  pacts  amator, 
Virtutis  rigidus  custos,  vitiique  flagellum. 
0  venerande  senex !  te  luxuriosa  juventus, 
Criminis  ultorem  metuens,  in  funere  gaudet. 
Patria  sed  meret,  sancto  spoliata  latore, 
Qui  vixit  justi  summus  defensor  et  aequi. 
Hunc  tu  pneteriens  lector  defends  precando."  * 

Having  been  thrice  married,  he  left  eight  sons  and 
nine  daughters,  for  all  of  whom  he  was  able  amply  to 
provide.  The  title  of  Duke  of  Montagu  bestowed  upon 
one  branch  of  his  descendants,  and  of  Earl  of  Halifax 
upon  another,  have  become  extinct,  but  the  Duke  of 
Manchester  and  the  Earl  of  Sandwich  are  sprung  from 
him  in  the  direct  male  line. 

*  2  Bridge's  Northampton,  347. 


A.D.  1546-56.  CHIEF  JUSTICE  DYER.  211 

The  next  five  persons  successively  appointed  to  the 
office  of  Chief  Justice  of  the  King's  Bench 
(Sir  Richard Lyster,  9th  Nov.  1546 ;  Sir  Roger 
Cholmley,   21st  March,   1552;   Sir  Thomas   the  King's 
Bromley,  4th  Oct.  1553 ;  Sir  William  Port-   ] 
more,  llth  June,  1554;  and  Sir  Edward  Saunders,  8th 
May,  1556)  were  neither  eminent  in  their  profession  nor 
connected  with  the  stirring  events  of  the  times  in  which 
they  lived.     I  shall  therefore  pass  them  over  without 
further  notice,  and  introduce  to  the  reader  a  contemporary 
Chief  Justice  of  the  Common  Pleas,  to  whom  we  lawyers 
still  look  up  with  much  reverence — SIR  JAMES  DYER. 

I  myself  am  bound  particularly  to  honour  him  as  the 
first  English  lawyer  who   wrote  for  publi-   g^^e,, 
cation  "Reports  of  Cases"    determined  in   *£e:T>ijOTd. 

i  •_    •          n  11  11  Chief  Justice 

our  municipal  courts, — being  followed  by  a   oftheCom- 
long  list  of  imitators,  containing  my  humble 
name.     To  show  the  respect  in  which  our  craft  was 
once  held,  and  to  excuse  myself  to  the  reader  for  intro- 
ducing a  Law  Reporter,  I  begin  with    some   Latin 
lines,  composed  by  his  editor  soon  after  his  death,  when 
a  huge  folio,  the  labour  of  thirty  years,   was  given 
to  the  world  : — 

"CANDIDO  LECTORI  CARMEN. 
ECCE  per  assiduos  tandem  collecta  labores,  Latin  verses 

Expectata  diu,  jam  monumenta  patent.  in  his  praise. 

Et  quse  ter  denos  vix  sunt  congesta  per  annos, 

En  uno  inclusit  pro  brevitate  libro. 
In  cujus  laudem,  satis  est  scripsisse  DIERCM, 

Patronoque  alio  non  opus  esse  reor. 
Cujus  nota  satis  doctrina,  potentia,  virtus, 

Cujns  jnncta  gravi  cum  pietate  fides. 
Cujus  summus  honor,  cujus  veneranda  potestas, 

Semper  erunt  domini  signa  notaeque  sui. 
Ergo  vade  Liber,  primoque  in  fronte,  DIE  RDM 

Inscriptum  gestas,  hoc  dace  tutus  eris. 
Improba  ne  dubites  vani  convicia  vulgi, 

Sat  tlbi  sit  tanti  gesta  fuisse  viri. 
Quern  nee  consumet  spatium  nee  longa  vetustas, 

Tempera  quern  rapient  nulla,  nee  ulla  dies : 
Docte  DIEBE  vale,  tua  fama  perennis  Olympo 

Vivet  ad  extremes  te  moriente  dies." 

p  2 


212  EEIGN  OF  QUEEN  MAKY.  CHAP.  V. 

I  may  not  flatter  myself  that  I  can  assist  in  fulfilling 
these  prophecies,  and  in  making  his  name  immortal ; 
but  I  can  easily  show  that  he  deserves  a  place  among 
the  Worthies  of  Westminster  Hall. 

He  was  descended  from  an  ancient  family  of  Somer- 
setshire, which  likewise  produced  Sir  Edward 
Sd  eduction.  Dver'  Chancellor  of  the  Garter  under  Queen 
Elizabeth, — an  eminent  poet,  as  well  as  an 
accomplished  courtier,  and  a  very  formidable  com- 
petitor with  the  Earl  of  Leicester  and  Sir  Christopher 
Hatton  for  the  favours  of  their  royal  mistress. — James 
Dyer  was  born  about  the  year  1512,  and  was  the 
second  son  of  Richard  Dyer,  who  had  a  good  estate  at 
Wincanton,  in  that  county.  Whetstones,  the  rhyming 
biographer,  who  celebrated  the  great  ornaments  of  the 
reign  of  Elizabeth,  gives  us  this  account  of  his  educa- 
tion : — 

"  In  tender  yeares  he  was  to  learning  set ; 

And  vessels  long  their  seasoned  liquors  taste: 
As  time  grew  on,  he  did  to  Oxford  get, 

And  so  from  thence  he  was  in  Strand  Inru?  plaste; 

But  him  with  fame  the  Middle  Temple  graste : 
The  depth  of  lawe  he  searcht  with  painefull  toyle, 
Not  cunning  quirks  the  simple  man  to  spoyle."f 

As  a  proof  of  the  early  genius  he  displayed  for 
reporting,  we  are  told  by  prose  authorities 
genius'for  that  ^e  was  remarkable  for  a  diligent  attend- 
reportmg.  ance  in  the  courts  of  law  every  morning  from 
seven  to  eleven,  with  his  note-book,  in  which 
he  took  down,  in  short-hand,  the  arguments  and  judg- 
ments in  all  important  cases  occurring  in  Westminster 
Hall.  When  he  returned  to  his  chamber  after  supper, 
at  six  o'clock,  he  digested  and  abridged  his  notes  into  a 
lucid  report  of  each  case,  introducing  only  the  facts 
necessary  for  raising  the  point  of  law  determined,  with 

*  Then  an  Inn  of  Chancery  where     LOBD  DYER,"  reprinted  in  1816  at  the 
legal  studies  began.  Auchinlack  press. 

t  '  THE  LIFE  AND  DEATH  OF  THE  GOOD 


A.D.  1553.  CHIEF  JUSTICE  DYER.  213 

a  brief  statement  of  the  manner  in  which  it  was  pre 
sented  by  the  counsel  to  the  court,  and  the  opinion  of 
each  of  the  judges; — improving  infinitely  upon  the 
YEAR-BOOKS,  which  generally  presented  a  confused  mass 
of  dialogue  between  the  counsel  and  the  judges, — the 
reader  often  being  left  in  doubt  whether  the 
speaker  stood  at  the  bar  or  sat  on  the  bench. 
Hence  the  admirable  reports  of  Lord  Chief 
Justice  Dyer,  which  were  afterwards  given  to  the 
world,  and  hence  the  valuable  labours  of  succeeding 
reporters  on  the  same  model. 

After  having  been  a  student  of  law  rather  more  than 
seven  vears,  he  was  called  to  the  bar.     His 

xi.  -J     f        v    j.1,      A-»-153T. 

progress  there  was  not  very  rapid,  for  both 
his  parts  and  acquirements  are  said  to  have  been  more 
solid  than  brilliant.     He  avoided  all  evil  arts  to  pro- 
mote the  success  either  of  others  or  of  himself. 

"  He  with  much  care  his  clyents'  wrongs  redrest ; 

By  vertue  thus  he  clymede  above  the  rest, 
And  feared  no  fall,  sith  merit  was  his  guide, 
When  reaching  heads  ofte  slip  in  chelfest  pride."* 

He  steadily  advanced  in  business  and  in  reputation, 
insomuch  that    in    the    last  parliament  of  March)1553 
Edward  VI.  he  was  returned  as  a  member  of  He  is 
the  House  of  Commons;  and  he  was  elected   the  House  of 
Speaker,    although    without    the    rank    of   ( 
Solicitor  General,  or  of  Serjeant,  usually  considered 
necessary  for  that  dignity.     We  have  no  particulars  of 
his  performance  when,  being  presented  at  the  bar  of 
the  House  of  Lords,  he  prayed  that  the  privileges  of 
the   Commons  might  be  allowed, — for  the  Journals 
merely  say  that  he  made  "  an  ornate  oration  before  the 
King."     On  account  of  Edward's  declining  health,  the 
parliament  sat  only  one  month,f —  at  the  end  of  which, 
Dyer  ceased  for  ever  to  be  a  parliament  man ;  and, 

*  Whetstones.  f  1  Part-  Hist.  599 — 602. 


214  EEIGN  OF  QUEEN  MAKY.  CHAP.  V. 

having  received  100Z.  for  his  fee  as  Speaker,  he  was 
probably  not  sorry  to  be  freed  from  the  distraction 
of  politics,  that  he  might  devote  himself  exclusively  to 
his  favourite  pursuit. 

Immediately  after,  he  took  the  degree  of  Serjeant  at 

Law;   and,  as  he  had  warmly  espoused  the 

Protestant    side,   it  was    expected   that  he 

would   soon  receive  high  promotion ;   but  his  hopes 

seemed  extinguished  by  the  premature   death  of  the 

Protestant  King,   and   the  accession    of   the  bigoted 

Mary. 

He  had  no  concern  in  the  plot  for  putting  the  Lady 
Jane  Grey  on  the  throne,  and,  as  a  sound  lawyer,  he 
had  denied  the  power  of  Edward  to  change  the  suc- 
cession to  the  crown  by  his  will,  contrary  to  an  act  of 
parliament  as  well  as  to  the  common  law  of  the  realm. 

It  was  probably  for  that  reason  that,  although  he  did 
Oct.  19.  not,  like  many  others,  now  change  his  re- 
Queen'sade  ligi°n>  ^e  was  honoured  with  the  appoint- 
serjeant.  ment  of  Queen's  Serjeant.  I  presume  that, 
without  any  formal  reconciliation  to  the  Church  of 
Eome,  he  must,  after  the  example  of  Sir  Nicholas 
Bacon,  Sir  William  Cecil,  and  the  Princess  Elizabeth 
herself, — good  Protestants  in  their  hearts, — have  con- 
formed, during  this  reign,  to  the  dominant  worship ; 
for  Lord  Chancellor  Gardyner  could  not  have  recom- 
mended to  the  royal  favour  a  notorious  schismatic. 

Dyer  certainly  enjoyed  the  confidence  of  Mary's 
April,  1554.  Government ;  and  he  was  employed  as  one  of 
He  conducts  the  counsel  to  prosecute  Sir  Nicholas  Throck- 

theprosecu-  ,  *,         .  ,      ,  .    , 

tion  against     morton,  charged  with  high  treason,   as  an 

Throck-°        accomplice  in  Sir  Thomas  Wyat's  rebellion.* 

On  this  occasion,  he  met  with  a  signal  defeat; 

*  It  has  been  supposed  that  he  acted  commission  (see  Life  of  Dyer,  prefixed 
as  one  of  the  judges  on  this  occasion,  to  the  last  edition  of  his  Reports) ;  but 
because  his  name  is  mentioned  in  the  it  is  mentioned  with  that  of  the  Attorney- 


A.D.  1554.  CHIEF  JUSTICE  DYER.  215 

the  prisoner,  who  was  a  man  of  great  ingenuity  and 
eloquence,  having  the  almost  unprecedented  good 
luck,  in  those  ages,  to  obtain  a  verdict  of  acquittal. 
We  have  a  very  minute  report  of  the  proceedings, 
showing  that  as  yet  there  were  no  rules  whatever  as  to 
procedure  or  evidence  on  criminal  trials.  Much  of  the 
time  was  occupied  with  questioning  the  prisoner,  and, 
instead  of  any  formal  speeches  being  delivered,  a  con- 
versation was  kept  up  between  the  judges,  the  jury,  the 
counsel,  and  the  prisoner,  in  the  midst  of  the  reading  of 
written  confessions  and  depositions.  When  the  jury 
had  been  sworn,  thus  spoke  Sir  Nicholas : — 

"  And  it  may  please  you,  Master  Serjeant,  and  the  others  my 
masters  of  the  Queen's  learned  counsel,  albeit  you  are  appointed 
to  give  evidence  against  me,  yet  I  pray  you  remember  I  am  not 
alienate  from  you,  but  that  I  am  your  Christian  brother.  You 
ought  to  consider  that  you  are  not  so  privileged  but  you  have  a 
duty  of  God ;  which,  if  you  exceed,  will  be  grievously  required  at 
your  hands.  It  is  lawful  for  you  to  use  your  gifts  which  I  know 
God  hath  largely  given  you,  as  your  learning,  art,  and  eloquence, 
so  as  thereby  you  do  not  seduce  the  minds  of  the  simple  and  un- 
learned jury.  For,  Master  Serjeant,  I  know  how  by  persuasions, 
enforcements,  prescriptions,  applying,  implying,  inferring,  con- 
jecturing, deducing  of  arguments,  wresting  and  exceeding  the 
law,  the  circumstances,  the  depositions,  and  confessions,  unlearned 
men  may  be  enchanted  to  think  and  judge  things  indifferent,  or 
at  the  worst  but  oversights,  to  be  great  treasons.  Almighty  God, 
by  the  mouth  of  his  prophet,  doth  conclude  such  advocates  to  be 
cursed,  saying,  '  Cursed  be  he  that  doth  his  office  craftily,  cor- 
ruptly, and  maliciously.'  And  consider,  also,  that  my  blood 
shall  be  required  at  your  hands,  and  punished  in  you  and  yours 
to  the  third  and  fourth  generation.  You  and  the  Justices,  when 
called  in  question,  excuse  such  erroneous  doings  by  the  verdict  of 
twelve  men ;  but  I  assure  you  such  purgation  serveth  you  as  it 

General,  and  it  always  has  been,  and  the  difficulty  which  would  arise  if  they 

still  is,  the  custom,  in  commissions  of  were  to  be  guilty  of  a  contempt  of  court, 

oyer  and  terminer,  to  name  the  King's  and  deserve  to  be  committed,— since,  for 

counsel  as  commissioners ;  this  nomina-  anything  I  know,  they  might  at  any 

tion  not  preventing  them   from  prac-  moment  seat  themselves  on  the  bench 

tising  as  advocates  before  their  brother  and  act  as  judges, 
commissioners.    1  have  often  thought  of 


216  KEIGN  OF  QUEEN  MAEY.  CHAP.  V. 

did  Pilate,  and  you  will  wash  your  hands  of  my  bloodshed  as 
Pilate  did  of  Christ's.     And  now  to  your  matter." 

An  attempt  was  first  made  to  induce  the  prisoner  to 
confess,  without  any  evidence  being  given  against  him, 
and  he  is  thus  interrogated  : — 

"  How  say  you,  Throgmorton,  Did  not  you  send  Winter  to 
Wyat,  and  devise  that  the  Tower  of  London  should  be  taken  ? ' — • 
A.  '  I  confess  I  did  say  to  Winter  that  Wyat  was  desirous  to 
speak  with  him.'  Q.  '  Yea,  sir,  and  you  devised  together  of 
taking  the  Tower  of  London,  and  of  other  great  treasons.' — A. 
*  No,  I  did  not  so  :  prove  it.' " 

Dyer  afterwards  said, — "  And  it  may  please  you,  my  Lords, 
and  you,  my  masters  of  the  jury,  to  prove  that  Throckmorton  is 
a  principal  doer  in  this  rebellion,  many  things  are  to  be  declared, 
— amongst  others,  Crofte's  confession.  He  saitb,  Sir  Nicholas, 
that  he  and  you,  and  your  accomplices,  did  many  times  devise 
about  the  whole  matters,  and  he  made  you  privy  to  all  his  deter- 
minations." Throckmorton :  "  Master  Crofte  is  yet  living,  and  is 
here  this  day  ;  how  happeneth  it  he  is  not  brought  face  to  face  to 
justify  this  matter  ?  Either  he  said  not  so,  or  he  will  not  abide 
by  it."  Dyer :  "  For  the  better  confirmation  of  all  the  treasons 
objected  against  the  prisoner,  and  therein  to  prove  him  guilty, 
you  of  the  jury  shall  hear  the  Duke  of  Suffolk  s  deposition,  who 
was  a  principal,  and  hath  suffered  accordingly." 

"  Then,"  says  the  report,  "  the  said  Serjeant  read  the  Duke's 
confession  touching  the  prisoner,  amounting  to  this  effect,  That 
the  Lord  Thomas  Grey  did  inform  the  said  Duke  that  Sir 
Nicholas  Throckmorton  was  privy  to  the  whole  devices." 

.  Throckmorton :  "  But  what  doth  the  principal  author  of  this 
matter  say  against  me  ;  I  mean  the  Lord  Thomas  Grey,  who  is 
yet  living  ?  Why  is  not  his  deposition  brought  against  me,  for 
so  it  ought  to  be  if  he  can  say  anything  ?  Neither  the  Lord 
Thomas  Grey  hath  said,  can  say,  or  will  say  anything  against 
me,  notwithstanding  the  Duke's  confession  and  accusation,  or  he 
should  have  been  here  now.  The  Duke  doth  refer  only  to  what 
he  says  he  has  heard  from  the  Lord  Thomas." 

After  a  long  trial,  conducted  in  the  same  fashion,  the 
jury  very  properly  found  a  verdict  of  NOT  GUILTY, — for 
which  they  were  imprisoned  and  heavily  fined.*  This 
acquittal  was  a  great  mortification  to  the  Government, 

*  2  St.  Tr.  869-902. 


A.D.  1559.  CHIEF  JUSTICE  DYEK.  217 

although  they  had  the  consolation  of  convicting  Sir 
John  Throckmorton,  Sir  Nicholas's  brother,  on  exactly 
the  same  evidence. 

Dyer  was  rewarded  for  his  zeal  (which  was  not 
considered  as  having  led  him  at  all  beyond  May 8-  isse. 
the  line  of  his  professional  duty)  by  being 
made  a  Puisne  Justice  of  the  Court  of  Com- 
mon  Pleas;  and,  in  the  following  year,  he  1857- 
was  promoted  to  be  a  Puisne  Justice  of  the  Court  of 
King's  Bench. 

He  turned  out  to  be  a  consummate  Judge,  although 
he  had  been  only  an  indifferent  advocate.  He  was 
allowed  to  be  by  far  the  best  lawyer  of  his  time ; 
he  was  above  all  suspicion  of  bribery,  when  judicial 
corruption  was  by  no  means  rare ;  he  evinced  extra- 
ordinary soundness  of  intellect,  as  well  as  acuteness ; 
and,  caring  nothing  about  literature,  and  very  little 
about  the  religious  disputes  which  agitated  the  public, 
he  was  indefatigably  industrious  in  the  discharge  of 
his  official  duties. 

Queen  Elizabeth,  who  was  above  all  things  anxious 
to  have  the  judgment-seat  properly  filled,   NOV.  is. 
the  very  day  after    her    accession  to    the   l 
throne  renewed  his  commission  as  a  Puisne  Justice, 
bringing  him  back  to  the  Common  Pleas ;  and  Jan  zz 
shortly  afterwards  she  made  him  Chief  Justice   1559> 
of  that  Court,  in  the  room  of  Sir  Anthony   of  Common 
Brown,  whom,  from  being  Chief  Justice,  she  F 
degraded  to  be  a   Puisne,  and  who  was  contented  to 
serve  under  a  Chief  allowed  by  himself,  as  well  as  the 
rest  of  the  world,  to  be  greatly  his  superior.* 

"From  roome  to  roome  f  he  stept  by  true  degrees, 
And  mounts  at  length  to  so veraigne  justice"  place, 


*  If  this  precedent  had  been  followed,  to  the  chief,  I  am  not  aware  of  any  other 

it  might   have   been  very   useful   for  instance  of  their  changing  places. 
Westminster  Hall ;  but,  however  supe-        -f-  "  Roome "  in  old  English  was  used 

rior  a  puisne  may  have  been  esteemed  for  office. 


218  REIGN  OF  QUEEN  ELIZABETH.        CHAP.  V. 

Where  long  he  sat  Chief  Judge  of  Comon  Pleas, 

And  to  say  truth  he  sat  with  justice  grace 

Whose  sacred  will  was  written  in  his  face; 
Settled  to  heare  but  very  slowe  to  speake, 
Till  either  part,  at  large,  his  minde  did  breake. 

"  And  when  he  spake  he  was  in  speeche  reposde ; 

His  eyes  did  search  the  simple  Bator's  harte ; 
To  put  by  bribes  his  hands  were  ever  closde, 

His  processe  just  he  tooke  the  poore  man's  parte, 

He  rulde  by  lawe  and  listened  not  to  arte, 
These  foes  to  truthe — loove,  hate,  and  private  gaine, 
Which  most  corrupt,  his  conscience  could  not  staine."* 

Fuller  says,  "  Sir  James  Dyer  remained  Chief  Justice 
of  the  Court  of  Common  Pleas  twenty  years, — longer, 
if  my  eye  or  arithmetic  fail  me  not,  than  any  in  that 
place  before  or  after  him." 

But  as  no  criminal  or  political  cases  were  within  his 
jurisdiction,  and  he  mixed  so  little  with  any  thing 
beyond  its  strict  limits,  his  subsequent  career  is  less 
interesting,  although  it  excited  the  admiration  of  his 
contemporaries. 

He  still  employed  himself  in  digesting  notes  of  the 

most  important  cases  which  came  into   his   court,  or 

which,  on  account  of  their  difficulty,  were  adjourned 

into  the  Exchequer  Chamber  before  all  the  Judges^ 

His  "  Eeports "  were  not  printed  till  after 

His  Reports.     •,.,,,,,,        •,-,  -i     -r  r 

his  death;  but  he  had  prepared  them  tor 
publication,  and  they  afford  a  stupendous  proof  of  his 
industry  and  learning.  Although  now  of  little  use  to 
tell  us  what  the  law  is,  they  are  valuable  records  of 
the  history  of  English  jurisprudence  and  English 
manners. 

*  Whetstones.  bunal  consisting  of  the  judges  of  the  two 

t  This  course  was  then  very  common,  others.    Another  remnant  of  the  Aula 

and  it  continued  to  be  occasionally  re-  Regis  was,  the  reference  to  all  the  judges 

sorted  to  till  the  reign  of  George  IV.,  of  questions  of  criminal  law,  which  was 

when  it  was  entirely  superseded  by  the  superseded  in  the  year  1848,  by  the  bill 

establishment  of  a  new  system  of  courts  I  had  the  honour  to  introduce  for  estab- 

of  error,  by  which  the  decisions  of  each  lishing  a  court  of  appeal  from  courts  of 

of  the  superior  courts  of  common  law  oyer  and  terminer,  and  from  the  quarter 

were  subjected  to  the  review  of  a  tri-  sessions. 


A.D.  1559.  CHIEF  JUSTICE  DYER.  219 

We  have  a  case  illustrating  the  custom  of  the 
marriage  of  children  then  prevailing.  A  boy 
of  the  age  of  twelve  years  contracted  marriage  cls^on  the 
with  a  girl  of  sixteen,  per  verba  de  prcesenti ;  ™^^e  of 
the  marriage  was  solemnised  in  the  face  of 
the  church,  and  the  married  pair  were  put  into  bed 
together.  The  husband  dying  a  few  days  after,  the 
widow  brought  a  writ  of  dower,  claiming  one  third  of 
his  lands.  The  heir  pleaded,  that  they  had  never  been 
joined  in  lawful  matrimony.*  —  Her  counsel  cited  an 
authority  from  the  YEAR-BOOK  of  12  Kichard  II., 
where,  in  a  writ  of  dower,  the  wife,  at  the  time  of  the 
death  of  him  who  was  supposed  her  husband,  was  only 
of  the  age  of  eleven  years ;  and  he  who  was  supposed 
her  husband,  of  the  age  of  ten  years  and  a  half ;  and 
judgment  was  given,  that  she  should  recover  seisin 
of  one  third  of  her  husband's  lands.  On  the  other  side 
it  was  argued,  that  consent  only  constitutes  matrimony; 
that  here  the  supposed  husband  had  not  reached  the 
age  of  consent ;  that,  by  all  the  authorities,  he  might 
have  afterwards  dissented  and  annulled  the  marriage ; 
and  that  the  supposed  consummation  was  a  nullity ; — 
a  dictum  of  a  learned  judge  in  the  time  of  Edward  I. 
was  relied  upon :  "  A  wife  shall  lose  dower,  if  her  lord 
(scil.  her  husband)  die  before  nine  years  of  age." — 
Thereupon,  a  writ  -was  directed  to  the  bishop  of  the 
diocese,  to  certify  whether  this  was  a  valid  marriage ; 
and  he  returned  a  certificate,  which  Dyer,  C.  J.,  and 
Meade  and  Mounson,  JJ.,  against  the  opinion  of  Wynd- 
ham,  J.,  held  to  be  insufficient,  and  the  action  was 
abated.  But,  eight  years  after,  it  was  re- 
vived, and  a  writ  being  directed  to  the 
successor  of  the  former  bishop,  he  certified  that  "  the 
demandant  is  to  be  taken  for  a  lawful  wife  and 

*  In  Norman-French,  "  ne  unques  accouples  en  loyal  matrimonie." 


220  .  KEIGN  OF  QUEEN  ELIZABETH.        CHAP.  V. 

accoupled  in  lawful  matrimony;"  so  judgment  was 
given  in  her  favour,  that  she  was  entitled  to  dower,  on 
the  ground  that  "  there  had  been  espousals,  and  that 
espousals  continue  always  till  defeated  by  dissent ; 
whereas  here,  there  had  been  no  dissent,  and  at  the 
time  of  the  husband's  death  the  marriage  subsisted."* 

In  Dyer's  time,  a  man  being  convicted  of  a  simple 
.,  ,  felony, — as  stealing  any  chattel  of  the  value 
benefit  of  of  twelve  pence, — if,  when  asked  why  he 

should  not  be  sentenced  to  die,  he  prayed  the 
benefit  of  clergy,  the  book  containing  the  "  neck  verse  " 
was  put  into  his  hand ;  and  if  he  could  read,  he  was 
discharged ;  but  if  he  could  not,  he  was  hanged.f  A 
question  arose  "  whether,  if  a  man,  who  may  have  his 
clergy  granted  in  case  of  felony,  prays  his  book,  and,  in 
fact,  cannot  read,  and  it  is  recorded  non  legit  ut  clericus, 
and,  being  respited  for  a  time,  he  learns  to  read  before 

he  is  executed,  he  shall  have  his  clergy,  not- 

*3  Jb  4-  "Fliz 

withstanding  the  record  ?"  The  matter  was 
referred  to  all  the  Justices  of  Assize  assembled  at 
Serjeants'  Inn,  and  it  was-  resolved  in  favorem  vitce  that 
he  should  have  his  clergy ;  "  for,"  said  Dyer,  "  he 
should  have  had  it  allowed  under  the  gallows  by  the 
Year-Book  34  H.  6.  49  a,  b,  pi.  16.,  if  the  judge  passed 
by  there,  and  much  more  here.  And  although  he  has 
been  taught  and  schooled  in  the  gaol  to  know  letters 
and  read,  that  shall  help  him  for  his  life;  BUT  THE 

GAOLER  SHALL  BE  PUNISHED  FOR  IT."| 

The  most  curious  cases  in  Dyer's  Eeports  are  upon 
questions  respecting  "  villeinage  "  or  slavery. 

Cases  on  the      »    .  -11 

law  of  vii-       It  is  not  generally  known,  that,  down  to  the 
reign  of    Queen  Elizabeth,  there  were    in 

*  Dyer,  Rep.  313  a,  368  b.  (Pope  Joan's  case  not  being  recognised), 

•)•  The  "  wisdom  of  our  ancestors "  in  all  women  convicted  of  larceny  were 

their   criminal    law    was    particularly  hanged,  whether  they  could  read  or  not. 

shown  in  their  treatment  of  women ;  for  J  Dyer,  205  a. 

as  no  woman  could  lawfully  be  a  clerk 


A.D.  1559.  CHIEF  JUSTICE  DYEE.  221 

England  both  "  villeins  in  gross,"  or  slaves  that  might 
have  been  sold  separately  like  chattels,  and  "villeins 
regardant,"  or  slaves  attached  to  particular  land,  with 
which  they  were  transferred  along  with  the  trees 
growing  upon  it. — I  will  give  a  few  examples  : — 

In  an  action  of  trespass  and  assault,  there  was  a 
justification  by  the  lord  of  a  manor  that  the  plaintiff 
was  his  villein  regardant,  and  the  evidence  being  that 
he  was  his  villein  in  gross,  the  question  arose,  for  which 
side  judgment  should  be  given  ?  The  defendant  insisted 
that  the  substantial  question  was  "  villein  or  free  ?  " 
not  "villein  regardant  or  villein  in  gross?"  and 
that  having  greater  rights  over  the  plaintiff  as 
"  villein  in  gross "  than  as  "  villein  regardant,"  he 
had  proved  more  than  he  was  bound  to  prove,  and  the 
action  was  well  barred.  One  judge  inclined  to  this 
opinion,  but  the  rest  of  the  Court  thought  that,  in 
favour  of  liberty,  the  plea  must  be  strictly  proved; 
and  peradventure  the  plaintiff  was  misled  by  the  false 
issue  tendered  to  him,  and  might  have  deemed  it 
enough  to  negative  the  regardancy,  without  bringing 
forward  proof  to  negative  the  villeinage  in  gross.  So 
the  plaintiff  became  a  freeman.* 

A.  B.,  seised  in  fee  of  a  manor  to  which  a  villein 
was  regardant,  made  a  feoffment  of  one  acre  of  the 
manor  by  these  words :  "I  have  given  one  acre,  &c., 
and  further,  I  have  given  and  granted,  &c.,  John  S. 
my  villein."  Question,  "does  the  villein  pass  to  the 
grantee  as  a  villein  in  gross,  or  as  a  villein  appendant 
to  that  acre  ?  "  Two  of  the  judges  thought  he  should 
pass  in  gross,  as  there  are  several  gifts,  though  in  one 
deed ;  while  the  other  judges  said  that  if  the  whole 
manor  had  been  granted,  with  a  farther  grant  of 
"  John  S.  my  villein,"  the  villein  would  clearly  have 

•  Dyer,  48  b,  pi.  1. 


222  KEIGN  OF  QUEEN  ELIZABETH.       CHAP.  V. 

passed  as  part  of  the  manor,  and  therefore  that  the 
acre  and  the  villein  being  granted  together  there  was 
no  severance.  The  Court  being  equally  divided,  no 
judgment  seems  to  have  been  given.* 

The  tenant  in  tail  of  a  manor,  to  which  villeins  are 
regardant,  enfeoffs  one  of  the  villeins  of  one  acre  of 
the  manor,  and  dies.  Now  he  clearly  had  exceeded  his 
power,  although,  had  he  been  tenant  in  fee  simple,  the 
effect  would  have  been,  that  the  villein  would  have 
been  enfranchised.  But  the  question  was,  whether  the 
son  of  the  feoffer,  who  was  heir  in  tail,  could  at  once 
seise  the  villein  ?  The  Court  held  that,  although  all  the 
father  had  done  might  be  disaffirmed,  the  son  was 
bound,  first  to  recover  the  acre  of  land,  and  then,  but 
not  till  then,  he  might  seise  his  villein.f 

Butler,  lord  of  the  manor  of  Badminton,  in  the 
county  of  Gloucester,  contending  that  Crouch  was  his 
villein  regardant,  entered  into  certain  lands,  which 
Crouch  had  purchased  in  the  county  of  Somerset,  and 
leased  them  to  Fleyer.  Crouch  thereupon  disseised 
Fleyer,  and  Fleyer  brought  an  action  against  Crouch, 
who  pleaded  that  he  had  purchased  the  land.  Fleyer 
replied  his  lease  from  Butler,  and  alleged  that  "  Butler 
and  his  ancestors,  and  all  those  whose  estate  he  hath 
in  the  manor  of  Badminton,  were  seised  of  Crouch 
and  his  ancestors,  as  of  villeins  regardant  to  the 
same  manor,  from  time  whereof  the  memory  of  man 
runneth  not  to  the  contrary."  Issue  being  thereupon 
joined,  the  jury  found  a  special  verdict,  "  That  Butler 
and  his  ancestors  were  seised  of  the  manor  from  time 

*  Dyer,  48  b,  pi.  2.  not  seise  her,  but  might  maintain  an 

•f  Ibid.,  pi.  4.     "  So  it  is  holden  in  action  against  the  husband  for  the  loss 

our  old  books,  if  a  villein  be  made  a  of  her :  and  if  a  villein  was  professed  as 

knigttt,  for  the  honour  of  his  degree  his  a  monk,  the  lord  could  not  seise  him, 

person  is  privileged,  and  the  lord  cannot  but  might    maintain  a  similar  action 

seise  him  until  he  be  degraded." — Co.  against  the  superior  of  the  convent  who 

Lilt.  136.    If  a  niefe,  or  female  villein,  admitted  him.— Lift.  sec.  202 ;  2  SI.  Com. 

was  married  by  a  freeman,  the  lord  could  95,  96. 


A.D.  1580.  CHIEF  JUSTICE  DYER.  223 

immemorial ;  and  that  the  ancestors  of  Butler  were 
seised,  during  all  that  time,  of  the  ancestors  of  Crouch 
as  of  villeins  regardant,  until  the  first  year  of  Henry 
VII.,  and  that  Crouch  was  a  villein  regardant  to  the 
said  manor,  and  that  no  other  seizin  of  Crouch  or 
his  ancestors  was  had  since ;  but  whether  the  said 
seizin  of  the  said  manor  be  in  law  a  seizin  of  the  said 
Crouch  and  his  ancestors  since  the  said  first  year  of 
Henry  VII.  the  jurors  prayed  the  opinion  of  the 
Court." 

Dyer,  C.  J.,  and  all  the  Judges  of  the  Court  of 
Common  Pleas,  agreed  that  upon  this  verdict  there 
should  be  judgment  for  the  defendant,  chiefly  on  this 
ground, — "  because  no  actual  or  full  seizin  in  Butler 
and  his  ancestors,  of  Crouch  and  his  ancestors  as 
villeins  regardant,  is  found,  but  only  a  seizin  in  law, 
and  the  lord  having  let  an  hundred  years  pass  without 
redeeming  the  villein  or  his  issue,  cannot  after  that 
seise  them."  * 

The  only  criminal  case  of  much  celebrity  in  which 
Lord  Chief  Justice  Dyer  was  concerned  was  the  trial 
of  Thomas,  Duke  of  Norfolk,  for  high  trea- 
son in  assisting  the  claim  of  Mary  Queen    OT^""^ 
of   Scots   to   the    crown    of    England.      On 
that  occasion,  he  attended   with  the  other 
judges  to  assist  the  Lord  High  Steward  and  the  Peers, 
who  were  to  pronounce  on  the  fate  of  the  noble  pri- 
soner. 

The   Duke,   when   arraigned,   having    prayed   that 

*  Dyer,  266,  pi.  11.  Villeins  in  gross,  supposed  to  have  finally  disappeared  in 

as  well  as  villeins  regardant,  were  con-  the  reign  of  James  I.,  but  there  is  great 

sidered  real  property.     Littleton  thus  difficulty  in  saying  when  it  ceased  to  be 

defines  villeins  in  gross :  "  If  a  man  or  lawful,  for  there  has  been  no  statute  to 

his  ancestors,  whose  heir  he   is,  have  abolish  it ;  and  by  the  old  law,  if  any 

been  seised  of  a  villein,  and  of  his  ances-  freeman  acknowledged  himself  in  a  court 

tors  as  of  villeins  in  gross,  time  out  of  of  record  to  be  a  villein,  he  and  all  his 

memory  of  man,  these  are  villeins  in  after-born  issue  and  their  descendants 

gross."  (LiU.  sec.  182.).     Villeinage  is  were  villeins.— Litt.  sec.  186. 


224  KEIGN  OF  QUEEN  ELIZABETH.       CHAP.  V. 

counsel  might  be  assigned  to  him,  and  cited  the  case  of 
Humphrey  Stafford,  Duke  of  Buckingham,  as  a  pre- 
cedent in  point,  Sir  James  Dyer  said, — 

"  My  Lord,  that  case  of  Humphrey  Stafford,  in  primo  Henry 
VII.,  was  about  pleading  of  sanctuary,  for  that  he  was  taken  out 
of  sanctuary  at  Culneham,  which  belonged  to  the  Abbot  of 
Abingdon  ;  so  the  question  was,  whether  he  should  be  allowed 
sanctuary  in  that  case,  and  with  that  form  of  pleading,  which 
was  matter  of  law :  in  which  case  he  had  counsel,  and  not  upon 
the  fact  of  high  treason ;  but  only  for  the  allowance  of  sanctuary, 
and  whether  it  might  be  allowed,  being  claimed  by  prescription, 
and  without  showing  any  former  allowances  in  Eyre  ;  but  all  our 
books  do  forbid  allowing  of  counsel  in  treason." 

Duke:  "  I  beseech  you,  weigh  what  case  I  stand  in.  I  stand 
here  before  you  for  my  life,  lands,  and  goods,  my  children,  and 
my  posterity;  and  that  which  I  esteem  most  of  all,  for  my 
honesty.  I  am  unlearned ;  if  I  ask  anything,  and  not  in  such 
words  as  I  ought,  I  beseech  you  bear  with  me,  and  let  me  have 
that  favour  the  law  allows  me.  If  the  law  does  not  allow  me 
counsel,  I  must  submit  me  to  your  opinions.  I  beseech  you, 
consider  of  me.  My  blood  will  ask  vengeance  if  I  be  unjustly 
condemned.  I  honour  your  learnings  and  your  gravities;  I 
beseech  you  have  consideration  of  me,  and  grant  me  what  the 
law  will  permit  me." 

The  other  judges  confirmed  the  rule  as  laid  down  by 
the  Chief  Justice  of  the  Common  Pleas.  He  does  not 
appear  afterwards  to  have  interfered,  and  he  cannot  be 
considered  answerable  for  the  unjust  conviction  which 
followed.* 

If  ruffled  by  any  annoyance  in  the  discharge  of  his 
judicial  duties,  he  prayed  to  Heaven  for  composure, 
and  when  he  returned  home  he  played  an  air  oh  the 
virginals. 

"  For  pnblique  good,  when  care  had  cloid  his  minde, 

The  only  joye,  for  to  repose  his  sprlghts, 
Was  musique  sweet,  which  showd  him  well  inclind ; 

For  he  that  dooth  in  musique  much  delight 

A  conscience  hath  disposed  to  most  right; 
The  reason  is,  her  sound  within  our  eare 
A  sympatbie  of  heaven  we  thinke  we  heare."f 


*  1  St.  Tr.  957-1042.  f  Whetstones. 


A.D.  1580.  CHIEF  JUSTICE  DYEK.  225 

There  was  one  charge  brought  against  him  for  ar- 
bitrary conduct  as  Judge  of  Assize.  He 
always,  according  to  the  fashion  of  the  times,  against  him 
rode  the  same  circuit,  and  he  chose  the  condurt'S"7 
MIDLAND.  He  seems  to  have  rendered  him-  ^j^,of 
self  unpopular  upon  it  by  rigidly  discoun- 
tenancing the  jobs  and  oppressions  of  magistrates, 
and  perhaps  by  the  prejudices  and  partialities  which 
are  apt  to  influence  a  judge  who  becomes  too  familiar 
with  those  among  whom  he  is  to  administer  justice. 
At  last,  a  "  supplication,"  or  memorial,  from  the 
justices  of  Warwickshire,  containing  nine  heads  of 
complaint  against  him,  was  presented  to  the  Queen 
and  the  Privy  Council.  They  were  chiefly  of  a  frivolous 
nature,  as,  for  example,  "that,  a  gun  going  off  acci- 
dentally during  the  assizes,  he  accused  the  justices  of  a 
general  slackness  of  their  duties,  saying,  '  they  ruled 
the  country  as  pleased  them,  and  that  there  was 
nothing  with  them  but  sic  volo,  sic  jubeo.' "  In  his 
written  answer,  now  extant  among  the  MSS.  of  the 
Inner  Temple,  he  says,  "  As  to  the  shooting  once  of  a 
gun  in  the  time  of  the  assizes,  I  am  sure  I  was  not  so 
greatly  offended,  if  it  were  not  of  purpose  done ;  nor 
were  these  words  sic  volo,  sic  jufoeo,  used  by  me  in  the 
sense  alleged."  He  justifies  himself  at  great  length  for 
what  he  had  done,  in  supporting  a  poor  widow  against 
the  tyranny  of  a  cruel  knight,  backed  by  other  justices ; 
and  he  thus  concludes, — 

"  All  which  premises  being  true,  as  indeed  they  are,  I  ask 
judgment  of  the  said  Lords  of  the  Council,  and  all  others  indif- 
ferent, whether  I  had  just  cause  ministered  unto  me  by  the 
defaults  of  the  justices  and  government  of  the  shire,  and  slackness 
of  her  Majesty's  service,  to  be  angry  and  vehemently  moved  to 
choler.  And  although  I  did  say  in  excessu  meo,  '  omnis  homo 
mendax '  (as  David  said),  yet  for  mine  age  and  long  continuance 
there,  which  hath  been  above  twenty  years  in  that  circuit,  I  am 
rather  to  be  borne  with  than  complained  of." 

VOL.   I.  Q 


226  EEIGN  OF  QUEEN  ELIZABETH.         CHAP.  V. 

Luckily  for  Dyer,  Sir  Thomas  Bromley,  lately 
appointed  Lord  Chancellor,  was  his  fast  friend,  so  that 
due  weight  was  given  to  his  defence,  and  he  was 
allowed  to  continue  in  the  exercise  of  his  office. 

But,  about  two  years  afterwards,  he  encountered  an 
enemy  whom  no  Chief  Justice  or  Chancellor 

His  death.  ^  . 

March  24,  has  been  able  to  conquer — DEATH.  Being 
struck  by  a  sudden  disease,  while  still  in 
the  full  possession  of  his  faculties,  he  expired  at  Great 
Stoughton,  in  the  county  of  Huntingdon,  in  the  71st 
year  of  his  age.  In  the  parish  church  there  may  still 
be  seen  a  monument  erected  to  his  memory  by  his 
nephew,  with  the  following  inscription  : — 

"  DEYERO  tumulum  quid  statuis,  Nepos, 
Qui  vivit  volitatque  ora  per  omnium  ? 
Exegit  monumenta  ipse  perennia, 
,          In  queis  spirat  adhuc ;  spirat  in  his  themis, 
Libertas,  Pietas,  Munificentia. 
En  decreta,  libros,  vitam,  obitum  senis ! 
./Eternas  statuas !    Vivit  in  his  themis, 
Libertas,  Pietas,  Munificentia. 
JEitemas  statuas  has  statuit  sibi : 
.flCternis  statuis  cedite  mannora ! " 

Among  his  contemporaries  Dyer  was  universally 
esteemed  the  most  perfect  model  of  a  Judge  for 
learning,  integrity,  and  abilities.  The  eulogium  of 
Camden  is  only  the  echo  of  the  public  voice :  "  JACOBUS 
DIEEUS,"  says  that  annalist,  "  in  communi  placitorum 
tribunali  Justiciarius  Primarius,  qui  animo  semper  placido 
et  sereno  omnes  judicis  cequissimi  paries  implevit;  et  juris 
nostri  prudentiam  commentariis  illustravit." 

Whetstones  particularly  lauds  the  disinterested 
exercise  of  his  patronage  : — 

"  Fit  men  he  did  in  office  ever  place, 

And  ofte  put  by  his  freends  and  neerest  kin, 
Affirming,  though  the  gifte  were  in  his  grace, 
'  The  common-weale  cheef  intrest  had  therein, 
And  therefore  meet  the  worthy  should  it  win :' 
Words  like  himself,  who  favoured  publique  good, 
Before  their  gaine  that  were  spronge  of  his  blood." 


A.D.  1582.  CHIEF  JUSTICE  DYEE.  227 

He  bequeathed  his  "  KEPORTS  "  to  his  nephews,  who 
published  them  soon  after  his  death  with  a  dedication 
to  Lord  Chancellor  Bromley,  in  which  they  say — 

"  Quamvis  supervacaneum  fortasse  videri  possit  (ratione  praj- 
sertim  rei  ipsius  habita,  Authorisque  facultate  per- 
specta)  Protectorem  et  Patronum  adscribere  ;  tamen    Publication 
cum  more  nobis  Authoris  vitam  inviderit,  multosque    Reports, 
haec  nostra  setas  protulerit,  quibus  cordi  est  alienae 
industriaa  obtrectare,  opere  precium  existimavimus  huic  nostraj 
orbitati  alterum  patrem  parentemque  adsciscere,  quern  quidem 
te  (vir  insignissime)  ut  aptissimum,  ita  et  paratissimum  fore 
munillime  obsecrare  tandem  statuimus." 

In  an  English  address  "  To  the  Students  of  the 
Common  Laws  of  this  realm,"  the  editors  express  a 
wish  "  that  the  good  acceptation  and  friendly  thank- 
fulnesse  of  all  such  as  are  to  receive  knowledge  and 
fruit  thereby,  may  appeare  such  as  the  late  reverend 
Judge  and  painefull  Author  thereof  may  receive  the 
guerdon  worthie  his  exquisite  and  painfull  travaile." 
We  have  likewise  "LECTORI  CARMEN,"  which,  after 
comparing  DYERUS  to  the  bee,  who  collects  honey  for 
others,  thus  proceeds : — 

"  Fasciculum  causas  omnes  congessit  in  unum 

Curia  quas  lustris  sex  celebrata  dedit. 
Edidit  has  alter,  fructus  ut  postera  proles 

Perciperet,  tanto  qui  placuere  viro, 
Edidit  ut  semper  post  funera  viveret  author : 

Quern  rapuit  studiis  mors  inimica  piis." 

I  am  afraid  that  the  hope  of  immortality  from  LAW 
KEPORTS  is  visionary.  But  Dyer  may  really  be 
considered  the  Shakspeare  of  Law  Eeporters,  as  he  had 
no  predecessor  for  a  model,  and  no  successor  has 
equalled  him.  As  yet  his  fame  flourishes,  and  those 
>who  are  most  competent  to  appreciate  his  merit  have 
praised  him  the  most.  Thus  writes  that  great  lawyer, 
Sir  Harbottle  Grimston :  "  If  we  have  failed  in  the 
number  of  the  persons  reporting,  it  hath  been  amply 

Q2 


228  KEIGN  OF  QUEEN  ELIZABETH.         CHAP.  V. 

recompensed  in  the  grandeur  and  authority  of  one 
single  author,  SIR  JAMES  DYER,  Chief  Justice  of  the 
Common  Pleas,  by  whose  great  learning  and  assiduous 
study  the  Judgments  and  Law  Eesolutions  have  been 
transmitted  and  perpetuated  until  the  24th  year  of  the 
late  Queen  Elizabeth."  * 

He  was  married  to  Margaret,  daughter  of  Sir  Maurice 
,      a  Barrow,  and  relict  of  the  celebrated  phi- 

Sad  fate  of 

the  last  of  his  lologist  Sir  Thomas  Elyot,  author  of  "The 
Governor."  By  her  he  had  no  issue.  His 
estates  went  to  a  collateral  branch  of  his  family,  which 
flourished  for  several  generations,  and  was  honoured 
with  a  baronetcy ;  but  is  now  extinct.  The  last  male 
representative  of  the  Chief  Justice  ended  his  days  in  a 
workhouse;  whereas  it  was  expected,  in  the  reign  of 
Queen  Mary,  that  in  future  times  the  DYERS  would  be 
more  distinguished  than  the  MONTAGUES. — Bather  than 
to  be  ancestor  of  dukes  or  of  kings,  it  is  more  glorious 
to  deserve  the  praise  quaintly  bestowed  on  this  great 
and  good  man : — 

"  Alive,  refuge  of  those  whom  wronge  did  paine, 
A  DYER  such  as  dy'de  without  a  stayne."^ 

I  must  now  return  to  the  Court  of  King's  Bench, 
in  which,  after  the  very  obscure  Chief  Justices  who 
had  presided  there  in  the  latter  part  of  the  reign  of 
Henry  VIII.,  and  in  the  reigns  of  Edward  VI.  and  of 
sir  Robert  Queen  Mary,  Queen  Elizabeth  placed  a  dis- 
jusuwonhe  tinguisne<l  man,  whose  name  is  still  held  in 
King's  reverence  by  lawyers,  although  he  has  not 

His  descent  gained  an  historical  reputation — SIR  EGBERT 
ilnTthf1"  CATLYNE.J  His  supposed  extraction  is  a 
conspirator,  burlesque  upon  heraldic  pedigrees,  for  his 
ancestor,  more  distinguished  than  any  of  the  Com- 

*  Preface  to  Cro.  Car.  J  Spelt  likewise  Catlyn,  Catelyn,  Cat- 

f  Whetstones.  alyn,  Catlin,  Catelin,  and  Cateline. 


A.D.  1555.  CHIEF  JUSTICE  CATLYNE.  229 

panions  of  the  Conqueror,  has  been  said  to  be  no 
other  than  the  conspirator  Lucius  CATILINA,  who,  in- 
stead of  having  fallen  in  battle,  as  is  related  by  Sallust, 
escaped  into  Britain,  and  left  descendants  in  Kent,  a 
province  which  had  reached  a  considerable  degree  of 
civilisation  before  it  was  visited  by  Julius  Caesar. 
Fuller,  though  much  disposed  to  puff  the  Chief  Justice, 
is  modestly  contented  with  saying,  "  His  name  hath 
some  allusion  to  the  Eoman  senator  who  was  the  in- 
cendiary of  that  state,  though  in  nature  far  different,  as 
who,  by  his  wisdom  and  gravity,  was  a  great  support  to 
his  nation."* 

Our  Chief  Justice  certainly  was  descended  from  the 
Catlynes  of  Rounds  in  Northamptonshire,   who   had 
been  long  settled  there,  and  were  a  branch 
of  a  family  of  the  same  name  which  had 
flourished  from   time  immemorial  in  Kent.     He  was 
born  at  Bilbey  in  Leicestershire,  having  the  bad   or 
good  luck  to  be  the  younger  son  of  a  younger  brother, 
who  had  married  the  heiress  of  a  small  estate  in  this 
county. 

I  do  not  find  anything  authentic  of  his  early  career, 
except  that  he  studied  law  with  extraordi-    . 

Feast  when 

nary  diligence  in  the  Middle  Temple.     The   he  was  called 
first  considerable  distinction  which  he  gained 
in  public  life  seems  to  have  been  by  the  wonderful  feast 
given  in  the  year  1555,  when  he  was  called  Serjeant, — 
the  account  of  which  fills  many  folio  pages  of  Dugdale's 
ORIGINES  JURIDICIALES.      It  was  held   soon      April  27, 
after  Queen  Mary's  marriage,  and  the  object 
was  to  show  to  the  Spanish  nobles  who  accompanied 
Philip  the  riches  and  magnificence  of  England.     There 
were  seven  barristers  included  in  the  same  call,  and — 
besides  rings  of  great  weight  presented  to  the  Queen, 
the  officers  of  state  and  the  judges,  and  large  pecuniary 

*  Worthies,  i.  668. 


230  KEIGN  OF  QUEEN  MARY.  CHAP.  V. 

contributions — each  voluntarily  furnished  contingents 
in  kind,  of  which  the  following  is  a  sample : — 

"  Cotes  sent  in  by  Mr.  Catlyne. 

£  s.    d. 

9  swans,  each  at  10s 4  10    0 

3  pheasants,  at  4s 0  12    0 

Pigeons,  9  dozen  and  a  half,  at  18  J.  a  dozen  .     .     .  0  14    3 

Capons,  7  at  2s.  6d 0  17     6 

Pea  chickens,  4  at  2s 080 

Bed  deer,  rated  at 0  10    0 

Does,  fat,  5,  not  valued. 

Claret  wine,  1  hogshead 1  17    6 

Quinces,  60 030" 

Then  follow  turkey  chicks,  woodcocks,  curlews,  good- 
wits,  knotts,  plovers,  larks,  snipes,  teals,  and  coneys, 
from  the  same  donor.  This,  Toeing  a  far  more  liberal 
donation  than  any  of  the  other  new  Serjeants  furnished, 
materially  added  to  the  splendour  of  the  entertain- 
ment, and  was  supposed  to  lay  the  foundation  of  the 
great  advancement  which  was  speedily  bestowed  upon 
Serjeant  Catlyne.* 

*    The  reader  may  like  to  see  the  dishes,  and  the  prices  of  them,  at  one  of 
the  many  tables  laid  for  different  degrees  of  guests : — 

"  A  proportion  for  two  mess  of  meat  for  the  table  prepared  for  the  Lords  of  the 
King  and  Queen's  Privy  Councell,  and  certain  Spanish  lords  and  gentlemen 
that  accompanied  them  to  the  Feast : 

£  s.  d. 

The  first  course,  )  A  standing  dish  of  wax,  representing  the  Court  of  )     4    0    0 
two  mess  of  meat.  3     Common  Pleas,  artificially  made      ....    5 

A  spuld  of  brawn  for  either  mess 

Boiled  capons  in  white  broth,  2  at  a  mess     ...    0    5    0 

Swans  roasted,  2 ;  each  mess  one 100 

Bustards,  2 ;  each  mess  one 100 

Chemet  pies,  8 ;  to  each  mess  4 

Pikes,  4 ;  to  each  mess  2 0100 

Capons  roasted,  4 ;  to  each  mess  2 0  10    0 

Venison  baked,  4  large  pasties ;  every  mess  2    .     . 

Htern  and  bittern,  each  mess  2 0  16    0 

Pheasants  roasted,  4 ;  each  mess  2 0  16    0 

Custards,  2 

Second  course,     •)  A  Btandi      dish  of  w      to  each  mess  ...    4    0    0 

two  mess  of  meat.  ) 

Jellies  planted,  2  dozen 

Cranes,  2,  each  mess  one 100 

Partridges,  12 ;  for  each  mess  six 0  IS    0 

Bed  deer,  4  pasties ;  each  mess  two 0  16    0 

[Certain 


A.D.  1571.  CHIEF  JUSTICE  CATLYNE.  231 

In  the  following  year,  he  was  promoted  to  the  rank 
of  Queen's  Serjeant,  and  towards  the  end  of  Nov  1556 
Mary's  reign  he  was  made  a  Puisne  Justice    He  is  made  a 
of  the  Court  of  Common   Pleas.     He  had,    judge 
from  the  first,  a  high  judicial  reputation,  on    Oct  1558' 
account  of  the  gravity  of  his  deportment  and  his  pro- 
found knowledge  of  the  law ;  and,  although  inclining 
to  the  new  doctrines  in  religion,  he  was  so  discreet  as 
to  conform  to  the  creed  of  the  Court,  whatever  that 
might  be,  following  the  example  of  the  most  approved 
statesmen  of  that  age.     This  gave  no  offence  to  Eliza- 
beth ;  and  upon  her  accession,  having  taken  her  Prime 

Minister  and  her  Chancellor  from  the  same    , 

chief  jus- 
class  of  conformists,  she   made   Sir  Eobert   *«*•  Jan.  22, 

1559 

Catlyne,   who   was    now   a   professed    Pro- 
testant, Chief  Justice  of  England. 

He  held  the  office  with  increasing  respect  above  fifteen 
years ;  but  it  is  only  from  the  general  praises  bestowed 
upon  him  by  contemporary  writers,  and  from  the  tra- 
ditions of  Westminster  Hall,  that  we  appreciate  his 
merits,  for  he  was  not  an  author  himself,  and  there  are 
hardly  any  reports  of  King's  Bench  decisions  in  his  time. 

The  only  state  trials  in  the  early  part  of  Elizabeth's 
reign  were  those  of  the  Duke  of  Norfolk  and   A.D.  15ji. 
of  Hickford  his  secretary.     At  the  former,    ^eas?^fat 
which   took    place  before    the    Lord   High   the  Duke  of 
Steward  and  the  Peers,  Lord  Chief  Justice    J 
Catlyne,  attending  as  assessor,  was  several  times  ap- 

£  s.  d. 

Certain  large  joules  of  sturgeon,  to  each  mess  one  . 
Woodcocks  and  plovers,  12  each  mess      ....    0    6    8 
Quince  pies,  baked,  8 ;  each  mess  four     .... 

Rabbit  suckers,  12;  each  mess  six 040 

Snipes  roasted,  12 ;  each  mess  six 034 

Larks,  3  dozen ;  each  mess  a  dozen  and  a  half   ..020 
March-panes,  2 ;  each  mess  one  1 068 


1  Sweet  cakes.    Lawyers'  feasts  now-a-days  are  not  to  be  despised;  but  are 
nothing,  compared  with  those  of  our  predecessors  in  the  times  of  the  Tudors. 


232  KEIGN  OF  QUEEN  ELIZABETH.         CHAP.  V. 

pealed  to  for  his  opinion.  "When  the  point  had  been 
settled  about  the  assignment  of  counsel,  the  prisoner 
said — 

"I  am  now  to  make  another  suit  to  you,  my  Lords  the 
Judges :  I  beseech  you  tell  me  if  my  indictment  be  perfect,  and 
sufficient  in  law  ?  "  Lord  C.  J.  C. :  "  For  the  sufficiency  of  your 
indictment  it  hath  been  well  considered  by  us  all,  and  we  have 
all  with  one  assent  resolved,  and  so  do  certify  you,  that  if  the 
causes  in  the  indictment  expressed  be  true  in  fact,  the  indictment 
is  wholly  and  in  every  part  sufficient."  Duke :  "  Be  all  the 
points  treasons  ?  "  Lord  C.  J.  C. :  "  All  be  treasons,  if  the  truth 
of  the  case  be  so  in  fact."  Duke :  "  I  will  tell  you  what  moveth 
me  to  ask  you  this.  I  have  heard  of  the  case  of  the  Lord  Scrope ; 
he  confessed  the  indictment,  and  yet  traversed  that  the  points 
thereof  were  not  treasons."  Lord  C.  J.  C, :  "  My  Lord,  he  had 
his  judgment  for  treason  upon  that  indictment,  and  was  executed 
in  the  reign  of  Henry  V." 

A  deposition  or  confession  of  the  Bishop  of  Boss 

being  afterwards  offered  in  evidence  for  the 

thefactofa     Crown,   the  Duke  objected  that  he  was  a 

bring?  Scot     Scot,  and  that,  having  admitted  himself  to 

renders  him     be  guilty  of  high  treason  against  his  own 

incompetent,  °    .    J  3  & 

or  only  goes    sovereign,  he  ought  not  to  be  received  as 

to  his  credit? 

a  witness : — 

Lord  C.  J.  C. :  "  Though  a  Scot,  he  is  a  Christian,  and  he  has 
not  been  attainted  or  outlawed  of  treason,  nor  yet  indicted." 
Duke :  "  It  is  worse ;  he  has  confessed  treason.  Bracton,  if  I 
mistake  not,  says  that  witnesses  must  be  legates  homines ;  and  so 
cannot  strangers  be,  like  the  Bishop  of  Boss."  Lord  C.  J.  C. : 
"  Bracton,  indeed,  is  an  old  writer  of  our  law,  and  by  Bracton  he 
may  be  a  witness ;  a  stranger,  a  bondman,  may  be  a  witness. 
Ask  you  all  the  Judges  here  ?  "  All  the  Judges :  "  He  may,  he 
may ! "  Duke :  "  You  shall  not  recover  lands  upon  the  evidence 
of  a  stranger,  much  less  convict  of  treason."  Lord  C.  J.  C. : 
"  This  would  be  a  strange  device,  that  Scots  may  not  be  wit- 
nesses ;  for  so,  if  a  man  would  commit  treason,  and  make  none 
privy  but  Scots,  the  treason  were  unpunishable."  Duke:  "  In 
case  of  treason  they  may  be  heard  as  witnesses  for  the  Queen, 
although  it  resteth  in  the  breast  of  the  Peers  whether  or  no  to 
afford  credit  unto  them." 


A.D.  1571.  CHIEF  JUSTICE  CATLYNE.  233 

Catlyne  cannot  be  said  to  have  violated  the  rules 
of  evidence;  for  written  depositions  or  confessions  of 
persons  alive  were  then  considered  clearly  admissible 
in  capital  cases,  and  the  circumstance  of  alienage,  as  he 
stated,  could  only  go  to  their  credit ;  but  he  can  hardly 
be  defended  from  the  charge  of  consciously  perverting 
the  law  of  treason. 

The  chief  matter  urged  against  the  prisoner  was,  that 
he  had  sent  a  sum  of  money  into  Scotland  to  assist  the 
party  there  which  took  the  side  of  Mary,  the  absent 
Queen,  against  the  Eegent,  whom  Elizabeth  patronised, 
there  being  peace  between  the  two  countries. 

Duke  of  Norfolk:  "  The  statute  of  Edward  III.  only  makes  it 
treason  to  compass  the  death  of  the  sovereign,  or  to  levy  war 
against  him,  or  to  aid  his  enemies ;  and  there  is  no  proof  that  I 
did  any  of  these  things."  Lord  C.  J.  C.  .-"Usage  is  the  best 
expounder  of  the  law ;  and  we  know  that,  as  this  statute  has 
been  expounded,  you  are  guilty  if  you  have  said  or  done  as  the 
witnesses  tell  of  you."  Duke :  "  Supposing  it  proved  that'I  sent 
money  to  the  Lord  Harris,  the  subject  of  the  Queen  of  Scots,  how 
can  that  be  aiding  an  enemy  of  our  Lady  the  Queen  of  England  ? 
May  a  subject  be  the  Queen's  Majesty's  enemy,  while  the  Prince 
of  that  subject  is  her  friend  and  in  amity  with  her  ?"  Lord 
C.  J.  C. :  "  Jn  some  cases  it  may  be  so ;  as  in  France,  if  the 
dukedom  of  Britany  should  rebel  against  the  French  King,  and 
should  (during  the  amity  between  the  French  and  Queen's 
Majesty)  invade  England,  those  Britons  would  be  the  French 
King's  subjects  and  the  Queen's  enemies,  though  the  French  King 
remaineth  in  amity ;  and  so  in  your  case." 

Now  this  is  clearly  sophistical  reasoning;  for  al- 
though an  Englishman,  who  joined  the  invading  army 
from  Britany,  would  certainly  have  been  guilty  of  high 
treason,  it  would  have  been  for  levying  war  against 
her  in  her  realm,  and  not  for  adhering  to  her  enemies.* 
The  Judges  must  all  have  felt  some  remorse  when, 

*  During   the  Canadian   rebellion,  I  our  territory  without  the  authority  of 

gave  an  opinion  as  Attorney  General,  their   government   were   liable   to   be 

which  was  acted  upon,  that  an  armed  treated  as  traitors, 
band  of  American  citizens  who  invaded 


234  KEIGN  OF  QUEEN  ELIZABETH.          CHAP.  V. 

sentence  of  death  being  passed  upon  the  prisoner,  he 
said — "  I  trust  shortly  to  be  in  better  company.  God 
doth  know  how  true  a  heart  I  bear  to  her  Majesty,  and 
how  true  a  heart  to  my  country,  whatsoever  this  day 
hath  been  falsely  objected  against  me."* 

The  trial  of  Robert  Hickford,  the  Duke's  secretary, 
for  high  treason,  came  on  soon  after  at  the  bar  of  the 
Court  of  King's  Bench  at  Westminster.  In  fact,  no- 
thing more  could  be  proved  against  him  than  that  he 
had  written  in  cipher,  and  deciphered  some  letters 
which  had  passed  between  his  master  and  Mary  Queen 
of  Scots  and  the  Bishop  of  Ross ;  but  he  deemed  it 
more  prudent  to  plead  guilty,  and  to  pray  for  mercy. 
Lord  Chief  Justice  Catlyne  then  passed  sentence  upon 
him  in  a  very  long  and  elaborate  discourse,  from  which 
I  shall  make  a  few  extracts  to  show  the  taste  of  the 
times  : — 

"  Thou  art  a  gentleman  wise  and  well  learned  :  I  wish  to  God 
there  had  been  in  thee  as  much  loyalty  and  truth  as 
Catlyne  &  there  is  learning  and  other  good  qualities  and  gifts  of 
passes  sen-  God ;  then  hadst  thou  not  fallen  into  this  great  fault 
tence  on  an(j  misery.  ]3ut  there  have  been  evil  enticers,  evil 
schoolmasters,  evil  seedsmen ;  they  have  brought  thee 
from  truth  and  good  estate  to  untruth,  treason,  and  wretched- 
ness ;  where,  before,  you  and  others  were  of  good  name  and  fame, 
they  have  brought  you  to  infamy;  of  loyal,  good,  and  true 
subjects,  they  brought  you  to  the  name  and  state  of  disloyal 
traitors.  A  great  blot  to  be  a  traitor,  and  the  greatest  infamy 
that  can  be.  It  is  the  chiefest  point  of  the  duty  of  every  natural 
and  reasonable  man,  which  by  the  gift  of  reason  differeth  from  a 
beast,  to  know  his  prince  and  head — to  be  true  to  his  head  and 
prince.  All  the  members  are  bound  to  obey  the  head ;  every  man 
is  bound  to  risk  life,  to  lay  out  and  expend  goods,  lands,  and  pos- 
sessions— to  forsake  father,  mother,  kindred,  wife,  and  children 
in  respect  of  preserving  the  prince ;  for  in  defending  the  prince 
they  preserve  father,  mother,  kindred,  wife,  children,  and  all. 
All  the  duties  to  father,  mother,  friends,  kindred,  children,  yea, 
to  a  man's  wife,  that  is  his  own  flesh,  are  all  inferior  to  the  duty 
that  a  subject  oweth  to  his  prince.  If  in  any  case  they  shall 
*  1  St.  Tr.  957-1042. 


A.D.  1571.  CHIEF  JUSTICE  CATLYNE.  235 

allure  a  man  from  his  prince  they  must  be  forsaken — they  must 
come  behind ;  it  must  be  said  '  vade  post  me,  Satana.'  We  must 
first  look  unto  God,  the  High  Prince  of  all  princes,  and  then  to 
the  Queen's  Majesty,  the  second  prince  and  God's  deputy,  and 
our  sovereign  prince  on  earth.  You  are  wise  and  learned,  as  your 
master  was ;  but  the  evil  seedsmen,  the  evil  seducers  and 
enticers,  have  wrought  evil  effect  in  you  both.  The  great  good 
Seedsman  hath  sowed  in  you  good  gifts,  learning,  knowledge, 
and  good  quality  to  serve  Him,  your  prince,  and  your  country 
withal ;  as  it  is  said  in  the  Gospel,  Sonus  seminator  seminavit 
semen  oonum,  but  supervenit  inimicus  et  seminavit  zizania ;  the 
good  seedsman  sowed  good  seed,  but  there  came  the  enemy,  and 
he  sowed  darnel,  cockle,  and  noisome  weeds.  Such  wicked 
seedsmen  have  been  in  England ;  if  they  had  sown  the  right  seed 
for  their  own  use,  the  seed  of  hemp,  and  felt  of  it,  they  had 
received  according  to  their  deserving.  If  they  had  been 
handled  as  they  deserved,  they  should  long  ago  have  had  of 
their  own  due  seed,  hemp,  bestowed  upon  them,  meet  seed  for 
such  seedsmen" 

He  proceeds  to  explain  how  certain  foreign  ambas- 
sadors at  the  Court  of  England  were  the  wicked  seeds- 
men, and  to  prove  that  they  might  lawfully  be  treated 
with  a  hempen  cravat ;  giving,  as  an  illustration,  the 
case  of  M.  de  Marveilles,  ambassador  of  Francis  L, 
"who  was  beheaded  jure  gentium,  at  Milan,  for  con- 
spring  against  the  prince  to  whom  he  was  accredited." 
Thus  he  concludes  that  topic : — 

"  May  messengers  conspire  treason  against  princes  to  whom 
they  be  sent  ?  Treason  to  princes  is  not  their  message  ;  it  is  no 
lawful  cause  of  their  sending ;  if  of  their  own  heads  they  presume 
it,  their  own  heads  must  answer  for  it.  As  for  them  that  seek 
fame  by  treason,  and  by  seeking  the  destruction  of  princes,  what 
shall  sound  that  fame  ?  Shall  the  golden  Trump  of  Fame  that 
Chaucer  speaketh  of  ?  No !  but  the  black  Trump  of  Shame  shall 
blow  out  their  infamy  for  ever."  * 

Lord  Chief  Justice  Catlyne  spent  the  rest  of  his 

*  1  St.  Tr.  1044.    I  must  say,  for  the  the  stage,  or  parliament,  had  yet  pro- 
honour  of  Westminster  Hall,  that,  not-  duced  anything  better.  Every  one  must 
withstanding  the  quaintness  of  this  com-  admire  its  rhythmical  cadences, 
position,  I  doubt  whether  the  pulpit, 


236  EEIGN  OF  QUEEN  ELIZABETH.         CHAP.  V. 

days  in  the  quiet  routine  of  his  judicial  duties,  and 
His  death  died  in  the  autumn  of  the  year  1574,  at  his 
and  burial.  country  seat  at  Newenham,  in  Bedfordshire, 
where,  according  to  the  directions  of  his  will,  he  was 
privately  buried,  without  any  monument  being  erected 
to  his  memory. 

With  the  opportunity  of  amassing  great  riches,  he 
died  poor,  leaving  behind  him  a  high  reputation  for 
disinterestedness,  as  well  as  learning  and  ability.  He 
would  not  accept  any  grant  of  church  lands;  and 
although  his  place  of  residence  had  been  the  site  of  a 
priory,  he  had  purchased  it  at  a  fair  price,  paid  from 
his  honest  earnings.*  A  descendant  of  his  having 
spoken  disrespectfully  to  a  Chief  Justice,  whose  hands 
were  not  so  clean,  and  being  thus  rebuked,  "  I  expected 
not  such  treatment  from  one  whose  kinsman  was  my 
predecessor  in  this  court,  and  a  great  lawyer,"  made 
answer,  "  My  Lord,  he  was  a  very  honest  man,  for  he 
left  a  small  estate."  j 

He  married  Anne,  daughter  of  Thomas  Bowles,  Esq., 
His  descend-  ty  whom  he  had  an  only  daughter  and  heir. 
ants.  gke  became  the  wife  of  Sir  John  Spencer,  of 

Althorpe,  in  the  county  of  Northampton ;  and  from 
them  descend  the  Dukes  of  Marlborough,  so  that  the 
Eussells,  and  most  of  the  greatest  families  in  England, 
may  easily  trace  Sir  Eobert  Catlyne  in  their  pedigree, 
— if  they  should  be  disappointed  in  their  wish  to  go 
up  to  the  CONSPIRATOR. 

The  office  of  Chief  Justice  of  the  King's  Bench  was 
Sir  Christo-  held  during  the  next  eighteen  'years  by  Sm 

pher  Wray.       CHRISTOPHER  WRAY,  of  whom  little  is  known, 

except  from  the  Law  Eeports  and  the  Parliamentary 
His  doubtful  History.  His  parentage  even  is  doubtful, 
parentage.  There  are  two  statements  on  the  subject  in 
the  books  of  the  Heralds'  College :  one  says  that  he  was 

*  Hyson's  Bedfordshire,  p.  89.  f  Fuller's  Worthies,  ii.  568. 


A.D.  1571.  CHIEF  JUSTICE  WRAY.  237 

"  the  son  of  Thomas  "VVray,  of  Eichmondshire,  by  the 
daughter  and  heir  of  Eichard  Jackson,  in  the  county  of 
York ;"  and  the  other,  that  he  was  "  the  natural  son  of 
Sir  Christopher  Wray,  Vicar  of  Hornby,  by  a  wench  in 
a  belfry,  and  brought  up  to  the  study  of  the  law  by  a 
brother  of  his  reputed  father,  who  was  a  servant  of 
the  Lord  Conyers  of  Hornby."  The  latter  is  the  more 
probable  story ;  and  in  the  Visitation  of  the  county  of 
Lincoln  by  the  Heralds  in  1634,  there  is  a  pedigree 
of  the  family,  signed  by  his  grandson  and  heir,  Sir 
John  Wray,  Bart.,  commencing  with  the  Chief  Justice, 
and  giving  the  arms  of  Wray,  which  were  granted  to 
him  without  any  quartering  of  the  arms  of  Jackson ; 
whereas,  if  legitimate,  to  the  representation  of  that 
family  he  would  have  been  entitled  and  he  would  have 
laid  claim. 

He  seems,  under  the  disadvantages  of  birth,  to  have 
raised  himself  by  energy  and  fair  character,  without 
shining  abilities.  The  first  perfectly  authentic  infor- 
mation we  have  of  him  is,  that  he  took  the  degree 
of  the  coif  in  1567,  and  soon  after  he  was  made  a 
Queen's  Serjeant.* 

In  April,  1571,  he  was  returned  to  parliament;  and 
he  must  then  have  been  very  high  in  his  pro-    A  D_  15n_ 
fession,   for  he  was  elected  Speaker  of  the    HeisaSer- 

TT  .    -  «  .       ,1  j  jeant-at-law. 

House  of  Commons, — a  post,  in  those  days,    He  is 

1  ,.          j  .  Speaker  of 

always  conferred  upon  an  eminent  prac-  the  House  of 
titioner  at  the  bar.  His  speech  to  the  Co""™"8- 
Queen,  when  presented  to  her  for  confirmation,  is 
extant,  but  too  long  and  dull  to  be  copied.  He  began 
by  proving  the  Queen's  title  to  be  Head  of  the 
Church,  "  from  the  remembrance  of  Lucius,  the  first 
Christian  King  of  Britain,  who,  having  written  to 
Elutherius  the  Pope,  1300  years  past,  for  the  Eoman 

*  Dugd.  Chron.  Ser. 


238  KEIGN  OF  QUEEN  ELIZABETH.          CHAP.  V. 

laws,  was  answered  that  he  had  the  Holy  Scriptures, 
out  of  the  which  he  might  draw  good  discretion,  for 
that  he  was  the  Vicar  of  Christ  over  the  people  of  Britain." 
After  enumerating  acts  done  by  subsequent  sovereigns 
to  check  the  encroachments  of  the  See  of  Rome,  he 
says,  "  In  the  reports  of  the  law  we  find  that  an  ex- 
communication of  a  certain  person  came  from  the  Pope, 
tinder  his  leaden  bull,  and  was  showed  in  abatement  of 
an  action  brought  at  common  law ;  which,  beside  that 
it  was  of  no  force,  the  King  and  judges  were  of  mind 
that  he  who  brought  it  had  deserved  death,  so  to 
presume  on  any  foreign  authority;  which  authority 
being  now  by  God's  grace  and  her  Highness's  means 
abolished,  and  the  freedom  of  consciences  and  the 
truth  of  God's  word  established,  we  ought  greatly  to 
thank  God  and  her."  Having  discoursed  very  tedi- 
ously concerning  religion,  government,  and  legislation, 
and  quoted  Plato  "  de  Legibus,"  he  concluded  with  a 
just  compliment  to  Elizabeth,  "  that  she  had  given  free 
course  to  her  laws,  not  requiring  the  stay  of  justice  by 
her  letters  or  privy  seals,  as  heretofore  sometimes  hath 
been  by  her  progenitors  used;  neither  hath  she  par- 
doned any  without  the  advice  of  those  before  whom 
the  offenders  have  been  arraigned,  and  the  cause 
heard." 

The  Queen's  answer  was  very  courteous  to  him ;  but 
for  his  guidance  as  Speaker  she  told  him,  that  "the 
Commons  would  do  well  to  meddle  with  no  matters  of 
state  but  such  as  should  be  propounded  unto  them, 
and  to  occupy  themselves  with  other  matters  concern- 
ing the  commonwealth." 

Mr.  Speaker  Wray  did  his  best  to  enforce  obedience 
to  this  injunction,  but,  in  spite  of  him,  mo- 
tions were  brought  forward  about  the  abuse 
of  the  prerogative  in  granting  monopolies,   and  the 
necessity  for  an  act  of  parliament  to  settle  the  sue- 


A.D.  1574.  CHIEF  JUSTICE  WRAY.  239 

cession  to   the   crown.     At  the  close  of  the  session 
she  highly  censured  those  audacious  members 

uflV  29 

of  the  nether  house  "  for  their  arrogant  and 
presumptuous  folly,  thus  by  superfluous  speech  spend- 
ing much  time  in  meddling  with  matters  neither  per- 
taining to  them  nor  within  the  capacity  of  their  under- 
standing."* 

However, 'no  blame  was  imputed  to  Sir  Christopher 
Wray;  and,  as  a  reward  for  his  services,  he  was 
made  a  Puisne  Justice  of  the  Court  of  Common  Pleas.f 

When  elevated  to  the  bench,  he  was  distinguished 
not  only  by  great  skill  in  his  profession,  but  by  a 
striking  decency  of  demeanour,  which  gained  him 
much  respect  from  the  bar  and  the  bystanders. 

On  the  death  of  Sir  _Kobert  Catlyne  it  was  seen 
that  troublous  times  were  approaching,  from  Mary 
Queen  of  Scots,  lawfully  the  heir  presumptive  and 
actually  the  pretender  to  the  throne,  becoming  im- 
patient of  the  captivity  in  which  she  had  been  long 
held,  and  from  many  being  disposed  at  any  risk  to  vin- 
dicate her  claims.  There  was  an  equal  dread  of  retain- 
ing her  as  a  prisoner,  and  of  setting  her  at  liberty; 
and,  as  assassination  and  poisoning  were  reckoned 
un-English,  the  idea  began  to  gain  ground  that  it 
might  be  necessary  to  get  rid  of  her  by  the  forms  of 
law,  for  which  there  were  plenty  of  precedents  in 
recent  reigns.  Lord  Keeper  Sir  Nicholas  Bacon,  there- 
fore, pointed  out  to  Elizabeth  the  importance  of  having 
a  safe  man  at  the  head  of  the  administration  of  criminal 
justice,  and  he  recommended  to  her  Sir  Christopher 
Wray,  reminding  her  of  the  maxim  which,  with  her 
approbation,  he  had  adopted  for  his  own  motto,  MEDIO- 
_  CRIA  FIRMA.  She,  ever  prudent  in  judicial  appoint- 

*  1  Parl.  Hist.  724.  mistake,  for  the  common   law  judges 

f  According  to  Dugdale,  his  patent  never  sat  in  the  House  of  Commons 

bore  date  May  14,  a  fortnight  before  the  except  during  the  Commonwealth. 

prorogation ;  but  I  think  this  must  be  a  • 


240  EEIGN  OF  QUEEN  ELIZABETH.  CHAP.  V. 

merits,  unless  (as  in  the  case  of  giving  the  great  seal 
to  Sir  Christopher  Hatton)  she  was  guided  by  her 
heart  rather  than  her  head,  readily  acquiesced, 
chief  Justice  and,  after  the  office  had  remained  vacant  a 
Sta£&Klng'8  few  weeks>  Sir  Christopher  Wray,  to  the 
envy  of  the  puisnies,  was  installed  in  it ;  for 
they  all  thought  themselves  superior  to  him,  notwith- 
standing the  high  merits  discovered  in  him  by  the 
Lord  Keeper's  harangue  when  he  was  sworn  in. 

The  new  Chief  Justice  fully  justified  the  choice  made 
of  him.  He  was  not  at  all  puffed  up  by  his  elevation. 
In  private  life  he  continued  remarkably  courteous,  but 
he  would  permit  no  solicitations,  even  from  the  most 
powerful,  respecting  causes  which  were  to  come  before 
him.  "  Each  man  he  respected  in  his  due  distance  off*  the 
bench,  and  no  man  on  it  could  bias  his  judgment."  * 

The  first  important  trial  at  which  he  presided  was 
A.D.  i58i.  that  of  Campion  the  Jesuit  and  the  other 
Cwnpkmthe  P^ests  accused  along  with  him  of  a  con- 
jesuit.  spiracy,  at  the  instigation  of  the  Pope,  for 

murdering  the  Queen,  and  for  putting  Mary  in  her 
place.  In  reading  the  report  of  it  we  are  struck  with 
the  dextrous  manner  in  which  he  obtained  a  conviction, 
by  the  display  of  great  seeming  calmness  and  forbear- 
ance. Campion  was  a  hot-headed  though  very  able 
man,  and,  stung  by  a  sense  of  the  groundlessness  of  the 
charge  against  him,  was  always  breaking  out  in  intem- 
perate sallies.  When  arraigned,  he  wished,  contrary 
to  a  well-known  rule  of  procedure,  to  make  a  speech  in 
defence  of  his  innocence  : — 

Wray,  L.  C.  J.  "  The  time  is  not  yet  come  wherein  you  shall 
be  tried,  and,  therefore,  you  must  now  spare  speech,  and  preserve 
it  till  then ;  at  which  time  you  shall  have  full  liberty  of  defence, 
and  me  to  sit  indifferent  between  her  Majesty  and  yourself: 
whereupon  I  counsel  you  now  to  say  Guilty  or  Not  Guilty." 

*  Fuller. 


A.D.  1581.  CHIEF  JUSTICE  WKAY.  241 

The  evidence  was  wholly  insufficient  to  make  out 
the  charge  of  treason,  and  merely  proved  that  the 
prisoners  had  come  on  a  fanatical  mission  from  Rome 
in  the  hope  of  reconverting  the  kingdom  to  the  true 
faith.*  The  Chief  Justice,  however,  by  preserving  the 
same  tone,  not  only  persuaded  the  jury,  but  the  prison- 
ers themselves,  that  he  was  their  counsel,  according  to 
his  duty  as  judge.-  Having  allowed  them  to  address 
the  jury  several  times  without  interruption,  he  ob- 
served, "  If  you  have  any  more  to  say,  speak,  and  we 
will  hear  you  until  to-morrow  morning.  We  would  be 
loth  you  should  have  any  occasion  to  complain  of  the 
Court,  and  therefore,  if  aught  rest  behind  untold  that 
may  be  available  for  you,  speak,  and  you  shall  be  heard 
with  indifference."  The  report  says,  "  They  all  thanked 
his  Lordship,  and  said  they  could  not  otherwise  affirm 
but  they  had  found  of  the  Court  both  indifference  and 
justice." 

He  made  short  work  of  it  when  the  jury  had  given 
in  their  verdict  of  GUILTY  : — 

Lord  C.  J. :  "  Campion,  and  the  rest,  what  can  you  say  why 
you  should  not  die?"  Campion:  "The  only  thing  that  we 
have  now  to  say  is,  that  if  our  religion  do  make  us  traitors,  we 
are  worthy  to  be  condemned ;  but  otherwise  have  been,  and  are, 
as  true  subjects  as  ever  the  Queen  had  any."  Lord  C.  J. :  "  You 
must  go  to  the  place  from  whence  you  came,  and  from  thence 
you  must  be  drawn  on  a  hurdle  to  the  place  of  execution,  and 
there  hanged  by  the  neck,  but  not  till  you  are  dead,"  &c.,  &c. 
"  And  may  the  Lord  convert  you  from  your  evil  ways,  and  have 
mercy  on  your  souls."  t 

•  While  Campion  lay  nnder  accnea-  acknowledged  her  for  Queen?'    He  re- 

tion  in  the  Tower,  he  was  several  times  plied,  '  Not  only  for  Queen,  but  for  hit 

examined  under  torture,  and  gave  such  lawful  Queen.'    She  then  inquired  '  if 

clever  answers,  that  Elizabeth  had  a  he  believed  that  the  Pope  could  excom- 

great  curiosity  to  see  him.    "  By  her  municate  her  lawfully  ?'    He  answered, 

order   he   was   secretly   brought    one  that  '  he  was  not  a  sufficient  umpire  to 

evening  from  the  Tower,    and   intro-  decide   in   a  controversy  between  her 

duced  to  her  at  the  house  of  the  Earl  of  Majesty  and  the  Pope.' "— Lingard,  viil. 

Leicester,  in  the  presence  of  that  noble-  147. 

man,  of  the  Earl  of  Bedford,  and  of  the  f  1  St.  Tr.  1049-1088. 
two  secretaries.    She  asked  him  '  if  he 

VOL.  I.  R 


242  EEIGN  OF  QUEEN  ELIZABETH.         CHAP.  V. 

The  next  state  criminal  was  William  Parry,  indicted 

before  special  commissioners  for   a  plot   to 

Tria/of  wii-   mur(ler  Queen  Elizabeth.     He  had  confessed 

Ham  Parry      being  concerned  in  the  plot,  and  had  given 

for  treason.  -,,••,    y  r    •!     i      .      i_       •          t 

a  detailed  account  ot  it,  but,  having  been 
employed  as  a  spy,  both  by  Burleigh  and  by  the  Court 
of  Rome,  it  is  doubtful  whether,  in  this  instance,  he 
did  not  accuse  himself  falsely.  Upon  his  arraignment 
he  pleaded  Guilty,  trusting  to  a  pardon  ;  but,  the  plea 
being  recorded,  he  became  frightened,  and  wished  to 
retract  it.  This  indulgence  the  Court  refused,  and 
he  was  asked  why  judgment  of  death  should  not  be 
awarded  against  him : — 

Parry :  "  I  see  I  must  die,  because  I  am  not  settled."  Sir 
Christopher  Nation  (one  of  the  commissioners) :  "  What  meanest 
thou  by  that  ?  "  Parry :  "  Look  into  your  study  and  into  your 
new  books,  and  you  shall  see  what  I  mean."  fyir  Christopher : 
"  Thou  doest  not  well  to  use  such  dark  speeches,  unless  thou 
wouldst  plainly  utter  what  thou  meanest  thereby."  Parry:  "  I 
care  not  for  death ;  I  will  lay  my  blood  among  you." 

Lord  Chief  Justice  Wray  was  then  called  upon  to 
pronounce  the  sentence,  and  spoke  as  follows : — 

"  Parry,  you  have  been  much  heard,  and  what  you  mean  by 
being  '  settled'  I  know  not;  but  I  see  that  you  are  so  settled  in 
popery,  that  you  cannot  settle  yourself  to  be  a  good  subject. 
Thou  hast  committed  horrible  and  hateful  treason  against  thy 
most  gracious  Sovereign  and  thy  native  country.  The  matter 
most  detestable — the  manner  most  subtle  and  dangerous.  The 
matter  was  the  destruction  of  a  most  sacred  and  an  anointed 
Queen,  thy  sovereign  and  mistress ;  yea,  the  overthrow  of  thy 
country  in  which  thou  wast  born,  and  of  a  most  happy  common- 
wealth whereof  thou  art  a  member.  The  manner  was  most 
subtle  and  dangerous  beyond  all  that  before  thee  have  committed 
any  wickedness  against  her  Majesty.  For  thou,  making  show 
as  if  thou  wouldst  simply  have  uttered  for  her  safety  the  evil 
that  others  had  contrived,  didst  but  seek  thereby  credit  and 
access,  that  thou  mightest  take  the  after  opportunity  for  her 
destruction.  And  for  the  occasions  and  means  which  drove 
thee  on,  they  were  most  ungodly  and  villainous,  as  the  per- 
suasions of  the  Pope,  of  papists,  and  of  popish  books." 


A.D.  1584.  CHIEF  JUSTICE  WRAY.  243 

His  Lordship,  having  indulged  in  a  very  lengthened 
tirade  against  the  Pope,  papists,  and  popish  books,  pro- 
nounced the  usual  sentence  in  high  treason,  which  was 
executed  a  few  days  after,  although  the  unhappy  man 
declared  that  he  was  in  truth  innocent,  and  had  only 
acted  by  orders  of  the  Government  to  entrap  others. 
He  died  unpitied. 

— —  "  neque  enim  lex  sequior  ulla 
Quam  necis  artifices  arte  perire  sua."  * 

Lord  Chief  Justice  Wray  was  named  in  the  com- 
mission for  the  trial  of  Anthony  Babington, 
and  in  that  for  the  trial  of  the   Queen   of 
Scots  herself;  but  he  did  not  take  a  leading  part  in 
either  of  them,  being  superseded  by  the  zeal  of  Sir 
Thomas  Bromley,  who  then  held  the  Great  Seal,  and 
of  Sir  Christopher  Hatton,   who  was   eager  to  hold 
it.f 

He  presided  in  the  Star  Chamber,  however,  when 
the  scandalous  mockery  was  exhibited  which   A.D.  issi. 
arose    out    of   the    feigned    resentment    of  ^Jeliu  the 
Elizabeth  on   account   of  the   execution   of  S^01^11' 

beronthe 

Mary.  He  then,  for  some  temporary  con-  trial  of  secre- 
venience,  held  the  office  of  Lord  Privy  Seal  son. 
as  well  as  of  Chief  Justice,  and  so  had  precedence  over 
several  peers  of  high  rank  who  attended.  He  must 
have  been  well  aware  that  Secretary  Davison,  in  send- 
ing off  the  warrant  for  the  bloody  deed  to  be  done  at 
Fotheringay,  acted  with  the  full  concurrence  of  his 
colleagues,  and  in  compliance  with  the  wishes  of  his 
royal  mistress ;  but  he  conducted  the  proceeding  with 
all  solemnity,  as  if  a  public  functionary  had  acted  in 
disobedience  of  orders,  and  had  thereby  brought  ob- 
loquy  upon  the  sovereign  and  calamity  upon  the 
state. 

*  1  St.  Tr.  1095-1H2. 

t  1  St.  Tr.  1127.  1167 ;  Lives  of  Chancellors,  vol.  ii.  chaps,  xliv.  xlv. 

R   2 


244  EEIGN  OF  QUEEN  ELIZABETH.          CHAP.  V. 

After  the  invectives  of  the  Attorney  General  and  the 
other  counsel  for  the  Crown,  Davison  mildly  observed 
"  that  the  warrant  having  passed  the  great  seal  by  the 
Queen's  express  orders,  it  was  to  be  executed  as  a 
matter  of  course,  without  further  making  her  privy 
to  the  execution."  Lord  Chief  Justice  Wray  ex- 
claimed, "  Mr.  Davison,  to  call  the  warrant  irrevocable 
you  are  deceived,  for  her  Majesty  might  have  revoked 
it  at  her  pleasure."  He  then  required  all  the  coun- 
cillors present  to  express  their  opinion,  beginning  with 
the  junior,  Sir  Walter  Mildmay,  who,  after  enlarging 
upon  the  enormity  of  the  offence,  proposed  for  punish- 
ment a  fine  of  10,000  marks  and  perpetual  imprison- 
ment. The  other  councillors,  up  to  the  Archbishop  of 
Canterbury,  having  made  similar  speeches,  and  ap- 
proved of  the  proposed  sentence,  Wray,  Chief  Justice, 
likewise  spoke  in  aggravation,  contending  that  the 
Queen's  express  authority  for  executing  the  warrant 
ought  to  have  been  obtained,  and  that  the  secretary 
was  alone  answerable  for  Mary's  death.  Thus  he 
concluded : — 

"  Surely  I  think  you  meant  well,  and  it  was  bonum,  but  not 
bene.  Finally,  I  agree  that  the  punishment  shall  be  as  it  was 
first  of  all  assessed.  But  further  I  must  tell  you,  that,  for  so 
much  as  the  fault  is  yours,  this  prosecution  declares  her 
Majesty's  sincerity,  and  that  she  had  no  privity  in  your  act,  and 
that  she  was  offended  therewithal.  Further,  my  Lords,  I  am 
directed  to  signify  to  you  from  her  Majesty,  that  forasmuch  as 
the  Lords  of  the  Council  who  concurred  in  that  act  were  abused 
by  Mr.  Davison's  relation  in  telling  them  that  she  was  pleased, 
and  what  they  did  was  for  her  safety,  and  they  be  sorrowful 
because  they  were  abused  by  him,  therefore  her  Majesty  im- 
puteth  no  fault  to  any,  but  only  to  him,  and  the  rest  she  doth 
unburthen  of  all  blame."  * 

This  is  certainly  one  of  the  most  discreditable  pro- 
ceedings during  the  reign  of  Elizabeth,  and  reflects 

*  1  St.  Tr.  1229-1250. 


A.D.  1589.  CHIEF  JUSTICE  WRAY.  245 

much  disgrace  on  all  concerned  in  it,  except  the  veteran 
secretary  Davison  himself,  who  boldly  defended  his 
innocence,  and  exposed  the  duplicity  and  fraud  of  his 
persecutors,  although  he  thereby  deprived  himself  of 
all  hope  of  mercy.* 

Lord  Chief  Justice  Wray's  last  appearance  at  a  state 
trial  was  when  the  young  Earl  of  Arun- 
del,  son  of  the  Duke  of  Norfolk,  had  been  Tria/of  the 
reconciled  to  his  own  wife  after  having 
been  once  the  lover  of  Elizabeth,  and  was 
therefore  brought  to  trial  on  a  frivolous  charge  of 
treason  for  having  wished  success  to  the  Spanish 
Armada.  All  the  Judges  attended  as  assessors ;  and 
the  Chief  Justice  of  the  King's  Bench,  as  their  Cory- 
phaeus, gave  the  desired  answers  to  the  questions  put 
to  them,  for  the  purpose  of  obtaining  a  conviction; 
but  this  caused  such  scandal,  that  Lord  Burghley  and 
Sir  Christopher  Hatton  advised  Elizabeth  against  stain- 
ing her  reputation  with  the  blood  of  the  son  as  well  as 
of  the  father,  and  his  life  was  spared,  although  he  was 
detained  in  the  Tower  till  he  died,  after  an  imprison- 
ment of  eleven  years.f 

Lord  Chief  Justice  Wray,  between  the  Crown  and 
the  subject,  by  no  means  showed  the  indepen-    _    h  of 
dence  for  which  he  was  celebrated  between    chief  Justice 

Wrav 

subject  and  subject;  yet  his  partiality  and 
subserviency  in    state   trials  did  not  shock  his  con- 
temporaries, and  are  rather  to  be  considered   His  Charac_ 
the  reproach  of  the  age  than  of  the  indi-   ter- 
vidual.     Till  Lord  Coke  arose  in  the  next  generation, 
England  can  scarcely  be  said  to  have  seen  a  magistrate 
of  constancy,  who  was  willing  to  surrender  his  place 
rather  than  his  integrity.     Wray,  upon  the  whole,  was 

*  See  his  Apologetical  Discourse  to  hope  that  it  might  be  rendered  unneces- 

Walsingham,  1  St.  Tr.  1239.    In  truth,  sary  by  a  private  assassination. 

Elizabeth's  only  hesitation  about  sending  -f-  1  St.  Tr.  1250. 
off  the  warrant  arose  from  a  wish  and  a 


246  KEIGN  OF  QUEEN  ELIZABETH.         CHAP.  V. 

very  much  respected,  and  lie  held  his  office  with  general 
approbation  down  to  the  time  of  his  death.  Sir  George 
Croke,  the  reporter,  says,  "  On  the  last  day  of  Easter 
Term,  34  Eliz.,  died  Sir  Christopher  Wray,  Knt.,  Chief 
Justice  of  her  Majesty's  Court  of  Queen's  Bench — a 
most  revered  Judge,  of  profound  and  judicial  know- 
ledge, accompanied  with  a  very  ready  and  singular 
capacity  and  admirable  patience."* 

He  left  behind  him  a  son,  who,  in  1612,  was  made 
a  baronet  by  James  I.,  and  the  title  was  inherited  by 
his  descendants  till  the  year  1809,  when  the  male  line 
failing,  it  became  extinct.  I  congratulate  my  readers 
that  we  have  done  with  the  Wrays. 

*  Cro.  Eliz.  280. 


A.D.  1631.  CHIEF  JUSTICE  POPHAM.  247 


CHAPTER  VI. 

CHIEF  JUSTICES  FKOM   THE  DEATH   OF   SIB  CHRISTOPHER 

WRAY  TILL   THE   APPOINTMENT   OF  SIR  EDWARD 

COKE   BY  JAMES  I. 

THE  career  of  our  next  hero  is  capable  of  being  made 

amusing  as  well  as  instructive.     Although 

at   one  time  in  the  habit  of  taking  purses      |oph^. 

on  the  highway, — instead  of  expiating  his 

offences  at  Tyburn  he  lived  to  pass  sentence  of  death 

upon  highwaymen,  and  to  be  a  terror  to   evil-doers 

all  over  the  kingdom. 

JOHN  POPHAM  was  born  in  the  year  1531,  at  Wel- 
lington, in  the  county  of  Somerset,  a  place 
which  is  distinguished  as  the  cradle  of  the 
Wellesleys,  and  which  the  great  ornament  of  his  race 
and  of  his  country  has  rendered  for  ever  famous  by 
taking  from  it  his  title  of  Duke,  rather  than  from  the 
scene  of  any  of  his  glorious  victories.  He  was  of  gentle 
blood,  being  a  younger  son  of  a  family  who,  though 
simple  squires  and  of  Saxon  origin,  had  for  many 
generations  been  entitled  to  bear  arms,  and  who  had 
been  settled  on  a  small  estate  at  Huntworth  in  the 
same  county.  While  yet  a  child  he  was  stolen  by 
a  band  of  gipsies,  and  remained  some  months  in  their 
society ;  whence  some  pretended  to  account  for  the 
irregular  habits  and  little  respect  for  the  rules  of 
property  which  afterwards  marked  one  period  of  his 
life.  His  captors  had  disfigured  him,  and  had  burnt 
on  his  left  arm  a  cabalistic  mark  which  he  carried 
with  him  to  the  grave.  But  his  constitution,  which 


248  KEIGN  OF  QUEEN  ELIZABETH.        CHAP.  VI. 

had  been  sickly  before,  was  strengthened  by  the 
wandering  life  he  had  led  with  these  lawless  asso- 
ciates, and  he  grew  up  to  be  a  man  of  extraordinary 
stature  and  activity  of  body.  We  have  no  account  of 
his  schooling  before  he  was  sent  to  Baliol 
College,  Oxford.  Here  he  was  very  studious 
and  well-behaved,  and  he  laid  in  a  good 
stock  of  classical  learning  and  of  dogmatic  divinity. 
But  when  removed  to  the  Middle  Temple,  that  he 
might  qualify  himself  for  the  profession  of  the  law,  he 
A  D  1551  S0*  into  t>a(l  company,  and  utterly  neglected 
His  prom-  his  juridical  studies.  He  preferred  theatres, 
student  in* *  gaming-houses,  and  other  haunts  of  dissi- 
the  Temple.  pation,  to  "  readings  "  and  "  moots : "  and  once, 
when  asked  to  accompany  a  friend  to  hear  an  important 
case  argued  by  great  lawyers  in  Westminster  Hall,  he 
declared  that  "  he  was  going  where  he  would  see 
disputants  whom  he  honoured  more — to  a  bear-baiting 
in  Alsatia."  Unfortunately,  this  was  not,  as  in  a 
subsequent  age,  in  the  case  of  young  Holt,  afterwards 
Lord  Chief  Justice,  merely  a  temporary  neglect  of 
discipline — "  a  sowing  of  his  wild  oats."  The  remon- 
strances of  his  family  and  his  friends,  and  the  scrapes 
he  got  into,  had  no  permanent  effect  in  reclaiming 
him ;  and,  although  he  sometimes  seemed  resolved 
on  reformation,  and  had  fits  of  application,  he  was 
speedily  again  seduced  by  his  profligate  companions, 
and  he  engaged  in  courses  still  more  culpable. 

It  seems  to  stand  on  undoubted  testimony,  that  at 
this  period  of  his  life,  besides  being  given 
the  road!  °     to  drinking  and  gaming, — either  to  supply 
his   profligate  expenditure,  or  to   show  his 
spirit,   he   frequently   sallied  forth   at  night  from   a 
hostel  in  Southwark,  with  a  band  of  desperate  cha- 
racters, and  that,  planting  themselves  in  ambush  on 
Shooter's  Hill,  or  taking  other  positions  favourable  for 


A.D.  1551-60.         CHIEF  JUSTICE  POPHAM.  249 

attack  and  escape,  they  stopped  travellers,  and  took 
from  them  not  only  their  money,  but  any  valuable 
commodities  which  they  carried  with  them, — boasting 
that  they  were  always  civil  and  generous,  and  that,  to 
avoid  serious  consequences,  they  went  in  such  numbers 
as  to  render  resistance  impossible.  We  must  remember 
that  this  calling  was  not  then  by  any  means  so  dis- 
creditable as  it  became  afterwards ;  that  a  statute  was 
made  during  Popham's  youth  by  which,  on  a  first 
conviction  for  robbery,  a  peer  of  the  realm  or  lord 
of  parliament  was  entitled  to  benefit  of  clergy  "  though 
he  cannot  read;"*  and  that  the  traditions  were  still 
fresh,  of  robberies  having  been  committed  on  Gad's 
Hill  under  the  sanction  of  a  Prince  of  Wales.f  The 
extraordinary  and  almost  incredible  circumstance  is, 
that  Popham  is  supposed"  to  have  continued  in  these 
courses  after  he  had  been  called  to  the  bar,  and  when, 
being  of  mature  age,  he  was  married  to  a 
respectable  woman.  At  last,  a  sudden  iseo.  He 
change  was  produced  by  her  unhappiness, 
and  the  birth  of  a  child,  for  whom  he  felt  attachment. 
We  have  the  following  account  of  his  reformation 
from  Aubrey : — 

"  For  severall  yeares  lie  addicted  himselfe  but  little  to  the 
studie  of  the  lawes,  but  profligate  company,  and  was  wont  to 
take  a  purse  with  them.  His  wife  considered  her  and  his  con- 
dition, and  at  last  prevailed  with  him  to  lead  another  life,  and 
to  stick  to  the  studie  of  the  lawe,  which,  upon  her  importunity, 
he  did,  beeing  then  about  thirtie  yeares  old.  He  spake  to  his 
wife  to  provide  a  very  good  entertainment  for  his  camerades  to 
take  his  leave  of  them,  and  after  that  day  fell  extremely  hard  to 
his  studie,  and  profited  exceedingly.  He  was  a  strong,  stout 
man,  and  could  endure  to  sit  at  it  day  and  night ;  became 
eminent  in  his  calling,  had  good  practice,  was  called  to  be  a 
Serjeant  and  a  Judge."J 

*  1  Ed.  VI.  c.  12,  8. 14.  have  had  at  least  as  much  effect  as  the 

t  If  Popham's  raids  had  been  a  little  Beggar's  Opera  in  softening  the  horror 

later,  they  might  have  been  imputed  to  excited  by  highway  robbery. 

the  First  Part  of  Henry  17.,  which  must  J  Aubrey,  iii.  492. 


250  REIGN  OF  QUEEN  ELIZABETH.         CHAP.  VI. 

Fuller,  always  anxious  to  soften  whatever  appears 
discreditable  to  any  of  his  "  Worthies,"  says  of 
Popham, — 

"  In  his  youthful  days  he  was  as  stout  and  skilful  a  man 
at  sword  and  buckler  as  any  in  that  age,  and  wild  enough  in 
his  recreations.  But,  oh !  if  Quicksilver  could  really  be  fixed, 
to  what  a  treasure  would  it  amount!  Such  is  ivild  youth 
seriously  reduced  to  gravity,  as  by  this  young  man  did  appear. 
He  applied  himself  to  more  profitable  fencing — the  study  of 
the  laws ;  therein  attaining  to  such  eminency  that  he  became 
the  Queen's  Attorney,  and  afterwards  Lord  Chief  Justice  of 
England."* 

We  are  not  told,  and  it  would  be  vain  to  conjecture, 
what  means  he  employed  to  redeem  the  time,  and 
to  qualify  himself  for  the  profession  to  which  lie  now 
earnestly  devoted  himself.  This  we  certainly  know, 
that  he  became  a  consummate  lawyer,  and  was  allowed 
to  be  so  by  Coke,  who  depreciated  all  contemporaries, 
and  was  accustomed  to  sneer  at  the  "  book  learning  " 
of  Francis  Bacon. 

It  might  be  supposed  that  Popham  would  get  on 
particularly  well  in  the  Crown  Court :  but, 

Hisprofes-        *  -i        ••         i       »  .  1 

sionaipro-      — from  the  dread  of  encountering  some  of 
his  old  associates,  or  for  some  better  reason, 
— till  he  was  required,  in  the  discharge  of  his  official 
duty,  to  conduct  public  prosecutions,  he  confined  him- 
self entirely  to  civil  business ;  and  the  department  of 
practice   for  which  he   chiefly  laid  himself  out  was 
"  special  pleading,"  or  the  drawing  in  writing 
the  allegations  of  the  plaintiff  and  the  de- 
fendant,  till  they   ended  in  a  demurrer  referring   a 
question  of  law  to  the  judges,  or  in  an  issue  of  fact 
to  be  determined  by  a  jury.     To  add  to  the  gravity 
of  his  newly  assumed  character,  he  was  eager  to  reach 
the  dignity  of  the  coif;  and,  after  some  opposition  on 

*  Vol.  ii.  284. 


A.D.  1579.  CHIEF  JUSTICE  POPHAM.  251 

account  of  the  stories  circulated  against  him,  in  1571 
he  actually  became  Serjeant  Popham.  His  feast  was  on 
a  scale  of  extraordinary  magnificence,  and  he  furnished 
some  very  fine  old  Gascony  wine,  which  the  wags 
reported  he  had  intercepted  one  night  as  it  was  coming 
from  Southampton,  destined  for  the  cellar  of  an  alder- 
man of  London. 

However,  in  spite  of  such  jibes,  he  acquired  the 
reputation  of  being  very  skilful  in  conducting  real 
actions,  which  were  exclusively  tried  in  the  Court  of 
Common  Pleas,  where  he  now  practised  ;  and  his  busi- 
ness steadily  increased.  He  was  likewise  concerned  in 
some  cases  in  the  Court  of  Wards  and  Liveries  against 
the  Crown ;  and  Elizabeth,  who  had  a  regular  report 
made  to  her  of  all  suits  in  which  her  interests  were 
concerned,  expressed  a  wish  that  he  might  be  taken 
into  her  service. 

Accordingly,  when  Sir  Thomas  Bromley,  who  had 
been  long  her  Solicitor  General,  was  pro- 
moted to  be  Lord  Chancellor,  Popham  sue- 
ceeded  him  as  Solicitor  General.  Now  he 
was  somewhat  ashamed  of  the  coif,  of  which 
he  was  once  so  proud,  and,  meaning  henceforth  to 
practise  in  the  Court  of  Queen's  Bench,  he  resorted 
to  the  unusual  expedient  of  unserjeanting  or  discoifing 
himself;  so  he  was  once  more  "  John  Popham, 
Esquire."*  He  gave  high  satisfaction  by  the  manner 
in  which  he  conducted  the  Queen's  business  ; 
and  in  the  beginning  of  the  year  1581  he  SffigJ^ 
was,  on  her  recommendation,  elected  Speaker  of  Com- 

mons. 

of  the  House  of  Commons.     This   appoint- 
ment was  substantially  in  the  gift  of  the  Government, 
and  was  very  often  bestowed  on  the  Solicitor  General 

*  "  Joh..  Popham  arm.  exoneratus  de  torney-General,   remained   a   Serjeant ; 

nomine,  statu,  et  gradu  Serv.  ad  legem."  and  when  become  Lord  Lyndhurst  and 

(Pat.  21   Eliz.  p.  2.)   Serjeant  Copley,  Lord  Chancellor,  he  wore  the  coif,  and 

when  made  Solicitor-General  and  At-  called  the  Serjeants  his  "  brothers." 


252  REIGN  OF  QUEEN  ELIZABETH.         CHAP.  VI. 

for  the  time  "being,  the  Attorney  General  attending  as 
an  assessor  in  the  House  of  Lords,  and  being  considered 
disqualified  to  sit  as  a  representative  of  the  people. 

When  the  new  Speaker  demanded  from  the  Queen 

liberty  of  speech  for  the  Commons,  and  their 

i58i.18          other  ancient  privileges,  she  gave  him   an 

admonition  "  to  see  to  it  that  they  did  not 

deal  or  intermeddle  with  any  matters   touching  her 

person  or  estate,  or  church  or  government."* 

The  very  first  motion  made  was  by  Paul  Wentworth, 
the  Puritan,  for  a  public  fast  to  be  appointed  by  the 
House,  and  for  a  daily  sermon,  so  that,  beginning 
their  proceedings  with  the  service  and  worship  of  God, 
He  might  the  better  bless  them  in  all  their  consulta- 
tions and  actions.  After  a  long  debate,  the  motion 
was  carried  by  a  majority  of  115  to  100.  The  Queen 
was  highly  incensed  at  this,  which  she  considered  an 
encroachment  on  her  prerogative  as  "  Head  of  the 
Church,"  and  rated  Popham  very  roundly  for  pre- 
suming to  put  the  motion  from  the  chair.  On  a  subse- 
quent day  he  addressed  the  House,  and  said,  "  he  was 
very  sorry  for  the  error  that  had  happened,  in  resolving 
to  have  a  public  fast,  and  for  her  Majesty's  great 
misliking  of  the  proceeding.  He  advised  them  to 
send  a  submission  to  her  Majesty,  and  to  bestow  their 
time,  and  endeavour  thereafter  during  the  session,  in 
matters  proper  and  pertinent  for  this  House  to  deal 
in."  He  then  asked  the  question,  "  whether  the  Vice 
Chamberlain  should  carry  their  submission  to  her 
Majesty?"  And  it  was  agreed  to  unanimously.  Mr. 
Vice  Chamberlain,  to  the  great  comfort  of  the  Speaker 
and  of  the  House,  "  brought  answer  of  her  Majesty's 
acceptance  of  the  submission, — expressing  at  the  same 

*  1  Parl.  Hist.  811.    This  election  of  the  parliament,  an  event  which  does  not 

Speaker  did  not  take  place  at  the  com-  seem  to  have  happened  before,  and  which 

mencement  of  a  parliament,  but  on  ac-  caused  much  perplexity, 
count  of  the  death  of  the  Speaker  during 


A.D.  1581.        •      CHIEF  JUSTICE  POPHAM.  253 

time  some  anxiety  that  they  should  not  misreport 
the  cause  of  her  misliking,  which  was  not  that  she 
objected  to  fasting  and  prayer,  but  for  the  manner — in 
presuming  to  order  a  public  fast  without  her  privity, 
which  was  to  intrude  upon  her  authority  ecclesias- 
tical." * 

At  the  end  of  the  session  Mr.  Speaker  Popham  pre- 
sented to  the  Queen  all  the  public  bills  passed,  amount- 
ing to  the  unexampled  number  of  fifteen ;  and  in  a 
long  speech,  in  which  he  explained  and 
praised  them,  he  prayed  the  Queen  gra-  AJ>.  issi. 
ciously  to  assent  to  them,  thus  concluding — 
"I  do  further  most  humbly  beseech  your 
Highness,  in  the  name  and  behalf  of  the 
Commons  of  your  realm,  that  you  will  have  a  vigilant 
and  provident  care  of  the  safety  of  your  most  royal 
person  against  the  malicious  attempts  of  some  mighty 
foreign  enemies  abroad,  and  the  traitorous  practices  of 
most  unnatural  disobedient  subjects  both  abroad  and  at 
home,  envying  the  blessed  and  most  happy  and  quiet 
government  of  this  realm  under  your  Highness,  upon 
the  thread  of  whose  life  only,  next  under  God,  de- 
pendeth  the  life  and  whole  state  and  stay  of  every 
your  good  and  dutiful  subjects."! 

This  was  Popham's  last  parliamentary  effort,  as  he 
never  again  sat  in  the  House  of  Commons,  and  in  the 
House  of  Lords  he  was  condemned  to  silence. 

Soon  after  the  prorogation  he  succeeded  Sir  Gilbert 
Gerard  as  Attorney  General,  and  had  Sir  junei.  He 
Thomas Egerton (afterwards Lord Ellesmere) 
for  his  Solicitor.  Difficult  times  came  on,  but  neral- 
these  law  officers  always  rose  with  the  occasion,  and 
brought  the  important  state  prosecutions  in  which  they 
were  engaged  to  a  fortunate  issue. 

«  1  Part.  Hist.  813  f  1  Ibid.  820. 


254  KEIGN  OF  QUEEN  ELIZABETH.        CHAP.  VI. 

The  new  Attorney  General  was  called 'upon  to  take 
part  in  a  solemnity  which  seems  very 
strange  to  us.  In  that  age,  when  parlia- 
ment rarely  met,  and  there  were  no  newspapers  in 
which  ministers  could  give  their  explanation  of  any 
public  occurrence,  or  defend  themselves  from  any 
charge  orally  circulated  against  them,  it  was  usual  to 
have  a  grand  assemblage  in  the  Star  Chamber,  to 
which  the  nobility,  the  Lord  Mayor  and  aldermen 
of  London,  and  other  notabilities,  were  invited,  and 
then  the  different  members  of  the  government  (with- 
out any  opponent)  made  speeches  in  their  own  justi- 
Proceeding  fication  and  in  their  own  praise.  Henry 
cUmte^on  Percy'  Earl  of  Northumberland,  a  Eoman 
the  death  of  Catholic,  much  attached  to  the  interests  of 

the  Earl  of 

Northum-  Queen  Mary,  having  been  kept  for  several 
years  a  close  prisoner  in  the  Tower,  had  been 
shot  through  the  head  by  three  slugs,  and  was  found 
dead  in  his  bed  on  the  night  after  his  guard  had  been 
changed  by  the  orders  of  Sir  Christopher  Hatton,  the 
Vice  Chamberlain.  Notwithstanding  a  verdict  by 
the  coroner's  jury  of  felo-de-se,  a  rumour  was  spread, 
and  very  generally  credited,  that  he  had  been 
isss! 23>  assassinated,  because  he  was  considered  dan- 
gerous to  the  state,  and  there  was  no  evi- 
dence upon  which  he  could  be  brought  to  an  open  trial. 
A  meeting  was  accordingly  called  in  the  Star  Chamber, 
attended  by  all  the  great  officers  of  state,  from  the 
Lord  Chancellor  to  the  Vice  Chamberlain ;  and,  says 
the  report, — 

"  The  audience  was  very  great  of  knights,  esquires,  and  men 
of  other  quality.  The  Chancellor  declared  that,  lest,  through  the 
sinister  means  of  such  persons  as  be  evil  affected  to  the  present 
estate  of  her  Majesty's  government,  some  bad  and  untrue  con- 
ceits might  be  had,  as  well  of  the  cause  of  the  Earl's  detainment 
as  of  the  manner  of  his  death,  it  was  thought  necessary  to  have 
the  truth  thereof  made  known  in  that  presence.  He  therefore 


A.D.  1586.  CHIEF  JUSTICE  POPHAM.  255 

required  her  Majesty's  learned  counsel  to  deliver  at  large  the 
particularities  both  of  the  treasons,  and  in  what  sort  the  Earl 
had  murdered  himself.  Then  began  John  Popham,  Esq.,  her 
Majesty's  Attorney  General." 

Mr.  Attorney,  not  bound  to  prove  any  of  his  alle- 
gations, and  not  fearing  any  reply,  but  having  it  all 
his  own  way,  proceeds  with  a  lengthened  narrative, 
showing  that  it  was  out  of  the  unexampled  clemency  of 
her  Highness  that  the  deceased  had  not  long  before  been 
convicted  as  a  traitor,  and  that,  from  the  dread  of  a 
public  trial  and  execution,  he  had  died  by  his  own 
hand. 

Then  spoke  various  Lords  of  the  Council, — and  the 
whole  case  was  at  last  summed  up  by  Sir  Christopher 
Hatton,  the  suspected  party,  who,  having  bitterly 
inveighed  against  the  deceased  Earl,  declared — 

"  That  God  by  his  just  judgment  had  for  his  sins  and  ingra- 
titude taken  from  him  his  spirit  of  grace,  and  delivered  him 
over  to  the  enemy  of  his  soul,  who  brought  him  to  that  most 
dreadful  and  horrible  end  whereunto  he  is  come ;  from  which  God 
of  his  mercy  defend  all  Christian  people,  and  preserve  the  Queen's 
Majesty  from  the  treasons  of  her  subjects,  that  she  may  live  in 
all  happiness  to  see  the  ruin  of  her  enemies  abroad  and  at  home ; 
and  that  she  and  we,  her  true  and  loving  subjects,  may  be  always 
thankful  to  God  for  all  his  blessings  bestowed  upon  us  by  her, 
the  only  maintenance  of  his  holy  gospel  among  us."  * 

Popham  conducted  the  trials  of  all  those  charged  as 
being  implicated  in  Babbington's  conspiracy, 
which  were  meant  to   prepare  the    public 
mind  for  the  trial  of  the  unhappy  Mary  herself.     I  will 
give  a  little  specimen  of  these  proceedings  from  Tilney's 
case.     The  charge  against  him  was,  that  he      Tilney's 
had  planned  the  murder  of  Queen  Elizabeth      case- 
in  her  coach.     The  chief  evidence  consisted  of  a  con- 

*  1  St.  Tr.  1111-1128.    Yet  these  ex-  written  to  Sir  Robert  Cecil,  assumes  it  as 

hibitions  do  not  seem  to  have  had  much  a  fact  known  to  both  of  them,  that  the 

effect,  for  although  I  believe  this  charge  Earl  of  Northumberland  was  murdered 

of  assassination  to   be  unfounded,  Sir  by  the  contrivance  of  Hatton. — Murdin, 

Walter  Raleigh,  in  a  letter  soon  after  811. 


256  REIGN  OF  QUEEN  ELIZABETH.        CHAP.  VI. 

fession  of  Abington,  an  avowed  accomplice,  in  which  he 
said  that  "  Tilney  was  disposed  to  kill  the  Queen ;"  and 
that  Babbington,  on  his  own  trial,  said  the  day  before, 
"  Tilney  would  have  had  her  Majesty  set  upon  in  her 
coach." 

Tilney.  "  No !  I  said  not  so ;  only  at  the  Three  Tuns,  in 
Newgate  Market,  I  said  '  it  might  be  her  Majesty  might  be  set 
upon  in  her  coach,'  and  I  said  no  more.  But  that  proves  not  I 
did  consent."  Popham,  A.  G. :  "  You  have  said  enough,  if  we 
had  no  other  evidence  against  you."  Tilney :  "  How  so  ? " 
Popham,  A.  G. :  "  Because  you  have  confessed  high  treason  ; 
your  words  prove  that  you  were  devising  on  the  manner  of  her 
death."  Tilney :  "  I  tell  you  there  is  no  such  matter  intended 
in  my  words.  If  a  servant  which  is  faithful,  knowing  where  his 
master's  money  is,  do  say,  '  If  I  would  be  a  thief  I  could  rob 
my  master,  for  in  such  a  place  his  money  is,'  this  proves  not  that 
he  would  rob  his  master  albeit  he  used  such  words.  And  so, 
though  I  said  '  she  might  be  set  upon  in  her  coach,'  it  proveth 
not  that  I  assented  to  the  same ;  for  I  protest  before  God  I  never 
intended  any  treason  in  my  life."  Anderson,  C.  J.  (the  pre- 
siding Judge) :  "  But  if  a  servant,  knowing  where  his  master's 
money  is,  among  thieves  which  are  devising  to  take  away  the 
master's  money,  do  say,  '  this  way  my  master's  money  may  be 
taken,'  and  be  in  view  when  it  is  taken,  I  say  that  he  is  acces- 
sory. And  you,  Tilney,  being  amongst  traitors  that  were  de- 
vising how  to  kill  her  Majesty,  showed  by  what  means  her 
Majesty  might  be  killed.  This  manifestly  proves  your  assent. 
Therefore  let  the  jury  consider  of  the  evidence." 

Upon  this  summing  up,  a  verdict  of  GUILTY  was 
immediately  pronounced,  and  the  prisoner  was  exe- 
cuted.* 

Popham  was  present  in  the  court  at  Fotheringay 
during  the  trial  of  the  Queen  of  Scots,  but  did  not 
interfere  much  in  the  proceeding,  as  the  part  of  public 
prosecutor  was  acted  in  turn  by  Lord  Chancellor 
Bromley,  Lord  Treasurer  Burleigh,  and  Vice  Chamber- 
lain Hatton,  who  were  sitting  as  her  judges.f 

*  1  St.  Tr.  im-1162.  f  Ibid.  1161-1228. 


A.D.  1588.  CHIEF  JUSTICE  POPHAM.  -257 

When  poor  Secretary  Davison  (intended  to  be  the 
scapegoat  for  the  sins  of  all  concerned  in  her    He  prose_ 
death)  was  brought  before  the  Star  Chamber,    ^tes^^n 

Popham   enlarged   on   the  enormity  of  his    for  sending 
a.  •  or  ±-u  /  f       i,        off  the  war- 

offence  in  sending  off  the  warrant  for   her   rant  for  the 

execution  without  the  Queen's  express  orders,    QU^M^. 
although  she  had  signed  it,  and  it  had  passed    A-D- 1588- 
the  Great  Seal  by  her  authority  and  with  her  ap- 
probation.* 

The  last  case  in  which  Popham  seems  to  have  been 
concerned  at  the  bar  gives  us  a  lively  idea  of  the  perils 
to  which  public  liberty  was  exposed  in  the  end  of 
the  sixteenth  century.  Sir  Eichard  Knightly,  the 
representative  of  an  ancient  family  in  Northampton- 
shire, had  the  misfortune  to  be  a  Puritan,  and  had 
printed  and  published,  in  a  country  town  near  his 
residence,  a  pamphlet,  explaining  very  temperately  his 
religious  notions  upon  the  proper  observance  of  the 
Sabbath,  and  other  such  subjects.  This  gave  deep 
offence  to  the  bishops ;  and  the  author  was  prosecuted 
in  the  Star  Chamber  for  it.  Popham  denounced  it  as  a 
most  seditious  and  libellous  publication,  "  fit  for  a  vice 
in  a  play,  and  no  other,"  but  founded  his  reasoning 
chiefly  on  proclamations  issued  by  her  Majesty  declaring 
"  that  no  pamphlet  or  treatise  should  be  published  till 
previously  seen  and  allowed ;  and  further,  that  no 
printing  shall  be  used  any  where  but  in  London, 
Oxford,  and  Cambridge."  It  was  admitted  that  for 
mere  breach  of  a  royal  proclamation  an  indictment 
could  not  be  supported  in  a  court  of  common  law ;  but 
the  crown  lawyers  asserted,  that  it  was  part  of  the 
royal  prerogative  to  issue  proclamations  on  any  subject, 
for  the  public  good,  and  that  those  proclamations  might 
be  enforced  by  prosecutions  in  the  Star  Chamber. 

*  i  st.  Tr.  1229. 

VOL.   I.  S 


258  EEIGN  OF  QUEEN  ELIZABETH.        CHAP.  VI. 

Nobody  in  the  Star  Chamber  ventured  to  controvert 
this  doctrine ;  and,  on  the  present  occasion,  the  only 
justification  or  palliation  offered  by  the  defendant  was, 
that  he  had  been  overpersuaded  by  his  wife.  Pop- 
Jiam,  A.  G. :  "  Methinks  he  is  worthy  of  the  greater 
punishment  for  giving  such  a  foolish  answer  as  that  he 
did  it  at  his  wife's  desire."  He  escaped  with  a  fine  of 
2000Z.* — Such  cases  should  be  borne  in  mind  when 
we  measure  our  gratitude  to  Sir  Edward  Coke,  for 
stoutly  denying  the  legality  of  proclamations  to  alter 
the  law  of  the  land,  and  for  contending  that  dis- 
obedience to  them  could  not  lawfully  be  made  the 
subject  of  a  prosecution  in  the  Star  Chamber  any  more 
than  in  a  court  of  common  law.  The  proclamation  and 
the  prosecution  conjoined  were  weapons  to  satisfy  any 
tyrant,  however  rancorous  his  hatred  of  liberty,  or 
however  eagerly  covetous  of  despotic  power. 

Upon  the  death  of  Sir  Christopher  Wray,  there  was 

some  hesitation  about  the  nomination  of  his 
1592. 8>  successor.  Popham  was  an  able  man,  and 

had  done  good  service  as  Attorney  General ; 
but  there  was  an  awkwardness,  after  the  stories  that 
were  circulated  about  his  early  exploits,  in  placing 
him  at  the  head  of  the  administration  of  criminal 
justice.  Egerton,  the  Solicitor  General,  although  of 
great  learning  and  unexceptionable  character,  could  not 
decently  have  been  put  over  his  head;  Coke  was 
already  known  to  be  an  incarnation  of  the  common  law 
of  England,  but  he  could  not  be  placed  in  such  an 
exalted  situation  without  having  before  served  the 
crown,  or  given  any  sure  earnest  of  sound  political 
principles ;  and  Sir  Edmund  Anderson,  the  Chief 
Justice  of  the  Common  Pleas,  refused  to  give  up  his 
"  pillow  "  for  the  thorns  of  the  Queen's  Bench.  None 

*  1  St.  Tr.  126^.1272. 


A.D.  1592.  CHIEF  JUSTICE  POPHAM.  259 

of  the  puisnies  were  considered  competent  to  preside  on 
a  trial  for  high  treason,  or  to  deliver  a  political  harangue 
in  the  Star  Chamber.     The  choice,  therefore,    po  ham  {g 
fell  upon  Popham,  who,  on  the  8th  of  June,    made  chief 

.        ,     i  .  .,  m  •    e>    -r       j."  f     Justice  of 

1592,  received  his  writ  as  Chiet  Justice  ot    the  King's 
England,  was  knighted  by   the  Queen   at 
Greenwich,  and  was  sworn  of  the  Privy  Council  along 
with  Lord  Keeper  Puckering. 

He  held  the  office  fifteen  years,  during  the  end  of 
this  and  the  beginning  of  the  succeeding  reign,  and  he 
was  supposed  to  conduct  himself  in  it  very  creditably. 
The  reproach  urged  against  him  was,  extreme  severity 
to  prisoners.  He  was  notorious  as  a  "  hanging  judge." 
Not  only  was  he  keen  to  convict  in  cases  prosecuted  by 
the  Government,  but  in  ordinary  larcenies,  and,  above 
all,  in  highway  robberies,  there  was  little  chance  of  an 
acquittal  before  him.  After  a  verdict  of  guilty  in 
capital  cases,  he  uniformly  let  the  law  take  its  course  : 
even  in  clergiable  felonies  he  was  very  strict  about  the 
"  neck  verse ;"  and  those  who  were  most  excusable,  on 
account  of  ignorance,  he  saw  without  remorse  led  off  to 
the  gallows,  although  if  they  had  been  taught  to  read 
they  would  have  escaped  with  a  nominal  punishment. 
To  such  a  degree  had  "  damned  custom "  brazed  his 
feelings.  Some,  indeed,  who  probably  refine  too  much, 
have  supposed  that  he  was  very  desirous  of  showing  to 
the  public  that  he  had  no  longer  any  sympathy  with 
those  who  set  the  law  at  defiance,  and  that  in  this  way 
he  thought  he  made  atonement  to  society  for  the  evil 
example  which  formerly  he  had  himself  set. 

On  the  trial  of  actions  between  party  and  party  he  is 
allowed  by  all  to  have  been  strictly  impartial,  and  to 
have  expounded  the  law  clearly  and  soundly.  There  are 
many  of  his  judgments  in  civil  cases  preserved,  showing 
that  he  well  deserved  the  reputation  which  he  enjoyed, 
but  they  are  all  of  such  a  technical  character  that  they 

s  2 


260  EEIGN  OF  QUEEN  ELIZABETH.        CHAP.  VI. 

would  be  uninteresting,  and  indeed  unintelligible,  to 
the  general  reader.  In  speaking  of  him  farther  as  a 
Judge,  I  must,  therefore,  confine  myself  to  his  appear- 
ances in  the  state  trials  which  took  place  while  he  was 
Chief  Justice  to  Elizabeth  and  James. 

The  most  glorious  day  of  his  life  was  Sunday,  the 
AD  leoi  ^*k  of  February,  1601,  when  he  showed  a 
His  gallant  courage,  a  prudence,  and  a  generosity  which 

conduct  in  •,  ,     f  ,  j         i_  • 

Essex's  re-  ought  tor  ever  to  render  his  name  respect- 
beiiion.  abla  Elizabeth,  in  her  palace  at  Whitehall, 
was  informed  that  the  young  Earl  of  Essex  had  madly 
fortified  his  house  in  the  Strand,  and  had  planned  an 
insurrection  in  the  City  of  London.  She  immediately 
ordered  Chief  Justice  Popham  to  accompany  Ellesmere, 
the  Lord  Keeper,  and  summon  the  rebels  to  surrender. 
They  went  unattended,  except  by  their  mace-bearers. 
Essex  having  complained  of  ill  treatment  from  his 
enemies,  the  Chief  Justice  said  calmly,  "  The  Queen 
will  do  impartial  justice."  He  then,  in  the  Queen's 
name,  required  the  forces  collected  in  the  court-yard  to 
lay  down  their  arms  and  to  depart,  when  a  cry  burst 
out  of  "  Kill  them !  kill  them  !"  The  Earl  rescued 
them  from  violence,  but  locked  them  up  in  a  dungeon, 
while  he  himself  sallied  forth,  in  hopes  of  successfully 
raising  the  standard  of  rebellion  in  the  City  of  London. 
After  being  kept  in  solitary  confinement  till  the  after- 
noon, Popham  was  offered  his  liberty  on  condition  that 
the  Lord  Keeper  should  remain  behind  as  a  hostage; 
but  the  gallant  Chief  Justice  indignantly  refused  this 
offer,  and  declared  that  he  would  share  the  fate  of  his 
friend.  At  length,  upon  news  arriving  of  Essex's 
failure  in  the  City,  they  were  both  liberated,  and  made 
good  their  retreat  to  Whitehall  in  a  boat. 

The  trial  of  Essex  coming  on  before  the  Lord  High 
Steward  and   Court  of  Peers,  Popham  was 

Essex's  trial.    .       ,  3        .  .  . 

both  assessor  and  witness.     First  a  written 


A.D.  1602.  CHIEF  JUSTICE  POPHAM.  261 

deposition,  signed  by  him,  was  read,  and  then  he  was 
examined  viva  voce.  He  gave  his  evidence  with  temper- 
ance and  caution,  affording  a  striking  contrast  to  the 
coarse  vituperation  of  Coke,  the  Attorney  General,  and 
the  ingenious  sophistry  of  Bacon,  who  seemed  to  thirst 
for  the  blood  of  his  benefactor.*  Popharn,  though  so 
severe  against  common  felons,  was  touched  by  the 
misfortune  of  the  high-born  Essex,  felt  some  gratitude 
for  the  tenderness  he  had  experienced  when  in  his 
power,  and  recommended  a  pardon,  which  would  have 
been  extended  to  him  if  the  fatal  ring  had  duly  reached 
the  hands  of  Elizabeth. 

When  Sir  Christopher  Blunt  and  several  other  com- 
moners were  tried  for  being  concerned  in  this   Mar.  1602. 
rebellion,  Chief  Justice  Popham  presided  as    E^?/^ 
Judge,  and,  at  the  same  time,  gave  evidence   complices, 
as  a  witness,  mixing  the  two  characters  in  a  manner 
that  seems  to  us  rather  incongruous.     He  began  with 
laying  down  the  law  : — 

Lord  C.  J. :  "  Whenever  the  subject  rebelleth  or  riseth  in  a 
forcible  manner  to  overrule  the  royal  will  and  power  of  tba 
sovereign,  the  wisdom  and  foresight  of  the  laws  of  this  land 
maketh  this  construction  of  his  actions,  that  he  intended  to  de- 
prive the  sovereign  both  of  crown  and  life.  If  many  do  conspire 
to  execute  treason  against  the  prince  in  one  manner,  and  some 
of  them  do  execute  it  in  another  manner,  yet  their  act,  though 
different  in  the  manner,  is  the  act  of  all  of  them  who  conspire, 
by  reason  of  the  general  malice  of  the  intent." 

Afterwards  he  entered  into  a  dialogue  with  the  wit- 
nesses and  with  the  prisoners  respecting  the  occur- 
rences he  had  witnessed  at  Essex  House.  For  example : 
L.  C.  J. :  "  Sir  Christopher,  I  should  like  to  know  why 
you  stood  at  the  great  chamber  door,  with  muskets 
charged  and  matches  in  your  hands,  which  I  well  dis- 
cerned through  the  key-hole?"  He  repeatedly  put 

*  Camd.  Eliz.  vol.  ii.  225.  231 ;  1  St.  Tr.  1333-1360. 


262  KEIGN  OF  QUEEN  ELIZABETH.        CHAP.  VI. 

similar  questions,  and  gave  his  own  version  of  the 
different  vicissitudes  of  the  day  till  he  was  liberated. 
He  then  summed  up  to  the  jury,  commenting  on  his 
own  evidence,  and,  after  the  verdict  of  GUILTY,  he  thus 
addressed  the  prisoners  : — 

"  I  am  sorry  to  see  any  so  ill  affected  to  the  state  as  to  become 
plotters  and  practisers  against  it.  And  my  grief  is  the  more  in 
this — men  of  worth,  service,  and  learning  are  the  actors  in  the 
conspiracy.  Shall  it  be  said  in  the  world  abroad  that,  after  forty- 
three  years'  peace  under  so  gracious  and  renowned  a  prince,  we 
Englishmen  are  become  weary  of  her  government,  while  she  is 
admired  by  all  the  world  beside  ?  Some  of  you  are  Christians  ; 
and  where,  I  pray  you,  did  you  ever  read  or  hear  that  it  was 
lawful  for  the  subject  to  command  or  constrain  his  sovereign  ? 
It  is  a  thing  against  the  law  of  God  and  of  all  nations.  Although 
your  example  be  pitiful,  yet  by  this  let  all  men  know  and  learn 
how  high  all  actions  treasonable  do  touch,  and  what  they  tend  to. 
Now  attend  to  the  care  of  your  souls,  to  keep  them  from  death, 
whereof  sin  is  the  cause  ;  and  sin  is  not  removed  but  by  repent- 
ance, which  being  truly  and  heartily  performed,  then  follows  what 
the  prophet  David  spake  of,  '  Blessed  are  they  to  whom  God 
impute th  no  sin.' " 

Finally,  he  pronounced  upon  them  the  revolting 
sentence  in  high  treason,  and  they  were  executed 
accordingly.* 

On  the  death  of  Queen  Elizabeth,  Popham  joined  in 
acknowledging  the  title  of  the  King  of  Scots 
1603*  24'       as  lawful  heir  to  the  throne,  and  he  was  re- 
appointed  to  his  office  of  Chief  Justice  of  the 
King's   Bench  when   the   new   Sovereign   arrived   in 
April  11         London.      We  are  told  that  he   still  main- 
tained his  reputation  for  a  strict  enforcement 
of  the  criminal  law,  and  did  not  suffer  the  sword  of 
justice  to  rust  in  its  scabbard. 

"  In  the  beginning  of  the  reigu  of  King  James,  Popham 's  jus- 
tice was  exemplary  on  thieves  and  robbers.  The  land  then 
swarmed  with  people  which  had  been  soldiers,  who  had  never 

*  1  St.  Tr.  1400-1452. 


A.D.  1603.  CHIEF  JUSTICE  POPHAM.  263 

gotten  (or  quite  forgotten)  any  other  vocation.  Hard  it  was  for 
peace  to  feed  all  the  idle  mouths  which  a  former  war  did  breed : 
being  too  proud  to  beg,  too  lazy  to  labour,  those  infested  the 
highways  with  their  felonies ;  some  presuming  on  their  multi- 
tudes, as  the  robbers  on  the  northern  road,  whose  knot  (otherwise 
not  to  be  untyed)  Sir  John  cut  asunder  with  the  sword  of 
justice."* 

He  presided  at  the  trial  of  Sir  Walter  Raleigh,  for 
being  concerned  in  the  plot  to  place  the  Lady   November 
Arabella  Stuart    on    the    throne ;    but  the   Sir  Waiter 
greatest  part  of  the  disgrace  which  then  fell   before  Pop- 
on  the  administration  of   justice  was  truly 
imputed  to  Sir  Edward  Coke,  the  Attorney  General, 
who  will  continue  to  be  quoted  to  all  generations  for 
the  brutality  of  character  he  exhibited  in  vituperating 
his  gallant  victim.     The  Chief  Justice  at  first  tried  to 
restore   good   humour  between   the  prisoner   and  the 
public  prosecutor,  by  making  an  apology  for  the  eager- 
ness of  both : — 

Popham,  C.  J.  :  "  Sir  Walter  Baleigh,  Mr.  Attorney  speaketh 
out  of  the  zeal  of  his  duty  for  the  service  of  the  King,  and  you 
for  your  life ;  be  valiant  on  both  sides." 

Afterwards,  when  Coke  behaved  as  if  he  had  con- 
sidered this  an  exhortation  to  insult  the  man  whom  the 
law  still  presumed  to  be  innocent,  Popham  joined  with 
the  other  judges  in  trying  to  repress  him,  till  "  Mr. 
Attorney  sat  down  in  a  chafe,  and  would  speak  no 
more."  Thereupon  they  were  all  afraid  that  the  King 
would  be  displeased,  and  "  they  urged  and  entreated 
him  to  go  on." 

The  rulings  of  Chief  Justice  Popham  at  this  trial 
would  seem  very  strange  in  our  day,  but  in  his  they 
caused  no  surprise  or  censure.  In  the  first  place,  he 
decided — against  an  able  argument  from  the  prisoner, 
who  conducted  his  own  defence  —  that,  although  the 

*  Aubrey,  vol.  iii.  p.  490. 


264  REIGN  OF  JAMES  I.  CHAP.  VI. 

charge  was  high  treason,  it  was  sufficiently  supported 
by  the  uncorroborated  evidence  of  a  single  witness ; 
and,  secondly,  that  there  was  no  occasion  for  this  wit- 
ness to  be  produced  in  court,  or  sworn,  and  that 
a  written  confession  by  him,  accusing  himself  and  im- 
plicating the  prisoner,  was  enough  to  satisfy  all  the 
requisitions  of  common  and  statute  law  on  the  subject. 
Kaleigh  still  urged  that  Lord  Cobham,  his  sole  accuser, 
should  be  confronted  with  him : — 

Popham,  C.  J. :  "  This  thing  cannot  be  granted,  for  then  a 
number  of  treasons  should  flourish ;  the  accuser  may  be  drawn  in 
practice  whilst  he  is  in  person."  Raleigh :  "  The  common  trial 
in  England  is  by  jury  and  witnesses."  Popham,  C.  J. :  "  If  three 
conspire  a  treason,  and  they  all  confess  it,  here  is  never  a  witness, 
and  yet  they  are  condemned."  Italeigh :  "  I  know  not  how  you 
conceive  the  law."  Popham,  C.  J. :  "  Nay,  we  do  not  conceive  the 
law,  but  we  know  the  law."  Raleigh :  "  The  wisdom  of  the  law 
of  God  is  absolute  and  perfect.  Hoc  fac  et  vives,  &c.  Indeed, 
where  the  witness  is  not  to  be  had  conveniently,  I  agree  with 
you :  but  here  he  may  ;  he  is  alive,  and  under  this  roof.  Susannah 
had  been  condemned  if  Daniel  had  not  cried  out,  '  Will  you  con- 
demn an  innocent  Israelite  without  examination  or  knowledge 
of  the  truth  ? '  Remember  it  is  absolutely  the  commandment  of 
God :  '  If  a  false  witness  rise  up,  you  shall  cause  him  to  be  brought 
before  the  judges :  if  he  be  found  false,  he  shall  have  the  punish- 
ment the  accused  should  have  had.'  It  is  very  easy  for  my 
Lord  to  accuse  me,  and  it  may  be  a  means  to  excuse  himself." 
Popham,  C.  J. :  "  There  must  not  such  gap  be  opened  for  the 
destruction  of  the  King  as  there  woiild  be  if  we  should  grant 
this.  You  plead  hard  for  yourself,  but  the  laws  plead  as  hard 
for  the  King."  Raleigh :  "  The  King  desires  nothing  but  the 
knowlege  of  the  truth,  and  would  have  no  advantage  taken  by 
severity  of  the  law.  If  ever  we  had  a  gracious  King,  now  we 
have;  I  hope,  as  he  is,  so  are  his  ministers.  If  there  be  a  trial 
in  an  action  for  a  matter  but  of  five  marks  value,  a  witness  must 
be  produced  and  sworn.  Good  my  Lord,  let  my  accuser  come 
face  to  face,  and  see  if  he  will  call  God  to  witness  for  the  truth 
of  what  he  has  alleged  against  me."  Popham,  C.  J. :  "  You  have 
no  law  for  it." 

In  examining  the  mode  in  which  criminal  trials  were 
then  conducted,  it  is  likewise  curious  to  observe  that 


A.D.  1603.  CHIEF  JUSTICE  POPHAM.  265 

the  practice  of  interrogating  the   accused,  which  our 
neighbours    the    French    still    follow    and   practice  of 
praise,  prevailed  in  England.     Many   ques-   questions  to 
tions  were  put  to  Sir  Walter  Ealeigh  on  this   f^^f 
occasion,   in   the   hope   of   entrapping  him.    trials- 
On  account  of  his  great  acuteness,  they  were  rather 
of  service  to  him ;  but  they  show  how  unequally  this 
mode  of  striving  to  get  at  truth  must  operate,  and  how 
easily  it  may  be  abused.     The  verdict  of  GUILTY  being 
recorded,  Lord  Chief  Justice  Popham  said, — 

"  I  thought  I  should  never  have  seen  this  day,  Sir  Walter,  to 
have  stood  in  this  place  to  give  sentence  of  death  against  you  ; 
because  I  thought  it  impossible  that  one  of  so  great  parts  should 
have  fallen  so  grievously.  God  hath  bestowed  on  you  many 
benefits.  You  had  been  a  man  fit  and  able  to  have  served  the 
King  in  good  place.  It  is  best  for  a  man  not  to  seek  to  climb  too 
high,  lest  he  fall ;  nor  yet  to  creep  too  low,  lest  he  be  trodden  on. 
It  was  the  poesy  of  the  wisest  and  greatest  councillor  in  our  time 
in  England,  '  In  medio  spatio  mediocria  firma  locantur'*  You 
have  been  taken  for  a  wise  man,  and  so  have  shown  wit  enough 
this  day.  Two  vices  have  lodged  chiefly  in  you ;  one  is  an  eager 
ambition,  the  other  corrupt  covetousness.  Your  conceit  of  not 
confessing  anything  is  very  inhuman  and  wicked.  My  Lord  of 
Essex,  that  noble  earl  that  is  gone,  who,  if  he  had  not  been  carried 
away  by  others,  had  lived  in  honour  to  this  day  among  us,  con- 
fessed his  offences,  and  obtained  mercy  of  the  Lord ;  for  I  am 
verily  persuaded  in  my  heart  he  died  a  worthy  servant  of  God. 
This  world  is  the  time  of  confessing,  that  we  may  be  absolved  at 
the  day  of  judgment.  You  have  no  just  matter  of  complaint  that 
you  had  not  your  accuser  come  face  to  face  ;  for  such  an  one  is 
easily  brought  to  retract  when  he  seeth  there  is  no  hope  of  his 
own  life.  It  is  dangerous  that  any  traitors  should  have  access  to 
or  conference  with  one  another :  when  they  see  themselves  must 
die,  they  will  think  it  best  to  have  their  fellow  live,  that  he  may 
commit  the  like  treason  again,  and  so  in  some  sort  seek  revenge. 
Your  case  being  thus,  let  it  not  grieve  you  if  I  speak  a  little  out 
of  zeal  and  love  to  your  good.  You  have  been  taxed  by  the 
world  with  the  defence  of  the  most  heathenish  and  blasphemous 
opinions,  which  I  list  not  to  repeat,  because  Christian  ears  cannot 
endure  to  hear  them,  nor  the  authors  and  maintainers  of  them  be 
suffered  to  live  in  any  Christian  commonwealth.  You  shall  do 

*  Posy,  or  motto,  of  Lord  Keeper  Bacon. 


266  REIGN  OF  JAMES  I.  CHAP.  VI. 

well  before  you  go  out  of  the  world  to  give  satisfaction  therein, 
and  not  to  die  with  these  imputations  upon  you.  Let  not  any 
devil  persuade  you  to  think  there  is  no  eternity  in  heaven ;  for, 
if  you  think  thus,  you  shall  find  eternity  in  hell  fire." 

Sentence  of  death,  was  then  pronounced.  But,  not- 
withstanding Ealeigh's  unpopularity  from  the  part  he 
had  taken  against  the  Earl  of  Essex,  the  hard  treat- 
ment he  had  experienced  on  his  trial  excited  such 
general  sympathy  in  his  favour,  that  his  life  was 
spared  for  the  present ;  and  the  sad  task  was  reserved 
to  another  Chief  Justice,  after  the  lapse  of  many  years, 
to  award  that  the  sentence  should  be  carried  into  exe- 
cution.* 

Guy  Fawkes,  and  his  associates  implicated  in  the 
Gunpowder  Plot,  were  tried  before  Popham,  but  there 
was  such  clear  evidence  against  them,  that  no  question 

of  law  arose  during  the  trial,  and  we  are 
3606.  The  merely  told  that  "the  Lord  Chief  Justice  of 
Pk>tp°wder  England,— after  a  grave  and  prudent  relation 

and  defence  of  the  laws  made  by  Queen  Eliza- 
beth against  recusants,  priests,  and  receivers  of  priests, 
together  with  the  several  occasions,  progresses,  an'd 
reasons  of  the  same,  and  having  plainly  demonstrated 
and  proved  that  they  were  all  necessary,  mild,  equal, 
and  moderate,  and  to  be  justified  to  all  the  world, — 
pronounced  judgment."  f 

Popham's  last  appearance  in  a  case  of  public  interest 

was  upon   the    trial   of  Garnet,   the   Supe- 

March  28,  *  ...  ... 

1606.  Trial  rior  of  the  Jesuits.  Against  mm  the  evi- 
Supenor  of  dence  was  very  slender,  and  the  Chief  Justice 
the  Jesuits.  wag  ^Ug^  to  eke  it  out  by  unwary  answers 

to  dexterously-framed  interrogatories.  He  succeeded 
so  far  as  to  make  the  prisoner  confess  that  he  was 
aware  of  the  plot  from  communications  made  to  him 
in  the  confessional;  so  that,  in  point  of  law,  he  was 

*  2  St.  Tr.  1-62.  t  Ibid.  194. 


A.D.  1606.  CHIEF  JUSTICE  POPHAM.  267 

guilty  of  misprision  of  treason,  by  not  giving  infor- 
mation of  what  he  had  so  learned :  but  Garnet  still 
firmly  denied  ever  having  taken  any  part  in  the  de- 
vising of  the  plot,  or  having  in  any  manner  encouraged 
it.  At  last,  he  said  very  passionately, — 

"  My  Lord,  I  would  to  God  I  had  never  known  of  the  Powder 
Treason ;  but,  as  He  is  my  judge,  I  would  have  stopped  it  if  I 
could."  Popham,  C.  J. :  "  Garnet,  you  are  Superior  of  the  Jesuits ; 
and  if  you  forbid,  must  not  the  rest  obey?  Was  not  Greenwell 
with  you  half  an  hour  at  Sir  Everard  Digby's  house  when  you 
heard  of  the  discovery  of  your  treason  ?  And  did  you  not  there 
confer  and  debate  the  matter  together  ?  Did  you  not  stir  him 
up  to  go  to  the  rebels  and  encourage  them  ?  Yet  you  seek  to 
colour  all  this  :  but  that  is  a  mere  shift  in  you.  Catesby  was 
never  far  from  you,  and,  by  many  apparent  proofs  and  evident 
presumptions,  you  were  in -every  particular  of  this  action,  and 
directed  and  commanded  the  actors ;  nay,  I  think  verily  you 
were  the  chief  that  moved  it."  Garnet:  "No,  my  Lord,  I 
did  not."  The  report  adds,  "Then  it  was  exceedingly  well 
urged  by  my  Lord  Chief  Justice  how  he  writ  his  letters  for 
Winter,  Fawkes,  and  Catesby,  principal  actors  in  this  matchless 
treason,  and  how  he  kept  the  two  bulls  to  prejudice  the  King, 
and  to  do  other  mischief  in  the  realm  ;  and  how  he  afterwards 
burnt  them  when  he  saw  the  King  peaceably  come  in,  there 
being  no  hope  to  do  any  good  at  that  time." 

This  was  only  an  interlocutory  dialogue  during  the 
trial,  and  no  proof  had  been  given  of  the  facts  to  which 
the  Judge,  who  was  supposed  to  be  counsel  for  the  pri- 
soner, had  referred.  His  summing-up  to  the  jury  is  not 
reported;  and  we  are  only  told  that,  the  verdict  of  GUILTY 
being  found,  "  Then  the  Lord  Chief  Justice,  making  a 
pithy  preamble  of  all  the  apparent  proofs  and  presump- 
tions of  his  guiltiness,  gave  judgment  that  he  should  be 
drawn,  hanged,  and  quartered."*  There  was  a  strong 
temptation  to  all  who  desired  Court  favour  to  show  ex- 
traordinary zeal  on  this  occasion,  for  the  fate  of  Garnet 
had  excited  deep  interest  all  over  Europe, — and  the 
King  himself,  a  large  number  of  the  nobility,  and  many 

*  2  St.  Tr.  21T-358. 


268  EEIGN  OF  JAMES  I.  CHAP.  VI. 

members  of  the  House  of  Commons,  were  present  at  the 
trial. 

Popham,  who  had  hitherto  retained  wonderful  vigour, 

both  of  body  and  mind,  was  soon  after  struck 
Popbam.  ky  a  mortal  disease,  and  on  the  1st  of  June, 

1607,  he  expired,  in  the  seventy-second  year 
of  his  age.  According  to  the  directions  left  in  his 
will,  he  was  buried  at  Wellington,  the  place  of  his 
nativity. 

I  believe  that  no  charge  could  justly  be  made  against 
his  purity  as  a  judge;  yet,  from  the  recollection  of  his 
early  history,  some  suspicion  always  hung  about  him, 
and  stories,  probably  quite  groundless,  were  circulated 
to  his  disadvantage.  Of  these,  we  have  a  specimen  in 
the  manner  in  which  he  was  said  to  have  become  the 
owner  of  Littlecote  Hall,  which  in  a  subsequent  age 
was  the  head-quarters  of  the  Prince  of  Orange,  and 
which  Macaulay  describes  as  "  a  manor  house,  renowned 
down  to  our  own  times,  not  more  on  account  of  its 
venerable  architecture  and  furniture,  than  on  account 
of  a  horrible  and  mysterious  crime  which  was  perpe- 
trated there  in  the  days  of  the  Tudors."  *  The  earliest 

*  History  of  England,  ii.  542.    In  the  At  one  end  of  the  hall  is  a  range  of  coats 

notes  to  the  5th  canto  of  ROKEBY,  there  of  mail  and  helmets,  and  there  is  on 

is  an  interesting  account  of  the  appear-  every  side  abundance  of  old-fashioned 

ance  which  the  place  now  presents,  and  pistols  and  guns,  many  of  them  with 

which  is  probably    exactly    the    same  matchlocks.  Immediately  below  the  cor- 

which  it  presented  when  it  was  occupied  nice  hangs  a  row  of  leathern  jerkins, 

by  Lord  Chief  Justice  Popham:— "Lit-  made  in  the  form  of  a  shirt,  supposed  to 

tlecote  House  stands  in  a  low  and  lonely  have  been  worn  as  armour  by  the  vas- 

situation.     It  is  an  irregular  building  sals.  A  large  oak  table,  reaching  nearly 

of  great  antiquity,  and  was  probably  from  one  end  of  the  room  to  the  other, 

erected  about  the  time  of  the  termination  might  have  feasted  the  whole  neighbour- 

of  feudal  warfare,  when  defence  came  no  hood,  and  an  appendage  to  one  end  of  it 

longer  to  be  an  object  in  a  country  man-  made  it  answer  at  other  times  for  the  old 

sion.    Many  circumstances,  however,  in  game  of  shuffle-board.  The  rest  of  the  fur- 

the  interior  of  the  house,  seem  appro-  niture  is  in  a  suitable  style, particularly 

priate  to  feudal  times.    The  hall  is  very  an  arm-cJiair  of  cumbrous  tvorkman- 

spacious,  floored  with  stones,  and  lighted  ship,  constructed  of  u-ood,  with  a  high 

by  large  transom  windows.    Its  walls  lack  and  triangular  seat,  said  to  have 

are  hung  with  old  military  accoutrements  been  used  by  Judge  Popham  in  the  reign 

but  have  long  been  left  a  prey  to  rust,  of  Elizabeth.    In  one  of  the  bedchain- 


A.r>.  1606. 


CHIEF  JUSTICE  POPHAM. 


269 


narrative  that  I  find  of  this  atrocity,  and  of  Lord 
Chief  Justice  Popham's  connection  with  it,  is  by 
Aubrey : — 

"  Sir  Richard  Dayrell,   of  Littlecot,  in  com.  Wilts,  having 
got  his  lady's  waiting  woman    with   child,    when    Legendre. 
her  travell  came  sent  a  servant)  with  a  horse  for  a    specting  the 

midwife,  whom  he  was  to  bring  hoodwinked.    She    m*nneF in 

ii.  i    i      j    it.  T-J  which  he 

was  brought,  and   layd  the  woman ;  but  as  soon    acquired  the 

as  the  child  was  borne,  she  saw  the  knight  take  the  manor  of 
child  and  murther  it,  and  burn  it  in  the  fire  in  the  Littl( 
chamber.  She  having  done  her  businesse  was  extraordinarily  re- 
warded for  her  paines,  and  went  blindfold  away.  This  horrid 
action  did  much  run  in  her  mind,  and  she  had  a  desire  to  dis- 
cover it,  but  knew  not  where  'twas.  She  considered  with  herself 
the  time  she  was  riding,  and  how  many  miles  she  might  have 
rode  at  that  rate  in  that  time,  and  that  it  must  be  some  great 
person's  house,  for  the  ropme  was  twelve  foot  high ;  and  she 
should  know  the  chamber  if  she  sawe  it.  She  went  to  a  justice 
of  peace,  and  search  was  made.  The  very  chamber  found.  The 
knight  was  brought  to  his  tryall ;  and,  to  be  short,  this  Judge 
had  this  noble  house,  parke,  and  manor,  and  (I  thinke)  more, 
for  a  bribe  to  save  his  life.  Sir  John  Popham  gave  sentence 
according  to  lawe,  but  being  a  great  person  and  a  favourite  he 
procured  a  noli prosequi"* 


bers,  which  you  pass  in  going  to  the 
long  gallery  hung  with  portraits  in  the 
Spanish  dresses  of  the  16th  century,  is  a 
bedstead  with  blue  furniture,  which  time 
has  now  made  dingy  and  threadbare, 
and  in  the  bottom  of  one  of  the  bed  cur- 
tains you  are  shown  a  place  where  a 
small  piece  has  been  cut  out  and  sewn  in 
again,  serving  to  identify  the  same  with 
the  horrible  story  belonging  to  it." 

*  Aubrey,  Hi.  493.  Subsequent  writers 
have  no  bstter  ground  to  proceed  upon, 
and  it  would  be  unfair  to  load  the 
memory  of  a  judge  with  the  obloquy  of 
so  great  a  crime  upon  such  unsatisfac- 
tory testimony.  Walter  Scott  publishes 
the  following  version  of  the  story,  "  ex- 
actly as  told  in  the  country:"—" It  was 
on  a  dark  night  in  the  month  of  No- 
vember, that  an  old  midwife  sat  musing 
by  her  cottage  fireside,  when  on  a  sudden 
she  was  startled  by  a  loud  knocking  at 
the  door.  On  opening  it  she  found  a 


horseman,  who  told  her  that  her  assist- 
ance was  required  immediately  by  a 
person  of  rank,  and  that  she  should  be 
handsomely  rewarded,  but  that  there 
were  reasons  for  keeping  the  affair  a 
strict  secret,  and  therefore  she  must 
submit  to  be  blindfolded,  and  to  be  con- 
ducted  in  that  condition  to  the  bed- 
chamber of  the  lady.  With  some  hesi- 
tation the  midwife  consented;  the 
horseman  bound  her  eyes,  and  placed 
her  on  a  pillion  behind  him.  After 
proceeding  in  silence  for  many  miles, 
through  rough  and  dirty  lanes,  they 
stopped,  and  the  midwife  was  led  into  a 
house,  which,  from  the  length  of  her 
walk  through  the  apartments,  as  well  as 
the  sounds  about  her,  she  discovered  to 
be  the  seat  of  wealth  and  power.  When 
the  bandage  was  removed  from  her  eyes, 
she  found  herself  in  a  bedchamber,  in 
which  were  the  lady  on  whose  account 
she  had  been  sent  for,  and  a  man  of  a 


270 


REIGN  OF  JAMES  I. 


CHAI-.  VI. 


Popham's  portrait  represented  him  as  "a  hudge, 
heavy,  ugly  man ;"  and  I  am  afraid  he  would  not 
appear  to  great  advantage  in  a  sketch  of  his  moral 
qualities,  which,  lest  I  should  do  him  injustice,  I  shall 
not  attempt.  In  fairness,  however,  I  ought  to  mention 
that  he  was  much  commended  in  his  own  time  for  the 
number  of  thieves  and  robbers  he  convicted  and  exe- 
cuted ;  and  it  was  observed  that,  "  if  he  was  the  death 
of  a  few  scores  of  such  gentry,  he  preserved  the  lives 
and  livelihoods  of  more  thousands  of  travellers,  who 
owed  their  safety  to  this  Judge's  severity."  * 


haughty  and  ferocious  aspect.  The  lady 
was  delivered  of  a  fine  boy.  Immediately, 
the  man  commanded  the  midwife  to  give 
him  the  child,  and,  catching  it  from  her, 
he  hurried  across  the  room  and  threw  it 
on  the  back  of  the  fire  that  was  blazing 
in  the  chimney.  The  child,  however, 
was  strong,  and  by  its  struggles  rolled 
itself  off  upon  the  hearth,  when  the 
ruffian  again  seized  it  with  fury,  and,  in 
spite  of  the  intercession  of  the  midwife, 
and  the  more  piteous  entreaties  of  the 
mother,  thrust  it  under  the  grate,  and, 
raking  the  live  coals  upon  it,  soon  put 
an  end  to  its  life.  The  midwife,  after 
spending  some  time  in  affording  all  the 
relief  in  her  power  to  the  wretched 
mother,  was  told  that  she  must  be  gone. 
Her  former  conductor  appeared,  who 
again  bound  her  eyes,  and  conveyed  her 
behind  him  to  her  own  home ;  he  then 
paid  her  handsomely  and  departed.  The 
midwife  was  strongly  agitated  by  the 
horrors  of  the  preceding  night,  and  she 
immediately  made  a  deposition  of  the 
fact  before  a  magistrate.  Two  circum- 
stances afforded  hopes  of  detecting  the 
house  in  which  the  crime  had  been  com- 
mitted: one  was,  that  the  midwife,  as 
she  sat  by  the  bed-side,  had,  with  a  view 
to  discover  the  place,  cut  out  a  piece  of 
the  bed  curtain  and  sewn  it  in  again ; 
the  other  was,  that,  as  she  descended  the 
staircase,  she  had  counted  the  steps. 
Some  suspicion  fell  upon  one  Darrell,  at 
that  time  the  proprietor  of  Littlecote 
House  and  the  domain  around  it.  The 


house  was  examined  and  identified  by 
the  midwife,  and  Darrell  was  tried  at 
Salisbury  for  the  murder.  By  corrupting 
the  judge  he  escaped  the  sentence  of  the 
law,  but  broke  his  neck  by  a  fall  from 
his  horse  in  hunting,  in  a  few  months 
after.  The  place  where  this  happened 
is  still  known  by  the  name  of  '  Barrel  1's 
stile,'  and  is  dreaded  by  the  peasant 
whom  the  shades  of  evening  have  over- 
taken on  his  way." 

Walter  Scott  founds  a  beautiful  ballad 
on  this  legend,  but— instead  of  a  mid- 
wife, skilled  in  the  obstetric  art,  to  assist 
the  lady — introduces  a  more  poetical 
character,  "a  friar  of  orders  gray,"  to 
shrive  her,  and  he  sacrifices  the  mother 
instead  of  the  child, — without  saying  a 
word  of  the  trial  before  Popham.  I 
copy  the  last  three  stanzas : — 

"The  shrift  is  done,  the  friar  is  gone 

Blindfolded  as  he  came : 
Next  morning  all  in  Littlecote  Hall 
Were  weeping  for  their  dame. 

"  Wild  Darrell  is  an  altered  man ; 

The  village  crones  can  tell, 
He  looks  pale  as  clay,  and  strives  to 

pray, 
If  he  hears  the  convent  bell. 

"  If  prince  or  peer  cross  Darrell's  way, 

He'll  beard  him  in  his  pride  — 

If  he  meet  a  friar  of  orders  gray, 

He  droops  and  turns  aside." 

*  Aubrey,  iii.  498. 


A.D.  1606.  CHIEF  JUSTICE  POPHAM.  271 

Popham  is  to  be  reckoned  among  the  English  Judges 
who  were  authors,  having  compiled  a  volume 

i-T.  *   v       a      ••  t~'i       i.  His  Reports. 

01  Reports  of  his  decisions  while  he  was 
Chief  Justice  of  the  King's  Bench,  beginning  in  the 
34th  &  35th  of  Elizabeth.  Being  originally  in  French, 
an  English  translation  of  them  was  published  in  the 
year  1682,  but  they  are  wretchedly  ill  done,  and  they 
are  not  considered  of  authority.  We  should  have  been 
much  better  pleased  if  he  had  given  us  an  account  of 
his  exploits  when  he  was  chief  of  a  band  of  freebooters. 
He  left  behind  him  the  greatest  estate  that  ever  had 
been  amassed  by  any  lawyer — some  said  as  much  as 
10,OOOZ.  a  year;  but  as  it  was  not  supposed  to  be 
all  honestly  come  by,  and  he  was  reported  even  to  have 
begun  to  save  money  when  "  the  road  did  him  justice," 
there  was  a  prophecy  that  it  would  not  prosper,  and 
that  "  what  was  got  over  the  Devil's  back  would  be 
spent  under  his  belly."  Accordingly,  we  have  the 
following  account  of  his  son  John : — "  He  was  the 
greatest  house-keeper  in  England;  would  have  at 
Littlecote  four  or  five  or  more  lords  at  a  time.  His 
wife,  who  had  been  worth  to  him  6000Z.,  was  as  vaino 
as  he,  and  sayd  '  that  she  had  brought  such  an  estate, 
and  she  scorned  but  she  would  live  as  high  as  he  did;' 
and  in  her  husband's  absence  would  have  all 
the  woemen  of  the  countrey  thither,  and 
feaste  them,  and  make  them  drunke,  as  she  would  be 
herselfe.  They  both  dyed  by  excesse  and  by  luxury ; 
and  by  cosenage  of  their  servants,  when  he  dyed,  there 
was  a  hundred  thousand  pounds  in  debt.  This  was  his 
epitaph, — 

"  Here  lies  he  who  not  long  since 
Kept  a  table  like  a  prince, 
Till  Death  came  and  tooke  awaye, 
Then  ask't  the  old  man  What's  to  pay  f"* 

*  Aubrey,  iii.  4  94. 


272  KEIGN  OF  JAMES  I.  CHAP.  VI. 

The  family  retained  a  remnant  of  the  Chief  Justice's 
possessions  at  Littlecote  for  two  or  three  generations, 
and  then  became  extinct. 


The  next  Chief  Justice  of  England  affords  a  striking 
sir  Thomas  proof  that  though  dulness  be  often  considered 
r?vafofg> the  an  aptitude  for  high  office,  the  elevation 
Bacon.  which  it  procures  will  not  confer  lasting 

fame.  The  greatest  part  of  my  readers  never  before 
read  or  heard  of  the  name  of  THOMAS  FLEMING  ;  yet, 
starting  in  the  profession  of  the  law  with  FRANCIS 
BACOX,  he  was  not  only  preferred  to  him  by  attorneys, 
but  by  prime  ministers,  and  he  had  the  highest  pro- 
fessional honours  showered  upon  him  while  the  im- 
mortal philosopher,  orator,  and  fine  writer  continued  to 
languish  at  the  bar  without  any  advancement,  not- 
withstanding all  his  merits  and  all  his  intrigues.  But 
Fleming  had  superior  good  fortune,  and  enjoyed 
temporary  consequence,  because  he  was  a  mere  lawyer, — 
because  he  harboured  no  ideas  or  aspirations  beyond  the 
routine  of  Westminster  Hall, — because  he  did  not 
mortify  the  vanity  of  the  witty,  or  alarm  the  jealousy 
of  the  ambitious. 

He  was  the  younger  son  of  a  gentleman  of  small 
estate  in  the  Isle  of  Wight.  I  do  not  find  any  account 
of  his  early  education,  and  very  little  interest  can  now 
be  felt  respecting  it,  although  we  catch  so  eagerly  at  any 
trait  of  the  boyhood  of  his  rival,  whom  he  despised.* 
Soon  after  he  was  called  to  the  bar,  by  un- 

His  labo-  .  ,  .  '111 

riousness.       wearied  drudgery  he   got  into  considerable 

practice ;  and  it  was  remarked  that  he  always 

tried  how  much  labour  he  could  bestow  upon  every 

*  He  probably  had  not  an  academical  Renaming,  Lord  Chief  Justice  of  Eng- 

education,  as  on  the  7th  of  August,  1613,  land,  be  created  M.  of  A."— 2  Wood'* 

it  was  ordered  by  the  convocation  of  the  Ath.  Ox.  355. 
University  of  Oxford  "that  Sir  Thomas 


A.D.  1594.  CHIEF  JUSTICE  FLEMING.  273 

case  intrusted  to  him,  while  his  more  lively  competitors 
tried  with  how  little  labour  they  could  creditably 
perform  their  duty.* 

In  the  end  of  the  year  1594  he  was  called  to  the 
degree  of  serjeant,  along  with  eight  others,  Heigmade 
and  was  thought  to  be  the  most  deeply  Solicitor 
versed  in  the  law  of  real  actions  of  the  preference  to 
whole  batch.  It  happened  that,  soon  after, 
there  was  a  vacancy  in  the  office  of  Solicitor  General, 
on  the  promotion  of  Sir  Edward  Coke  to  be  Attorney 
General.  Bacon  moved  heaven  and  earth  that  he 
himself  might  succeed  to  it.  He  wrote  to  his  uncle, 
Lord  Treasurer  Burleigh,  saying,  "I  hope  you  will 
think  I  am  no  unlikely  piece  of  wood  to  shape  you  a 
true  servant  of."  He  wrote  to  the  Queen  Elizabeth, 
saying,  "I  affect  myself  to  a  place  of  my  profession, 
such  as  I  do  see  divers  younger  in  proceeding  to 
myself,  and  men  of  no  great  note,  do  without  blame 
aspire  unto ;  but  if  your  Majesty  like  others  better,  I 
shall,  with  the  Lacedimonian,  be  glad  that  there  is 
such  choice  of  abler  men  than  myself."  He  accom- 
panied this  letter  with  a  valuable  jewel,  to  show  off 
her  beauty.  He  did  what  he  thought  would  be  still 
more  serviceable,  and,  indeed,  conclusive ;  he  prevailed 
upon  the  young  Earl  of  Essex,  then  in  the  highest 
favour  with  the  aged  Queen,  earnestly  to  press  his 
suit.  But  the  appointment  was  left  with  the  Lord 
Treasurer,  and  he  decided  immediately  against  his 
nephew,  who  was  reported  to  be  no  lawyer,  from 
giving  up  his  time  to  profane  learning, — who  had 
lately  made  an  indiscreet,  although  very  eloquent, 
speech  in  the  House  of  Commons, — and  who,  if  pro- 

*  He  appears,  however,  to  have  been  under  date  10th  August,  1592:—"  This 

long   unknown   beyond  the   precincts  day  Mr.  Recorder  surrendered  his  office ; 

of  Westminster  Hall.    In  Fleetewood's  the  lot  is  now  to  be  cast  between  Mr. 

Diary,  cited  in  Wright's  Queen  Eliza-  Serjeant  Druce  and  one  Mr.  Flemmynge 

beth,  ii.  418,  there  is  the  following  entry  of  Lincoln's  Inn." 

VOL.   I.  T 


274  REIGN  OF  JAMES  I.  CHAP.  VI. 

moted,  might  be  a  dangerous  rival  to  his  cousin,  Eobert 
Cecil,  then  entering  public  life,  and  destined  by  his 
sire  to  be  prime  minister.  The  cunning  old  fox  then 
inquired  who  would  be  a  competent  person  to  do  the 
Queen's  business  in  her  courts,  and  would  give  no 
uneasiness  elsewhere ;  and  he  was  told  by  several 
black-letter  Judges  whom  he  consulted,  that  "  Serjeant 
Fleming  was  the  man  for  him."  After  the  office  had 
been  kept  vacant  by  these  intrigues  above  a  year, 
Serjeant  Fleming  was  actually  appointed. 
Bacon's  anguish  was  exasperated  by  com- 
paring himself  with  the  new  Solicitor ;  and,  in  writing 
to  Essex,  after  enumerating  his  own  pretensions,  he 
says,  "  when  I  add  hereunto  the  obscureness  and  many 
exceptions  to  my  competitor,  I  cannot  but  conclude 
with  myself  that  no  man  ever  had  a  more  exquisite 
disgrace."  He  resolved  at  first  to  shut  himself  up  for 
the  rest  of  his  days  in  a  cloister  at  Cambridge.  A 
soothing  message  from  the  Queen  induced  him  to 
remain  at  the  bar  ;  but  he  had  the  mortification  to  see 
the  man  whom  he  utterly  despised  much  higher  in  the 
law  than  himself,  during  the  remainder  of  this,  and  a 
considerable  part  of  the  succeeding,  reign. 

Fleming,  immediately  upon  his  promotion,  gave  up 
his  serjeantship,  and  practised  in  the  Court  of  Queen's 
Bench.*  He  was  found  very  useful  in  doing  the 
official  business,  and  gave  entire  satisfaction  to  his 
employers. 

At  the  calling  of  a  new  parliament,  in  the  autumn 
of  1601,  he  was  returned  to  the  House  of  Commons  for 
a  Cornish  borough;  and,  according  to  the  usual  practice 
at  that  time,  he  ought,  as  Solicitor  General,  to  have 
been  elected  Speaker;  but  his  manner  was  too  "law- 
yer-like and  ungenteel"  for  the  chair,  and  Serjeant 

*  Tho.  Fleming  a  statu  et  gradu  ser-     Westm.  5  Nov.  Pat.  3T  Eliz.  p.  9.— Dug. 
vientis  ad  legem  exoneratus.  T.  R.  apud     Chron.  Ser.  99. 


A.D.  1602.  CHIEF  JUSTICE  FLEMING.  275 

Croke,  who  was  more  presentable,  was  substituted  for 
him. 

He  opened  his  mouth  in  the  House  only  once,  and 
then  he  broke  down.     This  was  in  the  great   He  breaks 
debate  on  the  grievance  of  monopolies.     He   Ho^e'of*1"5 
undertook  to  defend  the  system  of  granting  £°0™m2°0n8- 
to  individuals  the  exclusive  right  of  dealing   ieoi. 
in  particular  commodities ;  but,  when  he  had  described 
the  manner    in  which    patents  passed   through  the 
different  offices  before  the  Great  Seal  is  put  to  them, 
he  lost  his  recollection,  and  resumed  his  seat. 

Bacon,  now  member  for  Middlesex,  to  show  what  a 
valuable  Solicitor  General  the  Government  had  lost, 
made  a  very  gallant  speech,  in  which  he  maintained 
that  "  the  Queen,  as  she  is  our  sovereign,  hath  both  an 
enlarging  and  a  restraining  power :  for,  by  her  pre- 
rogative she  may,  1st,  set  at  liberty  things  restrained 
by  statute  law  or  otherwise;  and,  2dly,  by  her  pre- 
rogative she  may  restrain  things  which  be 

L      TT-  »        TT  1      3     J      V  •  A.D.1602. 

at  liberty.  He  concluded  by  expressing 
the  utmost  horror  of  introducing  any  bill  to  meddle 
with  the  powers  of  the  crown  upon  the  subject,  and 
protesting  that  "  the  only  lawful  course  was  to  leave 
it  to  her  Majesty  of  her  own  free  will  to  correct  any 
hardships,  if  any  had  arisen  in  the  exercise  of  her 
just  rights  as  the  arbitress  of  trade  and  commerce  in 
the  realm." 

This  pleased  her  exceedingly,  and  even  softened  her 
ministers,  insomuch  that  a  promise  was  given  to 
promote  Fleming  as  soon  as  possible,  and  to  appoint 
Bacon  in  his  place.  In  those  days  there  never  existed 
the  remotest  notion  of  dismissing  an  Attorney  or 
Solicitor  General,  any  more  than  a  Judge;  for,  though 
they  all  alike  held  during  pleasure,  till  the  accession  of 
the  House  of  Stuart  the  tenure  of  all  of  them  was 
practically  secure.  An  attempt  was  made  to  induce 

T  2 


276  KEIGN  OF  JAMES  I.  CHAP.  VI. 

Fleming  to  accept  the  appointment  of  Queen's  Ser- 
He  refuses  to  jeant»  which  would  have  given  him  pre- 
resign  the  cedence  over  the  Attorney  General ;  but  this 

office  of  " 

Solicitor  failed,  for  he  would  thereby  have  been  con- 
favourrofn  sidered  as  put  upon  the  shelf,  instead  of 

being  on  the  highway  to  promotion. 
Elizabeth  died,  leaving  Bacon  with  no  higher  rank 

than  that  of  Queen's  Counsel:  and,  on  the 

April  2,  1603.  ^ 

accession   oi   James  L,   Fleming  was  reap- 
pointed  Solicitor  General. 

The  event  justified  his  firmness  in  resisting  the 
He  is  made  attempt  to  shelve  him,  for  in  the  following 
chief  Baron  year,  on  the  death  of  Sir  William  Peryam, 

of  the  Ex-          J  „..  .  '  J         ' 

chequer  by      he  was  appointed  Chiet   Baron  oi  the  Ex- 
chequer.    While  he  held  this  office,  he  sat 
along  with  Lord  Chief  Justice  Popham  on  the  trial  of 
Guy  Fawkes  and  the  Gunpowder  conspirators ;  but  he 
followed  the  useful  advice  for  subordinate  judges  on 
such  an  occasion — "  to  look  wise,  and  to  say  nothing." 
His  most  memorable  judgment  as  Chief  Baron  was 
in  what  is  called  "  The  Great  Case  of  Impo- 

"  The  Great  .  .  ? 

Case  of  im-  sitions.  This  was,  in  truth,  fully  as 
important  as  Hampden's  Case  of  Ship-money, 
but  did  not  acquire  such  celebrity  in  history,  because 
it  was  long  acquiesced  in,  to  the  destruction  of  public 
liberty,  whereas  the  other  immediately  produced  the 
civil  war.  After  an  act  of  parliament  had 
passed  at  the  commencement  of  James's 
reign,  by  which  an  import  duty  of  2s.  6d.  per  cwt.  was 
imposed  upon  currants,  he  by  his  own  authority  laid 
on  an  additional  duty  of  7s.  6d.,  making  10s.  per  cwt. 
Bates,  a  Levant  merchant,  who  had  imported  a  cargo 
of  currants  from  Venice,  very  readily  paid  the  parlia- 
mentary duty  of  2s.  6d.  upon  it,  but  refused  to  pay 
more  ;  thereupon  the  Attorney  General  filed  an  infor- 
mation in  the  Court  of  Exchequer,  to  compel  him  to 


A.D.  1604.  CHIEF  JUSTICE  FLEMING.  277 

pay  the  additional  duty  of  Is.  6d. ;  so  the  question 
arose,  whether  he  was  by  law  compellable  to  do  so? 
After  arguments  at  the  bar  which  lasted  many  days, — 

Fleming,  C.  B.,  said :  "  The  defendant's  plea  in  this  case  is 
without  precedent  or  example,  for  he  alleges  that  the  imposition 
which  the  King  has  laid  is  '  indebite,  injuste,  et  contrk  leges 
Anglije  imposita,  and,  therefore,  he  refused  to  pay  it.'  The  King, 
as  is  commonly  said  in  our  books,  cannot  do  lorong ;  and  if  the 
King  seize  any  land  without  cause,  I  ought  to  sue  to  him  in 
humble  manner  (humillime  supplicavit,&c.),  and  not  in  terms  of 
opposition.  The  matter  of  the  plea  first  regards  the  prerogative, 
and  to  derogate  from  that  is  a  part  most  undutiful  in  any  subject. 
Next  it  concerns  the  transport  of  commodities  into  and  out  of 
the  realm,  the  due  regulation  of  which  is  left  to  the  King  for  the 
public  good.  The  imposition  is  properly  upon  currants  and  not 
upon  the  defendant,  for  upon  him  no  imposition  shall  be  but  by 
parliament.  The  things  are  currants,  a  foreign  commodity. 
The  King  may  restrain  the  person  of  a  subject  in  leaving  or 
coming  into  the  realm,  and,  a  fortiori,  may  impose  conditions  on 
the  importation  or  exportation  of  his  goods.  To  the  King  is 
committed  the  government  of  the  realm,  and  Bracton  says,  '  that 
for  his  discharge  of  his  office  God  hath  given  him  the  power  to 
govern.'  This  power  is  double — ordinary,  and  absolute.  The 
ordinary  is  for  the  profit  of  particular  subjects — the  determi- 
nation of  civil  justice ;  this  is  nominated  by  civilians  jus  pri- 
vatum,  and  it  cannot  be  changed  without  parliament.  The 
absolute  power  of  the  King  is  applied  for  the  general  benefit  of 
the  people  :  it  is  most  properly  named  policy,  and  it  varieth  with 
the  time,  according  to  the  wisdom  of  the  King,  for  the  common 
good.  If  this  imposition  is  matter  of  state,  it  is  to  be  ruled  by 
the  rules  of  policy,  and  the  King  hath  done  well,  instead  of 
'  unduly,  unjustly,  and  contrary  to  the  laws  of  England.'  All 
commerce  and  dealings  with  foreigners,  like  war  and  peace  and 
public  treaties,  are  regulated  and  determined  by  the  absolute 
power  of  the  King.  No  importation  or  exportation  can  be  but 
at  the  King's  ports.  They  are  his  gates,  which  he  may  open  or 
close  when  and  on  What  conditions  he  pleases.  He  guards  them 
with  bulwarks  and  fortresses,  and  he  protects  ships  coming 
hither  from  pirates  at  sea  ;  and  if  his  subjects  are  wronged  by 
foreign  princes,  he  sees  that  they  are  righted.  Ought  he  not, 
then,  by  the  customs  he  imposes,  to  enable  himself  to  perform 
these  duties?  The  impost  to  the  merchant  is  nothing,  for  those 
who  wish  for  his  commodities  must  buy  them  subject  to  the 
charge  ;  and,  in  most  cases,  it  shall  be  paid  by  the  foreign  grower 


278  REIGN  OF  JAMES  I.  CHAP.  VI. 

and  not  by  the  English  consumer.  As  to  the  argument  that  the 
currants  are  victual,  they  are  rather  a  delicacy,  and  are  no  more 
necessary  than  wine,  on  which  the  King  lays  what  customs 
seemeth  him  good.  For  the  amount  of  the  imposition  it  is 
not  unreasonable,  seeing  that  it  is  only  four  times  as  much  as  it 
was  before.  The  wisdom  and  providence  of  the  King  must  not 
be  disputed  by  the  subject;  by  intendment  they  cannot  be 
severed  from  his  person.  And  to  argue  a  posse  ad  actum, 
because  by  his  power  he  may  do  ill,  is  no  argument  to  be  used 
in  this  place.  If  it  be  objected  that  no  reason  is  assigned  for 
the  rise,  I  answer  it  is  not  reasonable  that  the  King  should 
express  the  cause  and  consideration  of  his  actions ;  these  are 
arcana  regis,  and  it  is  for  the  benefit  of  every  subject  that  the 
King's  treasure  should  be  increased." 

He  then  at  enormous  length  went  over  all  the 
authorities  and  acts  of  parliament,  contending  that 
they  all  prove  the  King's  power  to  lay  what  taxes  he 
pleases  on  goods  imported,  and  he  concluded  by  giving 
judgment  for  the  Crown.* 

Historians  take  no  notice  of  this  decision,  although 
it  might  have  influenced  the  destinies  of  the  country 
much  more  than  many  of  the  battles  and  sieges  with 
which  they  fill  their  pages.  Had  our  foreign  commerce 
then  approached  its  present  magnitude,  parliaments 
would  never  more  have  met  in  England, — duties  on 
tea,  sugar,  timber,  tobacco,  and  corn,  imposed  by  royal 
proclamation,  being  sufficient  to  fill  the  exchequer, — 
and  the  experiment  of  ship-money  would  never  have 
been  necessary.  The  Chief  Baron  most  certainly 
misquotes,  misrepresents,  and  mystifies  exceedingly, 
but,  however  fallacious  his  reasoning,  the  judgment 
ought  not  to  be  passed  over  in  silence  by  those  who 
pretend  to  narrate  our  annals,  for  it  was  pronounced 
by  a  court  of  competent  jurisdiction,  and  it  was  acted 
upon  for  years  as  settling  the  law  and  constitution  of 
the  country. 

King  James  declared  that  Chief  Baron  Fleming  was 

*  2  St.  Tr.  371—394. 


A.D.  1607-13.        CHIEF  JUSTICE  FLEMING.  279 

a  judge  to  his  heart's  content.  He  had  been  somewhat 
afraid  when  he  came  to  England  that  he  might  hear 
such  unpalatable  doctrines  as  had  excited  his  indigna- 
tion in  Buchanan's  treatise  "De  jure  regni  apud 
Scotos,"  and  he  expressed  great  joy  in  the  solemn 
recognition  that  he  was  an  absolute  sovereign.  Our 
indignation  should  be  diverted  from  him  and  his 
unfortunate  son,  to  the  base  sycophants,  legal  and 
ecclesiastical,  who  misled  them. 

On  the  death  of  Popham,  no  one  was  thought  so  fit 
to  succeed  him  as  Fleming,  of  whom  it  was  paining  ap- 
always  said  that  "though  slow,  he  was  sure;"  pointed  chief 

J  .          ,  i         Justice  of  the 

and  he  became  Chief  Justice  of  England  the   King's 
very   same   day  on   which    Francis    Bacon    June  25, 
mounted  the  first  step  of  the  political  ladder,   1 
receiving  the   comparatively  humble  appointment  of 
Solicitor  General.* 

Lord  Chief  Justice  Fleming  remained  at  the  head 
of  the  common  law  rather  more  than  six  msjudg- 
years.  During  that  time,  the  only  case  of  ^f^e6 
general  interest  which  arose  in  Westminster  Po«tnati- 
Hall,  was  that  of  the  POSTNATI.  As  might  be  expected, 
to  please  the  King  he  joined  cordially  in  what  I 
consider  the  illegal  decision,  that  persons  born  in 
Scotland  after  the  accession  of  James  to  the  throne  of 
England  were  entitled  to  all  the  privileges  of  natural- 
born  subjects  in  England,  although  it  was  allowed  that 
Scotland  was  an  entirely  separate  and  independent 
kingdom.  Luckily,  the  question  is  never  likely  again 
to  arise  since  the  severance  of  the  crown  of  Hanover 
from  that  of  Great  Britain ;  but  if  it  should,  I  do  not 
think  that  Calvin's  case  could  by  any  means  be  con- 
sidered a  conclusive  authority,  being  founded  upon 
such  reasoning  as  that "  if  our  King  conquer  a  Christian 

*  Dug.  Chron.  Ser.  102. 


280  EEIGN  OF  JAMES  I.  CHAP.  VI. 

country,  its  laws  remain  till  duly  altered ;  whereas  if 
he  conquer  an  infidel  country,  the  laws  are  ipso  facto 
extinct,  and  he  may  massacre  all  the  inhabitants."  * 
Lord  Chief  Justice  Fleming  took  the  lead  in  the  pro- 
secution of  the  Countess  of  Shrewsbury,  be- 
feis.160         fore  the  Privy  Council,  on   the   charge   of 
Kniecution     having  refused  to  be  examined  respecting  the 

oftheCoun-  °  ,   .  .        .  _*  , 

tess  of  part  she  had  acted  in  bringing  about  a  clan- 

ury'  destine  marriage  in  the  Tower  of  London, 
between  the  Lady  Arabella  Stuart,  the  King's  cousin, 
and  Sir  William  Somerset,  afterwards  Duke  of  Somerset. 
He  laid  it  down  for  law,  that  "  it  was  a  high  mis- 
demeanour to  marry,  or  to  connive  at  the  marriage  of, 
any  relation  of  the  King  without  his  consent,  and  that 
the  Countess's  refusal  to  be  examined  was  '  a  contempt 
of  the  King,  his  crown,  and  dignity,  which,  if  it  were 
to  go  unpunished,  might  lead  to  many  dangerous 
enterprises  against  the  state.'  He  therefore  gave  it  as 
his  opinion,  that  she  should  be  fined  10,OOOZ.,  and 
confined  during  the  King's  pleasure."  f 

While  this  poor  creature  presided  in  the  King's 
Bench,  he  was  no  doubt  told  by  his  officers  and  de- 
pendants that  he  was  the  greatest  Chief  Justice  that 
had  appeared  there  since  the  days  of  Gascoigne  and 
Fortescue ;  but  he  was  considered  a  very  small  man 
by  all  the  rest  of  the  world,  and  he  was  completely 
eclipsed  by  Sir  Edward  Coke,  who  at  the  same  time 
was  Chief  Justice  of  the  Common  Pleas,  and  who,  to  a 
much  more  vigorous  intellect  and  deeper  learning, 
added  respect  for  constitutional  liberty  and  resolution 
at  every  hazard  to  maintain  judicial  independence. 
From  the  growing  resistance  in  the  nation  to  the 
absolute  maxims  of  government  professed  by  the  King 
and  sanctioned  by  almost  all  his  Judges,  there  was  a 
general  desire  that  the  only  one  who  stood  up  for  law 

*  2  St.  Tr.  559-768.  f  Ibid.  765-778. 


A.D.  1613.  CHIEF  JUSTICE  FLEMING.  281 

against  prerogative  should  be  placed  in  a  position 
which  might  give  greater  weight  to  his  efforts  on  the 
popular  side ;  but  of  this  there  seemed  no  prospect,  for 
the  subservient  Fleming  was  still  a  young  man,  and 
likely  to  continue  many  years  the  tool  of  the  Govern- 
ment. 

In  the  midst  of  these  gloomy  anticipations,  on  the 
15th  day  of  October,  1613,  the  joyful  news  was 
spread  of  his  sudden  death.     I  do  not  know,    ^^  justice 
and   I   have  taken  no   pains   to    ascertain,    ^^j^ 
where  he  was  buried,  or  whether  he  left  any 
descendants.     In  private  life  he  is  said  to  have  been 
virtuous    and   amiable,   and  the   discredit  of  his   in- 
competency  in  high  office  ought  to  be  imputed  to  those 
who   placed  him  there,   instead  of  allowing  him   to 
prose  on  as  a  drowsy  Serjeant  at  the  bar  of  the  Com- 
mon Pleas,  the  position  for  which  nature  had  intended 
him.*     He  dwindled  the  more  rapidly  into  insigni- 
ficance from  the  splendour  of  his  immediate  successor. 

*  I  have  since  learned  (but  it  W  not  ham  for  some  generations.    The  Chief 

worth  while  to  alter  the  text)  that  he  was  Justice  appears  to  have  had  a  residence 

buried  at  Stoneham  in  Hampshire ;  that  in  the  Isle  of  Wight.  The  name  of  "  Sir 

his  will,  dated  21st    July,   1610,  was  Thomas  Fleming,  L.  C.  J.  of  England," 

proved  30th   October,  1613;   that   his  appears  in  the  list  of  the  members  of  a 

eldest  son  intermarried  with  a  daughter  Sowling-Green  Club  established  in  the 

of  Sir  Henry  Cromwell,  and  that  their  island,  who  dined  together  twice  a  week, 

descendants  remained  seated  at  Stone-  (Worsley's  Isle  of  Wight,  p.  223.) 


282  SIR  EDWARD  COKE.  CHAP.  VII. 


CHAPTER  VII. 

LIFE  OF  LORD  CHIEF  JUSTICE  SIR  EDWARD  COKE,  FROM  HIS 
BIRTH  TILL  HE  WAS  MADE  CHIEF  JUSTICE  OF  THE  COURT 
OF  COMMON  PLEAS. 

WE  now  come  to  him  who  was  pronounced  by  his 
contemporaries,  and  is  still  considered,  the 
Edward  greatest  oracle  of  our  municipal  jurispru- 
dence,— who  afforded  a  bright  example  of 
judicial  independence, — and  to  whom  we  are  indebted 
for  one  of  the  main  pillars  of  our  free  constitution. 
Unfortunately,  his  mind  was  never  opened  to  the  con- 
templations of  philosophy;  he  had  no  genuine  taste 
for  elegant  literature;  and  his  disposition  was  selfish, 
overbearing,  and  arrogant.  From  his  odious  defects, 
justice  has  hardly  been  done  to  his  merits.  Shocked 
by  his  narrow-minded  reasoning,  disgusted  by  his 
utter  contempt  for  method  and  for  style  in  his  com- 
positions, and  sympathising  with  the  individuals  whom 
he  insulted,  we  are  apt  to  forget  that  "without  Sir 
Edward  Coke  the  law  by  this  time  had  been  like  a 
ship  without  ballast;"*  that  when  all  the  other  Judges 
basely  succumbed  to  the  mandate  of  a  Sovereign  who 
wished  to  introduce  despotism  under  the  forms  of  juri- 
dical procedure,  he  did  his  duty  at  the  sacrifice  of  his 
office ;  and  that,  in  spite  of  the  blandishments,  the 
craft,  and  the  violence  of  the  Court  of  Charles  I.,  he 
framed  and  he  carried  the  PETITION  OF  EIGHT,  which 
contained  an  ample  recognition  of  the  liberties  of  Eng- 
lishmen— which  bore  living  witness  against  the  law- 

*  Words  of  Lord  Bacon. 


A.D.  1551.  SIR  EDWARD  COKE.  283 

less  tyranny  of  the  approaching  government  without 
parliaments — which  was  appealed  to  with  such  success 
when  parliaments  were  resumed,  and  which,  at  the 
Eevolution  in  1688,  was  made  the  basis  of  the  happy 
settlement  then  permanently  established.  It  shall  be 
my  object  in  this  memoir  fairly  to  delineate  his  career 
and  to  estimate  his  character. 

SIR  EDWARD  COKE,  like  most  of  my  Chief  Justices, 
was  of  a  good  family  and  respectable  con- 
nections. The  early  Chancellors,  being  taken 
from  the  Church,  were  not  unfrequently  of  low  origin  ; 
but  to  start  in  the  profession  of  the  law  required  a 
long  and  expensive  education,  which  only  the  higher 
gentry  could  afford  for  their  sons.  The  Cokes  had 
been  settled  for  many-  generations  in  the  county  of 
Norfolk.  As  the  name  does  not  correspond  very  aptly 
with  the  notion  of  their  having  come  over  with  the 
Conqueror,  it  has  been  derived  from  the  British  word 
"Cock,"  or  "Coke,"  a  CHIEF;  but,  like  "Butler," 
"  Taylor,"  and  other  names  now  ennobled,  it  much 
more  probably  took  its  origin  from  the  occupation,  of 
the  founder  of  the  race  at  the  period  when  surnames 
were  first  adopted  in  England.  Even  in  the  reigns  of 
Elizabeth  and  James  I.,  Sir  Edward's  name  was  fre- 
quently spelt  Cook.  Lady  Hatton,  his  second  wife, 
who  would  not  assume  it,  adopted  this  spelling  in 
writing  to  him,  and  according  to  this  spelling  it  has 
invariably  been  pronounced.*  Camden  has  traced  the 
pedigree  of  the  family  to  William  Coke  of  Doddington, 
in  Norfolk,  in  the  reign  of  King  John.  They  had 
risen  to  considerable  distinction  under  Edward  III., 
when  Sir  Thomas  Coke  was  made  Seneschal  of  Gas- 
coigne.  From  him,  in  the  right  male  line,  was  de- 

*  It  is  amusing  to  observe  the  efforts     adding  a  final  e,  and  by  doubling  conso- 
made  to  disguise  the  names  of  trades  in     nanta. 
proper  names,  by  chauging  i  into  y,  by 


284  EEIGN  OF  QUEEN  ELIZABETH.       CHAP.  VII. 

scended  Kobert  Coke,  the  father  of  Sir  Edward.  This 
representative  of  the  family,  although  possessed  of 
good  patrimonial  property,  was  bred  to  the  law  in 
Lincoln's  Inn,  and  practised  at  the  bar  till  his  death, 
having  reached  the  dignity  of  a  bencher.  He  married 
Winifred  Knightley,  daughter  and  co-heiress  of  William 
Knightley,  of  Margrave  Knightley,  in  Norfolk.  With 
her  he  had  an  estate  at  Mileham,  in  the  same  county, 
on  which  he  constantly  resided,  unless  in  term  time 
and  during  the  circuits. 

Here,  on   the   1st   of  February,  1551-2,  was  born 
Edward,  their  only  son.     He  came  into  the 
world  unexpectedly,  at  the  parlour  fire-side, 
before  his  mother  could  be  carried  up  to  her  bed ;  and, 
from    the   extraordinary   energy  which  he  then   dis- 
played,  high    expectations   were    entertained   of    his 
future  greatness.*     This  infantine  exploit  he  was  fond 
of  narrating  in  his  old  age. 

His  mother  taught  him  to  read,  and  he  ascribed  to 
her  tuition  the  habit  of  steady  application  which  stuck 
to  him  through  life.  In  his  tenth  year  he  was  sent  to 
the  free  grammar  school  at  Norwich.  He  had  been 
here  but  a  short  time,  when  he  had  the 
misfortune  to  lose  his  father,  who  died  in 
Lincoln's  Inn,  and  was  buried  in  the  church  of  St. 
Andrew,  Holborn.|  His  mother  married  again;  but 
his  education  was  most  successfully  continued  by 
Mr.  Walter  Hawe,  the  head  master  of  his  school,  under 
whom  he  continued  seven  years,  and  made  considerable 

*  "  Preedicabat   miri   quidpiam  ejus        "  Monumentum  Robert!  Coke  de  Mile- 

Genitura;    Matrem    ita    subito   juxta  ham,    in    Comitatu    Norfolcije    Annig. 

focum  intercipiens  ut  in  thalamum  cui  Illustriss.  Hospitii  Lincolniensis  quon- 

suberat  non  moveretur.    Locum  ipsum  dam  socii  Primarii :  Qui  ex  Winefridft 

ipse   mihimet    demonstravit."— Spelm.  uxore  sua,  Gul.  Knightley  filia,  hos  sus- 

Jcenia  sice  .VorfoJcice,  p.  150.  cepit  liberos:  Edwardum  Coke,  filium, 

t  Sir  Edward,  when  Attorney  General,  Majestatis  Regise  Attornatum  General, 

caused  a  monument  to  be  erected  there  &c. 

to  hi8  memory,  with  an  inscription  be-         "  Obiit  in  Hospitio  praedicto  15  die 

ginning  thus : —  Nov.  A  J>.  1561,  Eliz.  4,  Etat.  suae  48." 


A.D.  1571.  SIB  EDWAED  COKE.  285 

proficiency  in  classical  learning.  He  was  more  re- 
markable, however,  for  memory  than  imagination,  and 
he  had  as  much  delight  in  cramming  the  rules  of  pro- 
sody in  doggrel  verse  as  in  perusing  the  finest  passages 
of  Virgil. 

He  had  reached  his  sixteenth  year  before  he  went 
to  the  University — a  late  age,  according  to    A  D  15g7 
the  custom  of  that  time ;  but  he  afterwards    At  the 
considered   it  a   great    advantage   that   he 
never  " preproperously "  entered  on  study  or  business. 
On  the  25th  of  October,   1567,   he  was  admitted   a 
pensioner  of  Trinity  College,  Cambridge.     We  learn 
nothing  from  himself  or  others  of  the  course  of  study 
which  he  pursued.    Whitgift,  afterwards  Archbishop  of 
Canterbury,  is  said  to  have  been  his  tutor,  and  he  was 
no  doubt  well  drilled  in  the  dialectics  of  Aristotle; 
but  he  never  displays  the  slightest  tincture  of  science, 
and,  unlike  Bacon,  who  came  to  the  same  college  a  few 
years  after  him,  and,  while  still  a  boy,  meditated  the 
reformation   of  philosophy,  he  seems  never   to   have 
carried   his  thoughts  beyond  existing   institutions  or 
modes  of  thinking,  and  to  have  laboured  only  to  com- 
prehend and  to  remember  what  he  was  taught.     He 
had  a  much  better  opinion  than  Bacon  of  the  acade- 
mical discipline  which  then   prevailed,  and   in   after 
life  he  always   spoke  with   gratitude   and 
reverence  of  his  ALMA  MATER.     Yet  he  left 
Cambridge  without  taking  a  degree. 

It  might  have  been  expected  that  he  would  now 
have  resided  in  his  country  mansion, — 
amusing  himself  with  hunting,  hawking, 
and  acting  as  a  Justice  of  the  Peace.  But 
the  family  estates  were  charged  with  his  mother's 
jointure  and  portions  for  his  seven  sisters ;  and,  as  he 
was  early  imbued  with  ambition  and  a  grasping  love 
of  riches,  he  resolved  to  follow  the  profession  of  the 


286  REIGN  OF  QUEEN  ELIZABETH.       CHAP.  VII. 

law,  in  which,  his  father  was  prospering  when  prema- 
turely cut  off.  He  therefore  transferred  himself  to 
London, — not,  like  other  young  men  of  fortune,  to 
finish  his  education  at  an  Inn  of  Court,  frequenting 
fencing-schools  and  theatres, — but  with  the  dogged 
determination  to  obtain  practice  as  a  barrister,  that  he 
might  add  to  his  paternal  acres,  and  rise  to  be  a  great 
judge. 

He  began  his  legal  studies  at  Clifford's  Inn,  an  "  Inn 
of  Chancery,"  where,  for  a  year,  he  was  initiated  in 
the  doctrine  of  writs  and  procedure  ;  and  on 
the  24th  of  April,  1572,  he  was  entered  a 
student  of  the  Inner  Temple,  where  he  was  to  become 
familiar  with  the  profoundest  mysteries  of  jurispru- 
dence. He  now  steadily  persevered  in  a  laborious 
course,  of  which,  in  our  degenerate  age,  we  can  scarcely 
form  a  conception.  Every  morning  he  rose  at  three, — 
in  the  winter  season  lighting  his  own  fire.  He  read 
Brae  ton,  Littleton,  the  Year  Books,  and  the  folio 
Abridgments  of  the  Law,  till  the  courts  met  at  eight. 
He  then  went  by  water  to  Westminster,  and  heard 
cases  argued  till  twelve,  when  pleas  ceased  for  dinner. 
After  a  short  repast  in  the  Inner  Temple  Hall,  he 
attended  "  readings  "  or  lectures  in  the  afternoon,  and 
then  resumed  his  private  studies  till  five,  or  supper- 
time.  This  meal  being  ended,  the  moots  took  place, 
when  difficult  questions  of  law  were  proposed  and  dis- 
cussed,— if  the  weather  was  fine,  in  the  garden  by  the 
river  side ;  if  it  rained,  in  the  covered  walks  near  the 
Temple  Church.  Finally,  he  shut  himself  up  in  his 
chamber,  and  worked  at  his  common-place  book,  in 
which  he  inserted,  under  the  proper  heads,  all  the 
legal  information  he  had  collected  during  the  day. 
When  nine  o'clock  struck  he  retired  to  bed,  that  lie 
might  have  an  equal  portion  of  sleep  before  and  after 
midnight.  The  Globe  and  other  theatres  were  rising 


A.D.  1578.  SIR  EDWARD  COKE.  287 

into  repute,  but  lie  never  would  appear  at  any  of  them  ; 
nor  would  he  indulge  in  such  unprofitable  reading  as 
the  poems  of  Lord  Surrey  or  Spenser.  When  Shak- 
speare  and  Ben  Jonson  came  into  such  fashion,  that 
even  "sad  apprentices  of  the  law"  occasionally  as- 
sisted in  masques,  and  wrote  prologues,  he  most  stea- 
dily eschewed  all  such  amusements  ;  and  it  is  supposed 
that  in  the  whole  course  of  his  life  he  never  saw  a 
play  acted,  or  read  a  play,  or  was  in  company  with  a 
player. 

He  first  evinced  his  forensic  powers  when  deputed 
by  the  students  to  make  a  representation  to  the 
Benchers  of  the  Inner  Temple  respecting  the  bad 
quality  of  their  commons  in  the  hall.  After  laboriously 
studying  the  facts  and  the  law  of  the  case,  he  clearly 
proved  that  the  cook  had  broken  his  engagement,  and 
was  liable  to  be  dismissed.  This,  according  to  the 
phraseology  of  the  day,  was  called  "the  Cook's  Case," 
and  he  was  said  "  to  have  argued  it  with  so  much 
quickness  of  penetration  and  solidity  of  judgment,  that 
he  gave  entire  satisfaction  to  the  students,  and  was 
much  admired  by  the  Bench."* 

At  this  time  the  rules  of  the  Inns  of  Court  required 
that  a  student  should  have  been  seven  years 

*  AJ>.  1578. 

on  the  books  of  his  society  before  he  could    He  is  called 
be  called  to  the  bar,f  but  our  hero's  pro-   * 
ficiency  in  his  legal  studies  was  so  wonderful,  that  the 
Benchers  of  the  Inner  Temple  resolved  to  make  an 
exception  in  his  favour,  and  on  the  20th  of  April,  1578, 
called  him  to  the  bar  when  he  was  only  of  six  years' 
standing. 

His  progress  in  his  profession  was  almost  as  rapid 
as  that  of  Erskine,  200  years  afterwards ;  but,  instead 
of  being  the  result  of  popular  eloquence,  it  arose  from 

*  See  Lloyd's  Worthies,  ii.  189.  years:  Dug.  Or.  Jur.  159.  Now  (I  think 

•)•  Formerly  the  period  had  been  eight     not  wisely)  it  is  reduced  to  three. 


288  REIGN  OF  QUEEN  ELIZABETH.       CHAP.  VII. 

a  display  of  deep  skill  in  the  art  of  special  pleading. 

He  himself  has  reported  with  much  glee  the 
brief.  case  in  which  he  held  his  first  brief.  Lord 

Cromwell,  son  of  the  famous  Cromwell,  Earl 
of  Essex,  the  grand  ecclesiastical  reformer,  had  become 
leader  of  the  Puritans,  and  wished  to  abolish  all 
liturgies.  He  accordingly  introduced  into  his  parish 
church  (Norlingham,  in  Norfolk),  where  he  expected 
to  meet  with  no  opposition,  two  unlicensed  preachers 
of  the  Genevese  school,  who  denounced  the  Book  of 
Common  Prayer  as  impious  and  superstitious.  The 
Keverend  Mr.  Denny,  the  vicar,  remonstrating,  Lord 
Cromwell  said  to  him,  "  Thou  art  a  false  varlet,  and  I 
like  not  of  thee."  Upon  which  the  vicar  retorted,  "  It 
is  no  marvel  that  you  like  not  of  me,  for  you  like  of 
men  who  maintain  sedition  against  the  Queen's  proceed- 
ings." For  these  words  Lord  Cromwell  brought  an 
action  of  SCAN.  MAG.  against  the  Vicar ;  and  the  eclat 
with  which  young  Edward  Coke  had  just  been  called  to 
the  bar  having  reached  his  own  country,  he  was  re- 
tained as  counsel  for  the  defendant.  He  drew  a  very 
ingenious  plea  of  justification,  but  on  demurrer  it  was 
held  to  be  insufficient.  He  then  moved  in  arrest  of 
judgment  by  reason  of  a  mis-recital  in  the  declaration 
of  the  statute  De  Scandalis  Magnatum,  on  which  the  action 
was  founded ;  and,  after  a  very  learned  argument,  he 
obtained  the  judgment  of  the  Court  in  his  favour.* 
Soon  after,  he  was  appointed,  by  the  Benchers  of  the 

Inner   Temple,   Eeader   of  Lyon's   Inn,   an 

Inn  of  Chancery  under  their  rule.  Here  he 
lectured  to  students  of  law  and  attorneys,  with  much 
applause,  and  "  so  spread  forth  his  fame,  that  crowds 
of  clients  sued  to  him  for  his  counsel."  f 

He   filled   this   office    three  years,   and  before  the 
end  of  that  period  he  had  placed  himself  at  the  very 

*  The  Lord  Cromwell's  case,  4  Eep.  12  b.         f  Lloyd's  State  Worthies. 


A.D.  1580.  SIR  EDWARD  COKE.  289 

head  of  his  profession,  by  his  argument  in  the  most 
celebrated  case  that  has  ever  occurred  respect-  He  {g  conngel 
ing  the  law  of  real  property  in  England, —  in-sheiiey's 
a  case  now  read  with  far  more  interest  by 
true  conveyancers,  not  only  than  MACBETH  or  COMUS, 
but  than  "the  Judgment  on  Ship-money"  or  "the 
Trial  of  the  Seven  Bishops."  Edward  Shelley,  being 
seised  in  tail  general,  had  two  sons,  Henry  and  Eichard. 
Henry  died,  leaving  a  widow  enceinte,  Edward  suffered 
a  recovery  to  the  use  of  himself  for  life,  remainder  to 
the  use  of  the  heirs  male  of  his  body  and  the  heirs 
male  of  such  heirs  male,  and  died  before  his  daughter- 
in-law  was  delivered.  Eichard,  the  younger  son,  as 
the  only  heir  male  in  esse,  entered.  The  widow  then 
gave  birth  to  a  son;  and  the  great  question  was, 
whether  he  had  a  right  to  the  estate  rather  than 
Eichard  his  uncle  ?  It  was  an  acknowledged  rule,  that 
the  title  of  one  who  takes  by  purchase  cannot  be 
divested  by  the  birth  of  a  child  after  his  interest  has 
vested  in  possession;  but  that  the  estate  of  one  who 
takes  by  descent  may.  The  point,  therefore,  was, 
"  whether  Eichard,  under  the  uses  of  the  recovery, 
took  by  purchase  or  by  descent  ?"  The  case  excited  so 
much  interest  at  the  time,  that,  by  the  special  order  of 
Queen  Elizabeth,  it  was  adjourned  from  the  Court 
of  Queen's  Bench,  where  it  arose,  into  the  Exchequer 
Chamber,  before  the  Lord  Chancellor  and  the  twelve 
Judges.  Coke  was  counsel  for  the  nephew,  and  suc- 
ceeded in  establishing  the  celebrated  rule,  that  "  Where 
the  ancestor  takes  an  estate  of  freehold,  and  in  the  same 
gift  or  conveyance  an  estate  is  limited,  either  mediately 
or  immediately,  to  his  heirs  either  in  fee  or  in  tail, '  heirs' 
is  a  word  of  limitation,  6O  that  the  ancestor  has  in  him 
an  estate  of  inheritance,  and  the  heir  takes  by  descent."* 

*  This  rule  has  ever  since  fceen  rigor-  that  decision  was  reversed  in  the  Ex- 

ously  adhered  to,  except  by  the  Court  of  chequer  Chamber.— 4   Burr.   2579 ;  Bl. 

King's  Bench  in  Perrin  v.  Blake ;  and  Rep.  672  ;  Dougl.  329. 

VOL.    I.  U 


290  REIGN  OF  QUEEN  ELIZABETH.       CHAP.  VII. 

Coke  was  thenceforth,  while  he  remained  at  the  bar, 
employed  in  every  case  of  importance  which 
^dir^nd     came  on  in  Westminster  Hall,  and  he  was  in ' 
professional     fae   receipt   of  an   immense  income,  which 

Proflts-  i  •  f  -u     •       i     j 

gave  him   a   greater  power  oi  buying  land 

than  is  enjoyed  even  by  an  eminent  railway  counsel  at 
the  present  day.  He  began  to  add  manor  to  manor, 
till  at  length  it  is  said  the  Crown  was  alarmed  lest  his 
possessions  should  be  too  great  for  a  subject.  Accord- 
ing to  a  tradition  in  the  family, — in  consequence  of  a 
representation  from  the  Government,  which  in  those 
times  often  interfered  in  the  private  concerns  of  indi- 
viduals, that  he  was  monopolising  injuriously  all  land 
which  came  into  the  market  in  the  county  of  Norfolk, 
he  asked  and  obtained  leave  to  purchase  "one  acre 
more,"  whereupon  he  became  proprietor  of  the  great 
"  CASTLE  ACRE  "  estate,  of  itself  equal  to  all  his  former 
domains. 

When  he  had  been  four  years  at  the  bar,  he  made  a 
AJ>  1582  most  advantageous  marriage,*  being  the  pre- 
His  first  ferred  suitor  of  Bridget  Paston,  daughter  and 
co-heiress  of  John  Paston,  Esq.,  a  young  lady 
who  had  not  only  beauty,  learning,  and  high  connec- 
tion,! but  who  brought  him,  first  and  last  (what  he  did 
not  value  less),  a  fortune  of  30,OOOZ.  Although  he  was 
dreadfully  punished  when  he  entered  the  state  of  wed- 
lock a  second  time,  he  lived  in  entire  harmony  with 
his  first  wife,  who  died,  to  his  inexpressible  grief, 
leaving  him  ten  children. 

His  first  professional  honours  were  sure  proof  of  the 
general   estimation  in  which  he   was   held,   as   they 

*  This  event  was  supposed  to  have  married  the  13th  of  August,  the  year 

happened  much  later,  but  the  following  aforesaid." — Johnson,  i.  66. 

entry  has  been  discovered  in  the  parish  f  She  was  of  an  ancient  family  in 

register  ofCookly,  in  Norfolk: — "1582.  Norfolk,  and  nearly  connected  with  the 

Edward  Cooke,  Esq.,  and  Bridget  Paston,  noble  families  of  Rutland,  Shrewsbury, 

the  daughter  of  John  Paston,  Esq.,  were  Westmorland,  and  Abergavenny. 


A.D.  1592.  SIR  EDWARD  COKE.  291 

sprang  not  from  intrigue  or   court   favour,  but   from 
the  spontaneous  wish  of  great  municipal  com- 

...  .,    ,,  ,  -   i   .  .  A J).  1585- 

munities  to  avail  themselves  of  his  services.    1592. 
In  1585  he  was  elected  Recorder  of  Coventry ;    S^jp^ 
in  1586,  of  Norwich:  and  1592,  of  London,    corderof 

J.-L.  f  AT.  TV-  •       Coventry.&c. 

the  citizens  ot  the  metropolis  being  unani- 
mous in  their  choice  of  him,  and  having  conferred  a 
retiring  pension  of  IGOl.  a  year  to  make  way  for 
him.  At  the  same  time,  he  was  READER  (or  Law 
Professor)  in  the  Inner  Temple,  by  appointment  of 
the  Benchers;  and  he  appears  in  this  capacity  to 
have  given  high  satisfaction.  In  his  note-book,  still 
extant,  he  states  that,  having  composed  seven  lectures 
on  the  Statute  of  Uses,  he  had  delivered  five  of  them  to 
a  large  and  learned  audience,  when  the  plague  broke 
out,  and  that,  having  then  left  London  for  his  house 
at  Huntingfield,  in  Suffolk, — to  do  him  honour,  nine 
Benchers  of  the  Temple  and  forty  other  Templars  ac- 
companied him  on  his  journey  as  far  as  Romford. 

He  retained  the  office  of  Recorder  of  London  only  for 
a  few  months,  then  resigning  it  on  becoming  a  law 
officer  of  the  Crown. 

Burleigh,  always   desirous   to   enlist   in  the  public- 
service  those  best  qualified  for  it,  had  for   A.D.  1592. 
some  time  been  well  aware   of  the  extra-   He  is  made 

Solicitor 

ordinary  learning  and  ability  of  Mr.  Edward  General. 
Coke,  and  had  been  in  the  habit  of  consulting  him  on 
questions  of  difficulty  affecting  the  rights  of  the  Crown. 
A  grand  move  in  the  law  took  place  in  the  month  of 
May,  1592,  on  the  death  of  Sir  Christopher  Hatton, 
when  Sir  John  Puckering  being  made  Lord  Keeper, 
Sir  John  Popham  Chief  Justice  of  England,  and  Sir 
Thomas  Egerton  Attorney  General, — Coke,  in  his  41st 
year,  became  Solicitor  General  to  the  Queen.  But  he 
never  seems,  like  his  great  rival,  to  have  enjoyed 
Elizabeth's  personal  favour.  His  manners  were  not 

u  2 


292  EEIGN  OF  QUEEN  ELIZABETH.       CHAP.  VII. 

prepossessing,  and  out  of  his  profession  he  knew  little ; 
while  Francis  Bacon  was  a  polished  courtier,  and  had 
taken  "  all  knowledge  for  his  province." 

Not  being  sooner  appointed  a  law  officer  of  the 
Crown,  Coke  had  escaped  the  disgrace  of  being  con- 
cerned against  the  Queen  of  Scots,  and  the  scandalous 
attempt  of  prerogative  lawyers — of  which  Elizabeth 
herself  was  ashamed — to  convert  the  peevish  speeches 
against  her  of  that  worthy  old  soldier,  Sir  John  Perrot, 
into  overt  acts  of  high  treason.  This  last  trial  was 
still  pending  when  the  new  Solicitor  General  was  sworn 
in,  but  he  was  not  required  to  appear  in  it ;  *  and  the 
world  remained  ignorant  of  the  qualities  he  was  to  ex- 
hibit as  public  prosecutor,  till  the  arraignment  of  the 
unfortunate  Earl  of  Essex. 

He  was  in  the  meanwhile  to  appear  in  a  capacity 

which   politicians  in  our  time  would  think 

s^elkerof**    ra^er  inconsistent  with  his  functions  as  a 

the  House  of    servant  of  the  Crown.     From  the  expenses 

Commons.  o          .  ,  r . 

Feb.  19, 1593.  of  the  bpanish  war,  the  Queen  was  driven, 
after  an  interval  of  several  years,  to  call  a 
new  parliament ;  and  the  freeholders  of  Norfolk,  proud 
of  their  countryman,  now  evidently  destined  to  fill  the 
highest  offices  in  the  law,  returned  him  as  their  repre- 
sentative, the  election  being,  as  he  states  in  a  note-book 
still  extant,  "  unanimous,  free,  and  spontaneous,  with- 
out any  solicitation,  or  canvassing,  on  my  part." 

The  Commons,  when  ordered  to  choose  a  Speaker, 
fixed  upon  the  new  Solicitor  General,  it  being  thought 
that  his  great  legal  knowledge  would  supply  the  defect 
of  parliamentary  experience.  When  presented  at  the 
bar  for  the  royal  approbation,  he  thus  began  his  address 
to  Elizabeth  : — • 

"  As  in  the  heavens  a  star  is  but  opacum  corpus  until 

*  1  St.  Tr.  1315. 


A.D.  1593.  SIK  EDWAED  COKE.  293 

it  hath  received  light  from  the  sun,  so  stand  I  corpus 
opacum,  a  mute  body,  until  your  Highness's  bright- 
shining  wisdom  hath  looked  upon  me,  and  allowed 
me."  He  goes  on  to  "  disqualify "  himself  at  great 
length,  deploring  the  unlucky  choice  of  the  Commons : 
— "  Amongst  them,"  says  he,  "  are  many  grave,  many 
learned,  many  deep  wise  men,  and  those  of  ripe  judg- 
ments; but  I  am  untimely  fruit,  not  yet  ripe,  but  a 
bud  scarcely  blossomed.  So  as  I  fear  me  your  Majesty 
will  say  'neglecta  frugi  eleguntur  folia,  amongst  so  many 
fair  fruit  you  have  plucked  a  shaken  leaf.' " 

The  Lord  Keeper,  after  taking  instructions  from  the 
Queen,  said, — 

"  Mr.  Solicitor  :  Her  Grace's  most  excellent  Majesty  hath  willed 
me  to  signify  unto  you  that  she  hath  ever  well  conceived  of  you 
since  she  first  heard  of  you,  which  will  appear  when  her  Highness 
elected  you  from  others  to  serve  herself.  But  by  this  your  modest, 
wise,  and  well  composed  speech  you  give  her  Majesty  further 
occasion  to  conceive  of  you  above  whatever  she  thought  was  in 
you.  By  endeavouring  to  deject  and  abase  yourself  and  your 
desert,  you  have  discovered  and  made  known  your  worthiness 
and  sufficiency  to  discharge  the  place  you  are  called  to.  And 
whereas  you  account  yourself  corpus  opacum,  her  Majesty,  by 
the  influence  of  her  virtue  and  wisdom,  doth  enlighten  you  ; 
and  not  only  alloweth  and  approveth  you,  but  much  thanketh 
the  Lower  House,  and  commendtth  their  discretion  in  making 
so  good  a  choice  and  electing  so  fit  a  man.  Wherefore  now,  Mr. 
Speaker,  proceed  in  your  office,  and  go  forward  to  your  com- 
mendation as  you  have  begun." 

Mr.  Speaker  then  made  a  florid  oration  on  the 
Queen's  supremacy,  proving  from  history  that  this 
prerogative  had  always  belonged  to  the  sovereigns  of 
England;  and  concluded  by  praying  for  liberty  of 
speech,  and  the  other  privileges  of  the  Commons.  The 
Lord  Keeper  answered  by  the  Queen's  command  : — 

"  Liberty  of  speech  is  granted  you;  but  you  must  know  what 
privilege  you  have  ;  not  to  speak  every  one  what  he  listeth,  or 
what  cometh  in  his  brain  to  utter,  but  your  privilege  is  aye  or 


294  KEIGN  OP  QUEEN  ELIZABETH.       CHAP.  VII. 

no.  Wherefore,  Mr.  Speaker,  her  Majesty's  pleasure  is,  that  if 
you  perceive  any  idle  heads  which  will  meddle  with  reforming 
the  Church  and  transforming  the  commonwealth,  and  do  exhibit 
any  bills  to  such  purpose,  you  receive  them  not  until  they  be 
viewed  and  considered  by  those  who  it  is  fitter  should  consider 
of  such  things  and  can  better  judge  of  them." 

In  spite  of  this  caution,  a  member  of  the  name  of 
Morris    produced   a  bill  in    the    House   of 
Commons,  "  for  reforming  abuses  in  the  ec- 
clesiastical courts,  and  to  protect  the  clergy  from  the 
illegal   oaths  they  were  called  upon   to   take  by  the 
bishops."      Thereupon,  Mr.   Speaker   Coke   said,    "In 
favour  and  free   love   above   my  merits   or 
desert  you  have  elected  me,  which  should 
bind  me  to  do  all  my  best  service,  and  to 
be   faithful   towards   you.     This  bill   is  long,  and  if 
you  put  me  presently  to  open  it,  I  cannot  so  readily 
understand  it   as   I   should.      Wherefore  if  it  please 
you  to  give  me  leave  to  consider  it,  I  protest  I  will 
be  faithful,  and  keep  it  with  all  secresy."     The  House 
agreed  to  this  proposal,  and  adjourned,  it  being  now 
near  mid-day. 

Mr.  Speaker  immediately  posted  off  to  Court,  pre- 
tending afterwards  that  he  had  been  sent  for  by  the 
Queen,  and  next  morning  declared  from  the  chair  that, 
although  no  man's  eye  but  his  own  had  seen  the  bill, 
her  Majesty  had  desired  him  to  say  "  she  wondered 
that  any  should  attempt  a  thing  which  she  had  ex- 
pressly forbidden ; "  wherefore,  with  this  she  was 
highly  displeased.  "  And,"  added  he,  "  upon  my  al- 
legiance I  am  commanded,  if  any  such  bill  is  ex- 
hibited, not  to  read  it."  Thus  the  bill  was  quashed ; 
and  Morris,  the  mover  of  it,  being  committed  to  the 
custody  of  Sir  John  Fortescue,  the  Chancellor  of  the 
Exchequer,  was  kept  in  durance  for  some  weeks  after 
parliament  was  dissolved. 


A.D.  1593.  SIR  EDWARD  COKE.  295 

One  morning  during  the  session,  Coke,  the  Speaker, 
not  appearing  at  the  sitting  of  the  House,  great  alarm 
arose  ;  but  in  the  mean  time  the  clerk  was  directed  to 
proceed  to  read  the  litany  and  prayers.  A  message  was 
then  received  from  the  Speaker,  that  he  was  "  ex- 
tremely pained  in  his  stomach,  insomuch  that  he  could 
not  without  great  peril  adventure  into  the  air,  but  that 
he  trusted  in  God  to  attend  them  next  day."  "  All 
the  members,  being  very  sorry  for  Mr.  Speaker's  sick- 
ness, rested  well  satisfied  ;  and  so  the  House  did  rise, 
and  every  man  departed  away."  * 

The  dissolution  took  place  on  the  16th  of  April,  when, 
the  Queen  being  seated  on  the  throne,  the 
Speaker  in  presenting  the  bill  of  supply  for 


her  assent,  delivered  an  elaborate  harangue   °n  the  c 

,.       ,.       .,  ,         ,.       .,         „          ,.  solution  of 

on  the  dignity  and  antiquity  01  parliaments,   parliament. 

which  he  concluded  with  the  following  in- 

genious comparison  between  the  state  and  a  beehive  :  — 

"  Sic  enim  parvis  componere  magna  solebam.  The  little  bees 
have  but  one  governor,  whom  they  all  serve  ;  he  is  their  king  ; 
he  is  placed  in  the  midst  of  their  habitation,  ut  in  tutissima 
turri.  They  forage  abroad,  working  honey  from  every  flower 
to  bring  to  their  king.  '  Ignavum  fucos  pecus  a  prcesepibus 
arcent.'  The  drones  they  drive  away  out  of  their  hives,  '  rum 
habentes  aculeos.'  And  whoso  assails  their  king  in  him  '  immit- 
tunt  aculeos,  et  tamen  rex  ipse  est  sine  aculeo.'  Your  Majesty  is 
that  princely  governor  and  noble  Queen  whom  we  all  serve. 
Being  protected  under  the  shadow  of  your  wings,  we  live. 
Under  your  happy  government  we  live  upon  honey,  we  suck 
upon  every  sweet  flower  ;  but  where  the  bee  sucketh  honey, 
there  also  the  spider  draweth  poison.  But  such  drones  we  will 
expel  the  hive.  We  will  serve  your  Majesty,  and  withstand 
any  enemy  that  shall  assault  you.  Our  lands,  our  goods,  our 
lives,  are  prostrate  at  your  feet  to  be  commanded."! 

Who  would  suppose  that  this  was  the  same  indi- 
vidual who  framed  and  carried  the  Petition  of  Eight  ! 
He  was  not  again  a  representative  of  the  people  for 

*  Sir  Simon  d'Ewes  :  Journal,  470.  f  1  Parl.  Hist.  853-893. 


296  KEIGN  OF  QUEEN  ELIZABETH.       CHAP.  VII. 

above  twenty  years,  being,  before  another  parliament 
met,  in  the  office  of  Attorney  General,  then  supposed  to 
be  a  disqualification  for  sitting  in  the  Lower  House ; 
and  afterwards  being  successively  Chief  Justice  of  the 
Common  Pleas  and  of  the  King's  Bench.  For  his  ser- 
vices in  the  chair  he  received  a  gratuity  of  1001. ;  and 
he  again  devoted  himself  to  his  professional  avocations, 
which  had  been  considerably  interrupted,  although  by 
no  means  discontinued,  while  he  acted  as  Speaker. 
Things  went  on  very  smoothly  till  the  month  of 
April  in  the  following  year,  when,  on  the  ap- 
pointment of  Sir  Thomas  Egerton  as  Master  of 
the  Eolls,  the  office  of  Attorney  General  became  vacant. 
Mr.  Solicitor  thought  that,  as  a  matter  of  course,  he  was 
to  succeed  to  it ;  but  there  sprang  up  a  rival,  with  whom 
he  was  in  continual  conflict  during  the  re- 
mainder  of  this  and  the  whole  of  the  suc- 
seeding  reign, — on  whom,  for  deep  injuries, 
General7  ^e  ^°°^  ^ea(^y  revenge, — but  who,  with 
posterity,  has  infinitely  eclipsed  his  fame. 
Francis  Bacon,  nine  years  his  junior  in  age,  and  eight 
years  in  standing  at  the  bar,  with  much  less  technical 
learning,  had,  by  literary  attainments,  and  by  the 
unprecedented  powers  of  debate  which  he  had  dis- 
played in  the  late  parliament,  created  for  himself  a 
splendid  reputation,  and,  without  any  steadiness  of 
principle,  had  by  his  delightful  manners  gained  the 
zealous  support  of  many  private  friends.  Among  these, 
the  most  powerful  was  the  young  Earl  of  Essex,  now 
the  favoured  lover  of  the  aged  Queen.  He  strongly 
represented,  both  to  Elizabeth  and  her  minister,  the 
propriety  of  making  Bacon  at  once  the  first  law  officer 
of  the  Crown, -but  was  asked  for  "  one  precedent  of  so 
raw  a  youth  being  promoted  to  so  great  a  place."  * 
Coke  was,  very  properly,  appointed  Attorney  General ; 

*  Naris's  Life  of  Burleigh,  iii.  436. 


A.D.  1594.  SIR  EDWARD  COKE.  297 

and,  out  of  jealousy,  meanly  discouraged  the  proposal 
to  make  Bacon  Solicitor  General — an  appoint- 
ment which    would  have  been   unobjection-   f^^1.8  pl 
able.     Amidst  these  intrigues,  the  office  of 
Solicitor  General  remained  vacant  a  year  and  a  half, 
and  it  was  at  last  conferred  on  Sir  Thomas  Fleming, 
characterised,   as  we    have   seen,  by  that    mediocrity 
of  talent  and  acquirement  which  has   often  the  best 
chance  of  advancement. 

In  the  two  parliaments  which  afterwards  met  under 
Elizabeth,*  Coke  had  only  to  sit  on  the  Judges'  wool- 
sack in  the  House  of  Lords,  and  to  give  his  advice, 
when  asked,  for  the  guidance  of  their  Lordships  on 
matters  of  law.  But  he  was  called  upon  to  act  a 
prominent  part  in  the  -prosecution  of  state  offenders. 
Towards  the  end  of  Elizabeth's  reign,  many 

.     , .     .  -       ,  • ,  ,     -,  i  .  He  examines 

individuals  were  committed  on  real  or  ima-  state  pri- 
ginary  charges  of  being  concerned  in  plots 
against  the  government  or  the  person  of  the 
Sovereign;  and,  for  the  convenience  of  in- 
flicting torture  upon  them  to  force  a  confession,  their 
place  of  confinement  was  usually  the  Tower  of  London. 
Thither  did  Mr.  Attorney  repair  to  examine  them 
while  under  the  rack;  and  whole  volumes  of  exami- 
nations in  these  cases,  written  with  his  own  hand, 
which  are  still  preserved  at  the  State  Paper  Office, 
sufficiently  attest  his  zeal,  assiduity,  and  hard-hearted- 
ness  in  the  service.  Although  afterwards,  in  his  old 
age,  writing  the  "  Third  Institute,"  he  laid  down,  in 
the  most  peremptory  manner,  that  torture  was  con- 
trary to  the  law  of  England,  and  showed  how  the 
"  rack  or  brake  in  the  Tower  was  first  introduced 
there  in  the  reign  of  Henry  VI.  by  the  Duke  of  Exeter, 
and  so  ever  after  called  the  Duke  of  Exeter's  daughter"^ — 
like  his  predecessor  Egerton,  and  his  successor  Bacon, 

•  1597  and  1601.  t  3  Inst.  35 


298  EEIGN  OF  QUEEN  ELIZABETH.       CHAP.  VII. 

tie  thought  that  the  Crown  was  not  bound  by  this  law ; 
and,  a  warrant  for  administering  torture  being  granted 
by  the  Council,  he  unscrupulously  attended  to  see  the 
proper  degree  of  pain  inflicted.  I  do  not  know  that 
this  practice  reflects  serious  discredit  on  his  memory. 
He  is  not  accused  of  having  been  guilty,  on  these  oc- 
casions, of  any  wanton  inhumanity. 

But  he  incurred  never-dying  disgrace  by  the  manner 

in  which  he  insulted  his  victims  when  they 
HU  brutal  were  placed  at  the  bar  of  a  criminal  court. 
behaviouron  The  first  revolting  instance  of  this  pro- 
he  Eari  of  pensity  was  on  the  trial  of  Eobert,  Earl  of 

Essex,  before  the  Lord  High  Steward  and 
Court  of  Peers,  for  the  insurrection  in  the  City,  with  a 
view  to  get  possession  of  the  Queen's  person  and  to 
rid  her  of  evil  counsellors.  The  offence,  no  doubt, 
amounted  in  point  of  law  to  treason ;  but  the  young 
and  chivalrous  culprit  really  felt  loyalty  and  affection 
for  his  aged  mistress,  and,  without  the  most  distant 
notion  of  pretending  to  the  crown,  only  wished  to 
bring  about  a  change  of  administration,  in  the  fashion 
still  followed  in  Continental  states.  Yet,  after  Yel- 
verton,  the  Queen's  ancient  Serjeant,  had  opened  the 
case  at  full  length  and  with  becoming  moderation, 
Coke,  the  Attorney  General,  immediately  followed  him, 
giving  a  most  inflamed  and  exaggerated  statement  of 
the  facts,  and  thus  concluding :  "  But  now,  in  God's 
most  just  judgment,  he  of  his  earldom  shall  be  '  EGBERT 
THE  LAST,'  that  of  the  kingdom  thought  to  be  '  EGBERT 
THE  FIRST.'  "  His  natural  arrogance,  I  am  afraid,  was 
heightened  on  this  occasion  by  the  recollection  that 
Essex,  stimulated  by  an  enthusiastic  admiration  of  his 
rival,  had  striven  hard  to  prevent  his  promotion  to  the 
office  which  he  now  filled.  The  high-minded,  though 
misguided,  youth  exclaimed,  with  a  calm  and  lofty 
air,  "  He  playeth  the  orator,  and  abuses  your  Lord- 


A.D.  1598.  SIR  EDWARD  COKE.  299 

ships'  ears  with  slanders  ;  but  they  are  but  fashions  of 
orators  in  corrupt  states." 

This  was  a  humiliating  day  for  our  "order"  as 
Bacon  covered  himself  with  still  blacker  infamy  by 
volunteering  to  be  counsel  against  his  friend  and  bene- 
factor, and  by  resorting  to  every  mean  art  for  the 
purpose  of  bringing  him  to  the  scaffold.* 

We  must  now  take  a  glance  at  Coke  in  private  life. 
He  had  no  town  house.     During  term  time, 
and  when  occasionally  obliged  to  be  in  London   va^ilfe!"1" 
in  vacation  for  official  business,  he  slept  in 
his  chambers  in  the  Temple.     From  the  time  of  his 
marriage  his  home  was  at  Huntingfield  Hall,  in  the 
county  of  Suffolk,  an  estate  he  had  acquired  with*  his 
wife.     On  the  27th  of  June,  1598,  he  had  the 
misfortune  to  lose  her,  she  being  then  only  in 
her  thirty-fourth  year.   In  his  memorandum- 
book,  kept  for  his  own  exclusive  use,  is  to  be  found 
under  this  date  the  following  entry : — 

"  Most  beloved  and  most  excellent  wife,  she  well  and  happily 
lived,  and,  as  a  true  handmaid  of  the  Lord,  fell  asleep  in  the  Lord 
and  now  lives  and  reigns  in  Heaven." 

On  the  24th  of  July  she  was  buried  in  Huntingfield 
church,  the  delay  being  necessary  for  the  pomp  with 
which  her  obsequies  were  celebrated. 

From  ambition  and  love  of  wealth,  probably,  rather 
than  from  "  thrift,"— 

.    .    .    .    "the  funeral  bak'd  meats 
Did  coldly  furnish  forth  the  marriage  tables." 

There  was  then  at  court  a  beautiful  young  widow,  only 

twenty  years  of  age,  left  with  an  immense   T 

J  J  e  HIS  court- 

fortune  and  without  children,   highly  con-   ship  of  Lady 

nected,  and  celebrated  for  wit  as  well  as  for 

birth,  riches,  and  beauty,  f    This  was  the  Lady  Hatton, 

*  1  St.  Tr.  1333-1384.  Beauty  "  was  played  before  the  King  at 

t  When  Ben  Jonson's   "Masque  of     Theobald's  and  at  Whitehall,  in  1607, 


300  EEIGN  OF  QUEEN  ELIZABETH.       CHAP.  VII. 

daughter  of  Thomas  Cecil,  eldest  son  of  Lord  Burleigh, 
afterwards  Earl  of  Exeter.  She  had  been  married 
to  the  nephew  and  heir  of  Lord  Chancellor  Hatton. 
Her  first  husband  dying  in  1597,  as  soon  as  she 
was  visible  she  was  addressed  by  her  cousin  Francis 
Bacon,  then  a  briefless  barrister,  but  with  brilliant 
professional  prospects,  although  he  had  "missed 
the  Solicitor's  place."  Whether  she  thought  him  too 
"  contemplative,"  I  know  not,  but  she  gave  him  no 
encouragement;  and  his  suit  was  not  at  all  favoured 
by  her  relations,  the  Cecils,  who  were  jealous  of  his 
superior  abilities,  and  wished  to  keep  him  down, 
that  there  might  be  no  political  rival  to  Eobert,  the 
Treasurer's  younger  son,  now  filling  the  office  of  Secre- 
tary of  State,  afterwards  Earl  of  Salisbury,  and  prime 
minister  to  James  I.  Bacon  employed  the  powerful 
intercession  of  the  Earl  of  Essex,  who,  prior  to  sailing 
on  his  expedition  to  the  coast  of  Spain,  wrote  pressing 
letters  in  support  of  his  suit  to  the  lady  herself,  and 
to  her  father  and  her  mother,  saying  that  "  if  he  had  a 
daughter  of  his  own  he  would  rather  match  her  with 
the  accomplished  lawyer  than  with  men  of  far  greater 
titles." 

The  affair  was  in  this  state  when  Coke  became  a 
widower.  He  immediately  cast  a  longing  eye  on  the 
widow's  great  possessions ;  but  probably  he  would  not 
have  been  roused  to  the  indecorous  and  seemingly  hope- 
less attempt  of  asking  her  in  marriage,  had  it  not  been 
from  the  apprehension  that,  if  Francis  Bacon  should 
succeed,  a  political  and  professional  rival  would  be 
heartily  taken  up  by  the  whole  family  of  the  Cecils, 
and  that  he  himself,  thus  left  without  support,  would 
probably  soon  be  sacrificed.  He  resolved  to  declare  him- 
self her  suitor,  in  spite  of  all  objections  and  difficulties. 

she  was  one  of  the  fifteen  court  beauties     show. — Nichol's    Progresses,    vol.   ii. 
who,  with  the  Queen,  performed  in  the     pp.  174, 175. 


A.D.  1598.  SIR  EDWARD  COKE.  301 

Soon   afterwards    died   the    great    Lord    Treasurer 
Burleigh;  and  Coke,  attending  the  funeral, 
opened  his   scheme   to  her  father,  and  her 
uncle  Sir  Eobert.     They,  looking  to  his  great  wealth 
and  high  position,  and  always  afraid  of  the  influence 
which  Bacon  might  acquire  in  the  House  of  Commons, 
said  they  would  not  oppose  it. 

We  are  left  entirely  in  the  dark  as  to  the  means  he 
employed  to  win  the  consent  of  the  lady.  He  certainly 
could  not  have  gained,  and  never  did  gain,  her  affec- 
tions ;  and  the  probability  is  that  she  succumbed  to 
the  importunities  of  her  relations. 

Still  she  resolutely  refused  to  be  paraded  in  the  face 
of  the  church  as  the  bride  of  the  old  wrinkled  Attorney 
General,  who  was  bordering  on  fifty — an  age  that 
appeared  to  her  to  approach  that  of  Methuselah ;  and 
she  would  only  consent  to  a  clandestine  marriage  by  a 
priest  in  a  private  house,  in  the  presence  of  two  or 
three  witnesses.  But  here  a  great  difficulty  presented 
itself,  for  Archbishop  Whitgift  had  just  thundered 
from  Lambeth  an  anathema  against  irregular  marriages. 
In  a  pastoral  letter  addressed  to  all  the  bishops  of  his 
province,  after  reciting  "  that  many  complaints  had 
reached  him  of  ministers,  who  neither  regarded  her 
Majesty's  pleasure  nor  were  careful  of  their  credit, 
marrying  couples  in  private  houses,  at  unreasonable 
hours,  and  without  proclamation  of  banns,  as  if  ordi- 
nances were  to  be  contemned,  and  ministers  were  to  be 
left  at  large  to  break  all  good  order,"  his  Grace  expressly 
prohibited  all  such  offences  and  scandals  for  the  future, 
and  forbad,  under  the  severest  penalties,  the  celebration 
of  any  marriage  except  during  canonical  hours,  in  some 
cathedral  or  parish  church,  with  the  license  of  the 
ordinary,  or  after  proclamation  of  banns  on  three  Sun- 
days or  holidays.* 

*  Strype's  Life  of  Wliitgift,  p.  522. 


302  KEIGN  OF  QUEEN  ELIZABETH.       CHAP.  VII. 

It  was  an  awkward  thing  for  the  first  law  officer  of 
the  Crown,  celebrated  for  his  juridical  knowledge,  and 
always  professing  a  profound  reverence  for  ecclesiastical 
authority,  to  set  at  defiance  the  spiritual  head  of  the 
Church,  and  to  run  the  risk  of  the  "  greater  excommu- 
nication," whereby  he  would  not  only  be  debarred 
from  the  sacraments  and  from  all  intercourse  with  the 
faithful,  but  would  forfeit  his  property,  and  be  liable 
He  breaks  a  *°  PerPetual  imprisonment.  However,  he 
canon  of  the  determined  to  run  all  risks  rather  than  lose 
the  prize  within  his  reach ;  and  on  the  24th 
of  November,  1598,  in  the  evening,  in  a  private  house, 
without  license  or  banns,  was  he  married  to  the  Lady 
Hatton,  in  the  presence  of  her  father,  who  gave  her 
away. 

Coke  probably  hoped  that  this  transgression  would 
be  overlooked;  for  Whitgift  had  been  his 
StedFJthe  tutor  at  college,  and,  on  his  being  made 
Co^rt!iastical  Attorney  General,  had  kindly  sent  him  a 
Greek  Testament,  with  a  message  "  that  he 
had  studied  the  common  law  long  enough,  and  that  he 
should  thereafter  study  the  law  of  God."  But  this 
pious  primate  now  showed  that  he  was  no  respecter 
of  persons,  for  he  immediately  ordered  a  suit  to  be 
instituted  in  his  court  against  Coke,  the  bride,  the 
Lord  Burleigh,  and  Henry  Bathwell,  the  rector  of 
Okeover,  the  priest  who  had  performed  the  ceremony. 
A  libel  was  exhibited  against  them,  concluding  for  the 
"  greater  excommunication  "  as  the  appropriate  punish- 
ment. 

Mr.  Attorney  made  a  most  humble  submission ;  and, 
in  consequence,  there  was  passed  a  dispensation  under 
the  archiepiscopal  seal,  which  is  registered  in  the 
archives  of  Lambeth  Palace,  absolving  all  the  defend- 
ants from  the  penalties  which  they  had  incurred,  and 
alleging  their  "  ignorance  of  the  ecclesiastical  law  "  as 


A.D.  1598.  SIR  EDWARD  COKE.  303 

an  excuse  for  their  misconduct,  and  for  the  mercy  ex- 
tended to  them. 

However,  the  union  turned  out  as  might  have  been 
foreseen, — a  most  unhappy  one.  There  was  „. 

.  ri/     -  ,  His  quarrels 

not  only  a  sad  disparity  of  years,  but  an   with  his 

,.  ;   ,  3      e  second  wife 

utter  discrepancy  of  tastes  and  of  manners 
between  the  husband  and  wife.  He  was  a  mere  lawyer, 
devoted  to  his  briefs,  and  hating  all  gaiety  and 
expense.  She  delighted  above  all  things  in  hawk- 
ing, in  balls,  and  in  masques :  though  strictly  vir- 
tuous, she  was  fond  of  admiration,  and,  instead  of 
conversing  with  grave  judges  and  apprentices  of  the 
law,  she  liked  to  be  surrounded  by  young  gallants 
who  had  served  under  Sir  Philip  Sydney  and  the 
Earl  of  Essex,  and  could  repeat  the  verses  of  Spenser 
and  Lord  Surrey.  She  would  never  even  take  her 
second  husband's  name,  for  in  doing  so  she  must  have 
been  contented  with  the  homely  appellation  of  "  Mrs. 
Coke,"  or  "  Cook,"  as  she  wrote  it, — for  it  was  not  till 
the  following  reign  that  he  reached  the  dignity  of 
knighthood. 

Within  a  year  .after  their  marriage  they  had  a 
daughter,  about  whom  we  shall  have  much  to  relate : 
but  after  her  birth  they  lived  little  together,  although 
they  had  the  prudence  to  appear  to  the  world  to  be  on 
decent  terms  till  this  heiress  was  marriageable, — when 
their  quarrels  disturbed  the  public  peace — were  dis- 
cussed in  the  Star  Chamber — and  agitated  the  Court  of 
James  I.  as  much  as  any  question  of  foreign  war  which 
arose  during  the  whole  course  of  his  reign. 

In  the  last  illness  of  Queen  Elizabeth,  Coke  did  not, 
like  some  of  her  other  courtiers,  open  a  com- 
munication with  her  successor ;  but  he  always   j'^^if c 
maintained  the  right   of  the  Scottish  line, 
notwithstanding  the  will  of  Henry  VIII.,  which  gave 
a  preference  to  the  issue  of  the  Duchess  of  Suffolk, 


304  EEIGN  OF  QUEEN  ELIZABETH.       CHAP.  VII. 

and  he  assisted  Sir  Bobert  Cecil  in  the  measures  taken 
to  secure  the  succession  of  the  true  heir. 

Coke  prepared  the  dry  lawyer-like  proclamation  of 
the  new  monarch,  which  was  adopted  in  pre- 

A.D.  1603.  r  r 

ference  to  the  rhetorical  one  offered  by  Bacon, 
declaring  "that  no  man's  virtue  should  be  left  idle, 
unemployed,  or  unrewarded."  The  Attorney  General 
was  included  in  the  warrant  under  the  sign  manual  for 
continuing  in  office  the  ministers  of  the  Crown,  and  on 
the  22nd  of  April  his  patent  was  renewed  under  the 
Great  Seal.  He  did  not  show  the  same  impatience  as 
his  rival  to  gain  the  King's  personal  notice,  and  he  was 
not  introduced  into  the  royal  presence  for  several  weeks. 

At  last,  at  a  grand  banquet,  given  in  the 
Coke  is  palace  at  Greenwich  to  the  principal  persons 
knighted.  Qf  ^Q  kingdom,  James,  with  many  civil 
speeches,  conferred  upon  him  the  honour  of  knighthood, 
along  with  Lee  the  Lord  Mayor  of  London,  and  Crook 
the  Eecorder.  To  his  credit  it  should  be  remembered, 
that  he  at  no  time  strove  to  gain  the  favour  of  the  great, 
— that  he  never  mixed  in  court  intrigues, — and  that  he 
was  contented  to  recommend  himself  to  promotion  by 
what  he  considered  to  be  the  faithful  discharge  of  his 
official  duties. 

His  first  appearance  as  public  prosecutor  in  the  new 

reign  was  on  the  trial,  before  a  special  com- 
His  insulting  mission  at  Winchester,  of  Sir  Walter  Ealeigh, 
sir  WaHei°  charged  with  high  treason  by  entering  into 
Raleigh.  a  plot  to  put  tne  La(jy  Arabella  Stuart  on  the 
throne  ;  and  here,  I  am  sorry  to  say  that,  by  his  brutal 
conduct  to  the  accused,  he  brought  permanent  disgrace 
upon  himself  and  upon  the  English  bar.  He  must 
have  been  aware  that,  notwithstanding  the  mys- 
terious and  suspicious  circumstances  which  sur- 
rounded this  affair,  he  had  no  sufficient  case  against 
the  prisoner,  even  by  written  depositions  and  according 


A.D.  1603.  SIR  EDWARD  COKE.  305 

to  the  loose  notions  of  evidence  then  subsisting ;  yet  he 
addressed  the  jury,  in  his  opening,  as  if  he  were  scan- 
dalously ill-used  by  any  defence  being  attempted.  While 
he  was  detailing  the  charge,  which  he  knew  could  not 
be  established,  of  an  intention  to  destroy  the  King  and 
his  children, — at  last  the  object  of  his  calumny  interposed 
and  the  following  dialogue  passed  between  them  : — 

Raleigh :  "  You  tell  me  news  I  never  heard  of."  Attorney 
General :  "  Oh,  sir,  do  I  ?  I  will  prove  you  the  notoriest  traitor 
that  ever  held  up  his  hand  at  the  bar  of  any  court."  It. :  "  Your 
words  cannot  condemn  me ;  my  innocency  is  my  defence. 
Prove  one  of  these  things  wherewith  you  have  charged  me, 
and  I  will  confess  the  whole  indictment,  and  that  I  am  the 
horriblest  traitor  that  ever  lived,  and  worthy  to  be  crucified  with 
a  thousand  thousand  torments."  A.  6. :  "  Nay,  I  will  prove 
all :  thou  art  a  monster :  thou  hast  an  English  face,  but  a 
Spanish  heart."  R. :  "  Let  me  answer  for  myself."  A.  O. :  "  Thou 
shalt  not."  R. :  «  It  concerneth  my  life."  A.  O. :  "  Oh  1  do  I 
touch  you  ?" 

The  proofless  narrative  having  proceeded,  Ealeigh 
again  broke  out  with  the  exclamation,  "  You  tell  me 
news,  Mr.  Attorney!"  and  thus  the  altercation  was 
renewed : — 

A.  O. :  "  Oh,  sir,  I  am  the  more  large  because  I  know  with 
whom  I  deal ;  for  we  have  to  deal  te-day  with  a  man  of  wit.  I 
will  teach  you  before  I  have  done."  JR. :  "  I  will  wash  my  hands 
of  the  indictment,  and  die  a  true  man  to  the  King." 
A.O. :  "  You  are  the  absolutest  traitor  that  ever  was."  R. : "  Your 
phrases  will  not  prove  it."  A.  O.  (in  a  tone  of  assumed  calm- 
ness and  tenderness) :  "  You,  my  masters  of  the  jury,  respect  not 
the  wickedness  and  hatred  of  the  man ;  respect  his  cause :  if 
he  be  guilty,  I  know  you  will  have  care  of  it,  for  the  preserva- 
tion of  the  King,  the  continuance  of  the  Gospel  authorised,  and 
the  good  of  us  all."  R. :  "I  do  not  hear  yet  that  you  have 
offered  one  word  of  proof  against  me.  If  my  Lord  Cobham  be 
a  traitor,  what  is  that  to  me  ?"  A.  O. :  "  All  that  he  did  was 
by  thy  instigation,  thou  viper ;  for  I  thou  thee,  thou  traitor."  * 

*  Sir  Toby,  in  giving  directions  to  Sir  shall  not  be  amiss;  and  as  many  lies  as 

Andrew  for  his  challenge  to  Viola,  is  will  lie  in  thy  sheet  of  paper.  Let  there 

supposed  to  allude  to  this  scene : —  be  gall  enough  in  thy  ink." — Twelfth, 

"  If  thou  tiwus't  him  some  thrice,  it  Night,  act  iii.  sc.  2. 

VOL.   I.  X 


306  KEIGN  OF  JAMES  I.  CHAP.  VII, 

The  depositions  being  read,  which  did  not  by  any 
means  make  out  the  prisoner's  complicity  in  the  plot, 
he  observed, — 

"  You  try  me  by  the  Spanish  Inquisition,  if  you  proceed  only 
by  circumstances,  without  two  witnesses."  A.  G.:  "  This  is  a 
treasonable  speech."  R. :  "  I  appeal  to  God  and  the  King  in 
this  point,  whether  Cobham's  accusation  is  sufficient  to  con- 
demn me  ?"  A.  (?. :  "  The  King's  safety  and  your  clearing 
cannot  agree.  I  protest  before  God  1  never  knew  a  clearer 
treason.  Go  to,  I  will  lay  thee  upon  thy  back  for  the  confi- 
dentest  traitor  that  ever  came  at  a  bar." 

At  last,  all  present  were  so  much  shocked  that  the 
Earl  of  Salisbury,  himself  one  of  the  Commissioners, 
rebuked  the  Attorney  General,  saying,  "  Be  not  so 
impatient,  good  Mr.  Attorney ;  give  him  leave  to  speak." 
A.  G.:  "If  I  may  not  be  patiently  heard,  you  will  en- 
courage traitors  and  discourage  us.  I  am  the  King's 
sworn  servant,  and  must  speak."  The  reporter  relates 
that  "here  Mr.  Attorney  sat  down  in  a  chafe,  and 
would  speak  no  more  until  the  Commissioners  urged 
and  entreated  him.  After  much  ado  he  went  on,  and 
made  a  long  repetition  of  all  the  evidence,  thus  again 
addressing  Sir  Walter :  '  Thou  art  the  most  vile  and 
execrable  traitor  that  ever  lived.  I  want  words  suf- 
ficient to  express  thy  viprous  treasons.'  " 

Of  course  there  was  a  verdict  of  guilty  ;  but  public 
feeling  was  so  outraged,  that  the  sentence  could  not 
then  be  carried  into  execution.  He  languished  many 
years  in  prison,  and,  after  his  unfortunate  expedition 
to  Guiana,  the  atrocity  was  perpetrated  of  ordering 
him  to  be  hanged,  drawn,  and  quartered  on  this  illegal 
judgment. 

Sir  Edward  Coke's  arrogance  to  the  whole  bar,  and 
to  all  who  approached  him,  now  became  almost  insuf- 
ferable. His  demeanour  was  particularly  offensive  to 
his  rival,  who,  although  without  office,  excited  his 


A.D.  1603.  SIR  EDWARD  COKE.  307 

jealousy  by  the  splendid  literary  fame  which  he  had 
acquired,  and  by  the  great  favour  which  he  enjoyed  at 
Court.    Bacon,  as  yet,  was  only  King's  coun-   Logomachy 
sel,  all  his  intrigues  for  promotion  having   cokeaad 
proved    abortive.     He    has   left  us    a  very   Bacon- 
graphic  account  of  one  of  his  encounters  with  the  tyrant 
of  Westminster   Hall  near  the  close  of  the  preceding 
reign.     Having  to  make  a  motion  in  the  Court  of  Ex- 
chequer, which,  it  seems,  he  knew  would  be  disagree- 
able to  Coke,  he  says — 

"  This  I  did  in  as  gentle  and  reasonable  terms  as  might  be. 
Mr.  Attorney  kindled  at  it,  and  said,  '  Mr.  Bacon,  if  you  have  any 
tooth  against  me,  pluck  it  out ;  for  it  will  do  you  more  hurt  than 
all  the  teeth  in  your  head  will  do  you  good.'  I  answered  coldly 
in  these  very  words,  '  Mr.  Attorney,  I  respect  you ;  I  fear  you 
not ;  and  the  less  you  speak  of  your  own  greatness,  the  more  I 
will  think  of  it.'  He  replied,  '  I  think  scorn  to  stand  upon  terms 
of  greatness  towards  you,  who  are  less  than  little — less  than  the 
least,' — and  other  such  strange  light  terms  he  gave  me,  with  that 
insulting  which  cannot  be  expressed.  Herewith  stirred,  yet  I 
said  no  more  but  this,  '  Mr.  Attorney,  do  not  depress  me  so  far ; 
for  I  have  been  your  better,  and  may  be  again  when  it  please  the 
Queen.'  With  this  he  spake,  neither  I  nor  himself  could  tell 
what,  as  if  he  had  been  lorn  Attorney  General;  and,  in  the  end, 
bade  me  '  not  meddle  with  the  Queen's  business,  but  with  mine 
own,  and  that  I  was  unsworn,'  &c.  I  told  him,  '  sworn  or  un- 
sworn was  all  one  to  an  hbnest  man,  and  that  I  ever  set  my 
service  first  and  myself  second,  and  wished  to  God  that  he 
would  do  the  like.'  Then  he  said  '  it  were  good  to  clap  a  cap. 
utlagatum  upon  my  back.'  To  which  I  only  said  '  he  could  not, 
and  that  he  was  at  a  fault,  for  that  he  hunted  on  an  old  scent.'* 
He  gave  me  a  number  of  disgraceful  words  besides ;  which  I 
answered  with  silence,  and  showing  that  I  was  not  moved  with 
tbenv't 

The  enmity  between  them  being  still  further  exas- 
perated by  subsequent  conflicts,  Bacon  at  length  wrote 
the  ^following  letter  of  seeming  defiance,  but  couched 
in  terms  which  it  was  thought  might  soften  Sir  Edward, 

*  This  is  supposed  to  allude  to  pro-        f  Bacon's  Works,  ed.  1819,  vol.  vi. 
cess  of  outlawry  against  Bacon  at  the     p.  46. 
suit  of  a  usurer. 

x  2 


308  REIGN  OF  JAMES  I.  CHAP.  VII. 

or,  at  any  rate,  induce  him  to  think  it  for  his  advantage 
to  come  to  a  reconciliation : — 

"  Mr.  Attorney, 

"  I  thought  it  best,  once  for  all,  to  let  you  know  in  plain- 
Bacon's  letter  ness  wna*  *  nnd  of  you,  and  what  you  shall  find 
of  remon-  of  me.  You  take  to  yourself  a  liberty  to  disgrace 
gtrance  to  an^  disable  my  law,  my  experience,  my  discretion  : 
what  it  pleaseth  you,  I  pray,  think  of  me  :  I  am  one 
that  knows  both  mine  own  wants  and  other  men's ;  and  it  may 
be,  perchance,  that  mine  mend,  and  others'  stand  at  a  stay.  And 
surely  I  may  not  endnre  in  public  place  to  be  wronged  without 
repelling  the  same,  to  my  best  advantage  to  right  myself. 
You  are  great,  and  therefore  have  the  more  enviers,  which  would 
be  glad  to  have  you  paid  at  another's  cost.  Since  the  time  I 
missed  the  Solicitor's  place  (the  rather  I  think  by  your  means), 
I  cannot  expect  that  you  and  I  shall  ever  serve  as  Attorney  and 
Solicitor  together;  but  either  to  serve  with  another  on  your 
remove,  or  to  step  into  some  other  course,  so  as  I  am  more  free 
than  I  ever  was  from  any  occasion  of  unworthy  conforming 
myself  to  you  more  than  general  good  manners  or  your  particular 
good  usage  shall  provoke ;  and  if  you  had  not  been  short-sighted 
in  your  own  fortune  (as  I  think),  you  might  have  had  more  use 
of  me.  But  that  side  is  passed.  I  write  not  this  to  show  my 
friends  what  a  brave  letter  I  have  written  to  Mr.  Attorney.  I 
have  none  of  those  humours ;  but  that  I  have  written  it  to  a  good 
end,  that  is,  to  the  more  decent  carriage  of  my  master's  service, 
and  to  our  particular  better  understanding  one  of  another.  This 
letter,  if  it  should  be  answered  by  you  in  deed  and  not  in  word, 
I  suppose  it  will  not  be  worse  for  us  both,  else  it  is  but  a  few 
lines  lost,  which  for  a  much  smaller  matter  I  would  have  ad- 
ventured. So  this  being  to  yourself,  I  for  my  part  rest,"  &c.* 

But  Coke  was  inflexible,  and,  as  long  as  he  remained 
at  the  bar — encouraging  only  men  who  might  be  use- 
ful, without  being  formidable  to  him — would  bear  "  no 
brother  near  his  throne." 

The  breaking  out  of  the  Gunpowder  treason  en- 
NOV.  6,  lees,  hanced,  if  possible,  his  importance  and  his 
Sets  the"  superciliousness.  The  unravelling  of  the  plot 
prosecution  \vas  entirely  intrusted  to  him.  He  person- 
Fawkes.  ally  examined,  many  times,  Guy  Fawkes 
and  the  other  prisoners  apprehended  when  the  plot 

*  Bacon's  Works,  iv.  570, 


A.D.  1606.  SIR  EDWARD  COKE.  309 

was  discovered,  but  it  is  believed  that  they  were  not 
in  general  subjected  to  the  rack,  as  they  did  not  deny 
their  design  to  blow  into  the  air  the  King  and  all  his 
court,  with  all  the  members  of  both  houses  of  parlia- 
ment.* 

When  the  trial  came  on,  Coke  opened  the  case  to 
the  jury  at  enormous  length,  dividing  his  jan.  2i, 
discourse  after  the  manner  of  the  age  :  "  The  1606> 
considerations  concerning  the  powder  treason,"  said 
he,  "are  in  number  eight:  that  is  to  say,  1.  The 
persons  by  whom ;  2.  The  persons  against  whom ; 
3.  The  time  when ;  4.  The  place  where ;  5.  The  means ; 
6.  The  end ;  7.  The  secret  contriving ;  and,  lastly, 
the  admirable  discovery  thereof."  Under  the  first 
head,  after  recapitulating  all  the  plots,  real  or  imagi- 
nary, to  overturn  the  Protestant  government,  which 
the  Roman  Catholics  were  supposed  to  have  entered 
into  since  the  Reformation,  he  boasted  much  of  the 
clemency  of  Queen  Elizabeth,  averring  that,  "in  all 
her  Majesty's  time,  by  the  space  of  forty-four  years 
and  upwards,  there  were  executed  in  all  not  thirty 
priests,  nor  above  five  receivers  and  harbourers  of 
them."  Perhaps  his  style  of  oratory  may  best  be 
judged  of  by  the  conclusion  of  his  commentary  upon 
the  seventh  head: — 

"  S.  P.  Q.  R.  was  sometimes  taken  for  these  words,  Senatus 
populusque  Romanus, the  senate  and  people  of  Rome;  but  now 
they  may  truly  be  expressed  thus,  Stultus  populus  qucerit  Somam, 
a  foolish  people  that  runneth  to  Rome.  And  here  I  may  aptly 

•  Gny,  however,  was  made  to  "  kiss  mountains ! ! !"    Two  fac-similes  of  his 

the  Duke  of  Exeter's  daughter,"  for  he  signature  are  to  be  seen  in  Jardine's 

long  refused  to  say  more  than  that  "  his  Criminal  Trials :  the  first  in  a  good  bold 

object  was  to  destroy  the  parliament  as  hand,  before  torture ;  the  second  after 

the  sole  means  of  putting  an  end  to  re-  torture,  exhibiting  the  word  "  Guido  " 

ligious  persecution."    A  Scottish  noble-  in  an  almost  illegible  scrawl,  and  two 

man  having  asked  him  "  for  what  end  ill-formed  strokes  in  place  of  his  sur- 

he  had  collected  so  many  barrels  of  gun-  name — apparently  having  been  unable 

powder  ?"    he   replied,    "  To  blow   the  to  hold  the  pen  any  longer. — Jardine's 

Scottish  beggars  back  to  their  native  Grim.  Tr.  p.  17. 


310  REIGN  OP  JAMES  I.  CHAP.  VII. 

narrate  the  apologue  or  tale  of  the  cat  and  the  mice.  The  cat 
having  a  long  time  preyed  upon  the  mice,  the  poor  creatures  at 
last,  for  their  safety,  contained  themselves  within  their  holes ; 
but  the  cat,  finding  his  prey  to  cease,  as  being  known  to  the 
mice  that  he  was  indeed  their  enemy  and  a  cat,  deviseth  this 
course  following,  viz.  changeth  his  hue,  getting  on  a  religious 
habit,  shaveth  his  crown,  walks  gravely  by  their  holes,  and  yet 
perceiving  that  the  mice  kept  their  holes,  and  looking  out  sus- 
pected the  worst,  he  formally  and  father-like  said  unto  them, '  Quod 
fueram  non  sum,  f rater,  caput  aspice  tonsum!  Oh,  brother!  I 
am  not  as  you  take  me  for,  no  more  a  cat ;  see  my  habit  and 
shaven  crown !'  Hereupon  some  of  the  more  credulous  and 
bold  among  them  were  again,  by  this  deceit,  snatched  up ;  and 
therefore,  when  afterwards  he  came  as  before  to  entice  them 
forth,  they  would  come  out  no  more,  but  answered,  '  Cor  tibi 
restat  idem,  vix  tibi  prcesto  fidem.  Talk  what  you  can,  we  will 
never  believe  you  ;  you  have  still  a  cat's  heart  within  you.  You 
do  not  watch  and  pray,  but  you  watch  to  prey.'  And  so  have 
the  Jesuits,  yea,  and  priests  too  ;  for  they  are  all  joined  in  the 
tails  like  Samson's  foxes.  Ephraim  against  Manasses,  and 
Manasses  against  Ephraim ;  and  both  against  Judah." 

When  Coke  came  to  the  last  head,  he  showed  the 
extent  to  which  courtly  flattery  was  in  that  age  pro- 
fanely carried.  On  the  receipt  of  the  mysterious  letter 
to  Lord  Monteagle,  saying,  "  thoughe  theare  be  not 
the  apparence  of  ani  stir,  yet  i  saye  they  shall  receyve 
a  terribel  blowe  this  parleament,  and  yet  they  shall 
not  seie  who  hurts  them,"  the  Council  before  whom  it 
was  laid,  without  consulting  the  King,  immediately 
suspected  the  true  nature  of  .the  plot,  and  took  mea- 
sures to  guard  against  it.  The  Earl  of  Salisbury,  in 
his  circular  giving  the  first  account  of  it,  said,  "  We 
conceived  that  it  could  not  by  any  other  way  be  like 
to  be  attempted  than  with  powder,  while  the  King  was 
sitting  in  that  assembly :  of  which  the  Lord  Chamber- 
lain conceived  more  probability  because  there  was  a 
great  vault  under  the  said  chamber.  We  all  thought 
fit  to  forbear  to  impart  it  to  the  King  until  some 
three  or  four  days  before  the  session."*  Yet  Coke  now 

*  Winwood,  il.  171. 


A.D.  1606.  SIR  EDWARD  COKE.  311 

undertook  to  show  "  how  the  King  was  divinely  illu- 
minated by  Almighty  God,  the  only  ruler  of  princes, 
like  an  angel  of  God,  to  direct  and  point  out  as  it  were 
to  the  very  place — to  cause  a  search  to  be  made  there, 
out  of  those  dark  words  of  the  letter  concerning  a  ter- 
rible blow." 

The  prisoners  were  undoubtedly  all  guilty,  and  there 
was  abundant  evidence  against  them;  but  we  must 
deplore  the  manner  in  which  Coke  indulged  in  his 
habit  of  insulting  his  victims.  When  Sir  Everard 
Digby,  interrupting  him,  said  "  that  he  did  not  justify 
the  fact,  but  confessed  that  he  deserved  the  vilest  death 
and  the  most  severe  punishment  that  might  be,  but 
that  he  was  an  humble  petitioner  for  mercy  and  some 
moderation  of  justice,"  Coke  replied,  with  a  cold-blooded 
cruelty  which  casts  an  eternal  stain  upon  his  memory, 
"  that  he  must  not  look  to  the  King  to  be  honoured  in 
the  manner  of  his  death,  having  so  far  abandoned  all 
religion  and  humanity  in  his  action ;  but  that  he  was 
rather  to  admire  the  great  moderation  and  mercy  of  the 
King  in  that,  for  so  exorbitant  a  crime,  no  new  torture 
answerable  thereto  was  devised  to  be  inflicted  on  him. 
And  for  his  wife  and  children :  whereas  he  said  that 
for  the  Catholic  cause  he  was  content  to  neglect  the 
ruin  of  himself,  his  wife,  his  estate,  and  all,  he  should 
have  his  desire,  as  it  is  in  the  Psalms :  Let  his  wife  be 
a  widow,  and  his  children  vagabonds ;  let  his  posterity 
be  destroyed,  and  in  the  next  generation  let  his  name 
be  quite  put  out." 

I  am  glad  for  the  honour  of  humanity  to  add,  from 
the  report,  "  Upon  the  rising  of  the  court,  Sir  Everard 
Digby,  bowing  himself  towards  the  Lords,  said,  '  If  I 
may  but  hear  any  of  your  Lordships  say  you  forgive 
me,  I  shall  go  more  cheerfully  to  the  gallows.'  Where- 
unto  the  Lords  said,  '  God  forgive  you,  and  we  do.'  "* 

•  2  St.  Tr.  159-195. 


312  EEIGN  OF  JAMES  L  CHAP.  VIL 

There  was  still  greater  interest  excited  by  the  case 
Trial  at  °^  Garnet,  the  Superior  of  the  Jesuits,  who 
Garnet  tbe  was  suspected  of  having  devised  the  plot — 
March  as.  who  had  certainly  concealed  it  when  he 
knew  it — but  against  whom  there  was  hardly 
any  legal  evidence.  His  trial  came  on  at  the  Guild- 
hall of  the  city  of  London,  King  James  being  present, 
with  all  the  most  eminent  men  of  the  time.  Coke  tried 
to  outdo  his  exertions  against  the  conspirators  who 
had  taken  an  active  part  in  preparing  the  grand  ex- 
plosion. When  he  had  detailed  many  things  which 
took  place  in  the  reign  of  Elizabeth,  he  turned  away 
from  the  jury  and  addressed  the  King,  showing  how 
his  Majesty  was  entitled  to  the  crown  of  England  as 
the  true  heir  of  Edward  the  Confessor  as  well  as  of 
William  the  Conqueror,  and  how  he  was  descended 
from  the  sovereign  who  had  united  the  white  and  the 
red  roses.  "  But,"  exclaimed  the  orator,  "  a  more 
famous  union  is,  by  the  goodness  of  the  Almighty, 
perfected  in  his  Majesty's  person  of  divers  lions — two 
famous,  ancient,  and  renowned  kingdoms,  not  only 
without  blood  or  any  opposition,  but  with  such  an 
universal  acclamation  and  applause  of  all  sorts  and 
degrees,  as  it  were  with  one  voice,  as  never  was  seen 
or  read  of.  And  therefore,  most  excellent  King, — for 
to  him  I  will  now  speak, — 

"Com  triplici  folvnm  coqfnnge  tame  teooem, 

Ut  Tarias  aUros  jnnxerat  ante  rasas: 
Ha  jus  opus  varioe  sine  pogna  unire  tones. 
Sanguine  qaam  Tarias  coosooasse  rooas." 

He  again  asserted  that  a  miracle  had  been  worked 
to  save  and  to  direct  the  King :  "  God  put  it  into  his 
Majesty's  heart  to  prorogue  the  parliament ;  and,  fur- 
ther, to  open  and  enlighten  his  understanding  out 
of  a  mystical  and  dark  letter,  like  an  angel  of  God,  to 
point  to  the  cellar  and  command  that  it  be  searched ; 


A.D.  1606.  SIR  EDWARD  COKE.  313 

so  that  it  was  discovered  thus  miraculously  but  even 
a  few  hours  before  the  design  should  have  been  exe- 
cuted." Thus  he  described  the  prisoner :  "  He  was 
a  corrector  of  the  common  law  print  with  Mr.  Tottle 
the  printer,  and  now  he  is  to  be  corrected  by  the  law. 
He  hath  many  gifts  and  endowments  of  nature — by 
art  learned — a  good  linguist — and  by  profession  a 
Jesuit  and  a  Superior.  Indeed,  he  is  superior  to  all 
his  predecessors  in  devilish  treason — a  doctor  of  Je- 
suits; that  is,  a  doctor  of  six  D's, — as  Dissimulation, 
Deposing  of  princes,  Disposing  of  kingdoms,  Daunting 
and  Deterring  of  subjects,  and  Destruction."  Then 
he  wittily  and  tastefully  concluded :  "  Qui  cum  Jew 
itit,  non  itis  cum  Jesuitis,  for  they  encourage  themselves 
in  mischief,  and  commune  among  themselves  secretly 
how  they  may  lay  snares,  and  say  that  no  man  shall 
see  them.  But  God  shall  suddenly  shoot  at  them  with 
a  swift  arrow,  that  they  shall  be  wounded ;  insomuch 
that  whoso  seeth  it  shall  say,  '  this  hath  God  done,'  for 
they  shall  perceive  that  it  is  his  work."* 

The  prisoner  was  found  guilty;  but,  giving  credit  to 
all  the  depositions  and  confessions,  they  did  not  prove 
upon  him  a  higher  offence  than  misprision  of  treason,  in 
not  revealing  what  had  been  communicated  to  him  in 
confession :  and  execution  was  delayed  for  two  months, 
till,  after  much  equivocation,  he  was  induced  by 
various  contrivances  to  admit  that  the  plot  had  been 
mentioned  to  him  on  other  occasions,  although  he 
averred  to  the  last  that,  instead  of  consenting  to  it, 
he  had  attempted  to  dissuade  Fawkes  and  the  other 
conspirators  from  persisting  in  it. 

This  was  the  last  prosecution  in  which  Coke  ap- 
peared before  the  public  as  Attorney  General.  He 
had  filled  the  office  above  twelve  years — the  most  dis- 
creditable portion  of  his  career.  While  a  law  officer 

*  2  St.  Tr.  217-358. 


314  REIGN  OF  JAMES  I.  CHAP.  VII. 

of  the  Crown,  he  showed  a  readiness  to  obtain  con- 
victions for  any  offences,  and  against  any  individuals, 
at  the  pleasure  of  his  employers ;  and  he  became 
hardened  against  all  the  dictates  of  justice,  of  pity, 
of  remorse,  and  of  decency.  He  gave  the  highest  satis- 
faction first  to  Burleigh,  and  then  to  his  son  and  suc- 
cessor, Eobert  Cecil,  become  Earl  of  Salisbury,  and  all 
legal  dignities  which  fell  were  within  his  reach ;  but, 
fond  of  riches  rather  than  of  ease,  he  not  only  despised 
puisneships,  but  he  readily  consented  to  Anderson  and 
Gawdy  being  successively  appointed  to  the  office  of 
Chief  Justice  of  the  Common  Pleas,  at  that  time  the 
most  lucrative,  and  considered  the  most  desirable,  in 
Westminster  Hall  next  to  that  of  Lord  Chancellor.  The 
Attorney  General  was  supposed  to  hold  by  as  secure  a 
tenure  as  a  Judge ;  and  his  fees,  particularly  from  the 
Court  of  Wards  and  Liveries,  were  enormous,*  so  that 
he  was  often  unwilling  to  be  "  forked  up  to  the  bench," 
which  with  a  sad  defalcation  of  income,  offered  him 
little  increase  of  dignity ;  for,  till  the  elevation  of 
Jeffreys  in  the  reign  of  James  II.,  no  common  law 
judge  had  been  made  a  peer. 

But,  at  last,  Coke  felt  fatigued,  if  not  satiated,  with 
amassing  money  at  the  bar,  and,  on  the 
Chief  Justice  death  of  Gawdy,  he  resigned  his  office  of 
Attorney  General,  and  became  Chief  Justice 
of  the  Court  of  Common  Pleas.  As  a  pre- 
liminary, he  took  upon  himself  the  degree 
of  Serjeant-at-law ;  and  he  gave  rings  with  the  motto, 
"  Lex  est  tutissima  cassis."  Mr.  Coventry,  afterwards 
Lord  Keeper,  whom  he  had  much  patronised,  acted  as 
his  PoNY.f 

*  The  salary  of  Attorney  General  was  -f-  Dug.  Or.  Jnr.  p.  102.1 

only  8 II.  6s.  Sd.,  but  his  official  emolu-  j  I  have  been  favoured,  by  a  learned 

ments  amounted  to  70001.  a  year.  Coke's  and  witty  friend  of  mine,  with  the  fol- 

private  practice,  besides,  must  have  been  lowing  "  Note  on  the  Serjeant's  Pony. — 

very  profitable  to  him.  When  the  utter  barrister  is  advanced 


1606. 


SIR  EDWAED  COKE. 


315 


"  He  was  sworn  in  Chancery  as  Serjeant,"  says  Judge  Croke, 
the  reporter,  "  and  afterwards  went  presently  into  the  Treasury 
of  the  Common  Bench,  and  there  by  Popham,  Chief  Justice,  his 
party  robes  were  put  on,  and  he  forthwith,  the  same  day,  was 
brought  to  the  bar  as  Serjeant,  and  presently  after,  his  writ 
read  and  count  pleaded,  he  was  created  Chief  Justice,  and  sat 
the  same  day,  and  afterwards  rose  and  put  off  his  party  robes  and 
put  on  his  robes  as  a  Judge,  and  the  second  day  after  he  went  to 
Westminster,  with  all  the  Society  of  the  Inner  Temple  attending 
upon  him."* 

The  ceremony  of  riding  from  Serjeants'  Inn  to  West- 
minster in  the  party-coloured  robes  of  a  Serjeant  was 
dispensed  with  in  his  case  by  special  favour ;  but  when 
Sir  Henry  Yelverton,  on  his  promotion  soon  after,  re- 
quested the  like  privilege,  "the  Judges  resolved  that  the 
precedent  of  Sir  Edward  Coke  ought  not  to  be  folio  wed."  f 


'ad  gradum  servientis  ad  legem,'  he 
gives,  as  the  reporters  of  all  the  courts 
never  omit  to  record,  a  ring  with  a 
motto;  a  posy,  sometimes  more  or  less 
applicable  to  the  donor  or  to  the  occa- 
sion,— sometimes  to  neither.  These 
rings  are  presented  to  persons  high  in 
station  (that  for  the  sovereign  is  received 
by  the  hands  of  the  Lord  Chancellor),  and 
to  all  the  dignitaries  of  the  law,  by  a 
barrister  whom  the  Serjeant  selects  for 
that  honourable  service,  and  who  is 
called  his  'pony.'  Why?  Simply 
because  the  offering  he  brings  is  the 
honorarium,  compounding,  or  composi- 
tion, which  is  paid  by  the  learned  gra- 
duate upon  his  degree  of  serjeant-at-law. 
IGNORAMUS  (act  ii.  scene  7)  enters  with 
money  in  a  bag.  Ignar.  '  Hie  est  legem 
pone.  Hie  sunt  sexoentse  corona?  pro 
meo  caro  corde  Rosabelia.'  Upon  which 
passage  says  the  learned  commentator 
Hawkins :  '  Legem  pone.  This  appears 
to  have  been  a  cant  term  for  ready 
money.'  Dr.  Heylin,  in  his  '  Voyage  of 
France,'  p.  292,  speaking  of  the  Uni- 
versity of  Orleans, '  In  the  bestowing  of 


their  degrees  here  they  are  very  liberal, 
and  deny  no  man  that  is  able  to  pay  his 
fees.  Legem  ponere  is  with  them  more 
powerful  than  legem  dicere ;  and  he  that 
hath  but  his  gold  ready,  shall  have  a 
sooner  despatch  than  the  best  scholar 
upon  the  ticket.'  In  the  translation  of 
Rabelais  by  Ozell,  c.  xii.  book  4,  the 
phrase  '  En  payant '  is  rendered  '  the 
Legem  Pone.'  '  They  were  all  at  our 
service  for  the  Legem  Pone.'  And 
finally,  Tusser,  in  his  Good  Husbandly 
Lessons  worthy  to  be  followed  by  such 
as  will  thrive,  prefixed  to  his  Four 
Hundred  Points  of  Good  Husbandry,  re- 
commends punctuality  in  payment  of 
debts  by  the  following  distich : 
•  Use  Legem  Pone  to  pay  at  thy  day, 

But  use  not  "  Oremus  "  for  often  delay.' 
In  the  language,  therefore,  of  a  ser- 
jeant's  posy,  '  Ex  sequo  et  bono,'  I  should 
say  that,  regard  being  had  to  the  valu- 
able consideration  of  which  he  is  the 
bearer,  his  pony's  derivation  savours 
more  of  the  bonus  than  the  equut." 

*  Cro.  Jac.  125. 

t  Ibid.  vol.  iii.  introd.  p.  7. 


316  KEIGN  OF  JAMES  I.  CHAP.  VIII. 


CHAPTEE  VIII. 

CONTINUATION  OF  THE  LIFE  OF  SIR  EDWARD  COKE  TILL  HE 
WAS  DISMISSED  FROM  THE  OFFICE  OF  CHIEF  JUSTICE  OF 
THE  COURT  OF  KING'S  BENCH. 

COKE,  while  Attorney  General,  was  liable  to  the 
severest  censure :  he  unscrupulously  stretched  the 
His  men-  prerogative  of  the  Crown,  showing  himself 
toriouscon-  for  the  time  utterly  regardless  of  public 
judge.  liberty;  he  perverted  the  criminal  law  to 

the  oppression  of  many  individuals ;  and  the  arrogance 
of  his  demeanour  to  all  mankind  is  unparalleled.  But 
he  made  a  noble  amends.  The  whole  of  his  subse- 
quent career  is  entitled  to  the  highest  admiration. 
Although  holding  his  judicial  office  at  the  pleasure 
of  a  King  and  of  ministers  disposed  to  render  Courts 
of  Justice  the  instruments  of  their  tyranny  and  caprice, 
he  conducted  himself  with  as  much  lofty  independence 
as  any  who  have  ornamented  the  bench  since  the  time 
when  a  judge  can  only  be  removed  from  his  office  for 
misconduct,  on  the  joint  address  of  the  two  Houses 
of  Parliament.  Not  only  was  his  purity  unsuspected 
in  an  age  when  the  prevalence  of  corruption  is  sup- 
posed by  some  to  palliate  the  repeated  instances  of 
bribe-taking  proved  upon  Bacon,  but  he  presented  the 
rare  spectacle  of  a  magistrate  contemning  the  threats 
of  power, —  without  ever  being  seduced  by  the  love 
of  popular  applause  to  pronounce  decisions  which  could 
not  be  supported  by  precedent  and  principle.  His 
manners  even  became  much  more  bland ;  he  listened 
with  patience  to  tedious  arguments ;  he  was  courteous 


A.D.  1606-13.  SIE  EDWABD  COKE.  317 

when  it  was  necessary  to  interpose,  and,  in  passing 
sentence  on  those  who  were  convicted,  he  showed  more 
tenderness  for  them  than  he  had  been  accustomed  to 
do  for  those  whom  he  prosecuted  while  they  were  still 
presumed  to  be  innocent. 

He  remained  Chief  Justice  of  the  Common  Pleas 
above    seven  years;    and,    considering    his   AD  1606_ 
profound  learning  and  unwearied  diligence,    1613- 
we  may,  without  disparagement  to  any  of  his  suc- 
cessors, affirm  that  the  duties  of  the  office  have  never 
since  been  performed  so  satisfactorily. 

The  only  case  in  which  he  was  supposed  by  any 
one  to  have  improperly  attended  to  the  Parttaken 
wishes  of  the  Government  was  that  of  the  by him  jn 
POSTNATI.  He  concurred  "with  the  majority  thePosr- 
in  holding  that  all  persons  born  in  Scotland 
after  the  accession  of  James  I.  to  the  throne  of  Eng- 
land were  entitled  to  the  privileges  of  native-born 
English  subjects.  Wilson,  in  allusion  to  it,  denounces 
Coke  as  "metal  fit  for  any  stamp  royal."*  I  think, 
myself,  that  the  decision  was  erroneous ;  the  only 
plausible  analogy  to  support  it — that  persons  born  in 
Normandy  and  Aquitaine  were  not  considered  aliens — 
being  explained  away  by  the  consideration  that  those 
provinces  had  been  reconquered  from  France,  and  were 
considered  as  held  of  the  crown  of  England.  But  our 
Chief  Justice  was  not  much  acquainted  with  inter- 
national law,  and  he  was  satisfied  with  the  doctrine 
of  "  remitter  "  as  laid  down  by  Littleton, — applying  it 
to  the  case  of  Edward  III.  and  Henry  V.  recovering 
the  French  provinces  which  had  belonged  by  right 
or  birth  to  William  the  Conqueror  and  Henry  II.,  and 
which  were  therefore  to  be  considered,  when  again 
annexed  to  England,  as  taken  by  descent,  and  not  by 

*  Life  and  Reign  of  King  James,  p.  41. 


318  EEIGN  OF  JAMES  I.  CHAP.  VIII. 

conquest, — or,  as  lie  called  it,  by  purchase.  His  opinion, 
unconsciously  to  himself,  may  have  been  influenced 
by  the  efforts  he  had  made  while  Attorney  General  to 
please  the  King  in  bringing  about  a  union  with  Scot- 
land ;  but  the  warm  praise  which  he  bestows  upon  the 
decision,  in  reporting  it,  should  remove  all  doubt  as  to 
his  sincerity  on  this  occasion,  and  the  inflexibility  which 
led  to  his  downfall  should  relieve  his  memory  from  the 
scandal  of  seeking  royal  favour  after  being  sworn  to 
administer  the  law  as  a  Judge. 

A  plan  was  now  going  forward  systematically  to 
He  opposes  carry  into  effect  the  notion  which  James 
H?gh°com-f  entertained,  that  he  was  entitled  to  rule  in 
mission.  England  as  an  absolute  sovereign.  One  of 
the  engines  chiefly  relied  upon  for  success  was  the 
Court  of  HIGH  COMMISSION.  This  had  been  established, 
at  the  accession  of  Queen  Elizabeth,*  for  cases  purely 
of  an  ecclesiastical  nature,  and  had  been  so  used  during 
the  whole  of  her  reign ;  but,  as  it  was  governed  by  no 
fixed  rules,  and  as  it  decided  without  appeal,  an  attempt 
was  now  made  to  subject  all  persons,  lay  and  spiritual, 
to  its  jurisdiction,  and  to  give  it  cognizance  of  tem- 
poral rights  and  offences.  The  Court  having  pro- 
ceeded hitherto  only  by  citation,  a  new  attempt  was 
made  to  send  a  pursuivant  at  once  into  the  house 
of  any  person  complained  against,  to  arrest  him,  and 
to  imprison  him.  This  matter  being  discussed  in  the 
Court  of  Common  Pleas,  Lord  Chief  Justice  Coke,  sup- 
ported by  his  brethren,  determined  that  the  High 
Commission  had  no  such  power ;  that  the  practice  was 
contrary  to  MAGNA  CHAETA  ;  and  that,  if  the  pursuivant 
should  be  killed  in  the  attempt,  the  party  resisting 
him  would  not  be  guilty  of  murder.f  The  authority 
of  the  Court  of  Common  Pleas  to  check  the  usurpa- 

*  Stat.  1  Eliz.  c.  1.  t  12  Eep.  49. 


A.D.  1611-12.  SIR  EDWARD  COKE.  319 

tions  of  the  High  Commission  by  granting  prohi- 
bitions was  contested,  but  Coke  successfully  supported 
it,  and  in  various  instances  fearlessly  stopped  pro- 
ceedings before  this  tribunal  which  the  King  was 
known  to  favour.* 

At  last  the  ingenious  device  was  resorted  to  of  in- 
cluding Coke  himself  among  the  Judges  of 
the  High  Commission,  in  the  hope  that  he 
would  then  no  longer  oppose  it.  But  he  resolutely  re- 
fused to  sit  as  a  member  of  the  Court ;  whereupon  "  the 
Lord  Treasurer  said  that  the  principal  feather  was 
plucked  from  the  High  Commissioners."  f  This  Court, 
however,  when  Coke  was  removed  from  the  bench,  re- 
newed and  extended  its  usurpations,  and  made  itself  so 
odious  to  the  whole  nation,  that  it  was  entirely  swept 
away  by  one  of  the  first  acts  of  the  Long  Parliament.  J 

The  High  Commission  being  silenced  for  a   time, 
Archbishop  Bancroft  suggested  the  notable    Heresistg 
expedient  of  "  the  King  judging  whatever    the  claim  of 

,  ,  ,     .       ,  P  J  „  the  King  to 

cause  he  pleased   in  his   own   person,  free    sit  and  try 
from  all  risk  of  prohibition  or  appeal."     Ac- 
cordingly, on  a  Sunday,  the  King  summoned  all  the 
Judges  before  him  and  his  Council,  at  Whitehall,  to 
know  what  they  could  say  against  this  proposal.     The 
Archbishop  thus  began : — 

"  The  Judges  are  but  the  delegates  of  your  Majesty,  and  admi- 
nister the  law  in  your  name.     What  may  be  done 
by  the  agent  may  be  done  by  the  principal ;  therefore     AJ>' 1612' 
your  Majesty  may  take  what  causes  you  may  be  pleased  to  de- 
termine from  the  determination  of  the  Judges,  ,md  determine 
them  yourself.     This  is  clear    in    divinity;    such    authority, 
doubtless,    belongs  to  the  King  by  the  Word  of  God  in  the 
Scriptures." 

Coke,  0.  J.  (all  the  other  Judges  assenting") :  "  By  the  law  of 
England,  the  King  in  his  own  person  cannot  adjiidge  any  case, 

*  Langdale's  case,  12  Rep.  50,  58 ;  Sir        J  An  illegal  attempt  to  revive  It  by 
William  Chancey  s  case,  ib.  82.  James  II.  was  one  of  the  causes  of  the 

t  12  Rep.  88.  Revolution. 


320  REIGN  OF  JAMES  I.  CHAP.  VIII. 

either  criminal,  as  treason,  felony,  &c.,  or  betwixt  party  and  party 
concerning  his  inheritance  or  goods ;  but  these  matters  ought  to 
be  determined  in  some  court  of  justice.  The  form  of  giving 
judgment  is  ideo  consideratum  est  per  curiam ;  so  the  Court 
gives  the  judgment.  Richard  III.  and  Henry  VII.  sat  in  the  Star 
Chamber,  but  this  was  to  consult  with  the  justices  upon  certain 
questions  proposed  to  them,  and  not  in  judicio.  So  in  the  King's 
Bench  he  may  sit,  but  the  Court  gives  the  judgment.  Ergo,  the 
King  cannot  take  any  cause  out  of  any  of  his  courts,  and  give 
judgment  upon  it  himself.  No  king  since  the  Conquest  has  as- 
sumed to  himself  to  give  any  judgment  in  any  cause  whatsoever 
which  concerned  the  administration  of  justice  within  this  realm. 
So  the  King  cannot  arrest  any  man,  as  laid  down  in  the  Year 
Book  1  H.  VII.  7.  4,  'for  the  party  cannot  have  remedy  against 
tlve  King.'  So  if  the  King  give  any  judgment,  what  remedy  can 
the  party  have  ?*  We  greatly  marvelled  that  the  most  reverend 
prelate  durst  assert  that  such  absolute  power  and  authority  be- 
longs to  the  King  by  the  Word  of  God,  which  requires  that  the 
laws  even  in  heathen  countries  be  obeyed.  Now  it  is  provided 
by  Magna  Charta,  and  other  statutes  duly  passed  and  assented  to 
by  the  Crown,  'Quod  tarn  majores  quam  minores  justitiam 
habeant  et  recipiant  in  CURIA  Domini  Regis.'  By  43  Ed.  III.  c.  3, 
no  man  shall  be  put  to  answer  witbout  presentment  before  the 
justices,  or  by  due  process  according  to  the  ancient  law  of  the 
land ;  and  anything  done  to  the  contrary  shall  be  void.  From 
a  roll  of  parliament  in  the  Tower  of  London,  17  Richard  II.,  it 
appears  that  a  controversy  of  land  between  the  parties  having 
been  heard  by  the  King,  and  sentence  having  been  given,  it  was 
reversed  for  this, — that  the  matter  belonged  to  the  common 
law." 

King  James  :  "  My  Lords,  I  always  thought,  and  by  my  soul 
I  have  often  heard  the  boast,  that  your  English  law  was  founded 
upon  reason.  If  that  be  so,  why  have  not  I  and  others  reason  as 
well  as  you  the  Judges  ?" 

Coke,  C.  J. :  "  True  it  is,  please  your  Majesty,  that  God  has 
endowed  your  Majesty  with  excellent  science  as  well  as  great  gifts 
of  nature ;  but  your  Majesty  will  allow  me  to  say,  with  all  re- 
verence, that  you  are  not  learned  in  the  laws  of  this  your  realm 
of  England,  and  I  crave  leave  to  remind  your  Majesty  that  causes 
which  concern  the  life  or  inheritance,  or  goods  or  fortunes  of  your 
subjects  are  not  to  be  decided  by  natural  reason,  but  by  the 
artificial  reason  and  judgment  of  law,  which  law  is  an  art  which 
requires  long  study  and  experience  before  that  a  man  can  attain 
to  the  cognizance  of  it.  The  law  is  the  golden  met-wand  and 

*  So  Markham,  C.  J.,  told  Edward  IV.  suspicion  of  treason  or  felony,  as  others 
that  "  the  King  cannot  arrest  a  man  for  his  lieges  may." 


A.D.  1612.  SIR  EDWARD  COKE.  32 1 

measure  to  try  the  causes  of  your  Majesty's  subjects,  and  it  is 
by  the  law  that  your  Majesty  is  protected  in  safety  and  peace." 

King  James  (in  a  great  rage) :  "  Then  I  am  to  be  under  the 
law — which  it  is  treason  to  affirm." 

Coke,  C.  J. :  "  Thus  wrote  Bracton, '  Rex  non  debet  esse  sub 
homine,  Bed  sub  DEO  KT  LEGE.'  "  * 

This  conference  made  a  great  sensation  on  the  public 
mind.  We  have  this  account  of  it  in  a  contemporary 
letter : — 

"  On  Sunday,  before  the  King's  going  to  Newmarket,  .  .  .  my 
Lord  Coke  and  all  the  Judges  of  tho  common  ]<».w  were  before  his 
Majesty,  to  answer  some  complaints  of  the  civil  lawyers  for  the 
general  granting  of  prohibitions.  I  heard  that  the  Lord  Coke, 
amongst  other  offensive  speech,  shouhTsay  to  his  Majesty  that  his 
Highness  was  defended  by  his  laws ;  at  which  saying,  and  with 
other  speech  then  used  by  the.  Lord  Coke,  his  Majesty  was  very 
much  offended,  and  told  him  that  he  spake  foolishly,  and  said 
that  he  was  not  defended  by  his  laws,  but  by  God ;  and  so  gave 
the  Lord  Coke,  in  other  words,  a  very  sharp  reprehension  both 
for  that  and  other  things,  and  withal  told  him  that  Sir  Thomas 
Compton,  the  Judge  of  the  Admiralty  Court,  was  as  good  a 
Judge."  f 

Jamea  is  said,  nevertheless,  to  have  tried  his  hand 
as  a  Judge,  but  to  have  been  so  much  perplexed  when 
he  had  heard  both  sides,  that  he  abandoned  the  trade 
in  despair,  saying,  "  I  could  get  on  very  well  hearing 
one  side  only,  but  when  both  sides  have  been  heard, 
by  my  saul  I  know  not  which  is  right."  The  terror 
of  Coke,  however,  was  the  true  reason  for  abandoning 
the  scheme,  for, — if  it  had  not  thus  been  boldly  de- 
nounced as  illegal, — by  the  aid  of  sycophants  it  would 
have  proceeded,  and  much  injustice  would  have  been 
perpetrated. 

Coke  likewise,  for  a  time,  gave  a  serious  check  to 
arbitrary  proceedings  in  the  Courts  of  the  Lord  Pre- 
sident of  Wales  and  of  the  Lord  President  of  the 
North.  Having  been  summoned,  with  his  brother 

*  12  Coke,  63.  f  Lodge's  Illustrations,  iii.  564. 

VOL.   I.  Y 


322  EEIGX  OF  JAMES  I.  CHAP.  VIII. 

Judges,  before  the  King  and  the  Council,  on  a  corn- 
He  checks  plaint  of  the  prohibitions  he  had  granted 
the  arbitrary  against  these  proceedings,  he  justified  fully 
of  other  all  that  he  had  done,  and.  thus  concluded: 

"  We  do  hope  that  whereas  the  Judges  of 
this  realm  have  been  more  often  called  before  your 
Lordships  than  in  former  times  they  have  been  (which 
is  much  observed,  and  gives  much  emboldening  to 
the  vulgar),  after  this  day  we  shall  not  be  so  often 
upon  such  complaints  hereafter  called  before  you."  * 
On  this  occasion  he  had  a  lucky  escape,  for,  he  says, 
"  the  King  was  well  satisfied  with  these  reasons  and 
causes  of  our  proceedings,  who,  of  his  grace,  gave 
me  his  royal  hand,  and  I  departed  from  thence  in 
his  favour."  f 

But    Coke   incurred  the  deepest  displeasure  of  his 

Majesty  by  declaring  against  a  pretension — 
the  power  of  called  a  "prerogative" — which  might  soon 
aiter°theTaw  entirely  have  superseded  parliament.  It  had 
by  ';procia-  been  usual  for  the  Crown,  from  ancient  times, 

to  issue  proclamations  to  enforce  the  law; 
and  sometimes  they  had  introduced  new  regulations  of 
police,  which,  being  of  small  importance,  and  for  the 
public  benefit,  were  readily  acquiesced  in.  James, 
from  his  accession,  began  to  issue  proclamations  when- 
ever he  thought  that  the  existing  law  required  amend- 
ment. At  last,  on  the  7th  of  July,  1610,  the  Commons, 
roused  by  these  extraordinary  attempts  to  supersede 
their  functions,  presented  an  address  to  the  Crown,  in 
which  they  say — 

"  It  is  apparent  both  that  proclamations  have  been  of  late  years 
much,  more  frequent  than  before,  and  that  they  are  extended  not 
only  to  the  liberty,  but  also  to  the  goods,  inheritances,  and  live- 
lihood of  men ;  some  of  them  tending  to  alter  points  of  the  law, 
and  make  them  new ;  other  some  made  shortly  after  a  session 

*  12  Coke,  50.  f  13  Coke,  33. 


A.D.  1612.  SIR  EDWARD  COKE.  323 

of  parliament,  for  matter  directly  rejected  in  the  same  session ; 
others  appointing  punishments  to  be  inflicted  before  lawful  trial 
and  conviction;  some  containing  penalties  in  form  of  penal 
statutes ;  some  referring  the  punishment  of  offenders  to  courts 
of  arbitrary  discretion,  which  have  laid  heavy  and  grievous  cen- 
sures upon  the  delinquents;  some,  as  the  proclamation  for 
starch,  accompanied  with  letters  commanding  inquiry  to  be 
made  against  transgressors  at  the  quarter-sessions ;  and  some 
vouching  further  proclamations,  to  countenance  and  warrant  the 
latter." 

On  Bacon,  now  Solicitor  General,  and  in  high  favour 
at  Court,  was  imposed  the  delicate  task  of  presenting 
this  address,  which  he  tried  to  soften  by  saying — 

"We  are  persuaded  that  the  attribute  which  was  given 
by  one  of  the  wisest  writers  to  two  of  the  best  emperors,  '  divus 
Nerva  et  divus  Trajanus,'  so  saith  Tacitus, '  res  olim  insociabiles 
miscuerunt,  imperium  et  libertatem,'  may  be  truly  applied  to 
*your  Majesty.  For  never  was  there  such  a  conservator  of  re- 
gality in  a  crown,  nor  ever  such  a  protector  of  lawful  freedom 
in  a  subject.  Let  not  the  sound  of  grievances,  excellent 
Sovereign,  though  it  be  sad,  seem  harsh  to  your  princely  ears. 
It  'is  but  gemitw  columbce,  the  mourning  of  a  dove,  with  that 
patience  and  humility  of  heart  which  appertaineth  to  loving  and 
loyal  subjects." 

James,  however,  thinking  that  this  complaint  re- 
sembled more  the  roaring  of  a  lion,  was  much  alarmed  ; 
and,  really  believing,  from  the  flatterers  who  sur- 
rounded him,  that  he  possessed  rightfully  the  power 
which  he  assumed,  he  ordered  all  the  Judges  to  be 
summoned  and  consulted  "  whether  it  did  not  by  law 
belong  to  him."  Coke  says — 

"  I  did  humbly  desire  that  I  might  have  conference  with  my 
brethren  the  Judges  about  the  answer  to  the  King.  To  which 
the  Lord  Chancellor  said  that  every  precedent  had  at  first  a  com- 
mencement, and  that  he  would  advise  the  Judges  to  maintain  the 
power  and  prerogative  of  the  King,  and  in  cases  in  which  there 
is  no  authority  or  precedent  to  leave  it  to  the  King  to  order  in 
it  according  to  his  wisdom,  and  for  the  good  of  his  subjects,  or 
otherwise  the  King  would  be  no  more  than  the  Duke  of  Venice." 
Coke,  C.  J. :  "  True  it  is  that  every  precedent  hath  a  commence- 

y  2 


324  REIGN  OF  JAMES  I.  CHAP.  VIII. 

inent ;  but  where  authority  and  precedent  is  wanting,  there  is 
need  of  great  consideration  before  that  anything  of  novelty  shall 
be  established,  and  to  provide  that  this  be  not  against  the  law  of 
the  land ;  for  the  King  cannot,  without  parliament,  change  any 
part  of  the  common  law,  nor  create  any  offence  by  his  proclama- 
tion which  was  not  an  offence  before.  But  I  only  desire  to  have 
a  time  of  consideration  and  conference  ;  for  deliberandum  est  diu 
quod  siatuendum  est  semel." 

After  much,  solicitation,  time  was  at  last  given,  and 
trie  consulted  Judges  all  concurred  in  an  answer  drawn 
by  Coke — 

"  That  the  King  by  his  proclamation  cannot  create  any  offence 
which  was  not  an  offence  before,  for  then  he  may  alter  the  law  of 
the  land  by  his  proclamation  in  a  high  point ;  lor  if  he  may  create 
an  offence  where  none  is,  upon  that  ensues  fine  and  imprisonment. 
Also  the  law  of  England  is  divided  into  three  parts:  common 
law,  statute  law,  and  custom ;  but  the  King's  proclamation  is 
none  of  them.  Also,  malum,  aut  est  malum  in  se,  aut  prohibi- 
tum ;  that  which  is  against  common  law  is  malum  in  se ;  malum 
prohibitum  is  such  an  offence  as  is  prohibited  by  act  of  parlia- 
ment. Also  it  was  resolved,  that  the  King  hath  no  prerogative 
but  that  which  the  law  of  the  land  allows  him.  But  the  King, 
for  prevention  of  offences,  may  admonish  his  subjects  by  procla- 
mation that  they  keep  the  laws,  and  do  not  offend  them,  upon 
punishment  to  be  inflicted  by  the  law."  * 

Coke,  in  reporting  these  resolutions  of  the  Judges, 
adds  on  his  own  authority,  "  The  King,  by  his  pro- 
clamation or  otherwise,  cannot  change  any  part  of  the 
common  law,  or  statute  law,  or  the  customs  of  the 
realm.  Also,  the  King  cannot  create  any  offence,  by 
his  prohibition  or  proclamation,  which  was  not  an 
offence  before,  for  that  were  to  change  the  law,  and  to 
make  an  offence  which  was  not ;  for  ubi  non  est  lex,  ibi 
nan  est  transgregsio  ;  ergo,  that  which  cannot  be  punished 
without  proclamation  cannot  be  punished  with  it."  f 
Yet  Hume,  in  commenting  on  the  issuing  of  procla- 
mations by  James  I.,  has  the  audacity  to  say,  "  The 
legality  of  this  exertion  was  established  by  uniform 

*  12  Rep.  T4.  f  12  C°ke,  *5- 


A.D.  1613.  SIR  EDWARD  COKE.  325 

and  undisputed  practice,  and  was  even  acknowledged 
by  lawyers,  who  made,  however,  this  difference  between 
laws  and  proclamations,  that  the  authority  of  the 
former  was  perpetual,  that  of  the  latter  expired  with 
the  sovereign  who  emitted  them."  * 

Coke  met  with  a  very  sensible  mortification,  in  being 
promoted  to  be  Chief  Justice  of  the  King's  Oct.  25,  ma. 
Bench,  on  the  death  of  Chief  Justice  Fleming.  Coke  against 
This  office,  although  of  higher  rank,  was  then  made  chief 
considered  less  desirable  than  the  chiefship  Ktag-f  °f 
of  the  Common  Pleas,  for  the  profits  of  the  Bench> 
former  were  much  less,  with  increased  peril  of  giving 
offence  to  the  Government,  and  so  being  dismissed. 
Coke's  seeming  promotion  was  owing  to  the  spite  and 
craft  of  his  rival.  Bacon  was  impatient  for  the  At- 
torney General's  place,  filled  by  Hobart,  who  was  not 
willing  to  change  it  for  the  chiefship  of  the  King's 
Bench,  but  would  for  that  of  the  Common  Pleas. 
Bacon  thereupon  sent  to  the  King  "reasons  why  it 
should  be  exceedingly  much  for  his  Majesty's  service 
to  remove  the  Lord  Coke  from  the  place  he  now 
holdeth,  to  be  Chief  Justice  of  England,  and  the 
Attorney  to  succeed  him,  and  the  Solicitor  the  At- 
torney." Among  the  reasons  urged  for  this  arrange- 
ment were  these : — 

"  First,  it  will  strengthen  the  King's  causes  greatly  among  the 
Judges,  for  both  my  Lord  Coke  will  think  himself  near  a  privy 
councillor's  place,  and  thereupon  turn  obsequious,  and  the 
Attorney  General,  a  new  man  and  a  grave  person  in  a  Judge's 
place,  will  come  in  well  to  the  other,  and  hold  him  hard  to  it, 

*  Vol.  vl.  p.  S2.  We  ought  not  hastily  however  admirable  as  a  literary  corn- 
to  accuse  him  of  wilful  misrepresenta-  position,  is  a  very  defective  performance 
tion  or  suppression,  for  he  was  utterly  as  a  history.  Of  the  supposed  distinction 
unacquainted  with  English  juridical  between  a  ttatute  and  a  proclamation, — 
writers.  Gibbon  entered  on  a  laborious  that  the  former  was  of  perpetual  obli- 
gtudy  of  the  Roman  civil  law,  to  fit  him  gation  till  repealed,  and  that  the  latter 
to  write  his  DECLINE  AND  FALL;  but  lost  its  force  on  a  demise  of  the  crown, 
Hume  never  had  the  slightest  insight  —I  do  not  find  a  trace  in  any  of  our 
into  our  jurisprudence,  and  his  work,  books. 


326  REIGN  OF  JAMES  I.  CHAP.  VIII. 

not  without  emulation  between  them  who  shall  please  the  King 
best.  Besides  the  removal  of  my  Lord  Coke  to  a  place  of  less 
profit,  though  it  be  with  his  will,  yet  will  it  be  thought  abroad 
a  kind  of  discipline  to  him  for  opposing  himself  in  the  King's 
causes,  the  example  whereof  will  contain  others  in  more  awe." 

The  King  consented ;  Coke  was  obliged  to  agree  to 
the  translation,  under  a  hint  that  he  might  be  turned 
off  entirely  ;  and  Bacon,  now  Attorney  General,  in  his 
Apophthegms  thus  exults  in  his  own  roguery :  "  After 
a  few  days  the  Lord  Coke,  meeting  with  the  King's 
Attorney,  said  to  him,  '  Mr.  Attorney,  this  is  all  your 
doing ;  it  is  you  that  have  made  this  stir ! '  Mr. 
Attorney  answered,  '  Ah,  my  Lord,  your  Lordship 
all  this  while  hath  grown  in  breadth,  you  must 
needs  now  grow  in  height,  or  else  you  would  be  a 
monster.' " 

There  cannot  be  a  doubt  that  Coke's  elevation  was 
meant  as  a  punishment,  and  that  Bacon,  the  contriver 
of  it,  already  contemplated  his  ruin ;  but  to  save  appear- 
ances, he  was  treated  with  outward  respect,  and  in  a  few 
days  afterwards  he  was  sworn  of  the  Privy  Council. 

He  took  his  seat  in  the  Court  of  King's  Bench  in 
Michaelmas  Term,  1613,  and  presided  there  three  years 
with  distinguished  ability  and  integrity.  He  recon- 
ciled himself  to  the  loss  of  profit  by  the  high  rank  he 
now  enjoyed,  and  he  took  particular  delight  in  styling 
himself  "  Chief  Justice  of  England,"  a  title  which  his 
predecessors  had  sometimes  assumed,  although,  since 
the  office  of  Grand  Justiciar  had  ceased  to  exist,  they 
had  usually  been  only  called  "  Chief  Justice  of  the 
Court  of  King's  Bench.' ' 

Hopes  were  entertained  that  he  really  was  becoming 
"  obsequious."  A  "  BENEVOLENCE  "  being  demanded  to 
supply  the  pressing  necessities  of  the  Crown,  he  munifi- 
cently gave  2,OOOZ.  as  his  own  contribution,  while  very 
small  sums  could  be  squeezed  out  of  his  brother  Judges ; 


A.D.  1615.  SIR  EDWARD  COKE.  327 

— the  legality  of  the  Benevolence  being  questioned  in 
the  Star  Chamber,  after  some  hesitation  he    _    . 

•  •11  i  gives  & 

pronounced  an  opinion  that  it  was  not  illegal,    qualified 
Mr.  Attorney  General  Bacon  thereupon  wrote   "Benevo- 
to  the  King,—"  My  Lord  Chief  Justice  de-   l 
livered  the  law  for  the  Benevolence  strongly ;  I  would 
he   had   done  it  timely."     But  the  ground  he  took 
was,  that  "  a  Benevolence  was  a  free-will  offering — 
not  a  tax;"   and  Bacon  added,  "It  will  appear  most 
evidently  what  care  was  taken  that  that  which  was 
then  done  might  not  have  the  effect,  no,  nor  the  show, 
no,  nor  so  much  as  the  shadow  of  a  tax."  *     Coke  thus 
proved  that  he  would  not  play  a  factious  part  for  the 
sake  of  popularity,  and  that  he  was  disposed  to  support 
the  proceedings  of  the  Government  as  far  as  his  con- 
science would  permit. 

But  Bacon,  the  Attorney  General — now  in  possession 
of  the  King's  ear — with  a  view  to  strengthen  his  favour 
at  Court,  and  to  insure  his  acquisition  of  the  A-D.  1616. 
Great  Seal,  about  which  he  cared  more  than  His  laudable 
the  completion  of  his  NOVUM  OKGANUM,  origi-  Peacham's 
nated  proceedings  contrary  to  the  plainest 
dictates  of  law,  justice,  and  humanity.  One  of  the 
worst  of  these  was  the  prosecution  for  high  treason 
of  Peacham,  an  aged  and  pious  clergyman,  against 
whom  the  only  case  was,  that  upon  breaking  into  his 
house,  and  searching  his  papers,  there  was  found  a 
MS.  sermon — which  he  had  never  preached — incul- 
cating the  doctrine,  that,  under  certain  circumstances, 
subjects  may  resist  a  sovereign  who  attempts  to  sub- 
vert their  liberties.  In  the  vain  hope  of  making  him 
accuse  himself,  he  was  placed  upon  the  rack  in  the 
presence  of  the  law  officers  of  the  Crown,  and  "  ex- 
amined before  torture,  in  torture,  between  torture,  and 
after  torture."  f  To  obtain  a  conviction  seemed  hope- 

*  2  St.  Tr.  904;  12  Rep.  119.  f  Letter  to  the  King,  signed  by  Bacon. 


328  EEIGN  OF  JAMES  I.  CHAP.  VIII. 

less  without  a  previous  opinion  obtained  irregularly 
from  the  Judges.  Thus  Mr.  Attorney  reported  pro- 
gress to  King  James,  as  to  his  endeavours : — 

"  For  Peacham's  case  I  have,  since  my  last  letter,  been  wi  h 
Lord  Coke  twice  ;  once  before  Mr.  Secretary's  going  down  to  your 
Majesty,  and  once  since,  which  was  yesterday;  at  the  former  of 
which  times  I  delivered  him  Peacham's  papers,  and  at  this  latter 
the  precedents,  which  I  had  with  care  gathered  and  selected. 
.  .  .  He  fell  upon  the  same  allegation  which  he  had  begun  at 
the  council  table,  '  that  judges  were  not  to  give  opinions  by 
fractions,  but  entirely  according  to  the  vote,  whereupon  they 
should  settle  upon  conference,  and  that  this  auricular  taking  of 
opinions,  single  and  apart,  was  new  and  dangerous ;'  and  other 
words  more  vehement  than  1  repeat." 

At  this  interview,  Coke  finally  refused  to  give  any 
opinion,  and  desired  the  precedents  to  be  left  with  him. 
Soon  after,  Bacon  again  wrote  to  the  King,  "  Myself 
yesterday  took  the  Lord  Coke  aside,  after  the  rest  were 
gone,  and  told  him  all  the  rest  were  ready,  and  I  was 
now  to  require  his  Lordship's  opinion,  according  to  my 
commission.  He  said  I  should  have  it,  and  repeated 
that  twice  or  thrice,  and  said  he  would  tell  it  me 
within  a  very  short  time,  though  he  were  not  at  that 
instant  ready."  In  three  days  Bacon  wrote  finally  to 
the  King, — "  I  send  your  Majesty  enclosed  my  Lord 
Coke's  answers;  I  will  not  call  them  rescripts,  much  less 
oracles.  They  are  of  his  own  hand.  I  thought  it  my 
duty,  as  soon  as  I  received  them,  instantly  to  send 
them  to  your  Majesty,  and  forbear  for  the  present  to 
speak  farther  of  them." 

Peacham  was  nevertheless  brought  to  trial,  and 
found  guilty  of  treason;  but  such  indignation  was 
excited  by  this  judicial  outrage,  that  the  sentence  of 
the  law  was  not  carried  into  execution,  and  a  lingering 
death  was  inflicted  upon  him  in  prison  by  disease. 
No  part  of  the  national  disgrace  could  be  cast  upon 


A.D.  1616.  SIR  EDWARD  COKE.  329 

the  upright  and  resolute  Chief  Justice  of  the  King's 
Bench.* 

He  likewise  escaped  all  censure  in  the  affair  of  the 
murder  of  Sir  Thomas  Overbury.     He  had   Heexerte 
not  been  accessory  to  the  infamous  sentence  wmseif  to 
by  which,  to  please  the  caprice  of  the  King,  justice  the 
the  young  Countess  of  Essex,  after  carrying   sir  Thomas 
on  an  illicit  intercourse  with  a  paramour,   Overbury- 
obtained  a  divorce  from  her  husband  on  the  pretext 
that  she   still   remained  a  virgin.^     At  her  second 
marriage  to   the  Earl  of  Somerset,  he   made    her  a 
wedding    present;    but,    in    thus    assisting    to    give 
eclat  to  the  ceremony,  he  followed  the   example  of 
all  courtiers,  and  of  the  Lord  Mayor  and  citizens  of 
London.     Two  years  after,  when  the  rumour 
broke  out  that  before  this  ill-starred  union 
she  and  her  new  husband  had  instigated  the  murder 
of  the   man  who   had    tried  to  prevent  it,   he  put 
forth  all  his  energy  to  get  at  truth ;    although  the 
King,    from    personal    liking    or    some     mysterious 
reason,  wished  to  screen  the  most  guilty  parties  from 
punishment. 

In  former  times,  the  Chief  Justice  and  the  Puisne 
Judges  of  the  Court  of  King's  Bench  often  acted  as 
police  magistrates,  taking  preliminary  examinations, 
and  issuing  warrants  for  the  apprehension  of  criminals. 
In  this  case  Coke  took  not  less  than  300  examinations, 
writing  down  the  words  of  the  witnesses  and  of  the 
parties  accused  with  his  own  hand.  "  The  Lord  Chief 
Justice's  name  thus  occurring,"  observed  Bacon,  "I 
cannot  pass  by  it,  and  yet  I  have  not  skill  to  flatter. 
But  this  I  will  say  of  him,  that  never  man's  person  and 
his  place  were  better  met  in  business  than  my  Lord 
Coke  and  my  Lord  Chief  Justice  in  the  case  of  Over- 
bury." 

*  See  5  Bacon's  Works,  353;  Cro.  Car.  125.  f  2  St.  Tr.  786. 


330  REIGN  OF  JAMES  I.  CHAP.  VIII. 

Nevertheless,  we  should  consider  some  of  his  proceed- 
ings very  strange  if  they  were  imitated  by  a  Chief 
Justice  of  the  present  age.  Having  granted  the  war- 
rant, he  actually  went  to  Eoyston,  where  the  Earl  of 
Somerset  was  with  the  King,  that  he  might  himself 
superintend  the  arrest.  Along  with  the  other  judges 
who  were  to  preside  at  the  trial,  he  marshalled  the 
evidence,  and  concerted  in  what  order  it  should  be  laid 
before  the  jury.*  When  charging  the  grand  jury,  he 
told  them  that  "  of  all  felonies,  murder  is  the  most  hor- 
rible ;  of  all  murders,  poisoning  is  the  most  detestable  ; 
and  of  all  poisonings,  the  lingering  poison," — adding 
that  "  poisoning  was  a  popish  trick."  When  Mrs. 
Turner,  one  of  the  subordinate  agents,  was  on  her  trial, 
he  said  "  she  had  the  seven  deadly  sins  ;  for  she  was  a 
whore,  a  bawd,  a  sorcerer,  a  witch,  a  papist,  a  felon, 
and  a  murderer."  Sir  John  Hollis  and  others  having, 
at  the  execution  of  Weston,  who  had  been  employed  to 
administer  the  poison,  made  some  observations  on  the 
manner  in  which  his  trial  had  been  conducted  by  Lord 
Chief  Justice  Coke, — the  same  Chief  Justice  Coke,  sit- 
ting in  the  Star  Chamber,  passed  sentence  upon  them, 
ordering  that,  besides  being  subjected  to  fine  and  im- 
prisonment, they  should  make  an  humble  apology  to 
himself  at  the  bar  of  the  Court  of  King's  Bench.  He 
then  blurted  out  this  witty  parody, — 

"  Et  quae  tanta  fait  Tyburn  tibi  causa  videndi  ? " 

adding  that  "  he  himself  never  had  attended  executions 
after  reading  the  lines  in  Ovid — 

*  There  is  extant  a  very  curious  letter  used  for  the  marshalling  and  bounding 

of  Mr.  Attorney  General  Bacon  to  the  of  the  evidence,  that  we  may  have  the 

King,  about  getting  up  the  case : — "  If  help  of  his  opinion  as  well  as  that  of  my 

your   Majesty   vouchsafe   to   direct  it  Lord  Chief  Justice ;  whose  great  travels 

yourself,   that   is   the  best ;  if  not,  I  as  I  much  commend,  yet  that  same  ple- 

humbly  pray  you  to  require  my  Lord  rophoria  or  over-confidence  doth  always 

Chancellor  that  he,  together  with  my  subject  things  to  a  great  deal  of  chance." 

Lord    Chief   Justice,  will  confer  with  — 22nd  of  January,  1616-16. 
myself  and  my  fellows  that  shall  be 


A.D.  1616.  SIR  EDWAKD  COKE.  331 

"Et  lupus  et  vulpes  instant  morientibus, 
Et  quaecunque  minor  nobilitate  fera  eat." 

f  At  the  arraignment  of  the  Countess  of  Somerset, 
although  she  pleaded  guilty,  and  Coke  attended  only  as 
assessor  to  the  Lord  High  Steward's  Court,  he  said  that 
"the  persons  engaged  by  her  to  commit  the  murder 
had  before  their  death  confessed  the  fact,  and  died 
penitent ;  and  that  he  had  besought  their  confessor  to 
prove  this,  if  need  should  require."  * 

But  these  things  were  quite  according  to  the  esta- 
blished rules  of  proceeding,  and  in  no  respect  detracted 
from  the  credit  which  the  Chief  Justice  acquired  by 
the  vigour  and  ability  with  which  he  had  secured  the 
conviction  of  the  noble  culprits ; — and  he  was  not  sus- 
pected of  being  accessory  to  their  pardon, — granted  in 
consideration  of  their  discreet  silence  on  topics  which  the 
King  was  very  desirous  of  keeping  from  public  view.f 

Sir  Edward  Coke's  high  reputation  now  raised  a 
general  belief  that  he  would  succeed  Lord  , 

Bacon  afraid 

Ellesmere  as  Chancellor.     This  threw  Bacon   that  coke 
into  a  state  of  alarm,  and  he  wrote  a  letter   made  Lord 
to  the  King,  strongly  urging  his  own  claims   c 
to  the  Great  Seal,  and  disparaging  his  rival : — 

"  If  you  like  my  Lord  Coke,"  said  he,  "  this  will  follow,— first, 
your  Majesty  shall  put  an  overruling  nature  into  an  overruling 
place,  which  may  breed  an  extreme ;  next,  you  shall  blunt  his 
industries  in  matter  of  your  finances,  which  seemeth  to  aim  at 
another  place  ;J  and,  lastly,  popular  men  are  no  sure  mounters 
for  your  Majesty's  saddle."  § 

*  In  the  course  of  one  of  these  trials,  in  the  court  upon  the  showing   this 

the  Chief  Justice  was  placed  in  a  very  book ;  for  it  was  reported  the  first  leaf 

ridiculous  situation.    Those  who  were  my  Lord  Coke  lighted  on  he  found  his 

plotting  against  the  life  of  Sir  Thomas  own  wife's  name."—  Court  and  Character 

Overbury  had  superstitiously  consulted  of  King  Jamet,  p.  111. 

one  .Formem,  a  conjurer,  respecting  their  t  2  St.  Tr.  911-1034;  Amos's  Oyer 

own  fate ;  and  this  impostor  had  kept  in  of  Poisoning. 

a  book  a  list  of  all  those  who  had  come  J  This  refers  to  the  office  of  LordTrea- 

to  him  to  have  their  fortunes  told.   "  1  surer,  which  was  afterwards  conferred 

well   remember,"    says   Sir    Anthony  on  Chief  Justices. 

Welden,  "  there  was  much  mirth  made  }  Bacon's  Works,  v.  371. 


332  EEIGN  OF  JAMES  I.  CHAP.  VIII. 

The  effect  of  this  artful  representation  was  much 
heightened  by  Coke's  continued  display  of  independ- 
ence; for  although  he  would,  no  doubt,  have  been 
well  pleased  to  be  promoted  to  the  office  of  Chancellor, 
he  would  not  resort  to  the  compliances  and  low  arts  by 
which  Bacon  was  successfully  struggling  to  secure  the 
prize. 

On  the  contrary,  from  a  sense  of  duty,  he  spontane- 
Coke'sdis  ously  involved  himself  in  a  controversy 
putewith  which  made  him  very  obnoxious  to  the 

LordElles-  Air  f 

mere  about  (jrovernment.  A  love  oi  power,  or  of  popu- 
larity, very  easily  deludes  a  judge  into  the 
conviction  that  he  is  acting  merely  with  a  view  to  the 
public  good,  and  under  the  sanction  of  his  oath  of  office, 
when  he  is  seeking  unwarrantably  to  extend  the  juris- 
diction of  his  court.  Lord  Chancellor  Ellesmere  having 
very  properly  granted  an  injunction  against  suing  out 
execution  on  a  judgment  obtained  in  the  King's  Bench 
by  a  gross  fraud,  Lord  Chief  Justice  Coke,  asserting 
that  this  was  a  subversion  of  the  common  law  of  Eng- 
land, and  contrary  to  an  act  of  parliament,  induced  the 
party  against  whom  the  injunction  was  granted  to 
prepare  an  indictment  against  the  opposite  party,  his 
counsel,  his  solicitor,  and  the  Master  in  Chancery  who 
had  assisted  the  Chancellor  when  the  injunction  was 
granted.  He  then  took  infinite  pains  in  seeking  out 
and  marshalling  the  evidence  by  which  the  prosecution 
was  to  be  supported.  The  grand  jury,  however,  threw 
out  the  indictment;  and  the  matter  being  brought 
before  the  King,  he  decided  with  a  high  hand  in  favour 
of  the  Court  of  Chancery.* 

Bacon,  rejoicing  to  see  that  he  could  now  have  no 
rival  for  the  Great  Seal,  wrote  to  the  King,  with  seem- 
ing magnanimity,  "My  opinion  is  plainly  that  my 

*  See  Lives  of  the  Chancellors,  vol.  ii.  ch.  1. 


A.D.  1616.  SIR  EDWARD  COKE.  333 

Lord  Coke  at  this  time  is  not  to  be  disgraced."  Never- 
theless he  inveighed  against  his  rival  for  "  the  affront 
offered  to  the  well-deserving  person  of  the  Chancellor 
when  thought  to  be  dying, — which  was  barbarous." 

The  deadly  offence  at  last  given  to  the  King  was  by 
the  proceedings  in  the  "  case  of  Commen-  ^^  incurg 
dams,"*  in  which  Coke's  conduct  was  not  the  King's 
only  independent  and  energetic,  but  in  strict  pleasure  in 
conformity  to  the  law  and  constitution  of  the  cammed 
country,  and  every  way  most  meritorious.  dam*' 
A  question  arising  as  to  the  power  of  the  King  to 
grant  ecclesiastical  preferments  to  be  held  along  with  a 
bishopric,  a  learned  counsel,  in  arguing  at  the  bar, 
denied  this  power,  and  answered  the  reason  given  for 
it — "  that  a  bishop  should  be  enabled  to  keep  hospi- 
tality " — by  observing  that  "  no  man  is  obliged  to 
keep  hospitality  beyond  his  means,"  and  by  a  sarcastic 
comparison  between  the  riches  of  modern  prelates  and 
the  holy  apostles,  who  maintained  themselves  by  catch- 
ing fish  and  making  tents.  The  Bishop  of  Winchester, 
who  happened  to  be  present  at  a  trial  in  which  his 
order  was  so  deeply  concerned,  was  highly  incensed 
by  these  liberties,  and,  hurrying  off  to  the  King,  repre- 
sented to  him  that  the  Judges  had  quietly  allowed  an 
attack  to  be  made  on  an  important  prerogative  of  the 
Crown,  which  ought  to  be  held  sacred.  Bacon,  the 
Attorney  General,  being  consulted,  he  mentioned  a 
power  which,  according  to  many  precedents,  the  King 
possessed,  of  prohibiting  the  hearing  of  any  cause  in 
which  his  prerogative  was  concerned,  Bege  incowulto, — 
i.e.  until  he  should  intimate  his  pleasure  on  the  matter 
to  the  Judges ;  and  it  was  resolved  that  in 

,.  .  =    ,  w-x-  -L       u     •  April  25. 

this  case  such   a  prohibition   should   issue. 
Accordingly  Bacon,  in  the  King's  name,  wrote  a  letter 
to  Sir  E.  Coke  and  the  other  Judges,  saying — 

»  Colt  v.  Biikop  of  Lichfield,  Hobart,  193. 


334  EEIGN  OF  JAMES  I.  CHAP.  VIII. 

"  For  that  his  Majesty  holdeth  it  necessary,  touching  his  cause 
of  commendams,  upon  the  report  which  my  Lord  of  Winchester, 
who  was  present  at  the  last  argument,  made  to  his  Majesty,  that 
his  Majesty  be  first  consulted  with  ere  there  be  any  farther 
argument,  therefore  it  is  his  Majesty's  express  pleasure  that  the 
day  appointed  for  farther  argument  of  the  said  cause  be  put  off 
till  his  Majesty's  farther  pleasure  be  known  upon  consulting 
him." 

Although,  the  royal  prerogative  had  been  incidentally 
brought  into  question,  the  action  was  to  decide  a  mere 
civil  right  between  the  litigating  parties ;  and  the  ille- 
gality of  this  interference  was  so  palpable,  that  Coke 
had  no  difficulty  in  inducing  his  brethren  to  disregard 
it,  and  to  proceed  in  due  course  to  hear  and  determine 
the  cause. 

Judgment  being  given,  Coke  penned,  and  he  and  all 
the  other  Judges  signed,  a  bold  though  respectful  letter 
to  their  "most  dreaded  and  gracious  Sovereign,"  in 
which,  after  some  preliminary  statements,  they  say — 

"  We  are  and  ever  will  be,  with  all  faithful  and  true  hearts, 
according  to  our  bounden  duties,  ready  to  serve  and  obey  your 
Majesty,  and  think  ourselves  most  happy  to  spend  our  times 
and  abilities  to  do  your  Majesty  true  and  faithful  service.  What 
information  hath  been  made  out  unto  you,  whereon  your 
Attorney  doth  ground  his  letter  from  the  report  of  the  Bishop 
of  Winchester,  we  know  not ;  this  we  know,  that  the  true  sub- 
stance of  the  cause  summarily  is  this,  that  it  consisteth  princi- 
pally upon  the  construction  of  two  acts  of  parliament :  the  one, 
25  Ed.  III.,  and  the  other,  25  Hen.  VIII.,  whereof  your  Majesty's 
Judges,  upon  their  oaths,  and  according  to  their  best  knowledge 
and  learning,  are  bound  to  -deliver  their  true  understanding 
faithfully  and  uprightly ;  and  the  case,  being  between  two  for 
private  interest  and  inheritance,  earnestly  called  for  justice  and 
expedition.  We  hold,  it  therefore  our  duty  to  inform  your 
Majesty  that  our  oath  is  in  these  express  words,  '  that  in  case 
any  letter  come  to  us  contrary  to  law,  we  do  nothing  therefore 
but  certify  your  Majesty  thereof,  and  go  forth  to  do  the  law  not- 
withstanding the  same.' 

"  We  have  advisedly  considered  of  the  said  letter  of  Mr. 
Attorney,  and  with  one  consent  do  hold  the  same  to  be  contrary 
to  law,  and  such  as  we  could  not  yield  to  by  our  oaths.  And 


A.D.  1616.  SIE  EDWAKD  COKE.  335 

knowing  your  Majesty's  zeal  to  justice  to  be  most  renowned, 
therefore  we  have,  according  to  our  oaths  and  duties,  at  the  very 
day  prefixed  the  last  term,  proceeded  according  to  law  ;  and  we 
shall  ever  pray  to  the  Almighty  for  your  Majesty  in  all  honour, 
health,  and  happiness  long  to  reign  over  us." 

The  King,  in  a  fury,  summoned  the  Judges  to  appear 
before  him  at  Whitehall,  and,  when  they  had 

,    '  '  ,,  J  June  6. 

entered  his  presence,  declared  that — 

"  He  approved  of  their  letter  neither  in  its  matter  nor  manner 
of  expression.  He  condemned  them  for  their  remissness  in  suf- 
fering counsellors  at  the  bar  to  deal  in  impertinent  discussions 
about  his  prerogative,  and  told  them  they  ought  to  have  checked 
such  sallies,  nor  suffered  siich  insolence.  With  regard  to  their 
own  business,  he  thought  fit  to  acquaint  them  that  deferring  a 
hearing  upon  necessary  reasons  neither  denied  nor  delayed  jus- 
tice ;  it  was  rather  a  pause  of  necessary  prudence,  the  Judges 
being  bound  to  consult  the  King  when  the  crown  is  concerned. 
As  to  the  assertion  that  it  was  a  point  of  private  contest  between 
subject  and  subject,  this  was  wide  of  the  truth,  for  the  Bishop 
who  was  the  defendant  pleaded  for  a  commendam  only  in  virtue 
of  the  royal  prerogative.  'Finally,'  said  he, '  let  me  tell  you  that 
you  have  been  in  a  hurry  wherein  either  party  required  expe- 
dition, and  you  ought  to  have  known  that  your  letter  is  both 
couched  indecently  and  fails  in  the  form  thereof.' " 

Upon  this,  all  the  twelve  threw  themselves  on  their 
knees  and  prayed  for  pardon.  But  although  Coke  ex- 
pressed deep  sorrow  for  having  failed  in  form,  he  still 
manfully  contended  that — 

"  Obedience  to  his  Majesty's  command  to  stay  proceedings 
would  have  been  a  delay  of  justice,  contrary  to  law  and  contrary 
to  the  oaths  of  the  Judges ;  moreover,  as  the  matter  had  been 
managed,  the  prerogative  was  not  concerned."  King:  "  For 
judges  of  the  law  to  pronounce  whether  my  prerogative  is  con- 
cerned or  not  is  very  preposterous  management,  and  I  require  you 
my  Lord  Chancellor  to  declare  whether  I  that  am  King,  or  the 
Judges,  best  understand  my  prerogative,  the  law,  and  the  oath  of 
a  Judge."  Lord  Chancellor  JEUesmere :  "  With  all  humility,  your 
Majesty  will  best  be  advised  in  this  matter  by  your  Majesty's 
counsel  learned  in  the  law  now  standing  before  you." 
Bacon,  A.  G.:  "  Your  Majesty's  view  of  the  question  none  can 


336  KEIGN  OF  JAMES  I.  CHAP.  VIII. 

truly  gainsay,  and,  with  all  submission,  I  would  ask  the  reverend 
Judges,  who  so  avouch  their  oaths,  whether  this  refusal  of  theirs 
to  make  a  stay,  that  your  Majesty  might  be  consulted,  was  not 
nearer  to  a  breach  of  their  oaths  ?  They  are  sworn  to  counsel 
the  King ;  and  not  to  give  him  counsel  until  the  business  is  over, 
is  in  effect  not  to  give  him  counsel  at  all  when  he  requires  it." 
Colce,  C.  J. :  "  Mr.  Attorney,  methinks  you  far  exceed  your 
authority  ;  for  it  is  the  duty  of  counsel  to  plead  before  the 
Judges,  and  not  against  them."  Bacon,  A.  G. :  "  I  must  be 
bold  to  tell  the  Lord  Chief  Justice  of  England,  as  he  styles 
himself,  that  we,  the  King's  counsel,  are  obliged  by  our  oaths 
and  by  our  offices  to  plead  not  only  against  the  greatest  subjects, 
but  against  any  body  of  subjects,  be  they  courts,  judges,  or  even 
the  Commons  assembled  in  parliament,  who  seek  to  encroach  on 
the  prerogative  royal.  By  making  this  challenge,  the  Judges 
here  assembled  have  highly  outraged  their  character.  Will  your 
Majesty  be  pleased  to  ask  the  Lord  Coke  what  he  has  to  say  for 
himself  now,  and  graciously  to  decide  between  us  ?"  King  :  "My 
Attorney  General  is  right,  and  I  should  like  to  know  what 
further  can  be  said  in  defence  of  such  conduct."  Coke,  C.  J. :  "It 
would  not -become  me  further  to  argue  with  your  Majesty." 
Lord  Ellesmere,  C. :  "  The  law  has  been  well  laid  down  by  your 
Majesty's  Attorney  General,  and  I  hope  that  no  Judge  will  now 
refuse  to  obey  your  Majesty's  mandate  issued  under  the  like 
circumstances." 

In  the  belief  that  Coke  was  as  effectually  humbled 
as  the  other  Judges,  the  following  question  was  put 
to  them :  "  In  a  case  where  the  King  believes  his 
prerogative  or  interest  concerned,  and  requires  the 
Judges  to  attend  him  for  their  advice,  ought  they  not 
to  stay  proceedings  till  his  Majesty  has  consulted 
them?"  All  the  Judges  except  Coke:  "  Yes  !  yes ! !  yes ! ! ! " 
Coke,  C.  J. :  "  WHEN  THE  CASE  HAPPENS,  I  SHALL  DO  THAT 

WHICH  SHALL  BE  FIT  FOR  A  JUDGE  TO  DO." 

This  simple  and  sublime  answer  abashed  the  At- 
torney General,  made  the  recreant  Judges  ashamed  of 
their  servility,  and  even  commanded  the  respect  of  the 
King  himself,  who  dismissed  them  all  with  a  command 
to  keep  the  limits  of  their  several  courts,  and  not  to 
suffer  his  prerogative  to  be  wounded, — concluding  with 
these  words,  which  convey  his  notion  of  the  free  con- 


A.D.  1616.  SIR  EDWARD  COKE.  337 

stitution  of  England :  "  for  I  well  know  the  true  and 
ancient  common  law  to  be  the  most  favourable  to 
Kings  of  any  law  of  the  world,  to  which  law  I  do 
advise  you  my  Judges  to  apply  your  studies."* 

In  spite  of  the  offence  thus  given  to  the  King, 
the  Chief  Justice  might  have  been  allowed  He  stops  a 
long  to  retain  his  office  if  he  would  have  Dukfof * 
sanctioned  a  job  of  Villiers,  the  new  fa-  Buckingham, 
vourite,  who,  since  the  fall  of  the  Earl  of  Somerset, 
had  been  centralising  all  power  and  patronage  in  his 
own  hands.  The  chief  clerkship  in  the  Court  of  King's 
Bench,  a  sinecure  then  worth  4000Z.  a  year,  in  the  gift 
of  the  Chief  Justice,  was  about  to  become  vacant  by 
the  resignation  of  Sir  John  Roper,  created  Lord  Teyn- 
ham.  It  had  been  promised  to  the  Earl  of  Somerset, 
and  the  object  was  to  secure  it  for  his  successor, 
although  there  was  now  a  plan  to  apply  the  profits  of 
it  to  make  up  the  very  inadequate  salaries  of  the 
Judges.j  Bacon  undertook,  by  fair  or  foul  means,  to 
bend  the  resolution  of  Coke,  and,  after  a  casual  con- 
versation with  him,  thus  wrote  to  Villiers,  pretending 
to  have  fully  succeeded  : — 

"  As  I  was  sitting  by  my  Lord  Chief  Justice,  one  of  the  Judges 
asked  him  whether  Roper  were  dead.  He  said  that  for  his  part 
he  knew  not.  Another  of  the  Judges  answered,  '  It  should  con- 
cern you,  my  Lord,  to  know  it.'  Wherefore  he  turned  his  speech 
to  me,  and  said,  '  No,  Mr.  Attorney,  I  will  not  wrestle  now  in  my 
latter  times.'  '  My  Lord,'  said  I,  '  you  speak  like  a  wise  man.' 
'  Well,'  said  he,  '  they  have  had  no  luck  with  it  that  have  had  it.' 
I  said  again  '  those  days  be  passed.'  Here  you  have  the  dialogue 
to  make  you  merry  ;  but  in  sadness  I  was  glad  to  perceive  he 
meant  not  to  contest." 

However,  when  the  resignation  took  place,   Coke 

*  Bacon's  Works,  ii.517;  Carte,  iv.  35;  salary  of  the  puisne  judges  was  only 

Lives  of  Chancellors,  il.  249.  188Z.  6*.  8d.  a  year.  But  this  was  a  great 

f  In  the  reign  of  James  I.  the  salary  increase  on  the  parsimony  of  former 

of  the  Chief  Justice  of  the  King's  Bench  times,  for  the  yearly  salary  of  the  Chief 

was  only  224f.  19*.  6d.  a  year,  with  Justice  of  the  King's  Bench  in  the  reign 

331.  6s.  8d.  for  his  circuits;  and  the  of  Edward  I.  was  only  170  marks. 

VOL.    I.  Z 


338  KEIGN  OF  JAMES  I.  CHAP.  VIII. 

denied  the  promise,  and  insisted  upon  his  right  to 
dispose  of  the  office  for  the  benefit  of  the  Judges.  This 
was  a  display  of  spirit  by  no  means  to  be  forgiven,  and 
the  resolution  was  immediately  formed  to  cashier  him. 
The  true  reason  for  this  outrage  could  not  be  avowed, 
and  nothing  could  be  more  creditable  to  the  integrity 
and  ability  of  Coke  than  the  wretched  inventions  which 
June  26  were  resorted  to  as  pretexts  for  disgracing 
Coke  is  sum-  him.  Being  summoned  before  the  Privy 
Senprivyf°re  Council,  he  was  first  charged  with  breach 
Council;  of  duty  when  he  was  Attorney  General  in 

frivolous  »t  >  » 

charges  concealing  a  bond  given  to  the  Crown  by 
Sir  Christopher  Hatton.  He  said  that  "  now 
twelve  years  being  past,  it  was  no  great  marvel  if 
his  memory  was  short;"  but  he  showed  that  he  had 
derived  no  advantage,  and  the  Crown  had  suffered  no 
damage,  from  the  alleged  neglect.  He  was  then 
charged  with  misconduct  in  his  dispute  with  the  Lord 
Chancellor  respecting  injunctions.  He  answered,  that 
if  he  was  in  error  he  might  say  "  Erravimus  cum  pa- 
tribus,"  and  he  vouched  various  authorities  to  prove 
that  such  proceedings  in  the  Chancery  had  been  thought 
to  tend  to  the  subversion  of  the  common  law.  Lastly, 
he  was  charged  with  insulting  the  King  when  called 
before  him  in  the  case  of  commendams.  He  admitted 
that  he  was  wrong  in  denying  the  right  of  the  King's 
counsel  to  speak  on  that  occasion,  their  opinion  being 
asked  by  his  Majesty,  but  he  disclaimed  all  intentional 
disrespect  in  returning  the  answer  "that  when  the 
time  should  be,  he  would  do  that  which  should  become 
an  honest  and  a  just  Judge." 

He  was  then  desired  to  withdraw,  and  a  few  days 
He  is  BUS-  afterwards  he  was  re-summoned  before  the 
StaSteT  Privy  Council,  when,  being  made  to  kneel, 
chief  justice,  fl^  Lor(j  Treasurer,  the  Earl  of  Suffolk,  thus 
pronounced  sentence : — 


A.D.  1616.  SIB  EDWARD  COKE.  339 

"  Sir  Edward  Coke,  I  am  commanded  by  his  Majesty  to  inform 
You  that  his  Majesty  is  by  no  means  satisfied  with  your  excuses. 
Yet,  out  of  regard  to  your  former  services,  he  is  not  disposed  to 
deal  with  you  heavily,  and  therefore  he  hath  decreed — 1.  That 
you  be  sequestered  the  council  chamber  until  his  Majesty's  plea- 
sure be  farther  known.  2.  That  you  forbear  to  ride  your  summer 
circuit  as  justice  of  assize.  3.  That  during  the  vacation,  while 
you  have  time  to  live  privately  and  dispose  yourself  at  home,  you 
take  into  consideration  and  review  your  books  of  Reports,  wherein, 
as  his  Majesty  is  informed,  be  many  extravagant,  and  exorbitant 
opinions  set  down  and  published  for  positive  and  good  law. 
Amongst  other  things,  the  King  is  not  well  pleased  with  the  title 
of  the  book  wherein  you  entitle  yourself  '  LORD  CHIEF  JUSTICE 
OF  ENGLAND,'  whereas  by  law  you  can  challenge  no  more  than 
LORD  CHIEF  JUSTICE  OF  THE  KING'S  BENCH.  And  having  cor- 
rected what  in  your  discretion  be  found  meet  in  these  Reports,  his 
Majesty's  pleasure  is  that  you  do  bring  them  privately  before 
himself,  so  that  he  may  consider  thereof  as  in  his  princely  judg- 
ment shall  be  found  expedient.  -  To  conclude,  I  have  yet  another 
cause  of  complaint  against  you.  His  Majesty  has  been  credibly 
informed  that  you  have  suffered  your  coachman  to  ride  bare- 
headed before  you,  and  his  Majesty  desires  that  this  may  be 
foreborne  in  future." 

Coke,  C.J. :  "I  humbly  submit  myself  to  his  Majesty's  plea- 
sure ;  but  this  I  beg  your  Lordships  to  take  notice  of,  and  to 
state  to  his  Majesty  from  me,  with  all  humility,  that  if  my 
coachman  hath  rode  before  me  bare-headed,  he  did  it  at  his  own 
ease,  and  not  by  my  order." 

The  only  delinquency  which  could  be  pressed  against 
him  was  having  fallen  into  some  mistakes  in  AUe  ^ 
his  printed  books  of  Eeports ;  and  to  make  errors  in  MS 
these  the  foundation  of  a  criminal  proceeding 
for  the  purpose  of  removing  him  from  the  bench,  must, 
even  in  that  age,  have  shocked  all  mankind.  Such 
was  his  gigantic  energy  that,  while  he  was  Attorney- 
General,  he  had  composed  and  published  five  volumes 
of  Eeports  of  Cases  determined  while  he  was  at  the 
bar ;  and  afterwards,  when  he  was  Chief  Justice  of  the 
Common  Pleas,  and  of  the  King's  Bench,  six  more,  of 
cases  determined  by  himself  and  his  brother  Judges.* 

»  He  calls  them  "  Parts."    Out  of  re-     "  2d  Report,"  &c.,  without  any  other 
spect,  they  are  cited  as  "  1st  Report,"     designation. 

z  2 


340  REIGN  OF  JAMES  I.  CHAP.  Witt 

They  were  executed  with  great  accuracy  and  ability, 
though  tinctured  with  quaintness  and  pedantry;  and 
Bacon,  who  was  now  disgracefully  taking  the  most 
active  part  against  their  author,  had  deliberately 
written, — "  To  give  every  man  his  due,  Sir  Edward 
Coke's  Eeports,  though  they  may  have  errors,  and 
some  peremptory  and  extrajudicial  resolutions,  more 
than  are  warranted,  yet  they  contain  infinite  good 
decisions  and  rulings." 

The  Chief  Justice,  instead  of  going  the  circuit,  was 
condemned  to  employ  himself  in  revising  these  Eeports ; 
and  when  Michaelmas  Term  came  round  he  was  again 
cited  before  his  accusers.  Of  this  meeting  we  have  an 
account  in  a  letter  from  Bacon  to  the  King : — 

"  Tliis  morning,  according  to  your  Majesty's  commands,  we 
Oct.  3.  have  had  my  Lord  Chief  Justice  of  the  Common 

Proceedings  Pleas  before  us.  It  was  delivered  unto  him  that 
before  the*6  Jour  Majesty's  pleasure  was,  that  we  should  receive 
Privy  an  account  from  him  of  the  performance  of  a  corn- 

Council,  mandment  of  your  Majesty  laid  upon  him,  which 
was  that  he  should  enter  into  a  view  and  retraction  of  such 
novelties  and  errors,  and  offensive  conceits,  as  were  dispersed  in 
his  Eeports  ;  that  he  had  had  good  time  to  do  it ;  and  we  doubted 
not  but  he  had  used  good  endeavour  in  it,  which  we  desired  now 
in  particular  to  receive  from  him.  His  speech  was,  that  there 
were  of  his  Reports  eleven  books,  that  contained  above  500  cases ; 
that  heretofore  in  other  Reports  much  reverenced  there  had  been 
found  errors  which  the  wisdom  of  time  had  discovered :  and 
thereupon  delivered  to  us  the  inclosed  paper,  wherein  your 
M  ajesty  may  perceive  that  my  Lord  is  an  happy  man  that  there 
should  be  no  more  errors  in  his  500  cases  than  in  a  few  cases  of 
Plowden.  .  .  . 

"  The  Lord  Chancellor,  in  the  conclusion,  signified  to  my  Lord 
Coke  your  Majesty's  commandment,  that,  until  report  made  and 
your  pleasure  therefore  known,  he  shall  forbear  his  sitting  at 
Westminster,  &c. ;  not  restraining,  nevertheless,  any  other  exer- 
cise of  his  place  of  Chief  Justice  in  private." 

The  specific  exceptions  to  the  Eeports,  with  his 
answers,  are  still  extant,  to  prove  the  utter  frivolity  of 


A.D.  1616.  SIR  EDWARD  COKE.  341 

the  proceeding.  The  only  thing  that  could  be  laid 
hold  of,  with  any  semblance  of  reason,  was  a  foolish 
doctrine  alleged  to  have  been  laid  down  extra-judicially 
in  " Dr.  Bonham's  Case"*  which  I  have  often  heard 
quoted  in  Parliament  against  the  binding  obligation 
of  obnoxious  statutes,  "that  the  common  law  shall  con- 
trol Acts  of  Parliament,  and  sometimes  shall  adjudge 
them  to  be  merely  void ;  for  where  an  Act  of  Parlia- 
ment is  against  common  right  and  reason,  the  common 
law  shall  control  it,  and  adjudge  it  to  be  void."  He 
attempted  to  justify  this  on  former  authorities :  "  In 
8  Ed.  III.,  Thomas  Tregor's  case,  Herle  saith,  '  Some 
statutes  are  made  against  law  and  right,  which  they 
that  made  them,  perceiving,  would  not  put  them  in 
execution.' "  He  concluded  with  Stroud's  case,  16  &  17 
Eliz.,  adjudging  "  that  if  an  Act  of  Parliament  give 
to  any  to  have  cognizance  of  all  manner  of  pleas  within 
his  manor  of  D.,  he  shall  hold  no  plea  whereunto 
himself  is  a  party  for  iniquum  est  aliquem  sure  rei  esse 
judicem."  But  this  rests  on  an  implied  exception  ;  and 
his  other  authorities  resolve  themselves  into  a  question 
of  construction,  without  countenancing  the  pretension 
that  judges  may  repeal  an  Act  of  Parliament,  or  that 
the  people  are  to  obey  only  the  laws  which  they 
approve.  |  This  conundrum  of  Coke  ought  to  have 
been  laughed  at,  and  not  made  the  pretence  for  dis- 
gracing and  ruining  him. 

A  few  days  after,  Bacon,  in  another  letter  to  the 
King,  says,—  Oct.  6. 

"  Now  your  Majesty  seeth  what  he  hath  done,  you  can  better 
judge  of  it  than  we  can.  If  upon  this  probation,  added  to  former 
matters,  your  Majesty  think  him  not  fit  for  your  service,  we 
must,  in  all  humbleness,  subscribe  to  your  Majesty,  and  acknow- 
ledge that  neither  his  displacing,  considering  he  holdeth  his  place 
but  during  your  will  and  pleasure,  nor  the  choice  of  a  fit  man  to 
be  put  in  his  room,  are  council-table  matters,  but  are  to  proceed 

*  8  Kep.  f.  118a.  f  Bacon's  Works,  vi.  405. 


342  KEIGN  OF  JAMES  I.  CHAP.  VIII. 

wholly  from  your  Majesty's  great  wisdom  and  gracious  pleasure. 
So  that  in  this  course  it  is  but  the  signification  of  your  pleasure, 
and  the  business  is  at  an  end  as  to  him." 

Bacon  next  prepared  a  declaration  -which  the  King 
was  to  make  to  the  Privy  Council,  touching  the  Lord 
Coke,  "  that  upon  the  three  grounds  of  deceit,  contempt, 
and  slander  of  his  government,  his  Majesty  might  very 
justly  have  proceeded  not  only  to  have  put  him  from 
his  place  of  Chief  Justice,  but  to  have  brought  him  in 
question  in  the  Star  Chamber,  which  would  have  been 
his  utter  overthrow;  but  his  Majesty  was  pleased  for 
that  time  only  to  put  him  off  from  the  council  table 
and  from  the  public  exercise  of  his  place  of  Chief 
Justice,  and  to  take  farther  time  to  deliberate."  Then 
followed  a  statement  of  his  turbulent  carriage  to  the 
King's  prerogative  and  the  settled  jurisdiction  of  the 
High  Commission,  the  Star  Chamber,  and  the  Chancery, 
with  this  cutting  observation, — '  that  he  having  in  his 
nature  not  one  part  of  those  things  which  are  popular 
in  men,  being  neither  civil  nor  affable,  nor  magnificent, 
he  hath  made  himself  popular  by  design  only,  in  pulling 
down  the  government."  Lastly  came  the  objectionable 
doctrines  to  be  found  in  his  Eeports,  "  which,  after 
three  months'  time,  he  had  entirely  failed  to  explain 
or  to  justify."* 

It  is  doubtful  whether  this  DECLARATION  was  ever 
publicly  pronounced  by  the  King,  but  his  Majesty  was 
now  fully  persuaded  to  proceed  to  the  last  extremity 
against  the  offending  Judge  ;  and,  lest  he  should  relent, 
Bacon  wrote  him  the  following  letter : — 

"  May  it  please  your  excellent  Majesty, 

"  1  send  your  Majesty  a  form  of  discharge  for  my  Lord  Coke 
Nov  13  from  n*s  P^ce  °f  Chief  Justice  of  your  Bench. 

"  I  send  also  a  warrant  to  the  Lord  Chancellor 
for  making  forth  a  writ  for  a  new  Chief  Justice,  leaving  a  blank 

*  Bacon's  Works,  v.  127. 


A.D.  1616.  SIR  EDWAED  COKE.  343 

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  of  Montagu,  as  I  conceive  and  wish, 
it  is  very  material,  as  these  times  are,  that  your  Majesty  have 
some  care  that  the  Recorder  succeeding  be  a  temperate  and  dis- 
creet man,  and  assured  to  your  Majesty's  service. 

"  God  preserve  your  Majesty."* 

These  proceedings  seem  to  have  excited  considerable 
interest  and  sympathy  in  the  public  mind.  Mr. 
Chamberlain  wrote  to  Sir  Dudley  Carlton,  — 

"  Lord  Coke  hath  been  called  twice  or  thrice  this  term  before 
the  Chancellor  and  the  King's  learned  counsel,  to  give  a  reason 
for  divers  things  delivered  in  his  Reports.  It  is  not  the  least 
of  his  humiliations  to  be  convented  in  this  point  before  such 
judges  as  Serjeant  Crew,  Serjeant  Montague,  and  Serjeant  Finch, 
the  Attorney  General,  and  the  Solicitor,  whereof  the  greater  part, 
except  the  Solicitor,!  are  held  uo  great  men  in  law  ;  and,  withal, 
to  find  such  coarse  usage  as  not  once  to  be  offered  to  sit  down, 
and  so  unrespective  and  uncivil  carriage  from  the  Lord  Chan- 
cellor's men,  that  not  one  of  them  did  move  a  hat  or  make  any 
other  sign  of  regard  to  him  ;  whereof  the  Queen  taking  notice, 
his  Majesty  has  since  sent  word  that  he  would  have  him  well 
used."J  —  A  few  days  after,  the  same  correspondent  writes,  — 
"  The  Lord  Coke  hangs  still  in  suspense,  yet  the  Queen  is  said 
to  stand  firm  for  him,  and  to  have  been  very  earnest  in  his 
behalf,  as  likewise  the  Princes."  But  on  the  14th  of  November 
he  adds,  "  The  Lord  Coke  is  now  quite  off  the  hooks,  and  order 
given  to  send  him  a  supersedeas  from  executing  his  place.  The 
common  speech  is  that  four  P's  have  overthrown  and  put  him 
down  ;  that  is  PBIDE,  PROHIBITIONS,  PR.EMUNIBE,  and  PBE- 
ROGATIVE."§ 

On  the  16th  of  November  the  superseded*  actually 
received  the  Eoyal  signature,  and  passed  the 

/-i        L  a     i    v   •         •      Jv.  Cokeisdis- 

Great  Seal,  being  in  these  words  :  —  missed  from 

his  office  of 


"  For  certain  causes  now  moving  us,  we  will  that 
you  shall  be  no  longer  our  Chief  Justice  to  hold    Bench. 
pleas  before  us,  and  we  command  you  that  you  no 
longer  interfere  in  that  office,  and  by  virtue  of  this  presence  we 
at  once  remove  and  exonerate  you  from  the  same." 

*  Bacon's  Works,  v.  131.  J  Nichol's  Progresses  of  James,  vol.  iii. 

f  Yelverton.  p.  194.  }  Ibid.  p.  226. 


344  REIGN  OF  JAMES  I.  CHAP.  VIII. 

I  wish  much  that  Coke  had  completed  his  triumph, 

by  receiving  the  intelligence  with  indifference,  or  at 

least  with  composure.     But  there  is  extant  a 

letter  from  Mr.  John  Castle,  written  three 

days  after,  containing  the  striking  passage  : — 

"  A  thunderbolt  has  fallen  upon  my  Lord  Coke  in  the  King's 
He  sheds  Bench,  which  has  overthrown  him  from  the  roots, 
tears  on  his  The  supersedeas  was  carried  to  him  by  Sir  George 
dismissal.  Coppin,  who,  at  the  presenting  of  it,  saw  that  mag- 
nanimity and  supposed  greatness  of  spirit  to  fall  into  a  very 
narrow  room,  for  he  received  it  with  dejection  and  tears.  Tremor 
et  successio  non  cadunt  infortem  et  constantem  virum" * 

This  momentary  weakness  ought  to  be  forgiven  him, 
He  soon  for  he  behaved  with  unflinching  courage 
behlws'with  while  the  charges  were  pending  against  him ; 
firmness.  and  he  knew  well  that,  by  yielding  the  Chief 
Clerkship  to  Buckingham,  he  might  easily  have  escaped 
further  molestation,  but  "  he  stood  upon  a  rule  made 
by  his  own  wisdom, — that  a  judge  must  not  pay  a 
bribe  or  take  a  bribe."!  We  ought  likewise  to  recol- 
lect, that  although  at  first  he  was  stunned  by  the  blow, 
he  soon  rallied  from  it,  in  spite  of  sore  domestic  an- 
noyances ;  and  that  he  afterwards  not  only  took  ample 
revenge  on  his  enemies,  but  conferred  lasting  benefits 
on  his  country. 

The  week  after  Coke's  dismissal,  Chamberlain  wrote 
to  a  friend, — 

"  If  Sir  Edward  Coke  could  bear  his  misfortunes  constantly  it 
were  no  disgrace  to  him,  for  he  goes  away  with  a  general  applause 
and  good  opinion.  And  the  King  himself,  when  he  told  his  reso- 
lution at  the  council  table  to  remove  him,  yet  gave  this  character, 
that  he  thought  him  no  ways  corrupt,  but  a  good  Justice — with 
so  many  other  good  words,  as  if  he  meant  to  hang  him  with  a 
silken  halter.  Hitherto  he  bears  himself  well,  but  especially 
towards  his  lady,  without  any  complaint  of  her  demeanour 
towards  him ;  though  her  own  friends  are  grieved  at  it,  and  her 

*  See  Disraeli's  Character  of  James  I.,        t  Hackett's  Life  of  Lord  Keeper  Wil- 
p.  125.  liams,  ii.  120.' 


A.D.  1616.  SIR  EDWARD  COKE.  345 

father  sent  to  him  to  know  all  the  truth,  and  to  show  him  how 
much  he  disallowed  her  courses,  having  divided  herself  from 
him,  and  disfurnished  his  house  in  Holborn  and  at  Stoke  of 
whatsoever  was  in  them,  and  carried  all  the  moveables  and  plate 
she  could  come  by  God  knows  where,  and  retiring  herself  into 
obscure  places  both  in  town  and  country.  He  gave  a  good 
answer  likewise  to  the  new  Chief  Justice,  who  sending  to  him 
to  buy  his  collar  of  S.  S.,  he  said'  he  would  not  part  with  it,  but 
leave  it  to  his  posterity,  that  they  might  one  day  know  that 
they  had  a  Chief  Justice  to  their  ancestor.'  He  is  now  retired 
to  his  daughter  Sadler's,  in  Hertfordshire,  and  from  thence  it  is 
thought  into  Norfolk.  He  hath  dealt  bountifully  with  his  ser- 
vants ;  and  such  as  had  places  under  him,  he  hath  willed  them 
to  set  down  truly  what  they  gained,  and  he  will  make  it  good  to 
them,  if  they  be  willing  to  tarry  and  continue  about  him."* 

The  public  were  at  no  loss  to  discern  the  true  cause 
of  his  dismissal  when  they  knew  that  his  successor, 
before  being  appointed,  was  compelled  to  sign  an 
agreement  binding  himself  to  dispose  of  the  Chief 
Clerkship  for  the  benefit  of  Buckingham,  and  when 
they  saw  two  trustees  for  Buckingham  admitted  to  the 
place  as  soon  as  the  new  Chief  Justice  was  sworn  in. 
Bacon  now  made  a  boast  to  the  favourite  of  his  good 
management : — 

"  I  did  cast  myself,"  says  he  in  a  letter  to  Buckingham,  "  that 
if  your  Lordship's  deputies  had  come  in  by  Sir  E.    „ 
Coke,  who  was  tied  (that  is,  under  an  agreement  with 
Somerset),  it   would  have  been  subject  to  some  clamour  from 
Somerset,  and  some  question  what  was  forfeited — by  Somerset's 
attainder  being  but  a  felony — to  the  King ;  but  now,  they  coming 
in  from  a  new  Chief  Justice,  all  is  without  question  or  scruple." 

*  Nichol's  Progresses  of  James,  vol.  iii.  228. 


346  REIGN  OF  JAMES  I.  CHAP.  IX. 


CHAPTER  IX. 

CONTINUATION   OF  THE   LIFE   OF   SIR  EDWARD    COKE   TILL    HE 
WAS  SENT  PRISONER  TO  THE  TOWER. 

COKE  was  supposed  by  mankind  and  by  himself  to  be 
disgraced  and  ruined.  Nevertheless  his  story  is  more 
interesting,  and  he  added  more  to  his  own  fame  as  well 
as  conferred  greater  benefits  on  his  country,  than  if  he 
had  quietly  continued  to  go  through  the  routine  of  his 
judicial  duties  till  his  faculties  decayed. 

Bacon's  vengeance  was  not  yet  by  any  means  satiated. 
Having  artfully  brought  about  the  fall  of  his  rival,  he 
wrote  him  a  most  insulting  letter  by  way  of  consolation 
and  advice  ;*  he  still  persecuted  him  on  the  absurd 
charge  of  attacking  the  Royal  prerogative  in  his  Reports ; 
he  appointed  a  commission  of  the  Judges  to  revise 
them  ;f  and  he  meditated  an  information  against  him 
in  the  Star  Chamber  for  malversation  in  office,  in  the 
hope  of  a  heavy  fine  being  imposed  upon  him.  These 
spiteful  designs  seemed  now  easily  within 
March  7,  j^g  power,  for  he  had  reached  the  summit  of 
his  ambition  :  the  Great  Seal  was  his  own, 
and  he  expected  the  King  and  Buckingham  to  continue 
submissive  to  his  will. 

But  Coke's  energy  and  integrity  triumphed.     At  the 

age  of  sixty-six,  from  exercise  and   temper- 
Coke's  con-         &        i  .      ••       1  ••  •          .      i  i  . 
duct  after  his   ance   his   health   was   unimpaired,   and  his 

mental  faculties  seemed  to  become  more 
elastic.  With  malicious  pleasure  he  discovered  that 
the  new  Chancellor  was  giddy  by  his  elevation ;  and 

*  Bacon's  Works,  v.  403;  Lives  of  the  Chancellors,  ii.  358. 
t  Bacon's  Works,  vi.  409. 


A.D.  1617.  SIR  EDWAKD  COKE.  347 

he  sanguinely  hoped  that,  from  his  reckless  and 
unprincipled  proceedings,  before  long  an  opportunity 
would  occur  of  precipitating  him  from  his  pride  of 
place  into  the  depth  of  humiliation. 

The  ex-Chief  Justice,  a  few  weeks  after  his  dismissal, 
contrived  to  have  an  interview  with  the  King,  and  was 
rather  graciously  received  by  him ;  but  he  knew  that 
he  had  no  chance  of  being  restored  to  power  except  by 
the  favour  of  Buckingham,  whom  he  had  so  deeply 
offended. 

With   great   dexterity  he   laid   a  plan,  which  had 
very  nearly  succeeded,  before   Lord   Chan-    Hlg  lanto 
cellor  Bacon  was  warm  in  the  marble  chair,      circumvent 

Lady  Hatton,  although  she  hated  her  aged  marrying  ua 
husband,  and  was  constantly  keeping  him  in  sirUJohn  *° 
hot  water,  occasionally  lived  with  him,  and  VlUiere- 
had  brought  him  a  daughter,  called  "The  Lady 
Frances,"  only  fourteen  years  old,  who  was  a  very  rich 
heiress,  as  her  mother's  possessions  were  entailed  upon 
her,  and  she  expected  a  share  of  the  immense  wealth  of 
her  father.  This  little  girl  was  pretty  to  boot;  and 
she  had  attracted  the  notice  of  Buckingham's  elder 
brother,  Sir  John  Villiers,  who  was  nearly  thrice  her 
age,  and  was  exceedingly  poor.  Sir  Edward  Coke, 
while  Chief  Justice,  had  scorned  the  idea  of  such  a 
match ;  but  it  was  now  suggested  to  him  by  Secretary 
Winwood  as  the  certain  and  the  only  means  of  restoring 
him  to  favour  at  Court. 

Soon  after  Bacon's  elevation,  the  King  went  to 
Scotland,  attended  by  Buckingham,  to  pay  a  long- 
promised  visit  to  his  countrymen  ;  and  the  Chancellor, 
being  left  behind  as  the  representive  of  the  executive 
government,  played  "  fantastic  tricks"  which  were  not 
expected  from  a  philosopher  in  the  enjoyment  of 
supreme  power.  Winwood,  the  Secretary  of  State,  his 
colleague,  he  treated  with  as  little  ceremony  as  he 


348  EEIGN  OF  JAMES  I.  CHAP.  IX. 

might  have  done  a  junior  clerk  or  messenger  belonging 
to  the  Council  Office.  There  is  no  such  strong  bond  of 
union  as  a  common  hatred  of  a  third  person,  and  the 
insulted  statesman  suggested  to  the  ex-Chief  Justice 
that  the  favourite  might  easily  be  regained  by  matching 
the  heiress  with  his  brother. 

This  is  the  least  reputable  passage  in  the  whole  life 
of  Sir  Edward  Coke.  He  thought  of  nothing  but  of 
recovering  himself  from  disgrace  and  humbling  an 
enemy  :  therefore  he  jumped  at  the  proposal,  and,  with- 
out consulting  Lady  Hatton,  or  thinking  for  a  moment 
of  the  inclinations  of  the  young  lady,  he  went  to  Sir 
John  Villiers  and  offered  him  his  daughter,  with  all 
her  fortune  and  expectations,  expressing  high  satisfac- 
tion at  the  thought  of  an  alliance  with  so  distinguished 
a  family.  Sir  John,  as  may  be  supposed,  professed 
a  never-dying  attachment  to  the  Lady  Frances,  and 
said  that,  "  although  he  would  have  been  well  pleased 
to  have  taken  her  in  her  smock,  he  should  be  glad,  by 
way  of  curiosity,  to  know  how  much  could  be  assured 
by  marriage  settlement  upon  her  and  her  issue  ?"  Sir 
Edward,  with  some  reluctance,  came  to  particulars, 
which  were  declared  to  be  satisfactory,  and  the  match 
was  considered  as  made. 

But  when  the  matter  was  broken  to  Lady  Hatton  she 
was  in  a  frantic  rage  ;  not  so  much  because  she 
Resentment  disapproved  of  Sir  John  Villiers  for  her  son- 
in-law,  as  that  such  an  important  arrange- 
been  made  in  the  family  without 


her  opinion  being  previously  asked  upon  it. 

She  reproached  Sir  Edward  the  more  bitterly 
on  account  of  his  ingratitude  for  her  recent  services  ; 
as,  notwithstanding  occasional  frowardness,  she  had 
been  kind  to  him  in  his  troubles.*  When  the  first 

*  Chamberlain,  in  a  letter  dated  22nd     stood  by  him  in  great  stead,  both  in 
of  June,  1616,  says,  "  The  Lady  Hatton     soliciting  at  the  council  table,  wherein 


A.D.  1617.  SIR  EDWARD  COKE.  349 

burst  of  her  resentment  had  passed  over  she  appeared 
more  calm,  but  this  was  from  having  secretly  formed  a 
resolution  to  carry  off  her  daughter  and  to  marry  her 
to  another.  The  same  night, — Sir  Edward  still  keeping 
up  his  habit  of  going  to  bed  at  nine  o'clock, — soon  after 
ten  she  sallied  forth  with  the  Lady  Frances  from  Hatton 
House,  Holborn.  They  entered  a  coach  which  was 
waiting  for  them  at  a  little  distance,  and,  travelling  by 
unfrequented  and  circuitous  roads,  next  morning  they 
arrived  at  a  house  of  the  Earl  of  Argyle  at  Oatlands, 
then  rented  by  Sir  Edmund  Withipole,  their  cousin. 
There  they  were  shut  up,  in  the  hope  that  there  could 
be  no  trace  of  the  place  of  their  concealment. 

While  they  lay  hid,  Lady  Hatton  not  only  did  every- 
thing possible  to  prejudice  her  daughter  against  Sir 
John  Villiers,  but  offered  her  in  marriage  to  the  young 
Earl  of  Oxford,  and  actually  showed  her  a  forged  letter, 
purporting  to  come  from  that  nobleman,  which  asse- 
verated that  he  was  deeply  attached  to  her,  and  that 
he  aspired  to  her  hand. 

Meanwhile  Sir  Edward  Coke,  having  ascertained 
the  retreat  of  the  fugitives,  applied  to  the 
Privy  Council  for  a  warrant  to  search  for  his  S 
daughter ;  and,  as  there  was  some  difficulty  SamTofmen 
in  obtaining  it,  he  resolved  to  take  the  law  *?  rei^ue  hu 
into  his  own  hand.  Accordingly  the  ex-Chief 
Justice  of  England  mustered  a  band  of  armed  men, 
consisting  of  his  sons,  his  dependents,  and  his  servants ; 
and,  himself  putting  on  a  breast-plate,  with  a  sword 
by  his  side,  and  pistols  at  his  saddle  bow,  he  marched 
at  their  head  upon  Oatlands.  When  they  arrived  there 

she  hath  done  herself  great  honour,  but  Majesties  for  his  sake.    On  the  6th  of 

especially  in  refusing  to  sever  her  cause  July,  Chamberlain  writes,   "  His  lady 

from  his,  as  she  was  moved  to  do,  but  hath  likewise  carried  herself  very  indis- 

resolving  and  publishing  that  she  would  creetly,   of  late,    towards   the  Queen, 

run  the  same  fortune  with  him."    She  whereby  she  hath  lost  her  favour  and  is 

had   even  quarrelled  with   both  their  forbidden  the  Court — as  also  the  King's." 


350  EEIGN  OF  JAMES  I.  CHAP.  IX. 

they  found  the  gate  leading  to  the  house  bolted  and 
barricaded.  This  they  forced  open  without  difficulty  ; 
but  the  outer  door  of  the  house  was  so  secured  as  long 
to  defy  all  their  efforts  to  gain  admission.  The  ex- 
Chief  Justice  repeafedly  demanded  his  child  in  the 
King's  name,  and  laid  down  for  law,  that  "  if  death 
should  ensue,  it  would  be  justifiable  homicide  in  him, 
but  murder  in  those  who  opposed  him."  One  of  the 
party,  gaining  entrance  by  a  window,  let  in  all  the 
rest;  but  still  there  were  several  other  doors  to  be 
broken  open.  At  last  Sir  Edward  found  the  objects  of 
his  pursuit  secreted  in  a  small  closet,  and,  without 
stopping  to  parley,  lest  there  should  be  a  rescue,  he 
seized  his  daughter,  tore  her  from  her  mother,  and, 
placing  her  behind  her  brother,  rode  off  with  her  to  his 
house  at  Stoke  Pogis  in  Buckinghamshire. 

He  succeeds.     m,  ,  ,   ,  .         , 

There  he  secured  her  in  an  upper  chamber, 
of  which  he  himself  kept  the  key.  He  then  wrote  the 
following  letter  to  Buckingham  : — 

"  Eight  Honourable, 

"  After  my  wife,  Sir  Edmund  Withipole  and  the  lady  his  wife, 
July  is,  and  their  confederates,  to  prevent  this  match  between 
1617-  Sir  John  Villiers  and  my  daughter  Frances,  had  con- 

veyed away  my  dearest  daughter  out  of  my  house,  and  in  most 
secret  manner  to  a  house  near  Oatland,  which  Sir  Edmund 
Withipole  had  taken  for  the  summer  of  my  Lord  Argyle,  I,  by 
God's  wonderful  providence  finding  where  she  was,  together  with 
my  sons  and  ordinary  attendants,  did  break  open  two  doors,  and 
recovered  my  daughter,  which  I  did  for  these  causes  : — First,  and 
principally,'  lest  his  Majesty  should  think  I  was  of  confederacy 
with  my  wife  in  conveying  her  away,  or  charge  me  with  want  of 
government  in  my  household  in  suffering  her  to  be  carried  away 
after  I  had  engaged  myself  to  his  Majesty  for  the  furtherance  of 
this  match.  2.  For  that  I  demanded  my  child  of  Sir  Edmund 
and  his  wife,  and  they  denied  to  deliver  to  me.  And  yet  for  this 
warrant  is  given  to  sue  me  in  his  Majesty's  name  in  the  Star 
Chamber  with  all  expedition,  which  though  I  fear  not  well  to 
defend,  yet  it  will  be  a  great  vexation.  But  I  have  full  cause  to 
bring  all  the  confederates  into  the  Star  Chamber,  for  conveying 
away  my  child  out  of  my  house." 


A.D.  1617. 


SIR  EDWARD  COKE. 


351 


He  subjoins  an  enumeration  of  the  vast  estates  to  be 
settled  upon  his  daughter  if  she  were  to  be  married  to 
Sir  John. 

But  the  Lord  Chancellor  was  still  determined  that 
the  match  should  be  broken  off.  He  strongly  encouraged 
Lady  Hatton  in  her  resistance  to  it ;  and  he  wrote 
letters  to  Scotland  strenuously  dissuading  it.  Thus  he 
addressed  Buckingham : — 

"  It  seemeth  that  Secretary  Winwood  hath  officiously  busied 
himself  to  make  a  match  between  your  brother  and    juiy  12. 
Sir  Edward  Coke's  daughter,  and,  as  we  hear,  he  does    Bacon's  in- 
it  more  to"  make  a  faction  than  out  of  any  great  affec-    g^?to 
tion  for  your  Lordship.      It  is  true  he  hath  the  con-    break  off 
sent  of  Sir  Edward  Coke,  as  we  hear,  upon  reasonable    the  match, 
conditions  for  your  brother,  and  yet  no  better  than,  without 
question,   may  be   found    in  .some  other  matches.     But   the 
mother's  consent  is  not  had,  nor  the  young  gentlewoman's,  who 
expects  a  great  fortune  from  her  mother,  which,  without  her 
consent,  is  endangered.   This  match,  out  of  my  faith  and  freedom 
towards  your  Lordship,  I  hold  very  inconvenient  both  for  your 
brother  and  yourself.     First,  he   shall  marry  into  a  disgraced 
house,  which  in  reason  of  state  is  never  held  good.     Next,  he 
shall  marry  into  a  troubled  house  of  man  and  wife,  which  in 
religion    and  Christian  discretion  is  disliked.      Thirdly,    your 
Lordship  will  go  near  to  lose  all  such  your  friends  as  are  adverse 
to  Sir  Edward  Coke,  myself  only  excepted,  who,  out  of  a  pure 
love  and  thankfulness,  shall  ever  be  firm  to  you.     And,  lastly, 

believe    it    will    greatly  distract   the    King's   service 

Therefore  my  advice  is,  that  the  marriage  be  not  pressed  or 
proceeded  in  without  the  consent  of  both  parents,  and  so  break 
it  altogether." 

He  tried  to  alarm  the  King  by  the  notion  that 
the  general  disposition  then  evinced  to  submit  to  his 
Majesty's  prerogative  would  be  disturbed  by  any  show 
of  favour  to  the  ex-Chief  Justice : — 

"  All  mutinous  spirits  grow  to  be  a  little  poor,  and  to  draw  in 
their  horns ;  and  not  the  less  for  your  Majesty's  disauthorising 
the  man  I  speak  of.  Now,  then,  I  reasonably  doubt  that,  if  there 
be  but  an  opinion  of  his  coming  in  with  the  strength  of  such  an 
alliance,  it  will  give  a  turn  and  relapse  in  men's  minds,  into  the 


352  REIGN  OF  JAMES  I.  CHAP.  IX. 

former  state  of  things,  hardly  to  be  holpen,  to  the  great  weakening 
of  your  Majesty's  service." 

A  communication  with  Edinburgh,  which  can  now 

be  made  in  a   few  minutes,  then   required 

secuted  Fn°~     many  days ;  and  before  Bacon  had  received 

chamber  for    an  aliswer  to  these  letters  he  had  instructed 

carrying  off     Yelverton,   the   Attorney  General,   to   com- 

his  daughter.  ."      •  . 

mence  a  prosecution  in  the  Star  Chamber 
against  Sir  Edward  Coke,  for  the  riot  at  Oatlands, 
which  was  represented  as  amounting  almost  to  a  levy- 
ing of  war  against  the  King  in  his  realm. 

On  the  other  hand,  Lady  Hatton  made  another 
attempt  forcibly  to  get  possession  of  her  daughter. 
Thereupon  proceedings  were  instituted 
against  her  by  Sir  Edward  Coke,  and  he 
prosecuted  actually  had  her  put  under  restraint  upon 

for  her  part  *       . 

in  this  affair,    the  following  charges : — 

"  1.  For  conveying  away  her  daughter  dam  et  secrete.  2.  For 
endeavouring  to  bind  her  to  my  Lord  Oxford  without  her  father's 
consent.  3.  For  counterfeiting  a  letter  of  my  Lord  of  Oxford 
offering  her  marriage.  4.  For  plotting  to  surprise  her  daughter 
and  take  her  away  by  force,  to  the  breach  of  the  King's  peace, 
and  for  that  purpose  assembling  a  body  of  desperate  fellows, 
whereof  the  consequences  might  have  been  dangerous."  She  an- 
swered— "  1.  I  had  cause  to  provide  for  her  quiet,  Secretary 
Winwcod  threatening  she  should  be  married  from  me  in  spite  of 
my  teeth,  and  Sir  Edward  Coke  intending  to  bestow  her  against 
her  liking ;  whereupon,  she  asking  me  for  help,  I  placed  her  at 
my  cousin-german's  house  a  few  days  for  her  health  and  quiet. 
2.  My  daughter,  tempted  by  her  father's  threats  and  ill  usage, 
and  pressing  me  to  find  a  remedy,  I  did  compassionate  her  con- 
dition, and  bethought  myself  of  this  contract  with  my  Lord  of 
Oxford,  if  so  she  liked,  and  therefore  1  gave  it  her  to  peruse  and 
consider  by  herself;  she  liked  it,  cheerfully  writ  it  out  with  her 
own  hand,  subscribed  it,  and  returned  it  to  me.  3.  The  end 
justifies — at  least  excuses — the  fact ;  for  it  was  only  to  hold  up 
my  daughter's  mind  to  her  own  choice,  that  she  might  with  the 
more  constancy  endure  her  imprisonment — having  this  only  an- 
tidote to  resist  the  poison — no  person  or  speech  being  admitted 
to  her  but  such  as  spoke  Sir  John  Villar'a  language.  4.  Be  it 


A.D.  1617.] 


SIR  EDWARD  COKE. 


353 


being  dis- 
missed from 
his  office  of 
Chancellor, 
supports  the 
match. 


that  I  had  some  tall  fellows  assembled  to  such  an  end,  and  that 
something  was  intended,  who  intended  this  ? — the  mother !  And 
wherefore  ?  hecause  she  was  unnaturally  and  barbarously  secluded 
from  her  daughter,  and  her  daughter  forced  against  her  will, 
contrary  to  her  vows  and  liking,  to  the  will  of  him  she  disliked." 
She  then  goes  on  to  describe,  by  way  of  recrimination,  "  Sir 
Edward  Coke's  most  notorious  riot,  committed  at  my  Lord  of 
Argyle's  house,  where,  without  constable  or  warrant,  well 
weaponed,  he  took  down  the  doors  of  the  gate-house  and  of  the 
house  itself,  and  tore  the  daughter  in  that  barbarous  manner  from 
her  mother — justifying  it  for  good  law ;  a  word  for  the  encou- 
ragement of  all  notorious  and  rebellious  malefactors  from  him 
who  had  been  a  Chief  Justice,  and  reputed  the  oracle  of  the 
law." 

Now  Bacon  discovered  the  fatal  mistake  he  had  com- 
mitted in  opposing  the  match,  and  trembled   ^^ 
lest  the  great  seal  should  at  once  be  trans-   danger  of 
ferred  from  him  to  Sir  Edward  Coke.    Buck- 
ingham wrote  to  him  : — 

"  In  this  business  of  my  brother's,  that  you  over- 
trouble  yourself  with,  I  understand  from  London,  by 
some  of  my  friends,  that  you  have  carried  yourself  with  much 
scorn  and  neglect  both  towards  myself  and  my  friends  which  if  it 
prove  true,  I  blame  not  you  but  myself." 

And  the  King's  language  to  him  was  still  more 
alarming : — 

"  Whereas  you  talk  of  the  riot  and  violence  committed  by  Sir 
Edward  Coke,  we  wonder  you  make  no  mention  of  the  riot  and 
violence  of  them  that  stole  away  his  daughter,  which  was  the  first 
ground  of  all  that  noise." 

Bacon's  only  chance  of  escaping  shipwreck  was  at 
once  to  put  about  and   go  upon   the  con- 
trary tack.    Accordingly  he  stopped  the  pro-    ^^ 
secution  in  the  Star  Chamber  against  Sir 
Edward  Coke ;  he  directed  that  Lady  Hatton  should  be 
kept  in  strict  confinement ;  he  declared  himself  a  warm 
friend  to  the  match  of  the  Lady  Frances  with  Sir  John 
Villiers ;    and  he  contrived,  through  Lady  Compton, 

VOL.   I.  2    A. 


354  EEIGN  OF  JAMES  I.  CHAP.  IX. 

the  mother  of  the  Villierses,  to  induce  Lady  Hatton  to 
consent  to  it.  The  inclinations  of  the  young  lady 
herself  had  been  as  little  consulted  as  if  she  had  been 
a  Queen  of  Spain  about  to  be  married  under  the  auspices 
of  a  Louis  Philippe  counselled  by  a  Guizot  ;*  and  as  she 
had  before  copied  and  signed  the  contract  with  Lord 
Oxford  at  the  command  of  her  mother,  she  next  copied 
and  signed  the  following  letter  to  her  mother,  at  the 
command  of  her  father : — 

"  Madam, 

"  I  must  now  humbly  desire  your  patience  in  giving  me  leave 
Letter  of  the  *°  declare  myself  to  you,  which  is,  that  without  your 
Lady  Frances  allowance  and  liking,  all  the  world  shall  never  make 

Coke  to  her  me  entangle  or  tie  myself.  But  now,  by  my  father's 
mother.  .  ,  °  -,  J .  -r  •,  i  •  •  J  •  • 

especial  commandment,  1  obey  him  in  presenting  to 

you  my  humble  duty  in  a  tedious  letter,  which  is  to  know  your 
Ladyship's  pleasure,  not  as  a  thing  I  desire ;  but  I  resolve  to  be 
wholly  ruled  by  my  father  and  yourself,  knowing  your  judgments 
to  be  such  that  I  may  well  rely  upon,  and  hoping  that  conscience 
and  the  natural  affection  parents  bear  to  children  will  let  you  do 
nothing  but  for  my  good,  and  that  you  may  receive  comfort,  I 
being  a  mere  child  and  not  understanding  the  world  nor  what  is 
good  for  myself.  That  which  makes  me  a  little  give  way  to  it 
is,  that.  [I  hope  it  will  be  a  means  to  procure  a  reconciliation 
between  my  father  and  your  Ladyship.  Also  I  think  it  will  be 
a  means  of  the  King's  favour  to  my  father.  Himself  is  not  to 
be  misliked;  his  fortune  is  very  good,  a  gentleman  well  born. 
....  So  I  humbly  take  my  leave,  praying  that  all  things  may 
be  to  every  one's  contentment. 

"  Your  Ladyship's  most  obedient 

"  and  humble  daughter  for  ever, 

"  FRANCES  COKE. 

"  Dear  mother,  believe  there  has  no  violent  means  been  used 
to  me  by  word  or  deeds." 

*  Written  before  the  revolution  of  vantage  of  his  dynasty,  forgot  that  he 
February,  1848.  After  the  misfortunes  was  the  first  magistrate  of  a  free  state; 
which  had  befallen  the  King  and  the  and,  still  more,  that  the  minister,  from 
minister,  1  would  not  have  harshly  cen-  whom  better  things  might  have  been 
sured  their  conduct  in  this  affair;  but  expected,  prompted  and  encouraged  him 
those  who  wished  for  the  tranquillity  of  to  follow  his  inclination,  instead  of  con- 
Europe  must  ever  regret  that  the  King,  stitutionally  reminding  him  of  his_duty. 
in  recklessly  seeking  the  supposed  ad-  — April,  1849. 


A.D.  1617.  SIE  EDWAED  COKE.  355 

Lady  Hatton  then  wrote  to  the  King  that  she  would 
settle  her  lands  on  her  daughter  and  Sir  John  Villiers, 
but  remained  as  spiteful  as  ever  against  her  husband. 
Having  justified  her  conduct  in  always  refusing  to  take 
his  name,  she  says, — 

"  And  whereas  he  accuseth  me  of  'calling  him  '  base  and 
treacherous  fellow ;'  the  words  I  cannot  deny,  but  when  the 
cause  is  known  I  hope  a  little  passioti  may  be  excused.  Neither 
do  I  think  it  will  be  thought  fit  that,  though  he  have  five  sons 
to  maintain  (as  he  alledgeth),  a  wife  should  therefore  be  thought 
unfit  to  have  maintenance  according  to  her  birth  and  fortune." 

The  marriage  settlement  was  drawn  under  the  King's 
own  superintendence,  that  both  father  and    Q^^ 
mother  might  be  compelled  to  do  justice  to    The  wed- 
Sir  John  Villiers   and  his   bride ;    and  on 
Michaelmas  day  the  marriage  was  actually  celebrated 
at  Hampton  Court  Palace,  in  the  presence  of  the  King 
and   Queen  and  all  the  chief  nobility  of   England. 
Strange  to  say,  Lady  Hatton  still  remained  in  confine- 
ment, while  Sir  Edward  Coke,  in  nine  coaches,  brought 
his  daughter  and  his  friends  to  the  palace,  from  his 
son's  at  Kingston-Townsend.     The  banquet  was  most 
splendid ;  a  masque  was  performed  in  the  evening ;  the 
stocking  was  thrown  with   all   due   spirit;   and   the 
bride  and  bridegroom,  according  to  long  established 
fashion,  received  the  company  at  their  couchee. 

Sir  Edward  Coke,  however,  by  no  means  derived 
from  this  alliance  the  advantage  he  had  anticipated. 
He  was  restored  to  the  Privy  Council,  but  he  received 
no  judicial  promotion ;  and  he  had  the  mortification  to 
see  his  rival,  Bacon,  by  base  servility,  restored  to  the 
entire  confidence  both  of  the  King  and  the  NOV.  2. 
1  favourite.  What  probably  gaUed  him  still  %$£%%*• 
more  was,  that,  very  soon  afterwards,  Lady  liberty  and 

'          J  '       .    J      to  favour  at 

Hatton  was  set  at  liberty.    Abusing  and  iidi-   court, 
culing  her  husband,  she  became  the  delight  of  the  whole 

2  A  2 


356  KEIGN  OF  JAMES  L  CHAP.  IX. 

Court;  insomuch,  that  the  King  and  Queen  accepted 
a  grand  entertainment  from  her,  at  Hatton  House,  in 
Holborn,  from  which  her  husband  was  excluded.* 

It  is  sad  to  relate,  that  the  match  —  mercenary  on 
the  one  side,  constrained  on  the  other  —  turned  out 
most  inauspiciously.  Sir  John  Villiers  was  created 
Viscount  Parbeck  ;  but,  after  much  dissension  between 
him  and  his  wife,  she  eloped  from  him  with  Sir  Robert 
Howard,  and,  after  travelling  abroad  in  man's  attire, 
died  young,  leaving  a  son,  who,  on  the  ground  of  ille- 
gitimacy, was  not  allowed  to  inherit  the  estate  and 
honours  of  her  husband. 

The  next  four  years  of  Coke's  life  were  passed  very 

ingloriously.     Bacon  still  enjoyed  the  lustre 

Coke  attends    an(l  the  profits  of  the  omce  of  Lord  Chancellor, 


himself,  regarded  with  suspicion, 
of  the  Privy  was  condemned  to  the  obscure  and  gratuitous 
labour  of  the  Council  table,  corresponding 
pretty  nearly  to  that  of  our  "  Judicial  Committee."  f 
He  likewise  sat  occasionally  in  the  Star  Chamber  ;  and 
he  consented  to  act  in  several  commissions  issued  by 
the  Government.}  The  Lord  Chancellor  tried  to  keep 

*  "  The   expectancy  of  Sir  Edward's  husband's  absence  ;  but  we  are  informed 

rising  is  much  abated  by  reason  of  his  that  the  year  before,  when   the  King 

lady's  liberty,  who  was  brought  in  great  dined  at  Wimbledon  with  her  father 

honour  to  Exeter  House  by  my  Lord  of  Lord  Exeter,  "the  Lady  Hatton  was 

Buckingham,  from  Sir  William  Craven's,  there,  and  Well  graced,  for   the  King 

whither  she  had  been  remanded,  pre-  kissed  her  twice."  —  tfichol's  Progresses 

sented  by  his  Lordship  to  the  King,  re-  of  James,  vol.  iii.  p.  177. 

ceived  gracious  usage,  reconciled  to  her  t  He  was  resworn  a  Privy  Councillor, 

daughter  by  his  Majesty,  and  her  house  Sept.  1617. 

in  Holborn  enlightened  by  his  presence  J  For  the  banishment  of  Jesuits  and 

at  dinner,  where  there  was  a  royal  feast  ;  seminary  priests  (Rymer's  Fcedera,  xvii. 

and,  to  make  it  more  absolutely  her  own,  93)  ;  for  negotiating  a  treaty  between  the 

express    commandment    given    by  her  Dutch  and  English  merchants,  touching 

Ladyship  that  neither  Sir  Edward  Coke  their  trade  to  the  East  Indies  (ibid.  170)  ; 

nor  any  of  his  servants  should  be  ad-  for  inquiring  into  fines  belonging  to  the 

mitted."  —Straffard's  Letters   and  De-  Crown  in  regard  of  manorial  dues  (ibid. 

spatches,  vol.  i.  p.  5.  224)  ;  and  for  examining  into  the  preva- 

We  have  not  any  circumstantial  ac-  lent  offences  of  transporting  ordnance 

count  of  the  honours  conferred  on  the  into  foreign  parts  (ibid.  273). 
Lady  Hattou  on  this   occasion  in  her 


A.D.  1621.  SIR  EDWARD  COKE.  357 

him  in  good  humour  by  warm  thanks  for  his  exertions, 
and  by  vague  promises  that  he  should  have  the  Lord 
Treasurer's  place,  or  some  other  great  preferment.  "  If 
Sir  Edward  Coke,"  says  he  in  a  letter  to  Buckingham, 
"  continue  sick  or  keep  in,  I  fear  his  Majesty's  service 
will  languish  too  in  those  things  which  concern  the 
law."*  Again,  "  Sir  Edward  Coke  keeps  in  still,  and 
we  have  miss  of  him."']'  Afterwards,  "  Sir  Edward 
Coke  was  at  Friday's  hearing,  but  in  his  nightcap ; 
and  complained  to  me  he  was  anibulent  and  not  current. 
I  would  be  sorry  he  should  fail  us  in  this  cause  :  there- 
fore I  desired  his  Majesty  to  signify  to  him,  taking 
knowledge  of  some  light  indisposition  of  his,  how  much 
he  should  think  his  service  disadvantaged  if  he  should 
be  at  any  day  away."J  A  reason  assigned  for  the  sus- 
pension of  Council  table  business  was,  "Sir  Edward 
Coke  comes  not  yet  abroad."§ 

Sitting  in  the  Star  Chamber,  he  was  particularly 
zealous  in  supporting  a  prosecution  against    A.D.  mi- 
certain  Dutch  merchants  charged  with  the    * 
crime  of  exporting  the  coin ;  he  voted  that   the  star 
they  should  be  fined  150,OOOZ.  for  an  offence 
then  considered  "  enormous,  as  going  to  the  dispover- 
ishment  of  the  realm."  ||     In  two  other  cases,  which 
excited  much  interest  at   the  time,  his  severity  was 
supposed  to  have  been  sharpened  by  the  recollection 
of  personal  injuries.      It  may  be  recollected  how  the 
Lord  Treasurer  Suffolk  had  lectured  him  for  his  pre- 
sumption in  making  his  coachman  ride  bare-headed  be- 
fore him.    The  same  Lord  Treasurer  had  himself  fallen 
into   disgrace,  and  was   now  prosecuted  in   the  Star 
Chamber,  along  with  his  lady,  for  corrupt  dealings  in 
a  branch  of  the  public  revenue.     "  Sir  Edward  pre- 

«  Bacon's  Works,  v.  611.  $  Ibid.  230,  239. 

t  Ibid.  vi.  214.  II  Stephens's  Introduction  to  Bacon's 

J  Ibid.  vi.  230.  Letters,  j».  46. 


358  BEIGN  OF  JAMES  I.  CHAP.  IX. 

siding  when  sentence  was  to  be  pronounced,  he  led 
the  way  in  a  long  and  learned  speech,  showing  how 
often  Treasurers  had  pillaged  the  King  and  the  people ; 
and,  trying  to  prove  that  by  the  Earl  and  Countess  the 
King  had  lost  50,000/.,  he  proposed  that  they  should  be 
fined  double  that  sum,  and  imprisoned  till  the  fine  was 
paid :  on  the  suggestion  of  Lord  Chief  Justice  Hobart, 
it  was  reduced  to  30,000?.,  for  which  they  were  com- 
mitted to  the  Tower."  * 

Coke  was  most  vindictive  against  Yelverton,  the  At- 
torney General,  who  had  filed  the  information  against 
him  in  the  Star  Chamber  for  the  forcible  rescue  of  his 
daughter.  This  distinguished  lawyer,  who  had  prose- 
cuted so  many  others,  having  incurred  the  displeasure 
of  Buckingham,  was  himself  prosecuted  in  the  Star 
Chamber,  on  the  pretence  that  he  had  inserted  some 
clauses,  in  a  charter  to  the  City  of  London,  for  which 
he  had  no  warrant  from  the  King.  Sir  Edward  Coke, 
whose  place  it  was  to  begin,  after  a  long  and  bitter 
speech  against  him,  proposed  that  he  should  be  fined 
6000/.,  be  dismissed  from  his  oflice,  and  be  imprisoned 
in  the  Tower  during  the  King's  pleasure.  Upon  the 
intercession  of  other  members  of  the  Court,  the  fine  was 
moderated  to  4000Z.,  and  the  rest  of  the  sen- 
tence was  entirely  submitted  to  his  Majesty .f 
The  Lord  Treasurer's  office  being  put  into  commis- 
Coke  a  Loixi  sion,  Coke  was  for  some  time  a  Lord  of  the 
sSofthe  Treasury  along  with  Archbishop  Abbott,} 
Treasury.  an(j  -fre  geeined  to  be  coming  into  greater 
favour, — as  if  the  King  had  been  about  to  act  upon  the 
suggestion  that  he  might  be  useful  in  the  repair  of  the 
revenue.  Bacon  gave  the  following  astute  advice, — 
"  As  I  think  it  were  good  his  hopes  were  at  an  end  in 

*  Wilson's  Life  of  King  James  I.,  Sir  Walter  Raleigh,  and  probably  could 

p.  706.  have  made  no  effort  to  save  him. 

f  Stephens's  Introduction,  p.  17.  Coke  J  Devon's  Pell  Records,  temp.  Jac.  I. 
escaped  the  disgrace  of  the  execution  of 


A.D.  1620.  SIB  EDWARD  COKE.  359 

some  kind,  so  I  could  wish  they  were  raised  in  some 
other."  * 

Accordingly,  his  opinion  was  asked  about  the  pro- 
priety of  calling  a  new  parliament,  after  An 
parliaments  had  been  disused  for  six  whole  liament  to  be 
years.f  We  are  told  that  he  was  in  most 
of  the  confidential  conferences  of  state  on  the  manage- 
ment of  the  elections,}:  although  he  could  scarcely  have 
been  consulted  when  the  proclamation  was  settled  in 
which  the  King  warned  his  faithful  subjects  not  to 
return  to  the  House  of  Commons  "  bankrupts  nor  neces- 
sitous persons,  who  may  desire  long  parliaments  for 
their  private  protection;  nor  yet  curious  and  wrangling 
lawyers,  who  may  seek  reputation  by  stirring  needless  ques- 
tions." § 

Coke  himself  was  elected  for  the  borough  of  Lis- 
keard,  in  Cornwall,  and  there  seemed  a  pro-  , 

t  Coke  is 

spect  of  his  cordially  co-operating  with  the    returned  for 

rf  -rr          •    n  if          xu          T-J.    ^          Liskeard. 

Government.  He  might  have  thought  that 
this  course  would  not  be  inconsistent  with  his  inde- 
pendence or  his  patriotism,  for  the  Lord  Chancellor 
had  declared  that  the  elections  were  to  be  carried  on 
"  without  packing,  or  degenerating  arts,  but  rather 
according  to  true  policy."  || 

There  was,  however,  too  much  reciprocal  jealousy 
rankling  in  the  minds  of  the  rivals  to  render  it  possible 
that  they  should  ever  cordially  act  together,  although 
terms  of  decent  courtesy .  had  for  some  time  been 
established  between  them. 

Coke's  envy  was  now  much  excited  by  the  immense 
glory  which  Bacon  acquired  by  the  publication  of 
the  NOVUM  ORGANUM.  Having  received  a  copy  from 
the  author,  he  wrote  in  the  fly-leaf,  "  Edw.  C.  ex  dono 

*  Bacon's  Works,  v.  381.  $  1  Parl.  Hist.  1169. 

f  Ibid.  531.  II  Bacon's  Works,  v.  531. 

J  Ibid.  536. 


360  EEIGN  OF  JAMES  I.  CHAP.  IX. 

Auctoris,"  and  he  vented  his  spleen  in  the  following 
His  treat-  sarcastic  lines,  which  he  subjoined  :  — 

ment  of  the 

presentation 

copy  of  Auctori  Consilium. 

Bacon's 

Novum  Instaurare  paras  veterum  documenta  sophorum, 

Organum.  Instaura  leges,  justitiamque  prius." 

In  the  titlepage,  which  bore  the  device  of  a  ship  passing 
under  a  press  of  sail  through  the  pillars  of  Hercules, 
he  marked  his  contempt  of  all  philosophical  specula- 
tions by  adding  a  distich  in  English  : 

"  It  deserves  not  to  be  read  in  schooles, 
But  to  be  freighted  in  the  Ship  of  Fools."  * 

Just  as  parliament  was  about  to  assemble,  a  vacancy 
occurred  in  the  high  offices  to  which  Coke   aspired, 
and  he  might  have  been  appeased.     But  Bacon  was  so 
much  intoxicated  by  his  political  ascendency  and  his 
literary  fame,  that  he  thought  he  might  now  safely 
despise  the  power  of  his  rival,  and  slight  him  with 
impunity.   Accordingly,  Montagu,  Coke's  suc- 
cessor  as  Chief  Justice  of  the  King's  Bench, 
was  promoted  to  be  Lord   Treasurer,   and 
raised  to  the  peerage  ;  and  the  Chief  Justiceship  of  the 
King's  Bench,  instead  of  being  restored  to  him  who  had 
held  it  with  such  lustre,  was  conferred  upon 
mi.29'         an  obscure  lawyer  called   Sir  James  Ley.f 
The  ex-Chief  Justice  was  highly  exasperated, 
and  he  resolved  to  devote  himself  to  revenge.     He 
Cokedis-        cared  little  for  the  office  of  High  Steward 
of  the  University  of  Cambridge,  which  had 


made  Lord      lately   been   conferred   upon   him;    and  pa- 
Treasurer.       ....  i  .        -, 

tnotism  was  his  only  resource. 

It  should  be  related  of  him,  however,  that,  although 

'  Alluding  to  Sebastian  Brand's  famous     copy  of  the  Novum  Organum  is  still  pre- 
"SHYP  OF  FOLYS."—  This  presentation     served  at  Holkham.       f  0"g.  Jur.  104. 


A.D.  1621. 


SIK  EDWAKD  COKE. 


361 


he  had  no  taste  for  polite  literature  or  philosophy,  he 
did  not  waste  his  leisure  in  idleness,  but  took  delight 
in  juridical  studies.  After  his  dismission  He  completes 
from  the  office  of  Chief  Justice,  he  prepared  his"5e" ., 

r      '  ports,'  and 

the  12th  and  13th  parts  of  his  Eeports,  proceeds 
which,  as  they  contained  a  good  deal  against  Commentary 
the  High  Commission  Court,  and  against  the  on  Litt1' 
King's  power  to  issue  proclamations  altering  the  law 
of  the  land,  were  not  published  in  his  lifetime.  He 
then  began  his  great  work — called  his  "  First  Insti- 
tute"— the  Commentary  on  Littleton,  which  may  be 
considered  the  "  Body  of  the  Common  Law  of  Eng- 
land." This  was  the  solace  of  his  existence — for  he 
still  lived  separate  from  his  wife — and,  amidst  the  dis- 
tractions of  politics,  no  day  passed  over  him  without 
his  indulging  in  an  exercitation  to  illustrate  Tftllenage, 
Continual  Claim,  Collateral  SJZHarrantg,  or  some  other 
such  delightful  subject. 

The  meeting  of  parliament,  on  the  30th  of  January, 
1621,  may  be  considered  the  commence- 
ment of  that  great  movement  which,  exactly  m^?16 
twenty-eight  years  afterwards,  led  to  the 
decapitation  of  an  English  sovereign  under  a  judicial 
sentence  pronounced  by  his  subjects.  The  Puritans 
had  been  gradually  gaining  strength,  and  were  re- 
turned in  considerable  numbers  to  the  new  House 
of  Commons.  Sir  Edward  Coke,  who  had  hitherto 
professed  high-Church  principles,  placed  himself  at 
their  head,  and,  in  struggling  for  the  redress  of 
grievances,  he  was  supported  by  men  of  all  parties 
except  the  immediate  retainers  of  the  Court.  The 
irregular  modes  resorted  to  for  the  purpose  of  raising 
money,  particularly  by  the  grant  of  monopolies,  in 
violation  of  the  engagements  contracted  by  the  Crown 
at  the  conclusion  of  the  reign  of  Queen  Elizabeth,  had 
filled  the  whole  nation  with  discontent. 


362  EEIGN  OF  JAMES  I.  CHAP.  IX. 

Sir  Edward  Coke,  to  establish  his  "popularity,  began 
Feb.  IB,  his  operations  by  moving  an  address  to  the 
prompts  and  King  "  for  the  better  execution  of  the  laws 
against  Jesuits,  Seminary  Priests,  and  Popish 


which  led  to    Recusants,"  which  was  carried  almost  unani- 

the  downfall  '  , 

of  Bacon.  mously.  The  Upper  House  having  concurred 
in  the  address,  it  was  read  to  James  by  Lord  Bacon. 
This  was  the  last  time  of  his  officiating  as  Chancellor 
in  the  royal  presence. 

His  destruction  was  at  hand,  and  all  the  proceedings 
against  him  were  conducted  or  prompted  by  his 
revengeful  rival.  A  motion  being  made  by  Mr.  Se- 
cretary Calvert  for  a  supply,  Sir  Edward  Coke  moved, 
as  an  amendment,  "  That  supply  and  grievances  should 
be  referred  together  to  a  committee  of  the  whole 
House."  We  have  the  following  abstract  of  his 
speech  :  — 

"  '  Virtus  silere  in  convivio,  vitium  in  consilio.'  I  joy  that  all 
are  bent  with  alacrity  against  the  enemies  of  God  and  us,  — 
Jesuits,  Seminaries,  and  Popish  Catholics.  The  indulgence 
shown  to  them  was  a  grievance  complained  of  in  the  8th  year  of 
this  reign.  I  and  Popham  were  thirty  days  in  examination  of 
the  Gunpowder  Plot  at  the  Tower.  The  root  of  it  was  out  of  the 
countries  belonging  to  the  Pope,  and  Vaux  repented  him  that  by 
delay  he  had  failed.  God  then,  and  in  1588,  delivered  us  for 
religion's  sake.  Let  us  guard  our  privileges,  for  the  privileges  of 
the  House  regard  the  whole  kingdom  ;  like  a  circle,  which  ends 
where  it  began.  Take  heed  that  we  lose  not  our  liberties  by 
petitioning  for  liberty  to  treat  of  grievances.  In  Edward  III.'s 
time,  to  treat  of  grievances  a  parliament  was  held  yearly.  There 
has  been  no  parliament  now  for  near  seven  years,  and  proclama- 
tions are  substituted  for  statutes.  But  no  proclamation  is  of 
force  to  alter  the  law  ;  andT  where  they  are  at  variance,  the  law 
is  to  be  obeyed  and  not  the  proclamation.*  No  doubt  a  due 
supply  ought  to  be  granted.  The  King's  ordinary  charge  and 
expences  are  much  about  one  ;  the  extraordinary  are  ever  borne 
by  the  subject  ;  the  King  shall  be  no  beggar.  If  all  the  corn  be 

*  Camden  says,  "  Edward  Coke  bore     tion  was  of  weight  against  parliament." 
himself  this  day  with  the  truest  pa-     —  C'amdtn's  Annals  of  James  /.,  p.  67. 
triutism,  and  taught  that  no  proclama- 


A.D.  1621.  SIR  EDWARD  COKE.  363 

brought  to  the  right  mill,  I  will  venture  my  whole  estate  that 
the  King's  will  defray  his  ordinary  charges.  But  let  us  consider 
grievances,  and  supply  one  with  another.  The  remedying  of 
grievances  will  encourage  the  House,  and  enable  us  to  increase 
the  supply." 

The  amendment  was  carried  without  a  division,  and 
it  was  resolved  to  go  upon  grievances  and  supply  that 
afternoon.  Coke  was  chosen  chairman  of  the  com- 
mittee, and  immediately  began  with  Sir  Giles  Mom- 
pesson  and  the  monopolists.* 

He  gained  much  applause,  a  few  days  after,  from  his 
treatment  of  a  flippant  and  irreverent  speech    Hlg  rebuke 
against  a  Bill  "  for  the  better  keeping  of  the   *°  a  member 
Sabbath,"  made  by  a  young  member  of  the   of  Commons 

-en  j         i_  •  j  wlK>  scoffed 

name  Of  bheppard,  Who  Said —  at  the  ob- 

servance of 

"  Every  one  knoweth  that  Dies  Satoati  is  Saturday,    aj?***11 
so  that  you  would  forbid  dancing  on  Saturday ;  but 
to  forbid  dancing  on  Sunday  is  in  the  face  of  the  King's  '  Book 
of  Sports ;'  and  King  David  says, '  Let  us  praise  God  in  a  dance.' 
This  being  a  point  of  divinity,  let  us  leave  it  to  divines ;   and 
since  King  David  and  King  James  both  bid  us  dance,  let  us  not 
make  a  statute  against  dancing.     He  that  preferred  this  bill  is  a 
disturber  of  the  peace  and  a  Puritan." 

Sir  Edward  Coke :  "  Whatsoever  hindereth  the  observation  of 
the  Sabbath  is  against  the  Scripture.  It  is  in  religion  as  ill  other 
things :  if  a  man  goes  too  much  on  the  right  hand,  he  goes  to 
superstition;  if  too  much  on  the  left,  to  profaneness  and  atheism ; 
and  take  away  reverence,  you  shall  never  have  obedience.  If  it 
be  permitted  thus  to  speak  against  such  as  prefer  bills,  we  should 
have  none  preferred." 

A  motion  for  Mr.  Sheppard's  expulsion  was  then 
carried,  "  and,  being  called  to  the  bar,  on  his  knees  he 
heard  his  sentence, '  That  the  House  doth  remove  him 
from  the  service  of  this  House  as  being  unworthy  to  be 
a  member  thereof.'  "  f 

The  ex-Chief  Justice  worked  diligently  in  his  com- 

*  1  Part.  Hist.  1175-1188.  f  Ibid.  1194. 


364  REIGN  OF  JAMES  I.  CHAP.  IX. 

mittee  of  grievances,  and  prepared  a  report  exposing 
He  ex  the  illegal  grants  of  monopolies  to  Sir  Giles 

the  abuse  of  Mompesson,  to  Sir  Edward  Villiers,  the  bro- 
ther of  the  favourite,  and  to  many  others, 
by  which  the  public  had  been  cruelly  defrauded  and 
oppressed.  In  answer  to  the  argument  of  the  courtiers 
that  these  grants  were  all  within  the  scope  of  the 
King's  prerogative,  he  said — 

"  The  King  hath  indisputable  prerogative,  as  to  make  war ;  but 
there  are  things  indisputably  beyond  his  prerogative,  as  to  grant 
monopolies.  Nothing  the  less,  monopolies  are  now  grown  like 
hydras'  heads ;  they  grow  up  as  fast  as  they  are  cut  off.  Mono- 
polies are  granted  de  vento  et  sole ;  of  which  we  have  an  ex- 
ample in  the  patent  that  in  the  counties  of  Devon  and  Cornwall 
none  shall  dry  pilchards  in  the  open  air  save  the  patentee,  or 
those  by  him  duly  authorised.  The  monopolist  who  engrosseth 
to  himself  what  should  be  free  to  all  men  is  as  bad  as  the  depopu- 
lator,  who  turns  all  out  of  doors,  and  keeps  none  but  a  shepherd 
and  his  dog;  and  while  they  ruin  others  they  never  thrive  or 
prosper,  but  are  like  the  alchymist,  with  whom  omne  vertitur  in 
fumum"  * 

The  report  was  agreed  to,  and  Sir  Edward  Coke  was 
directed  to  go  to  the  bar  of  the  Upper  House  to  com- 
municate a  copy  of  it  to  their  Lordships,  and  to  ask 
a  conference  in  which  they  might  be  called  upon  to 
concur  in  it. 

A  very  striking  scene  was  exhibited  when  Bacon 

came  from  the  woolsack  to  the  bar  of  the 

March  s,         House  of  Lords  to  receive  the  messengers, 

for  he  knew  that  another  committee  of  the 

Commons  was  sitting  to  investigate  charges  of  judicial 

corruption  against  himself,  and  he  did  not  know  but 

that  they  might  now  be  come  to  impeach  him,  and  to 

pray  that  he  might  be  committed  to  the  Tower.     He 

was  greatly  relieved  when  the  true  purport  of  the 

*  1  Parl.  Hist.  1195. 


A.D.  1621.  SIK  EDWAKD  COKE.  365 

message  was  disclosed,  and  he  gladly  announced  that 
the  conference  was  agreed  to.* 

But  the  respite  was  short.     The  other  committee 
was  going  on  most  vigorously  and  effectively   charges 
with   the  investigation  of  the  Lord  Chan- 
cellor's  delinquency.     Coke,  out  of  decency,   bribes- 
declined  being  the  chairman  of  it ;  but  he  guided  all 
its  proceedings,  and  the  task  of  drawing  up  the  charges 
arising  out  of  the  bribes  received  from  Aubrey  and 
Egerton  was  confided  to  him  along  with  Sir  Dudley 
Digges,  Sir  Eobert  Phillips,  and  Mr.  Noy,  afterwards 
the  author  of  the  writ  of  ship-money, — then  a  factious 
demagogue.f 

Bacon  had  very  nearly  eluded  the  blow  by  inducing 
the  King  to  send  a  message  to  the  House  of  Commons, 
"  that  if  this  accusation  could  be  proved,  his  Majesty 
would  punish  the  party  accused  to  the  full,"  and  that 
he  would  grant  a  commission  under  the  great  seal  to 
examine  all  upon  oath  that  could  speak  in  this  business. 
The  Commons  were  about  to  return  an  coke  pro- 
answer  agreeing  to  this  proposal,  when  Sir  p^chmlnt™" 
Edward  Coke  begged  they  would  take  heed  of  Bacon- 
not  to  hinder  the  manner  of  their  parliamentary  pro- 
ceeding against  a  great  delinquent.  A  resolution  was 
then  adopted  to  prosecute  the  case  before  the  Lords.J 

The  impeachment  being  voted,  it  was  intended  that 
Sir  Edward  Coke,  as  manager,  should  conduct  it;  but 
he  lost  this  gratification  by  the  plea  of  guilty. 

VV       J    *      v  *'   fi    J         M.      I      May  2, 1621. 

and  he  was  obliged  to  be  satisfied  with  at- 
tending the  Speaker  to  the  bar  of  the  House  of  Lords 
when  judgment  was  to  be  prayed,  and  hearing  the 
Chief  Justice  of  the  King's  Bench,  by  order  of  the 
Lords,  pronounce  these  words,  which  I  fear  caused  an 
ungenerous  thrill  of  pleasure  in  his  bosom : — 

*  See  Lives  of  the  Chancellors,  ii.  388 ;  1  Parl.  Hist.  1199.  f  2  St.  Tr.  108T. 

J  1  Parl.  Hist.  1228. 


366  EEIGN  OF  JAMES  I  CHAP.  IX. 

"  Francis  Lord  Viscount  St.  Albans  having  confessed  the 
Sentence  crimes  and  misdemeanours  whereof  he  was  im- 
against  peached,  this  House  doth  adjudge  that  he  pay  a  fine 

to  the  King  of  40,00(M.,— that  he  be  imprisoned  in 
the  Tower  of  London  during  the  King's  pleasure, — that  he  be 
for  ever  incapable  of  any  office,  place,  or  employment  in  the  state 
or  commonwealth, — and  that  he  never  sit  in  parliament,  or  come 
within  the  verge  of  the  Court."  * 

The  part  which  Coke  had  hitherto  taken  in  this  affair 
was  according  to  the  rules  of  law  and  justice,  and  the 
eagerness  with  which  he  had  discharged  his  duty  might 
be  excused  by  the  sense  of  personal  injury  under  which 
he  smarted ;  but  we  must  unequivocally  condemn  the 
want  of  heart  which  he  afterwards  displayed,  in  never 
visiting  his  fallen  foe  in  the  Tower  or  in  Gray's  Inn, — 
in  making  no  attempt  to  obtain  a  mitigation  of  the 
sentence, — and  in  never  sending  him  a  letter,  or  even  a 
kind  message,  to  console  him.  I  can  find  no  trace  of 
these  two  eminent  men,  who  had  been  so  long  rivals, 
having  thenceforth  ever  met  or  corresponded  with  one 
another.  Bacon  did  not  again  sit  in  parliament,  or 
appear  in  public  life,  but  veiled  his  errors  by  devoting 
himself  to  the  pursuits  of  literature  and  philosophy  ; — 
while  Coke,  till  he  carried  the  PETITION  of  EIGHT,  was 
constantly  engaged  in  the  political  arena. 

If  James  I.  and  Buckingham  had  acted  discreetly, 

they  would  have  forgiven  the  ex-Chief 
asperated  by  Justice's  patriotic  aberration,  and  tried  to 
menu)?"1  draw  him  back  to  them,  by  now  offering  him 
Lord  Keeper  *he  great  seal ;  but  they  had  put  themselves 

into  the  hands  of  a  shrewd  Welsh  parson, 
whose  subserviency  they  could  rely  upon,  and  whom, 
to  the  astonishment  of  the  world,  they  suddenly  pro- 
claimed Lord  Keeper.  Coke  was  even  fiercer  against 
the  Court  than  he  had  been  before  Bacon's  disgrace. 

*  2  St.  Tr.  1037-1119.    Paeon,  on  account  of  illness,  was  not  present. 


A.D.  1621.  SIR  EDWAKD  COKE.  367 

After  the  triumph  gained  by  the  people  in  the  over- 
throw of  monopolies,  and  the  conviction  of  the  Lord 
Chancellor  for  bribery,  the  King  was  impatient  to  get 
rid  of  Parliament  till  the  public  excitement  should 
subside, — but  yet  did  not  wish  to  give  offence  either 
by  a  sudden  dissolution  or  prorogation ;  and  he  inti- 
mated his  pleasure  that  the  two  Houses  should  adjourn 
themselves  from  May  till  November. 

Sir  Edward  Coke  violently  resented  this  proceeding, 
and  carried  a  motion  for  a  conference  with 
the  Lords,  that  they  might  concert  measures   sp^ng  the 
to   prevent  it.     Having   managed  the  con-    ^^erthe' 
ference,   he  reported    that  the    Lords  had   two  Houses 

.    .  ,  ,  .  TT  .  to  adjourn. 

agreed  to  a  joint  address  praying  the  King 
"  to  give  them  further  time  to  finish  the  bills  which 
they  were  considering."  His  Majesty,  however,  re- 
turned a  sharp  answer,  saying  that  "  the  address  was 
an  improper  interference  with  his  prerogative,  as  he 
alone  had  the  power  to  call,  adjourn,  and  determine  par- 
liaments." *  Sir  Edward  Coke  still  complained  of  this 
proceeding,  and,  admitting  the  King's  power  to  prorogue 
or  dissolve  parliaments,  insisted  that  adjournment  ought 
to  be  the  spontaneous  act  of  each  House.  Nevertheless, 
the  King  sent  a  commission,  requiring  that  the  pro- 
posed adjournment  should  be  made.  The  House  of 
Lords  obeyed;  but  the  Commons,  on  the  advice  of 
Sir  Edward  Coke,  refused  to  allow  the  commission  to 
be  read.  Still  there  was  a  majority  for  adjourning, 
according  to  the  King's  pleasure.  "  Then  Sir  Edward 
Coke,  with  tears  in  his  eyes,  standing  up,  recited  the 
collect  for  the  King  and  his  issue,  adding  only  to  it, 
'and  defend  them  from  their  cruel  enemies.'  After 
which  the  House  adjourned  to  the  14th  of  Novem- 
ber." f 
It  should  be  mentioned,  to  the  credit  of  the  Chief  Justice, 

"  1  Parl.  Hist.  1265.  f  Ibid.  1295. 


368  KEIGN  OF  JAMES  I.  CHAP.  IX. 

that  during  this  session,  although  he  propounded  some 
Lord  Coke  a  doctrines  on  the  subject  of  money  which  no 
trad*  "  class  of  politicians  would  now  approve,  he 
steadily  supported  free  trade  in  commodities. 
A  bill  "  to  allow  the  sale  of  Welsh  cloths  and  cottons 
in  and  through  the  kingdom  of  England,"  being  opposed 
on  "  reasons  of  state,"  he  said,  "  Eeason  of  state  is  often 
used  as  a  trick  to  put  us  out  of  the  right  way;  for 
when  a  man  can  give  no  reason  for  a  thing,  then  he 
flyeth  to  a  higher  strain,  and  saith  it  is  a  reason  of  state. 
Freedom  of  trade  is  the  life  of  trade  ;  and  all  mono- 
polies and  restrictions  of  trade  do  overthrow  trade."  * 
On  the  same  principles  he  supported  a  bill  "  to  enable 
merchants  of  the  staple  to  transport  woollen  cloth  to 
Holland."|  And  a  bill  being  brought  in  "  to  prohibit 
the  importation  of  corn,  for  the  protection  of  tillage," 
he  strenuously  opposed  it,  saying,  "  If  we  bar  the  im- 
portation of  corn  when  it  aboundeth,  we  shall  not  have 
it  imported  when  we  lack  it.  I  never  yet  heard  that 
a  bill  was  ever  before  preferred  in  parliament  against 
the  importation  of  corn,  and  I  love  to  follow  ancient 
precedents.  I  think  this  bill  truly  speaks  Dutch,  and 
is  for  the  benefit  of  the  Low  Countrymen."  J 

During  the  recess  he  counteracted  a  selfish  plot  of 
the  new  Lord  Keeper  for  "  depriving  "  Arch- 
bishop  Abbott,  who,  in  hunting  in  his  park, 
had  unfortunately  killed  a  man  with  a  cross- 


man-  bow.    The  attempt  was  to  make  it  "culpable 

homicide,"  on  the  ground  that  the  Arch- 
bishop was  employed  in  an  unlawful  act  when  the 
accident  happened.  -But  Coke  asserted  that,  "  by  the 
laws  of  this  realm  a  bishop  may  rightfully  hunt  in  a 
park  ;  —  hunt  he  may  by  this  very  token,  that  a  bishop, 


*  Proceedings   and   Debates,   i.  308,        f  Ibid.  »•  35- 
ii.  155.  i  Proceedings  and  Debates,  ii.  87. 


A.D.  1621.  SIR  EDWARD  COKE.  369 

when  dying,  is  to  leave  his  pack  of  hounds  (called  muta 
canum)  to  the  King's  free  will  and  disposal."  * 

When  parliament  again  met   in  November,  Coke's 
spleen  was  aggravated  by  a  long  and  pe-    coke  tester 
dantic  lecture  to  the  two  Houses,  delivered    oftheOppo- 

sition  in  the 

by  Lord  Keeper  Williams,  who  pretended  to    House  of 
hold  regularly-bred  lawyers  in  contempt ; — f 
and  he  exerted  himself  still  more  strenuously  against 
the  Government.     The  subjects  which  then  agitated 
the  public  were  the  Prince's  proposed  match  with  the 
Infanta  of  Spain,  which  was  strongly  opposed  by  the 
popular  party, — and  the  war  for  the  recovery  of  the 
Palatinate,  which  they  strongly  desired.     Sir  Edward 
Coke  moved  an  address  to  the  King  on  these  subjects, 
saying,— 

"  Melius  est  recurrere  quam  male  currere.  It  is  true  that  the 
father,  even  amongst  private  men,  should  have  power  to  marry 
his  children,  but  we  may  petition  the  King  how  his  prerogatives 
are  to  be  exercised  for  the  public  good.  So  the  voice  of  Bellona, 
not  the  turtle,  must  be  heard.  The  King  must  either  abandon  his 
daughter  or  engage  himself  in  war.  The  hope  of  this  match  doth 
make  the  Papists  insolent.  To  cut  off  their  hopes,  he  ought  to 
marry  the  Prince  to  one  of  his  own  religion.  On  such  matters 
the  greatest  princes  have  taken  the  advice  of  parliament. 
Edward  I1L  did  confer  with  the  Commons  about  his  own  mar- 
riage ;  and  in  the  forty-second  year  of  his  reign,  growing  weary 
of  bearing  his  armour,  treating  for  peace,  he  acquainted  the 
Commons  with  the  treaty, — whereupon  the  Commons  did  be- 
seech him  '  that  he  would  take  his  sword  in  his  hand,  for  a  just 
war  was  better  than  a  dishonourable  peace.'  In  a  record, 
4  Hen.  V.,  we  read  these  words, — '  it  shall  hold  for  ever  that  it 
shall  be  lawful  for  the  Commons  to  talk  of  the  safety  of  the 
kingdom,  and  the  grievances  and  remedies  thereof.'  The  very 
writ  of  summons  shows  that  we  are  called  hither  to  advise  for 
the  defence  and  state  of  the  King  and  kingdom."J 

The  address  was  carried,  but  drew  down  an  answer 
strongly  reflecting  on  the  mover : — 

•  Collier's  Bad.  Hist.  ii.  722.  f  1  Parl-  Hist.  1296. 

J  Ibid.  1322. 

VOL.    I.  2   B 


370  EEIGN  OF  JAMES  I.  CHAP.  IX. 

"  We  wish  you  to  remember  that  we  are  an  old  and  expe- 
rienced King,  needing  no  such  lessons  ;  being  in  our  conscience 
freest  of  any  King  alive  from  hearing  or  trusting  idle  reports, 
which  so  many  of  your  House  as  are  nearest  us  can  bear  witness 
unto  you,  if  you  would  give  as  good  ear  unto  them  as  you  do  to 
some  tribunitial  orators  among  you."* 

The  King  more  deeply  resented  another  address  from 
the  Commons,  which  they  styled  an  "  Apologetic  Pe- 
tition," and  in  which  they  maintained  "  that  they  had 
merely  expressed  their  opinion  with  all  dutifulness  re- 
specting the  Spanish  match  and  the  assistance  to  be 
given  to  the  King  of  Bohemia."  He  now  said  to  them,  — 

"  This  plenipotency  of  yours  invests  you  in  all  power  upon 
earth,  lacking  nothing  but  the  Pope's,  to  have  the  keys  also  of 
heaven  and  purgatory.  And  touching  your  excuse  of  not  deter- 
mining anything  concerning  the  match  of  our  dearest  son,  but 
only  to  tell  your  opinion  ;  first,  we  desire  to  know  how  you  could 
have  presumed  to  determine  in  that  point,  without  committing 
high  treason.  In  our  former  answer  to  you,  we  confess  we  meant 
Sir  Edward  Coke's  foolish  business.  It  had  well  become  him, 
especially  being  our  servant,  and  one  of  our  council,  to  have 
explained  himself  unto  us,  which  he  never  did,  though  he  never 
had  access  refused  to  him." 

In  a  letter  to  the  Speaker,  the  King  gave  this  com- 
mand, — 

"  Make  known  in  our  name  unto  the  House,  that  none  therein 

shall  presume  henceforth  to  meddle  with  any  thing 

forbids  "he       concerning  our  government,  or  deep  matters  of  state. 

House  of         .  .  You  shall  resolve  them  in  our  name,  that  we 

Commons  to     think  ourselves  very  free  and  able  to  punish  any 

discuss  mat-  ,         .,  J    .  ,  .  1  1   j      • 

ters  of  state,     man  s  misdemeanour  in  parliament,  as  well  during 
and  denies       the  sitting  as  after,  —  which  we  mean  not  to  spare 
leges  Prm~      hereafter,  upon  any  occasion  of  any  man's  insolent 
behaviour  there  shall  be  ministered  unto  us." 

His  Majesty  further  insisted  that  the  House  had  no 
Coke's  vin-  privileges  except  such  as  were  granted  by 


and  his  predecessors,  —  intimating  that 
leges  of  the     the  privileges  so  granted,  if  abused,  might 
be  recalled.     This  seems  to  have  thrown  the 

*  1  Part.  Hist.  1319. 


A.D.  1621.  SIB  EDWARD  COKE.  371 

House  into  a  flame;   and,  according  to  the  Parlia- 
mentary History,* 

"  Sir  Edward  Coke  would  have  us  make  a  Protestation  for  our 
privileges :  that  he  can  tell  us  when  both  Houses  did  sit  in  par- 
liament together,  both  the  Lords  and  the  Commons :  that  the 
demand  of  the  privileges  of  this  House  by  the  Speaker  was  after 
they  began  to  be  questioned,  and  used  to  be  done  at  the  first 
meeting  of  the  parliament,  in  this  manner,  that  if  the  House 
might  not  have  their  privileges  and  liberties  they  would  sit 
silent.  He  protesteth  before  God  that  he  ever  speaketh  his  own 
conscience,  but  he  doth  not  ever  speak  his  own  things,  for  he 
for  the  most  part  speaketh  by  warrant  of  precedents.  Omnis 
qualitas  in  principals  subjecto  est  in  summo  gradu,'  as  '  lumen 
in  sole,1  and  so  are  the  privileges  (which  are  the  laws)  of  the 
parliament  here  in  the  parliament,  '  in  principali  subjecto,'  and 
therefore  '  in  summo  gradu.'  The  liberties  and  privileges  of 
parliament  are  the  mother  and  life  of  all  laws :  whereas  the 
King  saith,  '  he  liketh  not  our  stiling  our  liberties  our  ancient 
inheritance,  yet  he  will  maintain"  and  give  us  leave  to  enjoy  the 
same ;'  indeed,  striketh  at  the  root  of  all  our  privileges.  '  Con- 
suetudo  Segni,'  is  the  law  of  this  kingdom.  He  would  have  us 
stand  upon  the  defence  of  our  privileges  in  this  point."f 

The  matter  was  referred  to  a  committee,  who  agreed 
to  a  Protestation, — 

"  That  the  liberties,  franchises,  privileges,  and  jurisdictions, 
of  parliament  are  the  ancient  and  undoubted  birth-    He  moves  a 
right  and  inheritance  of  the  subjects  of  England ;  and    "  Protesta- 
that  the  arduous  and  urgent  affairs  concerning  the    *ion'"j*Ji5h 
King,  state,  and  the  defence  of  the  realm,  and  of  the    "nd^entered 
Church  of  England,  and  the  making  and  maintenance    in  the 
of  laws,  and  redress  of  mischiefs  and  grievances  which 
daily  happen  within  this  realm,  are  proper  subjects  and  matter  of 
counsel  and  debate  in  parliament ;  and  that  in  the  handling  and 
proceeding  of  those  businesses,  every  member  of  the  House  hath, 
and  of  right  ought  to  have,  freedom  of  speech  to  propound,  treat, 
reason,  and  bring  to  conclusion  the  same  ;  that  the  Commons  in 
parliament  have  like  liberty  and  freedom  to  treat  of  those  matters 
in  such  order  as  in  their  judgments  shall  seem  fittest,  and  that 
every  such  member  of  the  said  House  hath  like  freedom  from  all 
impeachment,  imprisonment,  and  molestation  (other  than  by 
censure  of  the  House  itself)  for  or  concerning  any  speaking,  rea- 
soning, or  declaring  of  any  matter  or  matters  touching  the  par- 
liament or  parliament  business."J 

*  Vol.  i.  p.  1355.  f  1  Part.  Hist.  1349.  J  Ibid.  1361. 

2   B   2 


372  REIGN  OP  JAMES  I.  CHAP.  IX. 

This  Protestation,  drawn  by  Sir  Edward  Coke,  was, 
on    his    recommendation,    adopted    by    the 
House,  and  entered  in  the  Journals.     But 
when  the  King  heard  of  it  he  was  frantic.     He  imme- 
diately prorogued  the   Parliament,  ordered 
the  Journals  to  be  brought  to  him  at  White- 
hall.    Then,  having  summoned  a  meeting  of  the  Privy 
Council,  and  ordered  the  Judges  to  attend,  he  in  their 
presence  "  did  declare  the  said  Protestation 

Dec  30 

to  be  invalid  and  of  no  effect ;  and  did 
further,  manu  sua,  proprid,  take  it  out  of  the  Journal 
Book  of  the  Clerk  of  the  Commons'  House  of  Parlia- 
The  Kin  meat."  Having  torn  it  in  pieces,  he  ordered 
tears  the  an  entry  to  be  made  in  the  Council  Books, 
tion"  from  stating  that,  if  allowed  to  remain,  "  it  might 

have  served  for  future  times  to  invade  most 
of  the  rights  and  prerogatives  annexed  to  the  Imperial 
Crown  of  this  realm."  * 

This  violent  proceeding  was  soon  followed  by  a 
Jan  e  1622  Proclamation,  which,  after  dwelling  on  the 
Parliament  misdeeds  of  the  House  of  Commons,  parti- 
yed'  cularly  the  PROTESTATION, — "  an  usurpation 
which  the  majesty  of  a  King  can  by  no  means  endure," 
— concluded  by  dissolving  the  Parliament.^ 

*  1  Parl.  Hist.  1363.  spirits,"  and  accused  them  of  "  sowing 

f  Ibid.  1370.    It  was  very  severe  on     tares  with  the  wheat." 
Coke  and  his  associates  as  "  ill-tempered 


A.D.  1621.  SIR  EDWARD  COKE.  373 


CHAPTER  X. 

CONCLUSION  OF   THE   LIFE  OF   SIR   EDWARD  COKE. 

FROM  the  middle  of  the  sixteenth  to  the  middle  of  the 
eighteenth  century,  there  were  few  public  men  of  much 
note  who,  in  the  course  of  their  lives,  had  not  been  sent  as 
prisoners  to  the  Tower  of  London.  This  dis-  Dec.  27,1621. 
tin  ction  was  now  acquired  by  Sir  Edward  Coke,  j^ted"™  the 
He  was  committed  along  with  Selden,  Prynne,  Tower, 
and  other  leaders  of  the  opposition.  At  the  same  time, 
orders  were  given  for  sealing  up  the  locks  and  doors 
of  his  house  in  Holborn  and  of  his  chambers  in  the 
Temple,  and  for  seizing  his  papers.*  A  general  pardon 
being  about  to  be  published,  according  to  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  byname;  and  then  the  proposal  was 
adopted  of  preferring  an  indictment  against  him,  so 
that  he  might  come  within  the  exception  of  such  as 
were  under  prosecution. 

The  ex-Chief  Justice  being  carried  to  the  Tower,  and 
lodged  in  a  low  room  which  had  once  been  a  kitchen, 
he  found  written  on  the  door  of  it  by  a  wag — "  This 
room  has  long  wanted  a  Cook ;"  f  and  he  was  soon 
after  complimented  in  the  following  distich, — 

"  Jus  condere  cocus  potuit,  Bed  condere  jura 
Non  potuit ;  potuit  condere  jura  cocus." 


*  The  "  Instructions  to  the  Gentlemen  be  witnesses   that   they  meddle  with 

that  are  to  search  Sir  Edward  Coke's  nothing  that  concerns  his  land  or  private 

papers,"  are  still  extant.    There  is  an  estate." — Cotton  MS.  Titus  B.  vii.  204. 

injunction  "to  take  some  of  his  servants  f  I/Israeli's  James  I.,  p.  125. 
or  friends  in  their  company,  who  shall 


374  EEIGN  OF  JAMES  I.  CHAP.  X. 

Instead  of  being  prosecuted  for  his  speeches  in  the 
House  of  Commons,  the  true  ground  of  his  imprison- 
ment, he  was  examined  before  the  Privy  Council  on  a 
stale  and  groundless  charge,  that  he  had  concealed 
some  depositions  taken  against  the  Earl  of  Somerset ; 
— he  was  accused  of  arrogant  speeches  when  Chief 
Justice,  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  King  had  given  him 
permission  to  consult  with  eight  of  the  best  learned  in 
the  law  on  his  case."  But  he  returned  thanks  for  the 
monarch's  attention,  and  said  "  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."  *  His  confinement  was,  at  first,  so  rigorous  that 
"  neither  his  children  nor  servants  could  come  at  him  ;| 
but  he  was  soon  allowed  to  send  for  his  law 

He  employs 

himself  on(      books — ever  his  chief  delight, — and  he  made 
considerable  progress  with  his  Commentary 
on  Littleton,  which  now  engrossed  all  his  thoughts. 

After  a  few  months'  confinement,  the  proceedings 
H  .  against  him  were  dropped ;    and  in  conse- 

leasedonthe    quence  of  the  intercession  of  Prince  Charles 

intercession        -1  ...  j.      mi       TT--  i 

of  the  Prince    he  was  set  at  liberty.  J     1  he  King,  however, 

lles'        finally  struck,  his  name  out  of  the  list  of 

Privy  Councillors,  and,  declaring  his  patriotism  to  pro- 

*  D'Israeli's  James  I.,  126.  King  on  this  occasion :— P.  "  I  pray  that 

•f-  Roger  Coke,  your  Majesty  would  mercifully  consider 

j  The  following  dialogue  is  said  to  the  case  of  Sir  Edward  Coke."    K.  "  I 

have  passed  between  the  Prince  and  the  know  no  such  man."  P.  "  Perhaps  your 


A.D.  1624.  SIR  EDWAKD  COKE.  375 

ceed  from  disappointed  ambition,  exclaimed  in  spleen, 
"He  is  the  fittest  instrument  for  a  tyrant  that  ever 
was  in  England."  * 

No  parliament  sitting  for  two  years,  Sir  Edward 
Coke,  during  this  interval,  remained  quiet  at  his  seat 
in  Buckinghamshire  ;  but,  there  being  an  intention  of 
calling  a  new  parliament,  he  was,  in  the  autumn  of 
1623,  put  into  a  commission  with  several  others,  re- 
quiring them  to  proceed  to  Ireland,  and  make  certain 
inquiries  there, — a  common  mode,  in  the  Stuart  reigns, 
of  inflicting  banishment  on  obnoxious  poli- 

&  r  A.D.  1624. 

ticians.  He  had  formerly  complained  of  this  coke  defeats 
abuse  of  the  Royal  prerogative ;  but  on  this  ££$X° 
occasion  he  dextrously  said,  "  he  was  ready  *°  ireland- 
to  conform  to  his  Majesty's  pleasure,  and  that  he 
hoped  in  the  sister  isle  to  discover  and  rectify  many 
great  abuses."  This  threat  so  alarmed  the  Court 
that  he  was  allowed  to  remain  at  home.  Afterwards, 
when  speaking  of  this  practice,  he  said,  "  No  restraint, 
be  it  ever  so  little,  but  is  imprisonment ;  and  foreign 
employment  is  a  sort  of  honourable  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."  f 

The  Spanish  match,  which  the  nation  so  much  dis- 
liked, having  been  suddenly  broken  off,  and  a  war 
with  Spain,  which  was  greatly  desired  in  England, 
now  impending,  a  sudden  change  arose  in  the  state  of 
parties,  and  for  a  time  a  reconciliation  was  effected 
between  Buckingham  and  the  leaders  of  the  Puritans. 
To  court  them  he  even  went  so  far  as  to  encourage 
schemes  for  abolishing  the  order  of  bishops,  and  selling 


Majesty    may    remember   Jfr.    Coke,"  Feb.  2.  1621-22,  in  the  British  Museum. 

K.  "  I  know  no  such  man.  By  my  saul,  *  Wilson's  Life  of  James  I.,  191. 

there  is  one  Captain  Colce,  the  leader  of  f  Rushworth,  i.  523;   2   Part.  Hist, 

the  faction  in  parliament." — StoaneMSS.  257. 


376  EEIGN  OF  JAMES  I.  CHAP.  X. 

the  dean  and  chapter  lands    in   order   to   defray  the 
expenses  of  the  war. 

Under  these  circumstances  the  new  parliament  was 
called,  and  Sir  Edward  Coke  was  returned 

Coke  for  a  '  . 

short  time       for  Coventry,  having  still  remained  Recorder 

reconciled  to         „,  .,  ,,  r-ji-o. 

Bucking-  of  that  city,  and  kept  up  a  friendly  inter- 
rT  1624  course  with  its  inhabitants.  At  the  com- 
mencement of  the  session  he  appeared  as  a 
supporter  of  the  Government,  and  he  declared  Buck- 
ingham to  be  the  "  saviour  of  his  country."  * 

He  deserves  much  credit  for  carrying  the  act  of  par- 
liament, which  is  still  in  force,  abolishing  monopolies, 
and  authorising  the  Crown  to  grant  patents  securing 
to  inventors  for  a  limited  time  the  exclusive  exercise 
of  their  inventions  as  a  reward  for  their  genius  and 
industry.f 

The  most  exciting  proceeding  before  this  parliament 

1624       was   ^e   imPeachnient  °f  Lionel   Cranfield, 

Coke  con-       Earl  of  Middlesex,  with  whom  Buckingham 

peachmenT1"    had  quarrelled,  after  having  made  him,  from 

of  the  Eari  of  a  City  merchant,  Lord  High  Treasurer  of 

MidoUesex.  J  °  . 

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  inclination,  other 

*  Clarendon  says,  with  great  spite,  that  every  subject  of  England  had  entire 

"  Sir  Edward  Coke  blasphemously  called  power  to  dispose  of  his  own  actions, 

him  OUR  SAVIOUB." — Hist.  vol.  i.  p.  9.  provided  he  did  no  injury  to  any  of  his 

t  Stat.  21  James  I.  c.  3.    Hume  says,  fellow  subjects,  and  that  no  prerogative 

"  This  bill  was  conceived  in  such  terms  of  the  king,  no  power  of  any  magistrate, 

as  to  render  it  merely  declaratory;  and  nothing  but  the  authority  alone  of  the 

all  monopolies  were  condemned  as  con-  laws,    could   restrain    that    unlimited 

trary  to  law  and  to  the  known  liberties  freedom."— Vol.  vi.  p.  143. 
of  the  people.    It  was  then  supposed 


A.D.  1624-5.  SIR  EDWARD  COKE.  377 

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  favour  if  I  should  seem  tedious  in  some 
particulars;  for  circumstances  to  things  are  like  shadows  to 
pictures,  to  set  them  out  in  fuller  representation."  His  long 
opening  he  at  last  concluded  in  these  words  : — "  All  this  I  speak 
by  command  ;  I  pray  your  Lordships  to  weigh  it  well  with, 
solemn  consideration,  and  to  give  judgment  according  to  the 
merits." 

The  noble  defendant  had  done  various  things,  as 
head  of  the  Treasury,  which  would  now  be  considered 
very  scandalous ;  but  he  had  only  imitated  his  pre- 
decessors, and  was  imitated  by  his  successors.  Yet 
he  was  found  guilty,  and  adjudged  "  to  lose  all  his 
offices  which  he  holds  in  this  kingdom  ;  to  be  incapable 
of  any  office  or  employment  in  future ;  to  be  imprisoned 
in  the  Tower  during  the  King's  pleasure ;  to  pay  a  fine 
of  50,OOOZ. ;  never  to  sit  in  parliament  any  more ;  and 
never  to  come  within  the  verge  of  the  Court."* 

At  the  close  of  the  session,  Sir  Edward  Coke  retired 
to  Stoke  Pogis,  and  there  occupied  himself 
with  his  legal  studies  till  he  heard  of  the 
death  of  James  I.,  in  the  spring  of  the  following  year. 

He  immediately  came  to  his  house  in  Holborn  upon 
the  report  that  there   was  an  intention  to   March  27, 
reassemble  the  old   parliament,   which   had    1626g 
expired  with  the  King  who  called  it ;   but  he  found 
that,  although  Charles  had  expressed  a  wish   Accession  of 
to  that  effect,  a  proclamation  soon  came  out   Charles  L 
for  the  election  of  a  new  parliament.    He  was  again 
returned  for  Coventry. 

At  the  commencement  of  the  session  his  demeanour 
was  marked  by  moderation.     He  entertained 
good  hopes  of  the  new  sovereign,  and  was   Coke's  mode- 
resolved  to  give  him  every  chance  of  a  quiet   ratlon' 

*  Lords'  Journals;  1  Parl.  Hist.  1411-1478. 


378  REIGN  OF  CHARLES  I.  CHAP.  X. 

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  grievances,  "  he  moved  that  there  might  be  no  com- 
mittee for  grievances,  because  this  was  the  very  be- 
ginning of  the  new  King's  reign,  in  which  there  can  be 
no  grievances  as  yet."* 

However,  he  speedily  quarrelled  with  the  Court ;  and 
His  motion  when  the  motion  for  a  supply  was  made,  he 
quiry/nto  moved,  by  way  of  amendment,  for  a  com- 
tunfof  thf"  mittee  *°  inquire  into  the  expenditure  of  the 
Crown.  Crown ;  speaking  in  this  wise  : — 

"  Necessitas  affectata,  invincibilis  et  improvida.  If  necessity 
comes  by  improvidence,  there  is  no  cause  to  give.  No  king  cau 
subsist  in  an  honourable  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-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  honour — the 
King's  household  out  of  order — upstart  officers — voluntary  an- 
nuities 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  leakage :  the  multiplicity  of  forests  and  parks, 
now  a  great  charge  to  the  King,  might  be  drawn  into  great  profit 
to  him."f 

In  his  reply  he  said, — 

"  Two  leaks  would  drown  any  ship.  Solum  et  malum  con- 
cilium, is  a  bottomless  sieve.  An  officer  should  not  be  cupidus 
alienee  rei,  parcus  suce.  Misera  servitus  est  ubi  lex  vaga  aut 
incognita.  Segrave,  Chief  Justice,  was  sentenced  for  giving  sole 
counsel  to  the  King  against  the  commonwealth.  I  would  give 
1000Z.  out  of  my  own  estate,  rather  than  grant  any  subsidy  now." 

The  committee  was  carried,  and  was  proceeding  so 
Aug.  12.  vigorously  in  the  inquiry  into  grievances, 
£.i™£n^f  that  the  King  abruptly  dissolved  the  par- 
parliament,  liament. 

*  2  Parl.  Hist.  6.  f  Ibid.  11. 


A.D.  1626.  SIR  EDWARD  COKE.  379 

But  a  supply  being  soon  indispensable,  from  the  ex- 
hausted state  of  the  exchequer,  a  new  par- 
liament was  to  be  summoned,  and  to  make  Feb- 1626- 
it  tractable,  the  notable  expedient  was  in-  exciucufcoke 
vented  of  appointing  the  chief  opposition  par™amentW 
leaders  sheriffs  of  counties,  upon  the  suppo-  hfmTsheriff 
sition  that  they  would  thereby  be  disquali- 
fied to  sit  in  the  House  of  Commons.  The  ex-Chief 
Justice  Coke,  now  in  his  75th  year,  was  appointed 
Sheriff  of  Buckinghamshire.  Having  in  vain  pe- 
titioned to  be  excused,  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  to  sheriffs,  which  had  remained 
unchanged  since  Popish  times,  and  made  the  sheriff 
swear  to  "  seek  and  to  suppress  all  errors  and  heresies 
commonly  called  Lotteries."  "  This,"  he  objected, 
"  would  compel  him  to  suppress  the  established  re- 
ligion, since  Lollard  was  only  another  name  for  Pro- 
testant." The  Judges,  being  consulted,  unanimously 
resolved  that  this  part  of  the  oath  ought  to  be  omitted, 
"because  it  is  required  by  statutes  which  are  repealed, 
having  been  intended  against  the  religion  now  pro- 
fessed, then  deemed  heresy."  He  likewise  excepted  to 
other  parts  of  the  oath  as  unauthorised  by  any  statute ; 
but  the  judges  said  that  the  residue  of  the  oath,  having 
been  administered  divers  years  by  the  direction  of  the 
state,  might  be  continued  for  the  public  benefit ;  and 
the  Privy  Council  obliged  him  to  take  it.* 

Nevertheless,  not  only  without  bribe,  but  without 
solicitation,  he  was  returned   to  the  House    Feb.  10. 
of  Commons  by  his  native  county  of  Norfolk.t    He  is  re- 

-«7-L  i  •     *  f  ,  1         turned  for 

When  parliament  met,  a  message  from  the   Norfolk. 
King  was  (as  we  should  think,  most  irregu-    1^^  <us-r 

*  Cro.  Car.  26.  motione  aut  petitione  inde  a  me  prse- 

f  In  his  own  language,  "  sine  aliqua     bills." 


380  EEIGN  OF  CHAELES  I.  CHAP.  X. 


r^n^f  his"  larly  an(^  unconstitutionally)  brought  down 
being  a  from  the  King  by  the  Chancellor  of  the 
Exchequer,  "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.*  The  House  referred  the 
matter  to  the  "  Committee  of  Elections  and  Privi- 
leges," who  made  the  unsatisfactory  report,  "that, 
after  diligent  search,  they  had  found  many  cases  pro 
and  con  as  to  a  high  sheriff  for  one  county  being  elected 
to  represent  another  in  parliament."  The  House 
ordered  them  to  make  further  search,  and  the  session 
came  to  an  end  without  any  decision.  Neither  he, 
nor  any  of  the  other  sheriffs  returned  to  the  House, 
took  their  seats,  but  no  fresh  writs  were  issued  to  elect 
members  in  their  stead  ;  and,  on  the  very  day  before 

the  dissolution  (which,  in  spite  of  their  ex- 
June  15.          ,     .  -II-  -j  A        • 

elusion,  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  of  that  House,  should  have 
privilege  against  a  suit  in  Chancery  commenced  against 
him  by  the  Lady  Clare."| 

He  performed  the  duties  of  Sheriff  in  a  very  exem- 
Coke  serves  plarv  manner  ;  and  we  are  told  that,  when 
the  office  of  the  assizes  came  round,  he  rode  out  to  meet 

Sheriff  with  ' 

great  dis-       the  Judges  at  the  head  of  a  grand  cavalcade. 
He  likewise   stood  behind  them  very  wor- 

*  This  is  repealed  by  3  Geo.  III.  c.  15.  out  the  precept,  he  may  represent  any 

t  2  Parl.  Hist.  44-198.    The  law  is  other  county,  and  even  a  town  within 

now   settled   that   although   a   sheriff  his  own  county  which  happens  to  be  a 

cannot  represent  his  own  county,  nor  county  of  itself. 

any  place  within  it  for  which  he  makes 


A.D.  1628.  SIR  EDWARD  COKE.  381 

shipfully,  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 
measures  of  internal  government,  as  if  par- 
liaments were  never  to  meet  again.  He  raised 
money  by  forced  loans  and  benevolences  ;  he  ^|n^ovem" 
arrogated  to  himself  the  power  of  committing 
to  prison,  without  specifying  any  offence  in  the  war- 
rant of  commitment ;  he  induced  the  Judges  to  decide 
that  they  had  no  power  to  examine  such 
commitments,  or  to  admit  the  prisoners  to 
bail ;  preparatory  to  the  pecuniary  imposition  of  ship- 
money,  he  required  the  different  sea-ports  to  furnish  a 
certain  number  of  ships  for  his  service  at  their  own 
expense ;  and  he  billeted  soldiers  on  those  who  refused 
his  unlawful  demands  to  live  at  free  quarters.  But, 
having  been  engaged  in  a  war  with  France,  through 
the  wanton  caprice  of  Buckingham,  it  became  indis- 
pensably necessary,  in  the  beginning  of  the  year 
1628,  once  more  to  summon  the  great  council  of  the 
nation. 

The  attempt  was   not   renewed  to   disqualify  Sir 

Edward  Coke,  as  a  parliament  man,  by  any    . 

'  r  i       •       Coke  mem- 

omce ;  and  such  was  his  popularity,  that  he   **r  f°r  Buck- 
was  returned  by  two  counties — Suffolk  and   lnga  new  iri 
Buckinghamshire.     He  elected  to  serve  for   parl 
the  latter,  in  which  he  had  fixed  his  residence,  and  in 
which  he  was  now  regarded  with  veneration  almost 
amounting  to  idolatry. 


382  EEIGN  OP  CHARLES  I.  CHAP.  X. 

When  the  new  parliament  assembled,  the  King  at- 
Marchi7.  tempted  to  daunt  the  members  who  he 
tries  to  m-  thought  might  be  troublesome,  by  saying 

timidate  the       .      •.  .  •  i 

Parliament,     m  his  opening  speech — 

"  If  you  shall  not  do  your  duties  in  contributing  to  the 
necessities  of  the  state,  I  must,  in  discharge  of  my  con- 
science, use  those  other  means  which  God  hath  put  into  my 
hands,  in  order  to  save  that  which  the  follies  of  some  par- 
ticular men  may  otherwise  put  in  danger :  take  not  this  for  a 
threatening,  for  I  scorn  to  threaten  any  but  my  equals ;  but 
as  an  admonition  from  him  who,  by  nature  and  duty,  has  most 
care  of  your  preservation  and  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 : — 

"  Dum  tempus  habemus  bonum  operemur.  I  am  absolutely  for 
Coke's  de-  g^vmg  supply  to  his  Majesty ;  yet  with  some  caution, 
fence  of  pub-  To  tell  you  of  foreign  dangers  and  inbred  evils,  I 
lie  liberty.  w{\\  not  <Jo  it.  The  state  is  inclining  to  a  consump- 
tion, yet  not  incurable ;  I  fear  not  foreign  enemies ;  God  send  us 
peace  at  home.  For  this  disease  I  will  propound  remedies ;  I 
will  seek  nothing  out  of  my  own  head,  but  from  my  heart,  and 
out  of  acts  of  parliament.  I  am  not  able  to  fly  at  all  grievances, 
but  only  at  loans.  Let  us  not  flatter  ourselves.  Who  will  give 
subsidies,  if  the  King  may  impose  what  he  will  ?  and  if,  after 
parliament,  the  King  may  enhance  what  he  pleaseth  ?  I  know 
the  King  will  not  do  it.  I  know  he  is  a  religious  King,  free  from 
personal  vices  ;  but  he  deals  with  other  men's  hands,  and  sees 
with  other  men's  eyes.  Will  any  give  a  subsidy,  if  they  are  to 
be  taxed  after  parliament  at  pleasure  ?  The  King  cannot  law- 
fully tax  any  by  way  of  loans.  I  differ  from  them  who  would 
have  this  of  loans  go  amongst  grievances  ;  for  I  would  have  it  go 
alone.  I'll  begin  with  a  noble  record  ;  it  cheers  me  to  think  of 
it, — 26  Edw.  III.  It  is  worthy  to  be  written  in  letters  of  gold. 

*  Rushworth,  i.  477. 


A.D.  1628.  SIR  EDWARD  COKE.  383 

Loans  against  the  will  of  the  subject  are  against  reason,  and  the 
franchises  of  the  land ;  and  they  desire  restitution.  What  a 
word  is  that  franchise  I  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  Parliament.  In  Magna  Charta 
it  is  provided  that  Nullus  liber  homo  capiatur,  vel  imprisonetur, 
aut  disseisetur  de  libero  tenemento  suo,  &c.  nisi  per  legale  judi- 
cium  parium  suorum,  vel  per  legem  terrce."* 

The  first  grievance  specifically  brought  before  the 
House  was  the  decision  of  the  Judges  respecting  com- 
mitments by  the  King  and  Council  without  naming 
any  cause : — 

Sir  Edward  Coke :  "  This  draught  of  the  judgment  will  sting 
us,  quia  nulla  causa  fuit  ostentata, — '  being  committed  by  the 
command  of  the  King,  therefore  he  must  not  be  bailed.'  •  What 
is  this  but  to  declare  upon  record,  that  any  subject  committed 
by  such  absolute  command  may  be  detained  in  prison  for  ever  ? 
What  doth  this  tend  to  but"  the  utter  subversion  of  the  choice, 
liberty,  and  right  belonging  to  every  free-born  subject  in  this 
kingdom  ?  A  parliament  brings  judges,  officers,  and  all  men 
into  good  order."f 

He  carried  resolutions  which,  half  a  century  after, 
were  made  the  foundation  of  the  Habeas  Corpus 
Act:— 

L  "  That  no  freeman  ought  to  be  committed  or  detained  in 
prison,  or  otherwise  restrained  by  command  of  the  King  or  the 
Privy  Council  or  any  other,  unless  some  cause  of  the  commitment, 
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.wj 

*  2  Parl.  Hist.  237.  vimus  cum  Patribut'  and  they  can  show 

f  Ibid.  246.     Notwithstanding    this  no  precedent  but  that  our  predecessors 

violent  invective  against  the  doctrine*  have  done  as  we  have  done — sometimes 

that  persons  committed   by  the  King  bailing,  sometimes  remitting,  sometimes 

could  not  be  liberated  by  the  Judges,  it  discharging.    Yet  we  do  never  bail  any 

would  appear  that  he  himself;  when  on  committed  by  the  King,  or  his  Council, 

the  bench,  had  sanctioned  it.    The  Lord  till  his  pleasure  be  first  known ;  and 

Chief  Justice  Hyde  being  questioned  in  thus  did  the  Lord  Chief  Justice  Coke  in 

the  House  of  Lords  for  the  late  decision  Saynard's  case." — a  Parl.  Hist.  292. 

of  the  Court  of  King's  Bench  on  this  J  Ibid.,  259. 
subject,  said,  "  If  we  have  erred, '  erra- 


384  EEIGN  OP  CHAKLES  I.  CHAP.  X. 

While  he  attended  to  grievances  at  home,  he  was  by 
Coke's  no  means  indifferent  to  the  honour  and 

patriotic  re-     greatness  of  the  country. 

gardforthe       °  .          J 

glory  of  Eng-       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.*  In  the  parliament  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  as  prisoners.  In  3  Rich.  II.  the  King 
•was  invironed  with  Flemings,  Scots,  and  French,  and  the  King  of 
England  prevailed.  In  13  Rich.  II.  the  King  was  invironed  with 
Spaniards,  Scots,  and  French,  and  the  King  of  England  prevailed. 
In  17  Rich.  II.  wars  were  in  Ireland  and  Scotland,  and  yet  the 
King  of  England  prevailed :  thanks  were  given  to  God  ;  and  I 
hope  I  shall  live  to  give  God  thanks  for  our  King's  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  parlia- 
ment, '  Multorum  consilia  requiruntur  in  magnis ;  in  hello  qui 
maxime  timent  sunt  in  maximis  periculis.'  Let  us  give,  and 
not  be  afraid  of  our  enemies ;  let  us  supply  bountifully,  cheer- 
fully, 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 
Coke  brings  actually  given,  there  should  be  an  effectual 
potion  of6  redress  of  grievances.  He  therefore  framed 
Ri«ht-  the  famous  PETITION  OP  EIGHT.  This  second 

I^EAGNA  CHARTA  enumerated  the  abuses  of  prerogative 
from  which  the  nation  had  lately  suffered, — levying 
forced  loans  and  benevolences — unlawful  imprison- 

*  "  Poor  England !  thou  art  a  devoted     observe  that  Coke  always  dates  histo- 

deer,  rical   events  by  the  year  of  a  king's 

Beset  with  every  ill  but  that  of    reign ;  and  1  suspect  that  his  knowledge 

fear." — Cmuftr.  of  history  was  chiefly  drawn  from  poring 

over  the  Statute  Book  and  the  Bolls  of 

•}  2  Parl.  Hist.  255.     It  is  curious  to     Parliament. 


A.D.  1628.  SIR  EDWAKD  COKE.  385 

ments  in  the  name  of  the  King  and  the  Privy  Council 
— billeting  soldiers  to  live  at  free  quarters  —  with 
various  other  enormities, — and,  after  declaring  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  conferences 
upon  the  subject  between  the  two  Houses,  which  were 
chiefly  conducted  on  the  part  of  the  Commons  by  Sir 
Edward  Coke.  What  seems  very  strange  to  us, — the 
Attorney  General  and  other  Crown  lawyers  were 
allowed  to  argue  against  the  Petition  at  the  bar, 
as  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  vigour  of  intellect  than  any  of  them,  or  all 
of  them  put  together.  The  King,  afraid  of  the  im- 
pression made  upon  the  Lords,  sent  a  message  to  both 
Houses,  expressing  his  willingness  to  concede  them  a 
bill  in  confirmation  of  King  John's  MAGNA  CHARTA, 
without  additions,  paraphrases,  or  explanations ;  as- 
suring them  that  no  future  occasion  of  complaint 
should  arise.  Mr.  Secretary  Cooke,  with  soft  and 
honied  expressions,  moved  that  the  House  should  be 
content  with  the  King's  assurances ;  and  many  mem- 
bers, persuaded  by  his  rhetoric,  were  intimating  their 
assent  to  waive  the  Petition  : — 

Sir  Edward  Coke :  "  Was  it  ever  known  that  general  words 
were  a  satisfaction  to  particular  grievances  ?  Was  ever  a  verbal 
declaration  of  the  King  verbum  Regis  ?  Where  grievances  be, 
the  parliament-is  to  redress  them.  Did  ever  parliament  rely  on 
messages  ?  The  King's  answer  is  very  gracious,  but  we  have  to 
look  to  the  law  of  the  realm.  I  put  no  diffidence  in  his  Majesty;, 
but  the  King  must  speak  by  record;  and  in  particulars,  not  in 
generals.  Did  you  ever  know  the  King's  message  come  into  a 

VOL.  I.  2  c: 


386  EEIGN  OF  CHARLES  I.  CHAP.  X. 

bill  of  subsidies  ?  All  succeeding  kings  will  say,  '  Ye  must  trust 
me  as  well  as  ye  did  my  predecessor,  and  give  faith  to  my  mes- 
sages.' But  messages  of  love  have  no  lasting  endurance  in  par- 
liament. Let  us  put  up  a  PETITION  OF  EIGHT.  Not  that  I 
distrust  the  King,  but  that  I  cannot  take  his  trust  save  in  a 
parliamentary  way."  * 

The  Commons  resolved  that  they  would  proceed  ; 
and  the  Lords  passed  the  bill,  but  were  pre- 
vailed  upon  by  the  courtiers  to  add  a  proviso, 
which  would  have  completely  nullified  its 
°Peration,  "  that  nothing  therein  contained 


of  the  n         should  be  construed  to  entrench  on  the  sove- 
reign power  of  the  Crown."   The  bill  coming 
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, 
and,  to  speak  plainly,  it  will  overthrow  all  our 
cOTnmenda-  PETITION  ;  it  trenches  on  all  parts  of  it  ;  it  flies  at 
tionofCoke  loans,  at  imprisonment,  and  at  billeting  of  soldiers. 
this  is  re-  This  turns  all  about  again.  Look  into  all  the  peti- 
Commons.  *  tions  of  former  times  ;  the  assenting  answer  to  them 
never  contained  a  saving  of  the  king's  sovereignty. 
I  know  that  prerogative  is  part  of  the  law,  but  'sovereign 
power  '  is  no  parliamentary  word.  In  my  opinion,  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  building  must  fall. 
If  we  grant  this,  by  implication  we  give  a  '  sovereign  power  ' 
above  all  laws.  '  Power  '  in  law  is  taken  for  a  pouber  with  force  ; 
the  sheriff  shall  take  the  power  of  the  county.  What  it  means 
here,  God  only  knows.  It  is  repugnant  to  our  PETITION.  This 
is  a  PETITION  OF  EIGHT  granted  on  acts  of  parliament,  and  the 
laws  which  we  were  born  to  enjoy.  Our  ancestors  could  never 
endure  a  salvo  jure  suo  from  kings  —  no  more  than  our  kings  of 
old  could  endure  from  churchmen  salvo  honore  Dei  et  Ecclesice. 
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 

*  2  Parl.  Hist.  348;  Rushworth,  i.  558. 


A.D.  1628.  SIR  EDWARD  COKE.  387 

to  lye  under  it ;  for  though  I  should  suffer,  a  time  would  come 
for  the  deliverance  of  the  country."  * 

The  amendment  was  rejected  by  the  Commons ;  and, 
after  several  conferences,  the  Lords  agreed  "  not  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  acknowledge  that 
their  Lordships  had  not  only  dealt  nobly  with  them  in  words,  but 
also  in  deeds  ;  that  this  Petition  contained  the  true  liberties  of  the 
subjects  of  England,  and  their  Lordships  concurring  with  the 
Commons  had  crowned  the  work ;  that  this  parliament  might  be 
justly  styled  '  PABLIAMENTUM  BENEDICTUM  ;'  and  to  ask  the 
Lords  to  join  in  beseeching  his  Majesty,  for  the  comfort  of  his 
oving  subjects,  to  give  a  gracious  answer."  t 

Buckingham  would  not  venture  to  advise  a  direct 
veto  by  the   words  "  Le  Boy  savisera"  but    The  King's 
framed  the  following  evasive  and  fraudulent   retuman 

evasive 
answer  : —  answer. 

"  The  King  willeth  that  right  be  done  according  to  the  laws 
and  customs  of  the  realm ;  and  that  the  statutes  be  put  in  due 
execution,  that  his  subjects  may  have  no  cause  to  complain  of 
any  wrongs  or  oppressions  contrary  to  their  just  rights  and 
liberties,  to  the  preservation  whereof  he  holds  himself  in  con- 
science as  well  obliged  as  of  his  own  prerogative."  J 

The  Commons  returned  to  their  chamber  in  a  rage  ; 
and  Speaker  Finch,  the  devoted  tool  of  the  Court, 
seeing  their  excited  condition,  exclaimed,  "  I  am 
commanded  to  interrupt  any  member  who  shall  asperse 
a  minister  of  state."  Nevertheless,  Sir  Edward  Coke 
rose,  but,  according  to  Eush worth,  "  overcome  with 
passion,  seeing  the  desolation  likely  to  ensue,  he  was 
forced  to  sit,  when  he  began  to  speak  through  the 
abundance  of  tears."  The  veteran  statesman,  having 
in  some  measure  recovered  his  self-command,  thus 
proceeded : — 

*  2  Parl.  Hist.  357.  f  IMd.  372.  J  Ibid.  377 

2  c  2 


388  EEIGN  OF  CHARLES  I.  CHAP.  X. 

"  I  now  see  that  God  has  not  accepted  of  our  humble  and 

moderate  carriages  and  fair  proceedings;   and  the 

Coke's  de-        rather,  because  I  fear  they  deal  not  sincerely  with 

nunciation  of     1  i      -rr  '  T        •  *  i     1  1  •  i  •  /» 

the  Duke  of  the  King  and  with  the  country  in  making  a  tree 
Buckingham,  representation  of  all  these  miseries.  I  repent  myself, 
since  things  are  come  to  this  pass,  that  I  did  not 
sooner  declare  the  whole  truth  ;  and,  not  knowing  whether  I 
shall  ever  speak  in  this  House  again,  1  will  do  it  now  freely.  We 
have  dealt  with  that  duty  and  moderation  that  never  was  the 
like  after  such  a  violation  of  the  liberties  of  the  subject.  What 
shall  we  do  ?  Let  us  palliate  no  longer  ;  if  we  do,  God  will  not 
prosper  us.  I  think  the  Duke  of  Bucks  is  the  cause  of  all  our 
miseries,  and,  till  the  King  be  informed  thereof,  we  shall  never 
go  out  with  honour  or  sit  with  honour  here.  That  man  is  the 
grievance  of  grievances.  Let  us  set  down  the  causes  of  all  our 
disasters,  and  they  will  all  reflect  upon  him.  It  is  not  the  King, 
but  the  Duke."—  Cries,  "  'tis  he  !  "  "  'tis  he  1  " 

Kush  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."  * 

The  Lords  and  Commons  agreed  upon  a  joint  address 
to  the  King,  which  was  delivered  to  him  sitting  on  the 
throne,  saying  that,  "  with  unanimous  consent,  they 
did  become  humble  suitors  unto  his  Majesty,  that  he 
would  be  pleased  to  give  a  clear  and  satisfactory  answer 
to  their  PETITION  OF  EIGHT."  The  King  said  that  "  he 
intended  by  his  former  answer  to  give  them  full 
satisfaction,  but  that,  to  avoid  all  ambiguous  inter- 
pretations, 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  t°  bills>  said>  "  Soit  droit  fait  come 


ceivesthe       il   est  desire  ;  "  and  the  PETITION  OF   EWHT 

royal  assent      ,  .     .  ,        ,       _., 

in  due  form,    became  a  statute  of  the  realm.j     There  is  an 

entry  in  the  Journals  stating,  "  When  these 

words  were  spoken,  the  Commons  gave  a  great  and 

*  Rushworth,  i.  609;  Whitelock,  p.  10;  2  Part.  Hist.  410.          f  3  Charles  I.  ch.  i. 


A.D.  1628.  SIK  EDWAKD  COKE.  389 

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  transport  of 

j°y- 

The  PETITION  OF  EIGHT  might  have  led  to  a  quiet  and 
prosperous  reign  ;  "but,  being  recklessly  violated,  before 
many  years  elapsed  a  civil  war  raged  in  the  kingdom, 
and  the  dethroned  King  lost  his  life  on  the  scaffold. 

The  Commons  performed  their  part  of  the  engage- 
ment, for  they  immediately  read  a  third  time, 

,    J  ,  „,    .  J  .    „  ,.,.  Billforsup- 

and  passed,  a  bill  to  grant  nve  subsidies  to   piy  passes 
the  King  ;  and  having  ordered  Sir  Edward   ^rHes  u°pkto 
Coke  to  carry  it  to  the  Lords,  almost  the   t*m*e  of 


whole  House   accompanied  him  thither,  in 

token  of  their  gratitude  and  good-  will  to  his  Majesty. 

This  good  understanding  was  momentary,  for  the 
King  still  insisted  that  he  had  a  right  to  levy  tonnage 
and  poundage  by  his  own  authority  ;  and  June  2g  . 
when  the  House  of  Commons  was  preparing  sudden  pro- 
a  remonstrance  against  this  illegal  pro-  rogatlon' 
ceeding,  he  suddenly  put  an  end  to  the  session  by  a 
prorogation,  saying,  "  The  profession  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  confirmed  the  ancient  liberties  of 
my  subjects."  He  then  resorted  to  the  dishonourable 
expedient  of  circulating  copies  of  the  PETITION  OF  RIGHT, 
with  the  first  answer  which  he  had  given  to  it,  and  he 
insisted  that  his  prerogatives  were  in  all  respects  the 
same  as  before  this  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 


390  EEIGN  OF  CHARLES  I.  CHAP.  X. 

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  been  his  laborious  occupation  for 
many  years.  Although  the  first  edition  abounded 
with  errors  of  the  press,  the  value  of  the  book  was  at 
once  recognised,  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. 

Parliament  again  met  in  the  beginning  of  the  fol- 
jan  21  1629  l°w^ng  vear>  but  Sir  Edward  Coke's  name  is 
Coke  absent  DO*  mentioned  in  the  proceedings  of  the  short 
Ihort 'stormy  session  which  was  then  held,  except  once, 
i629°n°f  when  the  Speaker  was  directed  to  write  to 
him  to  request  his  attendance.*  No  expla- 
nation is  given  of  the  cause  of  his  absence,  and,  as  he 
continued  at  bitter  enmity  with  the  Court,  he  was 
probably  detained  in  the  country  by  illness.  We  may 
conjecture  the  resentful  tone  in  which  he  would  have 
exposed  the  violation  of  the  PETITION  OF  EIGHT,  and 
the  prominent  part  which  he  would  have  taken  in  the 
famous  scene  in  the  House  of  Commons  immediately 
before  the  dissolution,  when  Speaker  Finch  was  held 
down  in  the  chair  while  resolutions  were  carried  assert- 
ing the  privileges  of  the  House. 

By  his  absence  he  had  the  good  luck  to  escape  the 
imprisonment  inflicted  on  Sir  John  Eliot,  Hollis,  and 

•  Journals,  llth  Feb.  1629.  "In  re-  —2  Parl.  ffist.  463.  They  wanted  his 
spect  that  the  term  ends  to-morrow,  and  assistance  in  the  debate  on  the  claim  of 
the  assizes  to  follow,  and  divers  mem-  the  King  to  levy  tonnage  and  poundage 
bers  that  are  lawyers  of  this  House  may  without  the  authority  of  parliament, 
be  gone,  it  is  ordered  that  none  shall  go  The  same  day  Oliver  Cromwell  made 
forth  of  town  without  the  leave  of  the  his  maiden  speech,  in  which  he  de- 
House.  Ordered  also  that  the  Speaker's  nounced  a  sermon  delivered  at  I'aul's 
letter  shall  be  sent  for  Sir  Edward  Coke."  Cross  as  "  flat  popery." 


A.D.  1629-34.  SIK  EDWAED  COKE.  391 

the  other  popular  leaders,  who  were  afterwards  con- 
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    He  retireg 
called  till  his  remains  had  mouldered  into   from  public 

life. 

dust.  Charles  had  resolved  to  reign  by  prero- 
gative alone,  and  was  long  able  to  trample  upon  public 
liberty, — till  the  day  of  retribution  arrived. 

The  first  months  of  Coke's  retirement  were  devoted 
to  the  publication  of  a  new  edition  of  his  A.D.  1629- 
Commentary  on  Littleton,  which  was  the  ^^ 
most  accurate  and  valuable  till  the  thirteenth,  ti°™- 
given  to  the  world  in  the  end  of  the  last  century  by 
those  very  learned  lawyers,  Hargrave  and  Butler. 
We  have  scanty  information  respecting  his  occupations, 
and  the  incidents  which  befell  him,  till  the  closing  scene 
of  his  life.  He  continued  to  reside  constantly  at  Stoke 
Pogis.  He  was  never  reconciled  to  Lady  Hatton,  who, 
there  is  reason  to  fear,  grumbled  at  his  longevity.  Mr. 
Garrard,  in  a  letter  written  in  the  year  1633,  to  Lord 
Deputy  Strafford,  says,  "  Sir  Edward  Coke  was  said 
to  be  dead,  all  one  morning  in  Westminster  Hall,  this 
term,  insomnch  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  physicians  coming  from  him,  who  told  her  of 
his  much  amendment,  which  made  them  also  return  to 
London ;  some  distemper  he  had  fallen  into  for  want 
of  sleep,  but  is  now  well  again."  * 

Till  a  severe  accident  which  he  met  with,  he  had 
constantly  refused   "all  dealings  with  doc-   His  dislike 
tors;"    and    "he  was   wont    to  give   God    ^PMic- 
solemn    thanks    that    he   never    gave    his    body   to 

*  Stratford's  Letters  and  Despatches,  i.  265. 


392  EEIGN  OF  CHARLES  I.  CHAP.  X. 

physic,  nor  his  heart  to  cruelty,  nor  his  hand  to  cor- 
ruption." *  When  turned  of  eighty,  and  his  strength 
declining  rapidly,  a  vigorous  attempt  was  made  to 
induce  him  to  take  medical  advice ;  of  this  we  have  a 
lively  account  in  a  letter  from  Mr.  Mead  to  Sir  Martin 
Stuteville : — 

"  Sir  Edward  Coke  being  now  very  infirm  in  body,  a  friend  of 

his  sent  him  two  or  three  doctors  to  regulate  his 

Attempt  of      health,  whom  he  told  that  he  had  never  taken  physic 

his  friends  to.  !  ,  ,  ,,  i       •  j 

give  him  the  since  he  was  born,  and  would  not  now  begin ;  and 
benefit  of  that  he  had  now  upon  him  a  disease  which  all  the 
advice!1  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."  f 

Of  his  accident,  which  in  the  first  instance  produced 

He  meets        no   seri°us   effects,  there    is    the    following 

with  an          account  entered  by  him  in  his  diary,  in  the 

same  firm  and  clear  hand  which  he  wrote  at 

thirty : — 

"  The  3rd  of  May,  1632,  riding  in  the  morning  in  Stoke,  between 
eight  and  nine  o'clock  to  take  the  air,  my  horse  under  me  had  a 
strange  stumble  backwards  and  fell  upon  me  (being  above  eighty 
years  old),  where  my  head  lighted  near  to  sharp  stubbles,  and  the 
heavy  horse  upon  me.  And  yet  by  the  providence  of  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  confined 
to  the  house.  His  only  domestic  solace  was  the  com- 
pany of  his  daughter,  Lady  Parbeck,  whom  he  had 
forgiven  —  probably  from  a  consciousness  that  her 
errors  might  be  ascribed  to  his  utter  disregard  of 

*  Lloyd's  State  Worthies,  ii.  112. 

f  Harleian  MS.  390,  fol.  634 ;  Kills  Papers,  iii.  263. 


A.D.  1629-34.  SIR  EDWARD  COKE.  393 

her  inclinations  when  he  concerted  her  marriage. 
She  continued  piously  to  watch  over  him  till  his 
death.* 

His  law  books  were  still  his  unceasing  delight ;  and 
he  now  wrote  his  SECOND,  THIRD,  and  FOURTH  INSTITUTES, 
which,  though  very  inferior  to  the  FIRST,  are  wonderful 
monuments  of  his  learning  and  industry. 

On  one  occasion,  without  his  privity,  his  name  was 
introduced  in  a  criminal  prosecution.  A  . 

T    «.  i  Prosecution 

person  of  the  name  of  Jeffes,  who  seems  to  foraiibei 
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,  f  to  be  treason, 
calling  him  traitor  and  perjured  Judge,  and  scandalising 
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  de- 
scriptive paper  on  his  breast,  to  make  submission  to 
every  court  there,  to  pay  a  fine  of  WOOL,  and  to  find 
sureties  for  his  good  behaviour  during  the  remainder 
of  his  life .| 

This  proceeding  was  not  prompted  by  any  kindness 
for  the  ex-Chief  Justice;  on  the  contrary,  he  was 

*  Extract  of  letter  from  Mr.  Gerrard  hath  not  been  much  looked  after  since, 
to  Lord  Deputy  Strafford,  dated  17th  of  having  lived  much  out  of  town,  and  con- 
March,  1636 :— "  Here  is  a  new  business  etantly  these  last  two  years  with  her 
revived ;  your  Lordship  hath  heard  of  a  father  at  Stoke."   He  afterwards  goes  on 
strong  friendship  heretofore  betwixt  Sir  to  give  an  account  of  her  imprisonment 
Robert  Howard  and  the  Lady  Parbeck,  In  the  Gatehouse,  and  her  escape  in  the 
for  which  she  was  called  into  the  High  disguise  of  a  page. 
Commission,  and  there  sentenced  to  stand  f  11  Rep.  66. 
in  a  white  sheet  in  the  Savoy  Church,  j  Cro.  Car.  175. 
which  she  avoided  then  by  flight,  and 


394  REIGN  OF  CHARLES  I.  CHAP.  X. 

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 
device  of  ship-money  was  almost  mature.  Sir  Edward 
A  D  1634.  Coke  having  then  resided  in  the  same  county 
Coke  sup-  with  Hampden,  and  at  no  great  distance 

posedtohave  .....  .  a          -.i 

advised  from  him, — it  is  conjectured,  without  any 
resist^hip-*0  positive  evidence,  that  they  consulted  to- 
money.  gether  as  to  the  manner  in  which  the  law 
and  the  constitution  might  be  vindicated.  So  much 
is  certain, — that,  from  secret  information  which  the 
Government  had  obtained,  Sir  Francis  Windebank,  the 
Secretary  of  State,  by  order  of  the  King  and  Council, 
came  to  Stoke  on  the  1st  of  September,  163i,  attended 
by  several  messengers,  to  search  for  seditious  papers, 
and,  if  any  were  found,  to  arrest  the  author. 

On  their  arrival  they  found  Sir  Edward  Coke  on 
his  death-bed.  They  professed  that  they 
would,  under  these  circumstances,  offer  him 
no  personal  annoyance ;  but  they  insisted  on 
searching  every  room  in  the  house  except 
that  in  which  he  lay,  and  they  carried  away 
all  the  papers,  of  whatever  description,  which  they 
could  lay  their  hands  upon.  Among  these  were  the 
original  MS.  from  which  he  had  printed  the  Com- 
mentary on  Littleton ;  the  MS.  of  his  Second,  Third, 
and  Fourth  Institutes,  his  last  will,  and  many  other 
papers  in  his  handwriting.* 

*  There  is  now  extant,  in  the  library  rant  from  the  Council  were  brought  to 

at  Lambeth,  the  original  inventory  of  Whitehall,  whereon  his  Majesty's  plea- 

these  papers,  entitled  "  A  catalogue  of  sure  is  to  be  known,  which  of  them 

Sir  Edward  Coke's  papers,  that  by  war-  shall  remain  there."     It  begins,    "  A 


A.D.  1634.  SIR  EDWARD  COKE.  395 

It  is  believed  that  Sir  Edward  Coke  remained 
ignorant  of  this  outrage,  and  that  his  dying 

j-fVj       -nri^jv  His  death. 

moments  were  undisturbed.  He  had  been 
gradually  sinking  for  some  time,  and  on  the  3rd  of  Sept., 
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  will  be  done!" 

His  remains  were  deposited  in  the  family  burying- 
place  at  Titleshall,  in  Norfolk,  where  a  most  magnificent 
marble  monument  has  been  erected  to  his 

.,,  ,  .          .    ,.  ,.    His  funeral. 

memory,  with   a  very  long   inscription,  of 

which   the  following  will  probably  be  considered  a 

sufficient  specimen : — 

"  Quique  dum  vixit,  Bibliotheca  viva,  His  epitaph. 

Mortuus  dici  meruit  Bibliothecse  parens. 
Dnodecim  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." 

In  drawing  his  character  I  can  present  nothing  to 
captivate  or  to  amuse.     Although  h#  had  re- 
ceived an  academical  education,  his  mind  was    His  '8°°- 

.,,.,,.  .  ranee  of 

wholly  unimbued  with  literature  or  science ;    science  and 
and  he  considered  that  a  wise  man  could  not    fo'ruteraTure. 
reasonably  devote  himself  to  any  thing  ex- 
cept law,  politics,  and  industrious  money-making.     He 

wanscott  box,  of  his  arms,  accounts  and  jesty,  9th  of  September,  1634."    Among 

revenues."    The  house  in  Holborn  had  the  items  is  "  One  paper  of  poetry  to  his 

been  searched  and  rifled  at  the  same  children."     This  may  have   been  the 

time,  for  there  is  in  the  library  at  Lam-  poetical  version  of  his  Reports,  of  which 

beth,  another  inventory,  entitled  "A  I  will  afterwards  give  a  specimen.    The 

note  of  such  things  as  were  found  in  a  will  was  destroyed  or  lost,  to  the  great 

trunk  taken  from  Pepys,  Sir  Edward  prejudice  of  the  family.    The  law  MSS., 

Coke's  servant,  at  London,  brought  to  as  we  shall  see,  were  returned  by  order 

Bugshot   by   his   Majesty's   command-  of  the  Long  Parliament, 
ment,  and  then  broken  up  by  his  Ma- 


396  SIE  EDWAED  COKE.  CHAP.  X. 

values  the  father  of  English  poetry  only  in  as  far  as  the 
"  Canon's  Yeoman's  Tale  "  illustrates  the  statute  5  Hen. 
IV.  c.  4.  against  Alchymy,  or  the  craft  of  multiplication 
of  metals ; — and  he  classes  the  worshipper  of  the  Muses 
with  the  most  worthless  and  foolish  of  mankind : — 
"  The  fatal  end  of  these  five  is  beggary, — the  alchemist, 
the  monopotext,  the  concealer,  the  informer,  and  the 
poetaster. 

"  Ssepe  pater  dixit,  studium  quid  inutile  tentas  ? 
Maonides  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  statute 
against  vagrants ;  since  the  making  whereof,  I  have  found  fewer 
thieves,  and  the  gaol  less  pestered  than  before.  The  abuse  of 
stage  players,  wherewith  I  find  the  country  much  troubled,  may 
easily  be  reformed,  they  having  no  commission  to  play  in  any 
place  without  leave ;  and  therefore,  if  by  your  willingness  they 
be  not  entertained,  you  may  soon  be  rid  of  them."  f 

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."  J 

He  is  charged  by  Bacon  with  talking  a  great  deal  in 
company,  and  aiming  at  jocularity  from  the 
bench:  but  he  associated   chiefly   with   de- 
pendants, who  worshipped  him  as  an  idol; 
and  the  only  jest  of  his  that  has  come  down  to  us  con- 

*  3  Institute,  74.  Kaleigh,  in  the  challenge  of  Sir  Andrew 

t  It  is  supposed  to  have  been  out  of  Aguecheek. — See  Boswell's  Shakspeare, 

revenge  for  this  charge,  that  Shakspeare  ii.  442. 

parodied  his  invective  against  Sir  Walter  J  3  Inst.  ch.  xx. 


SIR  EDWARD  COKE.  397 

soles  us  for  the  loss  of  all  the  rest : — COWELL'S  INTER- 
PRETER being  cited  against  an  opinion  he  had  expressed 
when  Chief  Justice,  he  contemptuously  called  the 
learned  civilian  Dr.  Cow-heel.* 

Yet  we  are  obliged  to  regard  a  man  with  so  little 
about  him   that    is   ornamental,   or   enter-    . 

His  greatness 

tainins,  or  attractive,  as  a  very  considerable    as  a  lawyer 

,,        ,.   ,  f     -i.  and  a  judge. 

personage  in  the  history  of  his  country. 
Belonging  to  an  age  of  gigantic  intellect  and  gigantic 
attainments,  he  was  admired  by  bis  contemporaries, 
and  time  has  in  no  degree  impaired  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  corruption,  but,  at  every  risk,  he  dis- 
played an  independence-  and  dignity  of  deportment 
which  would  have  deserved  the  highest  credit  if  he 
had  held  his  office  during  good  behaviour,  and  could 
have  defied  the  displeasure  of  the  Government.  To  his 
exertions  as  a  parliamentary  leader,  we  are  in  no  small 
degree  indebted  for  the  free  constitution  under  which 
it  is  our  happiness  to  live.  He  appeared  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  disused,  the  edicts  of  the  King  were 
to  have  the  force  of  law.  There  were  other  public- 
spirited  men,  who  were  ready  to  stand  up  in  defence  of 
freedom ;  but  Coke  alone,  from  his  energy  of  character, 
and  from  his  constitutional  learning,  was  able  to  carry 
the  PETITION  OF  EIGHT  and  upon  his  model  were 
formed  Pym  and  the  patriots  who  vindicated  that 
noble  law  on  the  meeting  of  the  Long  Parliament. 

*  Cowell  had  given  great  offence  by  mitted  to  custody,  and  his  book  was 
asserting  that  the  King  was  not  bound  publicly  burnt.— Wilson's  Memor.  Can- 
by  the  laws,  insomuch  that  by  order  of  tabrig.  p.  60. 
the  House  of  Commons  he  was  com- 


398  SIR  EDWAED  COKE.  CHAP.  X. 

He  is  most  familiar  to  us  as  an  author.     Smart  legal 
practitioners,  who  are  only  desirous  of  making 
author?  ^      money  by  their  profession,  neglect  his  works, 
and   sneer  at  them  as  pedantic  and   anti- 
quated ;  but  they  continue  to  be  studied  by  all  who 
wish  to  know  the  history,  and  to  acquire  a  scientific  and 
liberal  knowledge  of  our  juridical  and  political  insti- 
tutions. 

I  have  already  mentioned  his  REPORTS,  the  first  eleven 
parts  of  which  he  composed  and  published 

His  Reports.  ••,    ,  r-     -,    -,       .  ,.  rA  , , 

amidst  his  laborious  occupations  as  Attorney 
General  and  Chief  Justice.  The  twelfth  and  thirteenth 
parts  were  among  the  MSS.  seized  by  the  Government 
when  he  was  on  his  death-bed.  In  consequence  of  an 
address  by  the  House  of  Commons  to  the  King  on  the 
meeting  of  the  Long  Parliament,  seven  years  after, 
they  were  restored  to  his  family,  and  printed.  Although 
inferior  in  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.* 

There  are  now  more  volumes  of  law  reports  published 
every  year  than  at  that  time  constituted  a  lawyer's 
library,  f  In  the  eighty  years  which  elapsed  between  the 
close  of  the  Year-Books  and  the  end  of  the  16th  century, 
Plowden,  Dyer,  and  Kielway  were  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 : — 

*  The  first  three  parts  were  published  forbidden  by  an  ordinance  of  the  Long 

in  1601,  the  fourth  and  fifth  in  1603,  and  Parliament.  The  whole  have  been  lately 

the  following  six  parts  between  1 606  and  most  admirably  edited  by  my  friend  Mr. 

1616,  when   the  Reporter  presided  in  Farquhar  Fraser. 

C.  P.  or  K.  B.  These  were  all  originally  f  There  were  then  only  twelve  vo- 

printed  in  Norman  French.    The  12th  lumes  of  Reports  extant,  of  which  nine 

and  13th  parts  did  not  see  the  light  till  were  YEAR-BOOKS.    The  compilations 

1654  and  1658,  when  they  appeared  in  called   "Abridgments,"  however,  were 

an    English   translation;    the    use  of  dreadfully  bulky. 
French  in  law  proceedings  having  been 


SIR  EDWARD  COKE.  399 

"  And  now  that  I  have  taken  upon  me  to  make  a  report  of  their 
arguments,  I  ought  to  do  the  same  as  fully,  truly,  and  sincerely  as 
possibly  I  can ;  howbeit,  seeing  that  almost  every  judge  had  in 
the  course  of  his  argument  a  particular  method,  and  1  must  only 
hold  myself  to  one,  I  shall  give  no  just  offence  to  any,  if  I  chal- 
lenge 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  con- 
sideration had  of  all  the  arguments,  the  reporter  himself  thinketh 
to  be  fittest  and  clearest  for  the  right  understanding  of  the  true 
reasons  and  causes  of  the  judgment  and  resolution  of  the  case  in 
question."  * 

Notwithstanding  the  value  of  his  Eeports,  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  was  received  with 
reverence,  f  The  popularity  of  his  Eeports  was  much 
increased  by  the  publication  of  a  metrical  abstract  or 
rubric  of  the  points  determined,  beginning  with  the 
name  of  the  plaintiff.  Thus : 

HuVbard:  "  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.  ] .) 

His  opus  magnum  is  his  Commentary  on  Littleton, 
which  in  itself  may  be  said  to  contain  the 
whole  common  law  of  England  as  it  then 
existed.  Notwithstanding  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 

*  1  Rep.  4  a.  t  Bacon's  Works,  v.  473. 


400  SIR  EDWARD  COKE.  CHAP.  X. 

made,  or  is  ever  likely  to  make,  any  proficiency,  must 
peruse  him  with  delight. 

He  apologises  for  writing  these  Commentaries  in 
English,  "for  that  they  are  an  introduction  to  the 
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  incon- 
venience." * 

This  work,  which  he  thus  dedicates  — 


EGO   GRAND.EVUS   POSUI   TIBI,   CANDIDE   LECTOR    — 

was  the  valuable  fruit  of  his  leisure  after  he  had  been 
tyrannically  turned  out  of  office,  and  in  composing  it  he 
seems  to  have  lost  all  sense  of  the  ill  usage  under  which 
he  had  suffered,  for  he  refers  in  his  Preface  to  "  the 
reign  of  our  late  sovereign  lord  King  James  of  famous 
and  ever  blessed  memory"  f 

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  dnigljta'  Serbice,  Socage,  (StanB 
Serjeantic,  jFran&atmoigne,  93urgage,  and  Fitfenage,  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  ex- 
celled, 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 

*  Preface.  f  P.  xxxvii. 


CHAP.  X.  SIB  EDWARD  COKE.  401 

concluding  sentence :  "  And,  for  a  farewell  to  our  juris- 
prudent, I  wish  unto  him  the  gladsome  light  of  juris- 
prudence, the  lovelinesse  of  temperance,  the  stabilitie  of 
fortitude,  and  the  soliditie  of  justice." 

His  other  "  Institutes,"  as  he  called  them,  published 
under  an  order  of  the  House  of  Commons,*    second, 
are    of  very  inferior    merit.     The    Second   Fourth^ 
Institute  contains  an  exposition  of  MAGNA    8tltutes- 
CHARTA  and  other  ancient  statutes ;  the  Third  treats  of 
criminal  law  ;f  and  the  Fourth  explains  the  jurisdiction 
of  all  courts  in  the  country,  from  the  Court  of  Parlia- 
ment to  the  Court  of  Pie  Poudre.     He  was  likewise  the 
author  of  a  Book  of  "  Entries,"  or  legal  precedents ;  a 
treatise  on  Bail   and   Mainprize ;    a   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  sympathise 
with  the  feelings  he  expresses : — 

"  Whilst  we  were  in  hand  with  these  four  parts  of  the  Insti- 
tutes, we  often  having  occasion  to  go  into  the  city,  and  from 
thence  into  the  country,  did  in  some  sort  envy  the  state  of 
the  honest  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 

*  Journals,  12th  May,  1641.    "  Upon  very  same  day  on  which  the  Earl  of 

debate  this  day  had  in   the  Commons  Strafford  was  beheaded. 

House  of  Parliament,  the  said  House  did  f  The  most  curious  chapter  is   on 

then  desire  and  hold  it  fit  that  the  heir  "  conjuration,  witchcraft,  sorcery,  or  en- 

of  Sir  Edward  Coke  should  publish  in  chantment,"   in  which  he  tells  us  of 

print  the  Commentary  on  Magna  Charta,  wizards 

the  Pleas  of  the  Crown,  and  the  Juris-  ..  _      ,  . 

diction  of  Courts,  according  to  the  inten-  ^  rhimes  that  "">  PuU  down  fuU 

tion  of  the  said  Sir  Edward  Coke;  and  .,  K 

that  none  but  the  heir  of  the  said  Sir  n°m  lofty  *** the  ™>denng  *<*>»  " 

Edward  Coke,  or  he  that  shall  be  autho-  and  highly  applauds  the  legislature  for 

rised  by  him,  do  presume  to  publish  in  punishing  with  death  "such  great  abo- 

print  any  of  the  aforesaid  books  or  any  ruinations." 
copy  hereof."    This  order  was  made  the 

VOL.    I.  2    I) 


402  SIE  EDWARD  COKE.  CHAP.  X. 

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  ex- 
pression of  joy  or  cheerfulness  whilst  he  is  at  his  work."* 

He  had  a  passionate  attachment  to  his  own  calling, 

His      ion-    an<^  ^e  was  ^^7  convinced  that  the  blessing 

ate  love  of  MS   of  heaven  was  specially  bestowed  on  those 

who  followed  it.  Thus  he  addresses  the  young 

beginner : — 

"  For  thy  comfort  and  encouragement,  cast  thine  eyes  upon  the 
sages  of  the  law  that  have  been  before  thee,  and  never  shalt  thou 
find  any  that  hath  excelled  in  the  knowledge  of  the  laws  but  hath 
sucked  from  the  breasts  of  that  divine  knowledge,  honesty,  gra- 
vity, and  integrity,  and,  by  the  goodness  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  nourish  as  the  palm  tree  and  spread  abroad  as  the 
cedars  of  Lebanus.  Hitherto,  I  never  saw  any  man  of  a  loose  and 
lawless  life  attain  to  any  sound  and  perfect  knowledge  of  the  said 
laws ;  and  on  the  other  side,  I  never  saw  any  man  of  excellent 
judgment  in  the  laws  but  was  withal  (being  taught  by  such  a 
master)  honest,  faithful,  and  virtuous."  "  Wherefore,"  he  says, 
"  a  great  lawyer  never  dies  improlis  aut  tntestatus,  and  his  pos- 
terity continue  to  nourish  to  distant  generations."! 

In  his  old  age  he  agreed  with  the  Puritans,  but  he 
continued  to  support  the  Established  Church ;  and,  a 
great  peer  threatening  to  dispute  the  rights  of  the 
Dean  and  Chapter  of  Norwich,  he  stopped  him  by 
saying,  "  If  you  proceed,  I  will  put  on  my  cap  and 
gown,  and  follow  the  cause  through  Westminster 
Hall."J  From  his  large  estates  he  had  considerable 
ecclesiastical  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."  § 

*  Epilogue  to  4th  Institute .  presentation  the  patron  should  be  sworn 

t  See  Preface  to  "  Second  Report."  against  simony,  as  well  as  the  incum- 

j  Lloyd's  State  Worthies,  p.  S25.  bent.— Roger  Coke's  Vindication,  p.  266. 
$  He  tried  to  carry  a  law  that  ou  every 


CHAP.  X.  SIR  EDWARD  COKE.  403 

He  certainly  was  a  very  religious,  moral,  and  tem- 
perate man.  although  he  was  suspected  of  „ 

..  ...  -nil  ,  •  r.       Th®  dlstn- 

giving  to   LAW   a  considerable  portion  of  button  of  MS 
those  hours  which,  in  the  distribution  of 
time,  he  professed  to  allot  to  PRAYER  and  the  MUSES, 
according  to  his  favourite  Cantilena, — 

"Sex  boras  somno,  tot  idem  des  legibus  sequis, 

Quatuor  orabis,  des  epulisque  duas, 
Quod  superest  ultra  sacris  largire  camosnis."  * 

His  usual  style  of  living  was  plain,  yet  he  could  give 
very  handsome  entertainments.  Lord  Bacon 
tells  us  that  "he  was  wont  to  say,  when  a 
great  man  came  to  dinner  at  his  house  unex- 
pectedly, '  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.'  "f  He 
once  had  the  honour  of  giving  a  dinner  to  Queen 
Elizabeth,  and  she  made  him  a  present  of  a  gilt  bowl  and 
cover  on  the  christening  of  one  of  his  children  ;|  but  he 
was  never  very  anxious  about  the  personal  favour  of 
the  sovereign,  and  he  considered  it  among  the  felicities 
of  his  lot  that  he  had  obtained  his  preferments  nee  pre- 
cibus,  nee  pretio.  Notwithstanding  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  was 
very  neat  in  his  dress,  as  we  are  quaintly  informed  by 
Lloyd : — "  The  jewel  of  his  mind  was  put  into  a  fair 

*  Thus  varied: —  Ten  to  the  world  allot,  and   all  to 

"  Six  hours  to  law,  to  soothing  slumber  Heaven." 

seven.  See  Macaulay's  Essays,  vol.  i.  p.  367. 

Eight  to  the  world  allow-the  rest  to  f  Apophthegms,  112. 

J  Nichol's  Progresses  of  Elizabeth,  iii. 
467,  568. 

"  Six  hours  to  law,  to  soothing  slum* 
bers  seven, 

2  D  2 


404  SIR  EDWAKD  COKE.  CHAP.  X. 

case,  a  beautiful  body  with  comely  countenance ;  a  case 
which  he  did  wipe  and  keep  clean,  delighting 
and  manners.  ^n  good  clothes,  well  worn ;  being  wont  to 
say  that  the  outward  neatness  of  our  bodies 
might  be  a  monitor  of  purity  to  our  souls."*  "  The 
neatness  of  outward  apparel,"  he  himself  used  to  say, 
"  reminds  us  that  all  ought  to  be  clean  within."  f  The 
only  amusement  in  which  he  indulged  was  a  game  of 
bowls ;  but,  for  the  sake  of  his  health,  he  took  daily 
exercise  either  in  walking  or  riding,  and,  till  turned 
of  eighty,  he  never  had  known  any  illness  except  one 
slight  touch  of  the  gout. 

His  temper  appears  to  have  been  bad,  and  he  gave 
much  offence  by  the  arrogance  of  his  manners. 
rar^tetes?£~  He  was  unamiable  in  domestic  life ;  and  the 
£vou?.inhi8  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  friend- 
ship with  any  of  his  contemporaries.  Yet  they  speak 
of  him  with  respect,  if  not  with  fondness.  "  He  was," 
said  Spelman,  "the  founder  of  our  legal  storehouse, 
and,  which  his  rivals  must  confess,  though  their  spleen 
should  burst  by  reason  of  it,  the  head  of  our  juris- 
prudence." J  Camden  declared  that  "he  had  highly 
obliged  both  his  own  age  and  posterity ;"  §  and  Fuller 
prophesied  that  he  would  be  admired  "  while  Fame  has 
a  trumpet  left  her,  and  any  breath  to  blow  therein."  || 

Modern  writers  have  treated  him  harshly.  For  ex- 
ample, 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."  1f 

*  Worthies,  ii.  297.  indicate  high  genius. 

t  There  are  many  portraits  and  old        J  Eel.  Spel.  p.  150. 
engravings  of  him  extant, — almost  all         j  Britannia,  Iceni,  p.  351. 
representing  him  in  his  judicial  robes,         ||  Worthies,  Norfolk,  p.  261. 
—and  exhibiting  features  which,  accord-         «[f  Const.  Hist.  i.  455. 
ing  to  the  rules  of  physiognomy,  do  not 


CHAP.  X.  SIB  EDWAED  COKE.  405 

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  al- 
though,  in  that  capacity,  he  unduly  stretched 
the  prerogative,  he  at  no  time  betrayed  any 
symptom  of  sycophancy  or  subserviency.  From  the 
moment  when  he  was  placed  on  the  bench,  his  public 
conduct  was  irreproachable.  Our  Constitutional  His- 
torian is  subsequently  obliged  to  confess  that  "  he  be- 
came the  strenuous  asserter  of  liberty  on  the  principles 
of  those  ancient  laws  which  no  one  was  admitted  to 
know  so  well  as  himself:  redeeming,  in  an  intrepid 
and  patriotic  old  age,  the  faults  which  we  cannot  avoid 
perceiving  in  his  earlier  life."*  In  estimating  the 
merit  of  his  independent  career,  which  led  to  his  fall 
and  to  his  exclusion  from  office  for  the  rest  of  his  days, 
we  are  apt  not  sufficiently  to  recollect  the  situation  of 
a  "  disgraced  courtier  "  in  the  reign  of  James  I.  Now- 
adays, a  political  leader  often  enhances  his  consequence 
by  going  into  opposition,  and  sometimes  enjoys  more 
than  ever  the  personal  favour  of  the  sovereign.  But, 
in  the  beginning  of  the  1 7th  century,  any  one  who  had 
held  high  office,  if  forbidden  "  to  come  within  the  verge 
of  the  Court " — whether  under  a  judicial  sentence  or 
not, — was  supposed  to  have  a  stain  affixed  to  his  cha- 
racter, and  he  and  those  connected  with  him  were 
shunned  by  all  who  had  any  hope  of  rising  in  the 
world. 

Most  men,  I  am  afraid,  would  rather  have  been 
Bacon  than  Coke.     The  superior  rank  of  the    whether 
office  of  Chancellor,  and  the  titles  of  Baron    would  yon 
and  Viscount,  would  now  go  for  little  in  the    Coke  or 
comparison ;    but   the   intellectual  and  the 
noble-minded  must  be  in  danger  of  being  captivated 
too  much  by  Bacon's  stupendous  genius  and  his  bril- 

*  Const.  Hist.  i.  476. 


406  SIR  EDWARD  COKE.  CHAP.  X. 

liant  European  reputation,  while  his  amiable  qualities 
win  their  way  to  the  heart.  Coke,  on  the  contrary, 
appears  as  a  deep  but  narrow-minded  lawyer,  knowing 
hardly  anything  beyond  the  wearisome  and  crabbed 
learning  of  his  own  craft,  famous  only  in  his  own 
country,  and  repelling  all  friendship  or  attachment  by 
his.  harsh  manners.  Yet,  when  we  come  to  apply  the 
test  of  moral  worth  and  upright  conduct,  Coke  ought, 
beyond  all  question,  to  be  preferred.  He  never  betrayed 
a  friend,  or  truckled  to  an  enemy.  He  never  tampered 
with  the  integrity  of  judges^  or  himself  took  a  bribe. 
When  he  had  risen  to  influence,  he  exerted  it  strenuously 
in  support  of  the  laws  and  liberties  of  his  country,  in- 
stead of  being  the  advocate  of  every  abuse  and  the 
abettor  of  despotic  sway.  When  he  lost  his  high  office, 
he  did  not  retire  from  public  life  "  with  wasted  spirits 
and  an  oppressed  mind,"  overwhelmed  by  the  con- 
sciousness of  guilt,  —  but,  bold,  energetic,  and  uncom- 
promising, from  the  lofty  feeling  of  integrity,  he  placed 
himself  at  the  head  of  that  band  of  patriots  to  whom 
we  are  mainly  indebted  for  the  free  institutions  which 
we  now  enjoy. 

Lady  Hatton,  his  second  wife,  survived  him  many 
years.  On  his  death  she  took  possession  of 
the  house  at  Stoke  Pogis,  and  there  she 


tivu°warnthe  was  residing  when  the  civil  war  broke  out. 
Having  strenuously  supported  the  Parliament 
against  the  King,  —  when  Prince  Eupert  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  accommoda- 
tion," she  gives  him  this  caution  :  "  The  Parliament 
is  the  only  firm  foundation  of  the  greatest  establish- 


A.D.  1627.  SIB  EDWAKD  COKE.  407 

ment  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  Parliament  upon 
any  pretence  whatsoever,  you  shall  concur  to  destroy 
the  best  groundwork  for  his  Majesty's  prosperity."  * 

Sir  Edward  Coke,  by  his  first  wife,  had  seven  sons, 
but  none  of  them  gained  any  distinction  ex- 
cept Clement,  the  sixth,  who,  being  a  member 
of  the  House  of  Commons  at  the  beginning 
of  the  reign  of  Charles  I.,  in  the  debate  upon  the  im- 
peachment 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,  f  but  for 
the  great  respect  for  the  ex-Chief  Justice,  who  was 
sitting  by  his  side,  and  disdained  to  make  any  apology 
for  him. 

Koger  Coke,  a  grandson  of  the  Chief  Justice,  in  the 
year  1660  published  a  book  entitled  "  Justice  Vindi- 
cated," which,  although  without  literary  merit,  con- 
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  represented, 
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  Norfolk  in  the  House 

*  British  Museum.  Stoke  Pogis  House,  league,  the  Right  Hon.  Henry  Labou- 

8O  memorable  in  our  legal  annals,  one  of  chere.    A  column  has  been  erected  in 

the  places  of  confinement  of  Charles  I.  the  park  to  the  memory  of  Sir  Edward 

when  in  the  power  of  the  Parliament,  Coke ;  but  there  is  no  other  vestige  in 

and  celebrated  by  Gray  in  his  "  Long  the  parish  of  his  existence,  and  there  are 

Story,"  having  passed  from  the  Gayers,  no  traditional  stories  concerning  him  in 

the  Halseys,  and  the  Penns,  is  now  the  the  neighbourhood, 

property  of  my  valued  friend  and  col-  f  2  Parl.  Hist.  50. 


408  SIR  EDWARD  COKE.  CHAP.  X. 

of  Commons  for  half  a  century,  was,  in  1837,  created 
Viscount  Coke  and  Earl  of  Leicester,  titles  now  enjoyed 
by  his  son.  Holkham  I  hope  may  long  prove  an  illus- 
tration of  the  saying  of  the  venerable  ancestor  of  this 
branch  of  the  Cokes,  that  "the  blessing  of  Heaven 
specially  descends  on  the  posterity  of  a  great  lawyer." 


A.D.  1616.  CHIEF  JUSTICE  MONTAGU.  409 


CHAPTEB  XL 

LIVES  OF  THE  CHIEF  JUSTICES  FROM  THE  DEMISE  OF  SIR 
EDWARD  COKE  TILL  THE  ESTABLISHMENT  OF  THE  COM- 
MONWEALTH. 

To  lessen  the  odium  of  Sir  Edward  Coke's  violent 
removal  from  the  office  of  Chief  Justice  of 
the  King's  Bench,  there  was  selected  as  his  sir  Henry 
successor  a  man  who  was  very  inferior  to  ] 
him  in  learning  and  ability,  but  who  was  generally  popu- 
lar, and  who  was  capable  of  performing  the  part  with 
decent  credit.  It  used  to  be  said  of  him,  "  He  is  per- 
fectly qualified  to  be  a  Fellow  of  All  Souls  :  for  if  me- 
diocriter  doctus  he  is  bene  natus  and  bene  vestitus."  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  dishonourable.  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  following 
sketch,  who  added  fresh  splendour  to  an 
illustrious  line,  was  the  grandson  of  Sir 
Edward  Montagu,  whom  I  have  commemorated  as 
making  a  distinguished  figure  in  the  reigns  of  Henry 
VIII.,  Edward  VI.,  and  Queen  Mary  ;  being  a  younger 
son  of  the  eldest  son  of  that  Chief  Justice.  He  was  born 
in  his  father's  castle  of  Boughton,  in  Northamptonshire, 


410  EEIGN  OF  JAMES  I.  CHAP.  XI. 

about  the  middle  of  the  reign  of  Queen  Elizabeth. 
While  yet  a  baby,  a  wizard,  on  examining  the  palm  of 
his  right  hand,  foretold  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. 

I  do  not  find  any  mention  of  his  school;  but  we 
know  that  he  studied  at  Christ's  College, 
«on.  "  Cambridge  ;  and  it  is  said  that,  while  there, 
he  showed  good  nature,  exuberant  spirits, 
and  attention  to  external  accomplishments,  which 
made  him  a  general  favourite,  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 
ancestor  had  been  so  prosperous  ;  and  he  was  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.  How- 
ever, 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  him- 
self up  in  his  chambers,  or  by  constantly  taking  notes 
in  the  Courts  at  Westminster. 

Although  he  was  employed  in  some  flashy  actions 


A.D.  1601.  CHIEF  JUSTICE  MONTAGU.  411 

for  scan,  mag,,  and  in  some  prosecutions  which,  arose 
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.    H,s  profeu- 
He  determined  to  try  his  luck  in  the  political    J^1  Pro' 
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  vigorous  stand  against 
monopolies  that  the  Queen  was  obliged  in  prudence  to 
promise  to  abandon  them.     He  delivered  an 


animated  speech  in  support  of  a  bill  to  abolish    in  the  House 

.,  ...  ,       .,  .,  ,.  of  Commons. 

them,   pointing    out    that   the    proceeding 

against  them  in  the  last  parliament  by  petition  had 

proved  wholly  fruitless.* 

But  he  gained  the  greatest  eclat  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  Serjeant  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." 

Mr.  Montagu  :  "  That  there  was  much  robbery,  public  and 
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 

*  1  Part.  Hist.  920. 


412  EEIGN  OF  JAMES  I.  CHAP.  XI. 

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  answer- 
able 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."  * 

This  was  not   the  "way  to  be  made   Attorney   or 

Solicitor  General,  or  to  gain  any  favour 
He 'is  elected  fr°m  the  Court, — but  by  such  stout  defences 
Recorder  of  of  popular  rights  he  rendered  himself  so 

acceptable  to  the  City  of  London,  that  he  was 
elected  Recorder, — although  it  was  said  that  he  aided 
his  interest  in  this  quarter  by  his  attentions  to  the 
wives  of  the  aldermen. 

Whatever  means  he  employed,  he  was  now  in  high 
favour  eastward  of  Temple  Bar;  and  in  James's  first 
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 
Hoowt?er.e8  carrying  up  a  City  address,  he  contrived  to 

gain  his  favour  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  gra- 
cious 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 

*  1  Parl.  Hist.  921. 


A.D.  1611.  CHIEF  JUSTICE  MONTAGU.  413 

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.* 

For  several  years  he  entertained  warm  hopes  of  being 
appointed  Attorney  or  Solicitor  General ;  but  promo- 
tions 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  paramount  claim. 
Montagu,  therefore,  that  he  might  be  raised  to  the 
bench  on   the  first  ^favourable  opportunity, 
agreed  in  the  meanwhile  to  become  a  King's    He  is  made 
Serjeant.     Accordingly,  he  took  the  coif  by 
writ  in  the  usual  form,  on  the  4th  of  February, 
1611,  and  he  was  created  a  King's  Serjeant  by  patent 
under  the  great  seal  a  few  days  after."!1 

Continuing  Eecorder  of  London,  he  particularly  dis- 
tinguished himself  in  the  festivities  which    AD 
took  place  in  the  City  on  the  infamous  and 
fatal  marriage  between  the  IJarl  and  Countess  of  Somer- 
set.    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   gaiety  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 
on  their  trial  for  the  murder  of  Sir  Thomas 
Overbury,   Serjeant    Montagu    appeared    as   theprosecu- 
counsel  against  them.     He  had  a  very  deli- 
cate  task  to  perform ;  for  the  King,  though 
compelled  by  public  opinion  to  permit  the 
trial,  wished  to  spare  his  favourite;    and,  dreadfully 
afraid  of  the  disclosures  which  might  be  made  if  one 
with  whom  he  had  been  so  familiar  should  be  driven 
to  extremity,  had   with   his  own  hand  written  this 

*  Comm.  Journ.,  March,  1604.  f  Dug.  Ch.  Ser.  103. 


414  EEIGN  OF  JAMES  I.  CHAP.  XI. 

caution  as  to  the  manner  in  which  he  wished  the 
prosecution  to  be  conducted : — "  Ye  will  doe  well  to 
remember  in  your  prceamble  that  insigne,  that  the  only  zeal 
to  justice  maketh  me  take  this  course,  and  I  have  com- 
mandit  you  not  to  expatiate,  nor  digresse  upon  any  other 
points  that  may  not  serve  clearlie  for  probation  or  inducement 
of  that  point  quhairofhe  is  accused" 

When  the  Earl  was  brought  before  the  Lord  High 

Steward  and  Court  of  Peers,  Montagu  pro- 

me.28'       ceeded  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   anything   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  evidence  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." 

Thus  Serjeant  Montagu  began :  "  My  Lord  High 
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,  I 
might  better  say,  the  hand  of  God  and  work  of  justice, 
which  is  the  King's  honour."  He  then  gave  a  softened 
narrative  of  the  leading  facts  of  the  case,  and  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  Sir  Thomas 
Overbury  was  in  the  Tower ;  as  "  heretofore  David,  in 
the  like  case,  was  charged  with  the  murder  of  Uriah ; 


A.D.  1616.  CHIEF  JUSTICE  MONTAGU.  415 

and  though  David  was  under  his  pavilion,  and  Uriah 
in  the  army,  yet  David  was  adjudged  by  Almighty 
God  to  be  the  murderer." 

Somerset,  trusting  to  the  promise  of  a  pardon  which 
had  been  joined  to  the  threat  of  severity,  conducted 
himself  quietly  during  the  trial,  which  terminated  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  victory  had  been 
obtained  by  the  nation  'over  a  foreign  enemy.  The 
King,  much  relieved,  expressed  his  satisfaction  with 
Serjeant  Montagu,  and  promised  to  serve  him. 

Sir  Edward  Coke,  having  given  mortal  offence  to  the 
King,  and  to  Buckingham  the  new  favourite,  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  sug- 
gested Serjeant  Montagu  as  a  fit  successor ;   pointed1*" 
and  Bacon,  the  Attorney  General,  his  adviser,   Stt£  Ktog 

who  was  then  in  the  near  prospect  of  ob-  ^ncb, 

'  •        i  •       -i  *  Nov- 13> 

taming  the  great  seal  for  himself  on  account 

of  the  age  and  declining  health  of  Lord  Chancellor 
Ellesmere,  said  that  "  a  better  choice  could  not  be 
made."  Keturning  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." 

Next  day  Montagu's  appointment  as  Chief  Justice 


416  BEIGN  OF  JAMES  L  CHAP.  XI. 

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  bar- 
risters 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  Hun- 
tingdon on  his  right  hand,  and  the  Lord  Willoughby 
of  Eresby  on  his  left,  with  above  fifty  knights  and 
gentlemen  of  quality  following."  * 

When  he  entered  the  court  he  first  presented  himself 
at  the  bar,  with  Serjeant  Hutton  on  his  right  hand, 
and  Serjeant  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 
mere's^8"  *"m  that  held  the  place  before  you.  It  is  dangerous 
augural  in  a  monarchy  for  a  man,  holding  a  high  and  emi- 
address  to  nent  place,  to  be  ambitiously  popular ;  take  heed  of 
Montagu8''08  **"  1°  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  hardly  be  repaired. 
Remember  your  worthy  grandfather,  Sir  Edward  Montagu,  when 

*  Dugd.  Or.  Jur.  p.  98.  The  only  pro-  peer  in  the  year  1827.  The  barristers, 
cession  of  this  sort  I  ever  witnessed  was,  according  to  their  seniority,  all  then  at- 
when  Lord  Tenterden  took  his  seat  as  a  tended  him  to  the  House  of  Lords. 


A.D.  1616.  CHIEF  JUSTICE  MONTAGU.  417 

he  sat  Chief  Justice  in  the  Common  Pleas :  you  shall  not  find 
that  he  said  vauntingly,  that  he  would  make  '  Latitats'  latitare*; 
when  he  did  sit  Chief  Justice  in  this  place,  he  contained  himself 
within  the  words  of  the  writ  to  be  '  Chief  Justice,'  as  the  King 
called  him  '  ad  placita  coram  nobis  tenenda ;'  but  did  not  arrogate 
or  aspire  to  the  high  title  of  '  CAPITALIS  JUSTITIA  ANGLIC,'  or 
'  CAPITALIS  JUSTITIABIUS  ANGLIJE,'  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,  f  He  never 
strained  the  statute  27  Edw.  III.  c.  1,  to  reach  the  Chancery,  and 
to  bring  that  court  and  the  ministers  thereof,  and  the  subjects 
that  sought  justice  there,  to  be  in  danger  ofpremunire,  an  absurd 
and  inapt  construction  of  that  old  statute.^  Be  doubted  not  but 
if  the  King,  by  his  writ  under  his  great  seal,  commanded  the 
judges  that  they  should  not  proceed  Eege  inconsulto,  then  they 
were  dutifully  to  obey.  §  He  challenged  not  powers  from  this 
court  to  correct  all  misdemeanors,  as  well  extra-judicial  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.  ||  Remember 
the  removing  and  putting  down  your  late  predecessor,  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  subjects,  and  for  the 
due  administration  of  justice,  can  never  be  forgotten." 

Montagu  thus  answered : — 

"  My  most  honourable  Lord  :  I  must  acknowledge  the  great 
favours  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 

*  This  alludes  to  a  controversy  be-  %  This    refers     to    the    controversy 

tween  the  courts  for  custom,  on  which  about   staying,  by   injunction    out    of 

the  profits   of  the  judges   mainly  de-  Chancery,  execution   on   common  law 

pended.    The  "  latitat "  was  a  contriv-  judgments. 

ance  to  take  causes    into   the   King's  }  This    is   a   sarcasm   upon   Coke's 

Bench  from  the  Common  Pleas.  greatest  glory,— that  he  would  not  allow 

f  Whoever  has  done  me  the  honour,  the  King  to  interfere  with  the  regular 

to  read  the  previous  pan  of  this  volume,  administration  of  Justice, 

will  be  aware  that  the  Chancellor  is  here  ||  Here  he  touches  Coke,  who,  in  Dr. 

egregiously  mistaken,  for   there   were  Bonham's   case,   had   talked   nonsense 

"  Chief  Justiciars  "  from  the  Conquest  about  a  statute  being  void  if  contrary  to 

till  the  end  of  the  reign  of  Henry  III. ;  reason. 

and  the  title  of  "  Chief  Justice  of  Eng-  ^T  The  title  which  James  had  assumed 

land,"  which  Coke  assumed,  had  been  without  authority  of  parliament,  and  by 

borne  by  many  of  his  predecessors  after  which  he  delighted  to  be  called, 
the  nature  of  the  office  had  been  altered. 

VOL.  I.  2   E 


418  REIGN  OF  JAMES  I.  CHAP.  XL 

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.  I  will  endeavour  my  best.  It  hath 
been  a  fashion  of  those  that  have  gone  before  me  to  excuse  them- 
selves; 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  grand- 
father!" 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,  1  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,  Begi,  et  Legi"  * 

The  writ  being  then  read,  he  took  the  oaths,  mounted 
to  the  bench,  and  was  placed  in  the  seat  of  Chief 
Justice.! 

The  new  Chief  Justice  had  a  very  slender  stock  of 
law,  but  much  good  sense  and  knowledge  of  the  world. 
He  was  pronounced  to  be  "a  perfect  gentleman,"  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  Dodderidge,  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 
with  double  voucher" 

*  The  motto  on  his  rings  when  he  was        +  See  Cro.  Jac.  407.  Moore's  Reports, 
called  Serjeant.  826-S30. 


A.D.  1618.  CHIEF  JUSTICE  MONTAGU.  419 

The  only  proceeding  of  much  public  interest  in  his 
court  while  he  was  Chief  Justice  was  the 
awarding  of  execution  against   Sir  Walter   ^j^9 
Ealeigh,  after  the  return  of  this  extraordinary   ^ainst  Sir 
man  from  the  delusive  expedition  to  Guiana.   Raleigh, 
When  it  was  resolved  to  sacrifice  him  with    IBIS.  ' 
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  authority  under  the  great 
seal,  he  had  been  put  at  the  head  of  a  fleet  and  an 
army,  and  been  authorised  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  and 
vigour ;  for  he  that  hath  power  over  the  lives  of  others,  must 
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  Gascony, — and  it 
was  allowed  to  be  a  pardon.  Under  the  commission,  I  undertook 
a  journey  to  honour  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  Ealeigh,  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  judgment 
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 

2  E  2 


420  EEIGN  OF  JAMES  I.  CAAP.  XI. 

satisfied,  and  must  put  myself  on  the  mercy  of  the  King,  who  I 
know  is  gracious.  Concerning  that  judgment  at  Winchester 
passed  so  long  ago,  I  presume  that  most  who  hear  me  know  how 
that  was  ohtained ;  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  thereof." 

Montagu,  C.  J. :  "  Sir  Walter  Raleigh,  you  had  an  honourable 
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  1  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  satisfied  that  you  are  a  good  Christian, 
for  your  book,  which  is  an  admirable  work,  doth  testify  as  much. 
I  would  give  you  counsel,  but  I  know  you  can  apply  unto 
yourself  far  better  counsel  than  I  am  able  to  give  you.  Yet, 
with  the  good  Samaritan  in  the  Gospel,  who,  finding  one  in  the 
way  wounded  and  distressed,  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  pre- 
sumptuously. 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  opprobrious 
epithets  which  had  been  used  by  his  predecessor  at  the 
original  trial ;  and  I  know  not  that  any  share  of  the 
infamy  of  the  new  proceeding  is  to  be  imputed  to  him  : 
he  had  only  to  declare  what  the  law  was,  and  he  ex- 
pounded it  soundly;  for  in  strictness  the  attainder 
could  only  be  done  away  with  by  letters  patent  under 

*  Jardine's   Criminal   Trials,  vol.  i.  485-520. 


A.D.  1620.  CHIEF  JUSTICE  MONTAGU.  421 

the  great  seal,  reciting  that  it  was  for  treason,  and 
granting  a  free  pardon.* 

The  life  of  a  common  law  judge  became  more  and 
more  irksome  to  Montagu.  He  complained  not  only  of 
the  duties  cast  upon  him  for  which  he  was  not  alto- 
gether fit,  but  of  the  society  he  was  obliged  to  keep  : 
sitting  all  the  morning  at  Westminster,  he  was  expected 
to  dine  at  Serjeants'  Inn,  where,  in  their  "  compota- 
tions,"  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  gaiety  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  halls  of 
the  Inns  of  Court.  He  thought  he  was  better  fitted  to 
be  a  statesman  than  a  lawyer  ;  and  he  was  sure  that, 
holding  a  political  ofiice,  he  should  at  any  rate  pass  his 
time  more  agreeably. 

At  last  his  wishes  were  gratified,  and,  in  the  end  of 
the  year  1620,  he  became  Lord  Treasurer, 
and  was  created  a  peer  by  the  titles  of  Baron    1626.   He 
Kimbolton  in  the  county  of  Huntingdon,  and 


Viscount  Mandevil.     It  is  said  that  this  ar-    Treasurer 

and  a  peer. 

rangement  cost  him  the  sum  of  20,000t. 

He  by  no  means  found  that  the  change  answered  his 
expectations.  Buckingham,  arbitrary  and  rapacious, 
was  sole  minister,  and  wished  to  engross  the  profits 
as  well  as  power  of  all  offices  under  the  crown. 
Lord  Chancellor  Bacon,  who  was  supposed  to  be 
some  check  upon  the  favourite,  stood  on  the  brink 
of  the  precipice  from  which  he  was  soon  after  pre- 
cipitated. 

The  new  Viscount  was  ushered  into  the  House  of 
Lords,  with  the  usual  solemnities,  on  the  30th  of 

*  Lingard  truly  says  that  the  Chief     ceived  in  terms  of  respect  unusual  on 
Justice's  address  to  Kaleigb  was  "con-     such  occasions.''—  Vol.  ix.  p.  172. 


422  REIGN  OF  JAMES  I.  CHAP.  XI. 

January,  1621,  when  the  memorable  parliament  met 
which  put  an  end  to  monopolies  and  judicial  corruption  in 
England. 

He  took  an  active  part  in  guiding  the  deliberations 
of  the  Peers  on  the  trial  of  Sir  Giles  Mompesson,  im- 
peached by  the  Commons  for  the  oppressions  of  which 
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- 
sider of  the  sentence.  A -wish  was  expressed  that  this 
should  be  pronounced  by  the  Viscount  Mandevil,  long 
accustomed  to  judicial  proceedings ;  but  he,  considering 
that  the  illustrious  delinquent  had  been  his  rival,  his 
friend,  and  his  patron, — with  the  delicacy  of  feeling 
which  always  distinguished  him,  declined  the  invidious 
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  few  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  put  into 
commission,  and  Lord  Mandevil  was  prevailed  upon  to 
consent  to  be  first  commissioner.  The  Duke  of  Rich- 
mond, and  Sir  Julius  Csesar,  Master  of  the  Rolls,  were 
associated  with  him ;  and  the  latter  did  the  actual 
business  of  the  court  till  it  suited  Williams  to  appear 
as  Lord  Keeper. 


A.D.  1631.  CHIEF  JUSTICE  MONTAGU.  423 

In  less  than  a  twelvemonth  from  the  time  of  his 
receiving  the  Treasurer's  wand, — on  account  jniyip.ieai. 
of  a  difference  with  Buckingham, — he  was 
obliged  to  resign  it,  and  to  be  contented  with 
the  office  of  Lord  President  of  the  Council.*  Council. 
This  office  he  retained  during  the  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  consequence,  in  1626,  he 
was  created  Earl  of  Manchester,  the  preamble  of  his 
patent  containing  a  pompous  recital  of  his  public  ser- 
vices. 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  Bequests  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."  f  "  He  was,"  says 
Lord  Clarendon,  "  a  man  of  great  industry  and  sagacity 
in  business,  which  he  delighted  in  exceedingly ;  and 
preserved  so  great  a  vigour  of  mind,  even  to  his  death, 
tli  at  some,  who  had  known  him  in  his  younger  years, 
did  believe  him  to  have  much  quicker  parts  in  his  age 
than  before."  J  He  lived  to  see  the  meeting  of  the  Long 
Parliament ;  but,  on  account  of  his  years,  and  the  in- 
fluence 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 

*  Clarendon  says,  "  Before  the  death  and,  to  allay  the  sense  of  the  dishonour, 

of  King  James,  by  the  favour  of  the  created  Viscount  Mandeville.    He  bore 

Duke  of  Buckingham  be  was  raised  to  the  diminution  very  well,  as  he  was  a 

the  place  of  Lord  High  Treasurer   of  wise  man,  and  of  an  excellent  temper.'' 

England ;  and  within  less  than  a  year  — Rebcll.  i.  84. 

afterwards,  by  the  withdrawing  of  that  f  Fuller,  ii.  169. 

favour,  he  was  reduced  to  the  almost  j  Rebell.  i.  84. 
empty  title  of  President  of  the  Council, 


424  EEIGN  OF  JAMES  I.  CHAP.  XI. 

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  inconvenient  objections  in  law,  the  authority  of 
the  Lord  Manchester,  who  had  trod  the  same  paths,  was 
still  called  upon ;  and  he  did  too  frequently  gratify 
their  unjustifiable  designs  and  pretences.  He  died  in 
lucky  time,"* — on  the  10th  of  November, 

A.D.  1642.  ...  . 

1642,  in  the  eightieth  year  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  accomplished,  and  the  ways  to 
greatness  pursued  by  most  of  his  contemporaries,  the 
negative  praise  is  creditable  to  him  that  he  can  be 
charged  with  no  act  of  violence  or  corruption.  He 
piqued  himself  on  his  consistency ;  and  took  for  his 
motto,  which  is  still  borne  by  his  descendants,  "  Dispo- 
nendo  me,  non  mutando  me" 

His  eldest  son,  Edward,  was  one  of  the  most  distin- 
guished men  who  appeared  in  the  most  inter- 
Sendmts.       esting  period  of  our  history,  having,  as  Lord 
Kimbolton,  vindicated  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.f 

Charles,  the  fourth  Earl,  was  created  Duke  of  Man- 
chester by  George  I. ;  and  William,  the  fifth  Duke,  is 
the  present  representative  of  Sir  Henry  Montagu,  the 
Lord  Chief  Justice.  J 

*  Rebell.  1.  85.  again   acted   in   this   capacity   at  the 

f  He  was  a  quasi  legal  character,  and  meeting  of  the  Convention  Parliament, 

I  might  almost  claim  to  be  his  btogra-  till    Lord    Chancellor    Clarendon  was 

pher,  for  he  was  a  Lord  Commissioner  of  sworn  in. 

the  Great  Seal  under  the  Commonwealth,  J  The  descendants  of  the  first  Chief 

and,  as  Speaker  of  the  House  of  Lords,  Justice  must  now  be  reckoned  by  hun- 

conducted  their  judicial  business.    He  dreds  of  thousands.   Pepys,  in  his  diary 


A.D.  1577.  CHIEF  JUSTICE  LEY.  425 

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  advance-    f^amei 
ment.     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  medio- 
crity, for  he  never  exhibited  much  talent  either  in  his 
profession  or  in  parliament ;  and,  not  having  committed 
any  considerable  crimes,  nor  conferred  any  benefits  on 
his  generation,  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    A  D  1569 
younger  son,  he  had  to  fight  his  way  in  the    His  origin 
world.     At  the  age  of  sixteen  he  was  sent  to    «on.  ' 
Brazen-nose  College,  Oxford.     Having  taken 
a  bachelor's  degree  there,  he  was  transferred    May  *•  1677- 
to  Lincoln's  Inn,  where  he  is  said  to  have 
devoted  himself  very  assiduously  to  the  study  of  the 
common  law ;  but  he  seems  to  have  been  more  distin- 
guished by  agreeable  manners  than  by  profound  ac- 

of  the  22nd  of  September,  1665,  has  the  Harry  VIII.'s    time    to    the   family, 

following  passage :— "  Among  other  dis-  with  the  remainder  in  the  Mn]1,  H^^ 

course  concerning  long  life,  Sir  John  crown),  he  did  answer  the   of  thePMon-°n 

Minnes  saying  that  his  great-grandfather  King  in  showing  how  un-   ta*U8- 

was  alive  in  Edward  the  VI.'s  time ;  my  likely  it  was  that  it  ever  could  revert  to 

Lord  Sandwich  did  tell  us  how  few  there  the  crown,  but  that  it  would  be  a  present 

have  been  of  his  family  since  King  Harry  convenience  to  him  ;  and  did  show  that 

VI  [I.,  that   is  to  say,  the   then  Chief  at  that  time  there  were  4000  persons  de- 

Jiistice,  and  his  son  and  the  Lord  Mon-  rived  from  the  very  body  of  the  Chief 

tagu,  who  was  father  to  Sir  Sidney,  who  Justice.    It  seems  the  number  of  daugh- 

was  his  father.    And  yet,  what  is  more  ters  in  the  family  had  been  very  great, 

wonderful,  he  did  assure  us  from  the  and  they  too  had  most  of  them  many 

mouth  of  my  Lord  Montagu  himself,  that  children,  and  grandchildren,  and  great- 

in  King  James's  time  (when  he  had  a  grandchildren.    This  he  tells  as  a  most 

mind  to  get  the  King  to  cut  off  the  en-  known  and  certain  truth." 
tail  of  some  land  which  was  given  in 


426 


REIGN  OF  JAMES  I. 


CHAP.  XI. 


quirements.  After  he  had  been  fifteen  years  at  the 
bar,  he  had  hardly  any  business  ;  and  his  prospects 
•were  very  discouraging.  On  the  accession  of  James  I. 
he  tried  the  experiment  of  becoming  a  Serjeant, — 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  appointment 
of  Chief  Justice  of  Ireland, — then  pretty 
He  goes  as  much  what  the  office  of  Chief  Justice  of  New 
to  Ireland.  Zealand  would  now  be  considered.  He  con- 
tinued in  exile  five  years,  assisting  the  King 
with  his  new  plan  of  colonising  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  to  his  royal  master,  who 
expected  lasting  glory  from  civilising  a  country  which 
had  become  rather  more  barbarous  since  a  settlement  in 
it  had  first  been  attempted  by  the  English.  He  is  one 
of  the  "  Worthies "  of  LLOYD,  who,  describing  his  resi- 
dence in  Ireland,  says,  "  Here  he  practised 

A.D.  1610.  ,  ,  >  —..4 

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  civilising  the  natives  instead  of 
enriching  himself.'  " 

Ley  had  at  last  leave  to  make  a  voyage  home  to  his 
native  country,  and  there  he  gave  such  a 
flattering  account  of  the  progress  which 
Ireland  was  making  under  the  new  regime 
— ascribing  much  of  it  to  himself  —  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  court 


May  15. 
He  returns 
to  England, 
and  becomes 
a  favourite 
with  James  L 


A.D.  1610.  CHIEF  JUSTICE  LEY.  427 

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  labour,  but  he  was  much 
at  Whitehall,  and  contrived  to  accommodate  himself  to 
all  the  humours  of  the  royal  pedant.  The  order  of 
Baronets  being  established,  he  was  one  of  the  first 
batch — no  doubt  buying  his  distinction  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 
ambition  increasing  with  his  wealth,  he  insinuated  that 
he  should  make  as  good  a  Chief  Justice  in  England  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  circulated  in  MS.  "  A 
Treatise  concerning  Wards  and  Liveries,"  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  Buck- 
ingham ;  and  it  has  been  said  that  he  offered  the 
rapacious  minister  a  large  sum  of  money  for  the  Chief 
Justiceship  when  it  should  become  vacant:  but  this 


428  KEIGN  OF  JAMES  I.  CHAP.  XI. 

statement,  I  apprehend,  proceeded  rather  from  the 
probability  than  from  any  positive  evidence  of  the  fact. 

However  the  arrangement  might  have  been  brought 
about,  when  Montagu  received  the  Treasurer's 
]6?i.  He  is  staff,  the  collar  of  S.S.  was  put  round  the 
juftice^f*  neck  of  Sir  James  Ley,  as  Chief  Justice  of 
ifenching'8  England.  The  following  is  the  account  we 
have  of  his  installation,  on  the  1st  day  of 
February,  1621: — "The  Lord  Chancellor  came  and  sat 
in  the  Court  of  King's  Bench,  and  Sir  James  Ley 
came  betwixt  two  of  the  King's  Serjeants  to  the  bar, 
where  the  Lord  Chancellor  made  a  short  speech  to 
him  of  the  King's  favour  and  reasons  in  electing  him  to 
that  place ;  and  he,  being  at  the  bar,  answered  thereto, 
showing  his  thankfulness,  and  endeavour  in  the  due 
execution  of  his  office.  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  consti- 
tuted him  to  be  Chief  Justice  there,  commanding  him 
to  attend  and  execute  it.  He  was  then  sworn."  * 

The  very  same  day  he  decided  that  an  innkeeper 
may  be  indicted  for  taking  an  exorbitant  price  for  oats. 
Objection  was  taken  that  the  indictment  was  bad  for 
not  alleging  with  sufficient  certainty  what  was  the 
reasonable  price  of  oats,  for  it  only  alleged  "  quod  com- 
mune pretium  avenarum  non  fuit  ultra  20d.  the  bushel ;" 
but  he  held  the  indictment  sufficient  in  averring  "  quod 
predictus  A.  B.  demandavit  et  cepit  pretium  excessivum  et 
extorsivum,  viz.  2s.  8dL  a  bushel."  f  A  few  days  after,  he 
ruled  that  it  was  actionable  for  one  married  woman  to 
say  to  another  married  woman,  "  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  positively."  J 

*  Cro.  Jac.  610.  J  .Benson  et  ux.  v.  Sail  et  we.,  Cro.  Jac. 

f  Johnson's  case,  Cro.  Jac.  610.  613. 


A.D.  1621.  CHIEF  JUSTICE  LEY.  429 

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  Keports,  the  business  of  his  court  must 
have  dwindled  away  almost  to  nothing, — I  presume 
from  an  opinion  of  his  incompetency. 

But  he  was  engaged  as  one  of  the  principal  actors 
in  a  very  solemn  proceeding.     It  has  been 
said  that  when  Lord  Bacon  pleaded  guilty  to    He  IB  ap-  ' 
the  charge  of  bribery,  alleged  against  him    ^Qa^rof 
by  the  House  of  Commons,  and  was  deprived   *he  House  of 
of  the  great  seal,  Ley  for  a  short  time  became 
Lord  Chancellor.*     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  conspicuous 
part  in  the  eyes  of  the  public. 

At  first  it  was  thought  that  the  painful  duty  would 
have  been  cast  upon  him  of  calling  upon  Lord   He 
Bacon   to   kneel   down  at   the   bar,  and   of  nouncesthe 
addressing  him  on  the  enormity  of  the  offence   against  Lord 
for  which  he  was  to  receive  sentence ;  but    * 
the  illustrious   convict  was,  or  pretended  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  manners,  agreed  to  pass 
judgment  upon  him  in  his  absence. 

The  Lords  then  sent  a  message  to  the  other  House 
"  that  they  were  ready  to  give  judgment  against  the 

*  2  st.  Tr.  1112. 


430  EEIGN  OF  JAMES  I.  CHAP.  XI. 

Lord  Viscount  St.  Albans  if  they,  with  their  Speaker, 
came  to  demand  it."  The  Commons  soon  appeared  at 
the  bar,  with  Sir  Thomas  Eichardson  (afterwards 
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  Yiscount  St.  Albans,  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  cor- 
ruptions 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 
judgment :  And  therefore  this  high  Court  doth  adjudge, 

1.  That  the  Lord  Viscount  St.  Albans,  Lord  Chancellor 
of  England,  shall  undergo  fine  and  ransom  of  40,OOOZ. 

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  ofiice,  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 
unlawful  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 
occasions,  where  little  knowledge  of  law  was  required, 
he  appeared  to  advantage. 

*  1  Part.  Hist.  1249. 


A.D.  1621.  CHIEF  JUSTICE  LEY.  431 

In  the  dispute  between  the  two  Houses  respecting 
the  punishment  of  Edward  Floyde,  he  gave  _ 

J       '.         &  .          Impeach- 

important  assistance  to  the  Lords  in  main-  mcnt  of 
taining  their  exclusive  right  to  try  by  im-  °y  e 
peachment.  When  the  unhappy  delinquent  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  Palsgrave  and 
Goodwife  Palsgrave.'  "  Floyde  :  "  I  spoke  not  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  sen- 
tence of  repeated  scourgings,  pillorying,  &c.,  which  re- 
flects such  indelible  disgrace  on  the  House  of  Lords,  but 
for  which  Ley  cannot  be  answerable,  as  he  only  acted 
ministerially  in  pronouncing  it.* 

When  parliament  again  met,  he  ceased  to  be  Speaker, 
the  woolsack  being  occupied  by  Williams, 
Bishop  of  Lincoln,  the  new  Lord  Keeper  of  November, 
the  Great  Seal.f 

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 
1624  he  succeeded. 

The  intrigue  by  which  he  then  got  possession  of  the 
office  of  Lord  Treasurer  and  was  raised  to  the   He  becomes 
peerage,  will  probably  remain  for  ever  in  ob-    Tra^f ^ 
scurity ;  but  the  probability  is  that  he  paid  a    ^  a  Peer- 
large  sum  of  money,  to  be  divided  between  the  King 

*  1  Part.  Hist.  1261.  t  Ib-  1295. 


432  EEIGN  OF  JAMES  I.  CHAP.  XI. 

and  Buckingham.  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  favour  during  the  remainder  of  the  reign 
of  King  James. 

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  Serjeants' 
Inn  by  his  brethren  of  the  coif.* 

By  and  by  it  suited  the  convenience  of  the  favourite 
July  is,  t^a*  he  should  be  removed  from  his  office 
1628.  of  Lccrd.  Treasurerf  ;  when  he  was  obliged 

He  U  induced  to  exchange  it  for  that  of  President  of  the 


Council,  which  he  held  till  the  14th  of 
Council.  March  following,  when  he  expired,  in  the 
78th  year  of  his  age.  The  cause  of  his  death  is  said 

*  Cro.  Car.  ix.  persons  alive  who  had  all  succeeded  one 

•f-  Lord  Clarendon  says,  "  The  Earl  of  another  immediately  in  that  unsteady 

Marlborough  was   removed  under  pre-  charge,  without  any  other  person  inter- 

tence  of  bis  age  and  disability  for  the  vening  :  the  Earl  of  Suffolk,  the  Earl  of 

work  (which  had  been  a  better  reason  Manchester,  the  Earl  of  Middlesex,  the 

against  his  promotion  ").     He  observes,  Earl  of  Marlborough,  and  the  Earl  of 

"  There  were  at  that   time  five  noble  Portland."—  Kebelliun,  i.  74. 


A.D.  1628. 


CHIEF  JUSTICE  LEY. 


433 


to  have  been  grief  at  the  quarrel  between  Charles 
and  the  House  of  Commons  after  the  passing  of  the 
PETITION  OF  EIGHT,  which  brought  on  an  abrupt  dis- 
solution of  the  Parliament,  and  a  resolution  that  the 
government  of  the  country  should  henceforth  be  carried 
on  by  prerogative  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  field,  and  the  scaffold  was  to  be  crimsoned  with 
royal  gore. 

He  is  said  to  have  been  fond  of  antiquarian 
learning,  and  he  amused  himself  with  writing  treatises 
on  heraldry  and  other  kindred  subjects.*  Wood 
describes  him  as  "  a  person  of  great  gravity,  ability, 
and  integrity,  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  oflices  of  Coke  and  of  Burleigh, 
and  rose  to  higher  rank  than  either  of  them.  His 
earldom  devolved  successively  on  his  two  nisdescend- 
sons,  Henry  and  William,  and,  on  the  death  ants- 
of  the  latter,  in  1679,  without  issue,  it  became  extinct.f 

The  greatest  honour  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  neighbouring  eyes."  The  poet,  captivated 
by  her  charms,  —  as  yet  indifferent  about  popular 


*  See  Hearne's  Collection  of  Curious 
Discourses  (London,  1775,  8vo.);  Wood's 
Ath.  Ox. ;  Bliss,  ii.  441 ;  Dug.  Ch.  Ser. 
105, 106. 

•f-  Henry  had  been  called  up  to  the 
House  of  Lords  in  his  father's  lifetime, — 
affording  the  only  Instance  of  a  Chief 
Justice  and  his  son  sitting  together  in 
that  assembly.  "  March  2. 1625. — HODIE 

VOL.  I. 


Henry  Lord  Ley  (the  eldest  son  of  James 
E.  of  Marlborongh)  was  brought  into  the 
House  (in  his  parliament  robes)  between 
the  Lord  Crumwt-11  and  the  Lord  North 
(Garter  going  bafore),  and  his  Lordship 
delivered  his  writ,  kneeling,  unto  the 
Lord  Keeper,  which  being  read,  he  was 
brought  to  his  jlace  next  to  the  Lord 
Deyncourt."—  3  JArrds'  Journals,  512. 
2  F 


34  REIGN  OP  JAMES  I.  CHAP.  XI. 

privileges — and  thinking  that  the  surest  way  to  win 
her  was  to  praise  her  sire,  thus  apostrophised  her  : — 

Milton's  "  Daughter  to  that  good  Earl,  once  President 

sonnet  to  Ley's     Of  England's  Council  and  her  Treasury, 
daughter.  Who  lived  in  both  unstained  with  gold  or  fee, 

And  left  them  both  more  in  himself  content, 

'Till  sad,  the  breaking  of  that  Parliament 

Broke  him,  as  that  dishonest  victory 

At  Chaeronea,  fatal  to  Liberty, 

Kill'd  with  report  that  old  man  eloquent ! 

Though  later  born  than  to  have  known  the  days 

Wherein  your  father  flourish'd,  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,  honoured  MARGARET  !" 


I  have  very  great  delight  in  now  presenting  to  the 
sir  Randoif  reader  a  perfectly  competent  and  thoroughly 
Crewe-  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  irremovable,  they  can  take  part  against 
the  abuses  of  power  on  very  easy  terms, 
independence  and,  as  Lord  Mansfield  remarked,  "  their 
/ter'  temptation  is  all  to  the  side  of  popularity." 
Under  the  Stuarts,  a  judge  gave  an  opinion  against 
the  Crown  with  the  certainty  of  being  dismissed 
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  neighbours."  The  name  of 
RANDOLF*  CREWE,  therefore,  ought  to  be  transmitted 
with  honour  to  the  latest  posterity.  The  more  do  we 
owe  this  debt  of  gratitude  to  his  memory,  that  he  was 

*  Christian  as  well  as  surnames  were,  "  Randolph,"  "  Randulph,"  "  Randulf," 
in  those  days,  spelt  very  differently.  We  "  Ranulph,"  •  '  Ranulf,"  "  Randalf,"  and 
find  this  name  written  "  Randophe,"  "  Randal." 


CHIEF  JUSTICE  .CREWE.  435 

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  family, 
who  took  their  name  from  a  manor,  in  the  , 

His  family. 

county  of  Chester,  which  had  belonged  to 
them  at  least  as  far  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  repur- 
chased by  our  Chief  Justice,  the  true  heir  male  of  the 
Crewes. . 

Born  in  the  year  1588,  he  was  the  eldest  son  of  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  honour- 
ably acquiring  preferment.  They  were  both  lads  of 
excellent  parts,  and  he  used  to  entertain  them  with 
stories  of  the  greatness  of  their  ancestors :  he  would 
point  out  to  them  the  great  manor  of  CREWE,  forming 
a  large  section  of  the  county;  and  he  fired  their  ima- 
ginations with  the  vision  of  their  recovering  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  honourable  conduct.  They  both 
followed  exactly  the  same  course  till  they  were  Ser- 

2  F  2 


436  REIGN  OP  JAMES  I.  CHAP.  XI. 

jeants-at-law,  were  knighted,  and  were  successively 
Speakers  of  the  House  of  Commons, — when  fate  varied 
their  destiny.*  Sir  Thomas  never  having  been  a 
Chief  Justice,  I  must  confine  my  narrative  to  Sir 
Eandolf. 

We  have  to  boast  of  him  as  one  of  the  ornaments  of 
A.D.  1602.  Lincoln's  Inn ;  and  in  our  books  are  the  fol- 
He  studies  at  lowing  entries  respecting  him,  marking  the 

Lincoln's  g.f  '      , 

inn.  several  stages  of  his  career  there : — 

"  Cestr.  Radulphus  Crewe  adraiss  est  in  societate  ibtn  decimo 
tertio  die  Novembris  anno  regni  Reginse  Elizabeth  decimo  nono 
ad  instanc  Richi  Wilbraham  et  Lawrencij  Woodnett  manuc — 

"  Octo  die  Novembris  Anno  regni  Elizabethe  vicesimo  sexto 
"  It  is  orderede  that  tbeise  gentlemen  hereafter  namede  shatbe 
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  Novembris 
anno  Rinae  Eliz. :  c*  quadragessimo  scdo.  1600. 

"  Tt  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. 
RMe  Dnse  Elizabethe  z  xliiij'0      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." 

He  made  himself  a  deep  black-letter  lawyer;  and, 
from  early  training,  he  was  particularly  fond  of  genea- 
logy and  heraldry.  He  had  likewise  a  ready  elocu- 

*  The  son  of  Sir  Thomas,  soon  after  the  extinct  in   1721,  by  the  death  without 

Restoration,  was  created  by  Charles  II.,  issue  of  his  two  sons,  who  had  succes- 

Baron  Crewe  of  Stene  in  the  county  of  sively  inherited  it. 
Northampton  ;  but  this  peerage  became 


A.D.  1614.  CHIEF  JUSTICE  CREWE.  437 

tion,  and   he   conducted  with   discretion   and   success 
the  causes  intrusted  to  him.     Business  flowed   H{g  gkiu  jn 
in  upon  him  almost  from  his  call  to  the  bar ;    heraldry  and 
and,  never  forgetting  that  he  might  be  rein-   8 
stated  in  the  family  possessions,  he  saved  every  broad 
piece  that  he  could  lay  by  without  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 
returned  to  the  House  of  Commons  as  member  for  his 
native  county ;  and  at  the  opening  of  the  session  he  was 
elected  Speaker.    He  "disqualified "  himself  in 
the  approved  fashion ;  but,  being  "  allowed  "    April  7, 
by  the  King,  with  high  commendation  for  his   efectk  spea- 
known  learning  and  ability, — in  demanding    H^1^6 
the  privileges  of  the  Commons  he  delivered    Commons. 
a  flowery  address  to  the  King,  in  which  he 
contrived  to  allude  to  his  Majesty's  descent  from  Cerdic 
the  Saxon,  as  well  as  William  the  Conqueror  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  introduction  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  when  in  the 
chair  of  the  House  of  Commons,  and  conceived  a  dis- 
gust for  politics  which  lasted  as  long  as  he  lived. 
Instead  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  Lin- 
coln, derogatory  to  the  dignity  of  the  Commons.  The 
King  blamed  the  Speaker;  but  the  Speaker  declared 


438  EEIGN  OF  JAMES  I.  CHAP.  XI. 

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.* 

The  ex-Speaker  now  resolved  to  devote  himself  ex- 
clusively to  his  profession,  and  with  this  view 
he  took  upon  himself  the  degree  of  Serjeant- 
at-law.f 

He  refused  to  accept  a  seat  in  the  next  parliament, 
which,  meeting  in  Jan.  1621,  distinguished  itself  by 
the  punishment  of  Lord  Bacon ; — and  he  does  not  ap- 
pear 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. 

Two  Chief  Justices  having  presided  in  succession 
He  is  a  w^°  were  politicians  rather  than  lawyers, 
pointed  there  was  a  cry  that  "  Bishop  Williams,  the 

Chief  Justice  .  *  *_ 

of  the  King's    Chancellor,  wished  to  have  the  common  law 
judges  as  incompetent  as  himself."    In  defer- 
ence to  the  public  voice,  which  even  in  absolute  govern- 
ments is  not  to  be  despised,  the  resolution  was  taken 
to  select  a  good  lawyer  for  the  vacancy,  and  every  one 
pointed  to  Serjeant  Eandolf  Crewe  as  the  fittest  man 
that  the  profession  afforded.    Accordingly,  on 

Jfln.  26  1625 

the  26th  of  January  1625,  he  took  his  seat  as 
Chief  Justice  of  the  Court  of  King's  Bench. 

There  never  was  a  more  laudable  appointment,  and 
he  even  exceeded  the  sanguine  expectations  that  had 
been  entertained  of  his  fitness.  To  learning  hardly 
inferior  to  that  of  Coke,  and  to  equal  independence  of 
mind,  he  added — what  Coke  wanted  so  much— patience 
in  hearing,  evenness  of  temper,  and  kindness  of  heart. 

*  1  Piirl.  Hist.  1149-1169.  f  Dug.  Chr.  Ser.  105. 


A.D.  1626.  CHIEF  JUSTICE  CREWE.  439 

On  the  demise  of  the  Crown,  he  was  immediately 
reappointed  to  his  office,  and  he  continued  to  fill  it 
with  increasing  reputation  till  the  unfortunate  Charles 
began  that  course  of  illegal  and  unconstitutional  mea- 
sures which  ended  so  tragically. 

"  CRO.  JAC.,"  "  CRO.  CAR.,"  and  the  other  Reports  of 
that  time,  swarm  with  decisions  of  Lord  Chief  Justice 
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  17th  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 
the  death  of  Henry  de  Vere,  Earl  of  Oxford, 

•  1  •     1  i  IT  T  A.D.  1626. 

respecting  the  right  to  that  earldom,  between    His  famous 
Robert  de  Vere,  claiming  as  heir  male  of  the   o^wdPrcr! 
family,   and    Lord   Willoughby   de   Eresby,    a8eCase- 
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  venerable  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  delibera- 
tion and  solid  and  mature  judgment  to  determine  it.  Here  is 
represented  to  your  Lordships  certamen  honoris,  illustrious 
honour.  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  VEKE 
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  Em- 
press, 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,  Henry  II.  This  great 
honour,  this  high  apd  noble  dignity,  hath  continued  ever  since 
in  the  remarkable  surname  of  I)E  VERE,  by  so  many  ages, 
descents,  and  generations,  as  no  other  kingdom  can  produce  such 


440  KEIGN  OF  CHAKLES  I.  CHAP.  XI. 

a  peer  in  one  and  the  self-same  name  and  title.  I  find  in  all 
this  time  but  two  attainders  of  this  noble  family,  and  those  in 
stormy  times,  when  the  government  was  unsettled  and  the 
kingdom  in  competition. 

"  I  have  laboured  to  make  a  covenant  with  myself,  that  affec- 
tion may  not  press  upon  judgment ;  for  I  suppose  there  is  no 
man  that  hath  any  apprehension  of  gentry  or  nobleness,  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 
PLANTAGENET  ?  They  are  entombed  in  the  urns  and  sepul- 
chres 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 
VERB,  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  Oxford.  The  Lords  were  guided  by  this 
opinion,*  but  the  successful  claimant  died  without  an 
heir  male ;  and  DE  VERE,  along  with  BOHUN,  MOWBRAY, 
MORTIMER,  and  PLANTAGENET,  was  "  entombed  in. 
the  urns  and  sepulchres  of  mortality."  f 

Before  Sir  Eandolf  Crewe  had  completed  the  second 
„  year  of  his  Chief  Justiceship,  although  rever- 

piacedior  enced  by  the  people,  he  was  found  wholly 

his  honesty.  _          J      ,  f  ,.  £ 

unfit  lor  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  de- 

*  Cruise  on  Dignities,  p.  101.  Anne   iu  favour  of  Harley,  descended 

•f  The   title   was   renewed  by  Queen     from  the  DE  VEEES  through  a  female. 


A.D.  1626.  CHIEF  JUSTICE  CEEWE.  441 

liberately  formed  of  discontinuing  entirely  the  use 
of  popular  assemblies  in  England,  and  of  ruling  merely 
by  prerogative.  For  this  purpose  it  was  indispensably 
necessary  that  the  King  should  have  the  power  of  im- 
posing taxes,  and  the  power  of  arbitrary  imprison- 
ment. He  began  to  exercise  both  these  powers  by  as- 
sessing 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  gaol  those  who  resisted  the  demand. 
But  these  measures  could  not  be  rendered  effectual  with- 
out the  aid  of  the  Judges ;  for  hitherto  in  England  the 
validity  of  any  fiscal  imposition  might  be  contested 
in  a  court  of  justice ;  and  any  man  deprived  of  his 
liberty,  might,  by  suing  out  a  writ  of  habeas  corpus, 
have  a  deliberate  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  peremptorily  refused  to  pay 
the  sums  assessed  upon  them,  had  been  cast  into  prison, 
and  were  about  to  seek  legal  redress  for  their  wrongs. 

In  the  coming  legal  contest,  almost  every  thing  would 
depend  upon  the  Chief  Justice  of  the  King's  Bench. 
According  to  a  well-known  fashion  which  prevailed  in 
those  times,  the  Attorney  General,  by  order  of  the  Go- 
vernment, sounded  Sir  Eandolf  Crewe  respecting  his 
opinions  on  the  agitated  points,  and  was  shocked  to 
hear  a  positive  declaration  from  him  that,  by  the  law 
of  England,  no  tax  or  talliage,  under  whatever  name  or 
disguise,  can  be  laid  upon  the  people  without  the 
authority  of  parliament,  and  that  the  King  cannot  im- 
prison any  of  his  subjects  without  a  warrant  specifying 
the  offence  with  which  they  are  charged.  This  being 
reported  to  the  Cabinet,  Sir  Eandolf  Crewe 
was  immediately  dismissed  from  his  office; 
and,  in  a  few  weeks  after,  Sir  Nicholas  Hyde,  who  was 


442  EEIGN  OF  CHAELES  I.  CHAP.  XI. 

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. 

It  has  often  been  said  that  he  was  removed  for  op- 
posing 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  10th  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  generally  known."  * 

Fuller,  writing  when  the  truth  had  been  partly  dis- 
closed, says,  in  his  quaint  style  : — 

"  King  Charles'  occasions  calling  for  speedy  supplies  of  money, 
some  great  ones  adjudged  it  unsafe  to  venture  on  a  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  judgment  of  the 
design,  and  the  consequences  thereof  (the  imprisoning  of  recusants 
to  pay  it),  openly  manifested  his  dislike  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  discon- 
tentment than  the  weary  travailer  is  offended  when  told  that  he 
is  arrived  at  his  journey's  end." 

*  Cro.  Car.  p.  52. 


A.D.  1629.  CHIEF  JUSTICE  CREWE.  443 

He  had  it  in  his  power  to  be  returned  member  for  his 
native  county,  in  the  parliament  which  met  soon  after, 
and  the  opposition  might  have  been  led  by  two  ex-Chief 
Justices  of  the  King's  Bench ;  but  he  had  neither  the 
vigour  nor  the  thirst  for  vengeance  which  animated  Sir 
EdAvard  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  letter 
to  Buckingham,  which  is,  I  think,  most  creditable  to 
him ;  for,  notwithstanding  his  earnest  desire  to  be  re- 
placed on  the  bench,  he  makes  no  concession  or  promise 
at  all  inconsistent  with  his  principles : — 

"  My  duty  most  humbly  done  to  your  grace,  vouchsafe,  I 
beseech  your  grace,  to  read  the  misfortune  of  a  poor 
man  herein,  and  take  them  into  your  noble  thoughts,    His  letter  to 
whose  case  is  considerable.     I  have  lived  almost  two    ffter  wf  " 
years  under  the  burden  of  his  Majesty's  heavy  dis-    removal, 
pleasure,  deprived  of  the  place  I  held,  and  laid  aside 
as  a  person  not  thought  of,  and  unserviceable,  whereof  I  have 
been  soe  sensible,  that  ever  since  living  at  my  house  att  Westmin- 
ster, 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,  for  I  alwaies 
resolved  wholly  to  relic  upon  the  King's  goodness,  who  I  did  not 
doubt  would  take  me  into  his  princely  thoughts,  if  your  grace 
vouchsafed  to  intercede  for  me.  The  end  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  where- 
unto  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  affliction  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 


444  EEIGN  OP  CHAKLES  I.  CHAP.  XL 

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  approved  the  commission,  and  conse- 
quently the  proceedings  thereupon,  wherein  here  I  had  been  con- 
demned, 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  expe- 
dition, 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  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  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  uncapable  of  the  former, 
and  since  I  left  the  Chiefe's  place,  my  losse  has  been  little  less 
than  3000Z.  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  sirname,  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 


A.D.  1629.  CHIEF  JUSTICE  CREWE.  445 

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 
comraitt  you,  resting  ever 

"  A  most  humble  servant  to  your  grace, 

"  RANDULPH  CEEWE. 
"  Westminster,  28th  Junii." 

On  a  copy  of  this  letter,  preserved  among  the  family- 
papers  at  Crewe,  there  is  the  following  memorandum  in 
the  handwriting  of  the  Chief  Justice : — "  A  little  before 
the  D.  going  to  the  Isle  of  Eee,  he  told  Sir  Eandal,  in 
the  presence  of  Lord  Treasurer  Weston  and  Sir  Eobt. 
Pye,  that  he  would  at  his  return  right  him  in  the  King's 
favour,  for  it  was  he  that  had  injured  him,  and  there- 
fore was  bound  in  honour  to  do  it."  However  friendly 
the  Duke's  intentions  might  have  been,  the  arm  of 
Felton,  within  a  month  from  the  time  when  this  remon- 
strance was  delivered  to  him,  for  ever  prevented  him 
from  carrying  them  into  execution. 

The  ex-Chief  Justice  then  renounced  all  thoughts  of 
public  employment,  and  spent  the  rest  of  his 

f  i-f  !•         ii  j     i.          -i  i     His  mode  of 

long  life  rationally  and  happily  in  rural  life  in  retire- 
amusements,  in  literary  pursuits,  and  in  social 
enjoyments.  It  happened  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  pre- 
ference 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  de- 
lighted my  poor  dear  father  would  be  if  he  could  look 
down  and  see  his  fond  wish  accomplished !"  Here  he 
built  a  magnificent  new  manor-house,  which  was  ad- 
mired and  copied  by  the  men  of  Cheshire.  Fuller  says, 
"  He  first  brought  the  model  of  excellent  building  into 
these  remote  parts :  yea,  brought  London  in  to. Cheshire, 


446  EEIGN  OF  CHAELES  I.  CHAP.  XI. 

in  the  loftiness,  sightliness,  and  pleasantness  of  their 
structures." 

He  lived  on  till  the  Long  Parliament  had  sat  several 

years,  and  he  might  actually  have  been  pre- 
Jwi.^"'  sen*  *n  the  House  of  Commons  in  1641,  when 

Mr.  Hollis,  inveighing  against  the  corrupt 
Judges  who  had  decided  in  favour  of  ship-money,  drew 
this  contrast  between  them  and  a  Judge  who  had  acted 
well : — 

"  What  honour  is  he  worthy  of,  who,  merely  for  the  public 
good,  hath  suffered  himself  to  be  divested  and 
pl°n"gyTic  deprived  of  what  he  highly  values?— such  a  judge 
upon  him  in  as  would  lose  his  place,  rather  than  to  do  that  which 
Parliament  k's  conscience  told  him  was  prejudicial  to  the  com- 
monwealth?— and  this  did  that  worthy  reverend 
judge,  the  Chief  Justice  of  England,  Sir  Randulf  Crewe.  Be- 
cause 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  calcu- 
lation, in  so  long  a  revolution  of  time,  amounts  to  26,0007.  or 
thereabout.  He  kept  his  innocency  when  others  let  theirs  go ; 
when  himself  and  the  commonwealth  were  alike  deserted ;  which 
raises  his  merit  to  a  higher  pitch.  For  to  be  honest  when  every- 
body 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 

to  the  King,  praying  "  that  his  Majesty  would 

bestow  such  an  honour  on  his  former  Judge, 

Sir  Eandolf  Crewe,  Knt.,  late  Lord  Chief  Justice  of 

*  3  St.  Tr.  1298. 


A.D.,1646.  CHIEF  JUSTICE  CREWE.  447 

England,  as  may  be  a  noble  mark  of  sovereign  grace 
and  favour,  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  resolution,  sustained."  Nothing  was  done  for  him 
before  the  civil  war  broke  out ;  but  he  had  that  highest 
reward,  the  good  opinion  of  his  fellow  citi-  T^^^. 
zens.  He  seems  to  have  enjoyed  the  sym-  entertained 
pathy  and  respect  of  all  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  honour, — 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. 
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  side  he  inclined,  but  the  probability  is,  that, 
being  a  steady  friend  of  constitutional  monarchy,  he 
dreaded  the  triumph  of  either,  and  that,  like  the  vir- 
tuous Falkland,  he  exclaimed  with  a  sigh,  PEACE  ! 
PEACE!  He  languished  till  the  13th  of  January,  1646, 
when  he  expired  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  admirable  print  of  him  in  Dugclale's  OIUGINES 
JURIDICIALES. 

His  male  descendants  remained  "  Crewes  of  that  ilk  " 

*  Worthies,  vol.  ii. 


448  KEIGN  OF  CHAKLES  I.  CHAP.  XI. 

for  several  generations.  The  estate  then  came  to  an 
His  descend-  neiress»  wno  married  John  Offley,  Esq.,  of 
ants.  Madely,  in  the  county  of  Stafford.  Their 

Feb.  25, 1806.  ./ 

son,  on  succeeding  to  it,  took,  by  act  ol  parlia- 
ment, the  name  and  arms  of  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  Eichard,  the  third 
Lord  Crewe. 


END  OF  VOL.    1. 


I.ONDOX:  PRINTED  BT  WILLIAM  CLOWES  AND  SONS,  STAMFOKD  STREET 
AM>  CHARING  CROSS. 


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