Of these new courts, that which more immediately represented the Aula Regis was the Court of King’s Bench, which still continued to follow the king and to be held in his presence. In the language of its process, such is still supposed to be the case; but like the other English courts, it has longsince been fixed at Westminster Hall, and admits nobody to participate in its proceedings save its own members—a chief justice, who, though of inferior position in point of precedence, may be considered as in some respects the successor of the chief justiciary, which office was now abolished—and three or four puisne judges, the number having varied at different times.
The Court of Common Pleas was now also organized like the King’s Bench, with a chief justice and three or four puisne judges. As this court had exclusive jurisdiction of civil suits, (except those relating to marriage, divorce, wills, tithes, and the distribution of the personal property of intestates, which had been usurped by the ecclesiastical courts,)Pleas of the Crown, that is, the criminal jurisprudence of the realm, (except prosecutions for heresy, of which the ecclesiastical courts claimed jurisdiction,) and also the hardly less important duty of superintending the other tribunals, even the Common Pleas itself, and keeping them within their due limits, was assigned to the King’s Bench.
To a third court, that of Exchequer, of which, besides a chief baron and three or four puisne barons, the treasurer and the chancellor of the exchequer originally formed a part, were assigned all cases touching the king’s revenue, and especially the collection of debts due to him, in which light were regarded not only all fines, forfeitures, and feudal dues, but the imposts and aids occasionally granted by Parliament.
There was also a Court of Chivalry or “Honor Court,” presided over by the constable and marshal, and having jurisdiction of all questions touching rank and precedency; and another, over which the steward of the household presided, to regulate the king’s domestic servants; but these courts,which have long since vanished, could never be considered as having stood on a par with the three others, the judges of which esteemed themselves the grand depositaries of the knowledge of the common or unwritten law of England; that is, of such customs and forms as had obtained the force of law previous to the existence of the regular series of statutes beginning with Magna Charta. Indeed, these judges of England, as they were called, were in the habit of meeting together in the Exchequer Chamber, for the purpose of hearing arguments on law points of importance or difficulty, adjourned thither for their consideration, and which they decided by a majority of their whole number present, thus presenting down to the recent abolition, or rather modification, of the Court of Exchequer Chamber, a shadow, as it were, of the ancient Aula Regis.
Already, previous to this fracture of the Aula Regis into the various courts above named, the legal profession, so far as practice in the lay courts was concerned, had begun to separate itself from the clerical; and places for the education and residence of a class of laymen who began to devote themselves to the study of the common law were established in the vicinity of Westminster Hall. Of these, Lincoln’s Inn, founded at the commencement of the reign of Edward II., (about A. D. 1307,) under the patronage of William Earl of Lincoln, who gave up his own hostel or town residence for that purpose, was the earliest, and has always remained the principal. On this model were established before long the Inner and Middle Temple, (so called because a residence of the Knights Templars, forfeited by the dissolution of that order, had been devoted to this purpose,) Gray’s Inn, Serjeant’s Inn, and the Inns of Chancery.
Such was the origin of the profession of law as it still exists in England and America; of that body of lawyers whence all our judges are taken, arrogating to itself, after the example of the churchmen, of which it originally consisted, a certain mystical enlightenment and superiority, scouting the idea that the laity, as the lawyers too affect to distinguish all persons not of their cloth,—in plain English,the people,—should presume to express or to entertain any independent opinion upon matters of law, or that any body not a professional lawyer can possibly be qualified for the comprehension, and much less for the administration, of justice.
In the Anglo-Saxon courts the parties had appeared personally, and pleadings had been oral. The Anglo-Norman practice gave rise to appearance by attorney in all civil cases, and to that system of special written pleadings, prepared by counsel learned in the law, of which the operation was to give the victory to ingenuity and learning rather than to right, and which, after undergoing many modifications, has at length been abolished in many of our Anglo-American states, as an impediment to justice and an intolerable nuisance. Even in conservative England itself, though the system of special pleadings, greatly modified by modern changes, still exists, the recent return, by the examination of the parties, to the old popular system of oral pleading has been attended by the happiest results.
The preparation of these written pleadings, by which we are here to understand not arguments, but allegations of facts relied upon by the respective parties, was engrossed by the serjeants at law, whose distinguishing badge was a coif or velvet cap—wigs being a comparatively modern invention. To obtain admittance into this order, by which the entire practiceof the Court of Common Pleas was engrossed, (that is, originally, the entire practice in civil suits,) and from which the judges were exclusively selected, sixteen years’ study was required. The degree of barrister, or, as it was called, of apprentice, might be obtained by seven years’ study; and it was to these two classes of serjeants and apprentices that the practice in the courts of Westminster Hall was originally confined.[10]But subsequently there sprang up a third inferior and still more numerous class, called attorneys, a sort of middle-men between the client and his counsel, not permitted to speak in court, for which purpose they must retain a serjeant or barrister, but upon whom was shifted off all the drudgery and responsibility of preparing the case, in which, however, no step of consequence could be taken without the advice of counsel learned in the law,i. e., a serjeant or barrister.[11]
As the law and its practice thus became more and more a mystery, only to be learned by frequenting the courts of Westminster Hall, and by the study of the obscure and ill-prepared reports of their proceedings, which began now to be compiled by official reporters, and published under the name of Year Books, the old local Anglo-Saxon courts fell still more into contempt. Already in the reign of Henry III. the freeholders had been released from their obligation of attendanceupon them, and another blow was given to these ancient tribunals when, in the reign of Edward II., the appointment of sheriffs, hitherto chosen by the freeholders, was assumed by the crown; and still another when, in the following reign, the election of conservators of the peace was also taken from the people and assumed by the king. To the magistrates thus appointed by the king the new name of Justices of the Peace was soon afterwards given, and the criminal jurisdiction conferred upon them, whether acting singly as examining and committing magistrates, or met together at the courts of Quarter Sessions, gradually superseded the small remains of criminal authority hitherto left to the old popular tribunals.
Two circumstances, however, combined to transfuse a certain portion of the spirit of these old tribunals into the newly established courts, thus standing in the way of the entire monopoly of the administration of justice at which the lawyers aimed, and securing to the body of the people a certain participation in the most important function of the government, to wit, the administration of justice; which participation, derived from the old Anglo-Saxon customs, and transmitted to our times, constitutes to-day the main pillar of both British and American liberty.
Contemporaneously with the new organization above described of the courts of common law, the British Parliament had taken upon itself that organization which it still retains—an upper house, (House of Lords,) composed of great nobles and bishops,[12]successor of the Anglo-Saxon Wittenagemote and of the Anglo-Norman Great Council, and a lower house,(House of Commons,) in which met together the elected representatives of the smaller landed proprietors, holding by knight’s service immediately of the crown, (knights of the shire,) together with the newly-admitted representatives of the cities and chief towns, (burgesses.) The Parliament thus constituted claimed and exercised, probably as successor of the Wittenagemote, appellate jurisdiction from the decisions of all the courts of law. In the time of Edward III. it was even a common practice for the judges, when any question of difficulty arose in their several courts, to take the advice of Parliament on it before giving judgment. Thus in a case mentioned in the Year Book, 40 Ed. III., Thorpe, chief justice of the King’s Bench, went with another judge to the House of Lords, to inquire the meaning and effect of a law they had just passed for amending the system of pleadings;[13]and many other instances occur of the same sort.
This appellate power vesting in Parliament from the decisions of all the courts was the first of the circumstances above alluded to as serving to prevent the monopoly of the administration of justice by the lawyers. But this check with the process of time has almost entirely disappeared. In England this appellate power in Parliament has long since fallen into the hands exclusively of the House of Lords, who themselves in giving judgment are ordinarily only the mouthpiece of the judges called in to give their advice. In what are now the United States of America the same appellate jurisdiction wasoriginally exercised by the colonial assemblies. With us, however, it has entirely vanished under the influence of the idea of a total separation of the legislative, executive, and judicial functions.
The other, and by far the most important check upon the monopoly of the lawyers, was the introduction and gradual perfecting of the trial by jury, by which the more ancient methods—the compurgation and ordeal of the Anglo-Saxons, and the trial by battle, the favorite method of the Anglo-Normans—were entirely superseded. The history of the trial by jury is exceedingly obscure. The petit jury may, however, be traced back to the old Anglo-Saxon method of trial by compurgation, the jury in its origin being only a body of witnesses drawn from the vicinage, who founded their verdict not upon the evidence of witnesses given before them, but upon their own personal knowledge of the matters in dispute.[14]
The grand jury seems to have originated in the old Anglo-Saxon custom imbodied in one of the laws of Ethelred, bywhich was imposed upon the twelve senior thanes of every hundred the duty of discovering and presenting the perpetrators of all crimes within their district—a custom revived by the constitution of Clarendon, enacted A. D. 1164, by which twelve lawful men of the neighborhood were to be sworn by the sheriff, on the requisition of the bishop, to investigate all cases of suspected criminality as to which no individual dared to make an accusation. At first this accusing jury seems also to have served the purpose of a jury of trial. In what way the grand jury came to be separated from the petit jury, and how the former came to be increased to a number not exceeding twenty-three, of whom at least twelve must concur in order to find an indictment, is a point which still remains for the investigation of legal antiquaries.[15]
The trial by jury, though of the progress of its development little is known, appears to have taken on substantially its existing form, both in civil and criminal cases, nearly contemporaneously with the new organization of the English courts, with the rise of the legal profession as distinct from that of the clergy, and with the commencement of the series of English statutes and law reports—all of which, as well as the existing constitution of the British House of Commons, may be considered as dating from the accession of Edward I., A. D. 1272, or somewhat less than six hundred years ago. In certain cases of great importance this trial took place and still takes place in bank, as it is called; that is, in Westminster Hall, before all the judges of the court in which the suit is pending;[16]but in general, the trial is hadin the county in which (if a criminal case) the offence had been committed, or (if a civil case) in which the venue is laid, before certain commissioners sent into the counties for that purpose, and who, under the new system, were the successors of the justices in eyre, or itinerant justices, who had formed a part of the ancient Aula Regis. Originally, separate commissions appear to have issued for criminal and civil cases—for the former a commission of oyer and terminer, (to hear and determine,) and of general jail delivery; and for the latter a commission of assize, so called from the name of a peculiar kind of jury trial introduced as a substitute for trial by battle, in real actions, that is, pleas relating to land, villainage, and advowsons. In the times in which land, villains, and the right of presentation to parishes, constituted the chief wealth, these real actions constituted also the chief business of the Common Pleas, which then had exclusive jurisdiction of civil controversies; but to this commission of assize was annexed another, called a commission ofnisi prius, authorizing the commissioners to try all questions of fact arising in any of the courts of Westminster. This latter commission was so called because the writ issued to the sheriff of the county in which the cause of action was alleged to have originated, to summon a jury to try the case, directed such jury to be summoned to appear at Westminster on a day named, unless before (in Latin,nisi prius) that day commissioners should come into the county to try the case there. Hence the termnisi priusemployed by lawyers to designate a trial by jury before one or more judges, commissioned to hold such trials within certain circuits, but whose directions to the jury, and other points of law decided by them in the course of the trial, are liable afterwards to be reviewed by the whole bench.
Ultimately these commissions for both criminal and civil trials were given to the same persons, who also received a commission of the peace; and the whole territory of England being divided into six circuits, two of the judges, to whom other assessors were added, held assizes twice a year in each county,[17]for the trial of issues found in Westminster Hall—a system closely imitated in all our American states.
But the distribution of authority above described as having been originally made to the different courts of Westminster Hall, into which the Aula Regis was divided, did not long remain undisturbed. Courts have at all times, and every where, exhibited a great disposition to extend their jurisdiction, of which we have already had an example in the authority over marriages, wills, and the personal property of intestates, assumed by the English ecclesiastical courts; and considering the double jurisdiction under which we citizens of the United States live,—that of the federal and that of the state courts,—and the disposition so strongly and perseveringly exhibited by the federal courts to enhance their authority, while the state courts continue to grow weaker and tamer, this is, to us, a subject of no little interest.
Besides the general love of extending their jurisdiction characteristic of all courts, and indeed only one of the manifestations of the universal passion for power, the English Courts of King’s Bench and Exchequer had a special motive for seeking to encroach on the exclusive civil jurisdiction of the Common Pleas. The salaries of the judges were very small—originally only sixty marks, equal to £40 sterling, orabout $200 a year; nor was their amount materially increased down to quite recent times; but to this small salary were added fees paid by the parties to the cases tried before them; and the judges of the two other courts were very anxious to share with their brethren of the Common Pleas a part of the rich harvest which their monopoly of civil cases enabled them to reap from that source. Not only did the Court of King’s Bench start the idea that all suits in which damages were claimed for injuries to person or property, attended by violence or fraud, came properly within its jurisdiction as “savoring of criminality;” it found another reason for extending its jurisdiction, by suggesting that when a person was in the custody of its officers, he could not, with a due regard to “legal comity,” be sued on any personal claim in any other court, since that might result in his being taken out of the hands of their officer who already had him in custody, and was entitled to keep him. If any body had any claim against such a person, (such was the position plausibly set up,) it ought to be tried before the court in whose custody he already was. Having thus prepared the way, the Court of King’s Bench did not stop here; but by a fiction, introduced into the process with which the suit was commenced, that the defendant was already in the custody of their marshal for a fictitious trespass which he was not allowed to deny, jurisdiction was gradually assumed in all private suits except real actions.
The Court of Exchequer in like manner claimed exclusive jurisdiction of suits for debt brought by the king’s debtors, since by neglecting to pay them they might be prevented from paying their debts to the king; and under the pretence, which nobody was allowed to dispute, that all plaintiffs were theking’s debtors, that court, too, gave an extent to their jurisdiction similar to that of the King’s Bench. The exclusive jurisdiction of real actions, which alone remained to the Common Pleas, by the disappearance of villainage and the great increase of personal property, every day declined in importance; but even this was at last taken from the Common Pleas by the invention of Chief Justice Rolle, during the time of the Commonwealth, of the action of ejectment, which proceeds from beginning to end upon assumptions entirely fictitious, but which by its greater convenience entirely superseded real actions in England and in most of the Anglo-American States.
But while these three common law courts were thus exercising their ingenuity to intrench upon each other’s jurisdiction, their pertinacious adherence to powers and technicalities, and their unwillingness, except in matters where the alleged prerogative of the crown was concerned, to do any thing not sanctioned by precedent, led them to refuse justice or relief to private suitors in many crying cases. Such cases still continued to be brought by petition before the king, and by him were referred to his chancellor, who in the earlier times was commonly his confessor, and who since the abolition of the office of chief justiciary had become the first official of the realm. Undertaking in these cases to prevent a failure of justice by rising above the narrow technicalities of the common law, and guided by the general principles of equity and good conscience, the chancellor gradually assumed a most important jurisdiction, which in civil matters ultimately raised his court to a rank and importance above that of all the others. With the advance indeed of wealth and civilization, appeals to chancery became more and more frequent; and ifthe common law courts had not altered their policy, and adopted upon many points equitable ideas, it seems probable that so far as civil suits were concerned, those courts would long since have been superseded altogether.[18]What indeed of and the practice in the Equity Court entirely into the hands of lawyers bred in Westminster Hall, by whom equity itself was made subservient to precedent, and the whole procedure involved in forms and technicalities even more dilatory and expensive than those of the common law courts.
The same disinclination on the part of these common law courts to go beyond the strict limit of technical routine, led, with the progress of commerce and navigation, to the erection, in the time of Edward III., of the Admiralty Court, mainly for the trial of injuries and offences committed on the high seas, of which, on technical grounds, the courts of common law declined to take jurisdiction. After the foundation of English colonies,[19]branches of this court, to which also was given an exchequer jurisdiction, were established in the colonies, and on that model have been formed our federal District Courts.
While the common law courts, through their preference of technicalities to justice, thus enabled the chancellors to assume a civil jurisdiction by which they themselves were completely overshadowed, driving the Parliament also to the necessity of creating, for both civil and criminal matters, a new Court of Admiralty,[20]they gave at the same time the support of their acquiescence and silence to other innovations, prompted not by public convenience, but by the very spirit of tyranny.
In every reign, at least from the time of Henry VI. down to that of Charles I., torture to extort confessions from those charged with state crimes was practised under warrants from the Privy Council. In the year 1615, by the advice of Lord Bacon, then attorney general, the lustre of whose philosophical reputation is so sadly dimmed by the infamy of his professional career, torture of the most ruthless character was employed upon the person of Peacham, a clergyman between sixty and seventy years of age, to extort confessions which might be used against him in a trial for treason, as to his intentions in composing a manuscript sermon not preached nor shown to any body, but found on searching his study, some passages of which were regarded as treasonable, because they encouraged resistance to illegal taxes. Thirteen years afterwards, when it was proposed to torture Fenton, the assassin of Villiers, Duke of Buckingham, to extort from him a confession of his accomplices, the prisoner suggested that if tortured he might perhaps accuse Archbishop Laudhimself. Upon this, some question arose as to the legality of torture; and the judges being called upon for their advice, thus at length driven to speak, delivered a unanimous opinion that the prisoner ought not to be tortured, because no such punishment was known or allowed by the English law; which English law, it now appeared, had for two hundred years been systematically disregarded under the eye and by the advice of judges and sworn lawyers, members of the Privy Council, and without any protest or interference on the part of the courts!
Another instance of similar acquiescence occurred in regard to the Court of Chivalry, which in the reign of Charles I. undertook to assume jurisdiction in the case of words spoken. Thus a citizen was ruinously fined by that court because, in an altercation with an insolent waterman, who wished to impose upon him, he deridingly called the swan on his badge a “goose.” The case was brought within the jurisdiction of the court, by showing that the waterman was an earl’s servant, and that the swan was the earl’s crest, the heavy fine being grounded on the alleged “dishonoring” by the citizen of this nobleman’s crest. A tailor, who had often very submissively asked payment of his bill from a customer of “gentle blood” whose pedigree was duly registered at the herald’s college, on a threat of personal violence for his importunity, was provoked into saying that “he was as good a man as his debtor.” For this offence, which was alleged to be a levelling attack upon the aristocracy, he was summoned before the earl marshal’s court, and mercifully dismissed with a reprimand—on releasing the debt!
No aid could be obtained from the common law courts against this scandalous usurpation, by which, without anytrial by jury, enormous damages were given.[21]Legal “comity” perhaps prevented any interference. Presently, however, the long Parliament met, and a single resolution of that body stopped forever this usurpation.
But while a scrupulous adherence to technicalities and to legal etiquette prevented the common law courts, on the one hand, from doing justice in private cases, and on the other from guarding the subject against official injuries and usurpations, they showed themselves, as the following biographies will prove, the ready and willing tools on all occasions of every executive usurpation. If the people of Great Britain and America are not at this moment slaves, most certainly, as the following biographies will prove, it is not courts nor lawyers that they have to thank for it.
How essential to liberty is the popular element in the administration of criminal law—how absolutely necessary is the restraint of a jury in criminal cases—was most abundantly proved by the proceedings of the English courts of Star Chamber and High Commission. The Court of Star Chamber, though of very ancient origin, derived its chief importance from statutes of Henry VII. and Henry VIII., by which it was invested with a discretionary authority to fine and imprison in all cases not provided for by existing laws, being thus erected, according to the boasts of Coke and Bacon, into a “court of criminal equity.” The Court of High Commission, whose jurisdiction was mainly limited to clergymen, was created by a statute of Elizabeth as the depository of the ecclesiastical authority as head of the church assumedafter the reformation by the English sovereigns. Both these courts consisted of high officers of the crown, including judges and crown lawyers; and though not authorized to touch life or member, they became such instruments of tyranny as to make their abolition one of the first things done after the meeting of the Long Parliament. The only American parallel to these courts is to be found in the authority conferred by the fugitive act of 1850, upon certain commissioners of the Circuit Court of the United States, to seize and deliver over to slavery peaceable residents in their respective states, without a jury, and without appeal.
History is philosophy teaching by example. From what judges have attempted and have done in times past, and in England, we may draw some pretty shrewd conclusions as to what, if unchecked, they may attempt, and may do, in times present, and in America. Nor let any man say that the following pages present a collection of judicial portraits distorted and caricatured to serve an occasion. They have been borrowed, word for word, from theLivesof the Chief Justices and of the Chancellors of England, by Lord Campbell, himself a lawyer and a judge, and though a liberal-minded and free-spoken man, by no means without quite a sufficient share of theesprit du corpsof the profession. Derived from such a source, not only may the facts stated in the following biographies be relied upon, but the expressions of opinion upon points of law are entitled to all the weight of high professional authority.
Nor let it be said that these biographies relate to ancient times, and can have no parallelism, or but little, to the present state of affairs among us here in America. The times which they include are the times of the struggle in Great Britain between the ideas of free government andattempts at the establishment of despotism; and that struggle is precisely the one now going on among us here in America, with this sole difference, that over the water, among our British forefathers, it was the despotism of a monarch that was sought to be established; here in America, the despotism of some two hundred thousand petty tyrants, more or less, in the shape of so many slaveholders, who, not content with lording it over their several plantations, are now attempting, by combination among themselves, and by the aid of a body of northern tools and mercenaries, such as despots always find, to lord it over the Union, and to establish the policy of slaveholding as that of the nation. In Great Britain, the struggle between despotism and free institutions closed with the revolution of 1688, with which these biographies terminate. Since that time the politics of that country have consisted of hardly more than of jostlings between the Ins and the Outs, with no very material variance between them in their social ideas. Among us the great struggle between slaveholding despotism and republican equality has but lately come to a head, and yet remains undetermined. It exhibits, especially in the conduct of the courts and the lawyers, many parallels to the similar struggle formerly carried on in Great Britain. That struggle terminated at last with the deposition and banishment of the Stuart family, and the reëstablishment in full vigor of the ancient liberties of England, as embodied in the Bill of Rights. And so may ours terminate, in the reduction of those who, not content with being brethren seek to be masters, to the republican level of equal and common citizenship, and in the reëstablishment of emancipation, freedom, and the Rights of Man proclaimed in our Declaration of Independence, as the national and eternal policy of these United States!
ATROCIOUS JUDGES.
ROGER LE BRABACON.
Roger le Brabacon,[22]from the part he took in settling the disputed claim to the crown of Scotland, is an historical character. His ancestor, celebrated 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 Routiers, Cottereaux, orBrabançons.[23]Being rewarded with large possessions in the counties of Surrey and Leicester, he founded a family which flourished several centuries in England, and is now represented in the male line by an Irish peer, the tenth Earl of Meath.The subject of the present sketch, fifth in descent from “the great warrior,” changed the military ardor of his race for a desire to gain distinction as a lawyer. He was regularly trained in all the learning of “Essions” and “Assizes,” and he had extensive practice as an advocate under Lord Chief Justice de Hengham. On the sweeping removal of almost all of the judges in the year 1290,[24]he was knighted, and appointed a puisne justice of the King’s Bench, with a salary—which one would have thought must have been a very small addition to the profits of his hereditary estates of 33l.6s.8d.a year. He proved a most admirable judge;[25]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 aspirants to the crown of Scotland, resolved to set up a claim for himself as liege lord of that kingdom, and Brabacon was employed, by searching ancient records, to find out any plausible grounds on which the claim could be supported. He accordingly 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 Norham, on the south bank of the Tweed, marched thither at the head of a considerable military force, and carried Mr. Justice Brabacon along with him as the exponent and defender of his newsuzeraineté.
It is a little curious that one of these competitors for the Scottish throne had lately been an English judge, and a competitor for the very place to which Brabacon, for his services on this occasion, was presently promoted.
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 possession in both, and not unfrequently passed from the service of the one government into that of the other. The Norman knights,having conquered England by the sword, in the course of a few generations got possession of a great part of Scotland by marriage. They were far more refined and accomplished than the Caledonian thanes; and, flocking to the court of the Scottish kings, where they made themselves agreeable by their skill in the tournament, and in singing romances, they softened the hearts and won the hands of all the 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. Robert de Brus, or Bruis, (in modern times speltBruce,) was one of the companions of the Conqueror; and having particularly distinguished himself in the battle of Hastings, his prowess was rewarded with no fewer than ninety-four lordships, of which Skelton, in Yorkshire, was the principal. Robert, the son of the first Robert de Brus, married early, and had a son, Adam, who continued the line of De Brus of Skelton. But becoming a widower while still a young man, to assuage his grief, he paid a visit to Alexander I., then King of Scots, who was keeping his court at Stirling. There the beautiful heiress of the immense lordship of Annandale, one of the most considerable fiefs held of the crown, fell in love with him; and in due time he led her to the altar. A Scottish branch of the family of De Brus was thus founded under the designation of Lords of Annandale. The fourth in succession was “Robert the Noble,” and he raised the family to much greater consequence by a royal alliance, for he married Isabel, the second daughter of Prince David, Earl of Huntingdon, grandson of David I., sometimes called St. David.
Robert, son of “Robert the Noble” and the Scottishprincess, was born at the Castle of Lochmaben, about the year 1224. The Skelton branch of the family still flourished, although it became extinct in the next generation. At this time a close intercourse was kept up between “Robert the Noble” and his Yorkshire cousins; and he sent his heir to be educated in the south under their auspices. It is supposed that the youth studied at Oxford; but this does not rest on any certain authority. In 1245, his father died, and he succeeded to the lordship of Annandale. One would have expected that he would now have settled on his feudal principality, exercising the rights offurca et fossa, or “pit and gallows,” which he possessed without any limit over his vassals; but by his English education he had become quite an Englishman, and, paying only very rare visits to Annandale, he sought preferment at the court of Henry III. What surprises us still more is, that he took to the gown, not the sword; and instead of being a great warrior, like his forefathers and his descendants, his ambition seems to have been to acquire the reputation of a great lawyer. There can be little doubt that he practised as an advocate in Westminster Hall from 1245 till 1250. In the latter year we certainly know that he took his seat on the bench as a puisne judge, or justiciar; and, from thence till 1263, extant records prove that payments were made for assizes to be taken before him—that he 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 40l.a year salary, which one would have supposed could not have been a great object to the Lord of Annandale. In the barons’ wars, he was always true to the king; and although he had no taste for the military art, he accompanied his royal master into thefield, and was taken prisoner with him at the battle of Lewes.
The royal authority being reëstablished 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 capacity. At last, on the 8th of March, 1268, 52 Henry III., he was appointed “capitalis justiciarius ad placita coram rege tenenda,” (chief justiciary for holding pleas before the king); but unless his fees or presents were very high, he must have found the reward of his labors in his judicial dignity, for his salary was very small. Hugh Bigod and Hugh le Despencer had received 1000 marks a year, “ad se sustentandum in officio capitalis justitiarii Angliæ,” (for sustaining themselves in the office of chief justice of England,) but Chief Justice de Brus was reduced to 100 marks a year; that is, 66l.13s.4d.Yet such delight did he take in playing the judge, that he quietly submitted both to loss of power and loss of profit.
He remained chief justice till the conclusion of this reign, a period of four years and a half, during which he alternately went circuits and presided in Westminster Hall. None of his decisions have come down to us, and we are very imperfectly informed respecting the nature of the cases which came before him. The boundaries of jurisdiction between the Parliament, the Aula Regis, and the rising tribunal afterwards called the Court of King’s Bench, seem to have been then very much undefined.
On the demise of the crown, Robert de Brus was desirous of being reappointed. He was so much mortified by being passed over, that he resolved to renounce England forever; and he would not even wait to pay his duty to Edward I., now returning from the holy wars.
The ex-chief justice posted off for his native country, and established himself in his castle of Lochmaben, where he amused himself by sitting in person in his court baron, and where all that he laid down was, no doubt, heard with reverence, however lightly his law might have been dealt with in Westminster Hall. Occasionally he paid visits to the court of his kinsman, Alexander III., but he does not appear to have taken any part in Scottish politics till the untimely death of that monarch, which, from a state of peace and prosperity, 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 nominated one of the negotiators for settling the marriage between her and the son of Edward I., which, if it had taken place, would have entirely changed the history of the island of Great Britain. From his intimate knowledge both of Scotland and England, it is probable that the “Articles” were chiefly of his framing, and it must be allowed that they are just and equitable. For his own interest, as well as for the independence of his native country, he took care to stipulate that, “failing Margaret and her issue, the kingdom of Scotland should return to the nearest heirs, to whom of right it ought to return, wholly, freely, absolutely, and without any subjection.”
The Maid of Norway having died on her voyage home, the ex-chief justice immediately appeared at Perth with a formidable retinue, and was in hopes of being immediately crowned king at Scone;—and he had nearly accomplished his object, for John Baliol, his most formidable competitor in point of right, always feeble and remiss in action, was absent in England. But, from the vain wish to prevent futuredisputes by a solemn decision of the controversy after all parties should have been heard, the Scotch nobility in an evil hour agreed to refer it, according to the fashion of the age, to the arbitration of a neighboring sovereign, and fixed upon Edward I. of England, their wily neighbor. The Scottish nobles being induced to cross the River Tweed, and to assemble in the presence of Edward, under pretence that he was to act only as arbitrator, Sir Roger de Brabacon by his order addressed them in French, (the language then spoken by the upper classes both in Scotland and England,) disclosing the alarming pretensions about to be set up.
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 theirsuzerain, of which a record was to be made for a lasting memorial. The Scots saw too late the imprudence of which they had been guilty in choosing such a crafty and powerful arbitrator. For the present they refused the required recognition, saying that “they must have time for deliberation, and to consult the absent members of their different orders.” Brabacon, after advising with the king, consented that they should have time until the following day, and no longer. They insisted on further delay, and showed such a determined spirit of resistance, that their request was granted and the first day of June following was fixed for the ceremony of the recognition. Brabacon allowed them to depart; and a copy of his paper, containing the proofs of the allegedsuperiorityanddirect dominionof 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. Althoughthe body of the Scottish nobles, as well as the body of the Scottish people, would resolutely have withstood the demand, the competitors for the throne, in the hopes of gaining Edward’s favor, successively acknowledged him as their liege lord, and their example was followed by almost the whole of those who then constituted the Scottish Parliament.[26]
Bruce afterwards pleaded his own cause with great dexterity, and many supposed that he would succeed. Upon the doctrine ofrepresentation, 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 descent of the crown.
When Edward I. determined in favor of Baliol, influenced probably less by the arguments in his favor than by the consideration that from the weakness of his character he was likely to be a more submissive vassal, Robert de Brus complained bitterly that he was wronged, and resolutely refused to acknowledge the title of his rival. He retired in disgust to his castle of Lochmaben, where he died in November, 1295. While resident in England, he had married Isabel, daughter of Gilbert de Clare, Earl of Gloucester, by whom he had several sons. Robert, the son of Robert the eldest, became Robert I. of Scotland, and one of the greatest of heroes.
When judgment had been given in favor of Baliol, Brabacon was still employed to assist in the plan which had beenformed to bring Scotland into entire subjection. There being a meeting at Newcastle of the nobles of the two nations, when the feudatory king did homage to his liege lord, complaint was made by Roger Bartholomew, a burgess of Berwick, that certain English judges had been deputed to exercise jurisdiction on the north bank of the Tweed. Edward referred the matter to Brabacon and other commissioners, commanding them to do justice according to the laws and customs of his kingdom. A petition was then presented to them on behalf of the King of Scotland, setting forth Edward’s promise to observe the laws and customs of that kingdom, and that pleas of things done there should not be drawn to examination elsewhere. Brabacon is reported thus to have answered:—
“This petition is unnecessary, and not to the purpose; for it is manifest, and ought to be admitted by all the prelates and barons, and commonalty of Scotland, that the king, our master, has performed all his promises to them. As to the conduct of his judges, lately deputed by him asSUPERIORandDIRECT LORDof 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 justsuzeraineté, by such promises he would not have been restrained or bound.”[27]
Encouraged by this language, Macduff, the Earl of Fife,entered an appeal in the English House of Lords against the King of Scotland; and, on the advice of Brabacon and the other judges, it was resolved that the respondent must stand at the bar as a vassal, and that, for his contumacy, three of his principal castles should be seized into the king’s hands.
Although historians who mention these events designate Brabacon as “grand justiciary,” it is quite certain that, as yet, he was merely a puisne judge; but there was a strong desire torewardhim for his services, and, at last, an opportune vacancy arising, he was created chief justice of the King’s Bench.
Of his performances in this capacity we know nothing, except by the general commendation of chroniclers; for the Year Books, giving a regular account of judicial decisions, do not begin till the following reign.
On the accession of Edward II., Brabacon was reappointed chief justice of the King’s Bench, and he continued very creditably to fill the office for eight years longer. He was fated to deplore the fruitless result of all his efforts to reduce Scotland to the English yoke Robert Bruce being now the independent sovereign of that kingdom, after humbling the pride of English chivalry in the battle of Bannockburn.[28]
At last, the infirmities of age unfitting Brabacon for the discharge of judicial duties, he resigned his gown; but, to do him honor, he was sworn a member of the Privy Council, and he continued to be treated with the highest respect till his death, which happened about two years afterwards.
ROBERT TRESILIAN.
We next come to a chief justice who actually suffered the last penalty of the law—and deservedly—in the regular administration of retributive justice—Sir Robert Tresilian—hanged at Tyburn.
I can find nothing respecting his origin or education, except a doubtful statement that he was of a Cornish family, and that he was elected a fellow of Exeter College, Oxford, in 1354. The earliest authentic notice of him is at the commencement of the reign of Richard II., when he was made a serjeant at law, and appointed a puisne judge of the Court of King’s Bench. The probability is, that he had raised himself from obscurity by a mixture of good and evil arts. He showed learning and diligence in the discharge of his judicial duties; but, instead of confining himself to them, he mixed deeply in politics, and showed a determination, by intrigue, to reach power and distinction. He devoted himself to De Vere, the favorite of the young king, who, to the great annoyance of the princes of the blood, and the body of the nobility, was created Duke of Ireland, was vested for life with the sovereignty of that island, and had the distribution of all patronage at home. By the influence of this minion, Tresilian, soon after the melancholy end of Sir John Cavendish,[29]was appointed chief justice of the King’s Bench; andhe was sent into Essex to try the rebels. The king accompanied him. It is said that, as they were journeying, “the Essex men, in a body of about 500, addressed themselves barefoot to the king for mercy, and had it granted upon condition that they should deliver up to justice the chief instruments of stirring up the rebellion; which being accordingly done, they were immediately tried and hanged, ten or twelve on a beam, at Chelmsford, because they were too many to be executed after the usual manner, which was by beheading.”
Tresilian now gained the good graces of Michael de la Pole, the lord chancellor, and was one of the principal advisers of the measures of the government, being ever ready for any dirty work that might be assigned to him. In the year 1385, it was hoped that he might have got rid, by an illegal sentence, of John of Gaunt, who had become very obnoxious to the king’s favorites. But the plot got wind, and the Duke, flying to Pontefract Castle, fortified himself there till his retainers came to his rescue.
In the following year, when there was a change of ministry, Tresilian was in great danger of being included in the impeachment which proved the ruin of the chancellor; but he escaped by an intrigue with the victorious party, and he was suspected of having secretly suggested the commission signed by Richard, and confirmed by Parliament, under which the whole power of the state was transferred to a commission of fourteen barons. He remained very quiet for a twelvemonth, 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 ofIreland, went to the king, who was at Nottingham, in a progress through the midland counties. He then undertook, through the instrumentality of his brother judges, to break the commission, and to restore the king and the favorite to the authority of which it had deprived them. His plan was immediately adopted, and the judges, who had just returned from the summer assizes, were all summoned in the king’s name to Nottingham.
On their arrival, they found not only a string of 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 distributed all over England:—
“Be it remembered, that on the 25th of Aug., in the 11th year of the reign of K. Rich. II., at the castle of Nottingham, before our said lord the king, Rob. Tresilian, chief justice of England, and Robt. Belknappe, chief justice of the common bench of our said lord the king, John Holt, Roger Fulthorp, and Wm. de Burg, knights, justices, &c., and John de Lokton, the king’s serjeant-at-law, in the presence of the lords and other witnesses under-written, were personally required by said lord the king, on the faith and allegiance wherein to him the said king they are bound, to answer faithfully unto certain questions hereunder specified, and to them then and there truly recited, and upon the same to declare the law according to their discretion, viz.:—
“1. It was demanded of them, ‘Whether that new statute, ordinance, and commission, made and published in the lastparl. held at Westm., be not derogatory to the loyalty and prerogative of our said lord the king?’ To which they unanimously answered 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, straightened, or necessitated the king to consent to the making of the said statute and commission?’—A.That they ought to suffer as traitors.
“5. ‘How those are to be punished who hindered the king from exercising those things which appertain to his royalty and prerogative?’—A.That they are to be punished as traitors.
“6. ‘Whether after in 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 whether, 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.
“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.[30]
“9. ‘How he is to be punished who moved in parl. that the statute should be sent for whereby Edw. II. (the king’s great grandfather) was proceeded against and 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, waserroneous 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 aforesaid, 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 proceedings of the two houses entirely dependent on the caprice of the sovereign.
He then attended Richard to London, where the opinion of the judges against the legality of the commission was proclaimed to the citizens at the Guildhall; and all who should act under it were declared traitors. A resolution was formed to arrest the most obnoxious of the opposite faction, and to send them to take their trials before the judges who had already committed themselves on 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, wasstill chancellor; but Tresilian considered that the great seal was now within his own grasp, and, after the recent examples of chief justices becoming chancellors, he anticipated no obstacle to his elevation.
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. The confederate lords, hearing of the proceedings at Nottingham, had immediately rushed to arms, and followed Richard towards London, with an army of 40,000 men. The walls of London were sufficient to repel a sudden assault; and a royal proclamation forbade the sale of provisions to the rebels, in the hope that famine might disperse them. But, marching round by Hackney, they approached Aldgate, and they appeared so formidable, that a treaty was entered into, according 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. Richard himself agreed that on the following Sunday he would receive the deputies, sitting on his throne in Westminster 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 covenant; 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 heordered 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.” Thereupon they said, “Most dread sovereign, we appeal of high treason Robert Tresilian, that false justice; Nicholas Brambre, that disloyal knight; the Archbishop of York; the Duke of Ireland; and the Earl of Suffolk;”—and, to prove their accusation to be true, they threw down their gauntlets, protesting by their oaths that they were ready to prosecute it to battle. “Nay,” said the king, “not so; but in the next Parliament (which we do appoint beforehand to begin the morrow after the Purification 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 election for the new Parliament ran strongly in favor of the confederate lords; and, on the day appointed for its meeting, an order was issued under their sanction for taking into custody all the judges who had signed the opinion at Nottingham. They were all arrested while 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 at Westminster Hall, and the king had taken his place on the throne, the five lords, who were calledAppellants, “entered in costly robes, leading one another hand in hand, an innumerable company following them, and, approaching the king, they all with submissive gestures reverenced him. Then rising, they declared 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 honorably of you, that he cannot be induced to believe that you, who are of kindred to him, should attempt any treason against him.’ The duke, with his four 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 tranquillity of the kingdom; and if any will do to the contrary thereof, you shall oppose and disturb himto 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.’”
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 justice;” 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 thereafter, judgment was given “that the impeachment 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 was pronounced, “that Sir Robert Tresilian, the Duke of Ireland, the Archbishop of York, and Earl of Suffolk, should be drawn and hanged as traitors and enemies to the king and kingdom, and that their heirs should be disinherited forever, and that their lands and tenements, goods and chattels, should be forfeited to the king.”
Tresilian might have avoided the execution of his 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, noneof whom suffered, although his features were necessarily well known, he had come to the neighborhood of Westminster Hall on the first day of the session of Parliament; and, even after his own attainder had been published, trusting to his disguise, his curiosity induced him to remain to watch the fate of his associate, Sir Nicholas Brambre.
This chivalrous citizen, who had been knighted for the bravery he had displayed in assisting Sir William Walwort to kill Wat Tyler and to put down the rebellion, having been apprehended 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.”
The appellants said “they would readily accept of the combat,” and flinging down their gages before the king, added, “We will prove these articles to be true to thy head, most damnable traitor!” But the lords resolved “that battle did not lie in this case; and that they would examine the articles with the proofs to support them, and consider what judgment to give, to the 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 interrupted by unfortunate Tresilian, who, being got upon the top of an apothecary’s house adjoining to the palace, and descended into the gutter to look about 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 stepped to the master of the house, and taking him by the shoulder, with his dagger drawn, said thus: ‘Show us where thou hast hid Tresilian, or else resolve thy days as 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 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 soovercome with grief, that she fell down in a swoon as if she had been dead. Immediately Tresilian is put upon an hurdle, and drawn through the streets of the city, with a wonderful concourse of people following him. At every furlong’s end he was suffered to stop, that he might rest himself, and to see if he would confess or acknowledge any thing; but what he said to the friar, his confessor, is not known. When he came to the place of execution he would not climb the ladder, until such time as being soundly beaten with bats and staves he was forced to go up; and when he was up, he said, ‘So long as I do wear any thing upon me, I shall not die;’ 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.”
Considering the violence of the times, Tresilian’s conviction and execution cannot be regarded as raising a strong presumption against him; but there seems little doubt that he flattered the vices of the unhappy Richard; and historians agree that, in prosecuting his personal aggrandizement, he was utterly regardless of law and liberty. He died unpitied, and, notwithstanding the “historical doubts” by which we are beset, no one has yet appeared to vindicate his memory.