THOMAS BILLING.
The crown of England, transferred on the deposition of Richard II.[31]in 1399 to the Lancaster family in the person of Henry IV., was worn successively by him and by his son and grandson, Henry V. and Henry VI. After the lapse, however, of sixty-two years, the imbecility of Henry VI. enabled the Legitimist or Yorkist party to triumph by placing Edward IV. on the throne.
At this time Sir John Fortescue, an able man and distinguished by his treatiseDe Laudibus Legion Angliæ, (Praises of the Laws of England,) was chief justice of the King’s Bench; but being an ardent Lancastrian, and having written pamphlets to prove that Richard II. was rightlydeposed, that Henry IV. had been called to the throne by the estates of the kingdom and the almost unanimous voice of the people, and that now, in the third generation, the title of the House of Lancaster could not be questioned, he was by no means the man to suit the new dynasty. He was removed to make way for Sir John Markham, who had been for nineteen years a puisne judge of the same court, and who, though he had not ventured to publish any thing on the subject, yet in private conversation and in “moots” at the Temple, such as that in which the white and red roses were chosen as the emblems of the opposite opinions, did not hesitate to argue for indefeasible hereditary right, which no length of possession could supersede, and to contend that the true heir of the crown of England was Richard, Duke of York, descended from the second son of Edward III. His sentiments were well known to the Yorkist leaders, and they availed themselves of the legal reasoning and the historical illustrations with which he furnished them; but he never sallied forth into the field, even when, after the death of Richard, the gallant youth his eldest son displayed the high qualities which so wonderfully excited the energy of his partisans. However, when Henry VI. was confined as a prisoner in the Tower, and Fortescue and all the Lancastrian leaders had fled, Markham was very naturally and laudably selected for the important office of chief justice of the King’s Bench. Although he was such a strong Legitimist, he was known not only to be an excellent lawyer, but a man of honorable and independent principles. The appointment, therefore, gave high satisfaction, and was considered a good omen of the newrégime.
He held the office above seven years, with unabated credit. Not only was his hand free from bribes, but so was his mindfrom every improper bias. 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.[32]
At last, though he cherished his notions of hereditary right with unabating constancy, he forfeited his office because he would not prostitute it to the purpose of the king and the ministers in wreaking their vengeance on the head of a political opponent. Sir Thomas Cooke, who inclined to the Lancastrians, though he had conducted himself with great caution, was accused of treason and committed to the Tower. To try him a special commission was issued, over which Lord Chief Justice Markham presided, and the government was eager for a conviction. But all that could be proved against the prisoner was, that he entered into a treaty to lend, on good security, a sum of 1000 marks for the use of Margaret, the queen of the dethroned Henry VI. The security was not satisfactory, and the money was not advanced. The chief justice ruled that this did not amount to treason, but was at most misprision of treason. Of this last offence the prisoner being found guilty, he was subjected to fine and imprisonment; but he saved his life and his lands. King Edward IV. was in a fury, and swearing that Markham, notwithstanding his high pretensions to loyalty, was himself little better than a traitor, ordered thathe should never sit on the bench any more; and appointed in his place a successor, who, being apuisne, had wished to trip up the heels of his chief, and had circulated a statement, to reach the king’s ear, that Sir Thomas Cooke’s offence was a clear, overt act of high treason. Markham bore his fall with much dignity and propriety—in no respect changing his principles or favoring the movement which for a season restored Henry VI. to the throne after he had been ten years a prisoner in the Tower.
Upon the dismissal of Sir John Markham, Edward IV., who no longer showed the generous spirit which had illustrated his signal bravery while he was fighting for the crown, and now abandoned himself by turns to voluptuousness and cruelty, tried to discover the fittest instrument that could be found for gratifying his resentments by a perversion of the forms of law, and with felicity fixed upon Sir Thomas Billing, who, by all sorts of meannesses, frauds, and atrocities, aided by natural shrewdness, or rather low cunning, had contrived to raise himself from deep obscurity to 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 eminence by a moderate share of learning and talent, and an utter want of principle and regard for consistency.[33]
His family and the place of his education are unknown. He was supposed to have been the clerk of an attorney; thusmaking himself well acquainted with the rules of practice and the less reputable parts of the law. However, he contrived (which must have been a difficult matter in those days, when almost all who were admitted at the inns of court were young men of good birth and breeding) to keep his terms and to be called to the bar. He had considerable business, although not of the most creditable description, and in due time he took the degree of the coif, that is, became a serjeant.
His ambition grew with his success, and nothing would satisfy him but official preferment. Now began the grand controversy respecting the succession to the crown; and the claim to it through the house of 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 recognized; enlarging on the prudence of Henry IV., the gallantry of Henry V., and the piety of the holy Henry VI., under whose mild sway the country now flourished, happily rid of all its continental dependencies. He even imitated the 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 Richard II., or to depose him for the crimes he had committed, and to call to the throne the member of the royal family most worthy to fill it, according to the fashion of our Saxon ancestors, should be proceeded against as traitors.” This so pleased Waynflete, the chancellor, and the otherLancastrian leaders, 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 until after the fall of Duke Richard, when the second battle of St. Alban’s had placed his eldest son on the throne. Instantly Sir Thomas Billing sent in his adhesion; and such zeal did he express in favor of the new dynasty that his patent of king’s serjeant was renewed, and he became principal law 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 J. Fortescue and the principal Lancastrians, his patrons, were attainted, and the last three reigns were pronounced tyrannical usurpations. He likewise took an active part in the measures by which the persevering efforts of Queen Margaret to regain her ascendency were disconcerted, and Henry VI. was lodged a close prisoner in the Tower of London.
Sir John Markham, the honorable and consistent Yorkist, now at the head of the administration of the criminal law, was by no means so vigorous in convicting Lancastrians, or persons suspected of Lancastrianism, as Edward and his military adherents wished; and when state prosecutions failed, there were strong murmurs against him. In these Mr. Serjeant Billing joined, suggesting how much better it would befor the public tranquillity if the law were properly enforced. It would have appeared very ungracious, as well as arbitrary, to displace the chief justice, who had been such a friend to the house of York, and was so generally respected. That there might be one judge to be relied upon, who might be put into commissions of oyer and terminer, Billing was made a puisne justice of the Court of King’s Bench. He was not satisfied with this elevation, which little improved his position in the profession; but he hoped speedily to be on the woolsack, and he was 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 Walker, indicted before him on the statute 25 Edward III., for compassing and imagining the death of the king. The prisoner kept an inn called the Crown, in Cheapside, in the city of London, and was obnoxious to the 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, meaning that he should succeed him as masterof the Crown Tavern, in Cheapside, and, like him, employ himself in selling sack.
Mr. Justice Billing, however, ruled—
“That upon the just construction of the statute of treasons, which was only declaratory of the common law, there was no necessity, in supporting such a charge, to prove a design to take away the natural life of the king; that any thing showing a disposition to touch his royal state and dignity was sufficient; and that the words proved were inconsistent with that reverence for the hereditary descent of the crown which was due from every subject under the oath of allegiance; therefore, if the jury believed the witness, about which there could be no doubt, as the prisoner did not venture to deny the treasonable language which he had used, they were bound to find him guilty.”
A verdict of guilty was accordingly returned, and the poor publican was hanged, drawn, and quartered.[34]
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 favorite at court, all his former extravagances about cashiering kings and electing others in their stead being forgotten, in consideration of the zeal he displayed since his 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 greatwealth he had accumulated, there was a general cry in the palace at Westminster that he ought not to be permitted longer to mislead juries, and that Mr. Justice Billing, of such approved loyalty and firmness, should be appointed to succeed him, rather than the attorney or solicitor general, who, getting on the bench, might, like him, follow popular courses.
Accordingly, asupersedeasto Sir John Markham was made out immediately after the trial ofRexv.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 himself.”
The very next term came on the trial of Sir Thomas Burdett. This descendant of one of the companions of William the Conqueror, and ancestor of the late Sir Francis Burdett, lived at Arrow, in Warwickshire, where he had large possessions. He had been a Yorkist, but somehow was out of favor at court; and the king, making a progress in those parts, had rather wantonly 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 favorable for being revenged on an obnoxious person. Accordingly he was arrested, brought to London, and tried at the King’s Bench bar on a charge of treason, for having compassed and imagined the death and destruction of “our lord the king.”
The prisoner proved, by most respectable witnesses, thatthe 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 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 buck, it would not be a case of treason, and the jury would be bound to acquit; but the story as told by the witnesses for the crown was much more probable, for sovereigns were not usually advised on such affairs, and it had been 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 purpose. Words merely expressing an opinion, however erroneous the opinion, might not amount to treason; but when the words refer to a purpose, and 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 thefact?[35]But in treason accessories before the fact were principals, and the prisoner was not at liberty to plead that what he had planned had not been accomplished. Therefore, if the jury believed that he had uttered the treasonable wish directed against his majesty’s own sacred person, they were bound to convict him.”
The jury immediately returned a verdict of guilty; and the frightful sentence in high treason, being pronounced, was carried into execution with all its horrors. This barbarity made a deep impression on the public mind, and, to aggravate the misconduct of the judge, a rumor was propagated that the late virtuous chief justice had been displaced because he had refused to concur in it.
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 must have regretted that he had ever left the Lancastrians. One of the most extraordinary revolutions in history,—when a long continuance of public tranquillity was looked for,—without a battle, drove Edward IV. into exile, and replaced Henry VI. on the throne, after he had languished ten years as a captive in the Tower of London.
There is no authentic account of Billing’s deportment inthis 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 jail, a writ passed the great seal, bearing date the 49th year of his reign, by which he assigned “his trusty and well-beloved Sir John Billing, Knight, as his chief justice to hold 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 a 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 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 Ravenspurg, gained the battle of Barnet, and, after the murder of Henry VI. and the Prince of Wales, was againon the throne, without a rival. Billing does seem to have found great difficulty in making his peace. Though he was dismissed from his office, it was allowed to remain vacant about a twelvemonth, during which time he is supposed to have been in hiding. But he had vowed that, whatever changes might take place on the throne, he himself should die chief justice of the King’s Bench; and he contrived to be as good as his word.
By his own representations, or the intercession of friends, or the hope of the good services he might yet render in getting rid of troublesome opponents, the king was induced to declare his belief that he who had sat on the trials of Walker and Burdet had unwillingly submitted to force during the late usurpation; and on the 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, 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 ofDe Laudibusshould publish a new treatise, to refute that which he had before composed, proving the right of the house of Lancaster to the throne; and forced him to present the petition in which he assures the king “that he hath so clearly disproved all the arguments that have been made against his right and title, that now there remaineth no color or matter of argument to thehurt 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 Year Books, but there is only one other trial of historical importance mentioned in which he took any part; and it is much to be feared that on this occasion he inflamed, instead of soothing, the violent passions of his master, with whom he had become a special favorite.
Edward IV., after repeated quarrels and reconciliations with his brother, the Duke of Clarence, at last brought him to trial, at the bar of the House of Lords, on a charge of high treason. The judges were summoned to attend, and Lord Chief Justice Billing was their 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 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 responsibility, he put the question to the judges, “whether the matters proved against the Duke of Clarence amounted, in point of law, to high treason.” ChiefJustice Billing answered in the affirmative. Therefore a unanimous verdict of guilty was given, and sentence of death was pronounced in the usual form. I dare say Billing would not have hesitated in declaring his opinion that the beheading might be commuted to drowning in a butt of malmsey wine; but this story of Clarence’s exit, once so current, is now generally discredited, and the belief is, that he was privately executed in the Tower, according to his sentence.
Lord Chief Justice Billing enjoyed the felicitous fate accorded to very few persons of any distinction in those times—that he never was imprisoned, that he never was in exile, and that he died a natural death. In the spring of the year 1482, he was struck with apoplexy, and he expired in a few days—fulfilling his vow—for he remained to the last chief justice of the King’s Bench, after a tenure of office for seventeen years, in the midst of civil wars and revolutions.
He amassed immense wealth, but dying childless, it went to distant relations, for whom he could have felt no tenderness. Notwithstanding his worldly prosperity, few would envy him. He might have been feared and flattered, but he could not have been beloved or respected, by his contemporaries; and his name, contrasted with those of Fortescue and Markham, was long used as an impersonation of the most hollow, deceitful, and selfish qualities which can disgrace mankind.
JOHN FITZJAMES.
Of obscure birth, and not brilliant talents, Sir John Fitzjames made his fortune by his great good humor, 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 reverence, having got drunk, was set in the stocks by Sir Amyas Paulet.
While Wolsey tried his luck in the church, with little hope of promotion, Fitzjames was keeping his terms in the inns of court; but he chiefly distinguished himself on gaudy days, by dancing before the judges, playing the part of “Abbot of Misrule,” and swearing strange oaths—especially bySt. Gillian, his tutelary saint. His agreeable manners made him popular with the “readers” and “benchers;” and through their favor, although very deficient in “moots” and “bolts,” he was called to the outer bar. Clients, however, he had none, and he was in deep despair, when his former chum—having insinuated himself into the good graces of the stern and wary old man, Henry VII., and those of the gay and licentious youth, Henry VIII.—was rapidly advancing to greatness. Wolsey, while almoner, and holding subordinate offices about the court, took notice of Fitzjames, advised him to stick to the profession, and was able to throw some business in his way in the court of Wards and Liveries—
“Lofty and sour to them that lov’d him not:But to those men that sought him, sweet as summer.”
Fitzjames was devotedly of this second class, and was even suspected to assist his patron in pursuits which drew upon him Queen Catharine’s censure:—
“Of his own body he was ill, and gaveThe clergy ill example.”
For these or other services, the cardinal, not long after he wrested the great seal from Archbishop Wareham, and had all legal patronage conferred upon him, boldly made Fitzjames attorney general, notwithstanding loud complaints from competitors of his inexperience and incapacity.
The only state trial which he had to conduct was that of the unfortunate Stafford, Duke of Buckingham, who, having quarrelled with Wolsey, and called him a “butcher’s cur,” was prosecuted for high treason before the lord high chancellor and Court of Peers, on very frivolous grounds. Fitzjames had little difficulty in procuring a conviction; and although the manner in which he pressed the case seems shocking to us, he probably was not considered to have exceeded the line of his duty: and Shakspeare makes Buckingham, returning from Westminster Hall to the Tower, exclaim—
“I had my trial,And, must needs say, a noble one; which makes meA little happier than my wretched father.”
The result was, at all events, highly satisfactory to Wolsey, who, in the beginning of the following year, created Fitzjames a puisne judge of the Court of King’s Bench, with a promise of being raised to be chief justice as soon as there should be a vacancy. Sir John Fineux, turned of eighty, was expectedto drop every term, but held on four years longer. As soon as he expired, Fitzjames was appointed his successor. Wolsey still zealously supported him, although thereby incurring considerable obloquy. It was generally thought that the new chief was not only wanting in gravity of moral character, but that he had not sufficient professional knowledge for such a situation. His highest quality was discretion, which generally enabled him to conceal his ignorance, and to disarm opposition. Fortunately for him, the question which then agitated the country respecting the validity of the king’s marriage with Catharine of Arragon, was considered to depend entirely on the canon law, and he was not called upon to give any opinion upon it. He thus quietly discharged the duties of his office till Wolsey’s fall. But he then experienced much perplexity. Was he to desert his patron, or to sacrifice his place? He had an exaggerated notion of the king’s vengeful feelings. The cardinal having been not only deprived of the great seal, but banished to Esher, and robbed of almost the whole of his property under process ofpræmunire, while an impeachment for treason was still threatened against him, the chief justice concluded that his utter destruction was resolved upon, and that no one could show him any sympathy without sharing his fate. Therefore, instead of going privately to visit him, as some old friends did, he joined in the cry against him, and assisted his enemies to the utmost. Wolsey readily surrendered all his private property, but wished, for the benefit of his successors, to save the palace at Whitehall, which belonged to the see of York, being the gift of a former archbishop. A reference was then made to the judges, “whether it was not forfeited to the crown;” when the chief justice suggested the fraudulent expedient of a fictitiousrecovery in the Court of Common Pleas, whereby it should be adjudged to the king under a superior title. He had not the courage to show himself in the presence of the man to whom he owed every thing; and Shelley, a puisne judge, was deputed to make the proposal to him in the king’s name. “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.
Accordingly, when Parliament met, and a select committee of the House of Lords was appointed to draw up articles of impeachment against Wolsey, Chief Justice Fitzjames, although only summoned, like the other judges, as an assessor, was actually made a member of the committee, joined in their deliberations, and signed their report.
The authority of the chief justice gave such weight to the articles that they were agreed to by the lords,nemine contradicente; but his ingratitude and tergiversation caused much scandal out of doors, and he had the mortification to find that he might have acted an honorable and friendly part without any risk to himself, as the king, retaining a hankering kindness for his old favorite, not only praised the fidelity of Cavendish and the cardinal’s other dependants who stuck by him in adversity, but took Cromwell into favor, 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 ignominiously 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 forever 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 Roman Catholic religion which we Protestants consider most objectionable, but making himself pope in England in place of the Bishop of Rome, laws were enacted subjecting to the penalties of treasonall who denied hissupremacy;[36]and many of these offenders were tried and condemned by Lord Chief Justice Fitzjames, although he was suspected of being in his heart adverse to all innovation in religion.
I must confine myself to the two most illustrious victims sacrificed by him—Fisher, Bishop of Rochester, and Sir Thomas More. Henry, not contented with having them attainted ofmisprision of treason, for which they were suffering the sentence of forfeiture of all their property and imprisonment during life, was determined to bring them both to the block, and for this purpose issued a special commission to try them on the capital charge of having denied his supremacy. The lord chancellor was first commissioner; but it was intended that the responsibility and the odium should chiefly rest on the Lord Chief Justice Fitzjames, who was joined in the commission along with several other common law judges of inferior rank.
The case against the Bishop of Rochester rested on the evidence of Rich, the solicitor general, who swore he had heard the prisoner say, “I believe in my conscience, and by my learning I assuredly know, that the king neither is, nor by right can be, supreme head of the church of England;” but admitted that this was in a confidential conversation, which he had introduced by declaring that “he came from the king to ask what the bishop’s opinion was upon this question, and by assuring him that it never should be mentioned to any one except the king, and that the king had promisedhe never should be drawn into question for it afterwards.” The prisoner contending that he was not guilty of the capital crime charged for words so spoken, the matter was referred to the judges.
“Lord Chief Justice Fitzjames, in their names, declared ‘that this message or promise from the king to the prisoner neither did nor could, by rigor of law, discharge him; but in so declaring of his mind and conscience against thesupremacy—yea, though it were at the king’s own request or commandment—he committed treason by the statute, and nothing can discharge him from death but the king’s pardon.’”
Bishop of Rochester.—“Yet I pray you, my lords, consider that by all equity, justice, worldly honesty, and courteous dealing, I cannot, as the case standeth, be directly charged therewith as with treason, though I had spoken the words indeed, the same not being spoken maliciously, but in the way of advice or counsel, when it was required of me by the king himself; and that favor the very words of the statute do give me, being made only against such as shall ‘maliciouslygainsay the king’s supremacy,’ and none other; wherefore, although by rigor of law you may take occasion thus to condemn me, yet I hope you cannot find law, except you add rigor to that law, to cast me down, which herein I have not deserved.”
Fitzjames, C. J.—“All my brethren are agreed that ‘maliciously’ is a term of art and an inference of law, not a qualification of fact. In truth, it is a superfluous and void word; for if a man speak against the king’s supremacy by any manner of means, that speaking is to be understood and taken in law asmalicious.”
Bishop of Rochester.—“If the law be so, then it is a hardexposition, and (as I take it) contrary to the meaning of them that made the law, as well as of ordinary persons who read it. But then, my lords, what says your wisdom to this question, ‘Whether a single testimony may be admitted to prove me guilty of treason; and may it not be answered by my negative?’ Often have I heard it said, that to overcome the presumption from the oath of allegiance to the king’s majesty, and to guard against the dire consequences of the penalties for treason falling on the head of an innocent man, none shall be convicted thereof save on the evidence of two witnesses at the least.”
Fitzjames, C. J.—“This being the king’s case, it rests much in the conscience and discretion of the jury; and as they upon the evidence shall find it, 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 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 prisoner, in an able address to the jury,clearly proved that there was no evidence whatever to support the charge, and that he was entitled to an acquittal; when Rich, the solicitor general, was permitted to present himself in the witness box, and to swear falsely, that “having observed, in a private conversation with the prisoner in the Tower, ‘No Parliament could make a law that God should not be God,’[37]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 Parliament be not unlawful, then the indictment is not, in my conscience, invalid.”
Lord Chancellor.—“Quid adhuc desideramus, testimonium? Reus est mortis.(What more do we need? He is worthy of death.) Sir Thomas More, you being, by the opinion of that reverend judge, the chief justice of England, and of allhis 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 embowelled, and your bowels burnt before your face, you are to be beheaded and quartered, your four quarters being set up over the four gates of the city, and your head upon London Bridge.”
No one can deny that Lord Chief Justice Fitzjames was an accessory to this atrocious murder.
The next occasion of his attracting the notice of the public was when he presided at the trials of Smeaton and the other supposed gallants of Anne Boleyn. Luckily for him, no particulars of these trials have come down to us, and we remain ignorant of the arts by which a conviction was obtained, and even aconfession—although there is every reason to believe that the parties were innocent. According to the rules of evidence which then prevailed, the convictions and confessions of the gallants were to be given in evidence to establish the guilt of the unhappy queen, for whose death Henry was now as 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.Burningwas the death which the law appointed for a woman attainted of treason; yet as Anne had been Queen of England, some peers suggested that it might be left to the king to determine whether she should die such a cruel and ignominious death, or bebeheaded, a punishment supposed to beattended 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 youstare super antiquas vias; and that which is without precedent is without safety.”
After due deliberation, it was held that an absolute sentence of beheading would be lawful, and it was pronounced accordingly; the court being greatly comforted by recollecting that no writ of error lay, and that their judgment could not be reversed.
Fitzjames died in the year 1539, before this judgment served as a precedent for that upon the unfortunate Queen Catharine Howard; and he was much missed when the bloody statute of the Six Articles brought so many, both of the old and of the reformed faith, on capital charges, before the Court of King’s Bench.
THOMAS FLEMING.
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 Bacon, he was not only preferred to him by attorneys, but by prime ministers, and he had the highest professional honors showered upon him, while the immortal philosopher, orator, and fine writer continued to languish at the bar without any advancement, notwithstanding all his merits and all his intrigues. But Fleming had superior good fortune, and enjoyed temporary consequences, because he was a mere lawyer—because he harbored no idea or aspirations beyond the routine of Westminster Hall—because he did not mortify the vanity of the witty, or alarm the jealousy of the ambitious.
He was the younger son of a gentleman of small estate in the 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 unwearied drudgery he got into considerable practice; and it was remarked that he always tried how much labor he could bestow upon every case intrusted to him, while his more lively competitors tried with how little labor they could creditably perform their duty.
In the end of the year 1594, he was called to the degree of serjeant, along with eight others, and was thought to be themost deeply versed in the law of real actions of the whole batch. It happened that, soon after, there was a vacancy in the office of solicitor general, on the promotion of Sir Edward Coke to be attorney general. Bacon moved heaven and earth that he himself might succeed to it. He wrote to his uncle, Lord Treasurer Burleigh, saying, “I hope you will think I am no unlikely piece of wood to shape you a true servant of.” He wrote to the Queen Elizabeth, saying, “I affect myself to a place of my profession, such as I do see divers younger in proceeding to myself, and men of no great note, do without blame aspire unto; but if your majesty like others better, I shall, with the Lacedemonian, be glad that there is such choice of abler men than myself.” He accompanied this letter with a valuable jewel, to show off her beauty. He did what he thought would be still more serviceable, and, indeed, conclusive; he prevailed upon the young Earl of Essex, then in the highest favor with the aged queen, earnestly to press his suit. But the appointment was 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 promoted, might be a dangerous rival to his cousin, Robert Cecil, then entering public life, and destined by his sire to be prime minister. The cunning old fox then inquired who would be a competent person to do the queen’s business in her courts, and would give no uneasiness 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 bycomparing 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 “lawyer-like and ungenteel” for the chair, and Serjeant Croke, who was more presentable, was substituted for him.
He opened his mouth in the house only once, and then he broke down. This was in the great debate on the grievance of monopolies. He undertook to defend the system of granting to individuals the exclusive right of dealing in particular commodities; but when he had described the manner in which patents passed through the different offices before the great seal is put to them, he lost his recollection and resumed his seat.
Bacon, now member for Middlesex, to show what a valuablesolicitor 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 restraining power: for, by her prerogative, she may, 1st, set at liberty things restrained by statute law or otherwise; and 2dly, by her prerogative she may restrain things which be 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 heldduring pleasure, till the accession of the house of Stuart the tenure of all of them was practically secure. An attempt was made to induce Fleming to accept the appointment of queen’s serjeant, which would have given him precedence over the attorney general; but this failed, for he would thereby have been considered 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 accession of James I., Fleming was reappointed solicitor general.
The event justified his firmness in resisting the attempt to shelve him, for in the following year, on the death of Sir William Peryam, he was appointed chief baron of the Exchequer. While he held this office, he sat along with Lord ChiefJustice 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 Impositions.” 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 parliamentary duty of 2s.3d.upon it, but refused to pay more; thereupon the attorney general filed an information in the Court of Exchequer, to compel him to pay the additional duty of 7s.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 ‘indebitè, injustè, et contra leges Angliæ imposita, and, therefore, he refused to pay it.’ The king, as is commonly said in our books,cannot do wrong; 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 ofcommodities 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, anda 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 determination of civil justice; that is nominated by civiliansjus privatum, 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 namedpolicy, 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 custom he imposes, to enable himself to perform these duties? The impost to the merchant is nothing, for those who wish forhis commodities must buy them subject to the charge; and, in most cases, it shall be paid by the foreign grower, and not by the English consumer. As to the argument that the currants arevictual, 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 arguea 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 arearcana 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 insilence 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.[38]
King James declared that Chief Baron Fleming was 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 indignation in Buchanan’s treatise, “De Jure Regni apud Scotis,” 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 always said that, “though slow, he was sure;” and he became chief justice of England the very same day on which Francis Bacon mounted the first step of the political ladder, receiving the comparatively humble appointment of solicitor general.
Lord Chief Justice Fleming remained at the head of the common law rather more than six years. During that time the only case of general interest which arose in Westminster 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 itwas 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 considered a conclusive authority, being founded upon such reasoning as that “if our king conquer a Christian country, its laws remain till duly altered; whereas if he conquer an infidel country, the laws areipso factoextinct, and he may massacre all the inhabitants.”
Lord Chief Justice Fleming took the lead in the prosecution of the Countess of Shrewsbury before the Privy Council, on the charge of having refused to be examined respecting the part she had acted in bringing about a clandestine 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 misdemeanor 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 £10,000 and confined during the king’s pleasure.”
While this poor creature presided in the King’s Bench, he was no doubt told by his officers and dependants 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 muchmore vigorous intellect and deeper learning, added respect for constitutional liberty and resolution at every hazard to maintain judicial independence. From the growing resistance in the nation to the absolute maxims of government professed by the king and sanctioned by almost all his judges, there was a general desire that the only one who stood up for law against prerogative should be placed in a position which might give greater 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 government.
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, and I have taken no pains to ascertain, where he was buried, or whether he left any descendants. In private life he is said to have been virtuous and amiable, and the discredit of his incompetency in high office ought to be imputed to those who placed him there, instead of allowing him to prose on as a drowsy serjeant at the bar of the Common Pleas, the position for which nature had intended him.
NICHOLAS HYDE.
After the abrupt dissolution of the second Parliament of Charles I. without the grant of a supply, all redress of grievances being refused, the plan was deliberately 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 imposing taxes, and the power of arbitrary imprisonment. He began to exercise both these powers by assessing sums which all persons of substance were called upon to contribute to the revenue according to their supposed ability, and by issuing warrants for committing to jail those who resisted the demand. But these measures could not be rendered effectual without the aid of the judges; for hitherto in England the validity of any fiscal imposition might be contested in a court of justice; and any man deprived of his liberty might, by suing out a writ ofhabeas 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 attorneygeneral, by order of the government, sounded Sir Randolph Crewe, then holding that office, to which he had been appointed hardly two years before, respecting his opinions on the agitated points, and was shocked to 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 imprison any of his subjects without a warrant specifying the offence with which they are charged. This being reported to the cabinet, Sir Randolph Crewe was immediately dismissed from his office; and, in a few weeks after, Sir Nicholas Hyde was made chief justice in his stead. He was the uncle of the great Lord Clarendon. They were sprung from the ancient family of “Hyde of that ilk” in the county palatine of Chester; their branch of it having migrated, in the sixteenth century, into the west of England. The chief justice was the fourth son of Lawrence Hyde, of Gussage St. Michael, in the county of Dorset.
Before being selected as a fit tool of an arbitrary government, he had held no office whatever; but he had gained the reputation of a sound lawyer, and he was a man of unexceptionable character in private life. He was known to be always a stanch stickler for prerogative; but this was supposed to arise rather from the sincere opinion he had formed of what the English constitution was, or ought to be, than from a desire to recommend himself for promotion. He is thus good naturedly introduced by Rushworth:—
“Sir Randolf Crewe, showing no zeal for the advancement of the loan, was removed from his place of lord chief justice, and Sir Nicholas Hyde succeeded in his room—a person who, for his parts and abilities, was thought worthy of thatpreferment; yet, nevertheless, came to the same with a prejudice, coming in the place of one so well-beloved, and so suddenly removed.”
Whether he was actuated by mistaken principle or by profligate ambition, he fully justified the confidence reposed in him by his employers. Soon after he took his seat in the Court of King’s Bench, Sir Thomas Darnel and several others, committed under the same circumstances, were brought up before him on a writ ofhabeas corpus; and the question arose whether the King of England, bylettre de cachet, had the power of perpetual imprisonment without assigning any cause. The return of the jailer, being read, was found to set out, as the only reason for Sir Thomas Darnel’s detention, a warrant, signed by two privy councillors, in these words:—
“Whereas, therefore, the body of Sir Thomas Darnel hath been committed to your custody, these are to require you still to detain him, and to let you know that he was and is committedBY THE SPECIAL COMMAND OF HIS MAJESTY.”
Lord Chief Justice Hyde proceeded with great temper and seeming respect for the law, observing, “Whether the commitment be by the king or others, this court is a place where the king doth sit in person, and we have power to examine it; and if any man hath injury or wrong by his imprisonment, we have power to deliver and discharge him; if otherwise, he is to be remanded by us to prison again.”
Selden, Noy,[40]and the other counsel for the prisoners, encouraged by this intimation, argued boldly that the warrant was bad on the face of it,per speciale mandatum domini regisbeing too general, without specifying an offence forwhich a person was liable to be detained without bail; that the warrant should not only state the authority to imprison, but the cause of the imprisonment; and that if this return were held good, there would be a power of shutting up, till a liberation by death, any subject of the king, without trial and without accusation. After going over all the common law cases and the acts of Parliament upon the subject, fromMagna Chartadownwards, they concluded with thedictumof Paul the apostle, “It is against reason to send a man to prison without showing a cause.”
Hyde, C. J.—“This is a case of very great weight and great expectation. I am sure you look for justice from hence, and God forbid we should sit here but to do justice to all men, according to our best skill and knowledge; for it is our oaths and duties so to do. We are sworn to maintain all prerogatives of the king: that is one branch of our oath; but there is another—to administer justice equally to all people. That which is now to be judged by us is this: ‘Whether, where one is committed by the king’s authority, and by cause declared of his commitment, we ought to deliver him by bail, or to remand him.’”
From such a fair beginning,[41]there must have been a general anticipation of a just judgment; but, alas! his lordship, without combating the arguments, statutes, or texts of Scripture relied upon, said, “The court must be governed by precedents;”[42]and then going over all the precedents which hadbeen cited, he declared that there was not one where, there being a warrantper speciale mandatum domini regis, the judges had interfered and held it insufficient. He said he had found a resolution of all the judges in the reign of Queen Elizabeth, that if a man be committed by the commandment of the king, he is not to be delivered by ahabeas corpusin this court, “for we know not the cause of the commitment.” Thus he concluded:—
“What can we do but walk in the steps of our forefathers? Mr. Attorney hath told you the king has done it for cause sufficient, and we trust him in great matters. He is bound by law, and he bids us proceed by law; we are sworn so to do, and so is the king. We make no doubt the king, he knowing the cause why you are imprisoned, will have mercy. On these grounds we cannot deliver you, but you must be remanded.”[43]
This judgment was violently attacked in both houses of Parliament. In the House of Lords the judges were summoned, and required to give their reasons for it. Sir Nicholas Hyde endeavored to excuse himself and his brethren from this task by representing it as a thing they ought not to do without warrant from the king. Lord Say observed, “If the judges will not declare themselves, we must take intoconsideration the point of our privilege.” To soothe the dangerous spirit which disclosed itself, Buckingham obtained leave from the king that the judges should give their reasons, and Sir Nicholas Hyde again went over all the authorities which had been cited in the King’s Bench in support of the prerogative. These were not considered by any means satisfactory; but, as the chief justice could no longer be deemed contumacious, he escaped the commitment with which he had been threatened. Sir Edward Coke,[44]and the patriots in the House of Commons, were not so easily appeased, and they for some time threatened Lord Chief Justice Hyde and his brethren with an impeachment; but it was hoped that all danger to liberty would be effectually guarded against for the future by compelling the reluctant king to agree to thePetition of Right. Before Charles would give the royal assent to it—meaning not to be bound by it himself, but afraid that the judges would afterwards put limits to his power of arbitrary imprisonment—he sent for Chief Justice Hyde and Chief Justice Richardson, of the Common Pleas, to Whitehall, and directed them to return to him the answer of themselves and their brethren to this question, “Whether in no case whatsoever the king may commit a subject without showing cause.” The answer shows that they had been daunted by the denunciations of Sir Edward Coke, and that they were driven to equivocate: “We are of opinion that, by the general rule of law, the cause of commitment by his majesty ought to be shown; yet some cases may require such secrecy that theking may commit a subject without showing the cause, for a convenient time.” Charles then delivered to them a second question, and desired them to keep it very secret, “Whether, if to ahabeas corpusthere be returned a warrant from the king without any special cause, the judges ought to liberate him before they understand from the king what the cause is.” They answered, “If no cause be assigned in the warrant, the party ought, by the general rule of law, to be liberated; but, if the case requireth secrecy, and may not presently be disclosed, the court, in its discretion, may forbear to liberate the prisoner for a convenient time, till they are advertised of the truth thereof.” He then came to the point with his third question, “Whether, if the king grant the Commons’Petition, he doth not thereby exclude himself from committing or restraining a subject without showing a cause.” Hyde reported this response: “Every law, after it is made, hath its exposition, which is to be left to the courts of justice to determine; and, although thePetitionbe granted, there is no fear of conclusion, as is intimated in the question.”