Atrocious Judges Part 2

"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. a.s.sembled, 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, was erroneous 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, was still 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 antic.i.p.ated 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 a.s.sault; 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 he ordered the sheriffs of London to go thither and kill all they could lay hands on. The truth was, that Sir Nicholas Brambre, in concert with Tresilian, had planted an ambush near Charing Cross, to a.s.sa.s.sinate the lords as they pa.s.sed; 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 a.s.sembled at Westminster Hall, and the king had taken his place on the throne, the five lords, who were called APPELLANTS, "entered in costly robes, leading one another hand in hand, an innumerable company following them, and, approaching the king, they all with submissive 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 a.s.sembled, 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 him to the utmost of your power; and if any will do any thing against the bodies of the five lords, you shall stand with them to the end of this present Parliament, and maintain and support them with all your power, to live and die with them against all men, no person or thing excepted, saving always your legiance to the king and the prerogatives of his crown, according to the laws and good customs of the realm.'"

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 a.s.sent 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 inst.i.tuted, and whether the facts stated in the articles amounted to high treason. Ten days thereafter, judgment was given "that the impeachment was duly inst.i.tuted, 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 p.r.o.nounced, "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, none of 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 a.s.sociate, Sir Nicholas Brambre.

This chivalrous citizen, who had been knighted for the bravery he had displayed in a.s.sisting 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 d.a.m.nable 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 G.o.d."

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 pa.s.sed 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 pa.s.sed against him. His wife and his children did with many tears accompany him to the Tower; but his wife was so overcome with grief, that she fell down in a swoon as if she had been dead. Immediately Tresilian is put upon an hurdle, and drawn through the streets of the city, with a wonderful concourse of people following him. At every furlong's end he was suffered to stop, that he might rest himself, and to see if he would confess or acknowledge any thing; but what he said to the friar, his 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.

CHAPTER III.

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 treatise _De Laudibus Legion Angliae_, (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 rightly deposed, that Henry IV. had been called to the throne by the estates of the kingdom and the almost unanimous voice of the people, and that now, in the third generation, the t.i.tle 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 ill.u.s.trations 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 new _regime_.

He held the office above seven years, with unabated credit. Not only was his hand free from bribes, but so was his mind from every 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 prost.i.tute it to the purpose of the king and the ministers in wreaking their vengeance on the head of a political opponent. Sir Thomas Cooke, who inclined to the Lancastrians, though he had conducted himself with great caution, was accused of treason and committed to the Tower. To try him a special commission was issued, over which Lord Chief Justice Markham presided, and the government was eager for a conviction. But all that could be proved against the prisoner was, that he entered into a treaty to lend, on good security, a sum of 1000 marks for the use of Margaret, the queen of the dethroned Henry VI. The security was not satisfactory, and the money was not advanced. The chief justice ruled that this did not amount to treason, but was at most misprision of treason. Of this last offence the prisoner being found guilty, he was subjected to fine and imprisonment; but he saved his life and his lands. King Edward IV. was in a fury, and swearing that Markham, notwithstanding his high pretensions to loyalty, was himself little better than a traitor, ordered that he should never sit on the bench any more; and appointed in his place a successor, who, being a _puisne_, 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 ill.u.s.trated 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; thus making 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 t.i.tle 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 other Lancastrian 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 princ.i.p.al law adviser to Edward IV. When Parliament a.s.sembled, receiving a writ of summons to the House of Lords, he a.s.sisted in framing the acts by which Sir J. Fortescue and the princ.i.p.al Lancastrians, his patrons, were attainted, and the last three reigns were p.r.o.nounced 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 be for the public tranquillity if the law were properly enforced. It would have appeared very ungracious, as well as arbitrary, to displace the chief justice, who had been such a friend to the house of York, and was so generally respected. That there might be one judge to be relied upon, who might be put into 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 compa.s.sing 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 master of 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 great wealth he had acc.u.mulated, 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, a _supersedeas_ to Sir John Markham was made out immediately after the trial of _Rex_ v. _Cooke_, and the same day a writ pa.s.sed the great seal, whereby "the king's trusty and well-beloved Sir Thomas Billing, Knight, was a.s.signed as chief justice to hold pleas before the king himself."