Atrocious Judges Part 5

The judges having thus pledged themselves to repeal the act for him by misconstruing it,[45] he allowed it to be added to the statute book. No sooner was the Parliament that pa.s.sed it abruptly dissolved than it was flagrantly violated, and Selden, Sir John Eliot, and other members of the House of Commons, were arrested for the speeches they had delivered, and for requiring the speaker to put from the chair a motion which had been made and seconded. This proceeding was more alarming to public liberty than any thing that had been before attempted by the crown; if it succeeded, there was no longer the hope of any redress in Parliament for the corrupt decisions of the common law courts.

To make all sure by an extrajudicial opinion,[46] Lord Chief Justice Hyde and the other judges were a.s.sembled at Serjeants' Inn, and, by the king's command, certain questions were put to them by the attorney general. The answers to these, given by the mouth of the chief justice, if acted upon, would forever have extinguished the privilege and the independence of the House of Commons: "That a Parliament man committing an offence against the king in Parliament, not in a parliamentary course, may be punished after the Parliament is ended; for, though regularly he cannot be compelled out of Parliament to answer things done in Parliament in a parliamentary course, it is otherwise where things are done exorbitantly;" and "that by false slanders to bring the lords of the council and the judges, not in a parliamentary way, into the hatred of the people, and the government into contempt, was punishable out of Parliament, in the Star Chamber, as an offence committed in Parliament beyond the office, and besides the duty, of a Parliament man."

The parties committed were brought up by _habeas corpus_, and, the public being much scandalized, an offer was made that they might be bailed; but, they refusing to give bail, which they said would be compromising the privileges of the House of Commons, Lord Chief Justice Hyde remanded them to jail.

The attorney general having then filed an ex-officio information against them for their misconduct in Parliament, they pleaded to the jurisdiction of the court "because these offences, being supposed to be done in Parliament, ought not to be punished in this court, or elsewhere than in Parliament."

Chief Justice Hyde tried at once to put an end to the case by saying that "all the judges had already resolved with one voice, that an offence committed in Parliament, criminally or contemptuously, the Parliament being ended, rests punishable in the Court of King's Bench, in which the king by intendment sitteth."

The counsel for the defendants, however, would be heard, and were heard in vain; for Chief Justice Hyde treated their arguments with scorn, and concluded by observing, "As to what was said, that an 'inferior court cannot meddle with matters done in a superior,' true it is that an inferior court cannot meddle with the _judgments_ of a superior court; but if particular members of a superior court offend, they are ofttimes punishable in an inferior court--as if a judge shall commit a capital offence in this court, he may be arraigned thereof at Newgate. The behavior of Parliament men ought to be parliamentary. Parliament is a higher court than this, but every member of Parliament is not a court, and if he commit an offence we may punish him. The information charges that the defendants acted _unlawfully_, and they could have no privilege to violate the law. No outrageous speeches have been made against a great minister of state in Parliament that have not been punished." The plea being overruled, the defendants were sentenced to be imprisoned during the king's pleasure, and to be fined, Sir John Eliot in 2000, and the others in smaller sums.

This judgment was severely condemned by the House of Commons at the meeting of the Long Parliament, and was afterwards reversed, on a writ of error, by the House of Lords. But Lord Chief Justice Hyde escaped the fate of his predecessor, Chief Justice Tresilian, who was hanged for promulgating similar doctrines, for he was carried off by disease when he had disgraced his office four years and nine months. He died at his house in Hampshire, on the 25th of August, 1631.

In justice to the memory of Sir Nicholas Hyde, I ought to mention that he was much respected and lauded by true courtiers. Sir George Croke describes him as "a grave, religious, discreet man, and of great learning and piety." Oldmixon p.r.o.nounces him to have been "a very worthy magistrate," and highly applauds his judgment in favor of the power of the crown to imprison and prosecute Parliament men for what they have done in the House of Commons.

CHAPTER VII.

JOHN BRAMPSTON.

On the vacancy in the office of chief justice of the King's Bench, created by the death of Sir Thomas Richardson, A. D. 1635, the king and his ministers were exceedingly anxious to select a lawyer fitted to be his successor. Resolved to raise taxes without the authority of Parliament, they had launched their grand scheme of ship money, and they knew that its validity would speedily be questioned. To lead the opinions of the judges, and to make a favorable impression on the public, they required a chief on whose servility they could rely, and who, at the same time, should have a great reputation as a lawyer, and should be possessed of a tolerable character for honesty. Such a man was Mr. Serjeant Brampston.

He was born at Maldon, in Ess.e.x, of a family founded there in the reign of Richard II. by a citizen of London, who had made a fortune in trade and had served the office of sheriff. When very young, he was sent to the university of Cambridge; and there he gained high renown by his skill in disputation, which induced his father to breed him to the bar.

Accordingly, he was transferred to the Middle Temple, and studied law there for seven years with unwearied a.s.siduity. At the end of this period, he was called to the bar, having then ama.s.sed a store of law sufficient to qualify him at once to step upon the bench. Different public bodies strove to have the benefit of his advice; and very soon he was standing counsel for his own university, and likewise for the city of London, with an annual fee _pro concilio impenso et impendendo_, (for counsel given and to be given.) Having been some years an "apprentice," he took the degree of serjeant at law.

According to a practice very common in our profession, he had, in the language of Mr. Gurney, the famous stenographer, "started in the sedition line," that is, defending persons prosecuted for political offences by the government. He was counsel for almost all the patriots who, in the end of the reign of James I. and the beginning of the reign of Charles I., were imprisoned for their refractory conduct in the House of Commons; and one of the finest arguments to be found in our books is one delivered by him in Sir Thomas Darnel's case, to prove that a warrant of commitment by order of the king, without specifying the offence, is illegal.

He refused a seat in the House of Commons, as it suited him better to plead for those who were in the Tower than to be sent thither himself. By and by, the desire of obtaining the honors of the profession waxed strong within him, and he conveyed an intimation, by a friend, to the lord keeper that it would be much more agreeable to him to be retained for the government than to be always against it. The offer was accepted; he was taken into the counsels of Noy, the attorney general, and he gave his a.s.sistance in defending all stretches of prerogative. Promotions were now showered down upon him; he was made chief justice of Ely, attorney general to the queen, king's serjeant, and a knight. Although very zealous for the crown, and really unscrupulous, he was anxious to observe decency of deportment, and to appear never to transgress the line of professional duty.

Noy[47] would have been the man to be appointed chief justice of the King's Bench to carry through his tax by a judicial decision in its favor, but he had suddenly died soon after the ship money writs were issued; and, after him, Sir John Brampston was deemed the fittest person to place at the head of the common law judges. On the 18th of April, 1635, his installation took place, which was, no doubt, very splendid; but we have no account of it except the following by Sir George Croke:--

"First, the lord keeper made a grave and long speech, signifying the king's pleasure for his choice, and the duties of his place; to which, after he had answered at the bar, returning his thanks to the king, and promising his endeavor of due performance of his duty in his place, he came from the bar into court, and there kneeling, took the oaths of supremacy and allegiance: then standing, he took the oath of judge: then he was appointed to come up to the bench, and then his patent (which was only a writ) being read, the lord keeper delivered it to him. But Sir William Jones (the senior puisne judge) said the patent ought to have been read before he came up to the bench."[48]

In quiet times, Lord Chief Justice Brampston would have been respected as an excellent judge. He was above all suspicion of bribery, and his decisions in private causes were sound as well as upright. But, unhappily, he by no means disappointed the expectations of the government.[49]

Soon after his elevation, he was instructed to take the opinion privately of all the judges on the two celebrated questions:--

"1. Whether, in cases of danger to the good and safety of the kingdom, the king may not impose ship money for its defence and safeguard, and by law compel payment from those who refuse? 2. Whether the king be not the sole judge both of the danger, and when and how it is to be prevented?"

There is reason to think that he himself was taken in by the craft of Lord Keeper Coventry, who represented that the opinion of the twelve judges was wanted merely for the king's private satisfaction, and that no other use would be made of it. At a meeting of all the judges in Serjeant's Inn Hall, Lord Chief Justice Brampston produced an answer to both questions in the affirmative, signed by himself. Nine other judges, without any hesitation, signed it after him; but two, Croke and Hutton, declared that they thought the king of England never had such a power, and that, if he ever had, it was taken away by the act _De Tallagio non concedendo_, the Pet.i.tion of Right, and other statutes; but they were induced to sign the paper upon a representation that their signature was a mere formality.

The unscrupulous lord keeper, having got the paper into his possession, immediately published it to the world as the unanimous and solemn decision of all the judges of England; and payment of ship money was refused by John Hampden alone.

His refusal brought on the grand trial, in the Exchequer Chamber, upon the validity of the imposition. Lord Chief Justice Brampston, in a very long judgment, adhered to the opinion he had before given for the legality of the tax, although he characteristically expressed doubt as to the regularity of the proceeding on technical grounds. Croke and Hutton manfully insisted that the tax was illegal; but, all the other judges being in favor of the crown, Hampden was ordered to pay his 20_s._

Soon after, the same point arose in the Court of King's Bench in the case of the Lord Say, who, envying the glory which Hampden had acquired, allowed his oxen to be taken as a distress for the ship money a.s.sessed upon him, and brought an action of trespa.s.s for taking them. But Banks, the attorney general, moved that counsel might not be permitted to argue against what had been decided in the Exchequer Chamber; and Lord Chief Justice Brampston said, "Such a judgment should be allowed to stand until it were reversed in Parliament, and none ought to be suffered to dispute against it."[50]

The crown lawyers were thrown into much perplexity by the freak of the Rev. Thomas Harrison, a country parson, who can hardly be considered a fair specimen of his order at that time, and must either have been a little deranged in his intellect, or animated by an extraordinary eagerness for ecclesiastical promotion. Having heard that Mr. Justice Hutton, while on the circuit, had expressed an opinion unfavorable to ship money, he followed him to London, and, while this reverend sage of the law was seated with his brethren on the bench of the Court of Common Pleas, and Westminster Hall was crowded with lawyers, suitors, and idlers, marched up to him, and making proclamation, "_Oyez! Oyez! Oyez!_" said with a loud voice, "Mr. Justice Hutton, you have denied the king's supremacy, and I hereby charge you with being guilty of high treason." The attorney general, however much he might secretly honor such an ebullition of loyalty, was obliged to treat it as an outrage, and an _ex officio_ information was filed against the delinquent for the insult he had offered to the administration of justice. At the trial the reverend defendant confessed the speaking of the words, and gloried in what he had done, saying,--

"I confess that judges are to be honored and revered as sacred persons so long as they do their duty; but having taken the oath of supremacy many times, I am bound to maintain it, and when it is a.s.sailed, as by the denying of ship money, it is time for every loyal subject to strike in."

_Brampston, C. J._--"The denying of ship money may be, and I think is, very wrong; but is it against the king's supremacy?" _Harrison._--"As a loyal subject, I did labor the defence of his majesty, and how can I be guilty of a crime? I say again that Mr. Justice Hutton has committed treason, for upon his charge the people of the country do now deny ship money. His offence being openly committed, I conceived it not amiss to make an open accusation. The king will not give his judges leave to speak treason, nor have they power to make or p.r.o.nounce laws against his prerogative. We are not to question the king's actions; they are only between G.o.d and his own conscience. '_Sufficit regi, quod Deus est._' This thesis I will stand to--that whatsoever the king in his conscience thinketh he may require, we ought to yield."[51]

The defendant having been allowed to go on in this strain for a long time, laying down doctrines new in courts of justice, although in those days often heard from the pulpit, the chief justice at last interposed, and said,--

"Mr. Harrison, if you have any thing to say in your own defence, proceed; but this raving must not be suffered. Do you not think that the king may govern his people by law?" _Harrison._--"Yes, and by something else too.

If I have offended his majesty in this, I do submit to his majesty, and crave his pardon." _Brampston, C. J._--"Your 'If' will be very ill taken by his majesty; nor can this be considered a submission."

The defendant, being found guilty, was ordered to pay a fine to the king of 5000, and to be imprisoned--without prejudice to the remedy of Mr.

Justice Hutton by action. Such an action was accordingly brought, and so popular was Mr. Justice Hutton, that he recovered 10,000 damages; whereas it was said that, if the chief justice had been the plaintiff in an action for defamation, he need not have expected more than a Norfolk groat.

Lord Chief Justice Brampston's services were likewise required in the Star Chamber. He there zealously a.s.sisted Archbishop Laud in persecuting Williams, Bishop of Lincoln, ex-keeper of the great seal. When the sentence was to be pa.s.sed on this unfortunate prelate, ostensibly for tampering with the witnesses who were to give evidence against him on a former accusation, which had been abandoned as untenable, but in reality for opposing Laud's Popish innovations in religious ceremonies, Brampston declaimed bitterly against the right reverend defendant, saying,--

"I find my Lord Bishop of Lincoln much to blame in persuading, threatening, and directing of witnesses--a foul fault in any, but in him most gross who hath _curam animarum_ throughout all his diocese. To destroy men's souls is most odious, and to be severely punished. I do hold him not fit to have the cure of souls, and therefore I do censure him to be suspended _tam ab officio quam a beneficio_, to pay a fine of 10,000, and to be imprisoned during the king's pleasure."

This sentence, although rigorously executed, did not satiate the vengeance of the archbishop; and the bishop, while lying a prisoner in the Tower, having received some letters from one of the masters of Westminster School, using disrespectful language towards the archbishop, and calling him "a little great man," a new information was filed against the bishop for not having disclosed these letters to a magistrate, that the writer might have been immediately brought to justice. Of course he was found guilty; and when the deliberation arose about the punishment, thus spoke Lord Chief Justice Brampston:--

"The concealing of the libel doth by no means clear my Lord Bishop of Lincoln, for there is a difference between a letter which concerns a private person and a public officer. If a libellous letter concern a private person, he that receives it may conceal it in his pocket or burn it; but if it concern a public person, he ought to reveal it to some public officer or magistrate. Why should my Lord of Lincoln keep these letters by him, but to the end to publish them, and to have them at all times in readiness to be published? I agree in the proposed sentence, that, in addition to a fine of 5000 to the king, he do pay a fine of 3000 to the archbishop, seeing the offence is against so honorable a person, and there is not the least cause of any grievance or wrong that he hath done to my Lord of Lincoln. For his being degraded, I leave it to those of the Ecclesiastical Court to whom it doth belong. As to the pillory, I am very sorry and unwilling to give such a sentence upon any man of his calling and degree. But when I consider the quality of the person, and how much it doth aggravate the offence, I cannot tell how to spare him; for the consideration that should mitigate the punishment adds to the enormity of the offence."

As no clerical crime had been committed for which degradation could be inflicted, and as it was thought not altogether decent that a bishop, wearing his lawn sleeves, his rochet, and his mitre, should stand on the pillory, to be pelted with brickbats and rotten eggs, the lord chief justice was overruled respecting this last suggestion, and the sentence was limited to the two fines, with perpetual imprisonment. The defendant was kept in durance under it till the meeting of the Long Parliament, when he was liberated; and, becoming an archbishop, he saw his persecutor take his place in the Tower, while he himself was placed at the head of the Church of England.

Now came the time when Lord Chief Justice Brampston himself was to tremble. The first grievance taken up was ship money; and both houses resolved that the tax was illegal, and that the judgment against Hampden for refusing to pay it ought to be set aside. Brampston was much alarmed when he saw Strafford and Laud arrested on a charge of high treason, and Lord Keeper Finch obliged to fly beyond the seas.

The next impeachment voted was against Brampston himself and five of his brethren; but they were more leniently dealt with, for they were only charged with "high crimes and misdemeanors;" and happening to be in the House of Lords when Mr. Waller brought up the impeachment, it was ordered "that the said judges for the present should enter into recognizances of 10,000 each to abide the censure of Parliament." This being done, they enjoyed their liberty, and continued in the exercise of their judicial functions; but Mr. Justice Berkeley, who had made himself particularly obnoxious by his indiscreet invectives against the Puritans,[52] was arrested while sitting on his tribunal in Westminster Hall, and committed a close prisoner to Newgate.

Chief Justice Brampston tried to mitigate the indignation of the dominant powers by giving judgment in the case of _Chambers_ v. _Sir Edward Brunfield, Mayor of London_, against the legality of ship money. To an action of trespa.s.s and false imprisonment, the defendant justified by his plea under "a writ for not paying of money a.s.sessed upon the plaintiff towards the finding of a ship." There was a demurrer to the plea, so that the legality of the writ came directly in issue. The counsel for the defendant rose to cite Hampden's case and Lord Say's case, in which all their lordships had concurred, as being decisive in his favor; but Brampston, C. J., said,--

"We cannot now hear this case argued. It hath been voted and resolved in the upper House of Parliament and in the House of Commons, _nullo contradicente_, that the said writ, and what was done by color thereof, was illegal. Therefore, without further dispute thereof, the court gives judgment for the plaintiff."[53]

The Commons were much pleased with this submissive conduct, but _pro forma_ they exhibited articles of impeachment against the chief justice.

To the article founded on ship money he answered, "that at the conference of the judges he had given it as his opinion that the king could only impose the charge in case of necessity, and only during the continuance of that necessity."

The impeachment was allowed to drop; and the chief justice seems to have coquetted a good deal with the parliamentary leaders, for, after the king had taken the field, he continued to sit in his court at Westminster, and to act as an attendant to the small number of peers who a.s.sembled there, const.i.tuting the House of Lords.

But when a battle was expected, Charles, being told that the chief justice of England was chief coroner, and, by virtue of his office, on view of the body of a rebel slain in battle, had authority to p.r.o.nounce judgment of attainder upon him, so as to work corruption of blood and forfeiture of lands and goods, thought it would be very convenient to have such an officer in the camp, and summoned Lord Chief Justice Brampston to appear at head quarters in Yorkshire. The Lords were asked to give him leave of absence, to obey the king's summons, but they commanded him to attend them day by day at his peril. He therefore sent his two sons to make his excuse to the king. His majesty was highly incensed by his asking leave of the Lords, and--considering another apology that he made, about the infirmity of his health and the difficulty of travelling in the disturbed state of the country, a mere pretence--by a _supersedeas_ under the great seal dismissed him from his office, and immediately appointed Sir Robert Heath to be chief justice of England in his stead.

Brampston must now have given in his full adhesion to the parliamentary party, for in such favor was he with them, that, when the treaty of Uxbridge was proceeding, they made it one of their conditions that he should be reappointed lord chief justice of the Court of King's Bench.

Having withdrawn entirely from public life, he spent the remainder of his days at his country house in Ess.e.x. There he expired, on the 2d of September, 1654, in the 78th year of his age. If courage and principle had been added to his very considerable talents and acquirements, he might have gained a great name in the national struggle which he witnessed; but, from his vacillation, he fell into contempt with both parties; and, although free from the imputation of serious crimes, there is no respect entertained for his memory.

CHAPTER VIII.

ROBERT HEATH.