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ATROCIOUS JUDGES.
Lives of Judges Infamous As Tools of Tyrants and Instruments
of Oppression.
Compiled from the Judicial Biographies of
JOHN LORD CAMPBELL,
Lord Chief Justice of England.
With an Appendix, Containing the Case of Passmore Williamson.
Edited, with an Introduction and Notes, by Richard Hildreth.
New York and Auburn:
Miller, Orton & Mulligan.
New York: 25 Park Row.--Auburn: 107 Genesee Street.
1856.
Entered, according to Act of Congress, in the Year 1855, by
Richard Hildreth,
In the Clerk's Office of the District Court of the District of
Massachusetts.
Stereotyped at the
Boston Stereotype Foundry.
ADVERTISEMENT.
The text of the following BOOK OF JUDGES has been derived from Lord
Campbell's _Lives of the Chief Justices, and Lives of the Chancellors_,
with only a few verbal alterations for the sake of connection, some
transpositions, the omission of some details of less interest to the
American reader, and the insertion of a few paragraphs, enclosed in
brackets, thus [ ].
Most biographers have been arrant flatterers. Lord Campbell is a
distinguished member of that modern school, which holds that history is of
no dignity nor use, except so far as it is true; and that the truth is to
be told at all hazards and without reserve. Hitherto social and political
position, obtained no matter by what means, has in general secured not
only present but future reputation. It can hardly fail to be a serious
check upon those who struggle for distinction to understand, that,
however they may cheat or dazzle their contemporaries, they must expect to
encounter from posterity a Rhadamantine judgment.
The object of the present work, prepared as it is in the interest of
justice and freedom, and designed to hold up a mirror to magistrates now
sitting on the American bench, in which "to show virtue her own feature,
scorn her own image, and the very life and body of the time his form and
pressure," will, I hope, induce Lord Campbell to pardon the liberty I have
ventured to take with his writings.
R. H.
BOSTON, _November 20, 1855_.
CONTENTS.
INTRODUCTION.
The administration of justice the great end of government, page 9.
Polity of the Anglo-Saxons, 10. County courts, 12. Policy of the
Norman conquerors, 13. Their scheme for the administration of justice,
14. Aula Regis, or King's Court, 15. Law proceedings become a mystery,
16. Division of the Aula Regis, 18. King's Bench, 18. Common Pleas,
19. Exchequer, 19. Court of Chivalry, or Honor Court, 19. Origin of
the legal profession as it exists at present--Inns of Court, 20.
Special Pleadings, 21. Serjeants, Barristers, and Attorneys, 22.
Justices of the peace, 23. Appeals to Parliament, 24. Trial by jury,
25. Nisi prius trials, 27. Usurpations of the courts upon each other,
28. Court of Chancery, 30. Court of Admiralty, 31. Use of torture, 32.
Suits for slander in the Court of Chivalry, 33. The courts the ready
tools of executive usurpation, 34. Courts of Star Chamber and High
Commission, 34. Sources and object of the present compilation, 35.
Bearing of the following narratives on passing events, 35.
CHAPTER I.
ROGER LE BRABANCON.
His ancestry, page 37. Made a judge, 37. Edward I. claims sovereignty
over Scotland, 39. The family of Bruce, 40. Robert de Brus, 41.
Contest for the Scottish throne, 43. Brabancon maintains Edward's
claim, 44. Is rewarded with the office of chief justice, 47.
CHAPTER II.
ROBERT TRESILIAN.
Appointed chief justice, 48. Ready for any dirty work, 49. Judicial
opinion in favor of the arbitrary power of the King, 50. Preparations
for judicial murders, 53. The barons march on London, 54. Tresilian
appealed of high treason, 56. Found guilty, 57. Arrest and execution,
59.
CHAPTER III.
THOMAS BILLING.
Lancastrians and Yorkists, 61. Fortescue and Markham, 61. Removal of
Markham, 63. Billing a judge, 64. His infamous character, 64. His
previous life, 64. Begins a Lancastrian, 65. The Yorkists having
triumphed, becomes a Yorkist, 66. Made a judge, 67. Trial of Walker,
67. A court favorite, 68. Chief justice, 69. Trial of Sir Thomas
Burdett, 69. Lancastrian revolution, 71. Billing changes, and keeps
his place, 72. Yorkist revolution, 72. Billing changes again, and
keeps his place, 73. Procures a pardon for Fortescue, 73. His law
decisions, 74. Trial of the Duke of Clarence, 74. Billing's death, 75.
CHAPTER IV.
JOHN FITZJAMES.
A friend of Wolsey's, 76. Who makes him attorney general, 77.
Prosecution of Buckingham, 77. Made a judge, 77. Chief justice, 78.
Turns against Wolsey after his fall, 78. Ecclesiastical pretensions
of Henry VIII., 80. Trial of Fisher, 81. Trial of Sir Thomas More, 83.
Trials of the supposed gallants of Anne Boleyn, 85. Fitzjames's
opinion as to the mode of Anne Boleyn's execution, 85. His death, 85.
CHAPTER V.
THOMAS FLEMING.
A rival of Bacon's, 87. His origin and progress, 87. Solicitor
general, 88. Speaker of the House of Commons, 89. Bacon his rival
there, 90. Fleming chief baron of the Exchequer, 90. His judgment in
the case of impositions, 91. Made chief justice, 94. Case of the
Postnati, 94. Trial of the Countess of Shrewsbury, 95. Wholly eclipsed
by Sir Edward Coke, 95. His death, 96.
CHAPTER VI.
NICHOLAS HYDE.
Plan of Charles I. to rule without Parliaments, 97. Sir Randolph
Crewe, chief justice, discharged to make room for Hyde, 98. His family
and previous career, 98. Case of Sir Thomas Darnel, 99. Petition of
Right, 102. Hyde's opinion that it would not be binding on the king,
103. Proceedings against Selden and others, 103. Hyde's death, 106.
Much applauded by true courtiers, 106.
CHAPTER VII.
JOHN BRAMPSTON.
Charles I. perseveres in his arbitrary schemes, 107. Brampston's
previous life, 107. Appointed chief justice, 109. Contrast between his
personal and political character, 109. Opinion in favor of ship money,
110. Trial of Hampden, 111. Lord Say's case, 111. Trial of Rev. Thomas
Harrison, 112. Brampston as a Star Chamber judge, 113. Case of the
Bishop of Lincoln, 114. Long Parliament, 115. Brampston impeached,
116. Turns about on the question of ship money, 116. Parliament
appeased, 117. Summoned by Charles to join him at his camp, 117.
Superseded, 118. Death and character, 118.
CHAPTER VIII.
ROBERT HEATH.
His origin and high prerogative principles, 119. Solicitor general,
120. Attorney general, 121. His share in the trial of Darnel, 121.
Holds the petition of right illegal, 122. His part in the trial of
Selden and his followers, 123. Schemes for raising money, 125. Chief
justice of the Common Pleas, 126. His removal from office, 127.
Returns to practice, 128. Judge of the King's Bench, 128. Chief
justice, 129. His acts as such, 129. Flies to the continent, 131.
Death and character, 131.
CHAPTER IX.
ROBERT FOSTER.
Reorganization of the bench at the restoration, 132. Foster's early
life, 133. Judge of the Common Pleas, 134. Joins the king at Oxford,
134. Removed by Parliament, 134. Returns to practice, 134. Reappointed
a judge by Charles II., 134. Chief justice, 134. Trial of Vane, 135.
Case of John Crook, 138. Case of Tonge and others, 139. Death, 140.
CHAPTER X.
ROBERT HYDE.
His connections and early history, 142. A judge of the Common Pleas,
141. Chief justice of the King's Bench--his installation, 143. Trial
of a printer, 144. Trial of Keach for libel, 146. Introduces the
practice of fining juries, 150. Cried up as an eminent judge, 151.
Drops dead, 151.
CHAPTER XI.
JOHN KELYNGE.
Appointed a judge, 152. Previous career, 153. Conducts the prosecution
of Colonel Hacker, 154. Made chief justice over Sir Matthew Hale's
head, 156. His behavior, 156. Moorfields rioters held guilty of
treason, 157. American application of this doctrine, 158, _note_.
Treatment of juries, 159. Conduct investigated by the House of
Commons, 161. Tame for the rest of his days, 162. His reports, 162.
CHAPTER XII.
WILLIAM SCROGGS.
His early life, 163. Judge of the Common Pleas, 165. Chief justice of
the King's Bench, 166. Favors the Popish Plot delusion, 167. American
counterpart of that plot, 167, _note_. Trial of Godfrey, 168. Of
others, 169. Of Bromwich, 170. Scroggs changes his policy, 171.
Wakeman acquitted, 172. Scroggs attacked by the mob, 172. His defence,
173. Castlemaine acquitted, 175. Trial of Mrs. Collier, 175. Charges
to grand juries, 176. Attack on the press, 177. Conduct in
Shaftesbury's case, 178. Charges made to the Council against Scroggs,
178. His trial, 179. House of Commons inquires into his conduct, 180.
General characteristics, 181. Removal from office, 182. His subsequent
life, 183. His infamy, 184.
CHAPTER XIII.
FRANCIS NORTH.
His noble birth, 185. Early life, 186. A court keeper, 188. Called to
the bar, 189. His early practice, 189. A lickspittle, 193. A leader at
the bar, 194. Makes his fortune by avowing "loyal" principles, 195.
Solicitor general, 197. His practice, 198. His loves, 199. Marriage,
200. Insignificant as a member of Parliament, 200. Attorney general,
201. Fees in abundance, 202. Chief justice of the Common Pleas, 203.
Conduct on the bench, 203. Career as a politician, 206. Legal oracle
of the party of arbitrary power, 206. Proclamation against coffee
houses, 206. Petitioners and Abhorrers--North obstructs the right of
petition, 207. Parliamentary proceedings against him, 208. Draws a
declaration against the popular party, 209. Trial of College, the
Protestant joiner, 210. Proceedings against Shaftesbury, 212. Attack
on the municipal privileges of London, 216. North made lord
chancellor, 217. His disappointment and dissatisfaction, 219. Assists
at the inauguration of Saunders, 220. His conduct as a law reformer
and equity judge, 221. As a statesman, 223. Joins in the proceedings
against the charter of London, 224. Made a peer--Disfranchises many
towns, 226. Dismisses Burnet, 226. Rye house plot, 227. Jeffreys his
rival, 227. His mortifications, 229. Triumphs over Jeffreys in the
matter of the recusants, 230. Death of Charles II., 233. Continued in
office by James II., 234. Puts the seal to a questionable
proclamation, 235. Parliament meets, 236. North snubbed, 236. Clings
to office, 237. Still thwarted and browbeaten by Jeffreys, 237.
Further mortifications, 239. His dejection and misery, 240. Monmouth's
insurrection, 240. His conduct as to the prisoners, 241. Death and
character, 242. Jokes upon him, 244. His writings, 245. His method of
living, 245. His domestic relations, 246. Descendants, 247. His early
death, 247. His life by Roger North, 247.
CHAPTER XIV.
EDMUND SAUNDERS.
Motives of his appointment, 248. Early history, 248. Called to the
bar, 250. His practice, 251. His reports, 251. Not desirous of
preferment, 253. Counsel for the crown, 253. Advises a _quo warranto_
against the city of London, 256. Appointed chief justice, 256. His
conduct in the London case, 258. Judgment of the court pronounced by
Justice Jones, 260. Trial of Lord Grey, 260. Sudden death, 264. His
appearance and manners, 264. His reports, 266.
CHAPTER XV.
GEORGE JEFFREYS.
His parentage, 267. School days, 267. Scheme of becoming a great
lawyer, 268. A student at the Inner Temple, 268. Associates with the
popular leaders, 272. Extravagance and poverty, 272. Precocity, 272.
Admitted to the bar, 273. Difficulties and energy, 273. Marriage, 274.
Practises at the Old Bailey and London sessions, 275. His forensic
abilities, 275. Common serjeant of the city of London, 276. His
contrivances to get on, 277. Opens a communication with the court,
278. Recorder of London, 279. Repudiates the liberals, 280. His policy
as to the Popish Plot, 282. His sentences of death, 282. Conduct in a
libel case, 283. Made chief justice of Chester, 284. His overbearing
insolence, 285. Visits his father, 287. Proceedings against him in
Parliament, 287. Resigns his recordership, 288. Complimented by the
king, 289. Chairman of the Middlesex sessions, 289. Counsel for the
crown against Fitzharris, Plunkett, and College, 290. Takes part in
other Court prosecutions, 292. Rye house trials, 294. Appointed chief
justice, 298. Trial of Algernon Sidney, 298. Case of Sir Thomas
Armstrong, 300. Of Sir William Williams, 301. Charters fall like
Jericho, 302. Other trials before him, 303. Rules London with a rod of
iron, 303. Reappointed chief justice by James II., 304. Trial of Titus
Oates for perjury, 304. Baxter's trial, 305. Jeffreys raised to the
peerage, 308. He rivals North, 310. His bloody assize, 310. Lady
Lisle's trial, 311. Other incidents of the bloody assize, 314.
Proceedings at Bristol, 319. In Somersetshire, 322. Prideaux's case,
323. An apologist for Jeffreys, 323. Tutchin's case, _note_, 323.
James or Jeffreys? 324. Made lord chancellor, 326. Hangs an alderman,
328. Meeting of Parliament, 329. Scheme of dispensing with the test
act, 330. Opinions of the judges in favor of the dispensing power,
332. Embassy to the pope, 333. Court of High Commission revived, 333.
Its proceedings, 334. Lord Delamere's trial, 334. Proceedings against
the Fellows of Magdalen College, 337. Prosecution of the seven
bishops, 338. Rivals of Jeffreys, 341. Birth of the Pretender, 342.
William of Orange lands in England, 343. James attempts
reconciliation, 344. Advance of William, 345. James flies, 347. Terror
of Jeffreys, 348. Search for him, 349. His arrest, 351. Committed to
the Tower, 353. James seeks to make him a scapegoat, 355. Assailed by
the press, 356. Presented with a halter, 356. Petition against him,
357. His death, 358. Domestic life, 359. His descendants, 359. Person
and manners, 359. Merits as a civil judge, 360. Chancery reforms, 361.
His opinion in favor of allowing counsel to prisoners, 362. His infamy
deserved, 363.
CHAPTER XVI.
ROBERT WRIGHT.
His parentage, youth, vices, and marriage, 364. His practice, 365. His
pecuniary embarrassments and frauds, 365. Becomes a favorite of
Jeffreys, 366. Who makes him a judge, 368. Attends Jeffreys in his
bloody assize, 368. Made chief justice, 369. Orders an illegal
execution, 370. Aids in forcing Catholic fellows on Magdalen College,
371. Sits in the Court of High Commission, 373. Volunteers an
extrajudicial opinion in favor of the Declaration of Indulgence, 374.
Attempts to force it to be read at Serjeant's Inn Chapel, 374. Trial
of the seven bishops, 374. At first unmolested after William of Orange
lands, 386. Arrested, and dies in Newgate, 386. His profligacy, 387.
Necessity of exposing wicked judges, 387.
APPENDIX.--CASE OF PASSMORE WILLIAMSON, 389-432
INTRODUCTION
Hume observes, in his History of England, that "among a people who lived
in so simple a manner as the Anglo-Saxons, the judicial power is always of
greater importance than the legislative." The same comparison will hold
good even in communities far more advanced in civilization than the
Anglo-Saxons. It has indeed been well said that the great end of the
complicated machinery of the existing British government is to get twelve
men into a jury box. It might even be laid down as a general principle
that the freedom or servitude of a people will mainly depend upon the sort
of administration of justice which they have--especially of criminal
justice.
The whole course of British history will serve to justify this
observation, since it has not been so much by the aid of mercenary
soldiers, as by the assistance of lawyers and judges, that tyranny has
sought to introduce itself into that country. It is in the history of the
English courts, still more than in the history of the English Parliament,
that we are to trace the origin and growth of those popular rights and of
that idea of public liberty, propagated from England to America, and upon
which our Anglo-American free institutions are mainly founded.
The origin of British liberty, by an ancient, constant, and affectionate
tradition, has uniformly been traced back to the times of the
Anglo-Saxons. It was, however, by judicial, far more than by legislative
institutions, that among those progenitors of ours private rights and
public liberty were guarantied.
The smallest political subdivision among the Anglo-Saxons was the tything,
(_teothing_,) consisting of ten families, the members of which were
responsible for the good conduct of each other. The head man of this
community, denominated tything-elder, (_teothing ealdor_,) seems to have
acted as a kind of arbitrator in settling disputes about matters of a
trifling nature; but whether he had actually a court for administering
justice does not appear. Next in order came the hundred, (_hundrede_,) or,
as it was called in the north of England, the _wapentake_, in its original
constitution consisting of ten tythings, or a hundred families, associated
together by a similar bond of mutual responsibility. Its head man was
called the hundred's elder, (_hundredes ealdor_,) or simply reeve,
(_gerefa_,) that being the generic term for the officer of any district,
or indeed for any officer.[1] This gerefa, along with the bishop of the
diocese, acted as the presiding officer of the hundred court, which met
once at least every month, and had both civil and criminal jurisdiction,
and cognizance also of ecclesiastical causes, which were entitled to
precedence over every other business.
There was besides a shire or county court (_shir-gemot_) held twice every
year, or oftener if occasion required, convened by the sheriff,
(_shir-reeve_,) or, as he was sometimes also called, the alderman,
(_ealdor-man_,) who presided over it, assisted by the bishop. Here causes
were decided and business was transacted which affected the inhabitants of
several of the hundreds.
The highest court of all was that of the king, the Wittenagemot,
(_witan-gemot_,) in which he himself was present, attended by his
councillors, or _witan_. This body, which united the functions of a
legislative, judicial, and executive council, had no fixed times or place
of meeting, but was held as occasion required, wherever the king happened
to be. As to its judicial functions, it was in general only a court of
extraordinary resort; it being a rule of the Anglo-Saxon law that none
should apply for justice to the king unless he had first sought it in vain
in the local courts.[2]
Hence the hundred and county courts occupied by far the most conspicuous
position in the Anglo-Saxon judicial polity. The Anglo-Saxon shires, it
may be observed, having been originally principalities, nearly, if not
altogether, independent, but gradually united into one kingdom, were
rather tantamount to our Anglo-American states than to our counties, of
which the Saxon hundreds may be taken as the equivalent; the tythings
corresponding to our Anglo-American townships; while (to carry out the
parallel) the central authority of the king and the wittenagemot may be
considered as represented by our federal system generally.
But though the reeve and the bishop presided in the local Anglo-Saxon
courts, it was rather in the character of moderators than of judges; that
latter function being performed by the freeholders of the county, all of
whom, not less than the bishop and the reeve, had the right and were bound
to give their attendance at these courts.
"Suits," says Hume,[3] "were determined in a summary manner, without much
pleading, formality, or delay, by a majority of voices;[4] and the bishop
and alderman had no further authority than to keep order among the
freeholders, and interpose with their opinion."
These county courts, though traces of them are to be found in all the old
Teutonic states of Europe, became ultimately peculiar to England. None of
the feudal governments of continental Europe had any thing like them; and
Hume, with his usual sagacity, has remarked that perhaps this institution
had greater effects on the political system of England than has yet been
distinctly pointed out. By means of this institution, all the freeholders
were obliged to take a share in the conduct of affairs. Drawn from that
individual and independent state, so distinctive of the feudal system, and
so hostile to social order and the authority of law, they were made
members of a political combination, and were taught in the most effectual
manner the duty and advantages of civic obedience by being themselves
admitted to a share of civic authority. Perhaps, indeed, in this
Anglo-Saxon institution of hundred and county courts we are to seek the
origin of that system of local administration and self-government still
more fully carried out in America than in England, by which English and
Anglo-American institutions are so strongly distinguished from those of
Europe, and in the judicious combination of which with a central
administration, for matters of general concern, British and American
liberty, as a practical matter, mainly consists.
One of the first procedures of the Norman Conqueror, by way of fixing his
yoke upon the shoulders of the English people, was gradually to break down
and belittle this local administration of justice. He did not venture,
indeed, to abolish institutions so venerable and so popular, but he
artfully effected his purpose by other means. He began by separating the
civil and ecclesiastical jurisdictions. The bishops, according to a
fashion recently introduced on the continent, were authorized to hold
special courts of their own. These courts were at first limited to cases
in which ecclesiastical questions were involved, or to which clergymen
were parties but by the progress of an artful system of usurpations,
familiar to the courts of all ages and nations, they gradually extended
their authority to many purely lay matters, under pretence that there was
something about them of an ecclesiastical character. It was under this
pretence that the English ecclesiastical courts assumed jurisdiction of
the important matters of marriage and divorce, of wills, and of the
distribution of the personal property of intestates--a jurisdiction which
they still retain in England, and which, though we never had any
ecclesiastical courts in the United States of America, has left deep
traces upon our law and its administration as to these subjects.
In establishing these separate ecclesiastical courts, the Conqueror made a
serious departure from his leading idea of centralization; and he thereby
greatly contributed to build up a distinct theocratic power, which
afterwards, while intrenching on the rights of the laity, intrenched also
very seriously on the authority of his successors on the throne. But this
was a danger which either he did not foresee--since he possessed, though
his next successor relinquished it, the sole power of appointing
bishops--or which he overlooked in his anxiety to diminish the importance
of the old Saxon tribunals.
Both the civil and criminal authority of the local courts was greatly
curtailed. Their jurisdiction in criminal cases was restricted to small
matters, and even as to questions of property was limited to cases in
which the amount in dispute did not exceed forty shillings; though,
considering the superior weight of the shilling at that time, the greater
comparative value in those ages of the precious metals, and the poverty of
the country, this was still a considerable sum.
The general plan for the administration of justice of the Anglo-Norman
government was a court baron in each of the baronies into which the
kingdom was now parcelled out, to decide such controversies as arose
between the several vassals or subjects of the same barony. Hundred courts
and county courts still continued from the Saxon times, though with
restricted authority, to judge between the subjects of different baronies;
and a court composed of the king's great officers to give sentence among
the barons themselves. Of this court, which ultimately became known as
_Curia Regis_, (King's Court,) and sometimes as _Aula Regis_, (King's
Hall,) because it was held in the hall of the king's palace, and of its
instrumentality in extending the royal authority, Hume[5] gives the
following account: "The king himself often sat in his court, which always
attended his person: he there heard causes and pronounced judgment; and
though he was assisted by the advice of the other members, it is not to be
imagined that a decision could easily be obtained contrary to his
inclination or opinion.[6] In the king's absence, the chief justiciary
presided, who was the first magistrate of the state, and a kind of
viceroy, on whom depended all the civil affairs of the kingdom.[7] The
other chief officers of the crown, the constable, marshal, seneschal, or
steward, chamberlain, treasurer, and chancellor, were members, together
with such feudal barons as thought proper to attend, and the barons of the
exchequer, who at first were also feudal barons appointed by the king.
This court, which was sometimes called the King's Court, sometimes the
Court of Exchequer, judged in all causes, civil and criminal, and
comprehended the whole business which is now shared out among four
courts--the Chancery, the King's Bench, the Common Pleas, and the
Exchequer.
"Such an accumulation of powers was itself a great source of authority,
and rendered the jurisdiction of the court formidable to all the subjects;
but the turn which judicial trials took soon after the conquest served
still more to increase its authority, and to augment the royal
prerogatives. William, among the other violent changes which he attempted
and effected, had introduced the Norman law into England, had ordered all
the pleadings to be in that tongue, and had interwoven with the English
jurisprudence all the maxims and principles which the Normans, more
advanced in cultivation, and naturally litigious, were accustomed to
observe in the administration of justice.
"Law now became a science,[8] which at first fell entirely into the hands
of the Normans, and even after it was communicated to the English,
required so much study and application that the laity of those ignorant
ages were incapable of attaining it, and it was a mystery almost solely
confined to the clergy, and chiefly to the monks.
"The great officers of the crown, and the feudal barons who were military
men, found themselves unfit to penetrate into these obscurities; and
though they were entitled to a seat in the supreme judicature, the
business of the court was wholly managed by the chief justiciary and the
law barons, who were men appointed by the king, and entirely at his
disposal. This natural course of things was forwarded by the multiplicity
of business which flowed into that court, and which daily augmented by the
appeals from all the subordinate judicatures of the kingdom. For the great
power of the Conqueror established at first in England an authority which
the monarchs in France were not able to attain till the reign of St.
Louis, who lived near two centuries after: he empowered his court to
receive appeals both from the courts of barony and the county courts, and
by that means brought the administration of justice ultimately into the
hands of the sovereign.[9]
"And lest the expense or trouble of the journey to court should discourage
suitors and make them acquiesce in the decision of the inferior
judicatures, itinerant judges were afterwards established, who made their
circuits through the kingdom and tried all cases that were brought before
them. By this expedient the courts of barony were kept in awe, and if they
still preserved some influence it was only from the apprehensions which
the vassals might entertain of disobliging their superior by appealing
from his jurisdiction. But the county courts were much discredited and as
the freeholders were found ignorant of the intricate principles and forms
of the new law, the lawyers gradually brought all business before the
king's judges, and abandoned that convenient, simple, and popular
judicature."
The innovations of the Conqueror and his successors having reduced the old
local Anglo-Saxon tribunals to comparative insignificance, the whole
judicial authority, except that which had been seized upon by the
ecclesiastical courts, remained for a hundred and fifty years after the
conquest concentrated in the Aula Regis. But as Norman and Saxon became
thoroughly intermixed, with the first faint dawn of modern English liberty
the judicial power thus thoroughly centralized became again subdivided and
distributed, though in a manner very different from that of the Saxon
times.
The Anglo-Norman kings of England were perpetually on the move: the only
way of disposing of the products of the landed estates which scattered
over England afforded the main part of the royal revenue, was to go
thither with the royal household and consume it on the spot. Wherever the
king went, the Aula Regis followed, occasioning thereby great
inconvenience and delay to suitors. This was complained of as a grievance,
and the barons who extorted Magna Charta from their reluctant sovereign
insisted, among other things, that _Common Pleas_, that is, civil suits
between man and man, should be held in some certain place. It was in this
provision of Magna Charta that originated the English Court of Common
Pleas, which became fixed at Westminster Hall, the place of session of the
Aula Regis when the king was in the vicinity of London. This Court of
Common Pleas, or Common Bench as it was sometimes called, seems to have
been at first but a mere committee of the Aula Regis; and the
disintegration of that tribunal, thus begun, was, on the accession of
Edward I. in 1272, completed by its resolution into three or rather five
distinct tribunals.
Of these new courts, that which more immediately represented the Aula
Regis was the Court of King's Bench, which still continued to follow the
king and to be held in his presence. In the language of its process, such
is still supposed to be the case; but like the other English courts, it
has long since been fixed at Westminster Hall, and admits nobody to
participate in its proceedings save its own members--a chief justice, who,
though of inferior position in point of precedence, may be considered as
in some respects the successor of the chief justiciary, which office was
now abolished--and three or four puisne judges, the number having varied
at different times.
The Court of Common Pleas was now also organized like the King's Bench,
with a chief justice and three or four puisne judges. As this court had
exclusive jurisdiction of civil suits, (except those relating to marriage,
divorce, wills, tithes, and the distribution of the personal property of
intestates, which had been usurped by the ecclesiastical courts,) _Pleas
of the Crown_, that is, the criminal jurisprudence of the realm, (except
prosecutions for heresy, of which the ecclesiastical courts claimed
jurisdiction,) and also the hardly less important duty of superintending
the other tribunals, even the Common Pleas itself, and keeping them within
their due limits, was assigned to the King's Bench.
To a third court, that of Exchequer, of which, besides a chief baron and
three or four puisne barons, the treasurer and the chancellor of the
exchequer originally formed a part, were assigned all cases touching the
king's revenue, and especially the collection of debts due to him, in
which light were regarded not only all fines, forfeitures, and feudal
dues, but the imposts and aids occasionally granted by Parliament.
There was also a Court of Chivalry or "Honor Court," presided over by the
constable and marshal, and having jurisdiction of all questions touching
rank and precedency; and another, over which the steward of the household
presided, to regulate the king's domestic servants; but these courts,
which have long since vanished, could never be considered as having stood
on a par with the three others, the judges of which esteemed themselves
the grand depositaries of the knowledge of the common or unwritten law of
England; that is, of such customs and forms as had obtained the force of
law previous to the existence of the regular series of statutes beginning
with Magna Charta. Indeed, these judges of England, as they were called,
were in the habit of meeting together in the Exchequer Chamber, for the
purpose of hearing arguments on law points of importance or difficulty,
adjourned thither for their consideration, and which they decided by a
majority of their whole number present, thus presenting down to the recent
abolition, or rather modification, of the Court of Exchequer Chamber, a
shadow, as it were, of the ancient Aula Regis.
Already, previous to this fracture of the Aula Regis into the various
courts above named, the legal profession, so far as practice in the lay
courts was concerned, had begun to separate itself from the clerical; and
places for the education and residence of a class of laymen who began to
devote themselves to the study of the common law were established in the
vicinity of Westminster Hall. Of these, Lincoln's Inn, founded at the
commencement of the reign of Edward II., (about A. D. 1307,) under the
patronage of William Earl of Lincoln, who gave up his own hostel or town
residence for that purpose, was the earliest, and has always remained the
principal. On this model were established before long the Inner and Middle
Temple, (so called because a residence of the Knights Templars, forfeited
by the dissolution of that order, had been devoted to this purpose,)
Gray's Inn, Serjeant's Inn, and the Inns of Chancery.
Such was the origin of the profession of law as it still exists in England
and America; of that body of lawyers whence all our judges are taken,
arrogating to itself, after the example of the churchmen, of which it
originally consisted, a certain mystical enlightenment and superiority,
scouting the idea that the laity, as the lawyers too affect to distinguish
all persons not of their cloth,--in plain English, _the people_,--should
presume to express or to entertain any independent opinion upon matters of
law, or that any body not a professional lawyer can possibly be qualified
for the comprehension, and much less for the administration, of justice.
In the Anglo-Saxon courts the parties had appeared personally, and
pleadings had been oral. The Anglo-Norman practice gave rise to appearance
by attorney in all civil cases, and to that system of special written
pleadings, prepared by counsel learned in the law, of which the operation
was to give the victory to ingenuity and learning rather than to right,
and which, after undergoing many modifications, has at length been
abolished in many of our Anglo-American states, as an impediment to
justice and an intolerable nuisance. Even in conservative England itself,
though the system of special pleadings, greatly modified by modern
changes, still exists, the recent return, by the examination of the
parties, to the old popular system of oral pleading has been attended by
the happiest results.
The preparation of these written pleadings, by which we are here to
understand not arguments, but allegations of facts relied upon by the
respective parties, was engrossed by the serjeants at law, whose
distinguishing badge was a coif or velvet cap--wigs being a comparatively
modern invention. To obtain admittance into this order, by which the
entire practice of the Court of Common Pleas was engrossed, (that is,
originally, the entire practice in civil suits,) and from which the judges
were exclusively selected, sixteen years' study was required. The degree
of barrister, or, as it was called, of apprentice, might be obtained by
seven years' study; and it was to these two classes of serjeants and
apprentices that the practice in the courts of Westminster Hall was
originally confined.[10] But subsequently there sprang up a third inferior
and still more numerous class, called attorneys, a sort of middle-men
between the client and his counsel, not permitted to speak in court, for
which purpose they must retain a serjeant or barrister, but upon whom was
shifted off all the drudgery and responsibility of preparing the case, in
which, however, no step of consequence could be taken without the advice
of counsel learned in the law, _i. e._, a serjeant or barrister.[11]
As the law and its practice thus became more and more a mystery, only to
be learned by frequenting the courts of Westminster Hall, and by the study
of the obscure and ill-prepared reports of their proceedings, which began
now to be compiled by official reporters, and published under the name of
Year Books, the old local Anglo-Saxon courts fell still more into
contempt. Already in the reign of Henry III. the freeholders had been
released from their obligation of attendance upon them, and another blow
was given to these ancient tribunals when, in the reign of Edward II., the
appointment of sheriffs, hitherto chosen by the freeholders, was assumed
by the crown; and still another when, in the following reign, the election
of conservators of the peace was also taken from the people and assumed by
the king. To the magistrates thus appointed by the king the new name of
Justices of the Peace was soon afterwards given, and the criminal
jurisdiction conferred upon them, whether acting singly as examining and
committing magistrates, or met together at the courts of Quarter Sessions,
gradually superseded the small remains of criminal authority hitherto left
to the old popular tribunals.
Two circumstances, however, combined to transfuse a certain portion of the
spirit of these old tribunals into the newly established courts, thus
standing in the way of the entire monopoly of the administration of
justice at which the lawyers aimed, and securing to the body of the people
a certain participation in the most important function of the government,
to wit, the administration of justice; which participation, derived from
the old Anglo-Saxon customs, and transmitted to our times, constitutes
to-day the main pillar of both British and American liberty.
Contemporaneously with the new organization above described of the courts
of common law, the British Parliament had taken upon itself that
organization which it still retains--an upper house, (House of Lords,)
composed of great nobles and bishops,[12] successor of the Anglo-Saxon
Wittenagemote and of the Anglo-Norman Great Council, and a lower house,
(House of Commons,) in which met together the elected representatives of
the smaller landed proprietors, holding by knight's service immediately of
the crown, (knights of the shire,) together with the newly-admitted
representatives of the cities and chief towns, (burgesses.) The Parliament
thus constituted claimed and exercised, probably as successor of the
Wittenagemote, appellate jurisdiction from the decisions of all the courts
of law. In the time of Edward III. it was even a common practice for the
judges, when any question of difficulty arose in their several courts, to
take the advice of Parliament on it before giving judgment. Thus in a case
mentioned in the Year Book, 40 Ed. III., Thorpe, chief justice of the
King's Bench, went with another judge to the House of Lords, to inquire
the meaning and effect of a law they had just passed for amending the
system of pleadings;[13] and many other instances occur of the same sort.
This appellate power vesting in Parliament from the decisions of all the
courts was the first of the circumstances above alluded to as serving to
prevent the monopoly of the administration of justice by the lawyers. But
this check with the process of time has almost entirely disappeared. In
England this appellate power in Parliament has long since fallen into the
hands exclusively of the House of Lords, who themselves in giving judgment
are ordinarily only the mouthpiece of the judges called in to give their
advice. In what are now the United States of America the same appellate
jurisdiction was originally exercised by the colonial assemblies. With
us, however, it has entirely vanished under the influence of the idea of a
total separation of the legislative, executive, and judicial functions.
The other, and by far the most important check upon the monopoly of the
lawyers, was the introduction and gradual perfecting of the trial by jury,
by which the more ancient methods--the compurgation and ordeal of the
Anglo-Saxons, and the trial by battle, the favorite method of the
Anglo-Normans--were entirely superseded. The history of the trial by jury
is exceedingly obscure. The petit jury may, however, be traced back to the
old Anglo-Saxon method of trial by compurgation, the jury in its origin
being only a body of witnesses drawn from the vicinage, who founded their
verdict not upon the evidence of witnesses given before them, but upon
their own personal knowledge of the matters in dispute.[14]
The grand jury seems to have originated in the old Anglo-Saxon custom
imbodied in one of the laws of Ethelred, by which was imposed upon the
twelve senior thanes of every hundred the duty of discovering and
presenting the perpetrators of all crimes within their district--a custom
revived by the constitution of Clarendon, enacted A. D. 1164, by which
twelve lawful men of the neighborhood were to be sworn by the sheriff, on
the requisition of the bishop, to investigate all cases of suspected
criminality as to which no individual dared to make an accusation. At
first this accusing jury seems also to have served the purpose of a jury
of trial. In what way the grand jury came to be separated from the petit
jury, and how the former came to be increased to a number not exceeding
twenty-three, of whom at least twelve must concur in order to find an
indictment, is a point which still remains for the investigation of legal
antiquaries.[15]
The trial by jury, though of the progress of its development little is
known, appears to have taken on substantially its existing form, both in
civil and criminal cases, nearly contemporaneously with the new
organization of the English courts, with the rise of the legal profession
as distinct from that of the clergy, and with the commencement of the
series of English statutes and law reports--all of which, as well as the
existing constitution of the British House of Commons, may be considered
as dating from the accession of Edward I., A. D. 1272, or somewhat less
than six hundred years ago. In certain cases of great importance this
trial took place and still takes place in bank, as it is called; that is,
in Westminster Hall, before all the judges of the court in which the suit
is pending;[16] but in general, the trial is had in the county in which
(if a criminal case) the offence had been committed, or (if a civil case)
in which the venue is laid, before certain commissioners sent into the
counties for that purpose, and who, under the new system, were the
successors of the justices in eyre, or itinerant justices, who had formed
a part of the ancient Aula Regis. Originally, separate commissions appear
to have issued for criminal and civil cases--for the former a commission
of oyer and terminer, (to hear and determine,) and of general jail
delivery; and for the latter a commission of assize, so called from the
name of a peculiar kind of jury trial introduced as a substitute for trial
by battle, in real actions, that is, pleas relating to land, villainage,
and advowsons. In the times in which land, villains, and the right of
presentation to parishes, constituted the chief wealth, these real actions
constituted also the chief business of the Common Pleas, which then had
exclusive jurisdiction of civil controversies; but to this commission of
assize was annexed another, called a commission of _nisi prius_,
authorizing the commissioners to try all questions of fact arising in any
of the courts of Westminster. This latter commission was so called because
the writ issued to the sheriff of the county in which the cause of action
was alleged to have originated, to summon a jury to try the case, directed
such jury to be summoned to appear at Westminster on a day named, unless
before (in Latin, _nisi prius_) that day commissioners should come into
the county to try the case there. Hence the term _nisi prius_ employed by
lawyers to designate a trial by jury before one or more judges,
commissioned to hold such trials within certain circuits, but whose
directions to the jury, and other points of law decided by them in the
course of the trial, are liable afterwards to be reviewed by the whole
bench.
Ultimately these commissions for both criminal and civil trials were given
to the same persons, who also received a commission of the peace; and the
whole territory of England being divided into six circuits, two of the
judges, to whom other assessors were added, held assizes twice a year in
each county,[17] for the trial of issues found in Westminster Hall--a
system closely imitated in all our American states.
But the distribution of authority above described as having been
originally made to the different courts of Westminster Hall, into which
the Aula Regis was divided, did not long remain undisturbed. Courts have
at all times, and every where, exhibited a great disposition to extend
their jurisdiction, of which we have already had an example in the
authority over marriages, wills, and the personal property of intestates,
assumed by the English ecclesiastical courts; and considering the double
jurisdiction under which we citizens of the United States live,--that of
the federal and that of the state courts,--and the disposition so strongly
and perseveringly exhibited by the federal courts to enhance their
authority, while the state courts continue to grow weaker and tamer, this
is, to us, a subject of no little interest.
Besides the general love of extending their jurisdiction characteristic of
all courts, and indeed only one of the manifestations of the universal
passion for power, the English Courts of King's Bench and Exchequer had a
special motive for seeking to encroach on the exclusive civil jurisdiction
of the Common Pleas. The salaries of the judges were very
small--originally only sixty marks, equal to £40 sterling, or about $200
a year; nor was their amount materially increased down to quite recent
times; but to this small salary were added fees paid by the parties to the
cases tried before them; and the judges of the two other courts were very
anxious to share with their brethren of the Common Pleas a part of the
rich harvest which their monopoly of civil cases enabled them to reap from
that source. Not only did the Court of King's Bench start the idea that
all suits in which damages were claimed for injuries to person or
property, attended by violence or fraud, came properly within its
jurisdiction as "savoring of criminality;" it found another reason for
extending its jurisdiction, by suggesting that when a person was in the
custody of its officers, he could not, with a due regard to "legal
comity," be sued on any personal claim in any other court, since that
might result in his being taken out of the hands of their officer who
already had him in custody, and was entitled to keep him. If any body had
any claim against such a person, (such was the position plausibly set up,)
it ought to be tried before the court in whose custody he already was.
Having thus prepared the way, the Court of King's Bench did not stop here;
but by a fiction, introduced into the process with which the suit was
commenced, that the defendant was already in the custody of their marshal
for a fictitious trespass which he was not allowed to deny, jurisdiction
was gradually assumed in all private suits except real actions.
The Court of Exchequer in like manner claimed exclusive jurisdiction of
suits for debt brought by the king's debtors, since by neglecting to pay
them they might be prevented from paying their debts to the king; and
under the pretence, which nobody was allowed to dispute, that all
plaintiffs were the king's debtors, that court, too, gave an extent to
their jurisdiction similar to that of the King's Bench. The exclusive
jurisdiction of real actions, which alone remained to the Common Pleas, by
the disappearance of villainage and the great increase of personal
property, every day declined in importance; but even this was at last
taken from the Common Pleas by the invention of Chief Justice Rolle,
during the time of the Commonwealth, of the action of ejectment, which
proceeds from beginning to end upon assumptions entirely fictitious, but
which by its greater convenience entirely superseded real actions in
England and in most of the Anglo-American States.
But while these three common law courts were thus exercising their
ingenuity to intrench upon each other's jurisdiction, their pertinacious
adherence to powers and technicalities, and their unwillingness, except in
matters where the alleged prerogative of the crown was concerned, to do
any thing not sanctioned by precedent, led them to refuse justice or
relief to private suitors in many crying cases. Such cases still continued
to be brought by petition before the king, and by him were referred to his
chancellor, who in the earlier times was commonly his confessor, and who
since the abolition of the office of chief justiciary had become the first
official of the realm. Undertaking in these cases to prevent a failure of
justice by rising above the narrow technicalities of the common law, and
guided by the general principles of equity and good conscience, the
chancellor gradually assumed a most important jurisdiction, which in civil
matters ultimately raised his court to a rank and importance above that of
all the others. With the advance indeed of wealth and civilization,
appeals to chancery became more and more frequent; and if the common law
courts had not altered their policy, and adopted upon many points
equitable ideas, it seems probable that so far as civil suits were
concerned, those courts would long since have been superseded
altogether.[18] What indeed of and the practice in the Equity Court
entirely into the hands of lawyers bred in Westminster Hall, by whom
equity itself was made subservient to precedent, and the whole procedure
involved in forms and technicalities even more dilatory and expensive than
those of the common law courts.
The same disinclination on the part of these common law courts to go
beyond the strict limit of technical routine, led, with the progress of
commerce and navigation, to the erection, in the time of Edward III., of
the Admiralty Court, mainly for the trial of injuries and offences
committed on the high seas, of which, on technical grounds, the courts of
common law declined to take jurisdiction. After the foundation of English
colonies,[19] branches of this court, to which also was given an exchequer
jurisdiction, were established in the colonies, and on that model have
been formed our federal District Courts.
While the common law courts, through their preference of technicalities to
justice, thus enabled the chancellors to assume a civil jurisdiction by
which they themselves were completely overshadowed, driving the Parliament
also to the necessity of creating, for both civil and criminal matters, a
new Court of Admiralty,[20] they gave at the same time the support of
their acquiescence and silence to other innovations, prompted not by
public convenience, but by the very spirit of tyranny.
In every reign, at least from the time of Henry VI. down to that of
Charles I., torture to extort confessions from those charged with state
crimes was practised under warrants from the Privy Council. In the year
1615, by the advice of Lord Bacon, then attorney general, the lustre of
whose philosophical reputation is so sadly dimmed by the infamy of his
professional career, torture of the most ruthless character was employed
upon the person of Peacham, a clergyman between sixty and seventy years of
age, to extort confessions which might be used against him in a trial for
treason, as to his intentions in composing a manuscript sermon not
preached nor shown to any body, but found on searching his study, some
passages of which were regarded as treasonable, because they encouraged
resistance to illegal taxes. Thirteen years afterwards, when it was
proposed to torture Fenton, the assassin of Villiers, Duke of Buckingham,
to extort from him a confession of his accomplices, the prisoner suggested
that if tortured he might perhaps accuse Archbishop Laud himself. Upon
this, some question arose as to the legality of torture; and the judges
being called upon for their advice, thus at length driven to speak,
delivered a unanimous opinion that the prisoner ought not to be tortured,
because no such punishment was known or allowed by the English law; which
English law, it now appeared, had for two hundred years been
systematically disregarded under the eye and by the advice of judges and
sworn lawyers, members of the Privy Council, and without any protest or
interference on the part of the courts!
Another instance of similar acquiescence occurred in regard to the Court
of Chivalry, which in the reign of Charles I. undertook to assume
jurisdiction in the case of words spoken. Thus a citizen was ruinously
fined by that court because, in an altercation with an insolent waterman,
who wished to impose upon him, he deridingly called the swan on his badge
a "goose." The case was brought within the jurisdiction of the court, by
showing that the waterman was an earl's servant, and that the swan was the
earl's crest, the heavy fine being grounded on the alleged "dishonoring"
by the citizen of this nobleman's crest. A tailor, who had often very
submissively asked payment of his bill from a customer of "gentle blood"
whose pedigree was duly registered at the herald's college, on a threat of
personal violence for his importunity, was provoked into saying that "he
was as good a man as his debtor." For this offence, which was alleged to
be a levelling attack upon the aristocracy, he was summoned before the
earl marshal's court, and mercifully dismissed with a reprimand--_on
releasing the debt_!
No aid could be obtained from the common law courts against this
scandalous usurpation, by which, without any trial by jury, enormous
damages were given.[21] Legal "comity" perhaps prevented any interference.
Presently, however, the long Parliament met, and a single resolution of
that body stopped forever this usurpation.
But while a scrupulous adherence to technicalities and to legal etiquette
prevented the common law courts, on the one hand, from doing justice in
private cases, and on the other from guarding the subject against official
injuries and usurpations, they showed themselves, as the following
biographies will prove, the ready and willing tools on all occasions of
every executive usurpation. If the people of Great Britain and America are
not at this moment slaves, most certainly, as the following biographies
will prove, it is not courts nor lawyers that they have to thank for it.
How essential to liberty is the popular element in the administration of
criminal law--how absolutely necessary is the restraint of a jury in
criminal cases--was most abundantly proved by the proceedings of the
English courts of Star Chamber and High Commission. The Court of Star
Chamber, though of very ancient origin, derived its chief importance from
statutes of Henry VII. and Henry VIII., by which it was invested with a
discretionary authority to fine and imprison in all cases not provided for
by existing laws, being thus erected, according to the boasts of Coke and
Bacon, into a "court of criminal equity." The Court of High Commission,
whose jurisdiction was mainly limited to clergymen, was created by a
statute of Elizabeth as the depository of the ecclesiastical authority as
head of the church assumed after the reformation by the English
sovereigns. Both these courts consisted of high officers of the crown,
including judges and crown lawyers; and though not authorized to touch
life or member, they became such instruments of tyranny as to make their
abolition one of the first things done after the meeting of the Long
Parliament. The only American parallel to these courts is to be found in
the authority conferred by the fugitive act of 1850, upon certain
commissioners of the Circuit Court of the United States, to seize and
deliver over to slavery peaceable residents in their respective states,
without a jury, and without appeal.
History is philosophy teaching by example. From what judges have attempted
and have done in times past, and in England, we may draw some pretty
shrewd conclusions as to what, if unchecked, they may attempt, and may do,
in times present, and in America. Nor let any man say that the following
pages present a collection of judicial portraits distorted and caricatured
to serve an occasion. They have been borrowed, word for word, from the
_Lives_ of the Chief Justices and of the Chancellors of England, by Lord
Campbell, himself a lawyer and a judge, and though a liberal-minded and
free-spoken man, by no means without quite a sufficient share of the
_esprit du corps_ of the profession. Derived from such a source, not only
may the facts stated in the following biographies be relied upon, but the
expressions of opinion upon points of law are entitled to all the weight
of high professional authority.
Nor let it be said that these biographies relate to ancient times, and can
have no parallelism, or but little, to the present state of affairs among
us here in America. The times which they include are the times of the
struggle in Great Britain between the ideas of free government and
attempts at the establishment of despotism; and that struggle is precisely
the one now going on among us here in America, with this sole difference,
that over the water, among our British forefathers, it was the despotism
of a monarch that was sought to be established; here in America, the
despotism of some two hundred thousand petty tyrants, more or less, in the
shape of so many slaveholders, who, not content with lording it over their
several plantations, are now attempting, by combination among themselves,
and by the aid of a body of northern tools and mercenaries, such as
despots always find, to lord it over the Union, and to establish the
policy of slaveholding as that of the nation. In Great Britain, the
struggle between despotism and free institutions closed with the
revolution of 1688, with which these biographies terminate. Since that
time the politics of that country have consisted of hardly more than of
jostlings between the Ins and the Outs, with no very material variance
between them in their social ideas. Among us the great struggle between
slaveholding despotism and republican equality has but lately come to a
head, and yet remains undetermined. It exhibits, especially in the conduct
of the courts and the lawyers, many parallels to the similar struggle
formerly carried on in Great Britain. That struggle terminated at last
with the deposition and banishment of the Stuart family, and the
reëstablishment in full vigor of the ancient liberties of England, as
embodied in the Bill of Rights. And so may ours terminate, in the
reduction of those who, not content with being brethren seek to be
masters, to the republican level of equal and common citizenship, and in
the reëstablishment of emancipation, freedom, and the Rights of Man
proclaimed in our Declaration of Independence, as the national and eternal
policy of these United States!
ATROCIOUS JUDGES.
CHAPTER I.
ROGER LE BRABACON.
Roger le Brabacon,[22] from the part he took in settling the disputed
claim to the crown of Scotland, is an historical character. His ancestor,
celebrated as "the great warrior," had accompanied the Conqueror in the
invasion of England, and was chief of one of those bands of mercenary
soldiers then well known in Europe under the names (for what reason
historians are not agreed) of Routiers, Cottereaux, or _Brabançons_.[23]
Being rewarded with large possessions in the counties of Surrey and
Leicester, he founded a family which flourished several centuries in
England, and is now represented in the male line by an Irish peer, the
tenth Earl of Meath. The subject of the present sketch, fifth in descent
from "the great warrior," changed the military ardor of his race for a
desire to gain distinction as a lawyer. He was regularly trained in all
the learning of "Essions" and "Assizes," and he had extensive practice as
an advocate under Lord Chief Justice de Hengham. On the sweeping removal
of almost all of the judges in the year 1290,[24] he was knighted, and
appointed a puisne justice of the King's Bench, with a salary--which one
would have thought must have been a very small addition to the profits of
his hereditary estates of 33_l._ 6_s._ 8_d._ a year. He proved a most
admirable judge;[25] and, in addition to his professional knowledge, being
well versed in historical lore, he was frequently referred to by the
government when negotiations were going on with foreign states.
Edward I., arbitrator by mutual consent between the aspirants to the crown
of Scotland, resolved to set up a claim for himself as liege lord of that
kingdom, and Brabacon was employed, by searching ancient records, to find
out any plausible grounds on which the claim could be supported. He
accordingly travelled diligently both through the Saxon and Norman period,
and--by making the most of military advantages obtained by kings of
England over kings of Scotland, by misrepresenting the nature of homage
which the latter had paid to the former for possessions held by them in
England, and by blazoning the acknowledgment of feudal subjection extorted
by Henry II. from William the Lion when that prince was in captivity,
without mentioning the express renunciation of it by Richard I.--he made
out a case which gave high delight to the English court. Edward
immediately summoned a Parliament to meet at Norham, on the south bank of
the Tweed, marched thither at the head of a considerable military force,
and carried Mr. Justice Brabacon along with him as the exponent and
defender of his new _suzeraineté_.
It is a little curious that one of these competitors for the Scottish
throne had lately been an English judge, and a competitor for the very
place to which Brabacon, for his services on this occasion, was presently
promoted.
From the time of William the Conqueror and Malcolm Canmore, until the
desolating wars occasioned by the dispute respecting the right of
succession to the Scottish crown, England and Scotland were almost
perpetually at peace; and there was a most familiar and friendly
intercourse between the two kingdoms, insomuch that nobles often held
possession in both, and not unfrequently passed from the service of the
one government into that of the other. The Norman knights, having
conquered England by the sword, in the course of a few generations got
possession of a great part of Scotland by marriage. They were far more
refined and accomplished than the Caledonian thanes; and, flocking to the
court of the Scottish kings, where they made themselves agreeable by their
skill in the tournament, and in singing romances, they softened the hearts
and won the hands of all the heiresses. Hence the Scottish nobility are
almost all of Norman extraction; and most of the great families in that
kingdom are to be traced to the union of a Celtic heiress with a Norman
knight. Robert de Brus, or Bruis, (in modern times spelt _Bruce_,) was one
of the companions of the Conqueror; and having particularly distinguished
himself in the battle of Hastings, his prowess was rewarded with no fewer
than ninety-four lordships, of which Skelton, in Yorkshire, was the
principal. Robert, the son of the first Robert de Brus, married early, and
had a son, Adam, who continued the line of De Brus of Skelton. But
becoming a widower while still a young man, to assuage his grief, he paid
a visit to Alexander I., then King of Scots, who was keeping his court at
Stirling. There the beautiful heiress of the immense lordship of
Annandale, one of the most considerable fiefs held of the crown, fell in
love with him; and in due time he led her to the altar. A Scottish branch
of the family of De Brus was thus founded under the designation of Lords
of Annandale. The fourth in succession was "Robert the Noble," and he
raised the family to much greater consequence by a royal alliance, for he
married Isabel, the second daughter of Prince David, Earl of Huntingdon,
grandson of David I., sometimes called St. David.
Robert, son of "Robert the Noble" and the Scottish princess, was born at
the Castle of Lochmaben, about the year 1224. The Skelton branch of the
family still flourished, although it became extinct in the next
generation. At this time a close intercourse was kept up between "Robert
the Noble" and his Yorkshire cousins; and he sent his heir to be educated
in the south under their auspices. It is supposed that the youth studied
at Oxford; but this does not rest on any certain authority. In 1245, his
father died, and he succeeded to the lordship of Annandale. One would have
expected that he would now have settled on his feudal principality,
exercising the rights of _furca et fossa_, or "pit and gallows," which he
possessed without any limit over his vassals; but by his English education
he had become quite an Englishman, and, paying only very rare visits to
Annandale, he sought preferment at the court of Henry III. What surprises
us still more is, that he took to the gown, not the sword; and instead of
being a great warrior, like his forefathers and his descendants, his
ambition seems to have been to acquire the reputation of a great lawyer.
There can be little doubt that he practised as an advocate in Westminster
Hall from 1245 till 1250. In the latter year we certainly know that he
took his seat on the bench as a puisne judge, or justiciar; and, from
thence till 1263, extant records prove that payments were made for assizes
to be taken before him--that he acted with other justiciars in the levying
of fines--and that he went circuits as senior judge of assize. In the 46th
year of Henry III. he had a grant of 40_l._ a year salary, which one would
have supposed could not have been a great object to the Lord of Annandale.
In the barons' wars, he was always true to the king; and although he had
no taste for the military art, he accompanied his royal master into the
field, and was taken prisoner with him at the battle of Lewes.
The royal authority being reëstablished by the victory at Evesham, he
resumed his functions as a puisne judge; and for two years more there are
entries proving that he continued to act in that capacity. At last, on the
8th of March, 1268, 52 Henry III., he was appointed "capitalis
justiciarius ad placita coram rege tenenda," (chief justiciary for holding
pleas before the king); but unless his fees or presents were very high, he
must have found the reward of his labors in his judicial dignity, for his
salary was very small. Hugh Bigod and Hugh le Despencer had received 1000
marks a year, "ad se sustentandum in officio capitalis justitiarii
Angliæ," (for sustaining themselves in the office of chief justice of
England,) but Chief Justice de Brus was reduced to 100 marks a year; that
is, 66_l._ 13_s._ 4_d._ Yet such delight did he take in playing the judge,
that he quietly submitted both to loss of power and loss of profit.
He remained chief justice till the conclusion of this reign, a period of
four years and a half, during which he alternately went circuits and
presided in Westminster Hall. None of his decisions have come down to us,
and we are very imperfectly informed respecting the nature of the cases
which came before him. The boundaries of jurisdiction between the
Parliament, the Aula Regis, and the rising tribunal afterwards called the
Court of King's Bench, seem to have been then very much undefined.
On the demise of the crown, Robert de Brus was desirous of being
reappointed. He was so much mortified by being passed over, that he
resolved to renounce England forever; and he would not even wait to pay
his duty to Edward I., now returning from the holy wars.
The ex-chief justice posted off for his native country, and established
himself in his castle of Lochmaben, where he amused himself by sitting in
person in his court baron, and where all that he laid down was, no doubt,
heard with reverence, however lightly his law might have been dealt with
in Westminster Hall. Occasionally he paid visits to the court of his
kinsman, Alexander III., but he does not appear to have taken any part in
Scottish politics till the untimely death of that monarch, which, from a
state of peace and prosperity, plunged the country into confusion and
misery.
There was now only the life of an infant female, residing in a distant
land, between him and his plausible claim to the Scottish crown. He was
nominated one of the negotiators for settling the marriage between her and
the son of Edward I., which, if it had taken place, would have entirely
changed the history of the island of Great Britain. From his intimate
knowledge both of Scotland and England, it is probable that the "Articles"
were chiefly of his framing, and it must be allowed that they are just and
equitable. For his own interest, as well as for the independence of his
native country, he took care to stipulate that, "failing Margaret and her
issue, the kingdom of Scotland should return to the nearest heirs, to whom
of right it ought to return, wholly, freely, absolutely, and without any
subjection."
The Maid of Norway having died on her voyage home, the ex-chief justice
immediately appeared at Perth with a formidable retinue, and was in hopes
of being immediately crowned king at Scone;--and he had nearly
accomplished his object, for John Baliol, his most formidable competitor
in point of right, always feeble and remiss in action, was absent in
England. But, from the vain wish to prevent future disputes by a solemn
decision of the controversy after all parties should have been heard, the
Scotch nobility in an evil hour agreed to refer it, according to the
fashion of the age, to the arbitration of a neighboring sovereign, and
fixed upon Edward I. of England, their wily neighbor. The Scottish nobles
being induced to cross the River Tweed, and to assemble in the presence of
Edward, under pretence that he was to act only as arbitrator, Sir Roger de
Brabacon by his order addressed them in French, (the language then spoken
by the upper classes both in Scotland and England,) disclosing the
alarming pretensions about to be set up.
A public notary and witnesses were in attendance, and in their presence
the assumed vassals were formally called upon to do homage to Edward as
their _suzerain_, of which a record was to be made for a lasting memorial.
The Scots saw too late the imprudence of which they had been guilty in
choosing such a crafty and powerful arbitrator. For the present they
refused the required recognition, saying that "they must have time for
deliberation, and to consult the absent members of their different
orders." Brabacon, after advising with the king, consented that they
should have time until the following day, and no longer. They insisted on
further delay, and showed such a determined spirit of resistance, that
their request was granted and the first day of June following was fixed
for the ceremony of the recognition. Brabacon allowed them to depart; and
a copy of his paper, containing the proofs of the alleged _superiority_
and _direct dominion_ of the English kings over Scotland, was put into
their hands. He then returned to the south, where his presence was
required to assist in the administration of justice, leaving the
Chancellor Burnel to complete the transaction. Although the body of the
Scottish nobles, as well as the body of the Scottish people, would
resolutely have withstood the demand, the competitors for the throne, in
the hopes of gaining Edward's favor, successively acknowledged him as
their liege lord, and their example was followed by almost the whole of
those who then constituted the Scottish Parliament.[26]
Bruce afterwards pleaded his own cause with great dexterity, and many
supposed that he would succeed. Upon the doctrine of _representation_,
which is familiar to us, Baliol seems clearly to have the better claim, as
he was descended from the eldest daughter of the Earl of Huntingdon: but
Bruce was one degree nearer the common stock; and this doctrine, which was
not then firmly established, had never been applied to the descent of the
crown.
When Edward I. determined in favor of Baliol, influenced probably less by
the arguments in his favor than by the consideration that from the
weakness of his character he was likely to be a more submissive vassal,
Robert de Brus complained bitterly that he was wronged, and resolutely
refused to acknowledge the title of his rival. He retired in disgust to
his castle of Lochmaben, where he died in November, 1295. While resident
in England, he had married Isabel, daughter of Gilbert de Clare, Earl of
Gloucester, by whom he had several sons. Robert, the son of Robert the
eldest, became Robert I. of Scotland, and one of the greatest of heroes.
When judgment had been given in favor of Baliol, Brabacon was still
employed to assist in the plan which had been formed to bring Scotland
into entire subjection. There being a meeting at Newcastle of the nobles
of the two nations, when the feudatory king did homage to his liege lord,
complaint was made by Roger Bartholomew, a burgess of Berwick, that
certain English judges had been deputed to exercise jurisdiction on the
north bank of the Tweed. Edward referred the matter to Brabacon and other
commissioners, commanding them to do justice according to the laws and
customs of his kingdom. A petition was then presented to them on behalf of
the King of Scotland, setting forth Edward's promise to observe the laws
and customs of that kingdom, and that pleas of things done there should
not be drawn to examination elsewhere. Brabacon is reported thus to have
answered:--
"This petition is unnecessary, and not to the purpose; for it is manifest,
and ought to be admitted by all the prelates and barons, and commonalty of
Scotland, that the king, our master, has performed all his promises to
them. As to the conduct of his judges, lately deputed by him as SUPERIOR
and DIRECT LORD of that kingdom, they only represent his person; he will
take care that they do not transgress his authority, and on appeal to him
he will see that right is done. If the king had made any temporary
promises when the Scottish throne was vacant, in derogation of his just
_suzeraineté_, by such promises he would not have been restrained or
bound."[27]
Encouraged by this language, Macduff, the Earl of Fife, entered an appeal
in the English House of Lords against the King of Scotland; and, on the
advice of Brabacon and the other judges, it was resolved that the
respondent must stand at the bar as a vassal, and that, for his contumacy,
three of his principal castles should be seized into the king's hands.
Although historians who mention these events designate Brabacon as "grand
justiciary," it is quite certain that, as yet, he was merely a puisne
judge; but there was a strong desire to _reward_ him for his services,
and, at last, an opportune vacancy arising, he was created chief justice
of the King's Bench.
Of his performances in this capacity we know nothing, except by the
general commendation of chroniclers; for the Year Books, giving a regular
account of judicial decisions, do not begin till the following reign.
On the accession of Edward II., Brabacon was reappointed chief justice of
the King's Bench, and he continued very creditably to fill the office for
eight years longer. He was fated to deplore the fruitless result of all
his efforts to reduce Scotland to the English yoke Robert Bruce being now
the independent sovereign of that kingdom, after humbling the pride of
English chivalry in the battle of Bannockburn.[28]
At last, the infirmities of age unfitting Brabacon for the discharge of
judicial duties, he resigned his gown; but, to do him honor, he was sworn
a member of the Privy Council, and he continued to be treated with the
highest respect till his death, which happened about two years
afterwards.