THOMAS BILLING.
The crown of England, transferred on the deposition of Richard II.[31] in
1399 to the Lancaster family in the person of Henry IV., was worn
successively by him and by his son and grandson, Henry V. and Henry VI.
After the lapse, however, of sixty-two years, the imbecility of Henry VI.
enabled the Legitimist or Yorkist party to triumph by placing Edward IV.
on the throne.
At this time Sir John Fortescue, an able man and distinguished by his
treatise _De Laudibus Legion Angliæ_, (Praises of the Laws of England,)
was chief justice of the King's Bench; but being an ardent Lancastrian,
and having written pamphlets to prove that Richard II. was rightly
deposed, that Henry IV. had been called to the throne by the estates of
the kingdom and the almost unanimous voice of the people, and that now, in
the third generation, the title of the House of Lancaster could not be
questioned, he was by no means the man to suit the new dynasty. He was
removed to make way for Sir John Markham, who had been for nineteen years
a puisne judge of the same court, and who, though he had not ventured to
publish any thing on the subject, yet in private conversation and in
"moots" at the Temple, such as that in which the white and red roses were
chosen as the emblems of the opposite opinions, did not hesitate to argue
for indefeasible hereditary right, which no length of possession could
supersede, and to contend that the true heir of the crown of England was
Richard, Duke of York, descended from the second son of Edward III. His
sentiments were well known to the Yorkist leaders, and they availed
themselves of the legal reasoning and the historical illustrations with
which he furnished them; but he never sallied forth into the field, even
when, after the death of Richard, the gallant youth his eldest son
displayed the high qualities which so wonderfully excited the energy of
his partisans. However, when Henry VI. was confined as a prisoner in the
Tower, and Fortescue and all the Lancastrian leaders had fled, Markham was
very naturally and laudably selected for the important office of chief
justice of the King's Bench. Although he was such a strong Legitimist, he
was known not only to be an excellent lawyer, but a man of honorable and
independent principles. The appointment, therefore, gave high
satisfaction, and was considered a good omen of the new _régime_.
He held the office above seven years, with unabated credit. Not only was
his hand free from bribes, but so was his mind from every improper bias.
It was allowed that when sitting on the bench, no one could have
discovered whether he was Yorkist or Lancastrian; the adherents of the
reigning dynasty complaining (I dare say very unjustly) that, to obtain a
character for impartiality, he showed a leaning on the Lancastrian
side.[32]
At last, though he cherished his notions of hereditary right with
unabating constancy, he forfeited his office because he would not
prostitute it to the purpose of the king and the ministers in wreaking
their vengeance on the head of a political opponent. Sir Thomas Cooke, who
inclined to the Lancastrians, though he had conducted himself with great
caution, was accused of treason and committed to the Tower. To try him a
special commission was issued, over which Lord Chief Justice Markham
presided, and the government was eager for a conviction. But all that
could be proved against the prisoner was, that he entered into a treaty to
lend, on good security, a sum of 1000 marks for the use of Margaret, the
queen of the dethroned Henry VI. The security was not satisfactory, and
the money was not advanced. The chief justice ruled that this did not
amount to treason, but was at most misprision of treason. Of this last
offence the prisoner being found guilty, he was subjected to fine and
imprisonment; but he saved his life and his lands. King Edward IV. was in
a fury, and swearing that Markham, notwithstanding his high pretensions to
loyalty, was himself little better than a traitor, ordered that he should
never sit on the bench any more; and appointed in his place a successor,
who, being a _puisne_, had wished to trip up the heels of his chief, and
had circulated a statement, to reach the king's ear, that Sir Thomas
Cooke's offence was a clear, overt act of high treason. Markham bore his
fall with much dignity and propriety--in no respect changing his
principles or favoring the movement which for a season restored Henry VI.
to the throne after he had been ten years a prisoner in the Tower.
Upon the dismissal of Sir John Markham, Edward IV., who no longer showed
the generous spirit which had illustrated his signal bravery while he was
fighting for the crown, and now abandoned himself by turns to
voluptuousness and cruelty, tried to discover the fittest instrument that
could be found for gratifying his resentments by a perversion of the forms
of law, and with felicity fixed upon Sir Thomas Billing, who, by all sorts
of meannesses, frauds, and atrocities, aided by natural shrewdness, or
rather low cunning, had contrived to raise himself from deep obscurity to
a puisne judge of the King's Bench; and in that situation had shown
himself ready to obey every mandate, and to pander to every caprice of
those who could give him still higher elevation. This is one of the
earliest of the long list of politico-legal adventurers who have attained
to eminence by a moderate share of learning and talent, and an utter want
of principle and regard for consistency.[33]
His family and the place of his education are unknown. He was supposed to
have been the clerk of an attorney; thus making himself well acquainted
with the rules of practice and the less reputable parts of the law.
However, he contrived (which must have been a difficult matter in those
days, when almost all who were admitted at the inns of court were young
men of good birth and breeding) to keep his terms and to be called to the
bar. He had considerable business, although not of the most creditable
description, and in due time he took the degree of the coif, that is,
became a serjeant.
His ambition grew with his success, and nothing would satisfy him but
official preferment. Now began the grand controversy respecting the
succession to the crown; and the claim to it through the house of
Mortimer, which had long been a mere matter of speculation, was brought
into formidable activity in the person of Richard, Duke of York. Billing,
thinking that a possession of above half a century must render the
Lancastrian cause triumphant, notwithstanding the imbecility of the
reigning sovereign, was outrageously loyal. He derided all objections to a
title which the nation had so often solemnly recognized; enlarging on the
prudence of Henry IV., the gallantry of Henry V., and the piety of the
holy Henry VI., under whose mild sway the country now flourished, happily
rid of all its continental dependencies. He even imitated the example of
Sir John Fortescue, and published a treatise upon the subject, which he
concluded with an exhortation "that all who dared, by act, writing, or
speech, to call in question the power of Parliament to accept the
resignation of Richard II., or to depose him for the crimes he had
committed, and to call to the throne the member of the royal family most
worthy to fill it, according to the fashion of our Saxon ancestors, should
be proceeded against as traitors." This so pleased Waynflete, the
chancellor, and the other Lancastrian leaders, that Billing was thereupon
made king's serjeant, and knighted.
When the right to the crown was argued, like a peerage case, at the bar of
the House of Lords, Billing appeared as counsel for Henry VI., leading the
attorney and solicitor general; but it was remarked that his fire had
slackened much, and he was very complimentary to the Duke of York, who,
since the battle of Northampton, had been virtually master of the kingdom.
We know nothing more of the proceedings of this unprincipled adventurer
until after the fall of Duke Richard, when the second battle of St.
Alban's had placed his eldest son on the throne. Instantly Sir Thomas
Billing sent in his adhesion; and such zeal did he express in favor of the
new dynasty that his patent of king's serjeant was renewed, and he became
principal law adviser to Edward IV. When Parliament assembled, receiving a
writ of summons to the House of Lords, he assisted in framing the acts by
which Sir J. Fortescue and the principal Lancastrians, his patrons, were
attainted, and the last three reigns were pronounced tyrannical
usurpations. He likewise took an active part in the measures by which the
persevering efforts of Queen Margaret to regain her ascendency were
disconcerted, and Henry VI. was lodged a close prisoner in the Tower of
London.
Sir John Markham, the honorable and consistent Yorkist, now at the head of
the administration of the criminal law, was by no means so vigorous in
convicting Lancastrians, or persons suspected of Lancastrianism, as Edward
and his military adherents wished; and when state prosecutions failed,
there were strong murmurs against him. In these Mr. Serjeant Billing
joined, suggesting how much better it would be for the public
tranquillity if the law were properly enforced. It would have appeared
very ungracious, as well as arbitrary, to displace the chief justice, who
had been such a friend to the house of York, and was so generally
respected. That there might be one judge to be relied upon, who might be
put into commissions of oyer and terminer, Billing was made a puisne
justice of the Court of King's Bench. He was not satisfied with this
elevation, which little improved his position in the profession; but he
hoped speedily to be on the woolsack, and he was resolved that mere
scruples of conscience should not hold him back.
Being thus intrusted with the sword of justice, he soon fleshed it in the
unfortunate Walter Walker, indicted before him on the statute 25 Edward
III., for compassing and imagining the death of the king. The prisoner
kept an inn called the Crown, in Cheapside, in the city of London, and was
obnoxious to the government because a club of young men met there who were
suspected to be Lancastrians, and to be plotting the restoration of the
imprisoned king. But there was no witness to speak to any such treasonable
consult; and the only evidence to support the charge was, that the
prisoner had once, in a merry mood, said to his son, then a boy, "Tom, if
thou behavest thyself well, I will make thee heir to the Crown."
Counsel were not allowed to plead in such cases then, or for more than
three centuries after; but the poor publican himself urged that he never
had formed any evil intention upon the king's life,--that he had ever
peaceably submitted to the ruling powers,--and that though he could not
deny the words imputed to him, they were only spoken to amuse his little
boy, meaning that he should succeed him as master of the Crown Tavern, in
Cheapside, and, like him, employ himself in selling sack.
Mr. Justice Billing, however, ruled--
"That upon the just construction of the statute of treasons, which was
only declaratory of the common law, there was no necessity, in supporting
such a charge, to prove a design to take away the natural life of the
king; that any thing showing a disposition to touch his royal state and
dignity was sufficient; and that the words proved were inconsistent with
that reverence for the hereditary descent of the crown which was due from
every subject under the oath of allegiance; therefore, if the jury
believed the witness, about which there could be no doubt, as the prisoner
did not venture to deny the treasonable language which he had used, they
were bound to find him guilty."
A verdict of guilty was accordingly returned, and the poor publican was
hanged, drawn, and quartered.[34]
Mr. Justice Billing is said to have made the criminal law thus bend to the
wishes of the king and the ministers in other cases, the particulars of
which have not been transmitted to us; and he became a special favorite at
court, all his former extravagances about cashiering kings and electing
others in their stead being forgotten, in consideration of the zeal he
displayed since his conversion to the doctrine of "divine right."
Therefore, when the chief justice had allowed Sir Thomas Cooke to escape
the penalties of treason, after his forfeitures had been looked to with
eagerness on account of the great wealth he had accumulated, there was a
general cry in the palace at Westminster that he ought not to be permitted
longer to mislead juries, and that Mr. Justice Billing, of such approved
loyalty and firmness, should be appointed to succeed him, rather than the
attorney or solicitor general, who, getting on the bench, might, like him,
follow popular courses.
Accordingly, a _supersedeas_ to Sir John Markham was made out immediately
after the trial of _Rex_ v. _Cooke_, and the same day a writ passed the
great seal, whereby "the king's trusty and well-beloved Sir Thomas
Billing, Knight, was assigned as chief justice to hold pleas before the
king himself."
The very next term came on the trial of Sir Thomas Burdett. This
descendant of one of the companions of William the Conqueror, and ancestor
of the late Sir Francis Burdett, lived at Arrow, in Warwickshire, where he
had large possessions. He had been a Yorkist, but somehow was out of favor
at court; and the king, making a progress in those parts, had rather
wantonly entered his park, and hunted and killed a white buck, of which he
was peculiarly fond. When the fiery knight, who had been from home, heard
of this affair, which he construed into a premeditated insult, he
exclaimed, "I wish that the buck, horns and all, were in the belly of the
man who advised the king to kill it;" or, as some reported, "were in the
king's own belly." The opportunity was thought favorable for being
revenged on an obnoxious person. Accordingly he was arrested, brought to
London, and tried at the King's Bench bar on a charge of treason, for
having compassed and imagined the death and destruction of "our lord the
king."
The prisoner proved, by most respectable witnesses, that the wish he had
rashly expressed was applied only to the man who advised the king to kill
the deer, and contended that words did not amount to treason, and
that--although, on provocation, he had uttered an irreverent expression,
which he deeply regretted--instead of having any design upon the king's
life, he was ready to fight for his right to the crown, as he had done
before; and that he would willingly die in his defence.
"Lord Chief Justice Billing left it to the jury to consider what the words
were; for if the prisoner had only expressed a wish that the buck and his
horns were in the belly of the man who advised the king to kill the buck,
it would not be a case of treason, and the jury would be bound to acquit;
but the story as told by the witnesses for the crown was much more
probable, for sovereigns were not usually advised on such affairs, and it
had been shown that on this occasion the king had acted entirely of his
own head, without any advisers, as the prisoner, when he uttered the
treasonable words, must have well known: then, if the words really were as
alleged by the witnesses for the crown, they clearly did show a
treasonable purpose. Words merely expressing an opinion, however erroneous
the opinion, might not amount to treason; but when the words refer to a
purpose, and incite to an act, they might come within the statute. Here
the king's death had certainly been in the contemplation of the prisoner;
in wishing a violence to be done which must inevitably have caused his
death, he imagined and compassed it. This was, in truth, advising,
counselling, and commanding others to take away the sacred life of his
majesty. If the wicked deed had been done, would not the prisoner, in case
the object of his vengeance had been a subject, have been an accessory
before the fact?[35] But in treason accessories before the fact were
principals, and the prisoner was not at liberty to plead that what he had
planned had not been accomplished. Therefore, if the jury believed that he
had uttered the treasonable wish directed against his majesty's own sacred
person, they were bound to convict him."
The jury immediately returned a verdict of guilty; and the frightful
sentence in high treason, being pronounced, was carried into execution
with all its horrors. This barbarity made a deep impression on the public
mind, and, to aggravate the misconduct of the judge, a rumor was
propagated that the late virtuous chief justice had been displaced because
he had refused to concur in it.
Lord Chief Justice Billing, having justified his promotion by the renegade
zeal he displayed for his new friends, and enmity to his old associates,
was suddenly thrown into the greatest perplexity, and he must have
regretted that he had ever left the Lancastrians. One of the most
extraordinary revolutions in history,--when a long continuance of public
tranquillity was looked for,--without a battle, drove Edward IV. into
exile, and replaced Henry VI. on the throne, after he had languished ten
years as a captive in the Tower of London.
There is no authentic account of Billing's deportment in this crisis, and
we can only conjecture the cunning means he would resort to, and the
pretences he would set up, to keep his place and to escape punishment.
Certain it is, that within a few days from the time when Henry went in
procession from his prison in the Tower to his palace at Westminster, with
the crown on his head, while almost all other functionaries of the late
government had fled, or were shut up in jail, a writ passed the great
seal, bearing date the 49th year of his reign, by which he assigned "his
trusty and well-beloved Sir John Billing, Knight, as his chief justice to
hold pleas in his court before him." There can be as little doubt that he
was present at the Parliament which was summoned immediately after in
Henry's name, when the crown was entailed on Henry and his issue, Edward
was declared a usurper, his most active adherents were attainted, and all
the statutes which had passed during his reign were repealed. It is not
improbable that there had been a secret understanding between Billing and
the Earl of Warwick, (the king maker,) who himself so often changed sides,
and who was now in possession of the whole authority of the government.
While Edward was a fugitive in foreign parts, the doctrine of divine right
was, no doubt, at a discount in England, and Billing may have again bolted
his arguments about the power of the people to choose their rulers;
although, according to the superstition of the age, he more probably
countenanced the belief that Henry was a saint, and that he was restored
by the direct interposition of Heaven.
But one would think he must have been at his wits' end when, in the spring
of the following year, Edward IV. landed at Ravenspurg, gained the battle
of Barnet, and, after the murder of Henry VI. and the Prince of Wales, was
again on the throne, without a rival. Billing does seem to have found
great difficulty in making his peace. Though he was dismissed from his
office, it was allowed to remain vacant about a twelvemonth, during which
time he is supposed to have been in hiding. But he had vowed that,
whatever changes might take place on the throne, he himself should die
chief justice of the King's Bench; and he contrived to be as good as his
word.
By his own representations, or the intercession of friends, or the hope of
the good services he might yet render in getting rid of troublesome
opponents, the king was induced to declare his belief that he who had sat
on the trials of Walker and Burdet had unwillingly submitted to force
during the late usurpation; and on the 17th of June, 1472, a writ passed
the great seal, by which his majesty assigned "his right trusty and
well-beloved Sir John Billing, Knight, as Chief Justice to hold pleas
before his Majesty himself."
For nearly nine years after, he continued in the possession of his office,
without being driven again to change his principles or his party. One good
deed he did, which should be recorded of him--in advising Edward IV. to
grant a pardon to an old Lancastrian, Sir John Fortescue. But for the
purpose of reducing this illustrious judge to the reproach of
inconsistency, which he knew made his own name a by-word, he imposed a
condition that the author of _De Laudibus_ should publish a new treatise,
to refute that which he had before composed, proving the right of the
house of Lancaster to the throne; and forced him to present the petition
in which he assures the king "that he hath so clearly disproved all the
arguments that have been made against his right and title, that now there
remaineth no color or matter of argument to the hurt or infamy of the
same right or title by reason of any such writing, but the same right and
title stand now the more clear and open by that any such writings have
been made against them."
There are many decisions of Chief Justice Billing on dry points of law to
be found in the Year Books, but there is only one other trial of
historical importance mentioned in which he took any part; and it is much
to be feared that on this occasion he inflamed, instead of soothing, the
violent passions of his master, with whom he had become a special
favorite.
Edward IV., after repeated quarrels and reconciliations with his brother,
the Duke of Clarence, at last brought him to trial, at the bar of the
House of Lords, on a charge of high treason. The judges were summoned to
attend, and Lord Chief Justice Billing was their mouthpiece. We have only
a very defective account of this trial, and it would appear that nothing
was proved against the first prince of the blood, except that he had
complained of the unlawful conviction of Burdet, who had been in his
service; that he had accused the king of dealing in magic, and had cast
some doubts on his legitimacy; that he had induced his servants to swear
that they would be true to him, without any reservation of their
allegiance to their sovereign; and that he had surreptitiously obtained
and preserved an attested copy of an act of Parliament, passed during the
late usurpation, declaring him next heir to the crown after the male issue
of Henry VI. The Duke of Buckingham presided as high steward, and in that
capacity ought to have laid down the law to the peers; but, to lessen his
responsibility, he put the question to the judges, "whether the matters
proved against the Duke of Clarence amounted, in point of law, to high
treason." Chief Justice Billing answered in the affirmative. Therefore a
unanimous verdict of guilty was given, and sentence of death was
pronounced in the usual form. I dare say Billing would not have hesitated
in declaring his opinion that the beheading might be commuted to drowning
in a butt of malmsey wine; but this story of Clarence's exit, once so
current, is now generally discredited, and the belief is, that he was
privately executed in the Tower, according to his sentence.
Lord Chief Justice Billing enjoyed the felicitous fate accorded to very
few persons of any distinction in those times--that he never was
imprisoned, that he never was in exile, and that he died a natural death.
In the spring of the year 1482, he was struck with apoplexy, and he
expired in a few days--fulfilling his vow--for he remained to the last
chief justice of the King's Bench, after a tenure of office for seventeen
years, in the midst of civil wars and revolutions.
He amassed immense wealth, but dying childless, it went to distant
relations, for whom he could have felt no tenderness. Notwithstanding his
worldly prosperity, few would envy him. He might have been feared and
flattered, but he could not have been beloved or respected, by his
contemporaries; and his name, contrasted with those of Fortescue and
Markham, was long used as an impersonation of the most hollow, deceitful,
and selfish qualities which can disgrace mankind.