JOHN FITZJAMES.
Of obscure birth, and not brilliant talents, Sir John Fitzjames made his
fortune by his great good humor, and by being at college with Cardinal
Wolsey. It is said that Fitzjames, who was a Somersetshire man, kept up an
intimacy with Wolsey when the latter had become a village parson in that
county; and that he was actually in the brawl at the fair when his
reverence, having got drunk, was set in the stocks by Sir Amyas Paulet.
While Wolsey tried his luck in the church, with little hope of promotion,
Fitzjames was keeping his terms in the inns of court; but he chiefly
distinguished himself on gaudy days, by dancing before the judges, playing
the part of "Abbot of Misrule," and swearing strange oaths--especially by
_St. Gillian_, his tutelary saint. His agreeable manners made him popular
with the "readers" and "benchers;" and through their favor, although very
deficient in "moots" and "bolts," he was called to the outer bar. Clients,
however, he had none, and he was in deep despair, when his former
chum--having insinuated himself into the good graces of the stern and wary
old man, Henry VII., and those of the gay and licentious youth, Henry
VIII.--was rapidly advancing to greatness. Wolsey, while almoner, and
holding subordinate offices about the court, took notice of Fitzjames,
advised him to stick to the profession, and was able to throw some
business in his way in the court of Wards and Liveries--
"Lofty and sour to them that lov'd him not:
But to those men that sought him, sweet as summer."
Fitzjames was devotedly of this second class, and was even suspected to
assist his patron in pursuits which drew upon him Queen Catharine's
censure:--
"Of his own body he was ill, and gave
The clergy ill example."
For these or other services, the cardinal, not long after he wrested the
great seal from Archbishop Wareham, and had all legal patronage conferred
upon him, boldly made Fitzjames attorney general, notwithstanding loud
complaints from competitors of his inexperience and incapacity.
The only state trial which he had to conduct was that of the unfortunate
Stafford, Duke of Buckingham, who, having quarrelled with Wolsey, and
called him a "butcher's cur," was prosecuted for high treason before the
lord high chancellor and Court of Peers, on very frivolous grounds.
Fitzjames had little difficulty in procuring a conviction; and although
the manner in which he pressed the case seems shocking to us, he probably
was not considered to have exceeded the line of his duty: and Shakspeare
makes Buckingham, returning from Westminster Hall to the Tower, exclaim--
"I had my trial,
And, must needs say, a noble one; which makes me
A little happier than my wretched father."
The result was, at all events, highly satisfactory to Wolsey, who, in the
beginning of the following year, created Fitzjames a puisne judge of the
Court of King's Bench, with a promise of being raised to be chief justice
as soon as there should be a vacancy. Sir John Fineux, turned of eighty,
was expected to drop every term, but held on four years longer. As soon
as he expired, Fitzjames was appointed his successor. Wolsey still
zealously supported him, although thereby incurring considerable obloquy.
It was generally thought that the new chief was not only wanting in
gravity of moral character, but that he had not sufficient professional
knowledge for such a situation. His highest quality was discretion, which
generally enabled him to conceal his ignorance, and to disarm opposition.
Fortunately for him, the question which then agitated the country
respecting the validity of the king's marriage with Catharine of Arragon,
was considered to depend entirely on the canon law, and he was not called
upon to give any opinion upon it. He thus quietly discharged the duties of
his office till Wolsey's fall. But he then experienced much perplexity.
Was he to desert his patron, or to sacrifice his place? He had an
exaggerated notion of the king's vengeful feelings. The cardinal having
been not only deprived of the great seal, but banished to Esher, and
robbed of almost the whole of his property under process of _præmunire_,
while an impeachment for treason was still threatened against him, the
chief justice concluded that his utter destruction was resolved upon, and
that no one could show him any sympathy without sharing his fate.
Therefore, instead of going privately to visit him, as some old friends
did, he joined in the cry against him, and assisted his enemies to the
utmost. Wolsey readily surrendered all his private property, but wished,
for the benefit of his successors, to save the palace at Whitehall, which
belonged to the see of York, being the gift of a former archbishop. A
reference was then made to the judges, "whether it was not forfeited to
the crown;" when the chief justice suggested the fraudulent expedient of a
fictitious recovery in the Court of Common Pleas, whereby it should be
adjudged to the king under a superior title. He had not the courage to
show himself in the presence of the man to whom he owed every thing; and
Shelley, a puisne judge, was deputed to make the proposal to him in the
king's name. "Master Shelley," said the cardinal, "ye shall make report to
his highness that I am his obedient subject, and faithful chaplain and
bondsman, whose royal commandment and request I will in no wise disobey,
but most gladly fulfil and accomplish his princely will and pleasure in
all things, and in especial in this matter, inasmuch as the fathers of the
law all say that I may lawfully do it. Therefore I charge your conscience,
and discharge mine. Howbeit, I pray you show his majesty from me that I
most humbly desire his highness to call to his most gracious remembrance
that there is both heaven and hell."
This answer was, no doubt, reported by Shelley to his brethren assembled
in the Exchequer Chamber, although, probably, not to the king; but it
excited no remorse in the breast of Chief Justice Fitzjames, who perfected
the machinery by which the town residence of the Archbishops of York
henceforth was annexed to the crown, and declared his readiness to concur
in any proceedings by which the proud ecclesiastic, who had ventured to
sneer at the reverend sages of the law, might be brought to condign
punishment.
Accordingly, when Parliament met, and a select committee of the House of
Lords was appointed to draw up articles of impeachment against Wolsey,
Chief Justice Fitzjames, although only summoned, like the other judges, as
an assessor, was actually made a member of the committee, joined in their
deliberations, and signed their report.
The authority of the chief justice gave such weight to the articles that
they were agreed to by the lords, _nemine contradicente_; but his
ingratitude and tergiversation caused much scandal out of doors, and he
had the mortification to find that he might have acted an honorable and
friendly part without any risk to himself, as the king, retaining a
hankering kindness for his old favorite, not only praised the fidelity of
Cavendish and the cardinal's other dependants who stuck by him in
adversity, but took Cromwell into favor, and advanced him to the highest
dignities, pleased with his gallant defence of his old master: thus the
articles of impeachment (on which, probably, Fitzjames had founded hopes
of the great seal for himself) were ignominiously rejected in the House of
Commons.
The recreant chief justice must have been much alarmed by the report that
Wolsey, whom he had abandoned, if not betrayed, was likely to be restored
to power, and he must have been considerably relieved by the certain
intelligence of the sad scene at Leicester Abbey in the following autumn,
which secured him forever against the fear of being upbraided or punished
in this world according to his deserts. However, he had now lost all
dignity of character, and henceforth he was used as a vile instrument to
apply the criminal law for the pleasure of the tyrant on the throne, whose
relish for blood soon began to display itself, and became more eager the
more it was gratified.
Henry retaining all the doctrines of the Roman Catholic religion which we
Protestants consider most objectionable, but making himself pope in
England in place of the Bishop of Rome, laws were enacted subjecting to
the penalties of treason all who denied his _supremacy_;[36] and many of
these offenders were tried and condemned by Lord Chief Justice Fitzjames,
although he was suspected of being in his heart adverse to all innovation
in religion.
I must confine myself to the two most illustrious victims sacrificed by
him--Fisher, Bishop of Rochester, and Sir Thomas More. Henry, not
contented with having them attainted of _misprision of treason_, for which
they were suffering the sentence of forfeiture of all their property and
imprisonment during life, was determined to bring them both to the block,
and for this purpose issued a special commission to try them on the
capital charge of having denied his supremacy. The lord chancellor was
first commissioner; but it was intended that the responsibility and the
odium should chiefly rest on the Lord Chief Justice Fitzjames, who was
joined in the commission along with several other common law judges of
inferior rank.
The case against the Bishop of Rochester rested on the evidence of Rich,
the solicitor general, who swore he had heard the prisoner say, "I believe
in my conscience, and by my learning I assuredly know, that the king
neither is, nor by right can be, supreme head of the church of England;"
but admitted that this was in a confidential conversation, which he had
introduced by declaring that "he came from the king to ask what the
bishop's opinion was upon this question, and by assuring him that it never
should be mentioned to any one except the king, and that the king had
promised he never should be drawn into question for it afterwards." The
prisoner contending that he was not guilty of the capital crime charged
for words so spoken, the matter was referred to the judges.
"Lord Chief Justice Fitzjames, in their names, declared 'that this message
or promise from the king to the prisoner neither did nor could, by rigor
of law, discharge him; but in so declaring of his mind and conscience
against the _supremacy_--yea, though it were at the king's own request or
commandment--he committed treason by the statute, and nothing can
discharge him from death but the king's pardon.'"
_Bishop of Rochester._--"Yet I pray you, my lords, consider that by all
equity, justice, worldly honesty, and courteous dealing, I cannot, as the
case standeth, be directly charged therewith as with treason, though I had
spoken the words indeed, the same not being spoken maliciously, but in the
way of advice or counsel, when it was required of me by the king himself;
and that favor the very words of the statute do give me, being made only
against such as shall '_maliciously_ gainsay the king's supremacy,' and
none other; wherefore, although by rigor of law you may take occasion thus
to condemn me, yet I hope you cannot find law, except you add rigor to
that law, to cast me down, which herein I have not deserved."
_Fitzjames, C. J._--"All my brethren are agreed that '_maliciously_' is a
term of art and an inference of law, not a qualification of fact. In
truth, it is a superfluous and void word; for if a man speak against the
king's supremacy by any manner of means, that speaking is to be understood
and taken in law as _malicious_."
_Bishop of Rochester._--"If the law be so, then it is a hard exposition,
and (as I take it) contrary to the meaning of them that made the law, as
well as of ordinary persons who read it. But then, my lords, what says
your wisdom to this question, 'Whether a single testimony may be admitted
to prove me guilty of treason; and may it not be answered by my negative?'
Often have I heard it said, that to overcome the presumption from the oath
of allegiance to the king's majesty, and to guard against the dire
consequences of the penalties for treason falling on the head of an
innocent man, none shall be convicted thereof save on the evidence of two
witnesses at the least."
_Fitzjames, C. J._--"This being the king's case, it rests much in the
conscience and discretion of the jury; and as they upon the evidence shall
find it, you are either to be acquitted or else to be condemned."
The report says that "the bishop answered with many more words, both
wisely and profoundly uttered, and that with a mervailous, couragious, and
rare constancy, insomuch as many of his hearers--yea, some of the
judges--lamented so grievously, that their inward sorrow was expressed by
the outward teares in their eyes, to perceive such a famous and reverend
man in danger to be condemned to a cruell death upon so weake evidence,
given by such an accuser, contrary to all faith, and the promise of the
king himself."
A packed jury, being left to their conscience and discretion, found a
verdict of guilty; and Henry was able to make good his saying, when he was
told that the pope intended to send Bishop Fisher a cardinal's hat--"'Fore
God, then, he shall wear it on his shoulders, for I will have his head
off."
The conduct of the chief justice at the trial of Sir Thomas More was not
less atrocious. After the case for the crown had been closed, the
prisoner, in an able address to the jury, clearly proved that there was
no evidence whatever to support the charge, and that he was entitled to an
acquittal; when Rich, the solicitor general, was permitted to present
himself in the witness box, and to swear falsely, that "having observed,
in a private conversation with the prisoner in the Tower, 'No Parliament
could make a law that God should not be God,'[37] Sir Thomas replied, 'No
more can the Parliament make the king supreme head of the church.'"
A verdict of guilty was pronounced against the prisoner, notwithstanding
his solemn denial of ever having spoken these words. He then moved, in
arrest of judgment, that the indictment was insufficient, as it did not
properly follow the words of the statute which made it high treason to
deny the king's supremacy, even supposing that Parliament had power to
pass such a statute. The lord chancellor, whose duty it was, as head of
the commission, to pass the sentence--"not willing," says the report, "to
take the whole load of his condemnation on himself, asked in open court
the advice of Sir John Fitzjames, the lord chief justice of England,
whether the indictment was valid or no."
_Fitzjames, C. J._--"My lords all, by St. Gillian, (for that was always
his oath,) I must needs confess that if the act of Parliament be not
unlawful, then the indictment is not, in my conscience, invalid."
_Lord Chancellor._--"_Quid adhuc desideramus, testimonium? Reus est
mortis._ (What more do we need? He is worthy of death.) Sir Thomas More,
you being, by the opinion of that reverend judge, the chief justice of
England, and of all his brethren, duly convicted of high treason, this
court doth adjudge that you be carried back to the Tower of London, and
that you be thence drawn on a hurdle to Tyburn, where you are to be hanged
till you are half dead, and then being cut down alive and embowelled, and
your bowels burnt before your face, you are to be beheaded and quartered,
your four quarters being set up over the four gates of the city, and your
head upon London Bridge."
No one can deny that Lord Chief Justice Fitzjames was an accessory to this
atrocious murder.
The next occasion of his attracting the notice of the public was when he
presided at the trials of Smeaton and the other supposed gallants of Anne
Boleyn. Luckily for him, no particulars of these trials have come down to
us, and we remain ignorant of the arts by which a conviction was obtained,
and even a _confession_--although there is every reason to believe that
the parties were innocent. According to the rules of evidence which then
prevailed, the convictions and confessions of the gallants were to be
given in evidence to establish the guilt of the unhappy queen, for whose
death Henry was now as impatient as he had once been to make her his wife.
When the lord high steward and the peers assembled for her trial,
Fitzjames and the other judges attended, merely as assessors, to advise on
any point of law which might arise. I do not find that they were consulted
till the verdict of guilty had been recorded, and sentence was to be
pronounced. _Burning_ was the death which the law appointed for a woman
attainted of treason; yet as Anne had been Queen of England, some peers
suggested that it might be left to the king to determine whether she
should die such a cruel and ignominious death, or be _beheaded_, a
punishment supposed to be attended with less pain and less disgrace. But
then a difficulty arose whether, although the king might remit all the
atrocities of the sentence on a man for treason, except beheading, which
is part of it, he could order a person to be beheaded who was sentenced to
be burnt. A solution was proposed, that she should be sentenced by the
lord high steward to be "burnt or beheaded at the king's pleasure;" and
the opinion of the judges was asked, "whether such a sentence could be
lawfully pronounced."
_Fitzjames, C. J._--"My lords, neither myself nor any of my learned
brothers have ever known or found in the records, or read in the books, or
known or heard of, a sentence of death in the alternative or disjunctive,
and incline to think that it would be bad for uncertainty. The law
delights in certainty. Where a choice is given, by what means is the
choice to be exercised? And if the sheriff receives no special directions,
what is he to do? Is sentence to be stayed till special directions are
given by the king? and if no special directions are given, is the
prisoner, being attainted, to escape all punishment? Prudent antiquity
advises you _stare super antiquas vias_; and that which is without
precedent is without safety."
After due deliberation, it was held that an absolute sentence of beheading
would be lawful, and it was pronounced accordingly; the court being
greatly comforted by recollecting that no writ of error lay, and that
their judgment could not be reversed.
Fitzjames died in the year 1539, before this judgment served as a
precedent for that upon the unfortunate Queen Catharine Howard; and he was
much missed when the bloody statute of the Six Articles brought so many,
both of the old and of the reformed faith, on capital charges, before the
Court of King's Bench.