THOMAS FLEMING.
The greatest part of my readers never before read or heard of the name of
Thomas Fleming; yet, starting in the profession of the law with Francis
Bacon, he was not only preferred to him by attorneys, but by prime
ministers, and he had the highest professional honors showered upon him,
while the immortal philosopher, orator, and fine writer continued to
languish at the bar without any advancement, notwithstanding all his
merits and all his intrigues. But Fleming had superior good fortune, and
enjoyed temporary consequences, because he was a mere lawyer--because he
harbored no idea or aspirations beyond the routine of Westminster
Hall--because he did not mortify the vanity of the witty, or alarm the
jealousy of the ambitious.
He was the younger son of a gentleman of small estate in the Isle of
Wight. I do not find any account of his early education, and very little
interest can now be felt respecting it; although we catch so eagerly at
any trait of the boyhood of his rival, whom he despised. Soon after he was
called to the bar, by unwearied drudgery he got into considerable
practice; and it was remarked that he always tried how much labor he could
bestow upon every case intrusted to him, while his more lively competitors
tried with how little labor they could creditably perform their duty.
In the end of the year 1594, he was called to the degree of serjeant,
along with eight others, and was thought to be the most deeply versed in
the law of real actions of the whole batch. It happened that, soon after,
there was a vacancy in the office of solicitor general, on the promotion
of Sir Edward Coke to be attorney general. Bacon moved heaven and earth
that he himself might succeed to it. He wrote to his uncle, Lord Treasurer
Burleigh, saying, "I hope you will think I am no unlikely piece of wood to
shape you a true servant of." He wrote to the Queen Elizabeth, saying, "I
affect myself to a place of my profession, such as I do see divers younger
in proceeding to myself, and men of no great note, do without blame aspire
unto; but if your majesty like others better, I shall, with the
Lacedemonian, be glad that there is such choice of abler men than myself."
He accompanied this letter with a valuable jewel, to show off her beauty.
He did what he thought would be still more serviceable, and, indeed,
conclusive; he prevailed upon the young Earl of Essex, then in the highest
favor with the aged queen, earnestly to press his suit. But the
appointment was left with the lord treasurer, and he decided immediately
against his nephew, who was reported to be no lawyer, from giving up his
time to profane learning--who had lately made an indiscreet, although very
eloquent, speech in the House of Commons--and who, if promoted, might be a
dangerous rival to his cousin, Robert Cecil, then entering public life,
and destined by his sire to be prime minister. The cunning old fox then
inquired who would be a competent person to do the queen's business in her
courts, and would give no uneasiness elsewhere; and he was told by several
black-letter judges whom he consulted that "Serjeant Fleming was the man
for him." After the office had been kept vacant by these intrigues above a
year, Serjeant Fleming was actually appointed. Bacon's anguish was
exasperated by comparing himself with the new solicitor; and in writing
to Essex, after enumerating his own pretensions, he says, "When I add
hereunto the obscureness and many exceptions to my competitor, I cannot
but conclude with myself that no man ever had a more exquisite disgrace."
He resolved at first to shut himself up for the rest of his days in a
cloister at Cambridge. A soothing message from the queen induced him to
remain at the bar; but he had the mortification to see the man whom he
utterly despised much higher in the law than himself, during the remainder
of this and a considerable part of the succeeding reign.
Fleming, immediately upon his promotion, gave up his serjeantship, and
practised in the Court of Queen's Bench. He was found very useful in doing
the official business, and gave entire satisfaction to his employers.
At the calling of a new Parliament, in the autumn of 1601, he was returned
to the House of Commons for a Cornish borough; and, according to the usual
practice at that time, he ought, as solicitor general, to have been
elected speaker; but his manner was too "lawyer-like and ungenteel" for
the chair, and Serjeant Croke, who was more presentable, was substituted
for him.
He opened his mouth in the house only once, and then he broke down. This
was in the great debate on the grievance of monopolies. He undertook to
defend the system of granting to individuals the exclusive right of
dealing in particular commodities; but when he had described the manner in
which patents passed through the different offices before the great seal
is put to them, he lost his recollection and resumed his seat.
Bacon, now member for Middlesex, to show what a valuable solicitor
general the government had lost, made a very gallant speech, in which he
maintained that "the queen, as she is our sovereign, hath both an
enlarging and restraining power: for, by her prerogative, she may, 1st,
set at liberty things restrained by statute law or otherwise; and 2dly, by
her prerogative she may restrain things which be at liberty." He concluded
by expressing the utmost horror of introducing any bill to meddle with the
powers of the crown upon the subject, and protesting that "the only lawful
course was to leave it to her majesty of her own free will to correct any
hardships, if any had arisen in the exercise of her just rights, as the
arbitress of trade and commerce in the realm."
This pleased her exceedingly, and even softened her ministers, insomuch
that a promise was given to promote Fleming as soon as possible, and to
appoint Bacon in his place. In those days there never existed the remotest
notion of dismissing an attorney or solicitor general, any more than a
judge; for, though they all alike held _during pleasure_, till the
accession of the house of Stuart the tenure of all of them was practically
secure. An attempt was made to induce Fleming to accept the appointment of
queen's serjeant, which would have given him precedence over the attorney
general; but this failed, for he would thereby have been considered as put
upon the shelf, instead of being on the highway to promotion.
Elizabeth died, leaving Bacon with no higher rank than that of queen's
counsel; and on the accession of James I., Fleming was reappointed
solicitor general.
The event justified his firmness in resisting the attempt to shelve him,
for in the following year, on the death of Sir William Peryam, he was
appointed chief baron of the Exchequer. While he held this office, he sat
along with Lord Chief Justice Popham on the trial of Guy Fawkes and the
gunpowder conspirators; but he followed the useful advice for subordinate
judges on such an occasion--"to look wise, and to say nothing."
His most memorable judgment as chief baron was in what is called "The
Great Case of Impositions." This was, in truth, fully as important as
Hampden's case of ship money, but did not acquire such celebrity in
history, because it was long acquiesced in, to the destruction of public
liberty, whereas the other immediately produced the civil war. After an
act of Parliament had passed at the commencement of James's reign, by
which an import duty of 2_s._ 6_d._ per cwt. was imposed upon currants, he
by his own authority laid on an additional duty of 7_s._ 6_d._, making
10_s._ per cwt. Bates, a Levant merchant, who had imported a cargo of
currants from Venice, very readily paid the parliamentary duty of 2_s._
3_d._ upon it, but refused to pay more; thereupon the attorney general
filed an information in the Court of Exchequer, to compel him to pay the
additional duty of 7_s._ 6_d._; so the question arose, whether he was by
law compellable to do so. After arguments at the bar which lasted many
days,--
_Fleming, C. B._, said: "The defendant's plea in this case is without
precedent or example, for he alleges that the imposition which the king
has laid is '_indebitè, injustè, et contra leges Angliæ imposita_, and,
therefore, he refused to pay it.' The king, as is commonly said in our
books, _cannot do wrong_; and if the king seize any land without cause, I
ought to sue to him in humble manner (_humillime supplicavit_, &c.), and
not in terms of opposition. The matter of the plea first regards the
prerogative, and to derogate from that is a part most undutiful in any
subject. Next it concerns the transport of commodities into and out of
the realm, the due regulation of which is left to the king for the public
good. The imposition is properly upon currants, and not upon the
defendant, for upon him no imposition shall be but by Parliament.(!) The
things are currants, a foreign commodity. The king may restrain the person
of a subject in leaving or coming into the realm, and _a fortiori_, may
impose conditions on the importation or exportation of his goods. To the
king is committed the government of the realm; and Bracton says, 'that for
his discharge of his office God hath given him the power to govern.' This
power is double--ordinary and absolute. The ordinary is for the profit of
particular subjects--the determination of civil justice; that is nominated
by civilians _jus privatum_, and it cannot be changed without Parliament.
The absolute power of the king is applied for the general benefit of the
people; it is most properly named _policy_, and it varieth with the time,
according to the wisdom of the king, for the common good. If this
imposition is matter of state, it is to be ruled by the rules of policy,
and the king hath done well, instead of 'unduly, unjustly, and contrary to
the laws of England.' All commerce and dealings with foreigners, like war
and peace and public treaties, are regulated and determined by the
absolute power of the king. No importation or exportation can be but at
the king's ports. They are his gates, which he may open or close when and
on what conditions he pleases. He guards them with bulwarks and
fortresses, and he protects ships coming hither from pirates at sea; and
if his subjects are wronged by foreign princes, he sees that they are
righted. Ought he not, then, by the custom he imposes, to enable himself
to perform these duties? The impost to the merchant is nothing, for those
who wish for his commodities must buy them subject to the charge; and, in
most cases, it shall be paid by the foreign grower, and not by the English
consumer. As to the argument that the currants are _victual_, they are
rather a delicacy, and are no more necessary than wine, on which the king
lays what customs seemeth him good. For the amount of the imposition it is
not unreasonable, seeing that it is only four times as much as it was
before. The wisdom and providence of the king must not be disputed by the
subject; by intendment they cannot be severed from his person. And to
argue _a posse ad actum_, because by his power he may do ill, is no
argument to be used in this place. If it be objected that no reason is
assigned for the rise, I answer it is not reasonable that the king should
express the cause and consideration of his actions; these are _arcana
regis_, and it is for the benefit of every subject that the king's
treasure should be increased."
He then at enormous length went over all the authorities and acts of
Parliament, contending that they all prove the king's power to lay what
taxes he pleases on goods imported, and he concluded by giving judgment
for the crown.
Historians take no notice of this decision, although it might have
influenced the destinies of the country much more than many of the battles
and sieges with which they fill their pages. Had our foreign commerce then
approached its present magnitude, Parliaments would never more have met in
England,--duties on tea, sugar, timber, tobacco, and corn, imposed by
royal proclamation, being sufficient to fill the exchequer,--and the
experiment of ship money would never have been necessary. The chief baron
most certainly misquotes, misrepresents, and mystifies exceedingly; but,
however fallacious his reasoning, the judgment ought not to be passed over
in silence by those who pretend to narrate our annals, for it was
pronounced by a court of competent jurisdiction, and it was acted upon for
years as settling the law and constitution of the country.[38]
King James declared that Chief Baron Fleming was a judge to his heart's
content. He had been somewhat afraid when he came to England that he might
hear such unpalatable doctrines as had excited his indignation in
Buchanan's treatise, "_De Jure Regni apud Scotis_," and he expressed great
joy in the solemn recognition that he was an absolute sovereign. Our
indignation should be diverted from him and his unfortunate son, to the
base sycophants, legal and ecclesiastical, who misled them.
On the death of Popham, no one was thought so fit to succeed him as
Fleming, of whom it was always said that, "_though slow, he was sure_;"
and he became chief justice of England the very same day on which Francis
Bacon mounted the first step of the political ladder, receiving the
comparatively humble appointment of solicitor general.
Lord Chief Justice Fleming remained at the head of the common law rather
more than six years. During that time the only case of general interest
which arose in Westminster Hall was that of the Postnati. As might be
expected, to please the king, he joined cordially in what I consider the
illegal decision, that persons born in Scotland after the accession of
James to the throne of England, were entitled to all the privileges of
natural born subjects in England, although it was allowed that Scotland
was an entirely separate and independent kingdom. Luckily, the question is
never likely again to arise since the severance of the crown of Hanover
from that of Great Britain; but if it should, I do not think that Calvin's
case could by any means be considered a conclusive authority, being
founded upon such reasoning as that "if our king conquer a Christian
country, its laws remain till duly altered; whereas if he conquer an
infidel country, the laws are _ipso facto_ extinct, and he may massacre
all the inhabitants."
Lord Chief Justice Fleming took the lead in the prosecution of the
Countess of Shrewsbury before the Privy Council, on the charge of having
refused to be examined respecting the part she had acted in bringing about
a clandestine marriage, in the Tower of London, between the Lady Arabella
Stuart, the king's cousin, and Sir William Somerset, afterwards Duke of
Somerset. He laid it down for law, that "it was a high misdemeanor to
marry, or to connive at the marriage of any relation of the king without
his consent, and that the countess's refusal to be examined was 'a
contempt of the king, his crown and dignity, which, if it were to go
unpunished, might lead to many dangerous enterprises against the state.'
He therefore gave it as his opinion that she should be fined £10,000 and
confined during the king's pleasure."
While this poor creature presided in the King's Bench, he was no doubt
told by his officers and dependants that he was the greatest chief justice
that had appeared there since the days of Gascoigne and Fortescue; but he
was considered a very small man by all the rest of the world, and he was
completely eclipsed by Sir Edward Coke, who at the same time was chief
justice of the Common Pleas, and who, to a much more vigorous intellect
and deeper learning, added respect for constitutional liberty and
resolution at every hazard to maintain judicial independence. From the
growing resistance in the nation to the absolute maxims of government
professed by the king and sanctioned by almost all his judges, there was a
general desire that the only one who stood up for law against prerogative
should be placed in a position which might give greater weight to his
efforts on the popular side; but of this there seemed no prospect, for the
subservient Fleming was still a young man, and likely to continue many
years the tool of the government.
In the midst of these gloomy anticipations, on the 15th day of October,
1613, the joyful news was spread of his sudden death. I do not know, and I
have taken no pains to ascertain, where he was buried, or whether he left
any descendants. In private life he is said to have been virtuous and
amiable, and the discredit of his incompetency in high office ought to be
imputed to those who placed him there, instead of allowing him to prose on
as a drowsy serjeant at the bar of the Common Pleas, the position for
which nature had intended him.