JOHN BRAMPSTON.
On the vacancy in the office of chief justice of the King's Bench, created
by the death of Sir Thomas Richardson, A. D. 1635, the king and his
ministers were exceedingly anxious to select a lawyer fitted to be his
successor. Resolved to raise taxes without the authority of Parliament,
they had launched their grand scheme of ship money, and they knew that its
validity would speedily be questioned. To lead the opinions of the judges,
and to make a favorable impression on the public, they required a chief on
whose servility they could rely, and who, at the same time, should have a
great reputation as a lawyer, and should be possessed of a tolerable
character for honesty. Such a man was Mr. Serjeant Brampston.
He was born at Maldon, in Essex, of a family founded there in the reign of
Richard II. by a citizen of London, who had made a fortune in trade and
had served the office of sheriff. When very young, he was sent to the
university of Cambridge; and there he gained high renown by his skill in
disputation, which induced his father to breed him to the bar.
Accordingly, he was transferred to the Middle Temple, and studied law
there for seven years with unwearied assiduity. At the end of this period,
he was called to the bar, having then amassed a store of law sufficient to
qualify him at once to step upon the bench. Different public bodies strove
to have the benefit of his advice; and very soon he was standing counsel
for his own university, and likewise for the city of London, with an
annual fee _pro concilio impenso et impendendo_, (for counsel given and to
be given.) Having been some years an "apprentice," he took the degree of
serjeant at law.
According to a practice very common in our profession, he had, in the
language of Mr. Gurney, the famous stenographer, "started in the sedition
line," that is, defending persons prosecuted for political offences by the
government. He was counsel for almost all the patriots who, in the end of
the reign of James I. and the beginning of the reign of Charles I., were
imprisoned for their refractory conduct in the House of Commons; and one
of the finest arguments to be found in our books is one delivered by him
in Sir Thomas Darnel's case, to prove that a warrant of commitment by
order of the king, without specifying the offence, is illegal.
He refused a seat in the House of Commons, as it suited him better to
plead for those who were in the Tower than to be sent thither himself. By
and by, the desire of obtaining the honors of the profession waxed strong
within him, and he conveyed an intimation, by a friend, to the lord keeper
that it would be much more agreeable to him to be retained for the
government than to be always against it. The offer was accepted; he was
taken into the counsels of Noy, the attorney general, and he gave his
assistance in defending all stretches of prerogative. Promotions were now
showered down upon him; he was made chief justice of Ely, attorney general
to the queen, king's serjeant, and a knight. Although very zealous for the
crown, and really unscrupulous, he was anxious to observe decency of
deportment, and to appear never to transgress the line of professional
duty.
Noy[47] would have been the man to be appointed chief justice of the
King's Bench to carry through his tax by a judicial decision in its favor,
but he had suddenly died soon after the ship money writs were issued; and,
after him, Sir John Brampston was deemed the fittest person to place at
the head of the common law judges. On the 18th of April, 1635, his
installation took place, which was, no doubt, very splendid; but we have
no account of it except the following by Sir George Croke:--
"First, the lord keeper made a grave and long speech, signifying the
king's pleasure for his choice, and the duties of his place; to which,
after he had answered at the bar, returning his thanks to the king, and
promising his endeavor of due performance of his duty in his place, he
came from the bar into court, and there kneeling, took the oaths of
supremacy and allegiance: then standing, he took the oath of judge: then
he was appointed to come up to the bench, and then his patent (which was
only a writ) being read, the lord keeper delivered it to him. But Sir
William Jones (the senior puisne judge) said the patent ought to have been
read before he came up to the bench."[48]
In quiet times, Lord Chief Justice Brampston would have been respected as
an excellent judge. He was above all suspicion of bribery, and his
decisions in private causes were sound as well as upright. But, unhappily,
he by no means disappointed the expectations of the government.[49]
Soon after his elevation, he was instructed to take the opinion privately
of all the judges on the two celebrated questions:--
"1. Whether, in cases of danger to the good and safety of the kingdom, the
king may not impose ship money for its defence and safeguard, and by law
compel payment from those who refuse? 2. Whether the king be not the sole
judge both of the danger, and when and how it is to be prevented?"
There is reason to think that he himself was taken in by the craft of Lord
Keeper Coventry, who represented that the opinion of the twelve judges was
wanted merely for the king's private satisfaction, and that no other use
would be made of it. At a meeting of all the judges in Serjeant's Inn
Hall, Lord Chief Justice Brampston produced an answer to both questions in
the affirmative, signed by himself. Nine other judges, without any
hesitation, signed it after him; but two, Croke and Hutton, declared that
they thought the king of England never had such a power, and that, if he
ever had, it was taken away by the act _De Tallagio non concedendo_, the
Petition of Right, and other statutes; but they were induced to sign the
paper upon a representation that their signature was a mere formality.
The unscrupulous lord keeper, having got the paper into his possession,
immediately published it to the world as the unanimous and solemn decision
of all the judges of England; and payment of ship money was refused by
John Hampden alone.
His refusal brought on the grand trial, in the Exchequer Chamber, upon the
validity of the imposition. Lord Chief Justice Brampston, in a very long
judgment, adhered to the opinion he had before given for the legality of
the tax, although he characteristically expressed doubt as to the
regularity of the proceeding on technical grounds. Croke and Hutton
manfully insisted that the tax was illegal; but, all the other judges
being in favor of the crown, Hampden was ordered to pay his 20_s._
Soon after, the same point arose in the Court of King's Bench in the case
of the Lord Say, who, envying the glory which Hampden had acquired,
allowed his oxen to be taken as a distress for the ship money assessed
upon him, and brought an action of trespass for taking them. But Banks,
the attorney general, moved that counsel might not be permitted to argue
against what had been decided in the Exchequer Chamber; and Lord Chief
Justice Brampston said, "Such a judgment should be allowed to stand until
it were reversed in Parliament, and none ought to be suffered to dispute
against it."[50]
The crown lawyers were thrown into much perplexity by the freak of the
Rev. Thomas Harrison, a country parson, who can hardly be considered a
fair specimen of his order at that time, and must either have been a
little deranged in his intellect, or animated by an extraordinary
eagerness for ecclesiastical promotion. Having heard that Mr. Justice
Hutton, while on the circuit, had expressed an opinion unfavorable to ship
money, he followed him to London, and, while this reverend sage of the law
was seated with his brethren on the bench of the Court of Common Pleas,
and Westminster Hall was crowded with lawyers, suitors, and idlers,
marched up to him, and making proclamation, "_Oyez! Oyez! Oyez!_" said
with a loud voice, "Mr. Justice Hutton, you have denied the king's
supremacy, and I hereby charge you with being guilty of high treason." The
attorney general, however much he might secretly honor such an ebullition
of loyalty, was obliged to treat it as an outrage, and an _ex officio_
information was filed against the delinquent for the insult he had offered
to the administration of justice. At the trial the reverend defendant
confessed the speaking of the words, and gloried in what he had done,
saying,--
"I confess that judges are to be honored and revered as sacred persons so
long as they do their duty; but having taken the oath of supremacy many
times, I am bound to maintain it, and when it is assailed, as by the
denying of ship money, it is time for every loyal subject to strike in."
_Brampston, C. J._--"The denying of ship money may be, and I think is,
very wrong; but is it against the king's supremacy?" _Harrison._--"As a
loyal subject, I did labor the defence of his majesty, and how can I be
guilty of a crime? I say again that Mr. Justice Hutton has committed
treason, for upon his charge the people of the country do now deny ship
money. His offence being openly committed, I conceived it not amiss to
make an open accusation. The king will not give his judges leave to speak
treason, nor have they power to make or pronounce laws against his
prerogative. We are not to question the king's actions; they are only
between God and his own conscience. '_Sufficit regi, quod Deus est._' This
thesis I will stand to--that whatsoever the king in his conscience
thinketh he may require, we ought to yield."[51]
The defendant having been allowed to go on in this strain for a long time,
laying down doctrines new in courts of justice, although in those days
often heard from the pulpit, the chief justice at last interposed, and
said,--
"Mr. Harrison, if you have any thing to say in your own defence, proceed;
but this raving must not be suffered. Do you not think that the king may
govern his people by law?" _Harrison._--"Yes, and by something else too.
If I have offended his majesty in this, I do submit to his majesty, and
crave his pardon." _Brampston, C. J._--"Your 'If' will be very ill taken
by his majesty; nor can this be considered a submission."
The defendant, being found guilty, was ordered to pay a fine to the king
of £5000, and to be imprisoned--without prejudice to the remedy of Mr.
Justice Hutton by action. Such an action was accordingly brought, and so
popular was Mr. Justice Hutton, that he recovered £10,000 damages; whereas
it was said that, if the chief justice had been the plaintiff in an action
for defamation, he need not have expected more than a Norfolk groat.
Lord Chief Justice Brampston's services were likewise required in the Star
Chamber. He there zealously assisted Archbishop Laud in persecuting
Williams, Bishop of Lincoln, ex-keeper of the great seal. When the
sentence was to be passed on this unfortunate prelate, ostensibly for
tampering with the witnesses who were to give evidence against him on a
former accusation, which had been abandoned as untenable, but in reality
for opposing Laud's Popish innovations in religious ceremonies, Brampston
declaimed bitterly against the right reverend defendant, saying,--
"I find my Lord Bishop of Lincoln much to blame in persuading,
threatening, and directing of witnesses--a foul fault in any, but in him
most gross who hath _curam animarum_ throughout all his diocese. To
destroy men's souls is most odious, and to be severely punished. I do hold
him not fit to have the cure of souls, and therefore I do censure him to
be suspended _tam ab officio quam a beneficio_, to pay a fine of £10,000,
and to be imprisoned during the king's pleasure."
This sentence, although rigorously executed, did not satiate the vengeance
of the archbishop; and the bishop, while lying a prisoner in the Tower,
having received some letters from one of the masters of Westminster
School, using disrespectful language towards the archbishop, and calling
him "a little great man," a new information was filed against the bishop
for not having disclosed these letters to a magistrate, that the writer
might have been immediately brought to justice. Of course he was found
guilty; and when the deliberation arose about the punishment, thus spoke
Lord Chief Justice Brampston:--
"The concealing of the libel doth by no means clear my Lord Bishop of
Lincoln, for there is a difference between a letter which concerns a
private person and a public officer. If a libellous letter concern a
private person, he that receives it may conceal it in his pocket or burn
it; but if it concern a public person, he ought to reveal it to some
public officer or magistrate. Why should my Lord of Lincoln keep these
letters by him, but to the end to publish them, and to have them at all
times in readiness to be published? I agree in the proposed sentence,
that, in addition to a fine of £5000 to the king, he do pay a fine of
£3000 to the archbishop, seeing the offence is against so honorable a
person, and there is not the least cause of any grievance or wrong that he
hath done to my Lord of Lincoln. For his being degraded, I leave it to
those of the Ecclesiastical Court to whom it doth belong. As to the
pillory, I am very sorry and unwilling to give such a sentence upon any
man of his calling and degree. But when I consider the quality of the
person, and how much it doth aggravate the offence, I cannot tell how to
spare him; for the consideration that should mitigate the punishment adds
to the enormity of the offence."
As no clerical crime had been committed for which degradation could be
inflicted, and as it was thought not altogether decent that a bishop,
wearing his lawn sleeves, his rochet, and his mitre, should stand on the
pillory, to be pelted with brickbats and rotten eggs, the lord chief
justice was overruled respecting this last suggestion, and the sentence
was limited to the two fines, with perpetual imprisonment. The defendant
was kept in durance under it till the meeting of the Long Parliament, when
he was liberated; and, becoming an archbishop, he saw his persecutor take
his place in the Tower, while he himself was placed at the head of the
Church of England.
Now came the time when Lord Chief Justice Brampston himself was to
tremble. The first grievance taken up was ship money; and both houses
resolved that the tax was illegal, and that the judgment against Hampden
for refusing to pay it ought to be set aside. Brampston was much alarmed
when he saw Strafford and Laud arrested on a charge of high treason, and
Lord Keeper Finch obliged to fly beyond the seas.
The next impeachment voted was against Brampston himself and five of his
brethren; but they were more leniently dealt with, for they were only
charged with "high crimes and misdemeanors;" and happening to be in the
House of Lords when Mr. Waller brought up the impeachment, it was ordered
"that the said judges for the present should enter into recognizances of
£10,000 each to abide the censure of Parliament." This being done, they
enjoyed their liberty, and continued in the exercise of their judicial
functions; but Mr. Justice Berkeley, who had made himself particularly
obnoxious by his indiscreet invectives against the Puritans,[52] was
arrested while sitting on his tribunal in Westminster Hall, and committed
a close prisoner to Newgate.
Chief Justice Brampston tried to mitigate the indignation of the dominant
powers by giving judgment in the case of _Chambers_ v. _Sir Edward
Brunfield, Mayor of London_, against the legality of ship money. To an
action of trespass and false imprisonment, the defendant justified by his
plea under "a writ for not paying of money assessed upon the plaintiff
towards the finding of a ship." There was a demurrer to the plea, so that
the legality of the writ came directly in issue. The counsel for the
defendant rose to cite Hampden's case and Lord Say's case, in which all
their lordships had concurred, as being decisive in his favor; but
Brampston, C. J., said,--
"We cannot now hear this case argued. It hath been voted and resolved in
the upper House of Parliament and in the House of Commons, _nullo
contradicente_, that the said writ, and what was done by color thereof,
was illegal. Therefore, without further dispute thereof, the court gives
judgment for the plaintiff."[53]
The Commons were much pleased with this submissive conduct, but _pro
forma_ they exhibited articles of impeachment against the chief justice.
To the article founded on ship money he answered, "that at the conference
of the judges he had given it as his opinion that the king could only
impose the charge in case of necessity, and only during the continuance of
that necessity."
The impeachment was allowed to drop; and the chief justice seems to have
coquetted a good deal with the parliamentary leaders, for, after the king
had taken the field, he continued to sit in his court at Westminster, and
to act as an attendant to the small number of peers who assembled there,
constituting the House of Lords.
But when a battle was expected, Charles, being told that the chief justice
of England was chief coroner, and, by virtue of his office, on view of the
body of a rebel slain in battle, had authority to pronounce judgment of
attainder upon him, so as to work corruption of blood and forfeiture of
lands and goods, thought it would be very convenient to have such an
officer in the camp, and summoned Lord Chief Justice Brampston to appear
at head quarters in Yorkshire. The Lords were asked to give him leave of
absence, to obey the king's summons, but they commanded him to attend them
day by day at his peril. He therefore sent his two sons to make his excuse
to the king. His majesty was highly incensed by his asking leave of the
Lords, and--considering another apology that he made, about the infirmity
of his health and the difficulty of travelling in the disturbed state of
the country, a mere pretence--by a _supersedeas_ under the great seal
dismissed him from his office, and immediately appointed Sir Robert Heath
to be chief justice of England in his stead.
Brampston must now have given in his full adhesion to the parliamentary
party, for in such favor was he with them, that, when the treaty of
Uxbridge was proceeding, they made it one of their conditions that he
should be reappointed lord chief justice of the Court of King's Bench.
Having withdrawn entirely from public life, he spent the remainder of his
days at his country house in Essex. There he expired, on the 2d of
September, 1654, in the 78th year of his age. If courage and principle had
been added to his very considerable talents and acquirements, he might
have gained a great name in the national struggle which he witnessed; but,
from his vacillation, he fell into contempt with both parties; and,
although free from the imputation of serious crimes, there is no respect
entertained for his memory.