ROBERT HEATH.
We must now attend to Sir Robert Heath, who was the last chief justice of
Charles I., and was appointed by him to pass judgment, not on the living,
but on the dead. If we cannot defend all his proceedings, we must allow
him the merit--which successful members of our profession can so seldom
claim--of perfect consistency; for he started as a high prerogative
lawyer, and a high prerogative lawyer he continued to the day of his
death.
He was of a respectable family of small fortune, in Kent, and was born at
Etonbridge in that county. He received his early education at Tonbridge
School, and was sent from thence to St. John's College, Cambridge. His
course of study there is not known; but when he was transferred to the
Inner Temple, we are told that he read law and history with the
preconceived conviction that the King of England was an absolute
sovereign; and so enthusiastic was he that he converted all he met with
into arguments to support his theory. One most convenient doctrine solved
many difficulties which would otherwise have perplexed him: he maintained
that Parliament had no power to curtail the essential prerogatives of the
crown, and that all acts of Parliament for such a purpose were _ultra
vices_ and void. There is no absurdity in this doctrine, for a legislative
assembly may have only a limited power, like the Congress of the United
States of America; and it was by no means so startling then as now, when
the omnipotence of Parliament has passed into a maxim. He had no respect
whatever for the House of Commons or any of its privileges, being of
opinion that it had been called into existence by the crown only to assist
in raising the revenue, and that, if it refused necessary supplies, the
king, as _Pater Patriæ_, must provide for the defence of the realm in the
same manner as before it had existence. He himself several times refused a
seat in that assembly, which he said was "only fit for a pitiful Puritan
or a pretending patriot;" and he expressed a resolution to get on in his
profession without beginning, as many of his brethren did, by herding with
the seditious, and trying to undermine the powers which for the public
good the crown had immemorially exercised and inalienably possessed. To
enable him to defend these with proper skill and effect, he was constantly
perusing the old records; and, from the Conquest downwards, they were as
familiar to him as the cases in the last number of the periodical reports
are to a modern practitioner. Upon all questions of prerogative law which
could arise he was complete master of all the authorities to be cited for
the crown, and of the answers to be given to all that could be cited
against him.
As he would neither go into Parliament nor make a splash in Westminster
Hall in the "sedition line," his friends were apprehensive that his great
acquirements as a lawyer never would be known; but it happened that, in
the year 1619, he was appointed "reader" for the Inner Temple, and he
delivered a series of lectures, explaining his views on constitutional
subjects, which forever established his reputation.
On the first vacancy which afterwards occurred in the office of solicitor
general, he was appointed to fill it; and Sir Thomas Coventry, the
attorney general, expressed high satisfaction at having him for a
colleague. Very important proceedings soon after followed, upon the
impeachment of Lord Bacon and the punishment of the monopolists; but, as
these were all in Parliament, he made no conspicuous figure during the
remainder of the reign of James I.
Soon after the commencement of the reign of Charles I., he was promoted to
the office of attorney general; and then, upon various important
occasions, he delivered arguments in support of the unlimited power of the
crown to imprison and to impose taxes, which cannot now be read without
admiration of the learning and ingenuity which they display.
The first of these was when Sir Thomas Darnel and his patriotic associates
were brought by _habeas corpus_ before the Court of King's Bench, having
been committed in reality for refusing to contribute to the forced loan,
but upon a warrant by the king and council which did not specify any
offence. I have already mentioned the speeches of their counsel.[54] "To
these pleadings for liberty," says Hallam, "Heath, the attorney general,
replied in a speech of considerable ability, full of those high principles
of prerogative which, trampling as it were on all statute and precedent,
seemed to tell the judges that they were placed there to obey rather than
to determine."
"This commitment," he said, "is not in a legal and ordinary way, but by
the special command of our lord the king, which implies not only the fact
done, but so extraordinarily done, that it is notoriously his majesty's
immediate act, and he wills that it should be so. Shall we make inquiries
whether his commands are lawful? Who shall call in question the justice
of the king's actions? Is he to be called upon to give an account of
them?"
After arguing very confidently on the legal maxim that "the king can do no
wrong,"[55] the constitutional interpretation of which had not yet been
settled, he goes on to show how _de facto_ the power of imprisonment had
recently been exercised by the detention in custody, for years, of Popish
and other state prisoners, without any question or doubt being raised.
"Some," he observed, "there are in the Tower who were put in it when very
young: should they bring a _habeas corpus_, would the court deliver them?"
He then dwelt at great length upon the resolution of the judges in the
34th of Elizabeth in favor of a general commitment by the king, and went
over all the precedents and statutes cited on the other side, contending
that they were either inapplicable or contrary to law. He carried the
court with him, and the prisoners were remanded without any considerable
public scandal being then created.
During the stormy session in which the "Petition of Right" was passed,
Heath, not being a member of the House of Commons, had very little
trouble; but once, while it was pending, he was heard against it as
counsel for the king before a joint committee of Lords and Commons. Upon
this occasion he occupied two whole days in pouring forth his learning to
prove that the proposed measure was an infringement of the ancient,
essential, and inalienable prerogatives of the crown. He was patiently
listened to, but he made no impression on Lords or Commons; and the king,
after receiving an assurance from the judges that they would effectually
do away with the statute when it came before them for interpretation, was
obliged to go through the form of giving the royal assent to it.
As soon as the Parliament was dissolved, Heath was called into full
activity; and he now carried every thing his own way, for the extent of
the royal prerogative was to be declared by the Court of King's Bench and
the Star Chamber. Sir John Eliot, Stroud, Selden, and the other leaders of
the country party who had been the most active in carrying the "Petition
of Right," were immediately thrown into prison, and the attorney general
having assembled the judges, they were as good as their word, by declaring
that they had cognizance of all that happened in Parliament, and that they
had a right to punish whatsoever was done there by Parliament men in an
unparliamentary manner.
The imprisoned patriots having sued out writs of _habeas corpus_, it
appeared that they were detained under warrants signed by the king, "for
notable contempts committed against ourself and our government, and for
stirring up sedition against us." Their counsel argued that a commitment
by the king is invalid, as he must act by responsible officers; and that
warrants in this general form were in direct violation of the "Petition of
Right," so recently become law. But Heath still boldly argued for the
unimpaired power of arbitrary imprisonment, pretending that the "Petition
of Right" was not a binding statute. "A petition in Parliament," said he,
"is no law, yet it is for the honor and dignity of the king to observe it
faithfully; but it is the duty of the people not to stretch beyond the
words and intention of the king, and no other construction can be made of
the 'Petition' than that it is a confirmation of the ancient rights and
liberties of the subject. So that now the case remains in the same quality
and degree as it was before the 'Petition.'" He proceeded to turn into
ridicule the whole proceedings of the late Parliament, and he again went
over the bead-roll of his precedents to prove that one committed by
command of the king or Privy Council is not bailable. The prisoners were
remanded to custody.
In answer to the _information_, it was pleaded that a court of common law
had no jurisdiction to take cognizance of speeches made in the House of
Commons; that the judges had often declared themselves incompetent to give
an opinion upon such subjects; that the words imputed to Sir John Eliot
were an accusation against the ministers of the crown, which the
representatives of the people had a right to prefer; that no one would
venture to complain of grievances in Parliament if he should be subjected
to punishment at the discretion of an inferior tribunal; that the alleged
precedents were mere acts of power which no attempt had hitherto been made
to sanction; and that, although part of the supposed offences had occurred
immediately before the dissolution, so that they could not have been
punished by the last Parliament, they might be punished in a future
Parliament. But
_Heath, A. G._, replied that the king was not bound to wait for another
Parliament; and, moreover, that the House of Commons was not a court of
justice, nor had any power to proceed criminally, except by imprisoning
its own members. He admitted that the judges had sometimes declined to
give their judgment upon matters of privilege; but contended that such
cases had happened during the session of Parliament, and that it did not
follow that an offence committed in the house might not be questioned
after a dissolution.
The judges unanimously held that, although the alleged offences had been
committed in Parliament, the defendants were bound to answer in the Court
of King's Bench, in which all offences against the crown were cognizable.
The parties refusing to put in any other plea, they were convicted, and
the attorney general praying judgment, they were sentenced to pay heavy
fines, and to be imprisoned during the king's pleasure.
Heath remained attorney general two years longer. The only difficulty
which the government now had was to raise money without calling a
Parliament; and he did his best to surmount it. By his advice, a new tax
was laid on cards, and all who refused to pay it he mercilessly prosecuted
in the Court of Exchequer, where his will was law. All monopolies had been
put down at the conclusion of the last reign, with the exception of new
inventions. Under pretence of some novelty, he granted patents, vested in
particular individuals or companies the exclusive right of dealing in
soap, leather, salt, linen rags, and various other commodities, although,
of £200,000 thereby levied on the people, scarcely £1500 came into the
royal coffers. His grand expedient was to compel all who had a landed
estate of £40 a year to submit to knighthood, and to pay a heavy fee; or,
on refusal, to pay a heavy fine. This caused a tremendous outcry, and was
at first resisted; but the question being brought before the Court of
Exchequer, he delivered an argument in support of the claim, in which he
traced knighthood from the ancient Germans down to the reigns of the
Stuarts, showing that the prince had always the right of conferring it
upon all who held of him _in capite_--receiving a reasonable compliment
in return. In this instance, Mr. Attorney not only had the decision of the
court, but the law on his side. Blackstone says, "The prerogative of
compelling the king's vassals to be knighted, or to pay a fine, was
expressly recognized in Parliament by the statute _de Militibus_, 1 Ed.
II., but yet was the occasion of heavy murmurs when exerted by Charles I.,
among whose many misfortunes it was, that neither himself nor his people
seemed able to distinguish between the arbitrary stretch and the legal
exertion of prerogative."[56]
All these expedients for filling the exchequer proving unproductive, the
last hopes of despotism rested upon Noy, who, having been a patriot, was
eager to be the slave of the court, and proposed his ship money. If this
should be supported by the judges, and endured by the people, Parliaments
for ever after would have been unnecessary. Heath was willing enough to
defend it; but the inventor was unwilling to share the glory or the profit
of it with another. Luckily, at that very time, a vacancy occurred in the
office of chief justice of the Common Pleas; and there being an extreme
eagerness to get rid of Heath, notwithstanding his very zealous services
to the crown, he was "put upon the cushion," and Noy succeeded him as
attorney general.
To qualify him to be a judge, it was necessary that he should first become
a serjeant; and, according to ancient custom, he distributed rings,
choosing a motto which indicated his intention still to put the king above
the law--"_Lex Regis, vis Legis_." On the 25th of October, 1631, he came
in his parti-colored robes to the Common Pleas, and performed his
ceremonies as serjeant, and the same day kept his feast in Serjeants' Inn;
and afterwards, on the 27th of October, he was sworn in chief justice.
In the four years during which he held this office, no case of public
interest occurred in his own court; but he took an active part in the Star
Chamber, and, having prosecuted the Recorder of Salisbury for breaking a
painted window without the bishop's consent, he now sentenced him for the
offence. The grand scheme of ship money, which had been long in
preparation, was ready to be brought forward, when, to the astonishment of
the world, Heath was removed from his office. It has been said that the
government was afraid of his opinion of ship money, and wished to prefer
Finch,--the most profligate of men,--on whom they could entirely rely. The
truth seems to be, that he continued to enjoy the favor and confidence of
the government, but that a charge had been brought against him of taking
bribes, which was so strongly supported by evidence that it could not be
overlooked, although no Parliament was sitting, or ever likely to sit, and
that the most discreet proceeding, even for himself, was to remove him
quietly from his office. The removal of judges had, under the Stuarts,
become so common, that no great sensation was created by a new instance of
it, and people merely supposed that some secret displeasure had been given
to the king.
Heath presented a petition to the king, setting forth his services as
attorney general in supporting the royal right to imprison and to tax the
subject, as well as the good will he had manifested while he sat on the
bench, and expressing a hope that, as he had been severely punished for
his fault, he might not be utterly ruined, but might be permitted to
practise at the bar. To this the king, by advice of the Privy Council,
consented, on condition that he should be put at the bottom of the list of
serjeants, and should not plead against the crown in the Star Chamber.
Accordingly, he took his place at the bar of the Court of Common Pleas, as
junior, where he had presided as chief, and speedily got into considerable
business. He very soon again insinuated himself into the favor of the
government, and assisted Sir John Banks, the attorney general, in state
prosecutions. He first addressed the jury for the crown in the famous case
of Thomas Harrison, indicted for insulting Mr. Justice Hutton in open
court; leaving the attorney general to sum up the evidence.
Not having been on the bench when the judges gave the extrajudicial
opinion in favor of ship money, nor when Hampden's trial came on, he
escaped impeachment at the meeting of the Long Parliament; and on the
removal of those who were impeached, he was made a puisne judge of the
Court of King's Bench.
When hostilities were about to commence, he happened to be judge of assize
at York, where the king lay. He always protested that he was innocent of
any plot to make himself chief justice of the King's Bench; yet, knowing
that, from bodily infirmity and lukewarmness in the royal cause, Brampston
would not come to York when summoned by the king, there is strong reason
to suspect that he suggested the propriety of this summons, on the
pretence that the chief justice of England might, as chief coroner,
declare an attainder of rebels slain in battle, which would subject their
lands and goods to forfeiture. Brampston was ordered to come to York, and
not making his appearance, he was removed from his office; and Sir Robert
Heath was created chief justice of England, that he might attaint the
slaughtered rebels. Sir John Brampston, the autobiographer, son of the
judge whom Heath superseded, says, "When Sir Robert Heath had that place,
that opinion vanished, and nothing of that nature was ever put in
practice."
But in the autumn of the year 1643, the royalists having gained an
ascendency in the west of England, a scheme was formed to outlaw, for high
treason, the leaders on the Parliament side--as well those who were
directing military operations in the field, as the non-combatants who were
conducting the government at Westminster. A commission passed the great
seal, at Oxford, directed to Lord Chief Justice Heath and three other
judges who had taken the king's side, to hold a court of oyer and terminer
at Salisbury. Accordingly, they took their seats on the bench, and swore
in a grand jury, whom Heath addressed, explaining the law of high treason,
showing that flagrant overt acts had been committed by conspiring the
king's death and levying war against him, and proving by authorities that
all who aided and assisted by furnishing supplies, or giving orders or
advice to the rebels, were as guilty as those who fought against his
majesty with deadly weapons in their hands. Bills of indictment were then
preferred against the Earls of Northumberland, Pembroke, and Salisbury,
and divers members of the House of Commons. The grand jury,
however,--probably without having read Grotius and the writers on public
law, who say that when there is a civil war in a country the opposite
parties must treat each other as if they were belligerents belonging to
two independent nations, but actuated by a sense of the injustice and
impolicy of treating as common malefactors those who, seeking to reform
abuses and vindicate the liberties of their fellow-citizens, were
commanding armies and enacting laws,--returned all the bills _ignoramus_;
and there could neither be any trial nor process of outlawry.
This rash attempt only served to produce irritation, and to render the
parliamentarians more suspicious and revengeful when negotiations were
afterwards opened which might have led to a satisfactory accommodation.
In the summer of the following year, Chief Justice Heath held assizes at
Exeter, and there actually obtained the conviction of Captain Turpine, a
parliamentary officer, who had been taken in arms against the king, and
was produced as a prisoner at the bar. The sheriff appears to have refused
to carry the sentence into execution; but the unfortunate gentleman was
hanged by Sir John Berkeley, Governor of Exeter. The Parliament, having
heard of their partisan being thus put to death in cold blood, ordered
that the judges who condemned him might be impeached of high treason; but
they were afterwards satisfied with passing an ordinance to remove Heath,
and his brethren who had sat with him on this occasion, from their
judicial offices, and to disable them from acting as judges in all time to
come.
Sir Robert Heath never ventured to take his seat as chief justice of the
Court of King's Bench at Westminster; but, after travelling about for some
time with the king, fixed himself at Oxford, where he was made a doctor of
the civil law, and attended as a judge when Charles's Parliament was held
there.
When Oxford was at last obliged to surrender, and the royalists could no
longer make head in any part of England, Heath found it necessary to fly
for safety to the continent. The parliamentary leaders said that they
would not have molested him if he had confined himself to the discharge of
his judicial duties; or even if, like Lord Keeper Littleton and other
lawyers, he had carried arms for the king; but as, contrary to the law of
nations, he had proceeded against several of those who bore a commission
which the Parliament had granted to them in the king's name, they were
determined to make an example of him. Therefore, when an ordinance was
passed, granting an indemnity to the royalists who submitted, he was
excepted from it by name. After suffering great privations, he died at
Caen, in Normandy, in the month of August, 1649.
He had, from his professional gains, purchased a large landed estate,
which was sequestrated by the Parliament, but afterwards was restored by
Charles II. to his son. He had never tried to make his peace with the
dominant party by any concession, and he declared that "he would rather
suffer all the ills of exile than submit to the rule of those who had
first fought their sovereign in the field, and then had murdered him on
the scaffold." With the exception of his bribery, which was never properly
inquired into, and does not seem to have injured him much in the opinion
of his contemporaries, no grievous stain is attached to his memory; and we
must feel respect for the constancy with which he adhered to his political
principles, although we cannot defend them.