Council sometimes appears to us to encroach upon the independence of the Bench, we should do well to remember that it always professed and generally showed great respect to the law;1 that it consulted the judges when the law appeared to be at all doubtful; and that it generally acted upon their opinions. Nor are instances wanting in which the judges asserted and maintained as against the Council their right to interpret the law freely and independently. They so acted, not only when the crown sought to encroach upon their emoluments by attempting to appoint to offices within their gift, but also in defence of the liberty of the subject. In 1550 Lyster, Bromley, and Portman J.J. appeared before the Council and justified a refusal to stay process in a case of praemunire, on the ground that, "thei were sworen to suffer the lawes to have their due courses, so that withoute violatinge of their othes thei could staye no proces." In 1591 the opinion of all the judges upon commitments by the Council contained at once a protest against causeless detention, and a statement of law for the future, which was meant to limit the discretion of the Council. Nor were they slow to maintain the dignity of their courts. Most persons have heard of the fate of the condemned criminal who "ject un Brickbat a le justice que narrowly mist;" and Manningham tells us how " Upon a tyme when the late Lord Treasurer, Sir William Cecile, came before Justice Dyer in the Common Place with his rapier by his side, the Justice told him that he must lay aside his long penknife if he would come into that Court." 6 It was but rarely that any unusual event disturbed the routine of the courts at Westminster or on circuit. We get, it is true, echoes of the great events passing in the outside world in the cases which came before the courts; but these events rarely affected them in any other way. Occasionally, however, they broke the ordinary routine of business. In 1517, after the Evil May Day, "the Kinge satt in the Kinge's Benche in Westminster Hall, and there was brought before him all the prisoners, which came from the Tower of London in their shirtes with fitter to leade the rebells in Northampton (whiche lately before had been in commotion) than to sit thear as a justice of peace. Thear was great speaking and talking over all the countrye, of this noble and stout peece of justice." 3 Dasent iii 159, 160; in 1616 Chamberlain noted that Warburton J. was in disgrace for hanging a Scotch falconer of the king contrary to his command, S. P. Dom. 1611-1618, 398, lxxxviii 12. 4 Vol. i 509; vol. iv 87; above 191; vol. vi c. 6; Prothero, Documents 446-448 gives from the Lansdowne MSS. Ixviii 87 the authentic version to which the autograph signatures of the judges are attached; an imperfect version is given 1 And. 297-298; for the two versions see App. I. 5 (1631) Dyer 188b note. Manningham's Diary (C.S.) 36. halters about their neckes, and there the king pardoned them." 1 By reason of the fear caused by Wyatt's rebellion, on Candlemas day 1553-1554 and on other days, "the justices, serjeantes at the law, and other lawyers in Westminster Hall, pleaded in harnesse." 2 On one occasion Chief Justice Anderson, while on circuit, took a sword to help stop a fray which had begun in his presence. We have seen that on two other occasions it seemed likely that the judges of the court of Common Pleas would be obliged to preside at the species of fray still recognized by lawtrial by battle. Several times during this period outbreaks of the plague made it necessary to adjourn the term. In 1625 Whitelocke tells us how, "when the plague was somewhat assuaged and there died in London but 2500 in a week," his father was obliged to go to Westminster to adjourn the Michælmas Term to Reading; he tells how he came to Hyde Park and dined on the ground on such food as they had brought, "and afterwards he drove fast through the streets, which were empty of people and overgrown with grass to Westminster Hall; where the officers were ready, and the judge and his company went straight to the King's Bench, adjourned the court, returned to his coach, and drove away presently out of town." 5 In 1629 the spring tide flooded Westminster Hall, so "that neither the serjeants could come to the bar, nor any stand in the Hall, for there was a boat that rowed up and down there." " Similarly the judges in the sixteenth century were very little affected by the political and religious changes of the period. The two chief justices, Cholmley and Mountague, lost their places on the accession of Mary for the part which they had taken in the attempt to disturb the order of the succession to the throne. And, at the beginning of the same reign, Hales, a judge of the Common Pleas, was imprisoned, and induced by threats to recant his Protestant principles. But this recantation so preyed upon his mind that he committed suicide by drowning himself; and his suicide gave rise to two reported cases, which in their turn are supposed to have given rise to the reasoning which Shakespeare put into the mouth of the grave-diggers in a famous scene in Hamlet. Except in these cases, the political and religious changes of the sixteenth century left very slight 1 Wriothesley's Chronical (C.S.) 11. Stow, Annals (Ed. Howes 1631) 619. 3 Manningham's Diary (C.S.) 41. "Whitelocke's Memorials i 5. 7 Foss, Judges v 343, 344. 4 Vol. i 310. Bishop of Chichester v. Webb (1554) 2 Dyer 108; Hales v. Petit (1561) Plowden 253-265. 'Foss, Judges v 373-374. L traces upon the constitution of the Bench. No doubt most of the judges were willing, like the majority of the nation, to conform silently to the religion of the reign. Unlike Hales, they did not attract notice by pointedly calling attention to laws which were in opposition to it. They were therefore subjected to no searching questions by either side. At any rate it is clear that Elizabeth on her accession renewed the patents of all her sister's judges; and several undoubted Papists retained their seats on the Bench for the rest of their lives. We cannot doubt but that the position which the judges thus occupied outside political controversy, coupled with their just reputation for learning and uprightness, led to a respect for their rulings and decisions which helped in no small degree the peaceful government of the state. All this was changed in the first half of the seventeenth century. The constitutional conflict divided the nation into two camps; and it was hardly to be expected that the king would allow his political opponents to retain their seats on the bench. The debatable questions of constitutional law which divided the nation were often so very debatable, that it was impossible to suppose that a lawyer's view of the law was not consciously or unconsciously swayed by political considerations. Both Bar and Bench soon felt the effects of the conflict. Counsel who ventured to question the acts of the government were persecuted by courts which were more closely identified with the government than the common law courts. Fuller, who had applied for a prohibition against the court of High Commission, was prosecuted by that court, nominally for schism.3 Whitelocke, who had opposed the king's power to levy impositions in 1610, "was taunted and checked" by Ellesmere when he appeared to argue a case in the court of Chancery, and was imprisoned by the Council for venturing to dispute on behalf of his client the legality of the earl Marshal's court. Even a reading in the Middle Temple upon a statute of Edward III.'s reign," which touched upon the jurisdiction of the common law courts in ecclesiastical cases, was stopped because it bore upon present politics." 'Shortly after Elizabeth's accession Saunders, Chief Justice of the Queen's Bench, became Chief Baron of the Exchequer, and Browne, Chief Justice of the Common Pleas, became a puisne judge of the Common Pleas in both cases the judges thus changed to less important positions were Roman Catholics, Foss, Judges v 406-407. 2 Vol. vi c. 6. 3 Below 429. Liber Famelicus (C.S.) 33-40; for the abuses of this court see vol. i 580; Life of Clarendon 934-935. 525 Edward III. St. 3 c. 7. Whitelocke, Memorials i 95-97; for an account of this reading, which was by Edmund Bagshaw, see S. P. Dom. 1639-1640 522-524, ccccxlvii 33; it is recorded that "the reader went out of town escorted by 40 or 50 horsemen in very good credit and applause of the house of which he is a member." "4 2 Judges were frequently dismissed for political reasons. Coke heads the list in 1616. Then followed Chief Justices Crew and Heath in 1626 and 1634. Chief Baton Walter was suspended in 1630, and was not dismissed only because, as was often the case with the Barons of the Exchequer, he had been appointed "quamdiu se bene gesserit." Pressure was put upon them to delay justice in cases in which the government was interested— the Case of Commendams is, as we shall see, a striking example.5 With increasing frequency they were asked to give extra-judicial opinions upon pending cases, or upon political questions which were likely to give rise to decisions interesting to the government. Illustrations are to be found in Peacham's Case, and in the questions addressed to them as to the effect of the passing of the Petition of Right upon the crown's power to commit to prison, as to the extent of Parliamentary privilege, and as to the legality of ship money. It is true that the action of the crown in thus consulting the judges was at that time regarded as legal. 10 But when a king, who could and did dismiss judges for political reasons, constantly put these questions to them, they were obviously exposed to the constant temptation of giving the answer known to be wanted. The climax was reached in 1637, when the king promulgated their opinion as to the legality of ship money, and required all of them to append their signatures, in order to stop litigation as to its legality."1 1 Below 440-441. 2 Gardiner, History of England vi 149. 3 Ibid vii 361-" It is probable, though not a word of evidence exists, that Charles had reason to think that he was not sound on the question of ship money"; see S.P. Dom. 1634-1635 xiv for his humble, but unsuccessful petition to Charles not to dismiss him; even after his dismissal he clearly hoped to regain court favour, ibid 289 cclxxvii 37; 453 cclxxxii 16. ♦ Ibid vii 112-114; cp. S.P. Dom. 1629-1631 76, 77-78, cl 47, 58. 7 Bramston, Autobiography (C.S.) 48, 49, gives the questions from a report of Hyde C.J.; cp. Gardiner, op. cit. vi 294-296. It appears from Bramston's Autobiography (C.S.) 49-54 that (1) the king on March 3, 1628-1629, put certain questions to the two chief justices and the chief baron; it is these questions that are reproduced in Nelson's Collections ii 374; and (2) that in April he put another set of questions to all the judges and Barons of the Exchequer; it is these questions that are reproduced in 3 S.T. 235-238, and in Rushworth i 672-674; Bramston's account of the contents of the questions would seem to be the most accurate as he said that he had it from Hyde's own report. "See Gardiner, op. cit. viii 94 for the opinion of 1635; to this opinion Croke did not wholly assent, and Hutton did not sign it. 10 Below 428 n. 1, 438. 11 See the text of this document in Gardiner, op. cit. viii 206-208; as Gardiner says, ibid. 207—" Hitherto, whenever the crown had asked the opinion of the judges, it had asked that opinion, at least ostensibly, to enable it to shape its course according to law. Charles now openly asked them to promulgate that opinion, which he had received from them a year before, not to enlighten himself, but to hinder his subjects from arguing the question in Westminster Hall"; Whitelocke, Memorials i 71, says that Finch Č.J. resorted to bribes and threats to get the signatures of the judges; and there is some evidence that Bramston as well as Hutton and Croke It is true that the judges sometimes plucked up the courage to act independently. They refused to answer all Charles I's questions as to the legal consequences of his assent to the Petition of Right,' and as to the extent of Parliamentary privilege,2 because some of the matters raised by these questions were likely to come before them judicially-though they hinted that they agreed with the view which the king wished them to take. We have seen that they stated clearly that torture was illegal by the common law.3 In 1632 Chief Justice Richardson refused to obey the orders of the government to see that the justices of the peace suppressed wakes on Sundays; and in consequence he was soundly rated by Laud. In 1631 the judges refused to delay an action for false imprisonment brought against certain members of the court of High Commission, and proceeded to hear it, in spite of the express command of the king given by himself in person. But, in the years of prerogative government which followed upon the dissolution of Parliament in 1629, they gradually and inevitably tended to become identified with the party and the policy of the king. They became, Clarendon tells us, as sharp sighted as secretaries of state in the mysteries of state, and in courts of law apothegms of state were urged as elements of law. Thus they tended to become merely the civil servants of the king, and not the independent expositors of the law that they had been in the Tudor period. And, as they sank to this position, so their appointments tended, like that of other civil servants in the Stuart period, to be made dependent upon court influence, and even upon bribery and other forms of corruption. 5 only subscribed because they were told it was usual to put their signatures to what the majority had agreed, Bramston, Autobiography (C.S.) 68, 79, 80. 1 Gardiner, op. cit. vi 295-296. 2 Bramston, Autobiography (C.S.) 53-54-the attorney-general read a speech of Sir John Eliot's and asked the judges if it was censurable; they replied, "they desire to be spared to give any answer to a particular case which might peradventure come before them judicially; but they all disliked manie parts of the speech, and did conceave it to be not accordinge to a parliamentarie proceedinge." 3 Above 185. 4 Whitelocke, Mem. i 17; Foss, Judges vi 361; in 1628 he had been in trouble because he was accused of granting a Prohibition contrary to the wishes of the king, and he had written to assure the king the accusation was unjust, S.P. Dom. 16281629 361, cxix 39; see ibid 380, cxx 65 for another order of the king not to grant a Prohibition. 5 Whitelocke's Memorials i 44, 45. Gardiner, op. cit. vii 123, 361-"They never ventured to regard themselves as arbiters between the crown and the nation. They accepted in the fullest sense the position of defenders of the prerogative. . . . They were well pleased that the Government should go its own way if only it flattered them by referring the legality of its action to the metewand of their learning " 7 History of the Rebellion 29; cp. Selden, Table Talk 95-"The king's oath is not security enough for our property, for he swears to govern according to law; now the judges they interpret the law; and what judges can be made to do we know." |