through the state trials of this period, it is wonderful to see how he contrived to throw the odious parts upon the King's Serjeant and the Attorney General, and how he betook himself to comfortable obscurity. In the prosecution against Bastwick, Burton, and Pyrnne, although he could not be silent, he confined himself when he followed Sir John Banks and Serjeant Whitfield to vindicating the memory of Noy, who was said in "The Divine Tragedy," one of the publications included in the information, to have been struck, as a judgment from Heaven, with a mortal disease when scoffingly looking at Prynne having his ears cut off in the pillory under a former sentence.*

At last came Rex v. Hampden, and he was obliged to take the labouring oar. Ship-money was to be proved to be [A. D. 1637.] legal by precedents, processes, records, and writings of different æras, from the Heptarchy downwards, which were to upset all the acts of parliament which had been passed to forbid taxation without authority of parliament, and were to show that acts of parliament upon such a subject were ultra vires and void. Noy being gone, it was felt that no one could so well use his materials as Mr. Solicitor. He was heard before all the Judges in the Exchequer Chamber for the Crown three entire days, after Oliver St. John had spoken two days for the defendant. His argument is certainly very learned and ingenious, and much more modest, or rather less outrageously offensive, than that of Chief Justice Finch and several of the Judges, who openly avowed the principles of pure despotism, insisting that the prerogative of the Crown was essentially absolute, and could not be controlled by legislative enactments. He candidly allowed that in England, subjects have a property in their goods; but he contended that the law of property must give place to the law of nature for the common defence, and that the levying of a debt or duty upon property, so far from destroying doth confirm it. Quicquid necessitas cogit defendit; the law of the time must regulate the law of the place. A chirurgeon may cut off one member to save the rest. If a storm arise at sea, to cast out goods is lawful, and they whose goods are saved shall contribute to the loss. A man may pull down the

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house of another when the next house to it is on fire. Jem tua res agitur paries cum proximus ardet. If two men are fighting, a passer-by may part them and put them into several chambers, because it is for the good of the commonwealth. If a madman be abroad, he may be taken, whipped, and imprisoned, lest he do vio

"The

* A ludicrous circumstance happened on this occasion, which shows that, even in the Star Chamber, in cases of libel, the truth of the charge might be inquired into. Littleton undertook to prove by three or four gentlemen of good credit and rank, that Mr. Noy laboured long before under the infirmity of which he died. Solicitor then called out for room for the gentlemen to come in, but none such appeared."-3 St. Tr. 719. So late as Queen Anne's time, Lord Holt, in Tuchin's case, called upon the defendant to prove the truth of his charges, and the judgemade doctrine that "the greater the truth the greater the libel," now statutably repealed,-was of later origin,

lence to himself or others. The King may compel all to defend the realm, and he may vary the mode of contributing to the public defence. Judges are not to fight, but they are to be knighted*; nay, a Serjeant sworn in the Common Pleas is compellable ; Rolfe, a stout Serjeant, pleaded that he was of the degree of the coif, and not bound to be a knight, but he was forced to it. Imminent perils to a state dispense with ordinary proceedings in law; inter arma silent leges. Nay, if there are but rumours of war, laws are silent." He then undertakes to prove his general doctrines by going through English History from the foundation of the kingdom to the Norman Conquest-from thence to Magna Charta-to the statute De Tallagio non concedendo-to the first granting of tonnage and poundage-and, finally, to the Petition of Right, "which did no ways concern the dispute." He relied mainly on Danegelt, arguing, that “if usurpers could lay this tax on the people, much more may our natural born King do the like-which shows it to be an undoubted inalienable right in the Crown of England. Oh, say they, but this may be done by parliament. By a may be a man may answer any argument. Oh, but they tell us that Fortescue, Chief Justice of the King's Bench, to show the law of England to be better than the law of France, saith, that nothing can be taken from an Englishman but by parliament, he himself consenting thereto. That, my Lords, is in the ordinary way. Doth he say that no man without parliament may contribute to defend himself? Ne verbum quidem!”—But this taste of the reasoning of the law officers of the Crown in those days must suffice.

Although he acquired considerable reputation on this occasion, he became more and more dissatisfied with his position and with the aspect of public affairs. He lamented the inhuman punishments to which his colleagues instigated the Star Chamber, and, amidst the growing discontents of the nation, he saw distinctly that the day of retribution was at hand.

Finch being made Lord Keeper on the death of Coventry, a vacancy occurred in the office of Chief Justice of [JAN. 1640.] the Common Pleas, to which Banks had the best right, this being called “the Attorney General's cushion;" but Mr. Attorney being of a stouter heart, and not unwilling to enjoy a little longer the sweets of his lucrative place, waived his claim, and Littleton, to his inexpressible delight, from being tossed on a tempestuous ocean, found himself at once in the delicious harbour for which he had long prayed, and which he had hardly hoped ever to reach. "He was made Chief Justice of the Common Pleas, then the best office of the law, and that which he was wont to say, in his highest ambition in his own private wishes, he had most desired: and it was indeed the sphere in which he moved

* One judge in my time successfully resisted this supposed obligation, by refusing to go to court or to appear in the King's presence after his appointment. He said that he was determined to die 'John Heath, Esquire.”

most gracefully and with most advantage, being a master of all that learning and knowledge which that place required, and an excellent Judge, of great gravity, and above all suspicion of corruption."*

He was soon after made a privy Councillor, against the wishes of Lord Keeper Finch, who was desirous of preventing other lawyers from entering into any rivalship with himself. The succeeding twelve months must have been a very agreeable portion of his existence, from his considering not only what he actually enjoyed, but that, from which he had escaped, and to which he saw others exposed. While he was securely reaping the public applause in a high office, the duties of which he felt that he thoroughly understood and could satisfactorily perform, he must have thought to himself what he must have suffered buffetted in the House of Commons,-vainly attempting to palliate the enormities of the government, which he had secretly lamented and condemned. When the fatal step was [APRIL.] taken of abruptly dissolving the parliament, if still a law officer of the Crown, he would have been called upon to give an opinion that the Convocation might sit on, vote supplies, and make canons binding on the laity, he would have been called upon to sanction modes of filling the Exchequer if possible more illegal than shipmoney, and he would have seen the dire necessity of being soon exposed to another parliament in which the misgovernment of twelve years was inevitably to be examined and punished.

When the Long Parliament met, he little thought that his further elevation and his troubles were approaching: and he still hoped that he might long repose on [Nov. 1640.] his "cushion " in the Common Pleas. In the morning after Finch's flight, he suddenly founded himself on the woolsack, as Speaker of the House of Lords. Still he trusted that this appointment was only temporary, till the Great Seal should be delivered to another Lord Keeper.

But he discovered in a little time that the King, by the secret advice of Strafford and Laud, wished that he himself should become Lord Keeper. Sincerely declining the elevation, he was gently reminded of his obligations to the King, and strongly assured, that he might not only be instrumental in saving his old friends and patrons about to be tried for high treason in the House of Lords, but that he might be the means of bringing about a happy settlement of all the existing differences, and of saving the state. Conscious of his own mental infirmities, and foreseeing the perplexities in which they might involve himself and others, he long resisted; but Hilary term approaching, there being an absolute necessity that the vacancy should be filled up for the ordinary administration of justice, and the King's importunity continuing, he yielded, and took the step which he for ever repent

* Clarendon,

ed; for he had not another day of peace of mind, and he experienced nothing but doubt, anxiety, mortification, and self-reproach, till his eyes were closed in death.

He received the Great Seal, as Lord Keeper, at Whitehall, on the 19th of January, 1641; and two day after, on [A. D. 1641.] the first days of Hilary term, he took his place in the Court of Chancery in the presence of the Lord Treasurer, the Earl Marshal, the Marquis of Hamilton, the Earl of Pembroke, and many others of the nobility. * On the 18th of February following, he was raised to the Peerage by the title of Lord Littleton, of Mounslow,-this promotion likewise being said to have been suggested by Lord Strafford, who thought he might be more useful if permitted to take part in the proceedings of the House as a Peer than if he could only put the question as Speaker, a plan destined to end in disappointment and discomfiture.

The first business which came before the House of Lords after

[FEB.] the new Lord Keeper's elevation, was the "Triennial

Bill," by which, if there was an intermission of parliaments for three years, the Peers were to meet and issued writs, in the King's name, for the holding of a parliament; and in case of default by the Peers, the returning officers were to elect representatives to the House of Commons; and in case of their default, the constitutents were to meet and choose representatives of their own authority, so that this law might not be evaded—as that had been which required "that parliament should be held yearly, and oftener if need be.” The passing of this act caused ringing of bells and bonfires all over England; and the Lord Keeper, by the direction of both Houses, returned thanks to his Majesty for giving his assent to it; saying, that it would be of singular security for the present, of infinite honour to his Majesty's royal crown and dignity, and of great comfort to posterity.† He then took an oath before the Lords spiritual and temporal, that while he held the Great Seal he would duly issue writs for the summoning of parliaments as the act directs.‡

We now come to a passage in his life which justly subjects him to the charge of the basest pusillanimity. Treachery even was imputed to him; but I think his conduct is to be explained by a lamentable deficiency of courage, not of principle. He had been recently raised to the Peerage in the belief that he might be of essential service, by presiding as a member of the House of Lords, at the important trial about to take place, on which the life of Strafford, and the fate of the monarchy, were supposed to depend. According to Clarendon,-when he had been made Lord Keeper, he was a little mortified in not at once having a Peerage, and he himself expressly pointed out to the King the important services he should be able to render to the royal cause if that dignity were conferred upon him.

*Crown Off. Min. Book, fol. 5.

Crown Off. Min. Book, fol. 5.

† 2 Parl. Hist. 718.

On the day when Strafford was to be arraigned, the King unexpectedly came to the House of Lords, and seating himself on the throne without his robes, merely said that [FEB. 24.] he wished to hear the nature of the charges. The ceremony having been once gone through, he withdrew, and several Peers testified high resentment at this intrusion, insisting that it was an attempt to intimidate, and that all that had taken place while the King was present was to be considered coram non judice, and void.

Now it was expected that "Baron Littleton of Mounslow" would have stood up for the King, and he certainly might have urged that both on principle and precedent, Charles in this instance had done nothing irregular, for the King is always supposed to be present in parliament, and in former times was actually on the throne, not only at the opening and conclusion of the session, but almost constantly while any business was going on. Although it belonged to the Peers to regulate the conduct of this impeachment, and to decide by a majority of votes upon the guilt or innocence of the accused, the King, without interfering with the proceeding, was entitled to be present at it, and might at any moment have put a stop to it by a dissolution. But the Lord Keeper was so frightened by this sudden storm, that he had not a word to say even by way of apology for the King, and a motion being carried without opposition, that the Earl of Strafford be again called to the bar, that the articles of impeachmeut might be read to him and his plea taken de novo;—without leaving the woolsack, he a second time went through the ceremeny of the arraignment.*

Some thought that the Lord Keeper would make amends when the trial actually came on; but the day before that fixed for its commencement, he sent a message to the House of Lords, intimating that he was taken so ill that it was impossible for him to attend, and besides that he had some doubts whether the objection of the Commons was not well founded, that no Peers created since the impeachment was voted ought to sit on the trial, as the impeachment was in the name of all the Commons of England, and therefore such Peers being prosecutors were disqualified as Judges.†

This was justly considered a material advantage gained for the impeachment. The Earl of Arundel, the Earl Marshal, an enemy of Strafford, was elected by the House to sit Speaker in the absence of the Lord Keeper.

The truth was, that when Littleton heard of the preparations in Westminster Hall for this great solemnity,-the court for the

* 2 Parl. Hist. 742.

In point of law there is no foundation for this objection. The creation of peers to influence a pending impeachment would be highly unconstitutional, and would subject those who advised such a step to severe punishment; but peers, when created, have all the rights and privileges of the peerage, and no exception can be taken to the competency of any peer..