Atrocious Judges Part 3

The very next term came on the trial of Sir Thomas Burdett. This descendant of one of the companions of William the Conqueror, and ancestor of the late Sir Francis Burdett, lived at Arrow, in Warwicks.h.i.+re, where he had large possessions. He had been a Yorkist, but somehow was out of favor at court; and the king, making a progress in those parts, had rather wantonly entered his park, and hunted and killed a white buck, of which he was peculiarly fond. When the fiery knight, who had been from home, heard of this affair, which he construed into a premeditated insult, he exclaimed, "I wish that the buck, horns and all, were in the belly of the man who advised the king to kill it;" or, as some reported, "were in the king's own belly." The opportunity was thought favorable for being revenged on an obnoxious person. Accordingly he was arrested, brought to London, and tried at the King's Bench bar on a charge of treason, for having compa.s.sed and imagined the death and destruction of "our lord the king."

The prisoner proved, by most respectable witnesses, that the wish he had rashly expressed was applied only to the man who advised the king to kill the deer, and contended that words did not amount to treason, and that--although, on provocation, he had uttered an irreverent expression, which he deeply regretted--instead of having any design upon the king's life, he was ready to fight for his right to the crown, as he had done before; and that he would willingly die in his defence.

"Lord Chief Justice Billing left it to the jury to consider what the words were; for if the prisoner had only expressed a wish that the buck and his horns were in the belly of the man who advised the king to kill the buck, it would not be a case of treason, and the jury would be bound to acquit; but the story as told by the witnesses for the crown was much more probable, for sovereigns were not usually advised on such affairs, and it had been shown that on this occasion the king had acted entirely of his own head, without any advisers, as the prisoner, when he uttered the treasonable words, must have well known: then, if the words really were as alleged by the witnesses for the crown, they clearly did show a treasonable purpose. Words merely expressing an opinion, however erroneous the opinion, might not amount to treason; but when the words refer to a purpose, and incite to an act, they might come within the statute. Here the king's death had certainly been in the contemplation of the prisoner; in wis.h.i.+ng a violence to be done which must inevitably have caused his death, he imagined and compa.s.sed it. This was, in truth, advising, counselling, and commanding others to take away the sacred life of his majesty. If the wicked deed had been done, would not the prisoner, in case the object of his vengeance had been a subject, have been an accessory before the fact?[35] But in treason accessories before the fact were princ.i.p.als, and the prisoner was not at liberty to plead that what he had planned had not been accomplished. Therefore, if the jury believed that he had uttered the treasonable wish directed against his majesty's own sacred person, they were bound to convict him."

The jury immediately returned a verdict of guilty; and the frightful sentence in high treason, being p.r.o.nounced, was carried into execution with all its horrors. This barbarity made a deep impression on the public mind, and, to aggravate the misconduct of the judge, a rumor was propagated that the late virtuous chief justice had been displaced because he had refused to concur in it.

Lord Chief Justice Billing, having justified his promotion by the renegade zeal he displayed for his new friends, and enmity to his old a.s.sociates, was suddenly thrown into the greatest perplexity, and he must have regretted that he had ever left the Lancastrians. One of the most extraordinary revolutions in history,--when a long continuance of public tranquillity was looked for,--without a battle, drove Edward IV. into exile, and replaced Henry VI. on the throne, after he had languished ten years as a captive in the Tower of London.

There is no authentic account of Billing's deportment in this crisis, and we can only conjecture the cunning means he would resort to, and the pretences he would set up, to keep his place and to escape punishment.

Certain it is, that within a few days from the time when Henry went in procession from his prison in the Tower to his palace at Westminster, with the crown on his head, while almost all other functionaries of the late government had fled, or were shut up in jail, a writ pa.s.sed the great seal, bearing date the 49th year of his reign, by which he a.s.signed "his trusty and well-beloved Sir John Billing, Knight, as his chief justice to hold pleas in his court before him." There can be as little doubt that he was present at the Parliament which was summoned immediately after in Henry's name, when the crown was entailed on Henry and his issue, Edward was declared a usurper, his most active adherents were attainted, and all the statutes which had pa.s.sed during his reign were repealed. It is not improbable that there had been a secret understanding between Billing and the Earl of Warwick, (the king maker,) who himself so often changed sides, and who was now in possession of the whole authority of the government.

While Edward was a fugitive in foreign parts, the doctrine of divine right was, no doubt, at a discount in England, and Billing may have again bolted his arguments about the power of the people to choose their rulers; although, according to the superst.i.tion of the age, he more probably countenanced the belief that Henry was a saint, and that he was restored by the direct interposition of Heaven.

But one would think he must have been at his wits' end when, in the spring of the following year, Edward IV. landed at Ravenspurg, gained the battle of Barnet, and, after the murder of Henry VI. and the Prince of Wales, was again on the throne, without a rival. Billing does seem to have found great difficulty in making his peace. Though he was dismissed from his office, it was allowed to remain vacant about a twelvemonth, during which time he is supposed to have been in hiding. But he had vowed that, whatever changes might take place on the throne, he himself should die chief justice of the King's Bench; and he contrived to be as good as his word.

By his own representations, or the intercession of friends, or the hope of the good services he might yet render in getting rid of troublesome opponents, the king was induced to declare his belief that he who had sat on the trials of Walker and Burdet had unwillingly submitted to force during the late usurpation; and on the 17th of June, 1472, a writ pa.s.sed the great seal, by which his majesty a.s.signed "his right trusty and well-beloved Sir John Billing, Knight, as Chief Justice to hold pleas before his Majesty himself."

For nearly nine years after, he continued in the possession of his office, without being driven again to change his principles or his party. One good deed he did, which should be recorded of him--in advising Edward IV. to grant a pardon to an old Lancastrian, Sir John Fortescue. But for the purpose of reducing this ill.u.s.trious judge to the reproach of inconsistency, which he knew made his own name a by-word, he imposed a condition that the author of _De Laudibus_ should publish a new treatise, to refute that which he had before composed, proving the right of the house of Lancaster to the throne; and forced him to present the pet.i.tion in which he a.s.sures the king "that he hath so clearly disproved all the arguments that have been made against his right and t.i.tle, that now there remaineth no color or matter of argument to the hurt or infamy of the same right or t.i.tle by reason of any such writing, but the same right and t.i.tle stand now the more clear and open by that any such writings have been made against them."

There are many decisions of Chief Justice Billing on dry points of law to be found in the Year Books, but there is only one other trial of historical importance mentioned in which he took any part; and it is much to be feared that on this occasion he inflamed, instead of soothing, the violent pa.s.sions of his master, with whom he had become a special favorite.

Edward IV., after repeated quarrels and reconciliations with his brother, the Duke of Clarence, at last brought him to trial, at the bar of the House of Lords, on a charge of high treason. The judges were summoned to attend, and Lord Chief Justice Billing was their mouthpiece. We have only a very defective account of this trial, and it would appear that nothing was proved against the first prince of the blood, except that he had complained of the unlawful conviction of Burdet, who had been in his service; that he had accused the king of dealing in magic, and had cast some doubts on his legitimacy; that he had induced his servants to swear that they would be true to him, without any reservation of their allegiance to their sovereign; and that he had surrept.i.tiously obtained and preserved an attested copy of an act of Parliament, pa.s.sed during the late usurpation, declaring him next heir to the crown after the male issue of Henry VI. The Duke of Buckingham presided as high steward, and in that capacity ought to have laid down the law to the peers; but, to lessen his responsibility, he put the question to the judges, "whether the matters proved against the Duke of Clarence amounted, in point of law, to high treason." Chief Justice Billing answered in the affirmative. Therefore a unanimous verdict of guilty was given, and sentence of death was p.r.o.nounced in the usual form. I dare say Billing would not have hesitated in declaring his opinion that the beheading might be commuted to drowning in a b.u.t.t of malmsey wine; but this story of Clarence's exit, once so current, is now generally discredited, and the belief is, that he was privately executed in the Tower, according to his sentence.

Lord Chief Justice Billing enjoyed the felicitous fate accorded to very few persons of any distinction in those times--that he never was imprisoned, that he never was in exile, and that he died a natural death.

In the spring of the year 1482, he was struck with apoplexy, and he expired in a few days--fulfilling his vow--for he remained to the last chief justice of the King's Bench, after a tenure of office for seventeen years, in the midst of civil wars and revolutions.

He ama.s.sed immense wealth, but dying childless, it went to distant relations, for whom he could have felt no tenderness. Notwithstanding his worldly prosperity, few would envy him. He might have been feared and flattered, but he could not have been beloved or respected, by his contemporaries; and his name, contrasted with those of Fortescue and Markham, was long used as an impersonation of the most hollow, deceitful, and selfish qualities which can disgrace mankind.

CHAPTER IV.

JOHN FITZJAMES.

Of obscure birth, and not brilliant talents, Sir John Fitzjames made his fortune by his great good humor, and by being at college with Cardinal Wolsey. It is said that Fitzjames, who was a Somersets.h.i.+re man, kept up an intimacy with Wolsey when the latter had become a village parson in that county; and that he was actually in the brawl at the fair when his reverence, having got drunk, was set in the stocks by Sir Amyas Paulet.

While Wolsey tried his luck in the church, with little hope of promotion, Fitzjames was keeping his terms in the inns of court; but he chiefly distinguished himself on gaudy days, by dancing before the judges, playing the part of "Abbot of Misrule," and swearing strange oaths--especially by _St. Gillian_, his tutelary saint. His agreeable manners made him popular with the "readers" and "benchers;" and through their favor, although very deficient in "moots" and "bolts," he was called to the outer bar. Clients, however, he had none, and he was in deep despair, when his former chum--having insinuated himself into the good graces of the stern and wary old man, Henry VII., and those of the gay and licentious youth, Henry VIII.--was rapidly advancing to greatness. Wolsey, while almoner, and holding subordinate offices about the court, took notice of Fitzjames, advised him to stick to the profession, and was able to throw some business in his way in the court of Wards and Liveries--

"Lofty and sour to them that lov'd him not: But to those men that sought him, sweet as summer."

Fitzjames was devotedly of this second cla.s.s, and was even suspected to a.s.sist his patron in pursuits which drew upon him Queen Catharine's censure:--

"Of his own body he was ill, and gave The clergy ill example."

For these or other services, the cardinal, not long after he wrested the great seal from Archbishop Wareham, and had all legal patronage conferred upon him, boldly made Fitzjames attorney general, notwithstanding loud complaints from compet.i.tors of his inexperience and incapacity.

The only state trial which he had to conduct was that of the unfortunate Stafford, Duke of Buckingham, who, having quarrelled with Wolsey, and called him a "butcher's cur," was prosecuted for high treason before the lord high chancellor and Court of Peers, on very frivolous grounds.

Fitzjames had little difficulty in procuring a conviction; and although the manner in which he pressed the case seems shocking to us, he probably was not considered to have exceeded the line of his duty: and Shakspeare makes Buckingham, returning from Westminster Hall to the Tower, exclaim--

"I had my trial, And, must needs say, a n.o.ble one; which makes me A little happier than my wretched father."

The result was, at all events, highly satisfactory to Wolsey, who, in the beginning of the following year, created Fitzjames a puisne judge of the Court of King's Bench, with a promise of being raised to be chief justice as soon as there should be a vacancy. Sir John Fineux, turned of eighty, was expected to drop every term, but held on four years longer. As soon as he expired, Fitzjames was appointed his successor. Wolsey still zealously supported him, although thereby incurring considerable obloquy.

It was generally thought that the new chief was not only wanting in gravity of moral character, but that he had not sufficient professional knowledge for such a situation. His highest quality was discretion, which generally enabled him to conceal his ignorance, and to disarm opposition.

Fortunately for him, the question which then agitated the country respecting the validity of the king's marriage with Catharine of Arragon, was considered to depend entirely on the canon law, and he was not called upon to give any opinion upon it. He thus quietly discharged the duties of his office till Wolsey's fall. But he then experienced much perplexity.

Was he to desert his patron, or to sacrifice his place? He had an exaggerated notion of the king's vengeful feelings. The cardinal having been not only deprived of the great seal, but banished to Esher, and robbed of almost the whole of his property under process of _praemunire_, while an impeachment for treason was still threatened against him, the chief justice concluded that his utter destruction was resolved upon, and that no one could show him any sympathy without sharing his fate.

Therefore, instead of going privately to visit him, as some old friends did, he joined in the cry against him, and a.s.sisted his enemies to the utmost. Wolsey readily surrendered all his private property, but wished, for the benefit of his successors, to save the palace at Whitehall, which belonged to the see of York, being the gift of a former archbishop. A reference was then made to the judges, "whether it was not forfeited to the crown;" when the chief justice suggested the fraudulent expedient of a fict.i.tious recovery in the Court of Common Pleas, whereby it should be adjudged to the king under a superior t.i.tle. He had not the courage to show himself in the presence of the man to whom he owed every thing; and Sh.e.l.ley, a puisne judge, was deputed to make the proposal to him in the king's name. "Master Sh.e.l.ley," said the cardinal, "ye shall make report to his highness that I am his obedient subject, and faithful chaplain and bondsman, whose royal commandment and request I will in no wise disobey, but most gladly fulfil and accomplish his princely will and pleasure in all things, and in especial in this matter, inasmuch as the fathers of the law all say that I may lawfully do it. Therefore I charge your conscience, and discharge mine. Howbeit, I pray you show his majesty from me that I most humbly desire his highness to call to his most gracious remembrance that there is both heaven and h.e.l.l."

This answer was, no doubt, reported by Sh.e.l.ley to his brethren a.s.sembled in the Exchequer Chamber, although, probably, not to the king; but it excited no remorse in the breast of Chief Justice Fitzjames, who perfected the machinery by which the town residence of the Archbishops of York henceforth was annexed to the crown, and declared his readiness to concur in any proceedings by which the proud ecclesiastic, who had ventured to sneer at the reverend sages of the law, might be brought to condign punishment.

Accordingly, when Parliament met, and a select committee of the House of Lords was appointed to draw up articles of impeachment against Wolsey, Chief Justice Fitzjames, although only summoned, like the other judges, as an a.s.sessor, was actually made a member of the committee, joined in their deliberations, and signed their report.

The authority of the chief justice gave such weight to the articles that they were agreed to by the lords, _nemine contradicente_; but his ingrat.i.tude and tergiversation caused much scandal out of doors, and he had the mortification to find that he might have acted an honorable and friendly part without any risk to himself, as the king, retaining a hankering kindness for his old favorite, not only praised the fidelity of Cavendish and the cardinal's other dependants who stuck by him in adversity, but took Cromwell into favor, and advanced him to the highest dignities, pleased with his gallant defence of his old master: thus the articles of impeachment (on which, probably, Fitzjames had founded hopes of the great seal for himself) were ignominiously rejected in the House of Commons.

The recreant chief justice must have been much alarmed by the report that Wolsey, whom he had abandoned, if not betrayed, was likely to be restored to power, and he must have been considerably relieved by the certain intelligence of the sad scene at Leicester Abbey in the following autumn, which secured him forever against the fear of being upbraided or punished in this world according to his deserts. However, he had now lost all dignity of character, and henceforth he was used as a vile instrument to apply the criminal law for the pleasure of the tyrant on the throne, whose relish for blood soon began to display itself, and became more eager the more it was gratified.

Henry retaining all the doctrines of the Roman Catholic religion which we Protestants consider most objectionable, but making himself pope in England in place of the Bishop of Rome, laws were enacted subjecting to the penalties of treason all who denied his _supremacy_;[36] and many of these offenders were tried and condemned by Lord Chief Justice Fitzjames, although he was suspected of being in his heart adverse to all innovation in religion.

I must confine myself to the two most ill.u.s.trious victims sacrificed by him--Fisher, Bishop of Rochester, and Sir Thomas More. Henry, not contented with having them attainted of _misprision of treason_, for which they were suffering the sentence of forfeiture of all their property and imprisonment during life, was determined to bring them both to the block, and for this purpose issued a special commission to try them on the capital charge of having denied his supremacy. The lord chancellor was first commissioner; but it was intended that the responsibility and the odium should chiefly rest on the Lord Chief Justice Fitzjames, who was joined in the commission along with several other common law judges of inferior rank.

The case against the Bishop of Rochester rested on the evidence of Rich, the solicitor general, who swore he had heard the prisoner say, "I believe in my conscience, and by my learning I a.s.suredly know, that the king neither is, nor by right can be, supreme head of the church of England;"

but admitted that this was in a confidential conversation, which he had introduced by declaring that "he came from the king to ask what the bishop's opinion was upon this question, and by a.s.suring him that it never should be mentioned to any one except the king, and that the king had promised he never should be drawn into question for it afterwards." The prisoner contending that he was not guilty of the capital crime charged for words so spoken, the matter was referred to the judges.

"Lord Chief Justice Fitzjames, in their names, declared 'that this message or promise from the king to the prisoner neither did nor could, by rigor of law, discharge him; but in so declaring of his mind and conscience against the _supremacy_--yea, though it were at the king's own request or commandment--he committed treason by the statute, and nothing can discharge him from death but the king's pardon.'"

_Bishop of Rochester._--"Yet I pray you, my lords, consider that by all equity, justice, worldly honesty, and courteous dealing, I cannot, as the case standeth, be directly charged therewith as with treason, though I had spoken the words indeed, the same not being spoken maliciously, but in the way of advice or counsel, when it was required of me by the king himself; and that favor the very words of the statute do give me, being made only against such as shall '_maliciously_ gainsay the king's supremacy,' and none other; wherefore, although by rigor of law you may take occasion thus to condemn me, yet I hope you cannot find law, except you add rigor to that law, to cast me down, which herein I have not deserved."

_Fitzjames, C. J._--"All my brethren are agreed that '_maliciously_' is a term of art and an inference of law, not a qualification of fact. In truth, it is a superfluous and void word; for if a man speak against the king's supremacy by any manner of means, that speaking is to be understood and taken in law as _malicious_."

_Bishop of Rochester._--"If the law be so, then it is a hard exposition, and (as I take it) contrary to the meaning of them that made the law, as well as of ordinary persons who read it. But then, my lords, what says your wisdom to this question, 'Whether a single testimony may be admitted to prove me guilty of treason; and may it not be answered by my negative?'

Often have I heard it said, that to overcome the presumption from the oath of allegiance to the king's majesty, and to guard against the dire consequences of the penalties for treason falling on the head of an innocent man, none shall be convicted thereof save on the evidence of two witnesses at the least."

_Fitzjames, C. J._--"This being the king's case, it rests much in the conscience and discretion of the jury; and as they upon the evidence shall find it, you are either to be acquitted or else to be condemned."

The report says that "the bishop answered with many more words, both wisely and profoundly uttered, and that with a mervailous, couragious, and rare constancy, insomuch as many of his hearers--yea, some of the judges--lamented so grievously, that their inward sorrow was expressed by the outward teares in their eyes, to perceive such a famous and reverend man in danger to be condemned to a cruell death upon so weake evidence, given by such an accuser, contrary to all faith, and the promise of the king himself."

A packed jury, being left to their conscience and discretion, found a verdict of guilty; and Henry was able to make good his saying, when he was told that the pope intended to send Bishop Fisher a cardinal's hat--"'Fore G.o.d, then, he shall wear it on his shoulders, for I will have his head off."

The conduct of the chief justice at the trial of Sir Thomas More was not less atrocious. After the case for the crown had been closed, the prisoner, in an able address to the jury, clearly proved that there was no evidence whatever to support the charge, and that he was ent.i.tled to an acquittal; when Rich, the solicitor general, was permitted to present himself in the witness box, and to swear falsely, that "having observed, in a private conversation with the prisoner in the Tower, 'No Parliament could make a law that G.o.d should not be G.o.d,'[37] Sir Thomas replied, 'No more can the Parliament make the king supreme head of the church.'"

A verdict of guilty was p.r.o.nounced against the prisoner, notwithstanding his solemn denial of ever having spoken these words. He then moved, in arrest of judgment, that the indictment was insufficient, as it did not properly follow the words of the statute which made it high treason to deny the king's supremacy, even supposing that Parliament had power to pa.s.s such a statute. The lord chancellor, whose duty it was, as head of the commission, to pa.s.s the sentence--"not willing," says the report, "to take the whole load of his condemnation on himself, asked in open court the advice of Sir John Fitzjames, the lord chief justice of England, whether the indictment was valid or no."

_Fitzjames, C. J._--"My lords all, by St. Gillian, (for that was always his oath,) I must needs confess that if the act of Parliament be not unlawful, then the indictment is not, in my conscience, invalid."

_Lord Chancellor._--"_Quid adhuc desideramus, testimonium? Reus est mortis._ (What more do we need? He is worthy of death.) Sir Thomas More, you being, by the opinion of that reverend judge, the chief justice of England, and of all his brethren, duly convicted of high treason, this court doth adjudge that you be carried back to the Tower of London, and that you be thence drawn on a hurdle to Tyburn, where you are to be hanged till you are half dead, and then being cut down alive and embowelled, and your bowels burnt before your face, you are to be beheaded and quartered, your four quarters being set up over the four gates of the city, and your head upon London Bridge."

No one can deny that Lord Chief Justice Fitzjames was an accessory to this atrocious murder.