Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression

CHAPTER VIII.

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.53 “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,”54 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.”55

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.

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.

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.”

CHAPTER IX.

ROBERT FOSTER

At the restoration of Charles II. it was considered necessary to sweep away the whole of the judges from Westminster Hall, although, generally speaking, they were very learned and respectable, and they had administered justice very impartially and satisfactorily.56 Immense difficulty was found in replacing them. Clarendon was sincerely desirous to select the fittest men that could be found, but from his long exile he was himself entirely unacquainted with the state of the legal profession, and, upon making inquiries, hardly any could be pointed out, whose political principles, juridical acquirements, past conduct, and present position entitled them to high preferment. The most eminent barristers on the royalist side had retired from practice when the civil war began, and the new generation which had sprung up had taken an oath to be faithful to the commonwealth. One individual was discovered – Sir Orlando Bridgman – eminent both for law and for loyalty. Early distinguished as a rising advocate, he had sacrificed his profits that he might assist the royal cause by carrying arms; and, refusing to profess allegiance to those whom he considered rebels, he had spent years in seclusion, – still devoting himself to professional studies, in which he took the highest delight. At first, however, it was thought that he could not properly be placed in a higher judicial office than that of chief baron of the Exchequer; and the chiefships of the King’s Bench and Common Pleas were allowed to remain vacant some months, puisnies being appointed in each court to carry on the routine business.