Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression
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At last a chief justice of England was announced – Sir Robert Foster; and his obscurity testified the perplexity into which the government had been thrown in making a decent choice. He was one of the very few survivors of the old school of lawyers, which had flourished before the troubles began; he had been called to the degree of serjeant at law so long ago as the 30th of May, 1636, at a time when Charles I., with Strafford for his minister, was ruling with absolute sway, was imposing taxes by his own authority, was changing the law by proclamation, and hoped never again to be molested by Parliaments. This system was condemned and opposed by the most eminent men at the English bar, but was applauded and supported by some who conscientiously thought that all popular institutions were mischievous, and by more who thought that court favor gave them the best chance of rising in the world. Foster is supposed to have defended ship money, the cruel sentences of the Star Chamber, the billeting of soldiers to live at free quarters, and other flagrant abuses, as well from a sincere love of despotism as from a desire to recommend himself to those in power.57
At the time when tyranny had reached its culminating point, he was appointed a puisne judge of the Court of Common Pleas. Luckily for him, Hampden’s case had been decided before his appointment, and he was not impeached by the Long Parliament. When the civil war broke out, he followed the king; and afterwards assisted in attempting to hold a Court of Common Pleas at Oxford, but sat alone, and his tribunal was without advocates or suitors. An ordinance passed the House of Commons for removing him from his office, and on account of his excessive zeal in the royal cause, he was obliged to compound for his estate by paying a very large fine.
After the king’s death, he continued in retirement till the Restoration. He is said to have had a small chamber in the Temple, and like Sir Orlando Bridgman and Sir Jeffery Pelman, to have practised as a chamber counsel, chiefly addicting himself to conveyancing.
The first act of the government of Charles II. was to reinstate Foster in his old office. There was a strong desire to reward his constancy with fresh honors; but he was thought unfit to be raised higher, and the office of chief justice of the King’s Bench could not be satisfactorily filled up.
Only six common law judges had been appointed when the trials of the regicides came on. Foster, being one of them, distinguished himself for his zeal; and when they were over, all scruples as to his fitness having vanished, he, who a few months before, shut up in his chamber that he might escape the notice of the Roundheads, never expected any thing better than to receive a broad piece for preparing a conveyance according to the recently invented expedient of “lease and release,” was constituted the highest criminal judge in the kingdom.
He presided in the Court of King’s Bench for two years. Being a deep black letter lawyer, he satisfactorily disposed of the private cases which came before him, although he was much perplexed by the improved rules of practice introduced while he was in retirement, and he was disposed to sneer at the decisions of Chief Justice Rolle, a man in all respects much superior to himself. In state prosecutions he showed himself as intemperate and as arbitrary as any of the judges who had been impeached at the meeting of the Long Parliament.
To him chiefly is to be imputed the disgraceful execution as a traitor, of one who had disapproved of the late king’s trial; who was included in the present king’s promise of indemnity from Breda;58 in whose favor a petition had been presented by the Convention Parliament; who was supposed to be expressly pardoned by the answer to that petition;59 but who had incurred the inextinguishable hatred of the Cavaliers by the part he had taken in bringing about the conviction of the Earl of Strafford. Sir Henry Vane the younger,60 after lying two years in prison, during which the shame of putting him to death was too strong to be overcome, was at last arraigned for high treason at the King’s Bench bar. As he had actually tried to save the life of Charles I., the treason charged upon him was for conspiring the death of Charles II., whose life he would have been equally willing to defend. The indictment alleged this overt act, “that he did take upon him the government of the forces of this nation by sea and land, and appointed colonels, captains, and officers.” The crown lawyers admitted that the prisoner had not meditated any attempt upon the natural life of Charles II., but insisted that, by acting under the authority of the commonwealth, he had assisted in preventing the true heir of the monarchy from obtaining possession of the government, and thereby, in point of law, had conspired his death, and had committed high treason. Unassisted by counsel, and browbeaten by Lord Chief Justice Foster, he made a gallant defence; and besides pointing out the bad faith of the proceeding, after the promises of indemnity and pardon held out to him, contended that, in point of law, he was not guilty, on the ground that Charles II. had never been in possession of the government as king during any part of the period in question: that the supreme power of the state was then vested in the Parliament, whose orders he had obeyed; that he was in the same relation to the exiled heir as if there had been another king upon the throne; and that the statute of Henry VII., which was only declaratory of the common law and of common sense, expressly provided that no one should ever be called in question for obeying, or defending by force of arms, a king de facto, although he had usurped the throne. He concluded by observing that the whole English nation might be included in the impeachment.
Foster, C. J.– “Had there been another king on the throne, though a usurper, you might have been exempted by the statute from the penalties of treason. But the authority you recognized was called by the rebels either ‘Commonwealth’ or ‘Protector,’ and the statute takes no notice of any such names or things. From the moment that the martyred sovereign expired, our lord the king that now is must be considered as entitled to our allegiance, and the law declares that he has ever since occupied his ancestral throne. Therefore, obedience to any usurped authority was treason to him. You talk of the sovereign power of Parliament, but the law knows of no sovereign power except the power of our sovereign lord the king. With respect to the number against whom the law shall be put in force, that must depend upon his majesty’s clemency and sense of justice. To those who truly repent he is merciful; but the punishment of those who repent not is a duty we owe both to God and to our fellow-men.”
A verdict of guilty being returned, the usual sentence was pronounced; but the king, out of regard to his own reputation, if not to the dictates of justice and mercy, was very reluctant to sanction the execution of it, till Chief Justice Foster, going the following day to Hampton Court to give him an account of the trial, represented the line of defence taken by the prisoner as inconsistent with the principles of monarchical government, and said that the supposed promises of pardon were by no means binding, “for God, though ofttimes promising mercy, yet intends his mercy only for the penitent.” The king, thus wrought on, notwithstanding his engagement to the contrary, signed the death-warrant, and Vane was beheaded on Tower Hill, saying with his last breath, “I value my life less in a good cause than the king does his promise.” Mr. Fox, and other historians, consider this execution “a gross instance of tyranny,” but have allowed Chief Justice Foster, who is mainly responsible for it, to escape without censure.
The arbitrary disposition of this chief justice was strongly manifested soon after, when John Crook, and several other very loyal Quakers, were brought before him at the Old Bailey for refusing to take the oath of allegiance.
Foster, C. J.– “John Crook, when did you take the oath of allegiance?” Crook.– “Answering this question in the negative is to accuse myself; which you ought not to put me upon. ‘Nemo debet seipsum prodere.’ I am an Englishman, and I ought not to be taken, nor imprisoned, nor called in question, nor put to answer, but according to the law of the land.” Foster, C. J.: – “You are here required to take the oath of allegiance, and when you have done that, you shall be heard.” Crook.– “You that are judges on the bench ought to be my counsel, not my accusers.” Foster, C. J.– “We are here to do justice, and are upon our oaths; and we are to tell you what is law, not you us. Therefore, sirrah, you are too bold.” Crook.– “Sirrah is not a word becoming a judge. If I speak loud, it is my zeal for the truth and for the name of the Lord. Mine innocency makes me bold.” Foster, C. J.– “It is an evil zeal.” Crook.– “No, I am bold in the name of the Lord God Almighty, the everlasting Jehovah, to assert the truth and stand as a witness for it. Let my accuser be brought forth.” Foster, C. J.– “Sirrah, you are to take the oath, and here we tender it you.” Crook.– “Let me be cleared of my imprisonment, and then I will answer to what is charged against me. I keep a conscience void of offence, both towards God and towards man.” Foster, C. J.– “Sirrah, leave your canting.” Crook.– “Is this canting, to speak the words of the Scripture?” Foster, C. J.– “It is canting in your mouth, though they are St. Paul’s words. Your first denial to take the oath shall be recorded; and on a second denial, you bear the penalties of a præmunire, which is the forfeiture of all your estate, if you have any, and imprisonment during life.” Crook.– “I owe dutiful allegiance to the king, but cannot swear without breaking my allegiance to the King of Kings. We dare not break Christ’s commandments, who hath said, Swear not at all; and the apostle James says, ‘Above all things, my brethren, swear not.’”
Crook, in his account of the trial, says, “The chief justice thereupon interrupting, called upon the executioner to stop my mouth, which he did accordingly with a dirty cloth and a gag.” The other Quakers following Crook’s example, they were all indicted for having a second time refused to take the oath of allegiance; and being found guilty, the court gave judgment against them of forfeiture, imprisonment for life, and moreover, that they were “out of the king’s protection;” whereby they carried about with them caput lupinum, (a wolf’s head,) and might be put to death by any one as noxious vermin.
The last trial of importance at which Chief Justice Foster presided was that of Thomas Tonge and others, charged with a plot to assassinate the king. General Ludlow says that this was got up by the government to divert the nation from their ill humor, caused by the sale of Dunkirk;61 the invention being, “that divers thousands of ill-affected persons were ready under his command to seize the Tower and the city of London, then to march directly to Whitehall, in order to kill the king and Monk, with a resolution to give no quarter; and after that to declare for a commonwealth.” The case was proved by the evidence of supposed accomplices, which was held to be sufficient without any corroboration. The chief justice seems to have been very infirm and exhausted; for thus he summed up, —
“My masters of the jury, I cannot speak loud to you; you understand this business, such as I think you have not had the like in your time; my speech will not give me leave to discourse of it. The witnesses may satisfy all honest men: it is clear that they all agreed to subvert the government, and to destroy his majesty. What can you have more. The prisoners are in themselves inconsiderable; they are only the outboughs; but if such fellows are not met withal, they are the fittest instruments to set up a Jack Straw and a Wat Tyler; therefore you must lop them off, as they will encourage others. I leave the evidence to you; go together.”
The prisoners being all found guilty, the chief justice thus passed sentence upon them, —
“You have committed the greatest crime against God, our king, and your country, and against every good body that is in this land; for that capital sin of high treason is a sin inexpiable, and, indeed, hath no equal sin as to this world. Meddling with them that are given to change hath brought too much mischief already to this nation; and if you will commit the same sin, you must receive the same punishment, for happy is he who by other men’s harms takes heed.”
They were all executed, protesting their innocence.
The chief justice went a circuit after this trial, in the hope that country air would revive him. However, he became weaker and weaker, and, although much assisted by his brother judge, he with great difficulty got to the last assize town. From thence he travelled by slow stages to his house in London, where, after languishing for a few weeks, he expired, full of days, and little blamed for any part of his conduct as a judge, however reprehensible it may appear to us, trying it by a standard which he would have thought only fit to be proposed by rebels.
CHAPTER X.
ROBERT HYDE
On the death of Sir Robert Foster, Lord Clarendon thought that he might fairly do a job for an aged kinsman, of respectable, if not brilliant reputation; and he appointed Sir Robert Hyde chief justice of the King’s Bench. They were cousins-german, being grandsons of Lawrence Hyde, of West Hatch, in the county of Wilts, and nephews of Sir Nicholas Hyde, chief justice of the King’s Bench in the commencement of the reign of Charles I. The Hydes were the most distinguished race of the robe in the 17th century. Robert’s father was likewise a lawyer of renown, being attorney general to Anne of Denmark, queen of James I., and he had twelve sons, most of whom followed their father’s profession. Robert seems to have been a very quiet man, and to have got on by family interest and by plodding. Although Edward, the future chancellor, played such a distinguished part during the troubles, – first as a moderate patriot, and then as a liberal conservative, – Robert, the future chief justice, was not in the House of Commons, nor did he enlist under the banner of either party in the field. Just before the civil war broke out, he was called to the degree of serjeant at law, and he continued obscurely to carry on his profession during all the vicissitudes of the twenty eventful years between 1640 and 1660.
At the Restoration, he was made a puisne judge of the Common Pleas, and, acting under Chief Justice Bridgman, he acquitted himself creditably.
When he was installed chief justice of the King’s Bench, Lord Chancellor Clarendon himself attended in court, and thus addressed him: —
“It’s a sign the troubles have been long, that there are so few judges left, only yourself; and after so long suffering of the law and lawyers, the king thought fit to call men of the best reputation and learning, to renew the reverence due and used to the law and lawyers; and the king, as soon as the late chief justice was dead, full of days and of honors, did resolve on you as the ancientest judge left; and your education in this court gives you advantage here above others, as you are the son of an eminent lawyer as any in his days, whose felicity was to see twelve sons, and you one of the youngest a serjeant, and who left you enough, able to live without the help of an elder brother. For your integrity to the crown, you come to sit here. The king and the kingdom do expect great reformation from your activity. For this reason, the king, when I told him Chief Justice Foster was dead, made choice of you. Courage in a judge is necessary as in a general;62 therefore you must not want this to punish sturdy offenders. The genteel wickedness of duelling I beseech you inquire into; the carriers of challenges, and fighters, however they escape death, the fining and imprisoning of them will make them more dread this court than the day of judgment.”
Hyde, C. J.– “I had ever thought of the advice of the wise man, ‘not to seek to be a judge, nor ask to sit in the seat of honor,’ being conscious of my own defects and small learning. But, seeing his majesty’s grace, I shall humbly submit, and serve him with my life, with all alacrity and duty. Sins of infirmity I hope his majesty will pardon, and for wilful and corrupt dealings I shall not ask it. I attended in Coke’s time as a reporter here; and as he said when he was made chief justice I say now – ‘I will behave myself with all diligence and honesty.’”
This chief justice was much celebrated in his day for checking the licentiousness of the press. A printer named John Twyn, having printed a book containing passages which were said to reflect upon the king, was arraigned before him at the Old Bailey on an indictment for high treason. The prisoner being asked how he would be tried, said, “I desire to be tried in the presence of that God who is the searcher of all hearts, and the disposer of all things.”
Hyde, L. C. J.– “God Almighty is present here, but you must be tried by him and your peers, that is, your country, or twelve honest men.” Prisoner.– “I desire to be tried by God alone.” Hyde, L. C. J.– “God Almighty looks down, and beholds what we do here, and we shall answer severely if we do you any wrong. We are careful of our souls as you can be of yours. You must answer in the words of the law.” Prisoner.– “By God and my country.”
It was proved clearly enough that he had printed the book, and some passages of it might have been considered libellous; but there was no other evidence against him, and he averred that he had unconsciously printed the book in the way of his trade.
Hyde, L. C. J.– “There is here as much villany and slander as it is possible for devil or man to invent. To rob the king of the love of his subjects, is to destroy him in his person. You are here in the presence of Almighty God, as you desired; and the best you can now do towards amends for your wickedness is by discovering the author of this villanous book. If not, you must not expect – and, indeed, God forbid – there should be any mercy shown you.” Prisoner.– “I never knew the author of it.” Hyde, L. C. J.– “Then we must not trouble ourselves. You of the jury, there can be no doubt that publishing such a book as this is as high treason as can be committed, and my brothers will declare the same if you doubt.”
The jury having found a verdict of guilty,63 the usual sentence was pronounced by Lord Chief Justice Hyde, and the printer was drawn, hanged, and quartered accordingly.
The next trials before his lordship, although the charge was not made capital, (as he said it might have been,) were equally discreditable to him. Several booksellers were indicted for publishing a book which contained a simple and true account of the trial of the regicides, with their speeches and prayers.
Hyde, L. C. J.– “To publish such a book is to fill all the king’s subjects with the justification of that horrid murder. I will be bold to say no such horrid villany has been done upon the face of the earth since the crucifying of our Savior. To print and publish this is sedition. He that prints a libel against me as Sir Robert Hyde, and he that sets him at work, must answer it; much more when against the king and the state. Dying men’s words, indeed. If men are as villanous at their death as in their lives, may what they say be published as the words of dying men? God forbid! It is the king’s great mercy that the charge is not for high treason.”
The defendants, being found guilty, were sentenced to be fined, to stand several hours in the pillory, and to be imprisoned for life.
[In October, 1664, Chief Justice Hyde caused John Keach to be indicted for libel, which indictment he proceeded forthwith to try, in a manner denounced by Mr. Dunning, in one of his speeches in the House of Commons (Dec. 6, 1770,) as “cruel, brutal, and illegal.”
Keach had written a little book called The Child’s Instructor; or a new and easy Primer, in which were contained several things contrary to the doctrine and ceremonies of the Church of England. Keach taught that infants ought not to be baptized; that laymen may preach the gospel; that Christ shall reign personally on the earth in the latter day, &c. He had no sooner received a few copies from London, where the book was printed, than a justice of the peace, who had heard of it, entered his house with a constable, seized several of the books, and bound Keach over to answer for it at the next assizes at Aylsbury.
Chief Justice Hyde presiding, Keach was called to the bar, when the following dialogue ensued: —
Hyde.– Did you write this book? (Holding out one of the primers.)64
Keach.– I writ most of it.
Hyde.– What have you to do to take other men’s trades out of their hands? I believe you can preach as well as write books. Thus it is to let you and such as you are have the Scripture to wrest to your own destruction. You have made in your book a new creed. I have seen three creeds before, but I never saw a fourth till you made one.
Keach.– I have not made a creed, but a confession of the Christian faith.
Hyde.– Well, that is a creed, then.
Keach.– Your lordship said you had never seen but three creeds, but thousands of Christians have made a confession of their faith.
The chief justice having denounced several things contained in the book as contrary to the liturgy of the church of England, and so a breach of the test of uniformity —
Keach.– My lord, as to those things —
Hyde.– You shall not preach here, nor give the reasons of your damnable doctrine, to seduce and infect his majesty’s subjects. These are not things for such as you to meddle with, and to pretend to write books of divinity; but I will try you for it before I sleep.
He then directed an indictment to be drawn up, and thus addressed the grand jury: —
“Gentlemen of the grand jury: I shall send you presently a bill against one that hath taken upon him to write a new primer for the instruction of your children. He is a base and dangerous fellow; and if this be suffered, children by learning of it will become such as he is; and therefore I hope you will do your duty.”
A long indictment having been found, in which divers passages from the book were set forth as damnable, seditious, wicked, and contrary to the statute in that case made and provided, Keach was called upon to plead to it. He asked for a copy, and liberty to confer with counsel, and to put in his exceptions before pleading. But Chief Justice Hyde compelled him to plead before he would give him a copy, and then would allow him only an hour’s time to consider it, which, as not long enough to be of any benefit, Keach declined to accept.
The evidence was, that thirty copies of the book had been seized at Keach’s house by the justice and constable, and that Keach on his examination before the justice had confessed himself the author, and that he had received from London about forty copies, of which he had dispersed about twelve. Hyde then caused the passages contained in the indictment to be read, remarking on each to show that it was contrary to the Book of Common Prayer. This done, the prisoner began to speak in his defence.
Keach.– As to the doctrines —
Hyde.– You shall not speak here except to the matter of fact; that is to say, whether you writ this book or not.65
Keach.– I desire liberty to speak to the particulars of my indictment, and those things that have —
Hyde.– You shall not be suffered to give the reasons for your damnable doctrine here to seduce the king’s subjects.
Keach.– Is my religion so bad that I may not be allowed to speak?
Hyde.– I know your religion; you are a Fifth Monarchy man; and you can preach as well as write books; and you would preach here if I would let you; but I shall take such order as you shall do no more mischief.66
After some altercation between the judge and the prisoner as to the facts and the evidence, Hyde summed up and charged the jury; but after an absence of several hours one of the officers came in with a message that they could not agree.