Front Page Titles (by Subject) IV.: The Iron Age of the Common Law: From Henry VII. to the Revolution of 1688 16 - The Story of the Law
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IV.: The Iron Age of the Common Law: From Henry VII. to the Revolution of 1688 16 - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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The Iron Age of the Common Law: From Henry VII. to the Revolution of 168816
The Yorkist kings had betrayed a tendency to use the courts for the furtherance of tyrannical ends; but Henry VII., who had been trained in the Lancastrian tradition of the independence of the judiciary, made absolutely no change in the judges after his victory at Bosworth. The avarice of this king was, however, so great that we have an instance of a melancholy practice which became common under the Stuarts. The king sold to Robert Read, a very good lawyer, the chiefship of the Common Pleas, for four thousand marks.
There are no names of great lawyers in this reign. The worthy Fineux, who became Chief Justice, had an immense practice. He was steward to 129 manors and counsel for 16 noblemen. His industry was marvelous, for he left 23 folio volumes of notes of 3,502 cases that he had managed. The growing importance of the mercantile class is shown by the elevation of Frowick, a member of a London family of goldsmiths. He succeeded Brian as Chief Justice of the Common Pleas. Thomas Whittington, a baron of the Exchequer, was a grand nephew of the famous Richard Whittington, who walked to London and who while sitting discouraged at the foot of Highgate Hill heard the prophecy of Bow Bells, and lived to become the banker of kings and the greatest of merchant princes.
Another celebrated lawyer of this time was Richard Kingsmill. A letter still extant says: “For Mr. Kingsmill it were well doon that he were with you for his authority and worship, and he will let for no maugre, and yf the enquest passe against you he may showe you summ comfortable remedy, but, sir, his coming will be costly to you.” The childlike confidence in the high-priced lawyer is touching. But the fees seem ridiculously small. We know that the Goldsmiths’ Company of London paid a retainer of ten shillings. “A breakfast at Westminster spent on our counsel” cost one shilling sixpence. Serjeant Yaxley’s retainer from the litigious Plumpton for the next assizes at York, Notts, and Derby, was five pounds, and a fee of forty marks, if the Serjeant attended the assizes.
Two interesting features of this time are the beginning of our modern law of corporations, as applied to merchant guilds and trading corporations, and the growth of law book printing. Caxton printed no law book; but Wynken de Worde printed Lynwoode’s Provinciale, and Lettou and Machlinia, trained under Caxton, printed in 1480 Littleton’s Tenures, an edition supposed to have been superintended by the author. This book was most frequently reissued; and two famous printers, Pynson and Redman, got into a savage dispute over the merits of their respective editions. In a few years the demand for law books caused the printing of some of the Year Books, and the publication of the Abridgments or Digests of Statham and Fitzherbert. The New Natura Brevium, St. Germain’s Doctor and Student, Fitzherbert’s Diversity of Courts, and Perkins’ Profitable Book, soon appeared. The Year Books grow more and more scrappy, until under Henry VIII. they pass away. But in these latter years they are sad productions. The reporters have lost their French. Such words as “hue and cry,” “shoes,” “boots,” and “barley,” are not turned into French. The law French degenerated until it resembled modern phonetic script. A learned lawyer wrote in this wise: “Richardson, C. J. de C. B., at Assizes at Salisbury in summer 1631, fuit assault per prisoner la condemne pur felony; que puis son condemnation ject un brickbat a le dit justice que narrowly mist. Et pur ceo immediately fuit indictment drawn pur Noy envers le prisoner et son dexter manus ampute et fixe al gibbet sur que luy mesme immediatement hange in presence de court.” The matter of reporting, however, was now taken up by well-known lawyers and judges. Anderson, Dyer, Owen, Dalison, Popham, Coke, Plowden, Bendloe, Keilway, and Croke have left valuable reports, all in Norman French.
The evidence all points to a complete breakdown in the jury system at this time. The Star Chamber court merely continued a jurisdiction long existent in the king’s council; but some portion of the jurisdiction, such as that over corruptions of sheriffs in making jury panels and in false returns, over the bribery of jurors, and over riots and unlawful assemblies, was now put into statutory form. Yet the court would not allow even Serjeant Plowden to argue that it was confined in its jurisdiction by the words of the statute. The court was at first a most excellent engine for particular cases, and filled a great public necessity, but under the later Tudors and the Stuarts it became an engine of tyranny.
This period was characterized in the criminal law by most shameless oppression in all political cases. The unrestrained rule of Henry VIII. and Elizabeth shows many a cruel instance of judicial sycophancy. Yet it is a fact that both these rulers were always popular among the lawyers. Even to-day, on every state occasion at Gray’s Inn, “the glorious, pious, and immortal memory” of Queen Elizabeth is toasted by the benchers, the barristers, and the students rising, three at a time, and taking up the toast in succession. Yet it was Henry VIII. who reduced to an infallible system the art of murder by the forms of law. The judges certified Anne Boleyn to be guilty of high treason, because she was reported to have said the king never had her heart. A jury found the Earl of Surrey guilty of high treason, because he quartered the arms of Edward the Confessor; it is needless to say that Edward never had a coat of arms. The grey-haired, blameless Countess of Salisbury was executed, because her son Reginald Pole had become a Roman cardinal. The king adopted the ingenious methods of Chinese justice, by which, if the offender is not available, his nearest relative suffers in his stead. The judges certified that Catherine Howard, Henry’s fifth queen, was guilty of high treason, because she was not a virgin when she espoused the elderly and battered rake. Cromwell, Earl of Essex, committed high treason, because he had not warned Henry that Anne of Cleves, the king’s fourth bride, was hideously ugly.
Even torture was resorted to in criminal trials. Fox, in his Book of Martyrs (which is embellished by numberless falsehoods), says that Sir Thomas More tortured a prisoner. Elizabeth ordered Campion the Jesuit to be put upon the rack; and Chief Justice Wray presided over the trial. Throgmorton was convicted on confessions obtained by threats of torture. The evidence, where any was taken, was often worthless hearsay. The trial of Sir Thomas More was a travesty on justice. But the conviction of Fisher, Bishop of Rochester, stamps the judges with infamy. In that trial it appeared that Bishop Fisher, mindful of the act of Parliament which made it high treason to dispute the king’s headship of the Church, had steadily refused either to admit or deny the king’s supremacy. At last the Attorney General, Richard Rich, who by the most degrading subserviency to the humors of the king had gained preferment, was sent to Fisher in the Tower. He told the Bishop that he came from the King, who desired to know for his own information Fisher’s real opinion upon the disputed point. The Bishop spoke of the danger arising from the act of Parliament, but Rich assured him that no advantage would be taken of him and gave him the promise of the King that his answer would never be divulged. Thereupon, the Bishop stated that he thought an act of Parliament could no more declare the King head of the church than it could declare that God was not God. Fisher was at once brought to trial; Rich gave the sole evidence against him; and the judges allowed the Bishop to be convicted and executed. It is said that the judges shed tears when the saintly old man was condemned; but that conduct simply adds to their infamy. Sir Thomas More was convicted and brought to the block upon the very same kind of testimony.
Yet during this whole period the law provided even-handed justice as between one private citizen and another. The reports of Chief Justice Dyer, Chief Justice Anderson, and Serjeant Plowden, during the reign of Elizabeth, abundantly prove the fact. In ordinary criminal trials the law was growing much more lenient. It was only when the government was urging the prosecution that the tyranny of the Tudors and Stuarts left the individual no hope against the Crown. Judicial tenure became dependent upon subserviency to the wishes of the executive. Judicial appointments were given solely to those who pledged themselves to the royal designs. The real history of the law is found in the bloody records of the State Trials. The processes of law are used by the government with almost cynical indecency. The baronage was destroyed, and the great mass of the people, the cities and the country gentry, eagerly supported the royal authority.
Before passing from the reign of Henry VIII. we should notice Lord Chief Justice Montague, who founded a powerful family, and is now represented by the Duke of Manchester, the Earl of Sandwich, and the Earl of Wharncliffe. Another of Henry VIII.’s judges was John Spelman, the grandfather of the celebrated antiquary, Henry Spelman. He is not specially noted for his judicial utterances, but he became by one wife the father of twenty children.
Under Elizabeth, those unfortunate gentlemen upon whom the Queen had showered her favors were in peculiar peril. Anyone of her numerous lovers who had the temerity to take a furlough suffered for high treason. The Earl of Hertford was so misguided as to marry a wife. Although he prudently went abroad, the bride was thrown into the Tower, and when the Earl returned, he also was imprisoned. The Queen had the marriage declared void, and fined the Earl fifteen thousand pounds. The young Earl of Arundel had a similar but more trying experience, when he became reconciled to his wife after having been Elizabeth’s favorite. He was condemned to death, but was saved by the Queen’s ministers. Hatton, who became chancellor through the graces of his person, had the good sense to remain unmarried; and the Earl of Leicester kept his royal mistress’ favor by forgetting his duties as a husband. The Duke of Norfolk was convicted because he was suspected of a desire to marry the Queen of Scots. That Queen was executed after an absurd trial before the judges. The Secretary Davidson, who at the command of Queen Elizabeth had issued the warrant for the execution of the Queen of Scots, was savagely prosecuted and imprisoned for life.
The religious controversies fanned the cruel instincts of the age. Under Henry the faithful Catholics suffered the worst oppressions. The chief tool of Henry VIII. in these matters was Thomas Audley, who was a trained lawyer and succeeded More as Lord Chancellor. He devised those laws which imposed upon every man’s conscience the most contradictory oaths. It was a penal offence to acknowledge the Pope, yet it was no less penal to deny a single article of the Romish faith. Whoever was for the Pope was beheaded and whoever was against him was burned. The legislation that plundered the church was Audley’s work, and he selected for himself a rich portion of the spoil. The priory of Christ Church in Aldgate became his town house. He claimed the wealthy monastery of Walden, representing that he had sustained great damage and infamy in serving the King. On the ruins of that abbey his grandson Thomas Howard erected the stately Elizabethan mansion of Audley End.
When the Catholics returned to power under Mary, the Protestants in their turn suffered the penalties of heresy. One trial, however, stands out in this reign as the only instance where, under the Tudors, a prosecution for high treason resulted in a verdict of not guilty. Sir Nicholas Throckmorton was prosecuted by the learned Dyer, then Attorney General. The defendant completely outtalked the Attorney General, and made him appear something of a simpleton. He modestly compared himself to the Savior, and pictured Dyer in the character of Pilate. His self-confidence enabled him to interrupt Chief Justice Bromley’s charge to the jury. Throckmorton craved “indifferency” from the judge, and helped out the judge’s poor memory by his own recital of the facts. The jury that acquitted Throckmorton was imprisoned and heavily fined.
The judges, who were Protestants, on the accession of Mary conveniently became Roman Catholics; one of them, Sir James Hales, had scruples but was induced by his associate, Judge Portman, to recant. This act so worked on Hales’ conscience that he drowned himself. The coroner’s jury returned a verdict of suicide; and in two cases17 a number of hair-splitting subtleties were uttered by the court as to the effect of the suicide in forfeiting the Judge’s estates. Shakespeare makes the learned gravediggers in Hamlet discourse over Ophelia in words that are almost a literal parody on the arguments of the judges.
Elizabeth’s reign produced one very great judge. James Dyer was really appointed to the bench under Mary, but the most of his judicial service was under Elizabeth. He presided in the Common Pleas for twenty-three years. He took no part in the disgraceful political trials of this reign, but directed his court with efficiency and learning. The poet Whetstone has these lines upon Dyer:
John Popham offers a remarkable contrast to Dyer. Of high birth, educated at Oxford, he fell into evil ways while at the Middle Temple. He even resorted to the calling of a highwayman to replenish his purse. He reformed, however, and became a consummate lawyer; he was made Solicitor General and Speaker of the House of Commons. In regular order he became Attorney General, and as such took the lead in many state trials. He prosecuted Tilney, and caused Chief Justice Anderson, one of the greatest lawyers of the reign, to charge the jury on wholly insufficient evidence that the defendant was guilty of an attempt upon the Queen’s life. He attempted to prosecute Mary Queen of Scots; but Hatton, the Chancellor, took the work out of Popham’s hands. Both Elizabeth and Hatton were violently inflamed against the Stuart Queen, on account of the ridicule she had heaped on the love affair of the Virgin Queen and her Chancellor. Even the learned but apologetic Foss is compelled to say that the warmth of Elizabeth’s letters to Hatton “would be fatal to the character of a less exalted female.” On the trial of Knightley, a Puritan, who in temperate language had published some observations on the due observance of the Sabbath, Popham contended that the defendant, though guilty only of a technical violation of a royal proclamation and for that reason not guilty of an indictable offence, could yet be prosecuted in the Star Chamber. He sagely observed as to the defendant’s excuse for publishing his pamphlet: “Methinks he is worthy of greater punishment for giving such a foolish answer as that he did it at his wife’s desire.” When Popham became Lord Chief Justice he showed his prejudice against his former calling by an unexampled severity against highwaymen. On the trial of Essex he curiously mingled the functions of witness and judge, and in his summing up out of his own knowledge furnished the jury with statements of fact that had not been testified to by any witness. By his exertions at the bar he accumulated an immense estate amounting to ten thousand pounds a year; but it was all squandered by his son, another John Popham.
One court—the Court of Requests—that fulfilled a very important function during this period has long been forgotten. It was a court for civil causes—a companion court to the Star Chamber (which devoted itself to criminal cases). Its duty was to hear the causes of those suitors who were denied justice in the common law courts. Wolsey established one branch of the court at Whitehall, while another branch followed the sovereign. Wolsey’s fame as a churchman has wholly obscured his high reputation as a judge. In the court of chancery, in spite of his manifold duties as Prime Minister, he was regular and punctual, and his decrees were invariably sound. He made the Court of Requests emphatically a court to redress the injustice of jury trials. Those who failed before juries on account of the corruption of the panel or the power of their adversaries found themselves protected in the Court of Requests, which followed the chancery practice and was not hampered by a jury. Here the tenants of land appealed for justice against their landlords, here the copyholders sought relief against the enclosures of the commons and waste lands of the manors. The Protector Somerset owed his fall to his active intervention against the landholders; and the strict impartiality of Wolsey’s justice and the sternness with which he repressed the lawlessness of powerful nobles aided in his destruction. The Court of Requests was in continual collision with the common law courts. Coke invented certain imaginary judgments in order to destroy it. But the court held on, and in 1627 Henry Montague, a grandson of the Chief Justice, a very able lawyer, came to preside in this court, and gave it such a high reputation that it had almost as many suits and clients as the chancery. Blackstone18 tells us that this court was abolished in 1640; but he is mistaken, for in 1642, in sixteen days’ sittings, the court made 556 orders. It passed away in the turmoils of the civil war.
The jealousy of the common law courts toward the chancery culminated in Henry VIII.’s Statute of Uses, which attempted to convert every use or trust in land into a legal estate in the beneficiary; this was followed by the Statute of Enrollments requiring all conveyances of freehold by bargain and sale to be recorded in a public office. But the chancery judges and lawyers soon “drove a coach and four” through this act of Parliament; and by means of a bargain and sale for a lease, which the statute executed, followed by a release, which did not require recording, they abolished livery of seisin, as well as the recording of deeds. The Statute of Uses also abolished all uses to be declared by the feoffor’s will. The uses declared in the will had been sedulously protected by the chancery court. But when this method of devising lands was abolished by the Statute of Uses, it became necessary to pass the Statute of Wills. Both Coke and Bacon thought that the Statute of Uses abolished all devises except those that would have been good at common law as conveyances. But the statute was construed otherwise, and the chancery lawyers imported into wills all these conveyances to uses, and thus let in the various kinds of executory devises—estates that in wills rendered nugatory all the common law rules as to remainders. All this history shows the futility of attempting to control a natural development, by means of statutes.
In many ways the years of the first two Stuart kings are the saddest in the history of the law. The servility of the judges was no less marked than under the Tudors. As an added evil, judicial offices were openly made the subject of bargain and sale. Henry Montague gave to Buckingham’s nominee the clerkship of the court, worth four thousand pounds a year.19 Coventry paid Coke two thousand angels for his influence in securing a judicial appointment. The chiefship of the Common Pleas cost Richardson seventeen thousand pounds. Sir Charles Caesar paid fifteen thousand pounds for the mastership of the rolls. Henry Yelverton gave the King four thousand pounds for the office of attorney-general—a place for which Ley, afterwards Chief Justice, vainly offered ten thousand pounds. Judge Nichols refused to pay for his place, and James I. always referred to him as “the judge that would give no money.” The fifteen serjeants called in 1623 each paid the King five hundred pounds. Under Cromwell, the pious Lord Chief Justice St. John had the granting of all pardons to delinquent lawyers, which netted him forty thousand pounds; nor did he scruple to receive bribes for places under the Protector. Under James II., the young daughters of the leading citizens of Salisbury, who had strewed flowers before the rebel Monmouth, being technically guilty of high treason, obtained pardons by paying money to the Queen’s maids of honor, to whom the King had given the pardons. That great and good man William Penn acted as the agent of the needy ladies in collecting the tribute.
The tone of adulation used by lawyers and judges toward the sovereign is almost incredible. Rich compared Henry VIII. “for justice and prudence, to Solomon; for strength and fortitude, to Samson; and for beauty and comeliness, to Absalom.” Bacon in a learned treatise felicitates James I. (who was little better than a drooling idiot), upon the deep and broad capacity of his mind, the grasp of his memory, the quickness of his apprehension, the penetration of his judgment, his lucid method of arrangement, and his easy facility of speech. The virtuous Coke claimed that King James was divinely illuminated by the Almighty. But this was the tone of the age. To Shakespeare, Elizabeth was “a fair vestal” and “a most unspotted lily.”
The vices of the age are summed up in the rivalry of its two greatest lawyers, Bacon and Coke—the latter, the most learned of lawyers, but narrow, cruel, and unscrupulous; the other, of large insight, capacious intellect, but also little troubled by scruples.
Coke, the elder of the two men, was Solicitor-General, with a large practice and ample fortune, when Bacon, with his great family advantages, tried to gain the office of Attorney-General against him. Coke stood in the line of preferment. He bitterly resented Bacon’s nickname of the “Huddler”—not an undeserved name for the author of a book like Coke upon Littleton. Next they became rivals for the hand of the widow of Sir William Hatton, a beautiful woman, only twenty years old, with an immense fortune and great pretensions to fashion. The old and wrinkled Coke, a six months’ widower, prevailed. But while the lady was willing to marry Coke, she refused to espouse such an elderly scarecrow at a church wedding. So Coke married her in a private house, and thereby violated the law. His plea when prosecuted was ignorance of the statute. Perhaps this is the real reason for Coke’s oft quoted statement as to statute law. But Bacon made a fortunate escape, and had the satisfaction of enjoying Coke’s domestic infelicities. Lady Hatton refused, after several quarrels, to live with Coke; she further refused to take his name, which she insisted on spelling “Cook.” She refused even to let Coke see the daughter she had borne him, and turned him away from her door.
Then Essex’s trial came on. Coke surpassed even himself in brutality, while Bacon deserted his benefactor. The two men soon had a public altercation in the Exchequer Court. To curry favor with the new king, James, Coke prosecuted Raleigh so savagely that even the judges sickened. The remorseless Popham protested, and such a sycophant as Lord Salisbury rebuked Coke. Thereupon Coke sat down in a chafe and sulked, until the judges urged him to go on. Lord Mansfield said long afterwards: “I would not have made Sir Edward Coke’s speech against Sir Walter Raleigh to gain all Coke’s estate and reputation.” When Coke prosecuted the Gunpowder Plot conspirators, he showed to the full his cowardly method of insulting the prisoners. Other trials were no less disgraceful. Yet, all through, worse than Coke’s brutality, is his pharisaical self-satisfaction, his pitiable, snivelling, hypocritical piety. The best excuse for Bacon is that he was engaged in a rivalry with such a man.
Coke became Lord Chief Justice of the Common Pleas in 1606, and used his place to humble and coarsely insult Bacon. But Bacon’s suppleness was ingratiating him with the King. Coke had become so puffed up that he was growing independent. Bacon induced James to put Coke at the head of the King’s Bench. Coke bitterly reproached Bacon, who replied: “Ah, my Lord, you have grown all this while in breadth; you must needs grow in height, or else you would be a monster.” Coke on the bench was fully as brutal as at the bar. In one case he told the jury that the defendant, Mrs. Turner, had the seven deadly sins—that she was a whore, a bawd, a sorcerer, a witch, a papist, a felon and a murderer.
At last Coke engaged in his famous controversy with Lord Chancellor Ellesmere, over the power of the Chancery to enjoin proceedings at law, and drew forth the masterly opinion in the famous case of the Earl of Oxford.20 Coke threatened to imprison everybody concerned; but Bacon persuaded the King that Coke was in the wrong, and the King’s Bench submitted. Bacon finally caused Coke to be suspended from office, and to be ordered to correct his book of reports, “wherein be many extravagant and exorbitant opinions set down and published for positive and good law.”
Bacon now succeeded Ellesmere as Lord Chancellor. But Coke, at the age of sixty-six, was not yet defeated. He had a young and pretty daughter; her he offered as a bride to Sir John Villiers, the brother of Buckingham. Coke’s wife fled with her child; but Coke pursued her, tore the child from her mother’s arms, and carried her off to London. Bacon was unable to help Lady Hatton. The mother in prison was compelled to submit, and the child, after a splendid marriage, was handed over to Sir John Villiers. The marriage turned out as might have been expected. The young wife eloped with Sir Robert Howard. Her only son was declared illegitimate, and did not receive the name of Villiers.
Coke received no reward for his unexampled baseness. He tried to make his peace with the King by a number of disgraceful judgments in the Star Chamber. But when his efforts met no return, he had himself returned to Parliament as a patriot. Dr. Johnson must have had Coke in mind when he made his famous definition of patriotism as “the last refuge of a scoundrel.” Thirsting for revenge on Bacon, Coke caused his impeachment and ruin. Coke lived on to be a very old man. Lady Hatton lent humor to the situation by constantly complaining of her husband’s good health. At last he died, watched over by his unfortunate daughter. He made an exceedingly pious end—thus exhibiting his total unconsciousness of his own true character.
Under Charles I., some ably conducted trials took place over the King’s attempt to raise a revenue without recourse to Parliament. The bar was independent enough to hold out against the power of the Crown. The judges ruled that a commitment specifying no offense was bad. Another decision prohibited torture of prisoners. The rules of evidence were not yet settled; but in the ordinary criminal trials, a defendant was now held not bound to give evidence against himself. Shakespeare seems to think the rule a bad one, not to be followed in the Court of Heaven; for
In the famous Ship Money case of Hampden there was a great forensic display. The Solicitor General spoke for three days, the defendant’s leader spoke four days, Oliver St. John for the defense took two days, and the Attorney General replied in three days. St. John’s argument was considered the finest that had ever been heard in Westminster Hall. But this speech was soon surpassed by the noble and pathetic plea of Strafford in his own behalf. At last the King himself was put upon trial. The leading Parliamentary lawyers, Rolle, St. John, and Whitelock, refused to sit in the court. Bradshaw, an able lawyer, was made Lord President of the illegal tribunal. The King’s line of defense was laid out for him by Sir Matthew Hale. Bradshaw tried to bully the King, but was overwhelmed by acute reasoning, a royal dignity, and a noble presence, by the King’s liberality of thought and real eloquence. In other trials, such as those of the Duke of Hamilton, the Earl of Holland, Lord Capel, and Sir John Owen, the defendants were convicted by conduct as arbitrary as anything under the Tudors. Serjeant Glyn at the trial of the gallant Penruddock rivalled Coke at Sir Walter Raleigh’s trial. The Protector Cromwell cared little for courts or law. The very men who had declaimed against ship money saw Cromwell’s arbitrary taxation. Chief Justice Rolle and the judges attempted to try the legality of such a tax; but Cromwell sent for them and severely reprehended their license, speaking with ribaldry and contempt of their Magna Charta. He dismissed the judges, saying that they should not suffer lawyers to prate what it would not become them to hear. Serjeant Maynard, who had argued against the tax, was committed to the Tower, while Prynne suffered a fine and imprisonment. Sir Matthew Hale was threatened by Cromwell’s government for his strong defense of the Duke of Hamilton and Lord Capel, but Hale replied that he was pleading in support of the law, was doing his duty to his clients, and was not to be daunted by threatenings. During the Cromwellian ascendancy, Hale, at the solicitation of the Royalist lawyers, accepted a judgeship. On the circuit he tried and condemned one of Cromwell’s soldiers for the murder of a Royalist, and had the prisoner hanged so quickly that Cromwell could not grant a reprieve. He quashed a panel of jurors when he found that it had been returned at Cromwell’s orders. The Protector, on Hale’s return to London, soundly berated him, telling him that he was not fit to be a judge.
Many legal reforms were projected during the Commonwealth, but they came to naught at the Restoration. An attempt was made (among others) to substitute the law of Moses for the common law. There was an earnest attempt to abolish the Court of Chancery, but it was frustrated by St. John. An act was passed regulating chancery practice, but it was found to be impracticable. Most of the better class of lawyers were Royalists and ceased court practice. Confiscation and seizures were the order of the day. But the Royalist conveyancers, Orlando Bridgman and Jeffrey Palmer, while they would not appear in court, enjoyed an immense chamber practice and by their new devices of family settlements, superseding entails, preserved many a Royalist estate.
The Inns of Court during the Tudor and earlier Stuart reigns had continued to enjoy great prosperity. From Fortescue’s time to Charles I., it is almost impossible to point to a single lawyer of standing who had not been preliminarily educated at Oxford or Cambridge. In the reign of Queen Mary attorneys and solicitors were forever excluded from the Inns. Henceforth only barristers were trained in those institutions, and attorneys became objects of contempt. In fact, in an order in 16 Charles II., an attorney is called “an immaterial person of an inferior character.” The instruction in the Inns continued to be the same as in Fortescue’s time. The law was now all case-law. Fitzherbert says that the whole Court agreed that Bracton was never taken for an authority in our law. In social entertainments the Inns shone. Costly feasts, magnificent revels, masks, and plays, where the royal family attended, the splendid celebrations of calls of serjeants, the feasts given by the readers, are all fully described in contemporary annals. We read of “spiced bread, comfits and other goodly conceits, and hippocras,” and the bill of supply of one of the feasts, comprising “twenty-four great beefs,” “one hundred fat muttons,” “fifty-one great veales,” “thirty-four porkes,” “ninety-one piggs,” through endless capons, grouse, pigeons and swans to three hundred and forty dozen larks, shows that the vice of the time was gluttony.
It was found necessary during this period to restrain the students. Some of the regulations are curious—the prohibition of beards of over a fortnight’s growth, of costly apparel, of the wearing of swords; and the restraints on sports point to unruly members in the Inns. It was found necessary to make attendance at the moots compulsory. The standard of attainment was raised. Ten years’ attendance was required before a call to the bar; this was afterwards put back to five years, and then raised to seven; and for three years after his call, a barrister was not permitted to practice before the courts at Westminster.
The Commonwealth time was almost destructive of the Inns, but at the Restoration they started on a new career of splendor. All the old ceremonies and practices were revived. Heneage Finch, afterwards Lord Nottingham, revived the readers’ feasts of former days. He saved the Temple walk from being built upon; and his daily consumption of wine offered an admirable example to the deep drinking young blades of the Restoration.
The two great lawyers of Charles II.’s reign were almost exact opposites. Finch, born of an ancient family, of ample fortune, living in magnificent style, princely in his expenditures, a genuine cavalier, was the very antithesis of the Puritanism of Hale. His is one of the noted names on the roll of Christ Church at Oxford. He is the second of our great forensic orators. Ben Jonson has told us of Bacon’s impressive and weighty eloquence, but it could not be compared with the silver-tongued oratory and the graceful gestures of the “English Roscius.” Finch passed through the grade of Solicitor-General, to the Attorney-General’s place, and then became Lord Chancellor, with the title of Lord Nottingham. He was a model of judicial decorum, calm and patient in hearing, prompt in the business of his court, sitting to decide cases while racked with the pain of gout. Careful in the framing of his judgments, and at the same time, a finished man of the world, he stands unrivaled except by Lord Mansfield.
When he came to the marble chair, equity jurisprudence was a confused mass of unrelated precedents. While he invented nothing new, he introduced order into the chaos and settled the great heads of equity in their enduring form.
He settled, finally, the restraint upon executory interests, by his great ruling in the Duke of Norfolk’s case.21 It has been forgotten that Nottingham overruled the three chiefs of the common law courts—North, Pemberton and Montague—sitting with him. North, becoming Chancellor, reversed the case, but the House of Lords, at the instance of Lord Jeffreys (as great a lawyer as Nottingham), restored the first ruling, and reëstablished the rule against perpetuities.
Sir Matthew Hale is not such an engaging figure. He was rather a Puritan, and for thirty-six years never missed attendance at church on Sunday. He was Lord Chief Baron after the Restoration, and then Lord Chief Justice. In mere learning he was without a rival. Lord Nottingham has generously spoken of Hale’s “indefatigable industry, invincible patience, exemplary integrity, and contempt for worldly things,” and Nottingham adds, in his stately way: “He was so absolutely a master of the science of law, and even of the most abstruse and hidden parts of it, that one may truly say of his knowledge in the law what Saint Augustine said of Saint Jerome’s knowledge of the divinity—“Quod Hieronymus nescivit, nullus mortalium unquam scivit.” Hale’s preface to Rolle’s Abridgment contains the most helpful words ever addressed to students of law. The criticism, however, was urged against him that he dispatched business too quickly. And it is almost incredible that he believed in witchcraft with the utmost ignorant superstition, and tried and caused to be executed two poor old women, whom a foolish jury under his direction convicted of diabolical possession.22 It was but a few years later that another woman was tried for witchcraft before Judge Powell, a merry and witty old gentleman. Her offence was that she was able to fly. “Can you fly?” asked the judge. The crazy woman replied that she could. “Well, then,” he said, “you may, for there is no law against flying.” And so ended the trial.
A character of those times was the learned Prynne, an able lawyer, a great antiquarian authority. He assaulted everything, from long hair and actresses to bishops. First he lost his ears, then he was disbarred and condemned to the pillory. Again he lost what little of his ears had been left from the first shaving. He attacked the Quakers, then he suffered imprisonment under Cromwell; next he advocated the proceeding against the regicides, even against those who were dead, and at last rounded out his career as keeper of the records in the Tower. Equal to Prynne in fearless constancy was Judge Jenkins, the author of Jenkins’ Centuries—a most curious series of reports.
It is customary to represent the succession of judges under James II. to the time of the Revolution of 1688 as a most ignorant, depraved, and worthless set of men. But this picture is badly overdrawn. It is true that the stately and dignified Cavaliers, like Lord Clarendon or Nottingham, were passing away, and that their successors were hardly their equals. Scroggs, the first Chief Justice, owed his elevation to his ability as a forensic orator. Once from the bench he told the listening mob that “the people ought to be pleased with public justice, and not justice seek to please the people. Justice should flow like a mighty stream, and if the rabble, like an unruly wind, blow against it, the stream they made rough will keep its course.” And so Scroggs rolled out his periods, making a splendid plea for judicial independence. It is a sign of the times that high prerogative rulings, which seemed perfectly natural under Elizabeth, should arouse such violent public resentment. Scroggs lost all influence with juries; so he was dismissed, and Francis Pemberton took his place. This man, born to a large fortune, had squandered it within a few years after attaining his majority, and awoke one day to find himself imprisoned under a mass of judgments. But in his five years’ imprisonment he made himself a consummate lawyer. He obtained a release from prison, and soon acquired eminence and wealth at the bar.
But not long after Pemberton’s elevation to the bench, it was determined to forfeit the charters of the City of London, so as to gain control of the panels of jurors, who were selected by a sheriff, elective under the charters. This advice had been given to the King by the noted special pleader, Edmund Saunders. This remarkable man had had a singular career. Born of humble parents, he had run away from home, drifted to London, and found shelter as an errand boy at Clement’s Inn. He learned to write, became a copying clerk, and in this way gained an insight into special pleading. The attorneys induced him to enroll himself at an Inn of Court. In due time a barrister, he made himself the greatest master of common law pleading that system has ever known. He had no political opinions, nor did he seek riches or advancement. Witty, genial and gay, he had always around him a crowd of students, with whom he was putting cases, answering objections and debating abstruse points. His physical appearance was repulsive. Brandy was his constant drink, varied by a pot of ale always near him. Drunkenness and gluttony had caused a general decay of his body. Hideous sores and an offensive stench made his presence an affliction. Yet the government had such need of his services that North, the Lord Keeper, actually asked him to dinner. Saunders drew the pleadings in the great Quo Warranto case, and caused the attorneys for the City of London to plead upon a point where they were sure to be defeated. Thereupon Saunders drew up an ingenious replication, to which the city demurred. Just as the cause was about to be argued Pemberton was removed and Saunders was appointed, and (incredible as it may seem) he then heard argument upon his own pleadings. The cause was argued for two terms, but when, at the third term, judgment was delivered, Saunders lay dying in his lodgings. His best memorial is his book of reports, the most perfect specimen of such work in our legal literature.
Saunders was succeeded, after an interval, by the noted Jeffreys, popularly considered the worst judge that ever sat in Westminster Hall. But this popular belief cannot be taken in place of the sober facts. He was of an ancient family in Wales. He received the usual education of his time, and attended at Trinity College, Cambridge. He studied at the Middle Temple, and was admitted to the bar at the age of twenty. He at once leaped to a commanding position. He was made Common Serjeant, and later Recorder of London. This was due to his splendid legal talents. He had one of those rare minds which under great masses of evidence seize upon the real issue. He had a marvelous skill in advocacy, and a flowing, impassioned, magnetic eloquence. Added to this was an overwhelming bitterness of denunciation that sometimes appalled his hearers. We know that Sir Matthew Hale was a good judge of lawyers, and we are told that Jeffreys gained as great an ascendancy over Hale as ever counsel had over a judge.
To his intellectual gifts, Jeffreys added a noble and stately presence. There are three portraits of him; the first represents him when thirty years old, the next is of Jeffreys in his full robes as Lord Chief Justice, the last shows us the man in his robes as Chancellor. It is a very noble, delicate, and refined face that looks out from Kneller’s canvas. There is birth, breeding, distinction in every line. He must have been a great lawyer; for to Hale’s testimony we may add that of the accomplished judge, a confirmed Whig, Sir Joseph Jekyll; of Speaker Onslow, who bears testimony to his ability and uprightness in private matters; of Roger North, who hated Jeffreys but was forced to admit: “When he was in temper and matters indifferent came before him, he became his seat of justice better than any other I ever saw in his place.” But best witnesses of all are his recorded judgments. The incomparable stupidity of Vernon, the reporter, has destroyed the value of Eustace vs. Kildare and of Attorney General vs. Vernon;23 but his decision in the East India Company’s case is admitted by all lawyers to be a marvel of close legal reasoning. In the House of Lords he saved the Duke of Norfolk’s case, and even his political enemies after the Revolution did not reverse his cases. A master of the common law, he was yet a great chancellor. He promulgated a set of rules in chancery, the best since Bacon’s time. Other of his decisions can be found in the reports of Sir Bartholomew Shower, an excellent lawyer.
No doubt Jeffreys was a hard drinker. So was Lord Eldon, so were many able lawyers in our own country. He was no doubt savage and overbearing at times. He rode roughshod over defendants and their counsel. He hated Puritans and all their works. He was often cruel and remorseless. But even Lord Hale enlivened trials by breaking forth upon witnesses: “Thou art a perjured knave, a very villain! Oh, thou shameless villain!” Jeffreys’ “Bloody Assizes” is the greatest stain on his memory; but no innocent person was punished in those trials. The worst that can be said of Jeffreys may be read in Macaulay’s History. Much of it is true; some of it is untrue; but it all belongs to the spirit of that age of savage disputes and rancorous political hatreds. Yet, after all, Jeffreys was but one of the five judges who sat together on that circuit.
To see Jeffreys at his best, we should see him in the trial of Lord Grey de Werke. Jeffreys’ skill and adroitness in putting in the evidence against the great Whig lord, the brazen seducer of his own wife’s sixteen-years-old sister; his gentleness and exquisite suavity toward his witnesses, his few words of apology to the court for the tears of the victim’s mother, are models of forensic decorum. In his tact, his delicate management, never a word too much, now and then putting a question to bring out some point that had been overlooked, Jeffreys shows throughout the skill of the master.
He prosecuted Lord William Russell and convicted him. His great arts of advocacy simply overwhelmed the defendant; for Russell had a fair trial, and the jury was calmly charged by Pemberton. Jeffreys as judge tried Algernon Sidney, who was convicted upon evidence. Nothing in Jeffreys’ career can compare with Coke’s conduct at Raleigh’s trial, or with Glyn’s when he judicially murdered Penruddock. Even in Lady Lisle’s case, she was condemned on actual, credible testimony, offered in accordance with the rules of evidence.
When Jeffreys returned from his campaign in the west he was made Lord Chancellor and given a peerage. Wright succeeded as Lord Chief Justice, and before him came on the famous trial of the Seven Bishops. The besotted King attempted to abolish the Test Acts by proclamation. Both dissenters and churchmen united against a declaration which would tolerate Roman Catholics. The bishops remonstrated, and the King, against Jeffreys’ advice, caused the bishops to be indicted. The trial came on before the King’s Bench. The defense mustered a great array of counsel. Pemberton, a cashiered chief justice, Levinz, another dismissed judge, who had gone the bloody circuit with Jeffreys, Heneage Finch, son of Lord Nottingham, and Somers, afterwards the great Chancellor, appeared for the defense. Such a throng never appeared again at a trial in Westminster Hall, until Warren Hastings came back from India to meet an impeachment. The bishops were acquitted, and Wright and his fellows were disgraced.
The King filled up his court again; and the legality of martial law in the army then came on for trial before Chief Justice Herbert. At that day in England, in case of a desertion or mutiny, the army officers were powerless, unless they called in the sheriff. But Chief Justice Herbert refused to yield to the King’s wishes, and held that the army could not be governed by martial law. Again the King cleaned out his court. One of his new tools was Christopher Milton (a brother of the poet). The King called upon his judges to hold that the King by proclamation could dispense with acts of Parliament. Jones, the Chief Justice, refused. He told the King that he was mortified to think that his Majesty thought him capable of a judgment which none but an ignorant or dishonest man could give. The King said that he was determined to have twelve lawyers for judges, all of his way of thinking. Jones replied: “Your Majesty may find twelve judges of your mind, but never twelve lawyers.” But the King had now exhausted the public indulgence and he was soon in flight to France.
It would perhaps seem, from the record of this period, that little good could have been accomplished in the development of the law. But this inference would be an error. We have noticed, at the opening of this epoch, a general feeling that jury-trial was worthless. The work accomplished by this age was to improve the methods of jury trials so as to make them promotive of justice. The first thing done in this later period was to make the jury independent, by establishing the rule that they could not be fined or imprisoned for what was conceived to be a false verdict. The second improvement was to give the courts power to grant new trials, and thus to place the verdict under the control of the judge. The final improvement was to establish the rules of evidence. These rules were so framed and moulded as to exclude from the jury all testimony which would improperly influence them, or which did not depend for its credibility upon the veracity of a sworn witness. Above all, the jury was required to proceed solely upon evidence offered in open court, which had been subjected to the test of a cross-examination. It was in the bad times of the Stuarts that these rules were settled. Singularly enough, the first case that is authentic, in excluding hearsay, is a decision by Lord Jeffreys. Although the rules of evidence were amplified by Lord Mansfield, they have not been changed, except by statute, from that day to this. The greatest of forensic orators said in Hardy’s case: “The rules of evidence are founded in the charities of religion, in the philosophy of nature, in the truths of history, and in the experience of common life.” Surely, a generation of lawyers which created and formulated these rules is entitled to some grateful remembrance, and of that generation, the greatest common lawyer was, undoubtedly, the outlawed Jeffreys.
[16. ]General references for this period: Foss and Campbell now become much fuller in detail. The State Trials are invaluable for the whole period. Besides these may be named: Fitzherbert’s Abridgement, New Natura Brevium and Diversity of Courts, Lynwoode’s Provinciale, St. Germain’s Doctor and Student, Select Cases from the Court of Requests (Selden Society), Select Cases from the Star Chamber (Selden Society), Reeves’ History of English Law, Spedding’s Life of Bacon, Anderson’s, Dyer’s, Popham’s and Plowden’s Reports, Pollock’s Land Laws, Dugdale’s Origines, Staunforde’s Pleas of the Crown, Coke upon Littleton, Coke’s Institutes, Coke’s Reports with the Introductions, Whitelocke’s Memorials, Hale’s Introduction to Rolle’s Abridgement (in Hargrave’s Collecteana Juridica), Saunders’ Reports, North’s Life of Lord Keeper North, Irving’s Life of Jeffreys, Roscoe’s Lives of Eminent Lawyers. Hale’s Pleas of the Crown and History of the Common Law are not critical. For the historical development of the rules of evidence consult Wigmore on Evidence under the particular rule.
[17. ]Bishop of Chichester v. Webb, 2 Dyer 107; Lady Hales v. Pettit, Plowden 253.
[18. ]3 Com. 50.
[19. ]Perhaps we ourselves have as yet no right to condemn this, when we still see in some regions masterships in chancery turned over to the successful political party to be filled.
[20. ]2 White and Tudor Lead. Cas. Equity 601.
[21. ]3 Ch. Cas. 1.
[22. ]6 State Trials 647.
[23. ]1 Vernon 419, 369.