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malefactors hanged in the time of Alfred.* That active monarch ordained that all false judges, after forfeiting their possessions, “ should be delivered over to false Lucifer, so low that they never return again; that their bodies should be banished, and punished at the King's pleasure; and that for a mortal false judgment they should be hanged as other murderers.”+ That this denunciation was not merely brutum fulmen appears from a list, given by the same author, of the judges executed by the King's order. In one year, we are told that forty-four justices were hanged. “ He hanged Cole, because he judged Ive to death when he was a madman. He hanged Athulf, because he caused Copping to be hanged before the age of one-and-twenty years.
He hanged Diling, because he caused Eldon to be hanged who killed a man by misfortune. He hanged Horne, because he hanged Simin at days forbidden." A judge at this time could scarcely escape with life or limb; for, not content with hanging for hanging, Alfred maimed his judges for not maiming their prisoners. Thus we are told he cut off the hand of Haulf because he saved Armock's hand, who was attainted before him, for that he had feloniously wounded Richbold; and he judged Edulfe to be wounded, because the latter judged not Arnold to be wounded, who feloniously had wounded Aldens. I
In a rude and uncultivated age, when public opinion exercises little or no influence, when the will of the monarch is strong, and the voice of the people weak, the ministers of justice are selected with little regard to the public welfare. Favour, caprice, or convenience, dictates the choice; and the man who is appointed to guard the interests of justice, is too often the first to betray them. In the reign of the Plantagenets some gross instances of malversation in the judges occurred. Sir Henry de Bath, a judge in the reign of Henry III., is said to have procured a great estate by bribery and corruption, having acquired so much as 2001. in one circuit. At length, being accused by Sir Philip D'Arcy of injustice in his office, and treason, the King was so incensed, that he issued a pro clamation, that any person having any complaint against the delinquent might come in and he should be heard ; upon which, another of the judges accused Bath of acquitting a malefactor for a bribe. Sir Henry's friends, however, armed themselves in his defence, and protected him from punishment. The King now, says Daniel,
* This portion of the Mirror has brought the authority of the whole work into merited discredit. Yet Sir E. Coke had credulity enough for it all. “ See the Mirror of the Law,' in the time of King Alfred, how many justices were, in one year, hanged as homicides for their false judgments; but that law has been long since deleat and antiquated, and yet may serve for a memorial of the time past.” 3 Inst. 224. 4 Mirror, c. 4, 8. 18.
# Mirror, C. B. & Daniel ap. Kennet, vol. i. p. 180.
“ broke out into a rage, and said that whosoever should kill Henry de Bath should be acquitted for that deed; but this heat was soon after allayed by the mediation of the Earl of Cornwall and Bishop of London, who, urging the danger of the time and the discontents of the kingdom, Sir Henry, upon the payment of two thousand marks, was restored to his former place and favour."
In the following reign, the Bench appears to have been extremely corrupt. On the return of Edward I. from France, in the year 1289, in consequence of the general complaints with regard to the administration of justice, the judges were summoned before parliament, and examined, when the whole of that learned body, except two (who, says Sir E. Coke, to their eternal memory and honour, were found upright), were fined in large sums for the extortions of which they had been guilty.* Sir Thomas Wayland, the Chief Justice of the Common Pleas, being found to be the chief delinquent, was banished for ever from the kingdom, and the whole of his lands and goods were confiscated to the king.f. In the reign of Edward III., several of the justices were fined for taking 41., by way of bribe, from a person who was indicted before them ; i and, in the 18th year of that king's reign, a long form of oath was imposed upon the judges, with the view of checking the corrupt practices of which they had been guilty. The oath ran, “ that ye take not, by yourself or by other, privily or openly, gift or reward of gold or silver, or of any other thing which may turn to your profit, unless it may be meat or drink, and that of small value, of any man that may have any plea or process hanging before you, as long as the same process shall be so hanging, nor afterwards, for the same cause. And that
fee as long as ye shall be justice; nor robes of any man, great or small, but of the king himself.” With that regard to the interests of the prerogative which has been generally displayed in the appointment of judges, the oath proceeds" and that ye shall do and procure the profit of the king and of his crown, with all things that ye may reasonably do the same." Five years after the institution of this oath, Sir William Thorpe, the Chief Justice of the King's Bench, was tried before a special commission for having received bribes on the circuit, and, having pleaded guilty, was sentenced to be hanged (a strange judgment of suspendatur, says Sir E. Cokel), but was subsequently pardoned. The statute 18 Edw. III. was repealed by the 9 Rich. II. c. 2, “because it was very hard," and was not revived again till the 11 Henry IV. The latter act
• The amount of the fines is given in Speed. The largest was 7000 marks.
+ Daniel ap. Kennet, vol. i. p. 195. Parl. Hist. vol. i. p. 92. Wayland, according to Sir E. Coke, was attainted of felony, being accessary to murder. 3 Inst. 146. # 3 Inst. § 18 Ed. III. stat. 4.
ll 3 Inst. 223.
“hath limited,” says Coke, “the punishment (amongst others) of corrupt judges, of whom now we entreat, so as the former example of Sir William Thorpe is not now to be followed, which we affirm not in favour of sordid bribery (which we hate, as in the proper chapter thereof appeareth), but in advancement of justice and right, which is the end of our labours in this and other of our works."*
Hitherto, the delinquencies into which the judges had occasionally fallen, seem to have been unconnected with political causes ; but during the contests which took place in the reign of Richard II. between the king and his parliament, the judgment seat was contaminated by political corruption. In a country like England, where, from a very early period, the laws have been the object of popular regard and veneration, the opinion of those who administer them must necessarily carry with it very considerable weight, and, in every dispute between the crown and the people, to secure that favourable opinion was long the policy of the court. The triple armour with which Justice endues her votaries, was, in vulgar apprehension, bestowed by the hands of those who officiated at her altar. When, in consequence of the misgovernment of Richard II., a commission was issued for the purpose of inquiring into and reforming the state of the royal household, and the administration of the government, the King, indignant at this infringement of his authority, summoned a council of his adherents at Nottingham, where it was resolved that the opinion of the judges should be taken as to the illegality of the commission of reform. A favourable, but, certainly, in many points, a most unconstitutional answer was obtained, and all who had assisted in procuring the commission were declared to be traitors. In the following years, however, these legecides (as they are termed by the strenuous Mr. Petyt),t were impeached in parliament for the illegal advice which they had tendered to the King:
The defence which the greater number of the judges made was, that their opinions were given under the immediate influence of
The statement of Sir Robert Belknapp, if it may be believed, presents a curious picture of the open violence with which the integrity of the judges was assailed.
66 Sir Robert Belknapp alleged that after the feast of Epiphany, next after the last parliament, he came to Windsor by the king's commandment, and there the Archbishop of York charged him to have been the contriver of the said commission and statute, in derogation of the King's regality; and that there was no man whom the king hated more than himself; and that if he could not invent some way to
* 3 Inst. 225.
it Jus. Parl. p.
defeat and annul the same, and restore the king to his royalty, he should be killed like a false traitor as he was.
To which he answered, that the intention of the lords, and of all the rest who assisted in the making of the said commission and statute, was, that it should be for the good and the honour and the good government of the state, of the king, and all his kingdom. And he then departed from Windsor in great uneasiness, and in great fear of his life.” Belknapp then described further menaces on the part of the Archbishop of York, the Duke of Ireland, and the Earl of Suffolk, and averred that the opinion he had given was in consequence of those threats. *
Amongst the king's chief advisers in these transactions, was Sir Robert Tresilian, Chief Justice of the King's Bench, who at the time of his impeachment was not in custody, but being despatched by the King privately to gather information, was taken at Westminster, in the disguise of a farmer, and executed on Tower-hill. A very circumstantial and curious account of his apprehension is given by Froissart.t The other delinquent judges were condemned to death, but on the intercession of several of the nobles they were banished to Ireland.
Mr. Hume has endeavoured to defend the opinion of the judges in this matter, but with little success. The offenders themselves admitted that they had yielded to the influence of threats, and although the violence of the parliament in condemning them to capital punishment may be justly blamed, yet it cannot be doubted that men who had thus prostituted their consciences to their fears, were well deserving of severe animadversion. The example certainly was not lost upon succeeding judges.
The princes of the house of Tudor do not appear to have been in the practice of exercising an improper influence over the judges, though the bench was in general very ready to forward the designs of the court. In the reign of Henry VI. the judges distinguished themselves by their opposition to the practice of giving extra-judicial opinions, a practice which continued for many years to be the opprobrium of the bench. The Duke of
* Rolls of Parl. vol. iii. p. 239 ; Petyt, Jus. Parl. 136; How. St. Tr vol. i. p. 90. Knyghton says that when Belknapp was thus compelled to concur in this opinion, he exclaimed, “Now want I nothing but a ship, or a nimble horse, or a halter, to bring me to that death I deserve. If I had not done this I should have been killed by your hands; and now I have gratified the king's pleasure, and yours, in doing it, I have well deserved to die for treason against the nobles of the land.” Col. 269-4. See also Holl. v. iii. p. 456. + Chron. p. ii. fo. 110; St. Tr. vol. i. p. 114.
Lord Chancellor Ellesmere, in his speech in the case of the Postnati (How. St. Tr. vol. ii. p. 665), seems to have been of Mr. Hume's opinion ; see Petyt's remarks on this, Jus. Parl. 199; Mr, Justice Foster thought very differently, see Discourse iv.
York having preferred his claim to the crown, the lords summoned the judges to take their advice and counsel, requiring them in the king's name to advise therein, and to search and find arguments for the king against this claim. The judges replied, that they were the king's judges, to determine matters that were actually before them in law between party and party, and in such matters between party and party they could not be of counsel, and that this matter was between the King and the Duke of York as parties. Also that it had not been accustomed to call the king's justices to counsel in such matters; and especially such a matter which was so high in its nature, and touched the king's estate and royal crown, which was above the ordinary common law, and passed their learning, wherefore they durst not enter into any communication about it, and desired to be excused.
It would appear by the expressions made use of by the judges in this instance, that they considered it improper to afford their counsel to the king in any case in which he was a party, and thereby to constitute themselves advocates instead of judges. It is upon this ground that it is said, that “ the judges ought not to deliver their opinions beforehand in any criminal case that may come before them judicially, especially in cases of high treason, for how can they be indifferent who have delivered their opinions beforehand?"+
To the same effect is Humphrey Stafford's case, cited by Lord Coke, from the Year-book of 1 Henry VII. 25. Stafford was attainted of high treason by act of parliament, and having afterwards taken up arms against Henry VII., was defeated, and fled to a sanctuary near Abingdon. On his being taken from this sanctuary, the abbot of Abingdon applied to the judges, presenting to them letters patent, subjecting all the inhabitants within such a district to himself, and none else. The judges met, and debated the matter, whether sanctuary was to be allowed, and some of the judges observed, “ how can we argue this matter, when it is to come before us speedily? It is not good order to argue this matter, and give our opinions, before it comes before us judicially.” Hody, the attorney-general, said, that if the king knew that the sanctuary would save the offender, it should not come before them, and therefore the king would know their opinions beforehand; but Fairfax and others said, 6 it was hard to give their opinions beforehand.” Notwithstanding this, a day was assigned to hear the abbot and his counsel, but before the judges' met, Chief Justice Hussey came to town, and “went to the king, and requested the favour that he would not desire to know
* Rot, Parl. 39 Hen. vi. 12.
+ Fortescue's Rep. 389.