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

CHAPTER IV.
JOHN FITZJAMES

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

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

“Lofty and sour to them that lov’d him not:

But to those men that sought him, sweet as summer.”

Fitzjames was devotedly of this second class, and was even suspected to assist his patron in pursuits which drew upon him Queen Catharine’s censure: —

“Of his own body he was ill, and gave

The clergy ill example.”

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

The only state trial which he had to conduct was that of the unfortunate Stafford, Duke of Buckingham, who, having quarrelled with Wolsey, and called him a “butcher’s cur,” was prosecuted for high treason before the lord high chancellor and Court of Peers, on very frivolous grounds. Fitzjames had little difficulty in procuring a conviction; and although the manner in which he pressed the case seems shocking to us, he probably was not considered to have exceeded the line of his duty: and Shakspeare makes Buckingham, returning from Westminster Hall to the Tower, exclaim —

“I had my trial,

And, must needs say, a noble one; which makes me

A little happier than my wretched father.”

The result was, at all events, highly satisfactory to Wolsey, who, in the beginning of the following year, created Fitzjames a puisne judge of the Court of King’s Bench, with a promise of being raised to be chief justice as soon as there should be a vacancy. Sir John Fineux, turned of eighty, was expected to drop every term, but held on four years longer. As soon as he expired, Fitzjames was appointed his successor. Wolsey still zealously supported him, although thereby incurring considerable obloquy. It was generally thought that the new chief was not only wanting in gravity of moral character, but that he had not sufficient professional knowledge for such a situation. His highest quality was discretion, which generally enabled him to conceal his ignorance, and to disarm opposition. Fortunately for him, the question which then agitated the country respecting the validity of the king’s marriage with Catharine of Arragon, was considered to depend entirely on the canon law, and he was not called upon to give any opinion upon it. He thus quietly discharged the duties of his office till Wolsey’s fall. But he then experienced much perplexity. Was he to desert his patron, or to sacrifice his place? He had an exaggerated notion of the king’s vengeful feelings. The cardinal having been not only deprived of the great seal, but banished to Esher, and robbed of almost the whole of his property under process of præmunire, while an impeachment for treason was still threatened against him, the chief justice concluded that his utter destruction was resolved upon, and that no one could show him any sympathy without sharing his fate. Therefore, instead of going privately to visit him, as some old friends did, he joined in the cry against him, and assisted his enemies to the utmost. Wolsey readily surrendered all his private property, but wished, for the benefit of his successors, to save the palace at Whitehall, which belonged to the see of York, being the gift of a former archbishop. A reference was then made to the judges, “whether it was not forfeited to the crown;” when the chief justice suggested the fraudulent expedient of a fictitious recovery in the Court of Common Pleas, whereby it should be adjudged to the king under a superior title. He had not the courage to show himself in the presence of the man to whom he owed every thing; and Shelley, a puisne judge, was deputed to make the proposal to him in the king’s name. “Master Shelley,” said the cardinal, “ye shall make report to his highness that I am his obedient subject, and faithful chaplain and bondsman, whose royal commandment and request I will in no wise disobey, but most gladly fulfil and accomplish his princely will and pleasure in all things, and in especial in this matter, inasmuch as the fathers of the law all say that I may lawfully do it. Therefore I charge your conscience, and discharge mine. Howbeit, I pray you show his majesty from me that I most humbly desire his highness to call to his most gracious remembrance that there is both heaven and hell.”

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

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

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

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

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

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

The case against the Bishop of Rochester rested on the evidence of Rich, the solicitor general, who swore he had heard the prisoner say, “I believe in my conscience, and by my learning I assuredly know, that the king neither is, nor by right can be, supreme head of the church of England;” but admitted that this was in a confidential conversation, which he had introduced by declaring that “he came from the king to ask what the bishop’s opinion was upon this question, and by assuring him that it never should be mentioned to any one except the king, and that the king had promised he never should be drawn into question for it afterwards.” The prisoner contending that he was not guilty of the capital crime charged for words so spoken, the matter was referred to the judges.

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

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

Fitzjames, C. J.– “All my brethren are agreed that ‘maliciously’ is a term of art and an inference of law, not a qualification of fact. In truth, it is a superfluous and void word; for if a man speak against the king’s supremacy by any manner of means, that speaking is to be understood and taken in law as malicious.”

Bishop of Rochester.– “If the law be so, then it is a hard exposition, and (as I take it) contrary to the meaning of them that made the law, as well as of ordinary persons who read it. But then, my lords, what says your wisdom to this question, ‘Whether a single testimony may be admitted to prove me guilty of treason; and may it not be answered by my negative?’ Often have I heard it said, that to overcome the presumption from the oath of allegiance to the king’s majesty, and to guard against the dire consequences of the penalties for treason falling on the head of an innocent man, none shall be convicted thereof save on the evidence of two witnesses at the least.”

Fitzjames, C. J.– “This being the king’s case, it rests much in the conscience and discretion of the jury; and as they upon the evidence shall find it, you are either to be acquitted or else to be condemned.”

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

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

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

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

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

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

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

The next occasion of his attracting the notice of the public was when he presided at the trials of Smeaton and the other supposed gallants of Anne Boleyn. Luckily for him, no particulars of these trials have come down to us, and we remain ignorant of the arts by which a conviction was obtained, and even a confession– although there is every reason to believe that the parties were innocent. According to the rules of evidence which then prevailed, the convictions and confessions of the gallants were to be given in evidence to establish the guilt of the unhappy queen, for whose death Henry was now as impatient as he had once been to make her his wife.

When the lord high steward and the peers assembled for her trial, Fitzjames and the other judges attended, merely as assessors, to advise on any point of law which might arise. I do not find that they were consulted till the verdict of guilty had been recorded, and sentence was to be pronounced. Burning was the death which the law appointed for a woman attainted of treason; yet as Anne had been Queen of England, some peers suggested that it might be left to the king to determine whether she should die such a cruel and ignominious death, or be beheaded, a punishment supposed to be attended with less pain and less disgrace. But then a difficulty arose whether, although the king might remit all the atrocities of the sentence on a man for treason, except beheading, which is part of it, he could order a person to be beheaded who was sentenced to be burnt. A solution was proposed, that she should be sentenced by the lord high steward to be “burnt or beheaded at the king’s pleasure;” and the opinion of the judges was asked, “whether such a sentence could be lawfully pronounced.”

Fitzjames, C. J.– “My lords, neither myself nor any of my learned brothers have ever known or found in the records, or read in the books, or known or heard of, a sentence of death in the alternative or disjunctive, and incline to think that it would be bad for uncertainty. The law delights in certainty. Where a choice is given, by what means is the choice to be exercised? And if the sheriff receives no special directions, what is he to do? Is sentence to be stayed till special directions are given by the king? and if no special directions are given, is the prisoner, being attainted, to escape all punishment? Prudent antiquity advises you stare super antiquas vias; and that which is without precedent is without safety.”

After due deliberation, it was held that an absolute sentence of beheading would be lawful, and it was pronounced accordingly; the court being greatly comforted by recollecting that no writ of error lay, and that their judgment could not be reversed.

Fitzjames died in the year 1539, before this judgment served as a precedent for that upon the unfortunate Queen Catharine Howard; and he was much missed when the bloody statute of the Six Articles brought so many, both of the old and of the reformed faith, on capital charges, before the Court of King’s Bench.

CHAPTER V.
THOMAS FLEMING

The greatest part of my readers never before read or heard of the name of Thomas Fleming; yet, starting in the profession of the law with Francis Bacon, he was not only preferred to him by attorneys, but by prime ministers, and he had the highest professional honors showered upon him, while the immortal philosopher, orator, and fine writer continued to languish at the bar without any advancement, notwithstanding all his merits and all his intrigues. But Fleming had superior good fortune, and enjoyed temporary consequences, because he was a mere lawyer – because he harbored no idea or aspirations beyond the routine of Westminster Hall – because he did not mortify the vanity of the witty, or alarm the jealousy of the ambitious.

He was the younger son of a gentleman of small estate in the Isle of Wight. I do not find any account of his early education, and very little interest can now be felt respecting it; although we catch so eagerly at any trait of the boyhood of his rival, whom he despised. Soon after he was called to the bar, by unwearied drudgery he got into considerable practice; and it was remarked that he always tried how much labor he could bestow upon every case intrusted to him, while his more lively competitors tried with how little labor they could creditably perform their duty.

In the end of the year 1594, he was called to the degree of serjeant, along with eight others, and was thought to be the most deeply versed in the law of real actions of the whole batch. It happened that, soon after, there was a vacancy in the office of solicitor general, on the promotion of Sir Edward Coke to be attorney general. Bacon moved heaven and earth that he himself might succeed to it. He wrote to his uncle, Lord Treasurer Burleigh, saying, “I hope you will think I am no unlikely piece of wood to shape you a true servant of.” He wrote to the Queen Elizabeth, saying, “I affect myself to a place of my profession, such as I do see divers younger in proceeding to myself, and men of no great note, do without blame aspire unto; but if your majesty like others better, I shall, with the Lacedemonian, be glad that there is such choice of abler men than myself.” He accompanied this letter with a valuable jewel, to show off her beauty. He did what he thought would be still more serviceable, and, indeed, conclusive; he prevailed upon the young Earl of Essex, then in the highest favor with the aged queen, earnestly to press his suit. But the appointment was left with the lord treasurer, and he decided immediately against his nephew, who was reported to be no lawyer, from giving up his time to profane learning – who had lately made an indiscreet, although very eloquent, speech in the House of Commons – and who, if promoted, might be a dangerous rival to his cousin, Robert Cecil, then entering public life, and destined by his sire to be prime minister. The cunning old fox then inquired who would be a competent person to do the queen’s business in her courts, and would give no uneasiness elsewhere; and he was told by several black-letter judges whom he consulted that “Serjeant Fleming was the man for him.” After the office had been kept vacant by these intrigues above a year, Serjeant Fleming was actually appointed. Bacon’s anguish was exasperated by comparing himself with the new solicitor; and in writing to Essex, after enumerating his own pretensions, he says, “When I add hereunto the obscureness and many exceptions to my competitor, I cannot but conclude with myself that no man ever had a more exquisite disgrace.” He resolved at first to shut himself up for the rest of his days in a cloister at Cambridge. A soothing message from the queen induced him to remain at the bar; but he had the mortification to see the man whom he utterly despised much higher in the law than himself, during the remainder of this and a considerable part of the succeeding reign.

Fleming, immediately upon his promotion, gave up his serjeantship, and practised in the Court of Queen’s Bench. He was found very useful in doing the official business, and gave entire satisfaction to his employers.

At the calling of a new Parliament, in the autumn of 1601, he was returned to the House of Commons for a Cornish borough; and, according to the usual practice at that time, he ought, as solicitor general, to have been elected speaker; but his manner was too “lawyer-like and ungenteel” for the chair, and Serjeant Croke, who was more presentable, was substituted for him.

He opened his mouth in the house only once, and then he broke down. This was in the great debate on the grievance of monopolies. He undertook to defend the system of granting to individuals the exclusive right of dealing in particular commodities; but when he had described the manner in which patents passed through the different offices before the great seal is put to them, he lost his recollection and resumed his seat.

Bacon, now member for Middlesex, to show what a valuable solicitor general the government had lost, made a very gallant speech, in which he maintained that “the queen, as she is our sovereign, hath both an enlarging and restraining power: for, by her prerogative, she may, 1st, set at liberty things restrained by statute law or otherwise; and 2dly, by her prerogative she may restrain things which be at liberty.” He concluded by expressing the utmost horror of introducing any bill to meddle with the powers of the crown upon the subject, and protesting that “the only lawful course was to leave it to her majesty of her own free will to correct any hardships, if any had arisen in the exercise of her just rights, as the arbitress of trade and commerce in the realm.”

This pleased her exceedingly, and even softened her ministers, insomuch that a promise was given to promote Fleming as soon as possible, and to appoint Bacon in his place. In those days there never existed the remotest notion of dismissing an attorney or solicitor general, any more than a judge; for, though they all alike held during pleasure, till the accession of the house of Stuart the tenure of all of them was practically secure. An attempt was made to induce Fleming to accept the appointment of queen’s serjeant, which would have given him precedence over the attorney general; but this failed, for he would thereby have been considered as put upon the shelf, instead of being on the highway to promotion.

Elizabeth died, leaving Bacon with no higher rank than that of queen’s counsel; and on the accession of James I., Fleming was reappointed solicitor general.

The event justified his firmness in resisting the attempt to shelve him, for in the following year, on the death of Sir William Peryam, he was appointed chief baron of the Exchequer. While he held this office, he sat along with Lord Chief Justice Popham on the trial of Guy Fawkes and the gunpowder conspirators; but he followed the useful advice for subordinate judges on such an occasion – “to look wise, and to say nothing.”

His most memorable judgment as chief baron was in what is called “The Great Case of Impositions.” This was, in truth, fully as important as Hampden’s case of ship money, but did not acquire such celebrity in history, because it was long acquiesced in, to the destruction of public liberty, whereas the other immediately produced the civil war. After an act of Parliament had passed at the commencement of James’s reign, by which an import duty of 2s. 6d. per cwt. was imposed upon currants, he by his own authority laid on an additional duty of 7s. 6d., making 10s. per cwt. Bates, a Levant merchant, who had imported a cargo of currants from Venice, very readily paid the parliamentary duty of 2s. 3d. upon it, but refused to pay more; thereupon the attorney general filed an information in the Court of Exchequer, to compel him to pay the additional duty of 7s. 6d.; so the question arose, whether he was by law compellable to do so. After arguments at the bar which lasted many days, —

Fleming, C. B., said: “The defendant’s plea in this case is without precedent or example, for he alleges that the imposition which the king has laid is ‘indebitè, injustè, et contra leges Angliæ imposita, and, therefore, he refused to pay it.’ The king, as is commonly said in our books, cannot do wrong; and if the king seize any land without cause, I ought to sue to him in humble manner (humillime supplicavit, &c.), and not in terms of opposition. The matter of the plea first regards the prerogative, and to derogate from that is a part most undutiful in any subject. Next it concerns the transport of commodities into and out of the realm, the due regulation of which is left to the king for the public good. The imposition is properly upon currants, and not upon the defendant, for upon him no imposition shall be but by Parliament.(!) The things are currants, a foreign commodity. The king may restrain the person of a subject in leaving or coming into the realm, and a fortiori, may impose conditions on the importation or exportation of his goods. To the king is committed the government of the realm; and Bracton says, ‘that for his discharge of his office God hath given him the power to govern.’ This power is double – ordinary and absolute. The ordinary is for the profit of particular subjects – the determination of civil justice; that is nominated by civilians jus privatum, and it cannot be changed without Parliament. The absolute power of the king is applied for the general benefit of the people; it is most properly named policy, and it varieth with the time, according to the wisdom of the king, for the common good. If this imposition is matter of state, it is to be ruled by the rules of policy, and the king hath done well, instead of ‘unduly, unjustly, and contrary to the laws of England.’ All commerce and dealings with foreigners, like war and peace and public treaties, are regulated and determined by the absolute power of the king. No importation or exportation can be but at the king’s ports. They are his gates, which he may open or close when and on what conditions he pleases. He guards them with bulwarks and fortresses, and he protects ships coming hither from pirates at sea; and if his subjects are wronged by foreign princes, he sees that they are righted. Ought he not, then, by the custom he imposes, to enable himself to perform these duties? The impost to the merchant is nothing, for those who wish for his commodities must buy them subject to the charge; and, in most cases, it shall be paid by the foreign grower, and not by the English consumer. As to the argument that the currants are victual, they are rather a delicacy, and are no more necessary than wine, on which the king lays what customs seemeth him good. For the amount of the imposition it is not unreasonable, seeing that it is only four times as much as it was before. The wisdom and providence of the king must not be disputed by the subject; by intendment they cannot be severed from his person. And to argue a posse ad actum, because by his power he may do ill, is no argument to be used in this place. If it be objected that no reason is assigned for the rise, I answer it is not reasonable that the king should express the cause and consideration of his actions; these are arcana regis, and it is for the benefit of every subject that the king’s treasure should be increased.”

He then at enormous length went over all the authorities and acts of Parliament, contending that they all prove the king’s power to lay what taxes he pleases on goods imported, and he concluded by giving judgment for the crown.