As no clerical crime had been committed for which degradation could be inflicted, and as it was thought not altogether decent that a bishop, wearing his lawn sleeves, his rochet, and his mitre, should stand on the pillory, to be pelted with brickbats and rotten eggs, the lord chief justice was overruled respecting this last suggestion, and the sentence was limited to the two fines, with perpetual imprisonment. The defendant was kept in durance under it till the meeting of the Long Parliament, when he was liberated; and, becoming an archbishop, he saw his persecutor take his place in the Tower, while he himself was placed at the head of the Church of England.
Now came the time when Lord Chief Justice Brampston himself was to tremble. The first grievance taken up was ship money; and both houses resolved that the tax was illegal, and that the judgment against Hampden for refusing to pay it ought to be set aside. Brampston was much alarmed when he saw Strafford and Laud arrested on a charge of high treason, and Lord Keeper Finch obliged to fly beyond the seas.
The next impeachment voted was against Brampston himself and five of his brethren; but they were more leniently dealt with, for they were only charged with “high crimes and misdemeanors;” and happening to be in the House of Lords when Mr. Waller brought up the impeachment, it was ordered “that the said judges for the present should enter into recognizances of £10,000 each to abide the censure of Parliament.” This being done, they enjoyed their liberty, and continued in the exercise of their judicial functions; but Mr. Justice Berkeley, who had made himself particularly obnoxious by his indiscreet invectives against the Puritans,51 was arrested while sitting on his tribunal in Westminster Hall, and committed a close prisoner to Newgate.
Chief Justice Brampston tried to mitigate the indignation of the dominant powers by giving judgment in the case of Chambers v. Sir Edward Brunfield, Mayor of London, against the legality of ship money. To an action of trespass and false imprisonment, the defendant justified by his plea under “a writ for not paying of money assessed upon the plaintiff towards the finding of a ship.” There was a demurrer to the plea, so that the legality of the writ came directly in issue. The counsel for the defendant rose to cite Hampden’s case and Lord Say’s case, in which all their lordships had concurred, as being decisive in his favor; but Brampston, C. J., said, —
“We cannot now hear this case argued. It hath been voted and resolved in the upper House of Parliament and in the House of Commons, nullo contradicente, that the said writ, and what was done by color thereof, was illegal. Therefore, without further dispute thereof, the court gives judgment for the plaintiff.”52
The Commons were much pleased with this submissive conduct, but pro forma they exhibited articles of impeachment against the chief justice. To the article founded on ship money he answered, “that at the conference of the judges he had given it as his opinion that the king could only impose the charge in case of necessity, and only during the continuance of that necessity.”
The impeachment was allowed to drop; and the chief justice seems to have coquetted a good deal with the parliamentary leaders, for, after the king had taken the field, he continued to sit in his court at Westminster, and to act as an attendant to the small number of peers who assembled there, constituting the House of Lords.
But when a battle was expected, Charles, being told that the chief justice of England was chief coroner, and, by virtue of his office, on view of the body of a rebel slain in battle, had authority to pronounce judgment of attainder upon him, so as to work corruption of blood and forfeiture of lands and goods, thought it would be very convenient to have such an officer in the camp, and summoned Lord Chief Justice Brampston to appear at head quarters in Yorkshire. The Lords were asked to give him leave of absence, to obey the king’s summons, but they commanded him to attend them day by day at his peril. He therefore sent his two sons to make his excuse to the king. His majesty was highly incensed by his asking leave of the Lords, and – considering another apology that he made, about the infirmity of his health and the difficulty of travelling in the disturbed state of the country, a mere pretence – by a supersedeas under the great seal dismissed him from his office, and immediately appointed Sir Robert Heath to be chief justice of England in his stead.
Brampston must now have given in his full adhesion to the parliamentary party, for in such favor was he with them, that, when the treaty of Uxbridge was proceeding, they made it one of their conditions that he should be reappointed lord chief justice of the Court of King’s Bench.
Having withdrawn entirely from public life, he spent the remainder of his days at his country house in Essex. There he expired, on the 2d of September, 1654, in the 78th year of his age. If courage and principle had been added to his very considerable talents and acquirements, he might have gained a great name in the national struggle which he witnessed; but, from his vacillation, he fell into contempt with both parties; and, although free from the imputation of serious crimes, there is no respect entertained for his memory.
CHAPTER VIII.
ROBERT HEATH
We must now attend to Sir Robert Heath, who was the last chief justice of Charles I., and was appointed by him to pass judgment, not on the living, but on the dead. If we cannot defend all his proceedings, we must allow him the merit – which successful members of our profession can so seldom claim – of perfect consistency; for he started as a high prerogative lawyer, and a high prerogative lawyer he continued to the day of his death.
He was of a respectable family of small fortune, in Kent, and was born at Etonbridge in that county. He received his early education at Tonbridge School, and was sent from thence to St. John’s College, Cambridge. His course of study there is not known; but when he was transferred to the Inner Temple, we are told that he read law and history with the preconceived conviction that the King of England was an absolute sovereign; and so enthusiastic was he that he converted all he met with into arguments to support his theory. One most convenient doctrine solved many difficulties which would otherwise have perplexed him: he maintained that Parliament had no power to curtail the essential prerogatives of the crown, and that all acts of Parliament for such a purpose were ultra vices and void. There is no absurdity in this doctrine, for a legislative assembly may have only a limited power, like the Congress of the United States of America; and it was by no means so startling then as now, when the omnipotence of Parliament has passed into a maxim. He had no respect whatever for the House of Commons or any of its privileges, being of opinion that it had been called into existence by the crown only to assist in raising the revenue, and that, if it refused necessary supplies, the king, as Pater Patriæ, must provide for the defence of the realm in the same manner as before it had existence. He himself several times refused a seat in that assembly, which he said was “only fit for a pitiful Puritan or a pretending patriot;” and he expressed a resolution to get on in his profession without beginning, as many of his brethren did, by herding with the seditious, and trying to undermine the powers which for the public good the crown had immemorially exercised and inalienably possessed. To enable him to defend these with proper skill and effect, he was constantly perusing the old records; and, from the Conquest downwards, they were as familiar to him as the cases in the last number of the periodical reports are to a modern practitioner. Upon all questions of prerogative law which could arise he was complete master of all the authorities to be cited for the crown, and of the answers to be given to all that could be cited against him.
As he would neither go into Parliament nor make a splash in Westminster Hall in the “sedition line,” his friends were apprehensive that his great acquirements as a lawyer never would be known; but it happened that, in the year 1619, he was appointed “reader” for the Inner Temple, and he delivered a series of lectures, explaining his views on constitutional subjects, which forever established his reputation.
On the first vacancy which afterwards occurred in the office of solicitor general, he was appointed to fill it; and Sir Thomas Coventry, the attorney general, expressed high satisfaction at having him for a colleague. Very important proceedings soon after followed, upon the impeachment of Lord Bacon and the punishment of the monopolists; but,