Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression. John Campbell
the words really were as alleged by the witnesses for the crown, they clearly did show a treasonable purpose. Words merely expressing an opinion, however erroneous the opinion, might not amount to treason; but when the words refer to a purpose, and incite to an act, they might come within the statute. Here the king’s death had certainly been in the contemplation of the prisoner; in wishing a violence to be done which must inevitably have caused his death, he imagined and compassed it. This was, in truth, advising, counselling, and commanding others to take away the sacred life of his majesty. If the wicked deed had been done, would not the prisoner, in case the object of his vengeance had been a subject, have been an accessory before the fact?35 But in treason accessories before the fact were principals, and the prisoner was not at liberty to plead that what he had planned had not been accomplished. Therefore, if the jury believed that he had uttered the treasonable wish directed against his majesty’s own sacred person, they were bound to convict him.”
The jury immediately returned a verdict of guilty; and the frightful sentence in high treason, being pronounced, was carried into execution with all its horrors. This barbarity made a deep impression on the public mind, and, to aggravate the misconduct of the judge, a rumor was propagated that the late virtuous chief justice had been displaced because he had refused to concur in it.
Lord Chief Justice Billing, having justified his promotion by the renegade zeal he displayed for his new friends, and enmity to his old associates, was suddenly thrown into the greatest perplexity, and he must have regretted that he had ever left the Lancastrians. One of the most extraordinary revolutions in history, – when a long continuance of public tranquillity was looked for, – without a battle, drove Edward IV. into exile, and replaced Henry VI. on the throne, after he had languished ten years as a captive in the Tower of London.
There is no authentic account of Billing’s deportment in this crisis, and we can only conjecture the cunning means he would resort to, and the pretences he would set up, to keep his place and to escape punishment. Certain it is, that within a few days from the time when Henry went in procession from his prison in the Tower to his palace at Westminster, with the crown on his head, while almost all other functionaries of the late government had fled, or were shut up in jail, a writ passed the great seal, bearing date the 49th year of his reign, by which he assigned “his trusty and well-beloved Sir John Billing, Knight, as his chief justice to hold pleas in his court before him.” There can be as little doubt that he was present at the Parliament which was summoned immediately after in Henry’s name, when the crown was entailed on Henry and his issue, Edward was declared a usurper, his most active adherents were attainted, and all the statutes which had passed during his reign were repealed. It is not improbable that there had been a secret understanding between Billing and the Earl of Warwick, (the king maker,) who himself so often changed sides, and who was now in possession of the whole authority of the government.
While Edward was a fugitive in foreign parts, the doctrine of divine right was, no doubt, at a discount in England, and Billing may have again bolted his arguments about the power of the people to choose their rulers; although, according to the superstition of the age, he more probably countenanced the belief that Henry was a saint, and that he was restored by the direct interposition of Heaven.
But one would think he must have been at his wits’ end when, in the spring of the following year, Edward IV. landed at Ravenspurg, gained the battle of Barnet, and, after the murder of Henry VI. and the Prince of Wales, was again on the throne, without a rival. Billing does seem to have found great difficulty in making his peace. Though he was dismissed from his office, it was allowed to remain vacant about a twelvemonth, during which time he is supposed to have been in hiding. But he had vowed that, whatever changes might take place on the throne, he himself should die chief justice of the King’s Bench; and he contrived to be as good as his word.
By his own representations, or the intercession of friends, or the hope of the good services he might yet render in getting rid of troublesome opponents, the king was induced to declare his belief that he who had sat on the trials of Walker and Burdet had unwillingly submitted to force during the late usurpation; and on the 17th of June, 1472, a writ passed the great seal, by which his majesty assigned “his right trusty and well-beloved Sir John Billing, Knight, as Chief Justice to hold pleas before his Majesty himself.”
For nearly nine years after, he continued in the possession of his office, without being driven again to change his principles or his party. One good deed he did, which should be recorded of him – in advising Edward IV. to grant a pardon to an old Lancastrian, Sir John Fortescue. But for the purpose of reducing this illustrious judge to the reproach of inconsistency, which he knew made his own name a by-word, he imposed a condition that the author of De Laudibus should publish a new treatise, to refute that which he had before composed, proving the right of the house of Lancaster to the throne; and forced him to present the petition in which he assures the king “that he hath so clearly disproved all the arguments that have been made against his right and title, that now there remaineth no color or matter of argument to the hurt or infamy of the same right or title by reason of any such writing, but the same right and title stand now the more clear and open by that any such writings have been made against them.”
There are many decisions of Chief Justice Billing on dry points of law to be found in the Year Books, but there is only one other trial of historical importance mentioned in which he took any part; and it is much to be feared that on this occasion he inflamed, instead of soothing, the violent passions of his master, with whom he had become a special favorite.
Edward IV., after repeated quarrels and reconciliations with his brother, the Duke of Clarence, at last brought him to trial, at the bar of the House of Lords, on a charge of high treason. The judges were summoned to attend, and Lord Chief Justice Billing was their mouthpiece. We have only a very defective account of this trial, and it would appear that nothing was proved against the first prince of the blood, except that he had complained of the unlawful conviction of Burdet, who had been in his service; that he had accused the king of dealing in magic, and had cast some doubts on his legitimacy; that he had induced his servants to swear that they would be true to him, without any reservation of their allegiance to their sovereign; and that he had surreptitiously obtained and preserved an attested copy of an act of Parliament, passed during the late usurpation, declaring him next heir to the crown after the male issue of Henry VI. The Duke of Buckingham presided as high steward, and in that capacity ought to have laid down the law to the peers; but, to lessen his responsibility, he put the question to the judges, “whether the matters proved against the Duke of Clarence amounted, in point of law, to high treason.” Chief Justice Billing answered in the affirmative. Therefore a unanimous verdict of guilty was given, and sentence of death was pronounced in the usual form. I dare say Billing would not have hesitated in declaring his opinion that the beheading might be commuted to drowning in a butt of malmsey wine; but this story of Clarence’s exit, once so current, is now generally discredited, and the belief is, that he was privately executed in the Tower, according to his sentence.
Lord Chief Justice Billing enjoyed the felicitous fate accorded to very few persons of any distinction in those times – that he never was imprisoned, that he never was in exile, and that he died a natural death. In the spring of the year 1482, he was struck with apoplexy, and he expired in a few days – fulfilling his vow – for he remained to the last chief justice of the King’s Bench, after a tenure of office for seventeen years, in the midst of civil wars and revolutions.
He amassed immense wealth, but dying childless, it went to distant relations, for whom he could have felt no tenderness. Notwithstanding his worldly prosperity, few would envy him. He might have been feared and flattered, but he could not have been beloved or respected, by his contemporaries; and his name, contrasted with those of Fortescue and Markham, was long used as an impersonation of the most hollow, deceitful, and selfish qualities which can disgrace mankind.
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
It was, we may suppose, from this charge that Mr. Justice Curtis, of the Supreme Court of the United States, got the law retailed in his charge to the grand jury of the Massachusetts District, in consequence of which indictments were found against Wendell Phillips and Theodore Parker for obstructing the execution of the fugitive slave act – on the ground that certain speeches of theirs in Faneuil Hall against that statute “referred to a purpose” and “incited to an act” of resistance to it, thereby making their expression of opinion criminal. —