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“ In sessions and sizes we bear the stroke and sway,
Were it by right or wrong, it passed without reprief,
“ From this practice being so universal, Hobbes contends, that he whose private interest is to be decided in an assembly, may make as many friends as he can; and though he procures them with money, yet it is not injustice.”
A history of Judicial Corruption, though in its result not very, favourable to the professors of the law, would be highly curious and valuable. During the reign of the Stuarts this evil appears to have mounted to a higher pitch than at any other period of our history, and so blunt was the moral feeling of the public upon the subject, that the crime was scarcely regarded in an odious light. Clarendon somewhere mentions a message which he received from the Queen, to favour a particular suitor, and if our memory be correct, without that reprobation which the act merited.
The corruption of Lord Bacon has been sometimes extenuated, on the ground that he was merely following the example of his predecessors in the acceptance of gratuities, and that his offence partook strongly of the spirit of the age. It cannot, however, be supposed, that Bacon was not aware of the magnitude of his crime. In his address to Serjeant: Hutton on his becoming a judge, he solemnly cautioned him to beware of corruption. That your hands, and the hands of your hands (I mean those about you), he clean and uncorrupt from gifts, from meddling in titles, and from serving of turns, be they great ones or small ones.” There can be no doubt that, at this period, judicial corruption was esteemed much less disgraceful than at the present day. Bacon himself endeavoured to frame an excuse out of the prevalence of the evil. “And . for the briberies and gifts wherewith I am charged,” says he," in a letter to the king, “ when the book of hearts shall be opened, I hope I shall not be found to have the troubled fountain of a corrupt heart, in a depraved habit of taking: rewards to pervert justice; howsoever I may be frail and partake of the abuses of the times.” It is singular to observe the different shapes in which the bribes were administered in Lord
Bacon's case. In several causes he received large sums in money. In one cause, “ a dozen of buttons, after the cause
ended, of the value of £50;" in another, “ £200 in money, and a diamond ring worth 5 or £600.” “ Of the Apothecaries, besides a rich present of ambergrease, £150.” “In the cause of Kenday, and Valore, a cabinet worth £800.”
When Sir Thomas More was Chancellor, he received two presents from certain suitors of his court,-a glove filled with gold pieces, and a golden goblet; but Sir Thomas returned the money and retained the glove, and after drinking the gentleman's good health out of the golden goblet, restored it to the donor.
The latest proceedings against a judge for malversation in his office were in the case of the Earl of Macclesfield, Lord Chancellor, who was impeached, in the year 1725, of high crimes and misdemeanors, found guilty, and sentenced to a fine of £30,000.
The influence which has been exercised by the Crown in the election of members of parliament would also furnish ground for a curious inquiry. Even from the pages of Clarendon, who does not appear to have thought it necessary to conceal the fact, many instances might be collected of the open and gross exertion of the royal influence. In the time of Charles II. means were taken to secure the election of many of the king's domestic servants (Clarendon's Life, vol. ir. p. 442); so that, at one time, his majesty had nearly 100 members of his own menial servants and their near relations at his own disposal. (Ibid. vol. iii. p. 711.) Attempts were openly made by the king's ministers to buy the votes of members by promises of reward and preferment, “ the most dishonourable and unthrifty brokery,” says Clarendon, “ that can be practiced in a parliament.” (Life, vol. iii. p. 767.) The king himself appears to have been in the habit of applying personally to individual members, and of soliciting their support. When Sir George Downing brought forward his project to new model the Treasury, the king warmly espoused it, and declared, that “ he had converted many in the House who had disliked it; and that since it came into the House of Peers, he had spoken with many of the Lords, who seemed most unsatisfied with it, and he was confident he had so well informed many of them, that they had changed their opinion, and would be no more against that proviso." (Clar. Life, vol. iii. p. 604.)
In commenting upon the statute of 13 Rich. II. c. 5, he takes the opportunity of making some observations upon the subject of impressinent, a question of constitutional law which has been much and angrily agitated. The learned argument of Mr. Justice Foster, while Recorder in Bristol, in the case of Alexander Broadfoot, who was indicted for murder in the year 1743, is generally supposed to have exhausted all the authori
ties upon the subject ;* but, as Mr. Barrington well observes, should the point. again arise in a Court of Justice, a diligent and judicious search may be productive of many fresh materials. He has adduced several additional authorities, especially with regard to the power of impressing for the land service. In illustration of this subject, he has cited, in his notes, several instances in which individuals were impressed to serve in the king's household.
“ And first with regard to the power of pressing for the land service, of which there were formerly precedents. In the forty-seventh year of Henry the Third an order issued to the sheriff of every county, that, taking to his assistance the Custos Pacis, he should collect out of every township at least four able-bodied men, who were to repair to London on a particular day. Even so late as the year 1596, Stowe mentions, that a thousand men were pressed for the land service; they were afterwards, indeed, discharged, instead of being sent to France as intended; and the chronicler, who states the fact which happened in his own time, does not even hint at a doubt about the legality of this measure. It is likewise asserted in Rushworth's Collections, that the power to press soldiers is not to be disputed.
“There is also an ordinance of the 28th June, 1659, which throws light upon this point, and shews the apprehension of what was supposed to be law at that time. It is entituled, An Ordinance to encourage Mariners and impress Seamen,-the last clause of which is as follows_ And, lastly, for the better encouragement of seamen and watermen, to apply themselves the more willingly to this service, it is further enacted and ordained, that all mariners, sailors, and watermen, who have served an apprenticeship of seven years, shall hereby be exempted and freed from being pressed to serve as soldiers in any land service. This ordinance likewise punishes the mariners, endeavouring even to avoid the being pressed, by imprisonment of six months.”
In the compilation of this note Mr. Barrington has overlooked a highly curious authority in the Reports of Sir Edward Coke, which proves that letters patent used to be issued for the purpose of impressing young choristers for the King's service, and that the practice was continued at all events as late as
* The whole of Sir Michael Foster's arguments may also be found in one of Mr. Charles Butler's earliest works—“ An Essay on the Legality of impressing Seamen," published in 1778. Some additional facts and arguments are added by Mr. B. and a few pages in the second edition were written by Lord Sandwich. (Vide Reminiscences, p. 70.) The tract is not republished in the collection of Mr. Butler's works, and is now rarely to be met with in a separate form; it is, however, re. printed in the Pamphleteer, No. XLV.
VOL. IX. PART II.
the reign of Elizabeth. The passage to which we allude is to be found in Jehu Webb's case, in the Eighth Part of Coke's Reports.
“ So where a commission is made to take boys singing in cathedral churches, &c. or other places where children are taught to sing, to furnish the king's chapel, these general words, by construction of law, have a reasonable intendment, scilicet, that such boys as are brought up and taught to sing, to seek and get their living by it, may be taken for the king's service, and it will be a good preferment for them to serve the king in his chapel; but the son of a gentleman, or any other, who is taught to sing for his ornament, delight, or recreation, and not thereby to get his living, cannot be taken against his will, or the consent of his parents or friends; and so it was resolved by the two Justices and the whole Court of Star Chamber, anno 43 Eliz. in the case of one Evans, who had, by colour of such letters patent, taken the son of Clifton (a gentleman of quality in Norfolk), who was taught to sing for his recreation ; which Evans, for the said offence, was grievously punished,"
The use of torture in England, as an instrument both of the law, the church, and the state, is a subject of much importance, and has been illustrated in a very able manner by Mr. Barrington, in his Observations on the Statutes of Westminster, the 1st and 27th Hen. VIII. c. 4.
“Fuller informs us, that one Hawkins suffered this punishment in the reign of Henry the Sixth, in order to extort evidence from him ; and Sir Edward Coke, in the case of Lady Shrewsbury, says, that the nobility of England are not subject to torture in crimine læsæ majestatis ; which seems to admit, that in other crimes they were liable to it; or otherwise affords a strong inference, that persons of a lower rank might in treason be subject to this sentence. King James, in his Works, mentions, that the rack was shewn to Guy Fawkes during his examination; and yet this attempt of procuring evidence is not taken notice of by any historian or lawyer of the times; though every circumstance relative to the powder-plot must have been most publicly known. Upon the murder of the Duke of Buckingham by Felton, the Judges were asked, whether he could be tortured in order to extort a confession? They answered, indeed, to their honour, in the negative ; but their being thus consulted shews, that, in the apprehension of the king's counsellors, they might have inflicted this punishment. It is not pretended by this, that the instances were frequent; and fortunately this most horrid practice hath been discon. tinued, so that there cannot be the least legal pretence ever to revive it. Torture, indeed, by no means prevails so universally in the other. countries of Europe as is generally apprehended : there are express laws against it both in Navarre and Biscay, though in Biscay it hath of late been permitted in treason and heresy. There are also many regulations by the ordinances of the state of Lucca, to prevent its ever
being inflicted a second time, but upon fresh as well as stronger proofs; and if the executioner introduces any new severity during the examination of the criminal, he is punished with death. It is used in China, and in most parts of Asia : the act of union hath forbidden it in Scotland.”
“ There is a parenthesis of some ambiguity likewise thrown into this preamble, which relates to the confession of the criminal required by the civil law, (" which they will never do without torture or pains.”) I will not dwell, however, upon the true meaning or construction of this recital, but shall only observe, that the practice of torturing criminals is not spoken of with any great abhorrence by the legislature ; nay, it seems to be recited as allowed to have been practised in this country, in all offences tried before the admiral. I have, in my observations on the statute of Westminster the first, endeavoured to prove, that torture, though not frequently used, was not absolutely unknown in England, since which some additional proofs have occured. Oldmixon in his history asserts, that a confession was thus extorted from one Simpson in 1558. Sir Walter Raleigh also at his trial mentions, that Kemish was threatened with the rack, and that the keeper of this horrid instrument was sent for, which seems to prove, beyond all doubt, that this mode of punishment had been occasionally used, otherwise there would not have been a regular officer who had the custody of it. Torture still continues to be used in most countries in Europe, and amongst the rest in France, though honest Montaigne hath written with great warmth against it. Montesquieu hath likewise a short chapter, by which he would seem to condemn it; but it is the most fantastical in his whole work of the Esprit des loix,—the very great abilities and learning, which appear in almost every other part of it, entitle him, however, to not only these, but greater liberties with his readers. .. The present King of Prussia hath, to his honour, abolished it in his own dominions : La question se donne en Allemagne aux malfaitures après qu'ils sont convaincus, afin d'arracher de leur propre bouche l'aveu de leurs crimes : elle se donne en France pour averer le fait, ou pour decouvrir les complices; il y a huit ans que la question est abolie en Prusse.' :
“ The Marquis Beccaria, who seems to have adopted most of Montesquieu's ideas, makes use of the following argument against the use of torture: The person suffering this agony either confesses, or not; if he is guilty, and does not acknowledge his crime, he is acquitted when he deserves death : if the accused is innocent, he hath been tortured, when the putting him upon his trial was more than sufficient punishment.'' ... He likewise observes, that those states of Europe who permit torture in the course of civil justice, never allow it to be made use of in their camps, where the martial law takes place.
6. Ammianus Marcellinus informs us, that the Egyptians shewed remarkable firmness, whilst under the most excruciating pain, to extørt a discovery from them. ' Apud eos (Egyptos,) erubescit, si quis