ROBERT FOSTER.

At the restoration of Charles II. it was considered necessary to sweep away the whole of the judges from Westminster Hall, although, generally speaking, they were very learned and respectable, and they had administered justice very impartially and satisfactorily.[57] Immense difficulty was found in replacing them. Clarendon was sincerely desirous to select the fittest men that could be found, but from his long exile he was himself entirely unacquainted with the state of the legal profession, and, upon making inquiries, hardly any could be pointed out, whose political principles, juridical acquirements, past conduct, and present position entitled them to high preferment. The most eminent barristers on the royalist side had retired from practice when the civil war began, and the new generation which had sprung up had taken an oath to be faithful to the commonwealth. One individual was discovered—Sir Orlando Bridgman—eminent both for law and for loyalty. Early distinguished as a rising advocate, he had sacrificed his profits that he might assist the royal cause by carrying arms; and, refusing to profess allegiance to those whom he considered rebels, he had spent years in seclusion,—still devoting himself to professional studies, in which he took the highest delight. At first, however, it was thought that he could not properly be placed in a higher judicial office than that of chief baron of the Exchequer; and the chiefships of the King’s Bench and Common Pleas were allowed to remain vacant some months, puisnies being appointed in each court to carry on the routine business.

At last a chief justice of England was announced—Sir Robert Foster; and his obscurity testified the perplexity into which the government had been thrown in making a decent choice. He was one of the very few survivors of the old school of lawyers, which had flourished before the troubles began; he had been called to the degree of serjeant at law so long ago as the 30th of May, 1636, at a time when Charles I., with Strafford for his minister, was ruling with absolute sway, was imposing taxes by his own authority, was changing the law by proclamation, and hoped never again to be molested by Parliaments. This system was condemned and opposed by the most eminent men at the English bar, but was applauded and supported by some who conscientiously thought that all popular institutions were mischievous, and by more who thought that court favor gave them the best chance of rising in the world. Foster is supposed to have defended ship money, the cruel sentences of the Star Chamber, the billeting of soldiers to live at free quarters, and other flagrant abuses, as well from a sincere love of despotism as from a desire to recommend himself to those in power.[58]

At the time when tyranny had reached its culminating point, he was appointed a puisne judge of the Court of Common Pleas. Luckily for him, Hampden’s case had been decided before his appointment, and he was not impeached by the Long Parliament. When the civil war broke out, he followed the king; and afterwards assisted in attempting to hold a Court of Common Pleas at Oxford, but sat alone, and his tribunal was without advocates or suitors. An ordinance passed the House of Commons for removing him from his office, and on account of his excessive zeal in the royal cause, he was obliged to compound for his estate by paying a very large fine.

After the king’s death, he continued in retirement till the Restoration. He is said to have had a small chamber in the Temple, and like Sir Orlando Bridgman and Sir Jeffery Pelman, to have practised as a chamber counsel, chiefly addicting himself to conveyancing.

The first act of the government of Charles II. was to reinstate Foster in his old office. There was a strong desire to reward his constancy with fresh honors; but he was thought unfit to be raised higher, and the office of chief justice of the King’s Bench could not be satisfactorily filled up.

Only six common law judges had been appointed when the trials of the regicides came on. Foster, being one of them, distinguished himself for his zeal; and when they were over, all scruples as to his fitness having vanished, he, who a few months before, shut up in his chamber that he might escape the notice of the Roundheads, never expected any thing better than to receive a broad piece for preparing a conveyance according to the recently invented expedient of “lease and release,” was constituted the highest criminal judge in the kingdom.

He presided in the Court of King’s Bench for two years. Being a deep black letter lawyer, he satisfactorily disposed of the private cases which came before him, although he was much perplexed by the improved rules of practice introduced while he was in retirement, and he was disposed to sneer at the decisions of Chief Justice Rolle, a man in all respects much superior to himself. In state prosecutions he showed himself as intemperate and as arbitrary as any of the judges who had been impeached at the meeting of the Long Parliament.

To him chiefly is to be imputed the disgraceful execution as a traitor, of one who had disapproved of the late king’s trial; who was included in the present king’s promise of indemnity from Breda;[59] in whose favor a petition had been presented by the Convention Parliament; who was supposed to be expressly pardoned by the answer to that petition;[60] but who had incurred the inextinguishable hatred of the Cavaliers by the part he had taken in bringing about the conviction of the Earl of Strafford. Sir Henry Vane the younger,[61] after lying two years in prison, during which the shame of putting him to death was too strong to be overcome, was at last arraigned for high treason at the King’s Bench bar. As he had actually tried to save the life of Charles I., the treason charged upon him was for conspiring the death of Charles II., whose life he would have been equally willing to defend. The indictment alleged this overt act, “that he did take upon him the government of the forces of this nation by sea and land, and appointed colonels, captains, and officers.” The crown lawyers admitted that the prisoner had not meditated any attempt upon the natural life of Charles II., but insisted that, by acting under the authority of the commonwealth, he had assisted in preventing the true heir of the monarchy from obtaining possession of the government, and thereby, in point of law, had conspired his death, and had committed high treason. Unassisted by counsel, and browbeaten by Lord Chief Justice Foster, he made a gallant defence; and besides pointing out the bad faith of the proceeding, after the promises of indemnity and pardon held out to him, contended that, in point of law, he was not guilty, on the ground that Charles II. had never been in possession of the government as king during any part of the period in question: that the supreme power of the state was then vested in the Parliament, whose orders he had obeyed; that he was in the same relation to the exiled heir as if there had been another king upon the throne; and that the statute of Henry VII., which was only declaratory of the common law and of common sense, expressly provided that no one should ever be called in question for obeying, or defending by force of arms, a king de facto, although he had usurped the throne. He concluded by observing that the whole English nation might be included in the impeachment.

Foster, C. J.—“Had there been another king on the throne, though a usurper, you might have been exempted by the statute from the penalties of treason. But the authority you recognized was called by the rebels either ‘Commonwealth’ or ‘Protector,’ and the statute takes no notice of any such names or things. From the moment that the martyred sovereign expired, our lord the king that now is must be considered as entitled to our allegiance, and the law declares that he has ever since occupied his ancestral throne. Therefore, obedience to any usurped authority was treason to him. You talk of the sovereign power of Parliament, but the law knows of no sovereign power except the power of our sovereign lord the king. With respect to the number against whom the law shall be put in force, that must depend upon his majesty’s clemency and sense of justice. To those who truly repent he is merciful; but the punishment of those who repent not is a duty we owe both to God and to our fellow-men.”

A verdict of guilty being returned, the usual sentence was pronounced; but the king, out of regard to his own reputation, if not to the dictates of justice and mercy, was very reluctant to sanction the execution of it, till Chief Justice Foster, going the following day to Hampton Court to give him an account of the trial, represented the line of defence taken by the prisoner as inconsistent with the principles of monarchical government, and said that the supposed promises of pardon were by no means binding, “for God, though ofttimes promising mercy, yet intends his mercy only for the penitent.” The king, thus wrought on, notwithstanding his engagement to the contrary, signed the death-warrant, and Vane was beheaded on Tower Hill, saying with his last breath, “I value my life less in a good cause than the king does his promise.” Mr. Fox, and other historians, consider this execution “a gross instance of tyranny,” but have allowed Chief Justice Foster, who is mainly responsible for it, to escape without censure.

The arbitrary disposition of this chief justice was strongly manifested soon after, when John Crook, and several other very loyal Quakers, were brought before him at the Old Bailey for refusing to take the oath of allegiance.

Foster, C. J.—“John Crook, when did you take the oath of allegiance?” Crook.—“Answering this question in the negative is to accuse myself; which you ought not to put me upon. ‘Nemo debet seipsum prodere.’ I am an Englishman, and I ought not to be taken, nor imprisoned, nor called in question, nor put to answer, but according to the law of the land.” Foster, C. J.:—“You are here required to take the oath of allegiance, and when you have done that, you shall be heard.” Crook.—“You that are judges on the bench ought to be my counsel, not my accusers.” Foster, C. J.—“We are here to do justice, and are upon our oaths; and we are to tell you what is law, not you us. Therefore, sirrah, you are too bold.” Crook.—“Sirrah is not a word becoming a judge. If I speak loud, it is my zeal for the truth and for the name of the Lord. Mine innocency makes me bold.” Foster, C. J.—“It is an evil zeal.” Crook.—“No, I am bold in the name of the Lord God Almighty, the everlasting Jehovah, to assert the truth and stand as a witness for it. Let my accuser be brought forth.” Foster, C. J.—“Sirrah, you are to take the oath, and here we tender it you.” Crook.—“Let me be cleared of my imprisonment, and then I will answer to what is charged against me. I keep a conscience void of offence, both towards God and towards man.” Foster, C. J.—“Sirrah, leave your canting.” Crook.—“Is this canting, to speak the words of the Scripture?” Foster, C. J.—“It is canting in your mouth, though they are St. Paul’s words. Your first denial to take the oath shall be recorded; and on a second denial, you bear the penalties of a prÆmunire, which is the forfeiture of all your estate, if you have any, and imprisonment during life.” Crook.—“I owe dutiful allegiance to the king, but cannot swear without breaking my allegiance to the King of Kings. We dare not break Christ’s commandments, who hath said, Swear not at all; and the apostle James says, ‘Above all things, my brethren, swear not.’”

Crook, in his account of the trial, says, “The chief justice thereupon interrupting, called upon the executioner to stop my mouth, which he did accordingly with a dirty cloth and a gag.” The other Quakers following Crook’s example, they were all indicted for having a second time refused to take the oath of allegiance; and being found guilty, the court gave judgment against them of forfeiture, imprisonment for life, and moreover, that they were “out of the king’s protection;” whereby they carried about with them caput lupinum, (a wolf’s head,) and might be put to death by any one as noxious vermin.

The last trial of importance at which Chief Justice Foster presided was that of Thomas Tonge and others, charged with a plot to assassinate the king. General Ludlow says that this was got up by the government to divert the nation from their ill humor, caused by the sale of Dunkirk;[62] the invention being, “that divers thousands of ill-affected persons were ready under his command to seize the Tower and the city of London, then to march directly to Whitehall, in order to kill the king and Monk, with a resolution to give no quarter; and after that to declare for a commonwealth.” The case was proved by the evidence of supposed accomplices, which was held to be sufficient without any corroboration. The chief justice seems to have been very infirm and exhausted; for thus he summed up,—

“My masters of the jury, I cannot speak loud to you; you understand this business, such as I think you have not had the like in your time; my speech will not give me leave to discourse of it. The witnesses may satisfy all honest men: it is clear that they all agreed to subvert the government, and to destroy his majesty. What can you have more. The prisoners are in themselves inconsiderable; they are only the outboughs; but if such fellows are not met withal, they are the fittest instruments to set up a Jack Straw and a Wat Tyler; therefore you must lop them off, as they will encourage others. I leave the evidence to you; go together.”

The prisoners being all found guilty, the chief justice thus passed sentence upon them,—

“You have committed the greatest crime against God, our king, and your country, and against every good body that is in this land; for that capital sin of high treason is a sin inexpiable, and, indeed, hath no equal sin as to this world. Meddling with them that are given to change hath brought too much mischief already to this nation; and if you will commit the same sin, you must receive the same punishment, for happy is he who by other men’s harms takes heed.”

They were all executed, protesting their innocence.

The chief justice went a circuit after this trial, in the hope that country air would revive him. However, he became weaker and weaker, and, although much assisted by his brother judge, he with great difficulty got to the last assize town. From thence he travelled by slow stages to his house in London, where, after languishing for a few weeks, he expired, full of days, and little blamed for any part of his conduct as a judge, however reprehensible it may appear to us, trying it by a standard which he would have thought only fit to be proposed by rebels.