and fober functions of the Recorder of the City of London. We allude to the period when the mania of Wilkes and Liberty" had in fome degree influenced the whole kingdom; and whofe epidemic rage had, in a peculiar manner, infected the metropolis. A very large majority of the Livery efpoufed every meature that was brought forward in oppofition to Government. The lower claffes, too fond of uproar, fupported the fame principle; and the Corporation itself became at length fubject to the predominating influence. The Sheriffs were felected from among thofe Citizens who were the moft violent in fupport of Oppofition measures; and men, totally unconnected by their fituations and characters with the City, purchased their freedom, and took up their livery, in order to take upon themfelves thefe troublesome and expenfive offices. The ordinary rotation of the Court of Aldermen was infringed to elect fuch of its members to the Chief Magiftracy, who were the partizans and fupporters of Mr. Wilkes and his cause. In this ftate of civil difcord, the Recorder gave his opinion with firmness and understanding; but he could only give his counfel, and paffively fubmit to the majority of the Corporation. At length, a Remonftrance to the Throne was propofed and carried in a Court of Common Council, which contained fuch opinions, that the Recorder peremptorily refused to exercife his official functions on the occafion. He reprefented it as enforcing doctrines which he fhould ever oppofe, and expreffed in a language unfit for the Sovereign to hear. He was there. fore determined not to be the organ by which his Majefty should receive such an infult. Sir James Hodges, the Town Clerk, fupplied the place of the Recorder on this occation. He was a fenfible conceited man, who had been a Bookfeller on London Bridge, and whole oratory in the Common Council had railed him to his fituation. The office gratified his vanity, and has ficured to him a renown, which few Bookitilers have derived from works not published by themfelves: it has caufed his name to be recorded in the Letters of Junius. The refolution of the Recorder was, however, attended with confiderable mortification and tome danger. He was fummoned to juftity his conduct before the Common Council, and his speech on that cccafion was not calculated to avert the vote of cenfure which followed it. He was not only treated with great acrimony's but it was in the view of the powerful party to deprive him of his office. They, however, contented themselves with holding him forth, not only in their speeches, but in publications and caricatures, as an offenfive character, and a City Mob at that time was a very unpleasant enemy. In the temper and difpofition of Ádminiftration at this period, fuch conduct was certain of a reward; and the Recorder was, in the year 1772, appointed a Baron of his Majefty's Exchequer. In a fhort time fubfequent to his poffeffion of the ermine, on a question propofed to the Twelve Judges by the House of Lords, Baron Eyre was distinguished by his argument on that occafion. That he conducted himself with honour and ability in his judicial station, appears from his fucceffive advancements. In 1787, he fucceeded that able Lawyer and excellent man Sir John Skynner, as Chief Baron of his own Court. On the resignation of Lord Thurlow in 1792, he was appointed First Commiffioner of the Great Seal; and on the removal of Lord Loughbo rough, in the fucceeding year, to the Chancery Berch, he fucceeded that Noble Judge as Chief Justice of the Common Pleas. As his judicial life was one fober feries of official employment, in which no extraordinary events called forth an extraordinary application of mind or know. ledge, his reputation is confined to the regular fcene of public duty. It may, perhaps, be thought that his appointment to prefide at the State Trials, in London, is an exception to the foregoing obfervation. It was indeed a very im portant charge; nor do we mean to dif parage his useful qualities or acknowledged integrity, by expreffing our opi nion concerning it. Whether it arofe from his fuperior view of the case, an haraffed mind, or what he conceived to be a difcreet accommodation to the cir cumstances of the moment, we do not pretend to determine; but it appeared to us that he did not relift the bold irregularities of Horne Tooke as Sir Michael Fofter would have refifted them. In private lite, Lord Chief Justice Eyre difplayed the qualities which ren dered him eftimable among those who were to happy as to be within their influence. He has, however, left them to lament him, and is gone to wait the aw ful fummons to that tribunal where the Junges of the earth will receive judg ment. 3 OBSERVATIONS ON TWO EXTRAORDINARY COMMISSIONS THAT ISSUED IN THE REIGN OF EDWARD IV. AND ALSO ON THE WRETCHED STATE OF THE ADMINISTRATION OF THE PUBLIC JUSTICE OF THE KINGDOM AT THAT PERIOD OF THE JUDICIAL HISTORY OF ENGLAND. T HE firft Commiffion alluded to is directed to Richard Earl of Warwick, to prefide as Lord High Steward on a very fingular occafion; for it is no other than on the trial of a KING REGNANT, and for no lefs a crime than that horrid one of MURDER. We will give the reader the following paffage in the original Latin, accompanied with an English translation, word for word, as near as the idioms of the two languages will admit, firft premifing that the patent in question is tefted 3 Dec. A. D. 1461, 1. Edw. IV. "Quod † in proceffu ejufdem actûs adverfus et contrà tam HENR. nuper de facto et non de jure Regem Angl. adverfarium inimicum noftrum, quam quodam aliqs rebelles nostros, aliofque qui prænobilem principem et patrem noftrum Ricardum nuper Ducem Eborum apud Wakefield crudeliffimè et præditoriè murdraverunt et interfecerunt, IN PRESENTI PARLIAMENTO NOSTRO auctoritate ejuf dem parliamenti fiendi." Whereas it is intended to proceed IN THE PRESENT PARLIAMENT, by authority of the fame, as well against HENRY, late in fact, but not in right, King of England, our avowed mortal enemy, as against other rebels and others our fubjects, who murdered and flew the most noble prince and our father Richard, late Duke of York, at Wakefield. The other § Commiffion alluded to is directed to Henry Duke of Buckingham to prefide as Lord High Steward, for the fole purpose of seeing execution done flood convicted and attainted by the then on George late Duke of Clarence, who * Parliament, of treafon, committed against the, royal perfon; it bears teste 7 February, A. D. 1477-8, Hilary Term, 17. Edw. IV. and contains, among other matters, the following remarkable pas fage: "Nos confiderantes, quod Jufticia eft virtus excellens per quam regna prof perantur, Reges et Principes regnant et gubernant, omnino bonum regimen politia et bonum publicum manutenantur et fupportantur, quam virtutem ad Dei complacenciam præ aliquâ carnali af fectione fequi et eâ uti intendimus uf debimus, multoque magis pro eo quod 'vinculo confcientiæ noftræ, et per for lempne juramentum erga Deum fub pœnâ perpetuæ dampnationis, primo, pro fe 募 * Richard Neville, furnamed the King-Maker, who said himself, that from the inordinate authority he had in the Government, and the vaft command over the whole kingdom, he was poffeffed of fufficient power to make Kings or depofe them. See Hist. Engl. i. 268. 8vo. edit. 1715. + Prynne's Co. 4. Inft. 46, cale. King Henry VI. was barbarously murdered in the Tower of London, by King Edward's orders, by his brother Richard, the crooked back Duke of York (afterwards King Richard III.), who ftabbed him to the heart. Hift. Engl. i. 263. 272. 8vo. edit. 1715. Rap. H. E. IV. 271. 4to. edit. 1724. § Prynne, ut fupra, 47. Henry Stafford, Duke of Buckingham; his story and death may be read in an History of England of the reign of Richard III. A peer may plead a pardon before the Court of King's Bench, and the Judges have power to allow it, in order to prevent the trouble and expence of appointing an High Steward merely for the purpose of receiving fuch plea. Black. Comm. iv. 262. If fo, fure it was hardly worth while to conftitute that high officer to fee an execution done, that eded in drowning the party in a but of wine, as the writers feem all to agree this Duke of Clarence was. See the Hiftorians whose works we have cited in this publication. *Hume the Hiftorian faying [Hift. Engl. iii, 262.] that Clarence was tried before the Houfe of Peers, feems to warrant Lord Coke's caution to the profeffional student from relying on Chronicle Law [See Co. Pref. to 3. Rep.] for it appears the Duke was attainted, which the Houfe did in their legislative, not in their judicial capacity. : 2 Prynne's Co. 4. Inft. 47. VOL. XXXVI. JULY 1799. C curitate curitate perfonæ noftræ Regiæ et exitus noftri, fecundario pro tranquillitate et defenfione ecclefiæ Chrifti infra Regnum norum Angl. et tertio pro bono publico, pace et tranquillitate Regni noftri prædicti ac Dominorum et nobilium, et tocius Communitatis ejufdem cujufcunque gradus et condicionis exiftant, nec non in evitatione effufionis fanguinis Chriftiani profpicere conftringimur,licet propinquitas Janguinis, et internus et teneris amor quem ad præfatum Georgium in teneri atate fua babuimus et jerebamus, nos ad contrarium naturaliter movent et exhortant.” We, confidering that juftice is an excellent virtue, by it kingdoms profper, Kings and Princes reign and govern, thereby all good rule, policy, and the public welfare are maintained and fup ported, which virtue, fo acceptable to God himself, we intend, as we ought, to follow and practise in preference to any other carnal affection; and the more fo, as we are bound by the tie of confcience, and liable, from our folemn appeal to God, to perpetual damnation; first, we are obliged to provide for the fecurity of our royal perfon, and of our iffue; fecondly, for the tranquillity and defence of Chrift's Church, within our kingdom of England; and thirdly, for the fafety of the public weal, the peace and quiet of our aforefaid kingdom, and of the Lords and Nobility, and of the whole community, of every degree and condition; and lastly, in order to avoid t hedding of Chriftian blood; not withstanding the nearness of † propinquity, and the internal and tender love which we had and bore to the aforefaid George in his infancy, his crimes now naturally induce and provoke us to act the contrary part. When the reader is made acquainted with the inftances of unmerciful feverity in the reign of Edward IV. and not only unmercifully fevere, but the fufferers perfectly innocent, and confequently in death; among whom is the above menno ways deferving punishment, much less tioned George Duke of Clarence, the King's own brother; he will perhaps be inclined to confider the reasons affigned, though affigned by the Monarch himself, for awarding execution against the Duke, of one of the most cruel fratricides ever very futile attempt in extenuation recorded. as a and valiant peer, with his fon Aubry de John § Earl of Oxford, a wife, prudent, Vere, Sir Thomas Teddingham, William Tyrrel, and Walter Montgomery, Efqrs. were, without ever being called to answer for themselves, attainted of treafon by of his reign, viz. A. D. 1462. the Parliament convened in the first year Fuller fays, it was agreed upon that Sir Thomas || Cooke, late Lord Mayor of London, and Knight of the + Bath, a man of great eftate, fhould be accufed of treafon; and that King Edward IV. by private inftructions to the Judge, appeared fo far interested, that though Sir Thomas was not, he must be found guilty; and if the law was too short, the Judge must stretch it to the purpose: and accordingly an *‡ oyer determiner was kept in the Guildhall of the city of London, the day of Á. D. 1467 A. R. 7. Edw. IV. in which fat with *This King is recorded to have taken as much pleasure in laying with other men' wives, as his own. Hift. Engl. Svo. 274. Again, he had an eafy way of paying the Londoners the money he owed them, by lying with their wives. Id. 275. and see Baker's Chronicle, 217. d. + The Duke was the King's own brother. As cruel fure as the murder of King Edward the Fourth's father, Richard Duke of York, who was Chief of the Faction of the White Rofe, for raifing a deadly war against the Houfe of Lancafler, pretending a lawful right to the Crown of England.-Brooke's Cat, of Nob. 377 calc. And whon Margaret Queen, confort to Henry VI. flew in battle near Saint Albans. See Rap. H. E. iv. 173. 176 Hitt Engl. i. 265. 8vo. edit. 1715. They were executed, victims to policy, fear, and refertment. Rap. H. E. iv. 210. 4to. edit. Fr. Hague, 1744. His Grace of Buckingham, in his above mentioned addrefs to the citizens of London in favour of Richard III. asks them, whether they were not all witnesses of the barbarous treatment one of their own body, the worshipful Alderman Cook, met ́with. Ken. H. E. i. 498. a. Stow's Surv Lond. 940. 4to edit. 1618. the * major, the said Duke of + Clarence, the Earl of Warwick, the Lord Rivers, Sir John Fogge, with other of the King's counsel; to the which place, the faid Sir Thomas was brought, and arraigned upon life and death; Sir John Markham, Chief Juftice of the Pleas, convinced the jury, that the offence | done by Sir Thomas Cooke was no treafon, but mifprifion was the most it could amount unto, the which was no *+ defert of death, but to be * fined at the King's * pleafure, and Sir John intimated to the * jury to be tender of life, and difcharge good confciences: they found a verdict according to his advice, and acquitted him of the indictment. Walter + Walker, an eminent and wealthy citizen, living at the Crown, in Cheapfide, who, t§ hearing his fon com mended for an hopeful boy at fchool, bid him mind his book, and be would make bim † || beir of the Crown, meaning his own t¶ house. Thomas Burdet, of Arrow ‡, in the county of Warwick, who, having a white buck in his park, for which he had a fancy, was in his abfence killed by King Edward the Fourth hunting there; Burdet wifhed it, horns and all, in his belly that counfelled the King to it; whereas, in truth, none counfelled him to it, but he did it himself; it was thought the words had an ill meaning to the King. They were both attaint of high treason, and executed. Sir Matthew ¶ Hale fays, Markham, Chief Justice, rather chose to lose his place, than to affent to BURDET's judgment; WHEREAS John ¶¶Stow relates that the Lord Chief Juftice, Sir John Markham, loft his office for doing juftice, in SIR THOMAS COOKE'S CASE; and Sir Henry | Spelman, from * Thomas Oldgrave, skinner, son of William O. of Knottysford, in Cheshire. Surv. Lond. 940. 4to. edit. 1618. † George Plantagenet, the King's own brother. Richard Neville, before mentioned. Fuller's Holy State, ut fupra. Stow's Ann. ut fupra. Full. ut fuprà. *+ Stow. Ann. ut fuprà. Stow's * His fines were very heavy, viz. 8000l. to the King, and 800l. to the Queen. Stow: ut fupra. * Whenever the law fays at the King's pleasure, it means according to law, though I am afraid it is feldom fo conftrued. * Full. ut fupra. 1 * Stow. Ann. ut fupra. tt Hale's H. P. C. i. 115. t§ Hift. Engl. 8vo. i. 273. Edit. 1715. + Hale and Hist. Engl. ut supra. t¶ Hift. Engl. 1 This cafe happened 17. Edw. IV. A. D. 1477. Cr. Car. 120. Hale ut fupra. Sir Thomas More, in his Hiftory of Richard III, makes the Duke of Buckingham (whom we have mentioned above) observe, in his oration to the citizens of London, in order to perfuade them in favour of his pretentions to the Crown in difinherifon of Edward the Fourth's children, refpecting his administration of the public juftice of the kingdom, mentions this cafe of Burdet as a glaring instance of it: "Burdet's Cafe will never be forgot, who for a word fpoken in hatte was cruelly beheaded. Kenn. H. E. i. 498. a. Sollom Emlyn has much merited of the profeffion for his learned Preface to State Trials, and an edition of H. H. P. C. fays Burdet was indicted for calculating Edward's and his fon's nativity, and declaring they would not live long; and also for publishing feditious rhymes and ballads ; for which he cites Cro. Car. 120. See Eml, Hale's H, P. C. i. 115. a. As Hale was living at the time Sir Harbottle Grimstone published his fon-in law Sir George Croke's Reports, and yet notices nothing of the additional charges against Burdet, which Emlyn himself acknowledges were, neither of them, treason, it may be presumed Sir Matthew Hale did not think it worth his while to trouble the reader further on the fubject. Hift. Engl. 8vo. i. 273. 1 Hale's H. P. C. i. 115. fol. edit. ap. Eml. Stow's Annals, 420. fol. edit. Glof: 343. a. fol. edit. 1664. Stow, : Hale feems mistaken as the profeffional ftudent is more likely to read his book than Stow, Spelman, or Fuller, and certainly to rely on his authority in preference to all the reft, we therefore take leave to adduce our reafons for prefuming that Hale is not correct on the prefent occafion; and in fo doing we do not indeed cenfure Hale fo much as Sir Richard Baker, the former having referred to the latter, as his voucher for the affertion. It feems pretty well ascertained that Burdet's cafe happened in the year 1477, 17. Edw. IV. becaufe Sir George Croke has given us the record of the indictment as of that year; and it feems as well authenticated, that Sir John Markham was not Chief Juftice then, but on the contrary had retired from Weftminfter Hall nine years previous to that period; for his name is not to be found (I believe) fubfequent to Hilary Term, 8. || Edw. 4. befides, Hale only fays Markham could not be induced to affent to Burdet's judgment; but whether he gave that opinion at the Council Board, or in Parliament, no where appears: Hale by no means pretends that Markham prefided at Burdet's trial; whereas every circumftance on Sir Thomas Cooke's trial fhews that he did; and Sir Henry Spelman confirms Stow, as to the date of Cooke's trial, by his recording Sir Thomas *+ Billings Markham's fucceffor. The Duke of Clarence, King Edward the Fourth's brother, was accused of arraigning the public juftice of the kingdom, by maintaining the innocence of men who had been condemned in courts of judicature, and of inveighing against the iniquity of the King, who had given orders for their profecution. The Duke was not accufed of any overt * § act of treafon, and even the * truth of the fpeeches laid to his charge may be doubted of, fince the liberty of judgment was taken from the Court, by the King's appearing perfonally as his brother's accufer, and pleading the cause against him; but a fentence of condemnation, even when fuch an extraordinary circumstance had not taken place, was a neceffary confequence in thofe times; even the Parliament itself never fcrupled to concur with the King in the most flagrant acts of injuftice or tyranny, which fell on any individual, however diftinguifhed by birth or merit. This maxim, fo ungenerous, fo oppofite to all principles of good government, fo contrary to the practice of prefent Parliaments, are very remarkable in all the tranfactions of English History, for more than a century after the period of which we are now speaking. R. J. * "Stowus ait hunc exui officio, quod Thomam Cooke, et aldermannum Londinens, anno 7 Regis Edw. IV. celatæ tantum proditiones reum judicaffet, non pro arbitrio Regis perpetratæ.' + Fuller's Holy State, L. 4. c. 6. p. 263, 264. Bak. Chron. folio 215. b. edit. 1670. Cro. Car. 120. Year Book Ann. cit. folio 25.b. See Glofs. 343. which does not feem to be very accurate as to dates. * Edward caused his brother's death by a falfe accufation. Rap. H. E. ïv. 298. 4to. Fr. edit. Haye: 1734. COAST |