not be utterly ruined, but might be permitted to practise at the bar. To this the king, by advice of the Privy Council, consented, on condition that he should be put at the bottom of the list of serjeants, and should not plead against the crown in the Star Chamber.

Accordingly, he took his place at the bar of the Court of Common Pleas, as junior, where he had presided as chief, and speedily got into considerable business. He very soon again insinuated himself into the favor of the government, and assisted Sir John Banks, the attorney general, in state prosecutions. He first addressed the jury for the crown in the famous case of Thomas Harrison, indicted for insulting Mr. Justice Hutton in open court; leaving the attorney general to sum up the evidence.

Not having been on the bench when the judges gave the extrajudicial opinion in favor of ship money, nor when Hampden's trial came on, he escaped impeachment at the meeting of the Long Parliament; and on the removal of those who were impeached, he was made a puisne judge of the Court of King's Bench.

When hostilities were about to commence, he happened to be judge of assize at York, where the king lay. He always protested that he was innocent of any plot to make himself chief justice of the King's Bench; yet, knowing that, from bodily infirmity and lukewarmness in the royal cause, Brampston would not come to York when summoned by the king, there is strong reason to suspect that he suggested the propriety of this summons, on the pretence that the chief justice of England might, as chief coroner, declare an attainder of rebels slain in battle, which would subject their lands and goods to forfeiture. Brampston was ordered to come to York,

and not making his appearance, he was removed from his office; and Sir Robert Heath was created chief justice of England, that he might attaint the slaughtered rebels. John Brampston, the autobiographer, son of the judge whom Heath superseded, says, "When Sir Robert Heath had that place, that opinion vanished, and nothing of that nature was ever put in practice."

But in the autumn of the year 1643, the royalists having gained an ascendency in the west of England, a scheme was formed to outlaw, for high treason, the leaders on the Parliament side as well those who were directing military operations in the field, as the non-combatants who were conducting the government at Westminster. A commission passed the great seal, at Oxford, directed to Lord Chief Justice Heath and three other judges who had taken the king's side, to hold a court of oyer and terminer at Salisbury. Accordingly, they took their seats on the bench, and swore in a grand jury, whom Heath addressed, explaining the law of high treason, showing that flagrant overt acts had been committed by conspiring the king's death and levying war against him, and proving by authorities that all who aided and assisted by furnishing supplies, or giving orders or advice to the rebels, were as guilty as those who fought against his majesty with deadly weapons in their hands. Bills of indictment were then preferred against the Earls of Northumberland, Pembroke, and Salisbury, and divers members of the House of Commons. The grand jury, however, probably without having read Grotius and the writers on public law, who say that when there is a civil war in a country the opposite parties must treat each other as if they were belligerents belonging to two independent nations, but actuated by a sense of the injustice

and impolicy of treating as common malefactors those who, seeking to reform abuses and vindicate the liberties of their fellow-citizens, were commanding armies and enacting laws,— returned all the bills ignoramus; and there could neither be any trial nor process of outlawry.

This rash attempt only served to produce irritation, and to render the parliamentarians more suspicious and revengeful when negotiations were afterwards opened which might have led to a satisfactory accommodation.

In the summer of the following year, Chief Justice Heath held assizes at Exeter, and there actually obtained the conviction of Captain Turpine, a parliamentary officer, who had been taken in arms against the king, and was produced as a prisoner at the bar. The sheriff appears to have refused to carry the sentence into execution; but the unfortunate gentleman was hanged by Sir John Berkeley, Governor of Exeter. The Parliament, having heard of their partisan being thus put to death in cold blood, ordered that the judges who condemned him might be impeached of high treason; but they were afterwards satisfied with passing an ordinance to remove Heath, and his brethren who had sat with him on this occasion, from their judicial offices, and to disable them from acting as judges in all time to come.

Sir Robert Heath never ventured to take his seat as chief justice of the Court of King's Bench at Westminster; but, after travelling about for some time with the king, fixed himself at Oxford, where he was made a doctor of the civil law, and attended as a judge when Charles's Parliament was held there.

When Oxford was at last obliged to surrender, and the royalists could no longer make head in any part of England,

Heath found it necessary to fly for safety to the continent. The parliamentary leaders said that they would not have molested him if he had confined himself to the discharge of his judicial duties; or even if, like Lord Keeper Littleton and other lawyers, he had carried arms for the king; but as, contrary to the law of nations, he had proceeded against several of those who bore a commission which the Parliament had granted to them in the king's name, they were determined to make an example of him. Therefore, when an ordinance was passed, granting an indemnity to the royalists who submitted, he was excepted from it by name. After suffering great privations, he died at Caen, in Normandy, in the month of August, 1649.

He had, from his professional gains, purchased a large landed estate, which was sequestrated by the Parliament, but afterwards was restored by Charles II. to his son. He had never tried to make his peace with the dominant party by any concession, and he declared that "he would rather suffer all the ills of exile than submit to the rule of those who had first fought their sovereign in the field, and then had murdered him on the scaffold." With the exception of his bribery, which was never properly inquired into, and does not seem to have injured him much in the opinion of his contemporaries, no grievous stain is attached to his memory; and we must feel respect for the constancy with which he adhered to his political principles, although we cannot defend them.

CHAPTER IX.

ROBERT FOSTER.

Ar 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.* 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

Their decisions are still of as much authority on legal questions as those of courts sitting under a commission from the crown; and they were published with the sanction of the chancellor and all the judges in the reigns of Charles II. and James II.