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.