Politics and Profession in Early Stuart England: the Diary of Sir Richard Hutton

Politics and Profession in Early Stuart England: the Diary of Sir Richard Hutton . . . that grave Patriot, Whose pious Zeal such reputation got, Amongst good men . . . R. Brathwaite, Astraea's Teares. An Elegie upon the death of that Reverend, Learned and Honest Judge, Sir Richard Hutton Knight (1641), sig. [B 8] I Deserved reproach and infamy' was the lot of Charles I's judiciary following the great ship-money trial of 1637-8, according to Edward Hyde, the later Earl of Clarendon, then a practising barrister of the Middle Temple. Among the twelve men in scarlet who delivered judgment in R. v. Hampden, only two seem to have been excepted from the charge of undue subserviency to the Crown, 'by being made use of in this and the like acts of power'.1 Almost exact contemporaries, Sir George Croke, Justice of King's Bench, and Sir Richard Hutton, Justice of C o m m o n Pleas, were both in their late seventies and hence nearly a quarter-century senior to the most enthusiastic judicial supporters of Charles I's claim to levy ship money as a regular charge without parliamentary consent - Chief Justice Sir John Finch, and the puisne justices Sir Robert Berkeley and Sir Francis Crawley. But while the Crown's case put by the Attorney-General Sir John Bankes and Solicitor-General Sir Edward Litdeton received nothing like unanimous endorsement, Croke and Hutton were the only judges prepared to dissent on grounds of general principle rather than, or as well as, procedural technicalities. It was Hulton's decision "both for matter and form . . . not to give judgment for the king' which led Clarendon to characterise him as 'a very venerable judge', 'a man famous in his generation'.2 Apart from a brief DNB entry, Hutton has received no more than the passing attention of later historians. In that he is hardly unique among his professional colleagues. While the bishops and courtiers of James and Charles I have been quite intensively scrutinised in recent years, the early Stuart judiciary remains largely ignored by scholars. The sole significant exception to this pattern of general neglect is W J. Jones's admirable Politics and the Bench: the Judges and l E. Hyde, Earl of Clarendon, The History of the Rebellion and Civil Wars in England, ed. W.D. Macray.Oxford, 1888, vol. 1. 88. 2 History of the Rebellion and Civil Wars, vol. 4, 121. L.Keir, The Case of Ship Money, Law Quarterly Review 53, 1936, 546-74; C S . Russell, The Ship Money Judgments of Bramston and Davenport, English Historical Review 11, 1962, 31218 ; W.J. Jones, Politics and the Bench, London, 1971, 125-9, 137-41. 164 W. Prest the Origins of the English Civil War (1971), a collective and institutional study which hardly seeks to consider the judges' individual roles and personalities. Nor is there much in the way of modern judicial biography to supplement Edward Foss's sadly outdated Judges ofEngland (1848-64), or the DNB's more scholarly but still on the whole quite cursory sketches.3 Indeed until quite recent times few historians or lawyers have shown much concern with the post-medieval history of the legal profession. Their basic lack of interest was reinforced by particular problems of evidence. Bishops and bureaucrats often leave a distinctive personal stamp behind them in the records of their diocese or department; but since common-law judges usually did not sit alone, an individual's jurist's contribution to the work of his court is often difficult to disentangle from those of his colleagues on the bench, especially in a period when judgments were not consistently or systematically reported. The esoteric complexities of early modern common law, compounded by the difficulties of Latin, law French and court hand, are further barriers to understanding the context and substance of judges' working lives. To make matters still worse, few judges of the sixteenth and seventeenth centuries appear to have left any significant body of private papers.4 If early modern judicial biography is a largely unpractised literary form, early m o d e m judicial autobiography is virtually non-existent. Sir John Savile, Baron of the Exchequer from 1598...