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Show .. 86 ATROCIOUS JVDGES. (.A. D. 1S39. attended with less pain and less di. grace. But then a diffieulty aro e whether, although the king n1ight remit all tl1c atrocities of the sentence on a man for treason, except beheading, which is part of it, he could onler a person to be beheauell w'ho was sentenced to be burnt. A solution "·as proposell, that she should be sentenced Ly the lord high steward to be "burnt or beheaded at the king' s pleasure ; " and the opinion of the judges was asked, '' ·whether such a sentence could be lawfully pronounced." Fitzjames, C. J. - '' l\Iy lords, neither myself nor uny of my learned brothers hase ever known or found in the r ecords, or read in the books, or known or l1eanl of, a sentence of death in the alternative or disjunctive, anu incline to think that it would be bad for uncertainty. The law delights in certainty. ""\Vherc a choice is given, by what mean is the choice io be exercised? And if the herili r ecci -res no special directions, what is he to do? Is sentence to be stayeJ till special directions are given by the king? and if no ~pecial directions are given, is the prisoner, being attainted, to e;:,cnpe all punishment? Pruuent antiquity advises you stare super ant£q'IHLS ~ias; and that which is without precedent is \rithout safety." After Jue deliberation, it was held that an absolute sentence of beheading would be lawful, ancl it wa, pronounced n.ccordingly; the court being greatly comforted by r ecollecting that no writ of error lay, and that their judgment could not be rc,·erse(1. Fitzjan1e died in the year 1530, before thi;:, judgment served as a precedent for that upon the unfortunate Queen Catharine Iloward; and he was much missed when the u1oody statute of the Six Articles brought so many, both of the old and of the reformed faith, on capital charges, before the Court of King's Bench. CIIAPTER V. T II 0 ~I A S F L E ~1 I N G . 'l'HE greatest part of my r eaucrs never before read or hear<l of the name of Thomas Flen1ing; yet, starting in the profession of the law with Francis Racon, he was not only preferred to llim by attorney , but lJy pritne 1nini ters, and he had the highest profes ional honors sl1owered upon him, while the inlInorta1 philosoph er, orator, and fi nc wri tcr con Lin uccl to ln nguish at the bar without any nclvancen1ent, notwithstanding all his merits and all hi::; intrirrucs. Dnt Flmninrr hacl n11erior O'OOd 0 0 b fortune, and enjoyed ten1porary consequence::;, becau e he wa~ a mere b .wyer-because he ha rbored no idea or n ~ pirations beyond the ron tine of \\~ estmin. ter Ilall- becau ·e he did not mortify the vanity of the \Yilty. or alarm the j alousy of the ambition.'. lie wa: the younger son of a gentle1nan of 1nnll e~tate in the I ~J e of \Vight. I do not find any account of hi ~ early educat ion, antl very little inte rc~t ean nO\V Le felt r •:-;ped ing it: althongh we cateh "o eagerly at any trait of the boyhood of his rival, wh01n he de;:;pisetl. Soon nfter he was ('allcd to the Lar, by un weari e<l drutlgery he got in to consillerablc practice; and it wa. remarked tlwt h0 nlway · tried how 1nuch labor he could l>cslow upon every case intrusted to him, while his more lively competitors tried with how little labor they coultl creditably perform their duty. In the end of the year 1594, he was calle<l to the degree of serjeant~ along with eight others, and was thought to be the (87) |
