William A twood. Being, as appears to have been generally conceded, a conscientious man, Sir Edward felt the weight of this public condemnation, and in 1688, the year of James's abdication, being then Chief Justice of the Common Pleas, to which he had been transferred as not sufficiently compliant at the head of the King's Bench, he published what he called his vindication," in which he set forth the authorities upon which his decision was founded. When the vindication appeared Sir Robert Atkyns, afterwards Chief Baron of the Exchequer, had just completed a work upon the king's power of dispensing with penal statutes, in which he gave an ex haustive account of the origin, nature and limitation of this power, and before publish ing the work he added to it, as an appendix, an answer, and a very complete one, to Sir Edward Herbert's Vindication; and Atwood in the same year also published an answer to it.2 Atwood's reply was not very well written, and is in this respect in marked contrast with the lawyer-like, well constructed and convincing argument of Sir Robert Atkyns. Sir Robert, in his answer, was especially courteous to the Chief Justice. He refers to the high character he bore and does not assume to question the sincerity of his statement in his " Vindication," that he had decided what he conscientiously believed to be the law. Atwood's course was the very opposite. He begins his book by declaring, in a very involved way, his disbelief in Sir Edward's sincerity. He charges him, in another part of it, with "willful falsification or criminal negligence," and at the end of it says that " unless he is much misinformed, the Chief Justice, notwithstanding his asser tion of his innocence, may be justly charged 1 A short account of the authorities in law upon which judgment was given in Sir Edward Hale's case by Sir Ed ward Herbert, Chief Justice of the Common Pleas, in his own vindication. London, 1688. 'The Lord Chief Justice Herbert's Account Examined, wherein it is shown that those authorities in law, whereby he would excuse his judgment in Sir Edward Hale's case, are very unfairly cited and as ill applied. London, 1688.
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with having procured the judgment by "threats and solicitations"; the book throughout displaying the coarse nature of the man and his low grade as a partisan, characteristics he exhibited more fully in New York, where he became one of the worst judges the colony ever had. In this tract he reviews the cases on which Sir Edward Herbert relied, but does it in such a way as to leave on the mind of the reader only a confused impression. There are passages so involved and obscure, that it is difficult to discover what he means, and in the midst of his examination of cases, he digresses, that he may refer to " the glorious Expedition of the Prince of Orange," whose marvelous successes, he says, " are not only the subject of present admiration, but have been plainly foretold in past ages "; for which he cites the pro phecies of Nostredamus the French astrol oger, and the writings of Grebner, another vendor of knowledge of the future derived from the stars. The work, however, shows that he was well acquainted with the early authorities and statutes. It displays considerable acuteness in discriminating cases and fixing the exact limits of their authority, and estab lishes satisfactorily that those on which Chief Justice Herbert relied did not warrant the construction he put upon them, which was not difficult to do, for Lord Campbell says that when Sir Edward's selection as Chief Justice of the King's Bench was under consideration, two objections were presented, the first of which was that he was conscien tious in his opinions and of strictly honor able principles in private life, and the other that he was quite ignorant of his profession.' After the passage in 1689 of what is known as the first act of settlement, vesting the crown in William and Mary, and declar ing that the administration of the govern ment should remain solely in King William, an opportunity was afforded Atwood of 1 Lives of the Chief Justices, Vol. 2, p. 80.
