Dictionary of National Biography, 1885-1900/Gascoigne, William (1350?-1419)
GASCOIGNE, Sir WILLIAM (1350?–1419), judge, eldest son of William Gascoigne, by Agnes, daughter of Nicholas Frank, was born at Gawthorpe, Yorkshire, about 1350. He is said to have studied at Cambridge and the Inner Temple, and he is included in Segar's list of readers at Gray's Inn, though the date of his reading is not given. From the year-books it appears that he argued a case in Hilary term 1374, and he figures not unfrequently as a pleader in Bellewe's ‘Ans du Roy Richard le Second.’ He became one of the king's serjeants in 1397, and was appointed by letters patent attorney to the Duke of Hereford on his banishment, for whom he also held an estate in Yorkshire in trust. His patent of king's serjeant was renewed on Hereford's accession to the throne in 1399, and he was created chief justice of the king's bench on 15 Nov. 1400 (Dugdale, Chron. Ser. p. 55; Douthwaite, Gray's Inn, p. 45; Nicolas, Testamenta Vetusta, p. 144). He was a trier of petitions in parliament between 1400–1 and 1403–4. In July 1403 he was commissioned to raise forces against the insurgent Earl of Northumberland, and in April 1405 to receive the submission of the earl's adherents, with power to impose fines. The prime movers in the insurrection were put to death, among them being Thomas Mowbray, the earl marshal, and Richard Scrope, archbishop of York, both of whom were executed on 8 June 1405 at Bishopsthorpe, near York. Walsingham, who records the fact of the execution, is silent as to the constitution of the court by which sentence was passed (Hist. Anglic. Rolls Ser. ii. 270). Capgrave, however (Chron. of England, Rolls Ser. p. 291), states that it consisted of the Earl of Arundel [see Fitzalan, Thomas], Sir Thomas Beaufort [q. v.], and Gascoigne, and this statement is to some extent corroborated by a royal writ dated Bishopsthorpe 6 June 1405, by which Arundel and Beaufort are commissioned to execute the offices of constable and marshal of England (Rymer, Fœdera, ed. Holmes, viii. 399). The author of the ‘Annales Henrici Quarti’ (Trokelowe et Anon. Chron. Rolls Ser. p. 409) makes no mention of Gascoigne, but states that sentence was passed by Arundel and Beaufort. According to the ‘English Chronicle,’ 1377–1461, Camd. Soc. pp. 32–3, the Archbishop of Canterbury, Thomas Arundel, advised Henry to reserve Scrope for the judgment of the pope, or at least of the parliament; the names of the judges are not given. Clement Maidstone (Wharton, Anglia Sacra, ii. 369–370) asserts that Gascoigne was to have tried the archbishop, but that he refused to do so on the ground that he had no jurisdiction over spiritual persons; that therefore the king commissioned Sir William Fulthorp, ‘a knight and not a judge,’ to try the case; and that he it was who passed sentence on the archbishop. With this account Sloane MS. 1776, f. 44, agrees, adding that Thomas Arundel, archbishop of Canterbury, concurred with Gascoigne, and that one Ralph Everis, also a knight, was joined with Fulthorp in the special commission. The life of Scrope, printed in ‘Historians of the Church of York’ (Rolls Ser.), ii. 428–33, is silent as to Gascoigne's refusal to sit, but states that the trial took place before Sir William Fulforde ‘juris et literarum peritus.’ This account appears to be of later date than any before cited, and is the one which was followed by Stow and most subsequent historians. That Sir William Fulthorp, though not a regular justice, nevertheless tried some of the insurgents, is clear from ‘Parl. Roll,’ iii. 633, but it is extremely unlikely that he should have tried a spiritual peer on a capital charge, and the evidence of clerical chroniclers must be received with caution on account of the strong temptation under which they lay to falsify facts in order to obtain the high authority of Gascoigne for the privileges of their order. Moreover, if Gascoigne had really made the signal display of independence attributed to him, he would probably have been punished either by removal or suspension from his office. That he was not removed is clear; for we find him in the following Michaelmas term trying cases as usual at Westminster, and it is very improbable that in the interval he had been suspended. It appears, indeed, from ‘Parl. Roll,’ iii. 578 a, that on 19 June he was still ‘hors de courte,’ and was not expected to return for some time, for his colleagues were authorised to proceed with certain legal business in his absence. But this seems merely to indicate that he was detained in the north longer than had been anticipated. On the whole the balance of probability seems to incline distinctly against the hitherto received account of his conduct in the case of Scrope, and in favour of Capgrave's explicit statement that he took part in the trial. With the story of his committing Prince Henry to prison, and of that prince's magnanimous behaviour towards him on his accession to the throne, it fares still worse. For the committal there is no evidence; the latter part of the story is demonstrably untrue. The committal to gaol for contempt of the heir-apparent to the crown would have been an event of such dramatic interest as could not fail, if it occurred, to have been recorded by some contemporary writer, and duly noted as a precedent by the lawyers. In fact, however, no contemporary authority, lay or legal, knows anything of such an occurrence, the earliest account of it being found in Sir Thomas Elyot's ‘Governour’ (1531), a work designed for the instruction and edification of princes, and in particular of Henry VIII, of no historical pretensions, but abounding in anecdotes drawn from various sources, introduced as illustrations of ethical or political maxims. (An exhaustive discussion of the question will be found in a paper by Mr. F. Solly Flood, Q.C., in the Royal Historical Society's Transactions, new ser. iii. pt. i.) From Elyot's ‘Governour’ the story passed into Hall's ‘Chronicle’ with the material additions, (1) that the contempt in question consisted in the prince's striking the chief justice a blow on the face with his fist, (2) that the king, so far from resenting Gascoigne's conduct, dismissed the prince from the privy council, and banished him the court (Hall, Henry V, ad init.) Both Elyot and Hall agree that the occasion of the prince's action was the arraignment of one of his servants before the chief justice, but Elyot represents the prince as at first merely protesting, and, when protest proved unavailing, endeavouring to rescue the prisoner. He says nothing of the assault, nor, though he states that the king approved of Gascoigne's conduct, does he hint that he endorsed it by adding any punishment of his own. Shakespeare, who drew on both accounts, identifies the servant with Bardolph (Henry IV, pt. ii. act i. sc. 2. Page: ‘Sir, here comes the nobleman that committed the prince for striking him about Bardolph’). The later scene (act v. sc. 2), where the new king calls upon the chief justice to show cause why he should not hate him, and after hearing his defence bids him ‘still bear the balance and the sword,’ is not only unfounded in, but is inconsistent with, historical fact. Gascoigne was indeed summoned as lord chief justice to the first parliament of Henry V, notwithstanding that his patent had determined by the death of the late king; but he had already either resigned or been removed from office when that parliament met on 15 May 1413, as the patent of his successor, Sir William Hankford, is dated the 29th of the preceding March (Foss, Lives of the Judges, iv. 169). His salary was paid down to 7 July, and by royal warrant dated 24 Nov. 1414 he received a grant of four bucks and does annually from the forest of Pontefract for the term of his life (Devon, Issues of the Exchequer, p. 322; Tyler, Life of Hen. V, i. 379). It therefore seems probable that Henry's first intention was to continue him in his office, but that at his own request his patent was not renewed. His will, dated ‘Friday after St. Lucy's day’ (i.e. 15 Dec.) 1419, was proved in the prerogative court of Yorkshire on the 23rd of the same month. Fuller (Worthies) gives Sunday 17 Dec. 1412 as the date of his death. If we suppose that, though wrong about the year, he was right about the day of the week, then, as 17 Dec. 1419 happens to have been a Sunday, we may conclude that he died on that day. He was buried in the parish church of Harewood, Yorkshire, under a monument representing him in his robes and hood, his head resting on a double cushion supported by angels, a lion couchant at his feet. Foss remarks that he is the first English judge of whom we have any personal anecdotes. How little credit can be attached to these has already been shown; their character, however, evinces the profound respect in which Gascoigne was held by the people. He was clearly regarded as the ideal of a just judge, possessed with a high sense of the dignity of his office, and absolutely indifferent in the discharge of his duty to his personal interest and even safety.
Gascoigne married, first, Elizabeth, daughter of Alexander Mowbray of Kirklington, Yorkshire; secondly, Joan, daughter of Sir William Pickering, and relict of Sir Ralph Greystock, baron of the exchequer. By his first wife he had one son, William, who married Jane, daughter of Sir Henry Wyman. Their son, Sir William Gascoigne, served with distinction under Henry V in his French campaigns, and was high sheriff of Yorkshire in 1442, and his son William was created a knight of the Bath by Henry VII at the coronation of Queen Elizabeth in 1487. A descendant, Sir William Gascoigne, held the manor of Gawthorpe in the reign of Elizabeth; but on his death without male issue, it devolved on his heiress, Margaret, who by her marriage with Thomas Wentworth, high sheriff of Yorkshire in 1582, became the grandmother of Thomas Wentworth, earl of Strafford. By his second wife Gascoigne had one son, James, who acquired by marriage an estate at Cardington, Bedfordshire, where his posterity were settled for some generations.
[Gough's Sepulchral Monuments, ii. pt. ii. 37; Thoresby's Leeds (Whittaker), ii. 179; Drake's Eboracum, pp. 353, 354; Hunter's South Yorkshire, p. 484; Dugdale's Warwickshire (Thomas), ii. 856; Walsingham's Hist. Angl. (Rolls Ser.), ii. 334; Gest. Abb. Mon. Sanct. Alb. (Rolls Ser.), iii. 509; Coll. Top. et Gen. i. 302, 311, v. 4, vi. 394; Lysons' Mag. Brit. i. 64; Addit. MS. 28206, f. 13 b; Biog. Brit.; Campbell's Lives of the Chief Justices; Foss's Lives of the Judges.]Dictionary of National Biography, Errata (1904), p.133
N.B.— f.e. stands for from end and l.l. for last line
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