19. ZANE: THE FIVE AGES 671 Clopton, Chief Justice of the King's Bench, vacated his seat to become a friar of the Minorites, and his successor was the celebrated WilHam Gascoigne, whose surname the ingenious scribes of that day were able to spell in twenty-one different ways. The legend as to his firmness in committing the Prince of Wales for contempt of court is wholly myth- ical ; but it is true that when, in I'^OS, he was commanded by the king to pronounce sentence of death upon Archbishop Scrope and the Earl Marshal, rebels taken in battle, he reso- lutely refused, saying : " Neither you, my Lord, nor any of your subjects, can, according to the law of this realm, sentence any prelate to death, and the Earl has a right to be tried by his peers." Throughout this period the regular succession from emi- nence at the bar to a judgeship was a constantly recurring process. In the Year Books we notice some interesting inter- polations. Thus Hull, a judge, " said secratly," of a deci- sion of Chief Justice Thirning, " that it was never before this day adjudged to be law." Another judge. Hill, passing upon a " stayout " agreement, where a dyer had bound him- self by a bond not to pursue his trade for half a year, ruled that the covenant was against the common law, adding:
- ' And by God, if the plaintiff was here, he should go to
prison till he paid a fine to the King." The learned Foss thinks this the only reported oath on the bench, but he is greatly in error. Bereford, Brumpton, Staunton and other judges in the older Year Books frequently invoke the Almighty. Henry II. 's favorite oath while sitting on the bench was, " by God's eyes ;" King John swore " by God's feet " ; and the Conqueror's favorite oath was " by the splen- dor of God." Archbishop Arundel, who as Chancellor pre- sided in 1407 over the trial of a Lollard priest, William Thorpe, accused of heresy, swore freely from the marble chair, " by God " and " by St. Peter." The accused priest upon this trial made a most felicitous Biblical quotation in answer to the Archbishop; the latter having said that God had raised him up even as a prophet of old to foretell the utter destruction of the false sect of the priest, the priest retorted with the words of Jeremiah : " When the word that
