Wythens, Francis (DNB00)

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WYTHENS or WITHENS, Sir FRANCIS (1634?–1704), judge, born at Eltham about 1634, was the only son of William Wythens by Frances, daughter of Robert King of St. Mary's Cray, Kent. He was a great-grandson of Robert Wythens, alderman of London, and grandson of Sir William Wythens, who was sheriff of Kent in 1610, and died at his residence of Southend in the parish of Eltham, where he was buried on 7 Dec. 1631. Francis was educated at St. John's College, Oxford, whence he matriculated on 13 Nov. 1650; he was called to the bar in 1660 from the Middle Temple, of which society he became a bencher in 1680. The first distinctive notice that we have of Francis Wythens is as high steward of the franchise court of Westminster, and as a successful candidate for Westminster in the parliament summoned to meet in October 1679, but postponed by successive prorogations until October 1680, when Wythens found his lawful return disputed by Sir William Waller and Sir William Pulteney. A few months before, when petitions in favour of parliament's being assembled were disturbing the equanimity of the court, Wythens ‘presented an address to his majestie from the grand inquest for the city of Westminster, testifyeing their dislike and abhorrence of the late petition for a parliament that was carried on there’ (Luttrell, i. 41). For this exhibition of zeal he was knighted on 17 April 1680. Now that parliament had at length been assembled, Sir Francis, as a member, was the first who was charged with his action as ‘an abhorrer,’ on the ground that this was an offence against the rights of the people; and upon evidence taken and his own confession he was ordered to be expelled the house, and to receive his sentence on his knees at the bar. ‘You being a lawyer,’ said the speaker in his address to him, ‘have offended against your own profession; you have offended against yourself, your own right, your own liberty as an Englishman. This is not only a crime against the living, but a crime against those unborn. You are dismembered from this body.’ A few days after this humiliating act of expulsion, the committee on the petition against his return reported that he had not been duly elected a member of the house. Roger North, in his relation of the severe treatment accorded to Wythens, illuminates the circumstance by a reading of his character. ‘He was of moderate capacity in the law, but a voluptuary; and such are commonly very timid, and, in great difficulties, abject; otherwise he was a very gentle person, what was called a very honest man, and no debtor to the bottle. Some cunning persons that had found out his foible and ignorance of trap first put him in a great fright, telling him he would certainly be hanged as the ringleader of all this business, and then they fetched him off with advice which was the best way for him to escape. He must by no means justify what he had done; no, that would but irritate, and the house would make their examples of those who disputed upon the right, which they were resolved to vindicate to the last degree. … Now there were many gallant gentlemen in the house of great estates and interests in their counties, who were friends to these abhorrers, and would have done this gentleman all the service they could, if he had not lost himself by his behaviour: that is, if he had stood manfully to what he had done, and declared that he knew no law he had broken, and would justify himself. But instead of this, or anything like it, he stood up in his place, and after a few whimpers and a wipe, he said to this effect, viz. that he did promote and carry up that abhorrence, but he knew at the time he was in the wrong, only he thought that it would please the king; and so owning the thing was against law, begged pardon. This sneaking come-off so disquieted even his friends, that they joined all with the country party and with one consent nemine contradicente kicked him out of the house, as one not fit for gentlemen's company’ (North, Examen, p. 549).

Meanwhile Wythens had been pursuing his career as an advocate. On 25 Nov. 1679 he was employed as counsel to defend Thomas Knox on an indictment against him and John Lane for a conspiracy to defame the notorious witnesses to the popish ‘plot,’ Titus Oates and William Bedloe. His client Knox was condemned, but, thanks to his exertions, was let off with a more merciful sentence than Chief-justice Scroggs was wont to pronounce. He also assisted in the prosecution of Henry Carr on 2 July 1680 for a libel in publishing ‘The Weekly Packet of Advice from Rome,’ exposing some of the tricks of popery. Under Scroggs's successor, Sir Francis Pemberton [q. v.], Wythens was employed by the crown in the cases of Edward Fitzharris, the Earl of Shaftesbury, and Count Königsmark; his name also appears in T. Jones's and in Bartholomew Shower's ‘Reports,’ and he was evidently a lawyer of fair average ability. Burnet, therefore, is scarcely justified in saying that his presenting the address of abhorrence and consequent expulsion from the House of Commons was the only merit that caused his elevation to the bench. Dolben was superseded on 20 April 1683 ‘because he is taken to be a person not well affected to the quo warranto against the charter of the city of London.’ Three days later Sir Francis Wythens, having been called serjeant for the purpose, was made a judge of the king's bench in his place, and showed his subservience next term by concurring in the judgment against the city. He was succeeded as steward to the courts at Westminster by Mr. Bonithon.

Wythens was in the commission for the trials of the persons implicated in the Rye House plot, but he took no prominent part in them. He was one of the judges on the trials of Russell and Sidney. His demeanour to the accused throughout the proceedings was not marked in the least degree by harshness or violence of language, but he was evidently, as North describes him, so weak and timid a man that he had not the courage to differ from his more resolute chiefs, and he incurred a larger share of odium than the other judges from his being, according to the form of the court, the mouthpiece which pronounced most of the sentences. Evelyn expresses indignation on account of Sir Francis's presence at a city wedding on 5 Dec. 1683, when he and Chief-justice Jeffreys danced with the bride and were ‘exceeding merry, spending the rest of the afternoon till eleven at night drinking healths, taking tobacco, and talking beneath the gravity of judges, who had a day or two [in reality a fortnight] before condemned Mr. Algernon Sidney’ (Diary, ii. 199). On Charles II's death in February 1685 Sir Francis received a new patent, and in the following November was elected recorder of Kingston-on-Thames. He tried and pronounced sentence upon Titus Oates for perjury on 16 May 1685, and a few months later he accompanied Chief-justice Jeffreys upon the western assize. His career of pliant subservience upon the bench was suddenly arrested about eighteen months later. On 22 April 1687 Luttrell writes: ‘Sir Francis Withens, a judge of the king's bench, hath his quietus: this is said to be occasioned by his [concurring in Herbert's] opinion touching one Dale, a soldier, convicted for running from his colours at Berkshire assizes’ (Luttrell, i. 401). For refusing to pass a death-sentence upon the deserter at the king's bench, Wythens was removed, and Sir Richard Allibone promoted in his stead. Shower reports that on the next day Wythens came down to Westminster Hall and practised as a serjeant, a fact which seems to indicate his reliance upon the popularity of his decision.

After the Revolution, on 17 May 1689, Wythens had to appear before the bar of the House of Lords in company with his brother judges to give reasons for his judgment against Oates. Wythens pleaded that he had arrived at the judgment and sentence by a careful study of precedents, citing Coke, Bracton, and the Bible (re Nabal). A week later, however, the judgments were pronounced erroneous (Hist. MSS. Comm. 12th Rep. App. vi. 77–81). Others of his decisions were pronounced arbitrary and illegal (ib. p. 197), while in the House of Commons his concurrence in the opinion in favour of the king's dispensing power was adversely commented upon, with the result that he was placed upon the list of thirty-one persons who were excepted out of the act of indemnity. Beyond the insertion of his name in the act and the removal from the recordership of Kingston-on-Thames it would not appear that he was visited with any penalty.

He survived his discharge until May 1704, when he died at his residence of Southend, Eltham, and was buried in the church there on 12 May. He married, in Westminster Abbey on 21 May 1685, Elizabeth, daughter of Sir Thomas Taylor, first baronet, of Park House, Maidstone, who, if the account given by Mrs. Manley in the ‘New Atalantis’ is to be credited, though clever and witty, brought no comfort to her husband, and acquired for herself a very bad reputation. That she involved him in serious expenses appears from an action brought against him in 1693 for extravagant outlay in dresses and millinery, which he was obliged to pay. Wythens left by her an only daughter, Catherine, who married in 1710 Sir Thomas, grandson of Sir Roger Twysden [q. v.] After the death of Sir Francis, his widow married Sir Thomas Colepeper, last baronet, of Preston Hall, Aylesford, who is stated to have formerly been her gallant. The judge's name was spelt variously Wythens, Withens, Withins, Wythins, and Withings.

[Foster's Alumni Oxon, 1500–1714; Le Neve's Pedigrees of the Knights; Hasted's Kent, ed. Drake, 1886, i. 195; Chester's Westminster Abbey Register, p. 24; Archæologia Cantiana, v. 39; Luttrell's Brief Hist. Relation, vol. i. passim; Evelyn's Diary, Index, s.v. ‘Withings;’ Burnet's Own Time, i. 484, 535, 572; Macaulay's Hist. 1858, ii. 105; Mrs. Manley's Secret Memoirs from the New Atalantis, 1709; State Trials, vii. 801, 1125, viii. 269, 1125, ix. 15; Wotton's Baronetage, i. 218; Parl. Hist. v. 338–9; North's Examen, p. 549; and the excellent memoir in Foss's Judges of England, 1864, vii. 284–9.]

T. S.