Wealth and Scheming at the Time of James I
By Derek P. Brereton
One of the stops on our reunion tour was St. Oswald's Church in
Malpas to see the handsomely carved tomb and inscription of Sir
Randal Brereton IV (d. 1530). This and the tenor bell Sir Randal
donated to the church in 1508 are all that remain of his considerable
estate and charity. He not only gave much to the church, but also
established both a school and a hospital in Malpas. These are now
gone, as is the Brereton Malpas mansion which succumbed to fire
about two hundred years ago. This Sir Randal's son, Sir William
Brereton, had first the good fortune to be Groom of the Privy Chamber
to Henry VIII, and later the misfortune to have his consequent access
to Queen Anne Boleyn used as a pretext for accusations of adultery.
The charges cost both their lives, and no doubt had something to
do with the Malpas and related Handforth Hall branches of the family
siding with the Roundheads in the English Civil War.
The Malpas branch was founded by Randle Brereton I, son of Sir
William Brereton of Brereton. This William had received from King
Edward III in 1369 the right to hold a market fair on Brereton Green
every August 1, the date we have selected for our banquet at Brereton
Hall. The last of the Malpas line, Sir Randal Brereton VII, was
said by local tradition to have been able to ride from Malpas to
Cheshire, a distance of about fifteen miles, without overstepping
his own property. His estate was involved in a dispute upon his
death, and was the subject of an interesting article by Fred Crossley,
F.S.A., A Disputed Will of the Early 17th Century from the Star
Chamber Proceedings, in the Chester Archaeological Society Journal,
v. 37, pt. 1, 1948. Mr. Anthony Wolley Dod, whose father, Mr. J.
C. Wolley Dod, had a hand in preparing the article, kindly forwarded
us a copy after we visited him three years ago at Edge Hall. What
follows is a summary of that article.
Sir Randal Brereton VII married Frances Throckmorton and had but
one child, Mary, christened in 1576. Mary herself married Sir Richard
Egerton, whose ancestor Sir Ralphe Egerton was knighted at the battles
of Terouanne and Tournay along with Randal Brereton IV, mentioned
above. This Mary Brereton stood to inherit her wealthy father's
entire estate, meaning it would pass out of the Brereton family
and to the Egertons when she died. Her uncles, Sir Randal's brothers,
Richard, William, and Thomas, had no enthusiasm for such a prospect,
and conspired to induce the elderly and failing Sir Randal to alter
his will. Their method was seduction, their accomplice the forty
year old Lady Dorothy Townsend, wife of Sir Henry Townsend, aged
73. The charming Lady Townsend was so confident of her persuasions
that she had her twenty-two year old niece marry Richard Brereton
on the strength of the prospect of inheriting the Brereton estates
through him if Lady Townsend met with success.
Sir Randal died on May 8th, 1611, at the home of Lady Townsend,
having recently burned his original will. Some say the Townsend
conspirators burned it for him. As he lay dying another will was
concocted, and became the subject of the trial. On May 9th his daughter,
Mary, went into labor. On May 11th Sir Randall was buried during
the night at St. Oswald's. On the 15th Star Chamber awarded Mary
and Richard Egerton the inheritance on condition that they prosecute
before November 14. They did, and the case, involving several witnesses,
consumed 106 large sheets of parchment.
Mary Brereton Egerton won her case against her scheming uncles
by accusing Lady Townsend of "insynuatinge herself into greate familiaritie"
with Sir Randal in order to alienate him from Mary. Lady Townsend's
plot was not complete by the time Sir Randal became unconscious,
however, so the culprits evidently composed a new will-quite favorable
to themselves-placed a pen in Sir Randal's hand, and signed the
will by guiding his hand across the page. The defendants also bribed
a ne'er-do-well, who later confessed, to testify that he had witnessed
the proper signing of the will. The worst, however, was still ahead
of them. It was the custom in those days to remove the viscera from
a body so the remains could be preserved, with resins and bran,
until the funeral. But the connivers seem to have been a bit overhasty.
Dr. Davies testified at the trial that the body was disturbingly
warm, bloody, in fact, when he began to perform his services.
Did the brothers murder Sir Randal to prevent any possible recovery,
and the discovery of the forged will? They apparently never faced
trial, but neither did they succeed in their scheme to deprive Mary
of her inheritance. She died, probably in childbirth, in 1618, just
about the time her third son, Richard, came to his majority-and
promptly gambled away his entire patrimony.
All this, however, was but act one of a two act drama. Though the
scandal itself may be most personally interesting to Breretons,
the legal aftermath had the greater impact in terms of the development
of English law. It has been described by Thomas G. Barnes (1981),
"A Cheshire Seductress, Precedent, and a 'Sore Blow' to Star Chamber",
in On the Laws and Customs of England, Morris S. Arnold, ed. Chapel
Hill: The University of North Carolina Press. I am indebted to Professor
John Morrill of Selwyn College, Cambridge University for bringing
this article to my attention.
The dispute between Mary Brereton Egerton and the Townsends turns
out to have been of considerable importance to English courts in
defining the role of precedent in adjudication. Star Chamber had
been instituted in the middle ages to allow the court to adjudicate
on its own terms, guided by fairness instead of precedence as in
courts of common law. In Brereton's Case Star Chamber held Lord
Townsend liable for damages resulting from the crime of which his
wife had been convicted. The Townsends appealed on grounds of lack
of precedence for such indirect liability. The state's case was
argued by no less a personage than Sir Francis Bacon, Attorney General
and author of Novum Organum (1620), the treatise that launched the
scientific revolution. (This, too, had implications for the Breretons,
albeit this time of the Sandbach branch, for in 1660 William Brereton
III helped found the Royal Society which was organized expressly
for the implementation of Bacon's inductive methodology.)
First, Lady Townsend refused to cooperate with the court, and sat
out her subpoena in Fleet Prison. Then her husband, himself a judge
in a different court, opted to do the same. The counsel for Mary
Brereton Egerton then moved that damages and costs be levied against
the Townsend properties. The defendants' counsel argued that the
court had no jurisdiction to grant such unusual relief, but the
court took this as a challenge to its own power and authority. The
sides were to argue their respective positions on 29 June, 1614.
As Barnes puts it, "Bacon had been attorney general for eight months.
He had trounced duelers, seditioners, and slanderers of the great,
but had not yet found an issue where he could vaunt the greatness
of Star Chamber and establish the magnitude of his power-and that
by a display of erudition and oratorical splendor. This was his
object in Brereton's Case."
The court had framed the issue as one of precedent. Bacon, for
his own reasons, cast it as high as possible, asserting that the
king himself, were he present, had the right to sit on the bench.
As strategy Bacon cited three cases which, in a different trial,
one of the judges before whom he now argued had held up as establishing
precedent. But the cases he cited were old, related to fines not
damages, and pertained to courts other than Star Chamber. Bacon's
argument was far from overwhelming. Against him the defense hinged
its case on the fact that a husband could not suffer corporal punishment
for crimes of his wife, and thus could not be imprisoned to compel
payment of her debt.
The ensuing judicial debate resulted in a close, 6-4 victory for
Bacon, in which the day was carried, ironically, not by any argument
concerning precedent. Judge Ellesmere opined, instead, from policy:
a court that could give judgment of damages ought also to have the
means to execute its own judgment. Townsend could be imprisoned.
The court could have avoided such debate and challenge to royal
authority by referring the case to a referee, and though Bacon won,
he never again risked allowing issues of institutional moment to
be debated openly in Star Chamber. Two years later, in 1616, King
James I himself appeared before the court to voice his concern for
its continued integrity, and referred specifically to the threat
that had been posed by the issues in Brereton's Case. Royal pleading
notwithstanding, Star Chamber was abolished at the outbreak of the
Puritan revolt, in 1641. It had originally been established precisely
as a judicial vessel which could dodge the weeds of precedent that
snagged courts of common law. Yet it eventually foundered partly
because of its own foregrounding, in Brereton's Case, of precedent.
Star Chamber had cast doubt on its own legitimacy.