Dictionary of National Biography, 1885-1900/Pemberton, Francis
PEMBERTON, Sir FRANCIS (1625–1697), judge, son of Ralph Pemberton, mayor of St. Albans in 1627 and 1638, by Frances, daughter of Francis Kempe, was born at St. Albans, in 1625. His grandfather was Roger Pemberton of Hertfordbury, heir to Sir Lewis Pemberton, who succeeded his father, Sir Goddard Pemberton, as sheriff of St. Albans in 1615, and was knighted at Bewsey Hall, Lancashire, on 21 Aug. 1617. Sir Goddard Pemberton belonged to the old Lancashire family of that name, was doubly returned to parliament (for Peterborough and Lewes) in 1601, was knighted at Whitehall on 23 July 1603, and settled at Hertfordbury.
Pemberton was educated at the St. Albans grammar school and the university of Cambridge, where he matriculated (from Emmanuel College) on 12 Aug. 1640, and graduated B.A. in 1644. In November the same year he was admitted a student at the Inner Temple, was called to the bar on 7 Nov. 1654, elected a bencher on 5 Feb. 1670–1, and Lent reader on 21 Jan. 1673–4. Pemberton's pupilage was dissipated, and part of the long interval between his admission and his call was spent in a debtor's prison. There he pursued his studies to such purpose that, on regaining his liberty, he practised with brilliant success in the Palace Court, in Westminster Hall, and, after the Restoration, in the House of Lords; and on 21 April 1675 he was called to the degree of serjeant-at-law. On 28 May following the House of Commons committed him to the custody of John Topham, the sergeant-at-arms attending the house, for an alleged breach of privilege,—viz. his appearance before the House of Lords for the plaintiff appellant in the case of Crisp v. Dalmahoy, M.P. for Guildford. The affair caused a violent contention between the two houses of parliament. Pemberton, who under the ægis of black rod had defied the sergeant-at-arms, was eventually arrested (4 June) by the speaker in Westminster Hall, and lodged in the Tower, where, notwithstanding a writ of habeas corpus issued by the upper house on his behalf, he remained until the unseemly struggle was terminated by a prorogation (9 June). On 11 Aug. the same year he was made king's serjeant, and on 6 Oct. following was knighted at Whitehall. He succeeded Sir William Wylde [q. v.] as puisne judge of the king's bench on 5 May 1679, and assisted Scroggs in several of the ‘popish plot’ trials. He proved, however, not sufficiently partial, and had his quietus on 16 Feb. 1679–80. Nevertheless, on 11 April 1681, he succeeded Scroggs as lord chief justice of the king's bench.
His advancement was perhaps intended to give an air of judicial decorum to the trial of Edward Fitzharris [q. v.] But various circumstances of the trial raise the suspicion that Pemberton was not altogether impartial, and this view is confirmed by his refusal to Dr. Oliver Plunket [q. v.] of sufficient time to collect his witnesses, and his attempt to snatch a true bill against Lord Shaftesbury by precluding the grand jury from inquiring into the credibility of the witnesses. He would also seem to have deviated in slight but material particulars from the strict course of procedure for the purpose of screening Count Königsmark on his trial as accessory before the fact to the murder of Thomas Thynne in March 1681–2 (E. B. De Fonblanque, Annals of the House of Percy, ii. 499). In May 1682 Pemberton vindicated the independence of the court of king's bench against the encroachments of the House of Commons by disallowing a plea to the jurisdiction of the court, set up by his old enemy, John Topham, the sergeant-at-arms, in an action of trespass brought against him by one whom he had arrested pursuant to an order of the house. On 22 Dec. the same year he was sworn of the privy council. On the institution of the proceedings on quo warranto against the City of London, Pemberton was transferred, on 22 Jan. 1682–3, to the chief-justiceship of the common pleas, to make way for Edmund Saunders [q. v.], who was supposed to be more favourable to the crown. He was removed from the bench on 7 Sept., and from the privy council on 24 Oct. in the same year. Burnet is probably right in ascribing his degradation to his want of zeal against Lord Russell [q. v.], at whose trial he presided. In 1687 Pemberton was consulted by the university of Cambridge as to the legality of the royal mandate for the admission of the Benedictine monk Alban Francis [q. v.] to the degree of M.A. without conformity to the established religion. His opinion, which was emphatically adverse to the legality of the mandate, is preserved in Addit. MS. 32095, f. 238 (cf. Bloxam, Magdalen College and James II, pp. 21, 244, Oxf. Hist. Soc.) After the Revolution, which he helped to precipitate by his successful defence of the seven bishops, 15–30 June 1688, he was summoned by the Convention parliament for his conduct in Topham's case. He complied, justifying his ruling on grounds of reason and public utility, but was thrown into gaol on 19 July 1689 for breach of privilege, and lay in confinement until the prorogation. His colleague, Sir Thomas Jones (d. 1692) [q. v.], who had concurred in the ruling, suffered the same fate. Pemberton was counsel for Sir John Fenwick [q. v.] in the proceedings for his attainder in November 1696. He died on 10 June 1697 at his house in Highgate. His remains were interred in the east end of the nave of Highgate Chapel, whence, on the demolition of the chapel in 1833, his monument was removed to the church at Trumpington, near Cambridge, the manor of which he had purchased in 1675. Pemberton married, by license dated 12 Oct. 1667, Anne, eldest daughter of Sir Jeremy Whichcote, bart., solicitor-general to the elector palatine, and younger brother of Dr. Benjamin Whichcote [q. v.] of Cambridge. His wife and seven children survived him. Lady Pemberton died in 1731, and was also buried in Highgate Chapel.
Pemberton was a profound lawyer, much versed in records, yet of independent mind, and, for his age, indifferent honest. His portrait is in the original engraving by R. White, 1689 (mezzotint by R. Williams), of the heads of the counsel for the seven bishops in the British Museum (cf. Bromley).
[Baines's County of Lancaster, iii. 562 n.; Nichols's Progr. James I, i. 519, iii. 408; Le Neve's Pedigrees of Knights (Harl. Soc.), p. 301; Metcalfe's Book of Knights, pp. 145, 171; Berry's County Geneal. ‘Hertfordshire,’ p. vii; Chauncy's Hertfordshire, p. 456; Clutterbuck's Hertfordshire, vol. i. pp. xxxiii, 82; Inner Temple Books; Wynne's Serjeant-at-Law; Pepys's Diary, vol. iv.; Evelyn's Diary; Sidney's Diary, ed. Blencowe, ii. 18; Cobbett's State Trials, vol. vi–xiii. (cf. Index); Shower's Rep. ii. 33, 94, 155, 218, 252, 311; Raymond's Rep. pp. 251, 478; Luttrell's Brief Relation of State Affairs; North's Lives, ed. 1826, ii. 38 et seq.; Burnet's Own Time (fol.) i. 501–2, 535, 556, 568; Hist. MSS. Comm. 5th Rep. App. p. 320, 7th Rep. App. pt. i. pp. 361, 408, 466, 500, 744, 9th Rep. App. passim, 11th Rep. App. pt. ii. pp. 115, 198; Lysons's Environs of London, iii. 68, 74; Kimber and Johnson's Baronetage, ii. 4; Chester's London Marriage Licences; Campbell's Lives of the Chief Justices; Foss's Lives of the Judges; Granger's Biogr. Hist. Engl. iii. 367; Addit. MSS. 21507 f. 43, 22263 f. 23.]