Dictionary of National Biography, 1885-1900/Fleming, Thomas (1544-1613)
FLEMING, Sir THOMAS (1544–1613), judge, son of John Fleming of Newport, Isle of Wight, by his wife, Dorothy Harris, was born at Newport in April 1544. He entered Lincoln's Inn on 12 May 1567, and was called to the bar there on 24 June 1574. In 1579 he was sent to Guernsey as commissioner to inquire into certain alleged abuses connected with the administration of the island. He entered parliament in 1584 as member for Winchester, of which place he was then recorder. He was re-elected for the same borough in 1586 and 1588. In 1587 he was made a bencher of his inn, and in Lent 1590 discharged the duties of reader there. He retained his seat for Winchester at the election of 1592. On 29 Nov. 1593 he was called to the degree of serjeant-at-law. On 27 March 1594 he succeeded Serjeant Drew as recorder of London (Index to Remembrancia, 93). A speech delivered by him in that capacity on presenting the lord mayor, Sir John Spencer, to the court of exchequer will be found in Nichols's ‘Progresses of Elizabeth,’ iii. 254. It is eminently judicious in tone, as may be judged by the following extract: ‘He that taketh upon him the office of a magistrate is like to a good man to whose custody a precious jewel is committed; he taketh it not to retain and challenge it for his own, nor to abuse it while he hath it, but safely to keep, and faithfully to render it to him that deposed it when he shall be required. He must do all things not for his private lucre, but for the public's good preservation and safe custody of those committed to his charge, that he may restore them to him that credited in a better and more happy state, it may be, than he received them.’ On 5 Nov. 1595 he was appointed to the solicitor-generalship over the head of Bacon, who acknowledged that he was an ‘able man’ (Spedding, Letters and Life of Bacon, i. 365, 369). In this capacity, in 1596, he assisted Sir Edward Coke, attorney-general, in taking the confession of Sir John Smith [q. v.], sometime ambassador to the king of Spain in the Netherlands, who had been committed to the Tower for having, as by his confession he admitted, on 12 June 1596, in company with his kinsman, Seymour, the second son of the Earl of Hertford, incited the militia in the neighbourhood of Colchester to mutiny. He also assisted in the examination of John Gerard, a jesuit charged with blasphemy, on 13 May 1597 (Strype, Annals (fol.), iv. 297–300). On 26 Sept. following he was returned to parliament for the county of Southampton. In January 1600–1 he received a commission from the queen to inquire into the abuses connected with patents, a work which was soon interrupted by the more urgent duty of investigating the Essex plot (Cal. State Papers, Dom. 1598–1601, pp. 560, 563). His speech on the prosecution of Sir Christopher Blunt, Sir Charles Davers, and others of the conspirators, is reported at length in Cobbett's ‘State Trials,’ i. 1435. In the parliament of 1601 he represented the borough of Southampton. On the accession of James I he was retained in office as solicitor-general, and placed on the commission for perusing and suppressing unlicensed books; and he received the honour of knighthood at Whitehall on 23 July 1603. At the general election of March 1603–4 he retained his seat for the borough of Southampton. On 27 Oct. 1604 he was created chief baron of the exchequer (Nichols, Progresses of James I, i. 208; Strype, Whitgift (fol.), ii. 577; Dugdale, Chron. Ser. 99, 100). His elevation to the bench disqualified him for sitting in the House of Commons, but he was permitted to attend the debates in the upper house. A new writ was issued for Southampton in his place 9 Nov. 1605, little more than a year after his promotion to the chief justiceship. He helped to try the conspirators concerned in the gunpowder treason on 27 Jan. 1606 (Cobbett, State Trials, ii. 159); and the same year delivered an elaborate judgment on the important case of Bates, a Levant merchant, who had refused to pay the duty on certain currants imported by him, on the ground that it had been imposed without the consent of parliament. The duty had in the first instance been imposed by the Levant Company under a patent by Elizabeth; but James I, soon after his accession, by letters patent, directed the revenue officers to levy the duty upon all currants imported, thus subjecting the Levant Company to the impost (ib. ii. 382, 391). Fleming's judgment, which proceeded wholly ‘upon reasons politic and precedents,’ was for the crown. He argued that it was part of the royal prerogative to impose customs, and that the amount was in the absolute discretion of the king, and moreover that in the particular case, currants being a luxury, no real hardship was suffered. The judgment, which is reported at length in Cobbett's ‘State Trials,’ ii. 388, was subjected to much severe criticism by Hakewill and Whitelocke, in the course of the great debate on impositions in June and July 1610 (ib. p. 477; Debates in 1610, Camden Soc. 79, 103, 157). Coke roundly says that it was ‘against law and divers express acts of parliament’ (Inst. pt. ii. cap. 30, ad fin.) On 25 June 1607 Fleming was advanced to the chief-justiceship of the king's bench. In that capacity he delivered a judgment in the case of the postnati tried in the exchequer chamber in 1608 (Cobbett, State Trials, ii. 609), the question being whether the accession of James I had the effect of naturalising in England persons born in Scotland, and in Scotland persons born in England after the event. It was decided in the affirmative, two judges only dissenting. Fleming's judgment has not been preserved. On 13 Feb. 1610 he was commissioned to supply the place of the lord chancellor during his sickness (Cal. State Papers, Dom. 1603–10, p. 58). In 1612 he was a member of the committee of the privy council that sat at York House to determine whether the Countess of Shrewsbury had been guilty of an offence in refusing to give information to the privy council concerning the escape of her niece, Arabella Stuart, to which she had been privy. Fleming took occasion to enlarge upon the several privileges incident to nobility by the law of England, arguing that being derived from the king, they entailed on persons of quality a correlative obligation ‘to answer, being required thereto by the king, to such points as concern the safety of the king and quiet of the realm,’ the breach of which was a high contempt and ingratitude. The committee were unanimous that the matter was cognisable in the Star-chamber, and resolved that if sentence should there be given the countess should be fined 20,000l. and imprisoned during the king's pleasure (Cobbett, State Trials, ii. 774–6). Anthony à Wood (Fasti Oxon. (Bliss), ii. 355) states that on 7 Aug. 1613 it was ‘granted by the venerable convocation that Sir Thomas Fleming, chief justice of England, might be created M.A., but whether it was effected appears not.’ Fleming died the same night in his bed, after entertaining his tenantry at his seat, Stoneham Park, Hampshire. He was buried in the parish church of North Stoneham. It has been said that Bacon regarded Fleming as an ‘able man.’ Coke is more explicit, giving him credit for ‘great judgment, integrity, and discretion,’ and ‘a sociable and placable disposition’ (Rep. x. 34). Fleming and his eldest son, Sir Thomas, were both members of a club founded in 1609 for the practice of the gentle game of bowls, at East Standen, Isle of Wight, where the members usually dined with the governor twice a week during the season (Worsley, Isle of Wight, p. 223). Fleming married in 1570. By his wife, of whom we know nothing beyond the fact that her christian name was Mary, he had issue eight sons and seven daughters. His eldest son, Thomas, who was knighted by James I at Newmarket on 26 Feb. 1604–5, married Dorothy, youngest daughter of Sir Henry Cromwell of Hinchinbroke, Huntingdonshire, known as ‘the golden knight.’ This lady, who was an aunt of the Protector, has been erroneously identified by Foss with Fleming's own wife. Fleming's posterity failed in the male line in the last century, but Browne Willis, the antiquary, having married one of the judge's descendants in the female line, his grandson succeeded to Stoneham Park and assumed the name of Fleming. The present owner, John Edward Browne Willis Fleming, is thus a lineal descendant of the judge in the female line.
[Spedding's Letters and Life of Bacon, iv. 378; Woodward's General History of Hampshire, ii. 110–12; Noble's Cromwell Memoirs, ii. 167; Nichols's Progr. of James I, i. 496; Foss's Lives of the Judges.]