Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression

CHAPTER X.
ROBERT HYDE

On the death of Sir Robert Foster, Lord Clarendon thought that he might fairly do a job for an aged kinsman, of respectable, if not brilliant reputation; and he appointed Sir Robert Hyde chief justice of the King’s Bench. They were cousins-german, being grandsons of Lawrence Hyde, of West Hatch, in the county of Wilts, and nephews of Sir Nicholas Hyde, chief justice of the King’s Bench in the commencement of the reign of Charles I. The Hydes were the most distinguished race of the robe in the 17th century. Robert’s father was likewise a lawyer of renown, being attorney general to Anne of Denmark, queen of James I., and he had twelve sons, most of whom followed their father’s profession. Robert seems to have been a very quiet man, and to have got on by family interest and by plodding. Although Edward, the future chancellor, played such a distinguished part during the troubles, – first as a moderate patriot, and then as a liberal conservative, – Robert, the future chief justice, was not in the House of Commons, nor did he enlist under the banner of either party in the field. Just before the civil war broke out, he was called to the degree of serjeant at law, and he continued obscurely to carry on his profession during all the vicissitudes of the twenty eventful years between 1640 and 1660.

At the Restoration, he was made a puisne judge of the Common Pleas, and, acting under Chief Justice Bridgman, he acquitted himself creditably.

When he was installed chief justice of the King’s Bench, Lord Chancellor Clarendon himself attended in court, and thus addressed him: —

“It’s a sign the troubles have been long, that there are so few judges left, only yourself; and after so long suffering of the law and lawyers, the king thought fit to call men of the best reputation and learning, to renew the reverence due and used to the law and lawyers; and the king, as soon as the late chief justice was dead, full of days and of honors, did resolve on you as the ancientest judge left; and your education in this court gives you advantage here above others, as you are the son of an eminent lawyer as any in his days, whose felicity was to see twelve sons, and you one of the youngest a serjeant, and who left you enough, able to live without the help of an elder brother. For your integrity to the crown, you come to sit here. The king and the kingdom do expect great reformation from your activity. For this reason, the king, when I told him Chief Justice Foster was dead, made choice of you. Courage in a judge is necessary as in a general;⁶² therefore you must not want this to punish sturdy offenders. The genteel wickedness of duelling I beseech you inquire into; the carriers of challenges, and fighters, however they escape death, the fining and imprisoning of them will make them more dread this court than the day of judgment.”

Hyde, C. J.– “I had ever thought of the advice of the wise man, ‘not to seek to be a judge, nor ask to sit in the seat of honor,’ being conscious of my own defects and small learning. But, seeing his majesty’s grace, I shall humbly submit, and serve him with my life, with all alacrity and duty. Sins of infirmity I hope his majesty will pardon, and for wilful and corrupt dealings I shall not ask it. I attended in Coke’s time as a reporter here; and as he said when he was made chief justice I say now – ‘I will behave myself with all diligence and honesty.’”

This chief justice was much celebrated in his day for checking the licentiousness of the press. A printer named John Twyn, having printed a book containing passages which were said to reflect upon the king, was arraigned before him at the Old Bailey on an indictment for high treason. The prisoner being asked how he would be tried, said, “I desire to be tried in the presence of that God who is the searcher of all hearts, and the disposer of all things.”

Hyde, L. C. J.– “God Almighty is present here, but you must be tried by him and your peers, that is, your country, or twelve honest men.” Prisoner.– “I desire to be tried by God alone.” Hyde, L. C. J.– “God Almighty looks down, and beholds what we do here, and we shall answer severely if we do you any wrong. We are careful of our souls as you can be of yours. You must answer in the words of the law.” Prisoner.– “By God and my country.”

It was proved clearly enough that he had printed the book, and some passages of it might have been considered libellous; but there was no other evidence against him, and he averred that he had unconsciously printed the book in the way of his trade.

Hyde, L. C. J.– “There is here as much villany and slander as it is possible for devil or man to invent. To rob the king of the love of his subjects, is to destroy him in his person. You are here in the presence of Almighty God, as you desired; and the best you can now do towards amends for your wickedness is by discovering the author of this villanous book. If not, you must not expect – and, indeed, God forbid – there should be any mercy shown you.” Prisoner.– “I never knew the author of it.” Hyde, L. C. J.– “Then we must not trouble ourselves. You of the jury, there can be no doubt that publishing such a book as this is as high treason as can be committed, and my brothers will declare the same if you doubt.”

The jury having found a verdict of guilty,⁶³ the usual sentence was pronounced by Lord Chief Justice Hyde, and the printer was drawn, hanged, and quartered accordingly.

The next trials before his lordship, although the charge was not made capital, (as he said it might have been,) were equally discreditable to him. Several booksellers were indicted for publishing a book which contained a simple and true account of the trial of the regicides, with their speeches and prayers.

Hyde, L. C. J.– “To publish such a book is to fill all the king’s subjects with the justification of that horrid murder. I will be bold to say no such horrid villany has been done upon the face of the earth since the crucifying of our Savior. To print and publish this is sedition. He that prints a libel against me as Sir Robert Hyde, and he that sets him at work, must answer it; much more when against the king and the state. Dying men’s words, indeed. If men are as villanous at their death as in their lives, may what they say be published as the words of dying men? God forbid! It is the king’s great mercy that the charge is not for high treason.”

The defendants, being found guilty, were sentenced to be fined, to stand several hours in the pillory, and to be imprisoned for life.

[In October, 1664, Chief Justice Hyde caused John Keach to be indicted for libel, which indictment he proceeded forthwith to try, in a manner denounced by Mr. Dunning, in one of his speeches in the House of Commons (Dec. 6, 1770,) as “cruel, brutal, and illegal.”

Keach had written a little book called The Child’s Instructor; or a new and easy Primer, in which were contained several things contrary to the doctrine and ceremonies of the Church of England. Keach taught that infants ought not to be baptized; that laymen may preach the gospel; that Christ shall reign personally on the earth in the latter day, &c. He had no sooner received a few copies from London, where the book was printed, than a justice of the peace, who had heard of it, entered his house with a constable, seized several of the books, and bound Keach over to answer for it at the next assizes at Aylsbury.

Chief Justice Hyde presiding, Keach was called to the bar, when the following dialogue ensued: —

Hyde.– Did you write this book? (Holding out one of the primers.)⁶⁴

Keach.– I writ most of it.

Hyde.– What have you to do to take other men’s trades out of their hands? I believe you can preach as well as write books. Thus it is to let you and such as you are have the Scripture to wrest to your own destruction. You have made in your book a new creed. I have seen three creeds before, but I never saw a fourth till you made one.

Keach.– I have not made a creed, but a confession of the Christian faith.

Hyde.– Well, that is a creed, then.

Keach.– Your lordship said you had never seen but three creeds, but thousands of Christians have made a confession of their faith.

The chief justice having denounced several things contained in the book as contrary to the liturgy of the church of England, and so a breach of the test of uniformity —

Keach.– My lord, as to those things —

Hyde.– You shall not preach here, nor give the reasons of your damnable doctrine, to seduce and infect his majesty’s subjects. These are not things for such as you to meddle with, and to pretend to write books of divinity; but I will try you for it before I sleep.

He then directed an indictment to be drawn up, and thus addressed the grand jury: —

“Gentlemen of the grand jury: I shall send you presently a bill against one that hath taken upon him to write a new primer for the instruction of your children. He is a base and dangerous fellow; and if this be suffered, children by learning of it will become such as he is; and therefore I hope you will do your duty.”

A long indictment having been found, in which divers passages from the book were set forth as damnable, seditious, wicked, and contrary to the statute in that case made and provided, Keach was called upon to plead to it. He asked for a copy, and liberty to confer with counsel, and to put in his exceptions before pleading. But Chief Justice Hyde compelled him to plead before he would give him a copy, and then would allow him only an hour’s time to consider it, which, as not long enough to be of any benefit, Keach declined to accept.

The evidence was, that thirty copies of the book had been seized at Keach’s house by the justice and constable, and that Keach on his examination before the justice had confessed himself the author, and that he had received from London about forty copies, of which he had dispersed about twelve. Hyde then caused the passages contained in the indictment to be read, remarking on each to show that it was contrary to the Book of Common Prayer. This done, the prisoner began to speak in his defence.

Keach.– As to the doctrines —

Hyde.– You shall not speak here except to the matter of fact; that is to say, whether you writ this book or not.⁶⁵

Keach.– I desire liberty to speak to the particulars of my indictment, and those things that have —

Hyde.– You shall not be suffered to give the reasons for your damnable doctrine here to seduce the king’s subjects.

Keach.– Is my religion so bad that I may not be allowed to speak?

Hyde.– I know your religion; you are a Fifth Monarchy man; and you can preach as well as write books; and you would preach here if I would let you; but I shall take such order as you shall do no more mischief.⁶⁶

After some altercation between the judge and the prisoner as to the facts and the evidence, Hyde summed up and charged the jury; but after an absence of several hours one of the officers came in with a message that they could not agree.

Hyde.– But they must agree.

Officer.– They desire to know whether one of them may not come and speak to your lordship about something whereof they are in doubt.

Hyde.– Yes, privately; (and then ordered one to come to him on the bench.)

The officer then called one, and he was set upon the clerk’s table, and the judge and he whispered together a great while. It was observed that the judge, having his hands upon his shoulders, would frequently shake him as he spoke to him. Upon this person’s returning, the whole jury soon came in, and by their foreman delivered a verdict of guilty in part.

Clerk.– Of what part?

Foreman.– There is something contained in the indictment which is not in the book.

Clerk.– What is that?

Foreman.– In the indictment he is charged with these words: “When the thousand years shall be expired, then shall all the rest of the church be raised;” but in the book it is, “Then shall the rest of the dead be raised.”

Clerk.– Is he guilty of all the rest of the indictment, that sentence excepted?

One of the Jury.– I cannot in conscience find him guilty, because the words in the indictment and the book do not agree.

Hyde.– That is only through a mistake of the clerk’s, and in that sentence only; and you may find him guilty of all, that sentence excepted; but why did you come in before you were agreed?

Foreman.– We thought we had been agreed.

Hyde.– You must go out again and agree; and as for you that say you cannot in conscience find him guilty, if you say so again, without giving reasons for it, I shall take an order with you.⁶⁷

We shall find an explanation of this last threat (which soon produced a verdict in accordance with the wishes of the chief justice) in Hale’s Pleas of the Crown,⁶⁸ where it is stated that while Hyde was acting as a judge of nisi prius, he introduced the illegal practice of fining juries for not rendering verdicts satisfactory to him. “I have seen,” says Hale, “arbitrary practice still go from one thing to another. The fines set upon grand inquests began; then they set fines upon the petit jurors for not finding according to the direction of the court; then afterwards the judges of nisi prius proceeded to fine jurors in civil causes if they gave not a verdict according to direction, even in points of fact. This was done by a judge of assize [Justice Hyde, at Oxford, Vaugh. 145] in Oxfordshire, and the fine estreated; but I, by advice of most of the judges of England, stayed process upon that fine. [Hale was at this time chief baron of the Court of Exchequer.] The like was done by the same judge in a case of burglary. The fine was estreated into the exchequer; but by the like advice I stayed process; and in the case of Wagstaff, [Vaugh. 153,] and other jurors fined at the Old Bayley for giving a verdict contrary to direction, by advice of all the judges of England, (only one dissenting,) it was ruled to be against law.”]⁶⁹

In the fervor of loyalty which still prevailed, such doctrines were by no means unpopular; and while Chief Justice Hyde was cried up as an eminent judge by the triumphant Cavaliers, the dejected Roundheads hardly ventured to whisper a complaint against him. To the great grief of the one party, and, no doubt, to the secret joy of the other, who interpreted his fate as a judgment, his career was suddenly cut short. On the 1st of May, 1665, as he was placing himself on the bench to try a dissenter who had published a book recommending the “comprehension,” that had been promised by the King’s Declaration from Breda, while apparently in the enjoyment of perfect health, he dropped down dead.

CHAPTER XI.
JOHN KELYNGE

After the sudden death of Sir Robert Hyde, Lord Chancellor Clarendon was again thrown into distress by the difficulty of filling up the office of chief justice of the King’s Bench, and he allowed it to remain vacant seven months. Only five years had elapsed since the Restoration, and no loyal lawyer of eminence had sprung up. At last the Chancellor thought he could not do better than promote Sir John Kelynge, then a puisne, to be the head of the court. The appointment was considered a very bad one; and some accounted for it by supposing that a liberal contribution had been made towards the expense of erecting “Dunkirk House,”⁷⁰ which was exciting the admiration and envy of the town; while others asserted that the collar of S. S.⁷¹ had been put around the neck of the new legal dignitary by the Duchess of Cleveland. I believe that judicial patronage had not yet been drawn into the vortex of venality, and that Clarendon, left to the freedom of his own will, preferred him whom he considered the least ineligible candidate. But we cannot wonder at the suspicions which were generally entertained, for Sir John Kelynge’s friends could only say in his favor that he was a “violent Cavalier,” and his enemies observed that “however fit he might have been to charge the Roundheads under Prince Rupert, he was very unfit to charge a jury in Westminster Hall.”

I can find nothing of his origin, or of his career, prior to the Restoration; and I am unable to say whether, like some loyal lawyers, he actually had carried arms for the king, or, like others, had continued obscurely to practise his profession in London. The first notice I find of him is by himself, in the account which he has left us of the conferences of the judges at Serjeants’ Inn, preparatory to the trial of the regicides, when he says he attended that service as junior counsel for the crown. He might have been employed from a notion that he would be useful in solving the knotty points likely to arise,⁷² or, (what is quite as likely,) without any professional reputation, he might have got a brief by favor, in a case which was to draw the eyes of the whole world upon all engaged in it.

When the trials came on, he was very busy and bustling, and eagerly improved every opportunity of bringing himself forward. Before they were over, he took upon himself the degree of serjeant at law, and, to his unspeakable delight, he was actually intrusted with the task of conducting the prosecution against Colonel Hacker, who had commanded the guard during the king’s trial and at his execution. He learnedly expounded to the jury that the treason consisted in “compassing and imagining the king’s death,” and that the overt acts charged of condemning him and executing him were only to be considered evidence of the evil intention. He then stated the facts which would be proved by the witnesses, and concluded by observing, —

“Thus did he keep the king a prisoner, to bring him before that Mock Court of Injustice; and was so highly trusted by all those miscreants who thirsted for the king’s blood, that the bloody warrant was directed to him to see execution done. Nay, gentlemen, he was on the scaffold, and had the axe in his hand.” Hacker.– “My lords, to save your lordships trouble, I confess that I was upon the guard, and had a warrant to keep the king for his execution.” (The original warrant being shown to him, he admitted it.) Kelynge.– “After you had that warrant brought to you, did you, by virtue of it, direct another warrant for the execution of the king, and take his sacred majesty’s person from the custody of Colonel Tomlinson?” Hacker.– “No, sir.” Kelynge.– “We shall prove it.”

Colonel Tomlinson was then examined, and detailed the circumstances of the execution, showing that Colonel Hacker had conducted the king to the scaffold under the original warrant – what had been taken for a fresh warrant being a letter written by him to Cromwell, then engaged in prayer for the king’s deliverance with General Fairfax.

Kelynge.– “We have other witnesses, but the prisoner hath confessed enough. We have proved that he had the king in custody, and that at the time of the execution he was there to manage it. What do you say for yourself?” Hacker.– “Truly, my lord, I have no more to say for myself but that I was a soldier and under command. In obedience to those set over me I did act. My desire hath ever been for the welfare of my country.” L. C. Baron.– “This is all you have to say for yourself?” Hacker.– “Yes, my lord.” L. C. Baron.– “Then, Colonel Hacker, for that which you say for yourself that you did it by command, you must understand that no power on earth could authorize such a thing. Either he is guilty of compassing the death of the king, or no man can be said to be guilty.”

Of course he was convicted and executed.

Serjeant Kelynge was soon after promoted to be a king’s serjeant; and in that capacity took a prominent part in the trial of Sir Henry Vane, who, not being concerned in the late king’s death, was tried for what he had subsequently done in obedience to the Parliament, then possessed of the supreme power of the state. To the plea that his acts could not be said to be against the peace of Charles II., who was then in exile, Kelynge admitted that if another sovereign, although a usurper, had mounted the throne, the defence would have been sufficient; but urged that the throne must always be full, and that Charles II., in legal contemplation, occupied it while de facto he was wandering in foreign lands, and ambassadors from all the states of Europe were accredited to Oliver, the Lord Protector.

Kelynge having suggested this reasoning, which was adopted by the court, and on which Vane was executed as a traitor, he was, on the next vacancy, made a puisne judge of the King’s Bench.

While Kelynge was a puisne judge, he made up, by loyal zeal and subserviency, for his want of learning and sound sense; but, from a knowledge of his incompetency, there was a great reluctance to promote him on the death of Lord Chief Justice Hyde. Sir Matthew Hale was pointed out as the fittest person to be placed at the head of the common law; but Lord Clarendon had not the liberality to raise to the highest dignity one who had sworn allegiance to the Protector, and there being no better man whom he could select, who was free from the suspicion of republican taint, he fixed upon the “violent Cavalier.”

Luckily there were no speeches at his installation. On account of the dreadful plague which was then depopulating London, the courts were adjourned to Oxford. “There Kelynge, puisne judge, was made chief justice, and being sworn at the chancellor’s lodging, came up privily and took his place in the logic school, where the Court of King’s Bench sat. The business was only motions – to prevent any concourse of people. In London died the week before, 7165 of the plague, besides Papists and Quakers.”

The new chief justice even exceeded public expectation by the violent, fantastical, and ludicrous manner in which he comported himself. His vicious and foolish propensities broke out without any restraint, and, at a time when there was little disposition to question any who were clothed with authority, he drew down upon himself the contempt of the public and the censure of Parliament.

He was unspeakably proud of the collar which he wore as chief justice, this alone distinguishing him externally from the puisnies, a class on whom he now looked down very haughtily. In his own report of the resolutions of the judges prior to the trial of Lord Morley for murder, before the House of Lords, he considers the following as most important, —

“We did all, una voce, resolve that we were to attend at the trial in our scarlet robes, and the chief judges in their collars of S. S. —which I did accordingly.”

There having been a tumult in an attempt by some apprentices to put down certain disorderly houses in Moorfields, which were a great nuisance to the neighborhood, and cries that no such houses should be tolerated, Chief Justice Kelynge, considering this “an accroachment of royal authority,” directed those concerned in it to be indicted for HIGH TREASON; and the trial coming on before him at the Old Bailey, he thus laid down the law to the jury, —

“The prisoners are indicted for levying war against the king. By levying war is not only meant when a body is gathered together as in army, but if a company of people will go about any public reformation, this is high treason. These people do pretend their design was against brothels; now, for men to go about to pull down brothels, with a captain, and an ensign, and weapons, – if this thing be endured, who is safe? It is high treason because it doth betray the peace of the nation, and every subject is as much wronged as the king; for if every man may reform what he will, no man is safe; therefore the thing is of desperate consequence, and we must make this for a public example. There is reason we should be very cautious; we are but newly delivered from rebellion, and we know that that rebellion first began under the pretence of religion and the law; for the devil hath always this vizard upon it. We have great reason to be very wary that we fall not again into the same error. Apprentices in future shall not go on in this manner. It is proved that Beasely went as their captain with his sword, and flourished it over his head, and that Messenger walked about Moorfields with a green apron on the top of a pole. What was done by one was done by all; in high treason, all concerned are principals.”

So the prisoners were all convicted of high treason; and I am ashamed to say that all the judges concurred in the propriety of the conviction except Lord Chief Baron Hale, who, as might be expected, delivered his opinion that there was no treason in the case, and treated it merely as a misdemeanor. Such a proceeding had not the palliation that it ruined a personal enemy, or crushed a rival party in the state, or brought great forfeitures into the exchequer; it was a mere fantastic trick played before high heaven to make the angels weep.⁷³

When Chief Justice Kelynge was upon the circuit, being without any check or restraint, he threw aside all regard to moderation and to decency. He compelled the grand jury of Somersetshire to find a true bill contrary to their consciences – reproaching Sir Hugh Wyndham, the foreman, as the head of a faction, and telling them “that they were all his servants, and that he would make the best in England stoop.”

Some persons were indicted before him for attending a conventicle; and, although it was proved that they had assembled on the Lord’s day with Bibles in their hands, without Prayer Books, they were acquitted. He thereupon fined the jury one hundred marks apiece, and imprisoned them till the fines were paid. Again, on the trial of a man for murder, who was suspected of being a dissenter, and whom he had a great desire to hang, he fined and imprisoned all the jury because, contrary to his direction, they brought in a verdict of manslaughter.⁷⁴ Upon another occasion, (repeating a coarse jest of one whom he professed to hold in great abhorrence,) when he was committing a man in a very arbitrary manner, the famous declaration in Magna Charta being cited to him, that “no freeman shall be imprisoned except by the judgment of his peers, or the law of the land,” the only answer given by my lord chief justice of England was to repeat, with a loud voice, Cromwell’s rhyme, “Magna Charta – Magna F – a!!!”

At last, the scandal was so great that complaints against him were brought by petition before the House of Commons, and were referred to the grand committee of justice. After witnesses had been examined, and he himself had been heard in his defence, the committee reported the following resolutions: —

“1. That the proceedings of the lord chief justice in the cases referred to us are innovations in the trial of men for their lives and liberties, and that he hath used an arbitrary and illegal power which is of dangerous consequence to the lives and liberties of the people of England.

“2. That in the place of judicature, the lord chief justice hath undervalued, vilified, and condemned Magna Charta, the great preserver of our lives, freedom, and property.

“3. That the lord chief justice be brought to trial, in order to condign punishment in such manner as the House shall judge most fit and requisite.”

The matter assuming this serious aspect, he petitioned to be heard at the bar of the House in his own defence. Lord Chief Baron Atkyns, who was then present, says, “he did it with that great humility and reverence, that those of his own profession and others were so far his advocates that the House desisted from any farther prosecution.” His demeanor seems now to have been as abject as it had before been insolent, and he escaped punishment only by the generous intercession of lawyers whom he had been in the habit of browbeating in the King’s Bench.

He was abundantly tame for the rest of his days; but he fell into utter contempt, and the business of the court was done by Twisden, a very learned judge, and much respected, although very passionate. Kelynge’s collar of S. S. ceased to have any charms for him; he drooped and languished for some terms, and on the 9th of May, 1671, he expired, to the great relief of all who had any regard for the due administration of justice. No interest can be felt respecting the place of his interment, his marriages, or his descendants.

I ought to mention, among his other vanities, that he had the ambition to be an author; and he compiled a folio volume of decisions in criminal cases, which are of no value whatever except to make us laugh at some of the silly egotisms with which they abound.⁷⁵