Atrocious Judges Part 8

_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.[67]

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 lords.h.i.+p 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_.[68]

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,[69] 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 pet.i.t 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 a.s.size [Justice Hyde, at Oxford, Vaugh. 145] in Oxfords.h.i.+re, 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."][70]

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,"[71] which was exciting the admiration and envy of the town; while others a.s.serted that the collar of S. S.[72] had been put around the neck of the new legal dignitary by the d.u.c.h.ess 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,[73] 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 "compa.s.sing 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 b.l.o.o.d.y 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 lords.h.i.+ps 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 circ.u.mstances 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 compa.s.sing 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 amba.s.sadors 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 distinguis.h.i.+ng him externally from the puisnies, a cla.s.s 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 ap.r.o.n on the top of a pole. What was done by one was done by all; in high treason, all concerned are princ.i.p.als."

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.[74]

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 Somersets.h.i.+re 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 a.s.sembled 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_.[75] Upon another occasion, (repeating a coa.r.s.e 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 pet.i.tion 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 a.s.suming this serious aspect, he pet.i.tioned 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 pa.s.sionate. 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.[76]