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;[63] 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,[64] 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.)[65]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.[66]

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.[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 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.[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 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.”][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.