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.* 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. Is my religion so bad that I may not be allowed Keach. to speak? Hyde. I know your religion; you are a Fifth Monarchy man; and you can preach as well as write books; and you This was the same doctrine afterwards attempted to be maintained by Lord Mansfield, but overruled by a declaratory act of Parliament. would preach here if I would let you; but I shall take such order as you shall do no more mischief.* 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. 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? * An American specimen of this style of judicial decision may be found in Judge Grier's way of speaking on the bench about Abolitionists. Ed. 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. 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.* 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, † 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 6 State Trials, 701-709. + 2 Hale, P. C. 158. 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."]* 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. *The above passage enclosed in brackets has been added by the editor. Our American judges, more subtle than their predecessors, instead of fining juries for not rendering verdicts according to directions, have introduced the practice of questioning jurors beforehand, and not allowing them to sit unless they pass a satisfactory examination. — Ed. 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," "which was exciting the admiration and envy of the town; while others asserted that the collar of S. S.† 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 * This was an expensive residence built by Clarendon, to which the populace gave that name, under the unfounded idea that the expense of it was defrayed out of bribes received for consenting to the sale of Dunkirk. Ed. + This has been from great antiquity the decoration of the English chief justices. Dugdale says it is derived from the name of St. Simplicius, a Christian judge, who suffered martyrdom under the Emperor Diocletian. Ed. |