NICHOLAS HYDE.
After the abrupt dissolution of the second Parliament of Charles I.
without the grant of a supply, all redress of grievances being refused,
the plan was deliberately formed of discontinuing entirely the use of
popular assemblies in England, and of ruling merely by prerogative. For
this purpose it was indispensably necessary that the king should have the
power of imposing taxes, and the power of arbitrary imprisonment. He began
to exercise both these powers by assessing sums which all persons of
substance were called upon to contribute to the revenue according to their
supposed ability, and by issuing warrants for committing to jail those who
resisted the demand. But these measures could not be rendered effectual
without the aid of the judges; for hitherto in England the validity of any
fiscal imposition might be contested in a court of justice; and any man
deprived of his liberty might, by suing out a writ of _habeas corpus_,
have a deliberate judgment upon the question "whether he was lawfully
detained in custody or not." Sir Thomas Darnel, Sir Edmund Hampden, and
other public-spirited men, having peremptorily refused to pay the sums
assessed upon them, had been cast into prison, and were about to seek
legal redress for their wrongs.
In the coming legal contest, almost every thing would depend upon the
chief justice of the King's Bench. According to a well-known fashion which
prevailed in those times, the attorney general, by order of the
government, sounded Sir Randolph Crewe, then holding that office, to which
he had been appointed hardly two years before, respecting his opinions on
the agitated points, and was shocked to hear a positive declaration from
him that by the law of England, no tax or talliage, under whatever name or
disguise, can be laid upon the people without the authority of Parliament,
and that the king cannot imprison any of his subjects without a warrant
specifying the offence with which they are charged. This being reported to
the cabinet, Sir Randolph Crewe was immediately dismissed from his office;
and, in a few weeks after, Sir Nicholas Hyde was made chief justice in his
stead. He was the uncle of the great Lord Clarendon. They were sprung from
the ancient family of "_Hyde of that ilk_" in the county palatine of
Chester; their branch of it having migrated, in the sixteenth century,
into the west of England. The chief justice was the fourth son of Lawrence
Hyde, of Gussage St. Michael, in the county of Dorset.
Before being selected as a fit tool of an arbitrary government, he had
held no office whatever; but he had gained the reputation of a sound
lawyer, and he was a man of unexceptionable character in private life. He
was known to be always a stanch stickler for prerogative; but this was
supposed to arise rather from the sincere opinion he had formed of what
the English constitution was, or ought to be, than from a desire to
recommend himself for promotion. He is thus good naturedly introduced by
Rushworth:--
"Sir Randolf Crewe, showing no zeal for the advancement of the loan, was
removed from his place of lord chief justice, and Sir Nicholas Hyde
succeeded in his room--a person who, for his parts and abilities, was
thought worthy of that preferment; yet, nevertheless, came to the same
with a prejudice, coming in the place of one so well-beloved, and so
suddenly removed."
Whether he was actuated by mistaken principle or by profligate ambition,
he fully justified the confidence reposed in him by his employers. Soon
after he took his seat in the Court of King's Bench, Sir Thomas Darnel and
several others, committed under the same circumstances, were brought up
before him on a writ of _habeas corpus_; and the question arose whether
the King of England, by _lettre de cachet_, had the power of perpetual
imprisonment without assigning any cause. The return of the jailer, being
read, was found to set out, as the only reason for Sir Thomas Darnel's
detention, a warrant, signed by two privy councillors, in these words:--
"Whereas, therefore, the body of Sir Thomas Darnel hath been committed to
your custody, these are to require you still to detain him, and to let you
know that he was and is committed BY THE SPECIAL COMMAND OF HIS MAJESTY."
Lord Chief Justice Hyde proceeded with great temper and seeming respect
for the law, observing, "Whether the commitment be by the king or others,
this court is a place where the king doth sit in person, and we have power
to examine it; and if any man hath injury or wrong by his imprisonment, we
have power to deliver and discharge him; if otherwise, he is to be
remanded by us to prison again."
Selden, Noy,[40] and the other counsel for the prisoners, encouraged by
this intimation, argued boldly that the warrant was bad on the face of it,
_per speciale mandatum domini regis_ being too general, without specifying
an offence for which a person was liable to be detained without bail;
that the warrant should not only state the authority to imprison, but the
cause of the imprisonment; and that if this return were held good, there
would be a power of shutting up, till a liberation by death, any subject
of the king, without trial and without accusation. After going over all
the common law cases and the acts of Parliament upon the subject, from
MAGNA CHARTA downwards, they concluded with the _dictum_ of Paul the
apostle, "It is against reason to send a man to prison without showing a
cause."
_Hyde, C. J._--"This is a case of very great weight and great expectation.
I am sure you look for justice from hence, and God forbid we should sit
here but to do justice to all men, according to our best skill and
knowledge; for it is our oaths and duties so to do. We are sworn to
maintain all prerogatives of the king: that is one branch of our oath; but
there is another--to administer justice equally to all people. That which
is now to be judged by us is this: 'Whether, where one is committed by the
king's authority, and by cause declared of his commitment, we ought to
deliver him by bail, or to remand him.'"
From such a fair beginning,[41] there must have been a general
anticipation of a just judgment; but, alas! his lordship, without
combating the arguments, statutes, or texts of Scripture relied upon,
said, "The court must be governed by precedents;"[42] and then going over
all the precedents which had been cited, he declared that there was not
one where, there being a warrant _per speciale mandatum domini regis_, the
judges had interfered and held it insufficient. He said he had found a
resolution of all the judges in the reign of Queen Elizabeth, that if a
man be committed by the commandment of the king, he is not to be delivered
by a _habeas corpus_ in this court, "for we know not the cause of the
commitment." Thus he concluded:--
"What can we do but walk in the steps of our forefathers? Mr. Attorney
hath told you the king has done it for cause sufficient, and we trust him
in great matters. He is bound by law, and he bids us proceed by law; we
are sworn so to do, and so is the king. We make no doubt the king, he
knowing the cause why you are imprisoned, will have mercy. On these
grounds we cannot deliver you, but you must be remanded."[43]
This judgment was violently attacked in both houses of Parliament. In the
House of Lords the judges were summoned, and required to give their
reasons for it. Sir Nicholas Hyde endeavored to excuse himself and his
brethren from this task by representing it as a thing they ought not to do
without warrant from the king. Lord Say observed, "If the judges will not
declare themselves, we must take into consideration the point of our
privilege." To soothe the dangerous spirit which disclosed itself,
Buckingham obtained leave from the king that the judges should give their
reasons, and Sir Nicholas Hyde again went over all the authorities which
had been cited in the King's Bench in support of the prerogative. These
were not considered by any means satisfactory; but, as the chief justice
could no longer be deemed contumacious, he escaped the commitment with
which he had been threatened. Sir Edward Coke,[44] and the patriots in the
House of Commons, were not so easily appeased, and they for some time
threatened Lord Chief Justice Hyde and his brethren with an impeachment;
but it was hoped that all danger to liberty would be effectually guarded
against for the future by compelling the reluctant king to agree to the
PETITION OF RIGHT. Before Charles would give the royal assent to
it--meaning not to be bound by it himself, but afraid that the judges
would afterwards put limits to his power of arbitrary imprisonment--he
sent for Chief Justice Hyde and Chief Justice Richardson, of the Common
Pleas, to Whitehall, and directed them to return to him the answer of
themselves and their brethren to this question, "Whether in no case
whatsoever the king may commit a subject without showing cause." The
answer shows that they had been daunted by the denunciations of Sir Edward
Coke, and that they were driven to equivocate: "We are of opinion that, by
the general rule of law, the cause of commitment by his majesty ought to
be shown; yet some cases may require such secrecy that the king may
commit a subject without showing the cause, for a convenient time."
Charles then delivered to them a second question, and desired them to keep
it very secret, "Whether, if to a _habeas corpus_ there be returned a
warrant from the king without any special cause, the judges ought to
liberate him before they understand from the king what the cause is." They
answered, "If no cause be assigned in the warrant, the party ought, by the
general rule of law, to be liberated; but, if the case requireth secrecy,
and may not presently be disclosed, the court, in its discretion, may
forbear to liberate the prisoner for a convenient time, till they are
advertised of the truth thereof." He then came to the point with his third
question, "Whether, if the king grant the Commons' PETITION, he doth not
thereby exclude himself from committing or restraining a subject without
showing a cause." Hyde reported this response: "Every law, after it is
made, hath its exposition, which is to be left to the courts of justice to
determine; and, although the PETITION be granted, there is no fear of
conclusion, as is intimated in the question."
The judges having thus pledged themselves to repeal the act for him by
misconstruing it,[45] he allowed it to be added to the statute book. No
sooner was the Parliament that passed it abruptly dissolved than it was
flagrantly violated, and Selden, Sir John Eliot, and other members of the
House of Commons, were arrested for the speeches they had delivered, and
for requiring the speaker to put from the chair a motion which had been
made and seconded. This proceeding was more alarming to public liberty
than any thing that had been before attempted by the crown; if it
succeeded, there was no longer the hope of any redress in Parliament for
the corrupt decisions of the common law courts.
To make all sure by an extrajudicial opinion,[46] Lord Chief Justice Hyde
and the other judges were assembled at Serjeants' Inn, and, by the king's
command, certain questions were put to them by the attorney general. The
answers to these, given by the mouth of the chief justice, if acted upon,
would forever have extinguished the privilege and the independence of the
House of Commons: "That a Parliament man committing an offence against the
king in Parliament, not in a parliamentary course, may be punished after
the Parliament is ended; for, though regularly he cannot be compelled out
of Parliament to answer things done in Parliament in a parliamentary
course, it is otherwise where things are done exorbitantly;" and "that by
false slanders to bring the lords of the council and the judges, not in a
parliamentary way, into the hatred of the people, and the government into
contempt, was punishable out of Parliament, in the Star Chamber, as an
offence committed in Parliament beyond the office, and besides the duty,
of a Parliament man."
The parties committed were brought up by _habeas corpus_, and, the public
being much scandalized, an offer was made that they might be bailed; but,
they refusing to give bail, which they said would be compromising the
privileges of the House of Commons, Lord Chief Justice Hyde remanded them
to jail.
The attorney general having then filed an ex-officio information against
them for their misconduct in Parliament, they pleaded to the jurisdiction
of the court "because these offences, being supposed to be done in
Parliament, ought not to be punished in this court, or elsewhere than in
Parliament."
Chief Justice Hyde tried at once to put an end to the case by saying that
"all the judges had already resolved with one voice, that an offence
committed in Parliament, criminally or contemptuously, the Parliament
being ended, rests punishable in the Court of King's Bench, in which the
king by intendment sitteth."
The counsel for the defendants, however, would be heard, and were heard in
vain; for Chief Justice Hyde treated their arguments with scorn, and
concluded by observing, "As to what was said, that an 'inferior court
cannot meddle with matters done in a superior,' true it is that an
inferior court cannot meddle with the _judgments_ of a superior court; but
if particular members of a superior court offend, they are ofttimes
punishable in an inferior court--as if a judge shall commit a capital
offence in this court, he may be arraigned thereof at Newgate. The
behavior of Parliament men ought to be parliamentary. Parliament is a
higher court than this, but every member of Parliament is not a court, and
if he commit an offence we may punish him. The information charges that
the defendants acted _unlawfully_, and they could have no privilege to
violate the law. No outrageous speeches have been made against a great
minister of state in Parliament that have not been punished." The plea
being overruled, the defendants were sentenced to be imprisoned during the
king's pleasure, and to be fined, Sir John Eliot in £2000, and the others
in smaller sums.
This judgment was severely condemned by the House of Commons at the
meeting of the Long Parliament, and was afterwards reversed, on a writ of
error, by the House of Lords. But Lord Chief Justice Hyde escaped the fate
of his predecessor, Chief Justice Tresilian, who was hanged for
promulgating similar doctrines, for he was carried off by disease when he
had disgraced his office four years and nine months. He died at his house
in Hampshire, on the 25th of August, 1631.
In justice to the memory of Sir Nicholas Hyde, I ought to mention that he
was much respected and lauded by true courtiers. Sir George Croke
describes him as "a grave, religious, discreet man, and of great learning
and piety." Oldmixon pronounces him to have been "a very worthy
magistrate," and highly applauds his judgment in favor of the power of the
crown to imprison and prosecute Parliament men for what they have done in
the House of Commons.