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

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СКАЧАТЬ – 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,40 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;”41 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.”42

      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,43 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,44 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,45 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 СКАЧАТЬ