Lord Chief Justice Fleming took the lead in the prosecution of the Countess of Shrewsbury before the Privy Council, on the charge of having refused to be examined respecting the part she had acted in bringing about a clandestine marriage, in the Tower of London, between the Lady Arabella Stuart, the king’s cousin, and Sir William Somerset, afterwards Duke of Somerset. He laid it down for law, that “it was a high misdemeanor to marry, or to connive at the marriage of any relation of the king without his consent, and that the countess’s refusal to be examined was ‘a contempt of the king, his crown and dignity, which, if it were to go unpunished, might lead to many dangerous enterprises against the state.’ He therefore gave it as his opinion that she should be fined £10,000 and confined during the king’s pleasure.”
While this poor creature presided in the King’s Bench, he was no doubt told by his officers and dependants that he was the greatest chief justice that had appeared there since the days of Gascoigne and Fortescue; but he was considered a very small man by all the rest of the world, and he was completely eclipsed by Sir Edward Coke, who at the same time was chief justice of the Common Pleas, and who, to a much more vigorous intellect and deeper learning, added respect for constitutional liberty and resolution at every hazard to maintain judicial independence. From the growing resistance in the nation to the absolute maxims of government professed by the king and sanctioned by almost all his judges, there was a general desire that the only one who stood up for law against prerogative should be placed in a position which might give greater weight to his efforts on the popular side; but of this there seemed no prospect, for the subservient Fleming was still a young man, and likely to continue many years the tool of the government.
In the midst of these gloomy anticipations, on the 15th day of October, 1613, the joyful news was spread of his sudden death. I do not know, and I have taken no pains to ascertain, where he was buried, or whether he left any descendants. In private life he is said to have been virtuous and amiable, and the discredit of his incompetency in high office ought to be imputed to those who placed him there, instead of allowing him to prose on as a drowsy serjeant at the bar of the Common Pleas, the position for which nature had intended him.
CHAPTER VI.
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:—