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.