“We did all, una voce, resolve that we were to attend at the trial in our scarlet robes, and the chief judges in their collars of S. S.—which I did accordingly.”
There having been a tumult in an attempt by some apprentices to put down certain disorderly houses in Moorfields, which were a great nuisance to the neighborhood, and cries that no such houses should be tolerated, Chief Justice Kelynge, considering this “an accroachment of royal authority,” directed those concerned in it to be indicted for HIGH TREASON; and the trial coming on before him at the Old Bailey, he thus laid down the law to the jury,—
“The prisoners are indicted for levying war against the king. By levying war is not only meant when a body is gathered together as in army, but if a company of people will go about any public reformation, this is high treason. These people do pretend their design was against brothels; now, for men to go about to pull down brothels, with a captain, and an ensign, and weapons,—if this thing be endured, who is safe? It is high treason because it doth betray the peace of the nation, and every subject is as much wronged as the king; for if every man may reform what he will, no man is safe; therefore the thing is of desperate consequence, and we must make this for a public example. There is reason we should be very cautious; we are but newly delivered from rebellion, and we know that that rebellion first began under the pretence of religion and the law; for the devil hath always this vizard upon it. We have great reason to be very wary that we fall not again into the same error. Apprentices in future shall not go on in this manner. It is proved that Beasely went as their captain with his sword, and flourished it over his head, and that Messenger walked about Moorfields with a green apron on the top of a pole. What was done by one was done by all; in high treason, all concerned are principals.”
So the prisoners were all convicted of high treason; and I am ashamed to say that all the judges concurred in the propriety of the conviction except Lord Chief Baron Hale, who, as might be expected, delivered his opinion that there was no treason in the case, and treated it merely as a misdemeanor. Such a proceeding had not the palliation that it ruined a personal enemy, or crushed a rival party in the state, or brought great forfeitures into the exchequer; it was a mere fantastic trick played before high heaven to make the angels weep.[74]
When Chief Justice Kelynge was upon the circuit, being without any check or restraint, he threw aside all regard to moderation and to decency. He compelled the grand jury of Somersetshire to find a true bill contrary to their consciences—reproaching Sir Hugh Wyndham, the foreman, as the head of a faction, and telling them “that they were all his servants, and that he would make the best in England stoop.”
Some persons were indicted before him for attending a conventicle; and, although it was proved that they had assembled on the Lord’s day with Bibles in their hands, without Prayer Books, they were acquitted. He thereupon fined the jury one hundred marks apiece, and imprisoned them till the fines were paid. Again, on the trial of a man for murder, who was suspected of being a dissenter, and whom he had a great desire to hang, he fined and imprisoned all the jury because, contrary to his direction, they brought in a verdict of manslaughter.[75] Upon another occasion, (repeating a coarse jest of one whom he professed to hold in great abhorrence,) when he was committing a man in a very arbitrary manner, the famous declaration in Magna Charta being cited to him, that “no freeman shall be imprisoned except by the judgment of his peers, or the law of the land,” the only answer given by my lord chief justice of England was to repeat, with a loud voice, Cromwell’s rhyme, “Magna Charta—Magna F——a!!!”
At last, the scandal was so great that complaints against him were brought by petition before the House of Commons, and were referred to the grand committee of justice. After witnesses had been examined, and he himself had been heard in his defence, the committee reported the following resolutions:—
“1. That the proceedings of the lord chief justice in the cases referred to us are innovations in the trial of men for their lives and liberties, and that he hath used an arbitrary and illegal power which is of dangerous consequence to the lives and liberties of the people of England.
“2. That in the place of judicature, the lord chief justice hath undervalued, vilified, and condemned Magna Charta, the great preserver of our lives, freedom, and property.
“3. That the lord chief justice be brought to trial, in order to condign punishment in such manner as the House shall judge most fit and requisite.”