Kelyng, John (DNB00)

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KELYNG, Sir JOHN (d. 1671), chief justice of the king's bench, son of John Kelyng, a barrister of the Inner Temple, created M.A. at Oxford on 1 Aug. 1621, was admitted a member of the Inner Temple on 22 Jan. 1623–4, and called to the bar by the same society on 10 Feb. 1631–2. He practised with his father on the crown side in the forest courts for some years after his call; refused to take the protestation on the outbreak of the civil war, and having attempted at the Hertfordshire spring quarter-sessions in 1642 to obtain the presentment by the grand jury of some persons found drilling pursuant to the militia ordinance, was summoned to the bar of the House of Commons, arrested, and committed to Windsor Castle, where he was detained in close confinement until the Restoration. He was then called to the degree of serjeant-at-law 4 July 1660, and was appointed one of the counsel to supply the place of the king's serjeant, Sir John Glanville [q. v.], who was in infirm health, in the proceedings against the regicides. In this capacity he opened the case against Colonel Hacker, and moved for judgment against Heveningham. On 21 Jan. 1660–1661 he was knighted at Whitehall, and on 25 March following he was returned to parliament for Bedford. The validity of the return was disputed, but by order of the house of 16 May, Kelyng was permitted to sit pending the decision of the question. Meanwhile he was employed in drafting the Act of Uniformity passed in the following year. On 19 Nov. 1661 he prosecuted for high treason John James [q. v.], a Fifth-monarchy man. At the trial of the supposed witches before Sir Matthew Hale [q. v.] at Bury St. Edmunds assizes on 10 March 1661–2, Kelyng openly expressed his dissatisfaction with the evidence, and after performing, at Hale's request, certain simple experiments on the children alleged to be bewitched, declared his belief that ‘the whole transaction of this business was a mere imposture.’ In June 1662 he took part in the proceedings against Sir Henry Vane, towards whom he exhibited ‘a very snappish property.’ On 18 June 1663 he was appointed a puisne judge of the king's bench in succession to Thomas Malet [q. v.] On 21 Nov. 1665, seven months after the death of Chief-justice Hyde [q. v.], Kelyng succeeded to his place. His bearing on the bench, both before and still more after his advancement to the chief justiceship, was haughty and brutal, and he did not scruple to browbeat, fine, and even imprison the jury. This scandalous practice being brought to the notice of the House of Commons, Kelyng was summoned before a committee appointed to investigate the charge, which reported on 11 Dec. 1667 that ‘the proceed- ings of the lord chief justice in cases now reported are innovations in the trial of men for their lives and liberties;’ ‘that he hath used an arbitrary and illegal power’ which ‘tends to the introducing of an arbitrary government;’ that he ‘hath undervalued, vilified, and contemned Magna Charta,’ ‘that he be brought to trial in order to condign punishment in such manner as the house shall judge most fit and requisite.’ On the 13th Kelyng was heard in his defence at the bar of the house, which contented itself with resolving that ‘the precedents and practice of fining and imprisoning jurors is illegal,’ and that ‘this house proceed no further upon the matter against the lord chief justice.’ He appears to have been generally unpopular. Pepys mentions his ‘abusing’ his cousin, Roger Pepys, at Cambridge, ‘very wrongfully and shamefully, but not to his reproach, but to the chief justice's in the end, when all the world cried shame upon him for it.’ Roger Pepys was recorder of Cambridge, and for speaking slightingly of Lord-chief-justice Hyde had been bound to his good behaviour by Kelyng at the assizes in March 1665. On 1 March 1670–1 Kelyng was charged before the House of Lords by Lord Hollis [q. v.] with libelling him from the bench during the parliamentary session, the libel complained of consisting in describing Hollis's action in connection with a certain case pending before Kelyng as ‘a foul contrivance.’ The house judged the libel proved and a gross breach of privilege, and compelled Kelyng to make a public withdrawal and apology. He was already in failing health, having been absent from court all the preceding Michaelmas term from illness. On 10 May 1671 he died of a lethargy at his house in Hatton Garden. It was remarked as strange ‘that a man of so bilious a complexion should have so phlegmatic a conveyance to the other world’ (Hist. MSS. Comm. 6th Rep. App. p. 370). He was buried on the 13th in St. Andrew's, Holborn. Sir Thomas Raymond (Reports, 2nd edit. p. 209) characterises him as ‘a learned, faithful, and resolute judge.’

Kelyng married thrice: first, Martha, daughter of Sir Thomas Botiler of Bidenham, Bedfordshire, who died on 18 July 1660, and was buried in the Temple Church; secondly, Mary, daughter of William Jesson, draper, of London, who died on 24 Sept. 1667, and was buried in St. Andrew's, Holborn; thirdly, on 23 March 1667–8, Elizabeth, daughter of Sir Francis Bassett of Cornwall. He had four sons and four daughters. His eldest son (by his first wife), Sir John Kelyng (1630?–1680), was called to the bar at the Inner Temple in 1660, became a bencher of that society in 1677, was knighted at Whitehall on 26 Oct. 1679, was called to the degree of serjeant-at-law on 12 May 1680, and died at his house at Southhill, Bedfordshire, 29 Dec. 1680, leaving a widow (Philippa, daughter of Signor Antellminelli, resident for the duke of Tuscany), three sons (John of Southhill, Charles, d. 1707, and Anthony, a clergyman in Bedfordshire), and five daughters.

Kelyng left a manuscript collection of reports, part of which was published by the direction of Sir John Holt [q. v.] under the title ‘A Report of Divers Cases in the Pleas of the Crown adjudged and determined in the Reign of the late King Charles,’ London, 1708, fol.; reprinted in 1739, 8vo, and again at Dublin in 1789, 8vo. The only complete edition, however, is that by Mr. Richard Loveland Loveland, of the Inner Temple, entitled ‘Sir John Kelyng's Reports of Crown Cases in the time of King Charles,’ &c., London, 1873, 8vo. Kelyng's judgment in a curious case of some rioters charged in 1668 with high treason for making an attack on some brothels in Moorfields was published in pamphlet form in 1710, 8vo, and will also be found in Cobbett's ‘State Trials,’ vi. 879 et seq.

[Inner Temple Books; Wood's Fasti Oxon. ed. Bliss, i. 404; Cal. State Papers, Dom. 1638–9 p. 109, 1653–4 p. 349, 1664–5 p. 39, 1665–6 p. 67; Comm. Journ. ii. 597, 602, 951, 961, ix. 22, 36, 37; Lords' Journ. xii. 440, 452; Wynne's Serjeant-at-Law; Siderfin's Reports, i. 4, 150; Le Neve's Pedigrees of Knights (Harl. Soc.), p. 150; Burnet's Own Time, fol., i. 184; Cobbett's State Trials, v. 1177, 1196, 1229, vi. 76, 171; Pepys's Diary, ed. Braybrooke; Hist. MSS. Comm. 9th Rep. pt. ii. App. i. a.; Mercur. Publ. 7–14 Feb. 1661; Kingdom's Intelligencer, 11–18 Feb. 1661; London Gazette, 10–13 May, 1680; Chester's London Marriage Licences; Sir Thomas Raymond's Reports, 2nd edit. p. 189.]

J. M. R.