Constitutional History of England Volume II Part 33

[787] The true question for a grand juror to ask himself seems to be this: Is the evidence such as that, if the prisoner can prove nothing to the contrary, he ought to be convicted? However, where any considerable doubt exists as to this, as a petty juror ought to acquit, so a grand juror ought to find the indictment.

[788] Roger North, and the prerogative writers in general, speak of this inquest as a scandalous piece of perjury, enough to justify the measures soon afterwards taken against the city. But Ralph, who, at this period of history, is very impartial, seems to think the jury warranted by the absurdity of the depositions. It is to be remembered that the petty juries had shown themselves liable to intimidation, and that the bench was sold to the court. In modern times, such an ignoramus could hardly ever be justified. There is strong reason to believe, that the court had recourse to subornation of evidence against Shaftesbury. Ralph, 140 _et post_. And the witnesses were chiefly low Irishmen, in whom he was not likely to have placed confidence. As to the a.s.sociation found among Shaftesbury's papers, it was not signed by himself, nor, as I conceive, treasonable, only binding the a.s.sociators to oppose the Duke of York, in case of his coming to the crown. _State Trials_, viii. 786. See also 827 and 835.

[789] If we may believe James II., the populace hooted Shaftesbury when he was sent to the Tower. Macpherson, 124; _Life of James_, 688.

This was an improvement on the _odit d.a.m.natos_. They rejoiced, however, much more, as he owns, at the ignoramus. P. 714.

[790] See College's case in _State Trials_, viii. 549, and Hawles's remarks on it, 723; Ralph, 626. It is one of the worst pieces of judicial iniquity that we find in the whole collection. The written instructions he had given to his counsel before the trial were taken away from him, in order to learn the grounds of his defence. North and Jones, the judges before whom he was tried, afforded him no protection. But besides this, even if the witnesses had been credible, it does not appear to me that the facts amounted to treason. Roger North outdoes himself in his justification of the proceedings on this trial. _Examen_, p. 587. What would this man have been in power, when he writes thus in a sort of proscription twenty years after the revolution! But in justice it should be observed that his portraits of North and Jones (_Id._ 512 and 517) are excellent specimens of his inimitable talent for Dutch painting.

[791] _London Gazettes_, 1681, _pa.s.sim_. Ralph, 592, has spoken too strongly of their servility, as if they showed a disposition to give up altogether every right and privilege to the Crown. This may be true in a very few instances, but is by no means their general tenor. They are exactly high tory addresses, and nothing more.

[792] _State Trials_, viii. 447. Chief-Justice Pemberton, by whom he was tried, had strong prejudices against the papists, though well enough disposed to serve the court in some respects.

[793] The king, James says in 1679, was convinced of the falsehood of the plot, "while the seeming necessity of his affairs made this unfortunate prince, for so he may well be termed in this conjuncture, think he could not be safe but by consenting every day to the execution of those he knew in his heart to be most innocent; and as for that notion of letting the law take its course, it was such a piece of casuistry as had been fatal to the king his father," etc.

562. If this was blamable in 1679, how much more in 1681?

Temple relates, that having objected to leaving some priests to the law, as the House of Commons had desired in 1679, Halifax said he would tell every one he was a papist, if he did not concur; and that the plot must be treated as if it were true, whether it was so or not.

P. 339 (folio edit.). A vile maxim indeed! But as Halifax never showed any want of candour or humanity, and voted Lord Stafford not guilty next year, we may doubt whether Temple has represented this quite exactly.

In reference to Lord Stafford, I will here notice that Lord John Russell, in a pa.s.sage deserving very high praise, has shown rather too much candour in censuring his ancestor (p. 140) on account of the support he gave (if in fact he did so, for the evidence seems weak) to the objection raised by the sheriffs, Beth.e.l.l and Cornish, with respect to the mode of Stafford's execution. The king having remitted all the sentence except the beheading, these magistrates thought fit to consult the House of Commons. Hume talks of Russell's seconding this "barbarous scruple," as he calls it, and imputes it to faction.

But, notwithstanding the epithet, it is certain that the only question was between death by the cord and the axe; and if Stafford had been guilty, as Lord Russell was convinced, of a most atrocious treason, he could not deserve to be spared the more ignominious punishment. The truth is, which seems to have escaped both these writers, that if the king could remit a part of the sentence upon a parliamentary impeachment, it might considerably affect the question whether he could not grant a pardon, which the Commons had denied.

[794] See this pet.i.tion, _Somers Tracts_, viii. 144.

[795] _State Trials_, viii. 1039-1340; Ralph, 717. The majority was but 104 to 86; a division honourable to the spirit of citizens.

[796] North's _Examen_, 626.

[797] Lady Russell's opinion was, that "it was no more than what her lord confessed--talk; and it is possible that talk going so far as to consider, if a remedy for supposed evils might be sought, how it could be formed." _Life of Lord Russell_, p. 266. It is not easy, however, to talk long in this manner about the _how_ of treason, without incurring the penalties of it.

[798] See this business well discussed by the acute and indefatigable Ralph, p. 722, and by Lord John Russell, p. 253. See also _State Trials_, ix. 358 _et post_. There appears no cause for doubting the reality of what is called the Ryehouse plot. The case against Walcot (_Id._ 519) was pretty well proved; but his own confession completely hanged him and his friends too. His attainder was reversed after the revolution, but only on account of some technical errors, not essential to the merits of the case.

[799] _State Trials_, ix. 577. Lord Ess.e.x cut his throat in the Tower.

He was a man of the most excellent qualities, but subject to const.i.tutional melancholy which overcame his fort.i.tude; an event the more to be deplored, as there seems to have been no possibility of his being convicted. A suspicion, as is well known, obtained credit with the enemies of the court, that Lord Ess.e.x was murdered; and some evidence was brought forward by the zeal of one Braddon. The late editor of the _State Trials_ seems a little inclined to revive this report, which even Harris (_Life of Charles_, p. 352) does not venture to accredit; and I am surprised to find Lord John Russell observe, "It would be idle, at the present time, to pretend to give any opinion on the subject."--P. 182. This I can by no means admit. We have, on the one side, some testimonies by children, who frequently invent and persist in falsehoods with no conceivable motive. But, on the other hand, we are to suppose, that Charles II. and the Duke of York caused a detestable murder to be perpetrated on one towards whom they had never shown any hostility, and in whose death they had no interest.

Each of these princes had faults enough; but I may venture to say that they were totally incapable of such a crime. One of the presumptive arguments of Braddon, in a pamphlet published long afterwards, is, that the king and his brother were in the Tower on the morning of Lord Ess.e.x's death. If this leads to anything, we are to believe that Charles the Second, like the tyrant in a Grub Street tragedy, came to kill his prisoner with his own hands. Any man of ordinary understanding (which seems not to have been the case with Mr. Braddon) must perceive that the circ.u.mstance tends to repel suspicion rather than the contrary. See the whole of this, including Braddon's pamphlet, in _State Trials_, ix. 1127.

[800] _State Trials_, 615. Sawyer told Lord Russell, when he applied to have his trial put off, that he would not have given the king an hour's notice to save his life. _Id._ 582. Yet he could not pretend that the prisoner had any concern in the a.s.sa.s.sination plot.

[801] The act annulling Lord Russell's attainder recites him to have been "wrongfully convicted by partial and unjust constructions of law." _State Trials_, ix. 695. Several pamphlets were published after the revolution by Sir Robert Atkins and Sir John Hawles against the conduct of the court in this trial, and by Sir Bartholomew Shower in behalf of it. These are in the _State Trials_. But Holt, by laying down the principle of constructive treason in Ashton's case, established for ever the legality of Pemberton's doctrine, and indeed carried it a good deal further.

[802] There seems little doubt, that the juries were packed through a conspiracy of the sheriffs with Burton and Graham, solicitors for the Crown. _State Trials_, ix. 932. These two men ran away at the revolution; but Roger North vindicates their characters, and those who trust in him may think them honest.

[803] _State Trials_, ix. 818.

[804] _Id._ 846. Yet in summing up the evidence, he repeated all West and Keeling had thus said at second-hand, without reminding the jury that it was not legal testimony. _Id._ 899. It would be said by his advocates, if any are left, that these witnesses must have been left out of the question, since there could otherwise have been no dispute about the written paper. But they were undoubtedly intended to prop up Howard's evidence, which had been so much shaken by his previous declaration, that he knew of no conspiracy.

[805] This is pointed out, perhaps for the first time, in an excellent modern law-book, Phillipps's _Law of Evidence_. Yet the act for the reversal of Sidney's attainder declares in the preamble, that "the paper, supposed to be in his handwriting, was not proved by the testimony of any one witness to be written by him, but the jury was directed to believe it by comparing it with other writings of the said Algernon." _State Trials_, 997. This does not appear to have been the case; and though Jefferies is said to have garbled the ma.n.u.script trial before it was printed (for all the trials, at this time, were published by authority, which makes them much better evidence against the judges than for them), yet he can hardly have subst.i.tuted so much testimony without its attracting the notice of Atkins and Hawles, who wrote after the revolution. However, in Hayes's case, _State Trials_, x. 312, though the prisoner's handwriting to a letter was proved in the usual way by persons who had seen him write, yet this letter was also shown to the jury, along with some of his acknowledged writing, for the purpose of their comparison. It is possible, therefore, that the same may have been done on Sidney's trial, though the circ.u.mstance does not appear. Jefferies indeed says, "comparison of hands was allowed for good proof in Sidney's case." _Id._ 313. But I do not believe that the expression was used in that age so precisely as it is at present; and it is well known to lawyers that the rules of evidence on this subject have only been distinctly laid down within the memory of the present generation.

[806] See Harris's _Lives_, v. 347.

[807] _State Trials_, x. 105.

[808] The grand jury of Northamptonshire, in 1683, "present it as very expedient and necessary for securing the peace of this country, that all ill affected persons may give security for the peace;" specifying a number of gentlemen of the first families, as the names of Montagu, Langham, etc., show. _Somers Tracts_, viii. 409.

[809] Ralph, p. 768; Harris's _Lives_, v. 321.

[810] This book of Sherlock, printed in 1684, is the most able treatise on that side. His proposition is that "sovereign princes, or the supreme power in any nation, in whomsoever placed, is in all cases irresistible." He infers from the statute 13 Car. II. declaring it unlawful, under any pretence, to wage war, even defensive against the king, that the supreme power is in him; for he who is unaccountable and irresistible, is supreme. There are some, he owns, who contend that the higher powers mentioned by St. Paul meant the law, and that when princes violate the laws, we may defend their legal authority against their personal usurpations. He answers this very feebly. "No law can come into the notion and definition of supreme and sovereign powers; such a prince is under the direction, but cannot possibly be said to be under the government of the law, because there is no superior power to take cognisance of his breach of it, and a law has no authority to govern where there is no power to punish."--P. 114.

"These men think," he says (p. 126), "that all civil authority is founded in consent, as if there were no natural lord of the world, or all mankind came free and independent into the world. This is a contradiction to what at other times they will grant, that the inst.i.tution of civil power and authority is from G.o.d; and indeed if it be not, I know not how any prince can justify the taking away the life of any man, whatever crime he has been guilty of. For no man has power of his own life, and therefore cannot give this power to another; which proves that the power of capital punishments cannot result from mere consent, but from a superior authority, which is lord of life and death." This is plausibly urged, and is not refuted in a moment. He next comes to an objection, which eventually he was compelled to admit, with some discredit to his consistency and disinterestedness.

"'Is the power of victorious rebels and usurpers from G.o.d? Did Oliver Cromwell receive his power from G.o.d? then it seems it was unlawful to resist him too, or to conspire against him; then all those loyal subjects who refused to submit to him when he had got the power in his hands were rebels and traitors.' To this I answer, that the most prosperous rebel is not the higher powers, while our natural prince, to whom we owe obedience and subjection, is in being. And therefore, though such men may get the power into their hands by G.o.d's permission, yet not by G.o.d's ordinance; and he who resists them does not resist the ordinance of G.o.d, but the usurpations of men. In hereditary kingdoms, the king never dies, but the same minute that the natural person of one king dies, the crown descends upon the next of blood; and therefore, he who rebelleth against the father, and murders him, continues a rebel in the reign of the son, which commences with his father's death. It is otherwise, indeed, where none can pretend a greater t.i.tle to the crown than the usurper, for there possession of power seems to give a right."--P. 127.

Sherlock began to preach in a very different manner as soon as James showed a disposition to set up his own church. "It is no act of loyalty," he told the House of Commons, May 29, 1685, "to accommodate or compliment away our religion and its legal securities." _Good Advice to the Pulpits._

[811] P. 81.

[812] P. 95.

[813] Pp. 98, 100.

[814] P. 100.

[815] This treatise, subjoined to one of greater length, ent.i.tled the "Freeholder's Grand Inquest," was published in 1679; but the "Patriarcha" not till 1685.

[816] P. 39.

[817] P. 46.

[818] Collier, 902; _Somers Tracts_, viii. 420.

[819] Dalrymple, appendix 8; _Life of James_, 691. He pretended to come into a proposal of the Dutch for an alliance with Spain and the empire against the fresh encroachments of France, and to call a parliament for that purpose, but with no sincere intention, as he a.s.sured Barillon. "Je n'ai aucune intention d'a.s.sembler le parlement; ces sont des diables qui veulent ma ruine." Dalrymple, 15.

[820] He took 100,000 livres for allowing the French to seize Luxemberg; after this he offered his arbitration, and on Spain's refusal, laid the fault on her, though already bribed to decide in favour of France. Lord Rochester was a party in all these base transactions. The acquisition of Luxemberg and Strasburg was of the utmost importance to Louis, as they gave him a predominating influence over the four Rhenish electors, through whom he hoped to procure the election of the dauphin as king of the Romans. _Id._ 36.

[821] Dalrymple, appendix 74; Burnet; Mazure, _Hist. de la Revolution de 1688_, i. 340, 372. This is confirmed by, or rather confirms, the very curious notes found in the Duke of Monmouth's pocket-book when he was taken after the battle of Sedgemoor, and published in the appendix to Welwood's _Memoirs_. Though we should rather see more external evidence of their authority than, so far as I know, has been produced, they have great marks of it in themselves; and it is not impossible that, after the revolution, Welwood may have obtained them from the secretary of state's office.

[822] It is mentioned by Mr. Fox, as a tradition in the Duke of Richmond's family, that the d.u.c.h.ess of Portsmouth believed Charles II.

to have been poisoned. This I find confirmed in a letter read on the trial of Francis Francia, indicted for treason in 1715. "The d.u.c.h.ess of Portsmouth, who is at present here, gives a great deal of offence, as I am informed, by pretending to prove that the late King James had poisoned his brother Charles; it was not expected, that after so many years' retirement in France, she should come hither to revive that vulgar report, which at so critical a time cannot be for any good purpose." _State Trials_, xv. 948. It is almost needless to say that the suspicion was wholly unwarrantable.

I have since been informed, on the best authority, that Mr. Fox did not derive his authority from a tradition in the Duke of Richmond's family, that of his own mother, as his editor had very naturally conjectured, but from his father, the first Lord Holland, who, while a young man travelling in France, had become acquainted with the d.u.c.h.ess of Portsmouth.