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CHAPTER this period, would be to enumerate every arrest,
every trial, every sentence, that took place in questions between the crown and the subjects.
Of the Rye-house plot it may be said, much more truly than of the Popish, that there was in it some truth, mixed with much falsehood; and though many
of the circumstances in Kealing's account are nearly as absurd and ridiculous as those in Oates's, it seems probable that there was among some of those accused, a notion of assassinating the King ; but whether this notion was ever ripened into what may be called a design, and, much more, whether it were ever evinced by such an overt act, as the law requires for conviction, is very doubtful. In regard to the conspirators of higher ranks, from whom all suspicion of participation in the intended assassination has been long since done away, there is unquestionably reason to believe that they had often met and consulted, as well for the purpose of ascertaining the means they actually possessed as for that of devising others, for delivering their country from the dreadful servitude into which it had fallen ; and thus far their conduct appears clearly to have been laudable. If they went further, and did any thing which could be fairly construed into an actual conspiracy, to levy war
against the King, they acted, considering the dispo- CHAPTER sition of the nation at that period, very indiscreetly. But whether their proceedings had ever gone this length, is far from certain. Monmouth's communications with the King, when we reflect upon all the circumstances of those communications, deserve not the smallest attention ; nor indeed, if they did, does the letter which he afterwards withdrew, prove any thing upon this point. And it is an outrage to common sense to call Lord Grey's narrative, written, as he himself states in his letter to James the Second, while the question of his pardon was pending, an authentick account. That which is most certain in this affair is, that they had committed no overt act, indicating the imagining of the King's death, even according to the most strained construction of the statute of Edward the Third ; much less was any such act legally proved against them. And the conspiring to levy war was not treason, except by a Execution of recent statute of Charles the Second, the prosecutions upon which were expressly limited to a certain time, which in these cases had elapsed ; so that it is impossible not to assent to the opinion of those who have ever stigmatized the condemnation and execution of Russel as a most flagrant violation of law and justice.
The proceedings in Sidney's case were still more detestable. The production of papers, containing speculative opinions upon government and liberty, written long before, and perhaps never even intended to be published, together with the use made of those papers, in considering them as a substitute for the second witness to the overt act, exhibited such a compound of wickedness and nonsense as is hardly to be paralleled in the history of juridical tyranny. But the validity of pretences was little attended to, at that time, in the case of a person whom the court had devoted to destruction, and upon evidence such as has been stated, was this great and excellent man condemned to die. Pardon was not to be expected. Mr. Hume says, that such an interference on the part of the King, though it might have been an act of heroick generosity, 'could not be regarded as an indispensable duty. He might have said, with more propriety, that it was idle to expect that the government, after having incurred so much guilt in order to obtain the sentence, should, by remitting it, relinquish the object, just when it was within its grasp. The same historian considers the jury as highly blameable, and so do I; but what was their guilt, in comparison of that of the court who tried, and of the government who prosecuted, in this
infamous cause ? Yet the jury, being the only party Chapter that can with any colour be stated as acting independently of the government, is the only one mentioned by him as blameable. The prosecutor is wholly omitted in his censure, and so is the court ; this last, not from any tenderness for the judge, (who, to do this author justice, is no favourite with him,) but lest the odious connection between that branch of the judicature and the government should strike the reader too forcibly; for Jefferies, in this instance, ought to be regarded as the mere tool and instrument, (a fit one, no doubt,) of the prince who had appointed him for the purpose of this and similar services. Lastly, the King is gravely introduced on the question of pardon, as if he had had no prior concern in the cause, and were now to decide upon the propriety of extending mercy to a criminal condemned by a court of judicature ; nor are we once reminded what that judicature was, by whom appointed, by whom influenced, by whom called upon, to receive that detestable evidence, the very recollection of which, even at this distance of time, fires every honest heart with indignation. As well might we palliate the murders of Tiberius, who seldom put to death his victims without a previous decree of his senate. The moral of all this seems to be, that
whenever a prince can, by intimidation, corruption, illegal evidence, or other such means, obtain a verdict against a subject whom he dislikes, he may cause him to be executed without any breach of indispensable duty; nay, that it is an act of heroick generosity, if he spares him. I never reflect on Mr. Hume's statement of this matter but with the deepest regret. Widely as I differ from him upon many other occasions, this appears to me to be the most reprehensible passage of his whole work. A spirit of adulation towards deceased princes, though in a good measure free from the imputation of interested meanness, which is justly attached to flattery, when applied to living monarchs ; yet, as it is less intelligible, with respect to its motives, than the other, so is it in its consequences, still more pernicious to the general interests of mankind. Fear of censure from contemporaries will seldom have much effect upon men in situations of unlimited authority: they will too often flatter themselves, that the same power which enables them to commit the crime, will secure them from reproach. The dread of posthumous infamy, therefore, being the only restraint, their consciences excepted, upon the passions of such persons, it is lamentable that this last defence, (feeble enough at best,) should in any degree be