less assertors of the rights of men were then on the point of entirely erasing as relics of feudality and barbarism.' A spirit of independence in the judges, and a due sense of the dignity of their office, seem, on all occasions, to have received encouragement and support from Cromwell. When Whitelocke, the Commissioner of the Great Seal of the Commonwealth, made his public address to the new judges, he urged them 'to think highly of their character, and to fear no man; to be tender of that honour with which they are intrusted -the nation's honour- the honour of the law.'* The learning of the Commonwealth judges, and their merits with regard to the administration of justice, were admitted even by their successors after the Restoration; as an instance of which we find, that when one of their judgments was cited in argument in the reign of Charles II, an objection on the ground of the character of the judges at the period was anticipated by the statement, that 'it was well known that, excepting their criminal proceedings in those times, the law flourished, and the judges were men of learning, as Mr Justice Twisden hath often affirmed upon the bench.'† In general, however, and considering that we probably owe to them the abolition of torture, and the first introduction of sound principles of evidence, it must be confessed that the merits of the Commonwealth judges have hitherto been imperfectly appreciated. 6 During the reign of Charles II, wicked, sanguinary, and turbulent,' as it is justly termed by Sir W. Blackstone, the tide of improvement appeared again to recede. Of all the tragedies that have ever been performed in Westminster Hall, that of the Popish Plot was by far the most extraordinary and *Memorials, pp. 392, 393. disgraceful. The Proceedings on the Popish Plot,' says Mr Fox,* * must always be considered as an indelible disgrace upon the English nation, in which king, parliament, judges, juries, witnesses, prosecutors, have all their respective, though certainly not equal, shares. Witnesses of such a character as not to deserve credit in the most trifling cause, upon the most immaterial facts, gave evidence so incredible, or, to speak more properly, so impossible to be true, that it ought not to have been believed if it had come from the mouth of Cato; and upon such evidence, from such witnesses, were innocent men condemned to death and executed. Prosecutors, whether attorneys and solicitors-general, or managers of impeachments, acted with the fury which in such circumstances might be expected; juries partook naturally enough of the national ferment; and judges, whose duty it was to guard them against such impressions, were scandalously active in confirming them in their prejudices, and inflaming their passions.' Whether we impute the origin of this strange transaction to an extraordinary degree of blind credulity, or to the wicked contrivance of a party, or to a mixture of both these causes, the effects which it produced were the same; for, as the measures of Charles I had done before the Commonwealth, the proceedings in the Popish Plot prepared the way for the irruption of arbitrary power by degrading the administration of justice in the eyes of the people; and thus promoted the designs of a dissolute prince, who, influenced by evil counsellors, and aided by corrupt and unprincipled judges, afterwards broke down most of the guards and fences which had been previously provided for the security of the subject. Perhaps the most singular feature in the history of this plot, was that the people themselves were actually stimulated by the fever of alarm respecting Popery to an attack against their own liberties, and were blindly hurrying to a more hopeless slavery, a more complete prostration to the power of the Crown, than had been known at any previous period. But, even in those evil days of extravagant injustice and popular frenzy, the seed which had been sown by Cromwell was never entirely lost; for then, even under the worst government, and the worst judges, the administration of the criminal law (bad as it was) was better than it had ever been before the Commonwealth h; while the experience of the insufficiency of the laws, as they previously stood, to stop the violent career of bad princes, led directly to the passing of various important laws upon the Revolution in 1688. Such were the Bill of Rights, the Toleration Act, the Bill of Settlement, with its conditions, and some others, 'which,' in the language of Blackstone, 'have asserted our liberties in more clear and emphatical terms; have regulated the succession of the Crown by Parliament, as the exigencies of religious and civil freedom required; have confirmed and exemplified the doctrine of resistance, when the executive magistrate endeavours to subvert the constitution; have maintained the superiority of the laws above the king, by pronouncing his dispensing power to be illegal ; have restrained the king's pardon from obstructing parliamentary impeachments; have regulated trials for high treason; and have made the judges completely independent of the king, his ministers, and his We cannot forbear to make one remark, which forcibly presents itself to the mind on perusing the State Trials, and comparing the earlier proceedings with those of the present day - we allude to the - * Blackstone's Com., vol. iv, p. 357. striking improvement which has taken place in the dignity and decorum of our courts, produced by the sense of propriety and responsibility which, in general, actuates all connected with them, whether judges, counsel, jurors, witnesses, or parties. This great improvement, which must be obvious to every one who has witnessed a modern trial and read a trial of the reign of Elizabeth, is not the result of any interference of the legislature, or of any express regulations of the courts. There is no positive law which forbids a judge at the present day, by vulgar abuse and clamour, to beat down the defence of an innocent man, as the infamous Jefferies did; there is no statute which prohibits the crown from placing upon the bench men of bad character, like Jefferies, who have been notoriously blemishes at the bar;* nevertheless we feel no apprehension that the Crown will, in this respect, abuse the authority with which the constitution has invested it, or that judges will disgrace themselves by following so base an example. The fact is, that the general increase of knowledge in England since the Reformation has gradually formed a tribunal in the power of public opinion, which was utterly unknown to our ancestors, but to which all men in eminent stations amongst us must now consider themselves as amenable. By this power of opinion, fashioned, and educated as it has been by our national experience, and enlightened and expanded by the general cultivation of good sense, and habits of correct thinking, the conduct of public men is far more effectually controlled and directed than by any positive laws which could be devised. It is to this power that * These words are used by Algernon Sidney respecting Jefferies, in the paper delivered by him to the sheriff at his execution; see 9 How. State Trials, 916. They are afterwards remarked upon by Jefferies on the trial of Hampden; ibid, 1058. we owe the comparative purity and dignity of our judicial procedure; and it is to this that we must look for the gradual introduction of those further improvements in our civil and political institutions, by which the security of our freedom and the efficiency of our laws may be confirmed, and this country rendered practically, what Milton somewhere describes a free state to be in theory, the mansionhouse of liberty, encompassed and surrounded by the protection of the law." 6 It is proposed by the present series to extend more widely amongst general readers the advantage and entertainment which may be derived from the perusal of criminal trials, by selecting from the State Trials, and other sources, those which possess the greatest interest, and may be useful in illustrating, in a popular manner, either English history generally, or the history of our jurisprudence. It is not intended to confine the selection to what are in strictness called State Trials, but to take indiscriminately, and without reference to their connexion with political transactions, such as may be subservient to the general object of usefulness and entertainment. With respect to the early trials, it must be admitted that it is extremely difficult to render them generally interesting. The absence of the oral examination of witnesses is one cause of the failure of interest; besides which, the reader is perplexed and bewildered by the irregularity of the procedure, and its total difference from that with which he is familiar in our modern Courts of Justice. If, therefore, entertainment had been the only object contemplated, it would have been improper to commence this series at an earlier point of time than the Restoration but as it is intended to illustrate particular portions and pe |