one of the least among many; that was one reason given, but the true reason is this: If the law were otherwise, there would be great safety in conspiring the death of the king. L. Staff. My lords, I say nothing further as to the rest, but this stuck with me. I am sorry to hear a Judge should say any such thing; and though I am in such a weak and disturbed conIn those instances in which the proof of guilt tary effects. Instead of endeavouring thus to seems to be most complete, the utmost that extenuate and to reconcile to the minds of those can be truly affirmed of it is, that it amounts who sit in judgment upon their fellow-crea to a very high probability: no truth, that de- tures so terrible a calamity as a mistake m pends upon human testimony, can ever be pro- judicature to the injury of the innocent, it perly said to be demonstrated. Human wit-would surely be a wiser part to set before their nesses may utter a falsehood, or may be de- eyes all the consequences of so fatal an error ceived. Even where there have been a num- in their strong but real colours. To represent ber of concurrent and unconnected circum-to them, that of all the evils which can befall a stances, which have appeared inexplicable virtuous man, the very greatest is to be conupon any hypothesis but that of the accused demned and to suffer a public punishment as if being guilty, it has yet sometimes been inade he were guilty. To see all his hopes and exevident that he was innocent. Nay, in some pectations frustrated; all the prospects in instances where men have borne evidence which he is indulging, and the pursuits which against themselves, and have made a spontane- he is following, for the benefit, perhaps, of ous confession of the crimes imputed to them, those who are dearer to him than himself, not only they were not, but they could not be brought to a sudden close; to be torn from the guilty, the crimes confessed being impossible. midst of his family; to witness the affliction With the wisest laws, and the most perfect ad- they suffer; and to anticipate the still deeper ministration of them, the innocent may some-affliction that awaits them: not to have even times be doomed to suffer the fate of the guilty, for it were vain to hope, that from any human institution, all error can be excluded. Yet these are considerations which are calculated very strongly to impress upon courts of justice, not indeed that they should be deterred from the application of their own rules of adjudication,' but that they should use the utmost care and circumspection in the application of those rules; that in a state of things where they are so liable to error, they cannot be too auxious to guard against it, and that if it be a great public evil, as it undoubtedly is, that the guilty should escape, it is a public evil of much greater magnitude, that the innocent should suffer. It should be recollected too, that the object of penal laws, is the protection and security of the innocent; that the punishment of the guilty is resorted to only as the means of attaining that object. When, therefore, the guilty escape, the law has merely failed of its intended effect; it has done no good, indeed, but it has done no harm. But when the innocent become the victims of the law, the law is not merely inefficient, it does not merely fail of accomplishing its intended object, it injures the persons it was meant to protect, it creates the very evil it was to cure, and destroys the security it was made to preserve. "They ought rather,' continues Paley, 'to reflect, that he who falls by a mistaken sentence, may be considered as falling for his 'country, whilst he suffers under the operation of those rules, by the general effect and ten'dency of which the welfare of the community is 'maintained and upheld.' Nothing is more easy than thus to philosophize and act the patriot for others, and to arm ourselves with topics of consolation, and reasons for enduring with fortitude the evils to which, not ourselves, but others are exposed. I doubt, however, very much, whether this is attended with any salu the sad consolation of being pitied; to see himself branded with public ignominy; to leave a name which will excite only horror or disgust; to think that the children he leaves behind bim, must, when they recal their father's memory, hang down their heads with shame; to know that even if at some distant time it should chance that the truth should be made evident, and that justice should be done to his name, still that his blood will have been shed uselessly for mankind, that his melancholy story will serve wherever it is told, only to excite alarm in the bosoms of the best members of society, and to encourage the speculations for evading the law, in which wicked men may indulge. "Let us represent to ourselves the judges who condemned Calas to die, apologizing for their conduct with the reasoning of Paley. Admitting that it was a great misfortune to the individual, but insisting that it was none to the public, and that even to the individual the misfortune was greatly alleviated by the reflection, that his example would tend to deter parents in future from embruing their hands in the blood of their children, and that in his instance the sufferings of the innocent would prevent the crimes of those who had a propensity to guilt. With what horror and disgust would not every well formed mind shrink from such a defence! "When we are weighing the evil of the pu nishment of one innocent man against that of the impunity of ten who are guilty, we ought to reflect, that the suffering of the innocent is generally attended in the particular instance with the escape of the guilty. Instances have, indeed, occurred like that which I have already mentioned of Calas, where a man has been offered up as a sacrifice to the laws, though the laws had never been violated: where the tribunals have committed the double mistake of supposing a crime where none had been committed, and of finding a criminal where none lition, I assure your lordships my blood rises t it. L. H. S. Is it your lordships pleasure that ve should adjourn? Lords. Ay, ay. Mr. Speaker resumed the chair. A Message was sent from the Lords by sir Timothy Baldwyn and sir Samuel Clarke. Mr. Speaker. The Lords have sent us to acquaint this House, that they have ordered Wil L. H. S. Then this House is adjourned into fiam viscount Stafford to be brought again to be Parliament-chamber. [The Lords withdrew in their order, and the cominittee of Commons went back to their louse.]* could exist. These, however, are very gross, and therefore very rare examples of judicial error. In most cases the crime is ascertained, and to discover the author of it is all that remaias for investigation; and in every such case, if there follow au erroneous conviction, a twofold evil must be incurred, the escape of the guilty, as well as the suffering of the innocent, Perhaps amidst the crowd of those who are gazing upon the supposed criminal, when he is led out to execution, may be lurking the real murderer, who, while he contemplates the fate of the wretch before him, reflects with scorn upon the imbecility of the law, and becomes more hardened, and derives more confidence in the dangerous career upon which he has entered." Observations on the Criminal Law of England, &c. by sir Samuel Romilly, Note D. I will insert the following passage from Mrs. Macaulay respecting this trial, because it farnishes a lively specimen of the flippancy and other qualities which characterise her work, and because it is in some respects superior to the matter which ordinarily flows from her pen. "Humanity was again disgraced by the clamours and outrage of the people during the trial of this unfortunate nobleman: he was more than once thrown into confusion on the occasion; yet, on the fifth day, notwithstanding the fatigues and mortifications he had undergone, he so far recovered himself as to sum up the whole case, as to fact and argument, in a manner calculated even to soften the obdurate temper of party, and to bring conviction to every mind not strongly tinctured with prejudice. After pleading his age, his want of endowments, his exhausted spirits and strength in his long trial, in consideration of which he hoped their lordships, who were both his judges and counsel, would pardon the many defects which he must needs commit; he recapitulated the whole evidence, as well, he said, as his weak memory and discomposed condition would perinit; he reminded the lords of the several instances wherein he had proved the witnesses forsworn; he recounted the various contradictions; he made observations on the moral impossibilities, and absurdities, as to divers parts of their evidence; and inferred from thence, that those who will forswear themselves in one thing, are not to be credited in any. He insisted on the infamy of the witnesses, and the wickedness of their lives; he inculcated their former beggary, compared to the encou the bar in Westminster-hall, on Monday-morning next at ten of the clock. After which, the House of Commons adjourned to eight of the clock on Monday morning. ragement, caresses, applause, and allurements of gain, which they had found in their new employment: he alleged their subornation to make good their forgeries, and their bare oaths, without any corroborating circumstance, but what depended on the same oaths: he represented, that during a course of forty years he had, through many difficulties and losses, still maintained his loyalty; and was it credible that now, in his old age, easy in his circumstances, but dispirited by infirmities, he should belie the past tenor of his life, and engage, in hazardous undertakings against his royal master, from whom he had never received other than kind treatment. Having thus summed up his defence, the prisoner proceeded to propose certain points, or doubts, in law, which occurred in his case, concerning the manner of the impeachment, and the continuance of it from parliament to parliament. Whether the indictment contained an overt-act necessary to a conviction of treason? Whether men, who mitted as witnesses? Whether the Plot was as swear for money ought to be credited or adyet legally proved? And whether, there being but one particular witness to any one particular point, such an evidence be sufficient in law? "The unequal contest in which the prisoner was engaged, the unexpected manner in which he had acquitted himself, his great age, his long confinement, and the present harrassed state of his mind, were circumstances of commiseration which held in suspence the resentments of party, the incentives of policy, and the zeal of bigotry, and for a while softened: the whole assembly into a generous sympathy, when sir William Jones resumed the evidence against the prisoner with such force, art, and address, that all the baneful passions were again inflamed, and a violent indignation succeeded the momentary tenderness. It is an avowed truth, that the consciences of lawyers are governed by rules peculiar to themselves, and entirely opposite to the ideas which prevail with bonest men of other professions; a circumstance which, though of a very important nature, has little weight with courts of judicature; every judgment is directed by the bench or the bar, and the triumph gained by sir William Jones is a striking instance amongst a variety. of others, which disgrace our annals, that trials at law are often mere mockery of justice; and that the depriving an individual, pleading for his life, of the advantage of having the last word with the court, is in reality, the depriving THE SIXTH DAY. Monday, December 6th, 1680. About the hour of eleven in the morning, the Lords being adjourned into Westminsterball, going thither in their former order into the court there erected; and Mr. Speaker having left the chair, the coinmittee of Commons were seated as before. L. H.S. Read my lord Stafford's Petition. To the Right Hon. the Lords in Parliament a sembled, the humble Petition of William viscount Stafford. "Humbly showing unto your lordships; The he hath some things to offer unto your lordship in order to clear himself, which he hopeth i do. Your petitioner doth therefore, with all le The court being sat, proclamation for simility, most humbly beseech your lordships to lence was made, and the lieutenant commanded to bring his prisoner to the bar; which being done, the Lord High-Steward began. give him leave to offer some things unto your House, the scruple of the sheriffs: however, as the peers had pronounced it superfluous, the Commons acquiesced and returned an answer, That they were content that the sheriffs should execute William late viscount Stafford, by s vering his head from his body. him of every advantage naturally attendant on of exercising this small act of lenity; and lord that much boasted part of the English consti- Russel, a man eminent for his virtue and hetution, the trial by juries and peers. manity, actuated by the same zeal for presen "On the following point of law, whethering popular privileges, seconded, in the lower two witnesses were required to every overt act, the Lords called upon the Judges for their opinion, and the whole Bench, led by the Lord Chief Justice North, gave it against the prisoner, and declared, that if there be several overt-acts, which are evidences of the same treason, though proved by different witnesses, it is sufficient to maintain an indictment or impeachment. Whether the judges, in giving this opinion, were actuated by motives very imprudently acknowledged by baron Atkins, in the course of the trial, viz. that the evidence of one witness to one overt-act, ought to be deemed sufficient in the prisoner's case, because if it was not, it would prove that those persons who had already suffered, had suffered illegally; or whether, with greater probability, they were desirous of making the crown more formidable, by adding to the great advantages which it already had in trials of treason, certain it is, that the Lords, in giving way to this decision, destroyed all the useful and benign purposes of the act of the 25th of Edward 3d, and subjected the life and property of every imprudent man to the vengeance of the court. All the other objections were over-ruled by the Lords, and on the seventh day from the commencement of the trial, the Commons attended in their places, the court, by a majority of twenty-four voices, gave sentence against the prisoner, who received the fatal verdict with becoming resignation-" God's holy name be praised!" was the only exclamation he uttered; but when he was told by the High Steward, that the peers would intercede with the king for remitting the more cruel, and what is termed the most ignominious parts of his sentence, hanging and quartering, nature for one moment prevailed, and a burst of tears shewed the lively sense he had of the injustice of the sentence: however, be excused the weakness, by politely saying, that he was moved by their lordships goodness, not by any terror of that fate which he was to suffer. "Undoubtedly, more from a jealousy of the exertion of the prerogative, than from any personal rancour, the sheriffs Bethel and Cornish, who were suspected of entertaining Republican principles ered a doubt of the king's power "As Stafford had been treated with great neglect by the Court, had often been in oppo sition, and was formerly connected with lord Shaftesbury in schemes for the dissolution of the first parliament, it might be supposed that on these reasons he would bave found mere favour with the Commons than any [other] of the Five Lords who had been accused of the conspiracy, and that he would have been at least the last victim; but the party, confiding in that pusillanimity which commonly attends old age and mean parts, expected that the hopes of a pardon would produce some discoveries which would ascertain, beyond a doubt, the reality of the Plot, and more particularly affect the duke of York. And Stafford, having let fall, that he had somewhat to cominunicate which might support the Exclusion Bill, provided it would be the means of saving his life, he was called before the House of Peers, where he discovered many scheines which had been laid by himself and others, for procuring a toleration to the Papists; but on his naming the earl of Shaftesbury among those who were con cerned in these schemes, he was in a great hurry ordered to withdraw; a period was put to the examination, and Stafford now prepared himself for death with an intrepidity which even innocence and integrity, unassisted by a natu ral firmness of mind, or an especial support from divine mercy, cannot always command. When going to execution, he called for a cloak to defend him from the rigour of the season, and said, "Perhaps I may shake with cold, but I trust in God, not with fear." Of all those thousands of people which a savage curiosity had brought together on this awful occasion, not a face appeared more serene or chearful than was the countenance of the prisoner; who, when mounted on the scaf fold, continued with reiterated asseverations to make protestations of his innocence: be solemnly disavowed all those immoral pria L. H. S. My lord Stafford, my lords have een willing, upon your petition, to come and eur what that is that your lordship hath to offer: And they would know whether it be a matter of ace, or matter of law. For your lordships nust know, that as to witnesses the process is closed. L. Staff. I do not pretend any more witnesses, my lords. L. H. S. Then, my lord, what is it that you would say? L. Stuff My lords I did yesterday receive an order from your lordships; and upon that and some other things that I have to trouble at the same time that he declared to his intimates, that he did not believe one word of the Plot, or that any conspiracy of any kind' had been formed against him. iples which, on the authority of the practice of the Church of Rome, at different times have, without distinction, been ascribed to the whole body of the Papists; he mentioned the witesses with a becoming charity: "And he "If the execution of Stafford gratified the hoped," he said, "that the time was now ap- resentment of the exclusionists, it tended very proaching, that truth would be brought to much to weaken their authority with the peolight; and that the world would be acquainted ple: as there is nothing more variable than the with his innocence, and what injury he had sentiments of the multitude, so there are not sustained." That fury and rage of the popu- extremes so opposite that they will not, in their lace which had appeared at Stafford's trial and turns, embrace. Their natural passions, uncondemnation, was now melted into tender- tamed by cultivation, are easily roused to the ness and fruitless tears: they assented to these highest point of frenzy; and the transition protestations, which he frequently repeated, of from the extreme of hatred to the extreme of his innocence, by respectful bows and expres- sympathy, is often as sudden as the effects are sions which manifested their belief and their violent. The leaders of the popular party, not compassion: "We believe you, my lord; God aware of this circumstance, had surfeited, by bless you, my lord." The Executioner also, their too frequent executions, the eager appeaffected with the general sympathy, three times tite of the people, whose belief is always more lifted up the axe before he could execute the founded on humour than rational conviction." fatal office; and a deep sigh accompanied the After the first executions, every blood-letting, stroke which put a final end to the cares and according to Burnet, lowered the heat of the the sufferings of the prisoner. The multitude, nation into a mortal coldness; and the affectstruck with pity and remorse, beheld, in mourning scene of Stafford's sufferings, by exciting a ful silence, the bleeding head exposed at the four corners of the scaffold, with the usual warning cry of," This is the head of a traitor." And thus by a sudden revolution in the minds of the populace; the fate of this once hated popish conspirator, was more solemnly lamented than that of any one of the Protestant or Patriot martyrs, who had suffered from the first period of the monarchy to the present times. general commiseration, turned so strongly the' tide of prejudice, that the prelatical party, who now made no scruple to avow, that they thought the church was in less danger from the Papists than from the Presbyterians, on account of the greater popularity of the latter, were successful in the circulating the opinion, that there never had been any plot or conspiracy among the Papists; that the whole was "It is worthy observation, that in the division the forgery of the Presbyterians; and that it of the peers, four of lord Stafford's own family, was done with the design of ruining the church viz. the earls of Carlisle, Berkshire, and Suf- and monarchy. The venal pen of sir Roger folk, and the lord Howard of Escrick, con- l'Estrange was employed to prove that moral demned bin, whilst he was absolved by the impossibility of sir Edmundbury Godfrey's havlords Lucas and Holles, who were eminent for ing been his own murderer, and some of the their zeal against popery; that the ministry most virulent of the party made no scruple to were equally divided on this point, as on the lay it to the charge of those who were the Bill of Exclusion; that the king's great favo-warmest prosecutors of the Plot, which, it must rite and confident, the duke of Lauderdale, was on the rigorous side of the question, with the Lord Privy-Seal, Anglesca; the Lord President, Radnor; and the Lord High Steward, Nottingham; who, moreover, declared bis faith in the Plot in the strongest terms; that the duchess of Portsmouth, in the rage of her dis appointment, on the ill success of the Exclusion Bill, attended the trial, dealing sweet-meats and smiles among his prosecutors; and that the king, who had refused to withdraw bis countenance from that odious minister, Lauderdale, on the repeated instances of his Scotch subjects, and the repeated addresses of the English parliament, should, without a struggle, or any seeming reluctance, deliver up a faithful subject to the mistakep prejudices of a party, VOL. VII. be acknowledged, was carried on by such violent and unjust proceedings, as can admit of no excuse or palliation, and which served as examples to take away as many innocent lives, among the Protestants, as had suffered among the Papists." "Tu about his shaking, is reported to have occurred 66 The reason assigned for the opinion in fayour of the sufficiency of one witness to one overt-act, and another to another overt-act of the same species of treason, viz. “otherwise 5 F your lordships with, I did petition for this fa- 'make a precedent: Whether you will or no, vour which I humbly thank your lordships for that I must submit to your lordships; but the granting. If I be impertinent, I shall beg your there is none yet. The next thing is, my lords, lordships pardon, and I hope you will be pleas-this, Whether an Impeachment be to be pro ed to consider my weakness at all times, especially in this condition I am now in ; but I hope by your lordships favour to be in a happier one quickly. For the matters of proof, I shall offer not a tittle; but, my lords, this Order which I received does say, That the Lords assembled in parliament-have ordered, that my counsel shall not be heard touching the Continuance of Impeachments from Parliament to Parliament: But I hope, my lords, you will please, without offence, to let me offer to your lordships my own conceptions about it; which I shall do as briefly as I can. secuted in parliament without an Indictme This, my lords, I humbly hope your lordships are resolved it ought not. For I see not hos truly, my lords, it can be; by the little read ing which I have had in the law, I never found any man prosecuted in a legal way, but by an indictment. I may be mistaken, and I beg you lordships pardon for troubling you with my mis takes; but I never read of any that were prosecuted upon an Impeachment? so then, the legal usual word being Indictment, I hope your lordships will not alter the form; for I hope you will keep that great maxim of your noble ancestors, Nolumus Leges Anglia mutare': And whether this be a change of the law or no, submit it to your lordships. My lords, I do not conceive by this Order, that your lordships say it does or does not continue; you have given no judgment, as II know of, in it; when you have, I shall acquiesce: But I hope your lordships will resolve that it does not. And, my lords, my reasons for it are two: The first is, because one of the managers for the House of Commons, as I take it, Sir W. Jones, said these words, and your lordships may remember them, That if there were no such precedent, your lordships would no government could be safe if traitors had but craft equal to their villainy," (see Fost. 237) does not seem to be satisfactory. Considerations of that kind are indeed intitled to very great influence in regulating the proceedings of legislators as to what laws should be enacted, but they are wholly impertinent to the construction of laws which have been already enacted. This construction of the stat. 1 E. 6. c. 12. and 5 and 6 Ed. 6. c. 11, appears not to have been established till this case of lord Stafford. (See Foster, 236, 237). Nevertheless, it seems to be the legitimate and fair construction of those statutes, and in no respect to impugn that most wholesome rule which is stated by lord Bacon. (Maxims, Regula 12). Penal Statutes shall not be construed by equity.' As to the king's power of altering the execution of a sentence, lord Bacon says, "In treason it hath been an ancient use and favour from the kings of this realm to pardon the execution of hanging, drawing, and quartering, and to make warrant for their beheading." Preparation toward the Union of the Laws of England and Scotland, vol. 3, of his works, p. 498, 4to ed. of 1778. A third thing is this; Your lordships'do not think fit that my counsel shall plead to that point, Whether words do amount to an ovenact; for hearing my counsel to that likewisel do not pretend: But I hope your lordships will give me leave to say this, I never heard that words did amount to an overt-act: if your lordships judge otherwise, I submit; but til then, I hope it shall not conclude me. There are some other points which I did offet to your lordships, and I humbly beseech you to know, whether my counsel shall be heard to them. It is true, one of them, which was, Whe ther two witnesses in several places did amount to a legal testimony or no, your lordships did nat declare one way or another: If you say youse quiesce in the opinion of the judges, I must submit; but till judgment is given, I beseech your lordships to give me leave to tell you my weak thought about it. I did not bear what the Judges said all of them, but as I apprehend, they were all of one opinion; It is true, one of them that spoke last, I think it was judge At kins, did say it did amount to a legal testimony because else those juries that have found some guilty upon the same short evidence should be perjured; but if this were not so, then upas the sanie grounds, under your lordships favour those juries that acquitted some upon such testimony were perjured: Bot I must believe it to be otherwise till your lordships have declared it as your opinion; for that reason will not hold; for the same reason will be for the perjuring the one, as for the perjuring the other. And the same juries, for the most part, tried those that were found guilty, and those that were acquitted. L. H. S. Is this all your lordship will please to say? "In felony, the corporal punishment is by hanging, and it is doubtful whether the king may turn it into beheading in the case of a peer or other person of dignity, because in treason L. Staff. No, my lords, if you would give me the striking off the head is part of the judg-leave, I would trouble you a little farther; if ment, and so the king pardoneth the rest; but it were an offence I would not say a word. My in felony, it is no part of the judgment, and the lords, I do conceive I am not concerned in the king cannot alter the execution of law, yet pre- general Plot of the papists; for I am not proved cedents have been both ways." Preparation to be so, and whatsoever I may be in myself, as towards the Union of the Laws of England and I conceive, or whatsoever there is of hearsay, I d. vol. 3, of his works, p. 501. hope your lordships will not go upon that, but |