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read Lord Campbell's Lives, the State Trials, and such important legal works as Stephen's History of the Criminal Law, can ever regard the past with feelings other than those of profound disgust.
Let us consider what was the position of a man charged with an offence in the time of the last two Stuart kings—the end of the seventeenth century.
This period is chosen, not because it was exceptionally bad, but because it is more generally interesting, although the days of the Tudors would reveal details as cruel and as unjust, when the brutality of Sir Edward Coke, and other servants of the Crown, equalled that of Scroggs and Jeffreys.
Legal procedure was very different then to what it is now, and its terrible intrinsic unfairness can be understood when one reflects that the proceedings in a criminal court were initiated and conducted on the supposition that the prisoner was guilty of the offence charged against him : that in cases of treason and felony, which then practically included all serious offences, the prisoner was not allowed to have counsel to represent him, except by leave of the Court-seldom given-and then only to argue points of Law.
It was a long time before counsel were permitted to crossexamine, and it was not until 1837 that they could address the jury in defence. To one acquainted with the technicalities of our criminal courts, the procedure adopted, e.g. in the seventeenth century, of arraying against a man on trial for his life, a number of eminent counsel, all of whom addressed the jury, and then refusing the prisoner-generally ignorant of law—the privilege of legal assistance, seems shameful in the highest degree. Better by far it should be as now, and that the prisoner should be given every latitude and every chance of cscaping punishment.
Again, the scale on which punishments were awarded was terrible ; high treason, petty treason, piracy, murder, arson,
burglary, housebreaking and putting in fear, highway robbery, horse stealing, stealing from the person above the value of a shilling, and two other offences, were punishable with death, whether the offender could read or not. If he could not read, and was therefore unable to claim benefit of clergy, all felonies and every kind of theft above the value of a shilling, and all robbery were capital crimes. Flogging was a most popular punishment, especially in cases of misdemeanour, and such tortures as cutting off the car, slitting the nose, burning in the hand, were freely dispensed by judges. Burning to death was the regular punishment for women found guilty of treason. But enough has been said on this subject to show how materially in this respect the "good old days " differed from our decadent age.
And now, limiting our observations to the specified period, let us turn to the most interesting cases which were tried during those reigns, which have been termed "perhaps the most critical part of the History of England,” and we cannot do better than commence with a trial, which is not only a monument of injustice, but one of constitutional import.
The Regicides, i.e. those who were concerned in the execution of Charles I. and were excepted from the act of indemnity, were arraigned at the Old Bailey on the roth of October and following days, A.D. 1660, for high treason.
The unfairness meted out to them subsequently was foreshadowed by the consultation between the prosecuting counsel and the judges commissioned to try the case, to resolve many points, “preparatory to the trials of the murderers of the late king."
One of the points determined at this extraordinary meeting was, “that it was better to try these traitors” at the Sessions at Newgate-an admirable instance of prejudging
The charge of Lord Chief Baron Sir Orlando Bridgman to the Grand Jury contained such passages as, “I have done in this particular, to let you see that the
Supreme power being in the King, the King is immediately under God, owing his power to none but God," and was a high testimony to the truth of the doctrine of “Divine Right.” The grand jury found Billa vera, and on the ioth of October, Sir Hardress Waller, Colonel Thomas Harrison, and Mr. William Heaveningham were brought to the Bar, and charged that each of them with others “not having the fear of God before his eyes and being instigated by the Devil, did maliciously, treasonably, and feloniously, contrary to his due allegiance and bounden duty, sit upon and condemn our late sovereign lord, King Charles the first of ever-blessed memory, and also did upon the thirtieth of January, 1648, sign and seal a warrant for the execution of his late sacred and serene Majesty of blessed memory,” etc.
Sir Hardress Waller pleaded guilty, but the others put themselves on their country, and, having severed their challenges, were tried separately. Colonel Harrison, with whom it is proposed alone to deal, was tried first. In opening the case, Sir Hencage Finch, the Solicitor-General, spoke in blasphemous terms of Charles I., and prefaced volleys of abuse and irreligious bombast by the announcement, “We bring before Your Lordships into judgment this day the murderers of the late King.”
Even the spectators seemed to think the proceedings extraordinary, for when one of the Counsel for the Crown stated that the prisoner's guilt was clearly proved, they hummed, and called forth a rebuke from the Lord Chief Baron.
“Gentlemen, this humming is not becoming the dignity of the Court. It is more fitting for a stage play than for a Court of Justice.”
Subsequently the prisoner applied to be allowed to employ Counsel to argue a difficult point of law involved ; but the Court refused it, the Recorder saying, “This gentleman hath forgot their barbarousness; they would not hear the King !”
Harrison's defence seems to have been one of much merit; but it was impossible for him, a layman, to argue the very difficult points of law in his case, and, furthermore, even had he been allowed counsel, it is hardly likely that Sir Orlando and his brethren would have lent an impartial ear to his arguments.
North says of the presiding judge, “He laboured very earnestly to please everybody ;” but for “everybody” more justly should be written “the King." His co-operation in the butcheries that followed the Restoration is of itself sufficient to stamp him with infamy.
Another scandalous trial occurred in 1662, when a man named Tonge and five others were indicted at the Old Bailey for high treason. The evidence was far from being conclusive against them; but, whether that is so or not, the summing up of the presiding Judge, Sir Robert Foster, is as fine a specimen of judicial subserviency as could well be obtained.
"My Masters of the Jury: I cannot speak loud to you, you understand the nature of this business, such as I think you have not had the like precedent in your time. My speech will not give me leave to discourse of it, for the witnesses, they are none but such as honest men : it is clear they all agreed to subvert the government, to destroy his majesty. What can you have more! Two of the witnesses are without exception, but I do not see any way but their testimony is good. For the parties, they in themselves are very inconsiderable; these are but the outboughs, and if such fellows are not met withal, these kind of people are the fittest instruments to set up a Jack Straw or a Wat Tyler. Therefore you must lop off these, or else they will encourage others. You see, one of their own company hath confessed the fact, out of remorse at his own conscience. But I leave the evidence to you. Go together.”
Such a speech needs no comment; but one would scarcely
believe it represented the judicial directions in a case of high treason, if it were not a proved fact.
Why the trial of Mary Moders, álias Mary Stedman, styled the German Princess, at the Old Bailey, in 1663, for bigamy, should have been included in the State trials it is hard to say, but it is highly amusing nevertheless.
She pleaded not guilty, demanded in the usual form to be tried "By God and my country," and after the clerk had wished “God send thee a good deliverance," she was sent back to gaol to await her trial on the morrow. And then, so says the Report, “ Her husband, the young lord, told her, he must now bid good-bye of her for ever. To which she replied,
Why, my Lord, 'tis not amiss,
Before we part to have a kiss ;' and so saluted him and said, "What a trouble and a noise is here of a cheat! You cheated me and I you. You told me you were a Lord, and I told you I was a princess, and I think I fitted you,' and so saluting, they parted.”
The next day she came into court “in a black velvet waistcoat, dressed in her hair, trimmed also with scarlet ribbands," and laughed so much at “the young lord,” that he left the court "by advice of his friends.” The evidence was dead against her, although much of it was wrongly admitted —the alleged real husband's statement being given by a third party before the jury, and also evidence that the prisoner had been tried for bigamy before and acquitted. However, she was equal to all irregularity, and delivered an extraordinarily able speech in her defence, the line being that her husband's father "hunted after her life." because she was poor and his son had married her thinking she was rich.
Now, whether it was due to her ability or the black velvet waistcoat, it is certain that the judge warmly espoused her cause, and amid some hissing and clapping of hands she was acquitted.