to an Idle Apprentice, or one doing what used to be called shewing his indentures a pair of heels:

He ne'er knew, not he,

How to serve or be free,

Though he has pass'd through so many adventures,

But e'er since he was bound,

(That is, he was crown'd,)

He has every day broke his indentures.

The King's Proclamation for shutting of Coffee-houses is attributed to a mistake regarding the loyalty of liquors.

When they take from the People the freedom of words,
They teach them the sooner to fall to their swords;

Let the City drink coffee, and quietly groan,

(They who conquer'd the Father wont be slaves to the Son)
For wine and strong drink make tumults increase,
Chocolate, tea, and coffee are liquors of peace.

Then, Charles, thy edict against coffee recall,

There's ten times more treason in brandy and ale !

Redolent of Sedition as the above specimens may seem, they were not so mischievous as the publication of the Absalom and Achitophel a few days only before Shaftesbury's trial1; or the lines put by Dryden (remembering that he was the Poet Laureat) into the mouth of a woman, in the Epilogue to the Duke of Guise.

Lenitives, says he, suit best with our condition.—
Jack Ketch, says I, is an excellent physician-
I love no blood.-Nor I, Sir, as I breathe;
But hanging is a fine dry kind of death.

1 Lord Campbell writes, that Venice Preserved was brought out when Shaftesbury was to be tried for his life: but it is to be inquired, whether the Play was produced in February, 1680-1, and Shaftesbury committed to the Tower on the 2nd of July, 1681?

CHAPTER IX.

PROCEDURE IN PROSECUTIONS FOR STATE OFFENCES.

HE State Trials of the reign of Charles II. are among the

THE

most flagitious in our history, and there is ground for belief that they never could have been instituted, or, at least, have been crowned with their fatal success, but for a very faulty system of Judicial Procedure. However defined the penal net which by a Constitution may be cast over State Offences, of what avail is it, if conduct however innocent can be dragged within its meshes by means of unequal rules of Procedure? Many blameless and several illustrious victims fell by the bad laws of the reign of Charles II., some by bad substantive laws, but most. by bad adjective laws, that is to say, by a vicious Procedure.

It is proposed to consider this subject under the following heads—I. Trial of Peers. II. The Judges. III. Juries. IV. Counsel and Attornies. V. Witnesses. VI. Rules of Practice.

I. Trial of Peers.

During the reign of Charles II. all Peers obnoxious to the Government may be thought to have had an axe, like the sword of Damocles, suspended over their heads. Except during the sitting of Parliament, trials of Peers take place in the Court of the Lord High Steward. It has been seen for what a long period the calling of a Parliament might have been legally deferred, or its prorogations protracted, in the reign of Charles II.; in such intervals the lives of Peers were liable to be placed in the hands of a Lord High Steward, appointed by the Crown

after the accused was known, and with a particular view to his trial. The Lord High Steward is the Judge of his Court, which is held before him; his summons convenes the Peers for the trial; he determines, by his sole authority, all questions of law that arise in the course of the proceedings. The number and selection of the summoned Peers was, in the time of Charles II., in all cases, discretionary with the Lord High Steward. The Peers summoned cannot be challenged.

In a letter by Lord Cornbury to the Duke of Ormonde, he writes, that he had been informed, from a very credible quarter, that there was a design to prorogue the Parliament, on purpose to try his Father, Lord Clarendon, by a select Jury of Peers, through which means he might fall into the hands of those Lords who were manifestly his enemies; and that this was the reason of Lord Clarendon withdrawing himself from the kingdom. Pepys writes, at the period of the proceedings against Lord Clarendon, that it was considered "better for him to be tried before the Lords, where he could have right, and make interest, than, when the Parliament was up, be tried by a Court on purpose made by the King of what Lords the King pleases, who have a mind to have his head." Had Lord Shaftesbury's famous Indictment been found "a true Bill," he would have been tried in the Court of the High Steward, and the annals of Charles II. been stained with one more bloody sacrifice to despotism.

The Constitution may be thought to have been much improved, as regards the fair trial of Peers, by the Treason Bill of William III., in which it is enacted "That upon the trial of any Peer or Peeress either for treason or misprision, all the Peers who have a right to sit and vote in Parliament shall be summoned twenty days at least before every such trial, and that every Peer so summoned and appearing at such trial, shall sit and vote at the trial of such Peer or Peeress so to be tried."

II. Judges.

Lord Campbell observes that the power of removing Judges on any occasion at the will of the Crown, in the reign of Charles II., prevented him from understanding Blackstone's alleged theoretical perfection of the Constitution at that period. In aggravation of the evils arising from the precarious tenure of the office of Judges, must be considered the want of control during the long intermissions and prorogations of Parliament which were compatible with the Constitution in the reign of Charles II., however pensionless the Parliament whilst sitting might have been. Marvell did not, probably, exaggerate the evils which the Country endured from the Judges in the reign of Charles II., "What French counsel, what standing armies, what parliamentary bribes, what national oaths, and all other the machinations of wicked men had not been able to effect, was more compendiously acted by twelve men in scarlet." The public opinion of the judicial character must have been much degraded, when Roger North could publish a life of his brother Lord Keeper Guilford in a panegyrical style, which demonstrates his hero and relative to have been selfish, cunning, sneaking, and unprincipled, his only restraint being a regard to his personal safety, and the paramount object of his life being the obtaining of advancement by the meanest arts. It is true, that this reign, in its earlier period, was adorned by Sir Matthew Hale, a pattern to Judges for deep learning and strict integrity; and that, probably, his conduct would not have been altered one iota, had his patent been durante bene placito like those of his successors. But the subject of inquiry here is, whether the Constitution, particularly during the latter half of the reign of Charles II., was calculated to produce good or bad Judges?

The Patents of the Judges had been deemed a matter of constitutional importance in the reign of Charles I. In consequence of the disgraceful removals of Judges in that reign for the

purpose of preparing the way for the momentous decision on Ship Money, the House of Lords petitioned the King that the patents of the Judges might thereafter be quamdiu se bene gesserint, with which the King acquiesced. After the Restoration, under the administration of Lord Clarendon, the patents of Judges were quamdiu se bene gesserint. But it would appear that at least from the long prorogation of Parliament in 1665, it became the uniform practice to appoint the Judges durante bene placito1.

The removal of Judges for purposes of State, and the better to ensure the convictions of political victims, exemplifies in a very striking point of view the imperfection of the Constitution in the reign of Charles II., and the importance of amendments upon it made by the Act of Settlement, and by an Act at the commencement of the reign of George III.; the former establishing the Judges' patents permanently in the form of quamdiu se bene gesserint, the latter providing against their termination by the demise of the Crown. Lord Bacon writes of Henry VII., that he used to boast of governing England by his laws, and his laws by his lawyers; it may be thought that he could not have adopted a more effectual plan for this purpose than making the patents of his Judges durante bene placito.

The following examples illustrate the working of the system whereby Judges were made constitutionally the servitors of the Crown. When the Popish Plot began to engross public attention, the Government required a more unscrupulous tool for the Chief Justiceship of the King's Bench than Chief Justice Raynsford: he was accordingly dismissed, to make room for Scroggs. Chief Justice Scroggs served the government successfully, first in

1 Marvell writes, "During this inter-parliament there were five Judges' places either fell or were made vacant." Of the new appointments he adds, "they are all, by their patents, durante bene placito,” and concerning them all “there is too much to be said." See Siderfin's Reports, p. 408. Lord Hardwicke, in his notes upon the Address concerning the Judges' patents at the commencement of the reign of George III., considers that patents quamdiu se bene gesserint in the reign of Charles II. ceased after Clarendon's fall.