The following dialogue then took place, which introduced the touching display of female tenderness and heroism of the celebrated Rachel, Lady Russell, assisting her martyred husband during his trial—a subject often illustrated both by the pen and the pencil.
Lord Russell.—“My lord, may I not have the use of pen, ink, and paper?” Pemberton.—“Yes, my lord.” Lord Russell.—“My lord, may I not make use of any papers I have?” Pemberton.—“Yes, by all means.” Lord Russell.—“May I have somebody write to help my memory?” Attorney General.—“Yes, a servant.” Lord Russell.—“My wife is here, my lord, to do it.” Pemberton.—“If my lady please to give herself the trouble.”
The chief justice admitted Dr. Burnet, Dr. Tillotson, and other witnesses, to speak to the good character and loyal conversation of the prisoner, and gave weight to their testimony, notwithstanding the observation of Jeffreys that “it was easy to express a regard for the king while conspiring to murder him.”
Lord Russell had certainly been present at a meeting of the conspirators, when there was a consultation about seizing the king’s guards; but he insisted that he came in accidentally, that he had taken no part in the conversation, and that he was not acquainted with their plans. The aspirant chief justice saw clearly where was the pinch of the case, and the attorney general, who was examining Colonel Rumsey, being contented with asking—“Was the prisoner at the debate?” and receiving the answer “Yes,” Jeffreys started up, took the witness into his own hands, and calling upon him to draw the inference which was for the jury, pinned the basket by this leading and highly irregular question—“Did you find him averse to it or agreeing to it?” Having got the echoing answer which he suggested, “Agreeing to it,” he looked round with exultation, and said, “If my Lord Russell now pleases to ask any questions, he may!”
Jeffreys addressed the jury in reply after the solicitor general had finished, and much outdid him in pressing the case against the prisoner, while he disclaimed with horror the endeavor to take away the life of the innocent.
The jury retired, and the courtiers present were in a state of the greatest alarm; for against Algernon Sydney, who was to be tried next, the case was still weaker; and if the two whig chiefs, who were considered already cut off, should recover their liberty, and should renew their agitation, a national cry might be got up for the summoning of Parliament, and a new effort might be made to rescue the country from a Popish successor. These fears were vain. The jury returned a verdict of guilty, and Lord Russell expiated on the scaffold the crime of trying to preserve the religion and liberties of his country.
Jeffreys had all the glory of the verdict of guilty, and as the Lord Chief Justice Pemberton had rather flinched during this trial, and the attorney and solicitor general were thought men who would cry CRAVEN, and as the next case was not less important and still more ticklish, all objections to the proposed elevation of the favorite vanished, and he became chief justice of England, as the only man fit to condemn Algernon Sydney.[120]
The new chief justice was sworn in on the 29th of September, 1683, and took his seat in the Court of King’s Bench on the first day of the following Michaelmas term.
Sydney’s case was immediately brought on before him in this court, the indictment being removed by certiorari from the Old Bailey, that it might be under his peculiar care. The prisoner wishing to plead some collateral matter, was told by the chief justice that, if overruled, sentence of death would immediately be passed upon him. Though there can be no doubt of the illegality of the conviction, the charge against Jeffreys is unfounded, that he admitted the MS. treatise on government to be read without any evidence of its having been written by the prisoner, beyond “similitude of hands.” Two witnesses, who were acquainted with his handwriting from having seen him indorse bills of exchange, swore that they believed it to be his handwriting, and they were corroborated by a third, who, with his privity, had paid notes purporting to be indorsed by him without any complaint ever being made. But the undeniable and ineffaceable atrocity of the case was the lord chief justice’s doctrine, that “scribere est agere,” and that therefore this MS. containing some abstract speculations on different forms of government written many years before, never shown to any human being, and containing nothing beyond the constitutional principles of Locke and Paley, was tantamount to the evidence of a witness to prove an overt act of high treason. “If you believe that this was Colonel Sydney’s book, writ by him, no man can doubt that it is a sufficient evidence that he is guilty of compassing and imagining the death of the king. It fixes the whole power in the Parliament and the people. The king, it says, is responsible to them; the king is but their trustee. Gentlemen, I must tell you I think I ought more than ordinarily to press this upon you, because I know the misfortune of the late unhappy rebellion, and the bringing of the late blessed king to the scaffold, was first begun with such kind of principles. They cried he had betrayed the trust that was delegated to him by the people, so that the case rests not upon two but upon greater evidence than twenty-two witnesses, if you believe this book was writ by him.”
The chief justice having had the satisfaction of pronouncing with his own lips the sentence upon Sydney, of death and mutilation, instead of leaving the task as usual to the senior puisne judge, a scene followed which is familiar to every one. Sydney.—“Then, O God! O God! I beseech thee to sanctify these sufferings unto me, and impute not my blood to the country; let no inquisition be made for it, but if any, and the shedding of blood that is innocent must be revenged, let the weight of it fall only upon those that maliciously persecute me for righteousness sake.” Lord C. J. Jeffreys.—“I pray God work in you a temper fit to go unto the other world, for I see you are not fit for this.” Sydney.—“My lord, feel my pulse [holding out his hand,] and see if I am disordered. I bless God I never was in better temper than I now am.” By order of the chief justice, the lieutenant of the tower immediately removed the prisoner.