[787] The true question for a grand juror to ask himself seems to be this: Is the evidence such as that, if the prisoner can prove nothing to the contrary, he ought to be convicted? However, where any considerable doubt exists as to this, as a petty juror ought to acquit, so a grand juror ought to find the indictment.
[788] Roger North, and the prerogative writers in general, speak of this inquest as a scandalous piece of perjury, enough to justify the measures soon afterwards taken against the city. But Ralph, who, at this period of history, is very impartial, seems to think the jury warranted by the absurdity of the depositions. It is to be remembered that the petty juries had shown themselves liable to intimidation, and that the bench was sold to the court. In modern times, such an ignoramus could hardly ever be justified. There is strong reason to believe, that the court had recourse to subornation of evidence against Shaftesbury. Ralph, 140 et post. And the witnesses were chiefly low Irishmen, in whom he was not likely to have placed confidence. As to the association found among Shaftesbury's papers, it was not signed by himself, nor, as I conceive, treasonable, only binding the associators to oppose the Duke of York, in case of his coming to the crown. State Trials, viii. 786. See also 827 and 835.
[789] If we may believe James II., the populace hooted Shaftesbury when he was sent to the Tower. Macpherson, 124; Life of James, 688. This was an improvement on the odit damnatos. They rejoiced, however, much more, as he owns, at the ignoramus. P. 714.
[790] See College's case in State Trials, viii. 549, and Hawles's remarks on it, 723; Ralph, 626. It is one of the worst pieces of judicial iniquity that we find in the whole collection. The written instructions he had given to his counsel before the trial were taken away from him, in order to learn the grounds of his defence. North and Jones, the judges before whom he was tried, afforded him no protection. But besides this, even if the witnesses had been credible, it does not appear to me that the facts amounted to treason. Roger North outdoes himself in his justification of the proceedings on this trial. Examen, p. 587. What would this man have been in power, when he writes thus in a sort of proscription twenty years after the revolution! But in justice it should be observed that his portraits of North and Jones (Id. 512 and 517) are excellent specimens of his inimitable talent for Dutch painting.
[791] London Gazettes, 1681, passim. Ralph, 592, has spoken too strongly of their servility, as if they showed a disposition to give up altogether every right and privilege to the Crown. This may be true in a very few instances, but is by no means their general tenor. They are exactly high tory addresses, and nothing more.
[792] State Trials, viii. 447. Chief-Justice Pemberton, by whom he was tried, had strong prejudices against the papists, though well enough disposed to serve the court in some respects.
[793] The king, James says in 1679, was convinced of the falsehood of the plot, "while the seeming necessity of his affairs made this unfortunate prince, for so he may well be termed in this conjuncture, think he could not be safe but by consenting every day to the execution of those he knew in his heart to be most innocent; and as for that notion of letting the law take its course, it was such a piece of casuistry as had been fatal to the king his father," etc. 562. If this was blamable in 1679, how much more in 1681?
Temple relates, that having objected to leaving some priests to the law, as the House of Commons had desired in 1679, Halifax said he would tell every one he was a papist, if he did not concur; and that the plot must be treated as if it were true, whether it was so or not. P. 339 (folio edit.). A vile maxim indeed! But as Halifax never showed any want of candour or humanity, and voted Lord Stafford not guilty next year, we may doubt whether Temple has represented this quite exactly.
In reference to Lord Stafford, I will here notice that Lord John Russell, in a passage deserving very high praise, has shown rather too much candour in censuring his ancestor (p. 140) on account of the support he gave (if in fact he did so, for the evidence seems weak) to the objection raised by the sheriffs, Bethell and Cornish, with respect to the mode of Stafford's execution. The king having remitted all the sentence except the beheading, these magistrates thought fit to consult the House of Commons. Hume talks of Russell's seconding this "barbarous scruple," as he calls it, and imputes it to faction. But, notwithstanding the epithet, it is certain that the only question was between death by the cord and the axe; and if Stafford had been guilty, as Lord Russell was convinced, of a most atrocious treason, he could not deserve to be spared the more ignominious punishment. The truth is, which seems to have escaped both these writers, that if the king could remit a part of the sentence upon a parliamentary impeachment, it might considerably affect the question whether he could not grant a pardon, which the Commons had denied.
[794] See this petition, Somers Tracts, viii. 144.