[795] State Trials, viii. 1039-1340; Ralph, 717. The majority was but 104 to 86; a division honourable to the spirit of citizens.
[796] North's Examen, 626.
[797] Lady Russell's opinion was, that "it was no more than what her lord confessed—talk; and it is possible that talk going so far as to consider, if a remedy for supposed evils might be sought, how it could be formed." Life of Lord Russell, p. 266. It is not easy, however, to talk long in this manner about the how of treason, without incurring the penalties of it.
[798] See this business well discussed by the acute and indefatigable Ralph, p. 722, and by Lord John Russell, p. 253. See also State Trials, ix. 358 et post. There appears no cause for doubting the reality of what is called the Ryehouse plot. The case against Walcot (Id. 519) was pretty well proved; but his own confession completely hanged him and his friends too. His attainder was reversed after the revolution, but only on account of some technical errors, not essential to the merits of the case.
[799] State Trials, ix. 577. Lord Essex cut his throat in the Tower. He was a man of the most excellent qualities, but subject to constitutional melancholy which overcame his fortitude; an event the more to be deplored, as there seems to have been no possibility of his being convicted. A suspicion, as is well known, obtained credit with the enemies of the court, that Lord Essex was murdered; and some evidence was brought forward by the zeal of one Braddon. The late editor of the State Trials seems a little inclined to revive this report, which even Harris (Life of Charles, p. 352) does not venture to accredit; and I am surprised to find Lord John Russell observe, "It would be idle, at the present time, to pretend to give any opinion on the subject."—P. 182. This I can by no means admit. We have, on the one side, some testimonies by children, who frequently invent and persist in falsehoods with no conceivable motive. But, on the other hand, we are to suppose, that Charles II. and the Duke of York caused a detestable murder to be perpetrated on one towards whom they had never shown any hostility, and in whose death they had no interest. Each of these princes had faults enough; but I may venture to say that they were totally incapable of such a crime. One of the presumptive arguments of Braddon, in a pamphlet published long afterwards, is, that the king and his brother were in the Tower on the morning of Lord Essex's death. If this leads to anything, we are to believe that Charles the Second, like the tyrant in a Grub Street tragedy, came to kill his prisoner with his own hands. Any man of ordinary understanding (which seems not to have been the case with Mr. Braddon) must perceive that the circumstance tends to repel suspicion rather than the contrary. See the whole of this, including Braddon's pamphlet, in State Trials, ix. 1127.
[800] State Trials, 615. Sawyer told Lord Russell, when he applied to have his trial put off, that he would not have given the king an hour's notice to save his life. Id. 582. Yet he could not pretend that the prisoner had any concern in the assassination plot.
[801] The act annulling Lord Russell's attainder recites him to have been "wrongfully convicted by partial and unjust constructions of law." State Trials, ix. 695. Several pamphlets were published after the revolution by Sir Robert Atkins and Sir John Hawles against the conduct of the court in this trial, and by Sir Bartholomew Shower in behalf of it. These are in the State Trials. But Holt, by laying down the principle of constructive treason in Ashton's case, established for ever the legality of Pemberton's doctrine, and indeed carried it a good deal further.
[802] There seems little doubt, that the juries were packed through a conspiracy of the sheriffs with Burton and Graham, solicitors for the Crown. State Trials, ix. 932. These two men ran away at the revolution; but Roger North vindicates their characters, and those who trust in him may think them honest.
[803] State Trials, ix. 818.
[804] Id. 846. Yet in summing up the evidence, he repeated all West and Keeling had thus said at second-hand, without reminding the jury that it was not legal testimony. Id. 899. It would be said by his advocates, if any are left, that these witnesses must have been left out of the question, since there could otherwise have been no dispute about the written paper. But they were undoubtedly intended to prop up Howard's evidence, which had been so much shaken by his previous declaration, that he knew of no conspiracy.