Constitutional History of England, Henry VII to George II. Volume 3 of 3

by Henry Hallam

Nothing had brought so much disgrace on the councils of government and on the administration of justice, nothing had more forcibly spoken the necessity of a great change than the prosecutions for treason during the latter years of Charles II., and in truth during the whole course of our legal history. The statutes of Edward III. and Edward VI., almost set aside by sophistical constructions, required the corroboration of some more explicit law; and some peculiar securities were demanded for innocence against that conspiracy of the court with the prosecutor, which is so much to be dreaded in all trials for political crimes. Hence the attainders of Russell, Sidney, Cornish, and Armstrong were reversed by the convention-parliament without opposition; and men attached to liberty and justice, whether of the whig or tory name, were anxious to prevent any future recurrence of those iniquitous proceedings, by which the popular frenzy at one time, the wickedness of the court at another, and in each instance with the co-operation of a servile bench of judges, had sullied the honour of English justice. A better tone of political sentiment had begun indeed to prevail, and the spirit of the people must ever be a more effectual security than the virtue of the judges; yet, even after the revolution, if no unjust or illegal convictions in cases of treason can be imputed to our tribunals, there was still not a little of that rudeness towards the prisoner, and manifestation of a desire to interpret all things to his prejudice, which had been more grossly displayed by the bench under Charles II. The jacobites, against whom the law now directed its terrors, as loudly complained of Treby and Pollexfen, as the whigs had of Scroggs and Jefferies, and weighed the convictions of Ashton and Anderton against those of Russell and Sidney.[241]

Ashton was a gentleman, who, in company with Lord Preston, was seized in endeavouring to go over to France with an invitation from the jacobite party. The contemporary writers on that side, and some historians who incline to it, have represented his conviction as grounded upon insufficient, because only upon presumptive evidence. It is true that in most of our earlier cases of treason, treasonable facts have been directly proved; whereas it was left to the jury in that of Ashton, whether they were satisfied of his acquaintance with the contents of certain papers taken on his person. There does not however seem to be any reason why presumptive inferences are to be rejected in charges of treason, or why they should be drawn with more hesitation than in other grave offences; and if this be admitted, there can be no doubt that the evidence against Ashton was such as is ordinarily reckoned conclusive. It is stronger than that offered for the prosecution against O'Quigley at Maidstone in 1798, a case of the closest resemblance; and yet I am not aware that the verdict in that instance was thought open to censure. No judge however in modern times would question, much less reply upon, the prisoner, as to material points of his defence, as Holt and Pollexfen did in this trial; the practice of a neighbouring kingdom, which, in our more advanced sense of equity and candour, we are agreed to condemn.[242]

It is perhaps less easy to justify the conduct of Chief-Justice Treby in the trial of Anderton for printing a treasonable pamphlet. The testimony came very short of satisfactory proof, according to the established rules of English law, though by no means such as men in general would slight. It chiefly consisted of a comparison between the characters of a printed work found concealed in his lodgings and certain types belonging to his press; a comparison manifestly less admissible than that of handwriting, which is always rejected, and indeed totally inconsistent with the rigour of English proof. Besides the common objections made to a comparison of hands, and which apply more forcibly to printed characters, it is manifest that types cast in the same font must always be exactly similar. But, on the other hand, it seems unreasonable absolutely to exclude, as our courts have done, the comparison of handwriting as inadmissible evidence; a rule which is every day eluded by fresh rules, not much more rational in themselves, which have been invented to get rid of its inconvenience. There seems however much danger in the construction which draws printed libels, unconnected with any conspiracy, within the pale of treason, and especially the treason of compassing the king's death, unless where they directly tended to his assassination. No later authority can, as far as I remember, be adduced for the prosecution of any libel as treasonable, under the statute of Edward III. But the pamphlet for which Anderton was convicted was certainly full of the most audacious jacobitism, and might perhaps fall, by no unfair construction, within the charge of adhering to the king's enemies; since no one could be more so than James, whose design of invading the realm had been frequently avowed by himself.[243]

A bill for regulating trials upon charges of high treason passed the Commons with slight resistance by the Crown lawyers in 1691.[244] The Lords introduced a provision in their own favour, that upon the trial of a peer in the court of the high steward, all such as were entitled to vote should be regularly summoned; it having been the practice to select twenty-three at the discretion of the Crown. Those who wished to hinder the bill availed themselves of the jealousy which the Commons in that age entertained of the upper house of parliament, and persuaded them to disagree with this just and reasonable amendment.[245] It fell to the ground therefore on this occasion; and though more than once revived in subsequent sessions, the same difference between the two houses continued to be insuperable.[246] In the new parliament that met in 1695, Commons had the good sense to recede from an irrational jealousy. Notwithstanding the reluctance of the ministry, for which perhaps the very dangerous position of the king's government furnishes an apology, this excellent statute was enacted as an additional guarantee (in such bad times as might again occur) to those who are prominent in their country's cause, against the great danger of false accusers and iniquitous judges.[247] It provides that all persons indicted for high treason shall have a copy of their indictment delivered to them five days before their trial, a period extended by a subsequent act to ten days, and a copy of the panel of jurors two days before their trial; that they shall be allowed to have their witnesses examined on oath, and to make their defence by counsel. It clears up any doubt that could be pretended on the statute of Edward VI., by requiring two witnesses, either both to the same overt act, or the first to one, the second to another overt act of the same treason (that is, the same kind of treason), unless the party shall voluntarily confess the charge.[248] It limits prosecutions for treason to the term of three years, except in the case of an attempted assassination on the king. It includes the contested provision for the trial of peers by all who have a right to sit and vote in parliament. A later statute, 7 Anne, c. 21, which may be mentioned here as the complement of the former, has added a peculiar privilege to the accused, hardly less material than any of the rest. Ten days before the trial, a list of the witnesses intended to be brought for proving the indictment, with their professions and place of abode, must be delivered to the prisoner, along with the copy of the indictment. The operation of this clause was suspended till after the death of the pretended Prince of Wales.

Notwithstanding a hasty remark of Burnet, that the design of this bill seemed to be to make men as safe in all treasonable practices as possible, it ought to be considered a valuable accession to our constitutional law; and no part, I think, of either statute will be reckoned inexpedient, when we reflect upon the history of all nations, and more especially of our own. The history of all nations, and more especially of our own, in the fresh recollection of those who took a share in these acts, teaches us that false accusers are always encouraged by a bad government, and may easily deceive a good one. A prompt belief in the spies whom they perhaps necessarily employ, in the voluntary informers who dress up probable falsehoods, is so natural and constant in the offices of ministers, that the best are to be heard with suspicion when they bring forward such testimony. One instance, at least, had occurred since the revolution, of charges unquestionably false in their specific details, preferred against men of eminence by impostors who panted for the laurels of Oates and Turberville.[249] And, as men who are accused of conspiracy against a government are generally such as are beyond question disaffected to it, the indiscriminating temper of the prejudging people, from whom juries must be taken, is as much to be apprehended, when it happens to be favourable to authority, as that of the government itself; and requires as much the best securities, imperfect as the best are, which prudence and patriotism can furnish to innocence. That the prisoner's witnesses should be examined on oath will of course not be disputed, since by a subsequent statute that strange and unjust anomaly in our criminal law has been removed in all cases as well as in treason; but the judges had sometimes not been ashamed to point out to the jury, in derogation of the credit of those whom a prisoner called in his behalf, that they were not speaking under the same sanction as those for the Crown. It was not less reasonable that the defence should be conducted by counsel; since that excuse which is often made for denying the assistance of counsel on charges of felony, namely, the moderation of prosecutors and the humanity of the bench, could never be urged in those political accusations wherein the advocates for the prosecution contend with all their strength for victory; and the impartiality of the court is rather praised when it is found than relied upon beforehand.[250] Nor does there lie any sufficient objection even to that which many dislike, the furnishing a list of the witnesses to the prisoner, when we set on the other side the danger of taking away innocent lives by the testimony of suborned and infamous men, and remember also that a guilty person can rarely be ignorant of those who will bear witness against him; or if he could, that he may always discover those who have been examined before the grand jury, and that no others can in any case be called on the trial.

The subtlety of Crown lawyers in drawing indictments for treason, and the willingness of judges to favour such prosecutions, have considerably eluded the chief difficulties which the several statutes appear to throw in their way. The government has at least had no reason to complain that the construction of those enactments has been too rigid. The overt acts laid in the indictment are expressed so generally that they give sometimes little insight into the particular circumstances to be adduced in evidence; and, though the act of William is positive that no evidence shall be given of any overt act not laid in the indictment, it has been held allowable, and is become the constant practice, to bring forward such evidence, not as substantive charges, but on the pretence of its tending to prove certain other acts specially alleged. The disposition to extend a constructive interpretation to the statute of Edward III. has continued to increase; and was carried, especially by Chief-Justice Eyre in the trials of 1794, to a length at which we lose sight altogether of the plain meaning of words, and apparently much beyond what Pemberton, or even Jefferies, had reached. In the vast mass of circumstantial testimony which our modern trials for high treason display, it is sometimes difficult to discern whether the great principle of our law, requiring two witnesses to overt acts, has been adhered to; for certainly it is not adhered to, unless such witnesses depose to acts of the prisoner, from which an inference of his guilt is immediately deducible.[251] There can be no doubt that state prosecutions have long been conducted with an urbanity and exterior moderation unknown to the age of the Stuarts, or even to that of William; but this may by possibility be compatible with very partial wrestling of the law, and the substitution of a sort of political reasoning for that strict interpretation of penal statutes which the subject has a right to demand. No confidence in the general integrity of a government, much less in that of its lawyers, least of all any belief in the guilt of an accused person, should beguile us to remit that vigilance which is peculiarly required in such circumstances.[252]

For this vigilance, and indeed for almost all that keeps up in us, permanently and effectually, the spirit of regard to liberty and the public good, we must look to the unshackled and independent energies of the press. In the reign of William III., and through the influence of the popular principle in our constitution, this finally became free. The licensing act, suffered to expire in 1679, was revived in 1685 for seven years. In 1692, it was continued till the end of the session of 1693. Several attempts were afterwards made to renew its operation, which the less courtly whigs combined with the tories and jacobites to defeat.[253] Both parties indeed employed the press with great diligence in this reign; but while one degenerated into malignant calumny and misrepresentation, the signal victory of liberal principles is manifestly due to the boldness and eloquence with which they were promulgated. Even during the existence of a censorship, a host of unlicensed publications, by the negligence or connivance of the officers employed to seize them, bore witness to the inefficacy of its restrictions. The bitterest invectives of jacobitism were circulated in the first four years after the revolution.[254]

Liberty of the press.—The liberty of the press consists, in a strict sense, merely in an exemption from the superintendence of a licenser. But it cannot be said to exist in any security, or sufficiently for its principal ends, where discussions of a political or religious nature, whether general or particular, are restrained by too narrow and severe limitations. The law of libel has always been indefinite; an evil probably beyond any complete remedy, but which evidently renders the liberty of free discussion rather more precarious in its exercise than might be wished. It appears to have been the received doctrine in Westminster Hall before the revolution, that no man might publish a writing reflecting on the government, nor upon the character, or even capacity and fitness, of any one employed in it. Nothing having passed to change the law, the law remained as before. Hence in the case of Tutchin, it is laid down by Holt, that to possess the people with an ill opinion of the government, that is, of the ministry, is a libel. And the attorney-general, in his speech for the prosecution, urges that there can be no reflection on those that are in office under her majesty, but it must cast some reflection on the queen who employs them. Yet in this case the censure upon the administration, in the passages selected for prosecution, was merely general, and without reference to any person, upon which the counsel for Tutchin vainly relied.[255]

It is manifest that such a doctrine was irreconcilable with the interests of any party out of power, whose best hope to regain it is commonly by prepossessing the nation with a bad opinion of their adversaries. Nor would it have been possible for any ministry to stop the torrent of a free press, under the secret guidance of a powerful faction, by a few indictments for libel. They found it generally more expedient and more agreeable to borrow weapons from the same armoury, and retaliate with unsparing invective and calumny. This was first practised (first, I mean, with the avowed countenance of government) by Swift in the Examiner, and some of his other writings. And both parties soon went such lengths in this warfare that it became tacitly understood that the public characters of statesmen, and the measures of administration, are the fair topics of pretty severe attacks. Less than this indeed would not have contented the political temper of the nation, gradually and without intermission becoming more democratical, and more capable, as well as more accustomed, to judge of its general interests, and of those to whom they were intrusted. The just limit between political and private censure has been far better drawn in these later times, licentious as we still may justly deem the press, than in an age when courts of justice had not deigned to acknowledge, as they do at present, its theoretical liberty. No writer, except of the most broken reputation, would venture at this day on the malignant calumnies of Swift.

Law of libel.—Meanwhile the judges naturally adhered to their established doctrine; and, in prosecutions for political libels, were very little inclined to favour what they deemed the presumption, if not the licentiousness, of the press. They advanced a little farther than their predecessors; and, contrary to the practice both before and after the revolution, laid it down at length as an absolute principle, that falsehood, though always alleged in the indictment, was not essential to the guilt of the libel; refusing to admit its truth to be pleaded, or given in evidence, or even urged by way of mitigation of punishment.[256] But as the defendant could only be convicted by the verdict of a jury, and jurors both partook of the general sentiment in favour of free discussion, and might in certain cases have acquired some prepossessions as to the real truth of the supposed libel, which the court's refusal to enter upon it could not remove, they were often reluctant to find a verdict of guilty; and hence arose by degrees a sort of contention which sometimes showed itself upon trials, and divided both the profession of the law and the general public. The judges and lawyers, for the most part, maintained that the province of the jury was only to determine the fact of publication; and also whether what are called the innuendoes were properly filled up, that is, whether the libel meant that which it was alleged in the indictment to mean, not whether such meaning were criminal or innocent, a question of law which the court were exclusively competent to decide. That the jury might acquit at their pleasure was undeniable; but it was asserted that they would do so in violation of their oaths and duty, if they should reject the opinion of the judge by whom they were to be guided as to the general law. Others of great name in our jurisprudence, and the majority of the public at large, conceiving that this would throw the liberty of the press altogether into the hands of the judges, maintained that the jury had a strict right to take the whole matter into their consideration, and determine the defendant's criminality or innocence according to the nature and circumstances of the publication. This controversy, which perhaps hardly arose within the period to which the present work relates, was settled by Mr. Fox's libel bill in 1792. It declares the right of the jury to find a general verdict upon the whole matter; and though, from causes easy to explain, it is not drawn in the most intelligible and consistent manner, was certainly designed to turn the defendant's intention, as it might be laudable or innocent, seditious or malignant, into a matter of fact for their enquiry and decision.