At the trial of Lord Stafford, the following scene occurred, in which several Managers of the Commons acted a very shameful part, yet they were the same individuals who were conspicuous in struggling for the political liberties of the Country; so intimately, at that period, were the causes of liberty and bigotry associated! Mr Fox, in noticing a savage murmur of applause at Lord Stafford's trial, observes, "How is this horror deepened, when we reflect that in that odious cry were probably mingled the voices of men to whose memory every lover of the English Constitution is bound to pay the tribute of gratitude and respect!"

Lord High Steward. It is not intended to make use of Counsel as to matter of fact, but they may stand by.

Serjeant Maynard. My lords, they may stand within hearing, but not within prompting.

Lord Stafford. I assure you, if I had all the Counsel in the world, I would not make use of them for matter of fact.

Mr Treby. My lords, will you please to order them to stand at a convenient distance, that they may not prompt the prisoner?

Sir William Jones. If your lordships order that they shall be within hearing, I do not oppose it; but then I desire they may stand at that distance, that there may be no means of intercourse, unless points of law do arise.

Sir F. Winnington. We did perceive his Counsel come up towards the bar, and very near him, and therefore we thought it our duty to speak before any inconvenience happened.

Lord High Steward. When there is cause, take the exception, but they do not, as yet, misbehave themselves.

On the sixth day of his trial Lord Stafford's voice failed, and the Lord High Steward said that he could not be heard. Upon which Lord Stafford complained that the shouts of the rabble on every day of his trial had so discomposed him that he scarce knew what he did or said; and begged that a paper might be read. The Lord High Steward said that it was only a question

whether the paper should be read "by his Lordship, who could not be heard, or by the Clerk?" But the Managers for the Commons insisted that the paper should be read by Lord Stafford himself: so this aged and decrepit Peer, on the sixth day of his trial for his life, throughout unaided by legal assistance of any kind, daily hooted at by a rabble, struggling against a Committee composed of the most experienced and talented statesmen and lawyers of the day, and become inaudible, was forced to read his paper himself.

The delusive sophism, which has often been repeated from the Bench within living memory, that the Judge is the prisoner's Counsel in matters of fact, was the jargon of the day in the reign of Charles II. And, with regard to another maxim equally hypocritical, that matters of law might be argued by Counsel to be assigned by the Court, this privilege was conceded only subject to a proviso, if the Court thought the point of law fit to be argued, and, in their opinion, involved reasonable doubt. Thus Chief Justice Jeffreys told Algernon Sydney, "If you assign any particular point of law, then, if the Court think it such a point as may be worth the debating, you shall have Counsel." Chief Justice North said to Colledge under trial for high treason, "When things come before us that are fit for you to have Counsel upon, you shall have Counsel assigned you. But it must be matter debateable and fit to be argued; for I tell you a defence in high treason ought not to be made by artificial cavils." And Justice Jones added, "You ought first to plead. You have a right to demand Counsel in matters of law, but then it must be upon such matters of law as you yourself propose to the Court, and the Court shall adjudge to be matters of law fit to be debated. Till then we cannot assign you Counsel." Upon Colledge using a good argument, that he could not, without legal assistance, tell what points of law he might submit for argument, the Attorney-General said, "Mr Colledge, no man ought to propose your plea for you, 'Ignorantia juris non excusat.'

Fitzharris, upon his trial, was told by the Chief Justice that his plea, being special, could not be received without a Counsel's hand to it, and the Court would not enjoin any Counsel to serve him further than they were willing themselves.

Vane and the Regicides were denied the assistance of Counsel to argue an important question of law concerning the protection afforded them by the statute of Henry VII., and, also, a point touching the legal continuance of the Long Parliament of Charles I., pursuant to an Act passed before the rupture with the King. Lord Russell and Sydney asked for Counsel to argue the point, Whether a conspiracy to make an insurrection (technically, levy war) was, contrary to the opinion of Lord Coke, a legal overt act of compassing the King's death? and Sydney, Whether there had been two legal witnesses of treason adduced against him? Counsel were not allowed to argue either of these questions as to the two witnesses, Jeffreys said, that it was a question of fact and not of law; and, as to the point of constructive treason, ""Tis not a question; you might as well ask me whether the first chapter of Littleton be law?”

There have not been preserved many records of trials for Misdemeanors in the reign of Charles II.; probably the sentences for high treasons (as Clarendon says of the punishments of the Star Chamber, that they withdrew spectators from every other Court,) rendered trials for misdemeanors too unattractive to be published. Enough, however, remains to shew that Counsel did not, more than prisoners and witnesses, escape at least from the rough side of Jeffreys's tongue.

On the trial of Braddon and Speke for propagating a rumour that the Earl of Essex had not died in the Tower by suicide, a boy had spoken to having seen a bloody razor that had been cast out of a window in the Tower, and had afterwards denied it; and it was asked of his sister, a witness, whether between the time of the boy's report and his denial, she had told him that if he did not deny his report, the King would hang his

father. The Court were determined that the boy's denial should not be thus explained away.

Mr Wallop (Counsel for the Prisoners). Did not you tell him, "the King will hang your father if you do not deny it?"

Chief Justice. We see plainly enough whither that question tends. You that are Gentlemen of the Robe should carry yourselves with greater respect to the Government. I tell you, your question is a reflection upon the government, and you shan't do any such thing while I sit here, by the grace of God, if I can help it.

Mr Wallop. I am sorry for that; I never intended any such thing, my Lord.

Chief Justice. Pray behave yourself as you ought, Mr Wallop; you must not think to huff and swagger here.

Mr Wallop. I am in the judgment of the Court, whether I do anything but what becomes an advocate for his client. Chief Justice. Yes, you are so, and shall know that you are

under the correction of the Court too.

Justice Withens. Truly, I do not see where there is any countenance for asking such a question.

Chief Justice. No, but some people are so wonderfully

zealous.

Mr Wallop. My Lord, zeal for the truth is a good zeal.

Chief Justice. But zeal for faction and sedition, I am sure, is a bad zeal; I see nothing in this cause but villany and baseness. I believe no man that has heard it but will readily acknowledge that it appears to be an untoward, malicious, ugly thing, as bad as ever I heard since I was born.

At a later stage in the trial, upon the Prisoner Braddon asking of a witness a question tending, like that which had been put by his Counsel, to shew that the persons who had given an account of what they had witnessed respecting Essex had been subsequently tampered with-

Chief Justice. The spirit of the client was got into the Counsel just now, and now it is got into the client again. 'Tis an hard matter to lay it, I perceive.

Mr Wallop. My Lord, I am here of Counsel for Mr Braddon, and I only ask questions as they are in my breviate.

Chief Justice. But, Sir, if you have anything in your breviate that reflects upon the Government, you shall not be permitted to vent it so long as I sit here.

Mr Wallop. My Lord, I hope, with submission, I never did, nor ever shall let such thing come from me.

Chief Justice. Nay, be as angry, or as pleased as you will, it is all one to me; you shall not have liberty to broach your seditious tenets here. We have got such strange kind of notions now-a-day, that, forsooth, men think they may say anything because they are Counsel.

In the case of Pritchard against Papillon, before mentioned as arising out of the City Elections, Mr Ward, Counsel for the defendant, was thus rated by Jeffreys: "Let us have none of your fragrances and rhetorical flowers to take the people with... ...Do not make such excursions ad captandum populum with your flourishes for that is all which is designed by your long harangues. But I must not suffer it; I will have none of your enamel nor your garniture."

V. Witnesses.

The reign of Charles II. was the era above all others in English History of perjury in capital cases; especially with regard to the Popish and Rye-house Plots. Political circumstances may have called forth perjured witnesses; but their fatal success is mainly attributable to the defects of the Constitution in regard to Judges, Juries, Counsel, and also to similar imperfections now to be considered in the law regarding Witnesses. The law of Witnesses in the reign of Charles II. was imperfect, not only

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