Page images

High Courts (xxx) of justice, the terror of


Thele curtand their impre same day of En

• and them detain, under secure imprisonment, in the • castle of Jersey, until you thall receive further orders

" from us: and, for so doing, this shall be your wargos!.... rant. . Given at Whitehall, the 8th of January, 1637.

These commitments were voted by the house ilegal • and unjust, and the gentlemen were ordered to be dif( charged from their imprisonment.' It appears al so from the Journal of the same day, that the committee found, that divers commoners of England had, by « illegal warrants, been committed to prison into the

• islands of Jersey, and other the islands belonging to .this commonwealth, out of the reach of the Habras

Corpuso'. Thus we see that Cromwell, who had opposed and punished Charles for his illegal acts, became an imitator of him, and, in some of these inftances, went even beyond him : for I question whether all Charles's reign can produce so daring a violation of the right of the subject, as his imprisoning Maynard and his brethren, for pleading in behalf of Coney their client: nor is there a greater, than the imprisoning and banishing men on his own warrant, and depriving them of the benefit of the Jaws made for their relief. Vain, indeed, might the unhappy sufferers have said, were the efforts made against the King, when the effect of them was still lavery and oppreffion!

(xxx) The high courts of justice. The erection of a high court of justice for the trial of Charles gave rise to many others. When the nature of the supposed crime was such as fell not under the cognizance of the common law; when the persons accused were of a qua. lity which might incline a jury to treat them with com. passion and regard ; or when they had been engaged in actions popular, though illegal, it was then thought proper by those in power to erect high courts of justice, in order that offenders might not escape punishment These courts were constituted of commissioners named by the government, who performed the several offices

the Royalists, as their enemies were their

judges !

of judges and juries, and determined concerning the law and the fact. The Attorney-General generally managed the evidence against the prisoners, and few.escaped who were cited before these tribunals. The Duke of Hamilton, and the lords Holland and Capel, Christopher Love and Mr. Gibbons, with some others, were sentenced to die by courts thus constituted, who, probably, before another kind of judicature, would have met with a milder treatment, though, as the laws then were, they could not but be deemed offenders. When Cromwell came to the government, he made use of the same methods of trial on several occasions: and in the year 1656, the parliament passed an act for the secu• rity of his highness the lord protector his person, and

continuance of the nation in peace and safety.' In the preamble it is said, Forasmuch as the prosperity . and safety of this nation- very much dependeth, 6 under God, upon the security and preservation of the 6 person of his highness; and, for that it hath mani« festly appeared, that divers wicket plots and means o have been of late devised and said to the great < endangering his highness person, and the embroyling

this commonwealth in new and inteftine wars and • seditions ; therefore be it enacted, that if any person « shall attempt, compass or imagine the death of the « lord protector, and declare it by open deed; or shall ( advisedly and malitiously proclaim, declare, publish (or promote Charles Stuart, or any other person claim• ing from the late King; or fall aid and affilt, hold • intelligence with, or contribute money towards the

affistance of the said Charles Stuart, his brothers or • mother, &c. then all and every the offences above( mentioned shall be adjudged to be high treason : and • that in all such cases, and upon all such occasions,

the lord chancellor, the lord keeper, or lords com' missioners of the great seal of Englund for the time being, are authorised and required from ume to time,

• by

judges ! If to all these things we add




6 by warrant from his highness to issue out one or more • commission or commissions, under the great feal of « England, to- &


o r any seventeen or more of them: which said commissioners shall have autho

rity to hear, examine and determine all matters, • crimes and offences aforesaid ; and also to hear and • determine all misprisions of the treasons in this act I mentioned, and to take order for charging the offend« er or offenders, with all or any the crimes aforesaid, " and for the receiving their personal answer there

unto; and for examination of witnesses upon oath, « and thereupon, or upon the confession of the party, « or, in default of such answer, to proceed to conviction « and final sentence, as in cases of high treason, and I misprision of treason, according to justice and the • merits of the cause. Commissioners were also ap« pointed for the same purpose in Scotland and Ireland.

This act was to continue in force unto the < end of the last session of the next parliament, and no (c) Scobel.

o longer (1). By this last clause it seems sufficiently evident that the framers of this law were sensible of its severity and ill consequences. However, this seemed to give a sanction to it. But what is unreasonable never fatisfies. It was urged that trials by juries were the birthrights of Englismen ; that all trials for treaSon were to be had and used only according to the due order and course of the common laws of the realm, and not otherwise, upon inqueft and presentment by the oaths of twelve good and lawful men, upon good and probable evidence and witness; and that if any thing be done to the contrary, it shall be void in law, redressed and holden for error and nought: and if any statute be made to the contrary, that shall be holden for none. That to proceed against any without legal indictment, presentment and trial, in the way of the high courts of justice, was very unequitable; the commillioners themselves being both grand and petty jury,


ftature be mad holden for erary, it hall bed that if any the violation of the privileges of (YYY)


the other the combinlock, things to

and judges likewise, if not parties interested, to whom
no peremptory or legal challenges could be made ; and,
finally, that such proceedings were contrary to Magna
Charta; the petition of right; the declarations of the ) See the

Tryals of parliament : and to an article in the instrument of go- Gerard. vernment which was sworn to by the protector him. Vowel, and self (u). How good foever these pleas might have Dr. He

in the ad
been, they were not suffered to be of use to the pri- vol. of State
soners. Judges are generally well enough satisfied of Tryals,
the authority by which they act, and will not have it Fol. 1730.
questioned. To demur to the jurisdiction, or refuse to
answer, is equivalent to the clearest proof of guilt, and
judgment is accordingly given. However, the protec-
tor had his end by this method of proceeding. He
• thought it more effectual, says Whitlock, than the ordi-

nary course of tryals at the common law, and would
the more terrify the offenders (x);' and terrify it did;

(x) Memo

rials, p. 673. for, on the erection of the last high court of justice, according to Clarendon, it put all those who knew how « liable they themselves were, under a terrible conftere nation. Whitlock would not fit when nominated as a commissioner, it being, as he says, against his judgment. This is to his reputation.

(YYY) The violation of the privileges of parliament, &c.] Cromwell seems to have had honest intentions, when he adopted the form of chufing members of parliament, which his old masters had prescribed. He • did not observe, therefore, the old course in sending

writs out to all the little boroughs throughout Engo land, which use to send burgesses (by which method

some single counties send more members to the parlia• ment than fix other counties do) he took a more 6 equal way, by appointing more knights for every shire ( to be chosen, and fewer burgesses ; whereby the num• ber of the whole was much lessered ; and yet, the 6 people being left to their own election, it was not, . by him, thought an ill temperament, and was then

[ocr errors]

parliament, so much and so justly com


(y) Claren. “ generally looked upon as an alteration fit to be more don, Vol. We o warrantably made, and in a better time().' Indeed, P. 495.

at first sight, it appears that very little room was, or could be given in this way, for bribery and corruption, whether from private hands or the publick exchequer. The first speech to the parliament that met September 3, 1654, was calculated to footh the members, as well as give them great hopes from the new government. After having told them what things he had already done, and what a prospect there was, through their means, of advancing the happiness of the nation, the protector added, Having said this, and, perhaps, omitted many • other material things through the frailty of my me

mory, I shall exercise plainness and freedom with you, . in telling you, that I have not spoken these things as « one that assumes to himself dominion over you; but « as one that doth resolve to be a fellow fervant with « you, to the interest of these great affairs, and to the “ people of these nations. The parliament, after some needful preliminaries, fell upon business. On the 5th of September it was resolved by them that the house do take the matter of the government into debate the first business to morrow morning. On that day it was again resolved upon the question, that the subject-matter of the debate to morrow morning faal) he, whether the house shall approve the government shall be in one fingle person and a parliament. Accordingly, on the three following days, this important subject was de

bated, wherein the courtiers and republicans exerted (z) Journals, themselves (z). Cromwell was alarmed at these pro

ceedings, and, on the 12th of the fame month, fent a message to the parliament, defiring them to meet him in the painted chamber. The members being come, he made, according to his custom, a long speech, expressing bis resentment at their conduct, telling them what he expected from them, or else what they niuft trust to. Among others we find the following paf


the wall approve, fiament. Accofubject was died

« PreviousContinue »