seemed to give a sanction to it. But what is unreasonable never satisfies. It was urged that trials by juries were the birthrights of Englishmen; that all trials for Treason were to be trad and used only according to the due order and course of the common laws of the realm, and not otherwise, upon inquest 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 Commissioners themselves being both grand and petty jury, and judges like wise, if not parties interested, to whom no peremptory or legal challenges could be made; and finally, that such proceedings were con trary to Magna Charta; the Petition of Right; the Declarations of the Parliament; and to an article in the Instrument of Government which was sworn to by the Protector himself. How good soever these pleas might have been, they were not suffered to be of use to the prisoners. Judges are generally well enough satisfied of the authority by which they act, and will not have it questioned. To demur to the jurisdic tion, or refuse to answer, is equivalent to the clearest proof of guilt, and judgment is accordingly given. However, the Protector had his end by this method of proceeding. He 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 security of his highness the Lord Protector's person, and continuation of the nation in peace and safety.' In the preamble it is said, Forasmuch as the prosperity and safety of this nation-very much de'pendeth, under God, upon the security and preservation of the person of his Highness; and, for that it hath manifestly appeared, that divers wicked plots and means have been of late devised and laid, to the great endangering his Highness's person, and the embroiling this Commonwealth in new and intestine 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 maliciously proclaim, declare, publish or promote Charles Stuart, or any other person claiming from the late King; or shall aid and assist, hold intelligence with, or contribute money towards the assistance of the said Charles Stuart, his brothers or mother, &c. then all and every the offences abovementioned 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 Commissioners of the Great Seal of England for the time being, are authorised and required from time to time, by warrant from his Highness, to issue out one or more Commission or Commissions, under the Great Seal of England, to-&c.—or any seven'teen or more of them: which said Commis⚫sioners shall have authority 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 men⚫tioned, and to take order for charging the of'fender or offenders, with all or any the crimes 'aforesaid, and for the receiving their personal ' answer thereunto; 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 Misprision of Treason, according to justice and the merits of the cause.'-Commis sioners were also appointed for the same pur-prises, and for the subsequent protection of 'pose in Scotland and Ireland. This act was to continue in force unto the end of the last 'session of the next parliament, and no longer.' By this last clause it seems sufficiently evident that the framers of this law were sensible of its severity and ill consequences, However, this thought it more effectual,' says Whitelocke, ' than the ordinary course of trials at the common law, and would the more terrify the of fenders and terrify it did; 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 'consternation.' Whitelocke would not sit when nominated as a Commissioner, it being, as he says, against his judgment." Mr. Burke seems to have had a very lively sense of Cromwell's merit in providing for the able, and upright administration of justice, in cases in which his own interests were not in volved. In his "Letter to a Member of the Na tional Assembly," vol. 6, of his Works, pp. 14, 15, ed. 1808, he thus contrasts Cromwell's conduct in this respect with that of the French Revolutionists. "Your rulers brought forth a set of men steaming from the sweat and drudgery, and all black with the smoak and soot of the forge of confiscation aud robbery, 'ardentis mas sæ fuligine lippos,' a set of men brought forth from the trade of hammering arms of prouf, offensive and defensive, in aid of the enter housebreakers, murderers, traitors, and malefactors; men who had their minds seasoned with theories perfectly conformable to their practice, and who had always laughed at posse sion and prescription, and defied all the funda mental maxims of jurisprudence. To the bar For and stupefaction of all the honest part of this nation, and indeed of all nations, who are spectators, we have seen on the credit of those very practices and principles, and to carry them further into effect, those very men placed on the sacred seat of justice, in the capital city of your late kingdom. Cromwell, when he attempted to legalise his power, and to settle his conquered country in a state of order, did not look for dispensers of justice, in the instruments of his usurpation. Quite the contrary. He sought out with great solicitude and selection, and ever from the party most opposite to his designs, men of right and decorum of character, men unstained with the violence of the times, and with hauds not fouled with confiscation and sacrilege; for he chose an Hales* for his Chief Justice, though he absolutely refused to take his civic oaths, or to make any acknowledgment whatsoever of the legality of his government. Cromwell told this great lawyer, that since he did not approve his title, ali he required of him was, to administer in a manner agreeable to his pure sentiments, and unspotted character, that justice without which human society cannot subsist, that it was not his particular government, but civil order itself, which as a judge he wished to support. Cromwell knew how to separate the institutions expedient to his usurpation, from the administration of the public justice of his country. For Cromwell was a man in whom ambition had not wholly suppressed, but only suspended the sentiments of religion, and the love, as far as it could consist with his designs, of fair and Lonourable reputation. Accordingly we are indebted to this act of his, for the preservation of our laws, which some senseless asserters of the rights of men, were then on the point of erasing as relics of feudality, and barbarism. Besides he gave, in the appointment of that man, to that age, and to all posterity, the most brilliant example of sincere and fervent piety, exact justice, and profound jurisprudence. But these are not the things in which your philosophic usurpers chuse to follow Cromwell." In another place ("Remarks on the Policy of the Allies," 1793, vol. 7, same edition, p. 196) he says, "The government of Cromwell was to be sure somewhat rigid, but for a new power no savage tyranny. The country was nearly as well in his hands, as in those of Charles the second, and in same points much better. The laws in general had their course, and were admirably administered." Harris says; "He filled the benches with able and bonest judges, &c.-The historians of all parties have, by the notoriety of the fact, been forced to pay this tribute of praise to Cromwell. I could mention many; but will * The story is that Cromwell applied in person to Hale, and by long and warm persuasion prevailed on him to accept the office of judge. Hale was not made Chief Justice till the year 1671. Under Cromwell he was a Judge of C. B. VOL. V. content myself with the authorities of Clarendon and Coke, who, though of different principles, were equally foes to the government and memory of the Protector. The former affirms, "That in matters which did not concern the life of his jurisdiction, he seemed to have great reverence for the law, rarely interposing between party and party.' The latter assures us, That Westminster-IIall was never reple'nished with more learned and upright judges than by him; nor was justice either in law or equity, in civil cases, more equally distri'buted, where he was not a party.' The names of his judges, possibly, may not be unacceptable to some readers. They were as follows: the Lord Chief Justices Glyn and St. John; the Justices Warburton, Newdigate, Atkins, Hale, Windham; the Barons Nicholas, Parker, Hill. The Commissioners of the Great Seal, at first, were the famous Mr. Whitelocke, Widrington and Lenthal; afterwards Fiennes, Lisle and Lenthal. The gentlemen of the long robe still mention the names of some of these persons with great honour. How solicitous Cromwell was to appoint the most able and upright persons to fill the important posts of the law, will best appear by the following quo tations. Cromwell seeing him (Mr. Hale) possest of so much practice, and he being one of the eminentest men of the law, who was 'not at all afraid of doing his duty in those 'critical times, resolved to take him off from it, and raise him to the bench. Mr. Hale saw well enough the snare laid for him, and though he did not much consider the preju' dice it would be to himself, to exchange the easy and safer profits he had by his practice for a judge's place in the Common Pleas, which he was required to accept of, yet he did deliberate more on the lawfulness of taking a commission from usurpers; but having consi'dered well of this, he came to be of opinion, that it being absolutely necessary to have justice and property kept up at all times, it was no sin to take a commission from usurpers, if he made no declaration of his acknowledging 'their authority, which he never did. He was ' much urged to accept of it by some eminent 'men of his own profession, who were of the King's party, as sir Orlando Bridgman, and 'sir Geoffery Palmer; and was also satisfied concerning the lawfulness of it, by the resolution of some famous divines, in particular 'Dr. Sheldon and Dr. Henchman, who were 'afterwards promoted to the sees of Canterbury and London. To these were added the importunities of all his friends, who thought, that in a time of so much danger and oppression, it might be no small security to the nation, to have a man of his integrity and abili 'ties on the bench: and the usurpers them'selves held him in that estimation, that they were glad to have him give a countenance to 'their courts, and, by promoting one that was 'known to have different principles from them, affected the reputation of honouring and 'trusting men of eminent virtues, of what per 3 P 'suasion soever they might be, in relation to 'public matters.' Another work speaks more plainly on this subject. He [Cromwell] studied to seek out able and honest men, and to Mr. Barrington in his Observations on Stat. 9 Hen. 4, tells us, "It hath been often said, that the worse title the better king." employ them. And so having heard that my ed the Restoration, tells us, "So low were the Ludlow, in relating the events which precedfather had a very great reputation in Scotland, affairs of the parliament, and their authority for piety and integrity, though he knew him to be a Royalist, he sent to him, desiring him that sir Robert Pye, who had been committed so little regarded, even in Westminster Hall, to accept of a judge's place, and to do justice in his own country, hoping only that he would beas Corpus at the Upper Bench, and Judge to the Tower by their order, suing for his Hanot act against his government, but he would not press him to subscribe or swear to it.' Newdigate demanding of the counsel for the Commonwealth what they had to say why it Burnet.-How great! how generous! it was should not be granted; the counsel answered, hardly possible, but a man of such a disposi-they had nothing to say against it. Where tion must be well served." upon the Judge, though no enemy to monarchy, It is observable, that Waller in his spirited yet ashamed to see them so unfaithful to their "Panegyric to my Lord Protector, of the pre- trust, replied, That if they had nothing to say, sent Greatness and Joint Interest of his High-he had for that sir Robert Pye being comness and this Nation," does not notice this mitted by an Order of the parliament, an infe merit in Cromwell. rior court could not discharge him." 205. The Trials of TWENTY-NINE REGICIDES, at the Old Bailey, for High Treason, which began the 9th Day of October, A. D. 12 CHARLES II. 1660 INTRODUCTION. in this conjuncture; when common reason must satisfy all men, that we cannot be without assistance from abroad, we choose rather to send to you, who have it in your power to prevent that ruin and desolation which a war would bring upon the nation, and to make the whole kingdom owe the peace, happiness, security, and glory it shall enjoy, to your virtue; and to acknowledge that your armies have complied with their obligations, for which they were first raised, for the preservation of the Protes tant Religion, the honour and dignity of the king, the privileges of parliament, the liberty To Our Trusty and Well-beloved General and property of the subject, and the fundamen Monk, to be by him communicated to the tal laws of the laud; and that you have vindiPresident, and Council of State, and to the cated that trust, which others most perfidiously Officers of the Armies under his Coin-abused and betrayed. How much we desire, mand. OF the intrigues at home and abroad which preceded and accompanied the Restoration, many particulars are related by Clarendon and Ludlow. The following six were Instruments dispatched by Charles the Second to England before his arrival. They contain the assurances of mercy alluded to in the Trials of the Regicides, and in that of sir Henry Vane. The LETTER of the KING to the GENERAL and the ARMY. and resolve to contribute to those good ends, will appear to you by our inclosed Declaration. which we desire you to cause to be published for the information and satisfaction of all good subjects, who do not desire a farther effusion of precious Christian blood, but to have their peace and security founded upon that which can only support it, an unity of affections amongst ourselves, an equal administration of justice to men, restoring parliaments to a full capacity of providing for all that is amiss, and the laws of the land to their due veneration. Charles R.; — Trusty, and well-beloved, We greet you well: It cannot be believed, but that we have been, are, and ever must be, as solicitous as we can, by all endeavours to improve the affections of our good subjects at home, and to procure the assistance of our friends and allies abroad, for the recovery of that right, which, by the laws of God and man, is unquestionable, and of which we have been so long dispossessed by such force, and with those circumstances, as we do not desire to ag You have been yourselves witnesses of gravate by any sharp expressions; but rather many revolutions, and have had so much expe wish, that the memory of what is past, may be rience, how far any power and authority that buried to the world. That we have more en- only assumed by passion and appetite, and not deavoured to prepare, and to improve the af- supported by justice, is from providing for the fections of our subjects at home for our restora-happiness and peace of the people, or from re tion, than to procure assistance from abroad to invade either of our kingdoms, is as manifest to the world. And we cannot give a better evidence that we are still of the same mind, than ceiving any obedience from them (without which no government can provide for them that you may very reasonably believe, that God hath not been so well pleased with the at tempts that have been made, since he hath usually encreased the confusion, by giving all the success that hath been desired, and brought that to pass without effect, which the designers have proposed as the best means to settle and compose the nation: and therefore we cannot but hope and believe, that you will concur with us in the remedy we have applied; which, to human understanding, is only proper for the ills we all groan under; and that you will make yourselves the blessed instruments to bring this blessing of peace and reconciliation upon king and people, it being the usual method in which Divine Providence delighteth itself, to use and sanctify those very means, which ill men design for the satisfaction of private and particular ends and ambition, and other wicked purposes, to wholesome and public ends, and to establish that good which is most contrary to the designers; which is the greatest manifestation of God's peculiar kindness to a nation that can be given in this world. How far we resolve to preserve your interests, and reward your services, we refer to our Declaration; and we hope God will inspire you to perform your duty to us, and to your native country; whose happiness cannot be separated from each other. We have intrusted our well-beloved servant sir John Greenvil, one of the gentlemen of our Bed Chamber, to deliver this unto you, and to give us an account of your reception of it, and to desire you, in our name, that it may be published. And so we bid you farewel.Given at our Court at Breda, this 4-14th of April, 1660, in the twelfth year of our reign. The KING'S LETTER to the HOUSE of COMMONS. To Our Trusty, and Well-beloved, the Speaker of the House of Commons. Charles R.--Trusty and well-beloved, we greet you well: In these great and insupportable afflictions and calamities, under which the poor nation hath been so long exercised, and by which it is so near exhausted, We cannot think of a more natural and proper remedy, than to resort to those for counsel and advice, who have seen aud observed the first beginning of our miseries, the progress from bad to worse, and the mistakes and misunderstandings, which have been produced, and contributed to inconveniencies which were not intended; and after so many revolutions, and the observation of what bath attended them, are now trusted by our good subjects to repair the breaches which are made, and to provide proper remedies for those evils, and for the lasting peace, happiness, and security of the kingdom. We do assure you upon our royal word, that none of our predecessors have had a greater esteem of parliaments, than we have in our judgment, as well as from our obligation; we do believe them to be so vital a part of the constitution of the kingdom, and so necessary for the government of it, that we well know neither prince nor people can be in any tolerable degree happy without them; and therefore you may be confident, that we shall always look upon their counsels, as the best we can receive; and shall be as tender of their privileges, and as careful to preserve and protect them, as of that which is most near to ourself, and most necessary for our own preservation. And as this is our opinion of parliaments; that their authority is most necessary for the government of the kingdom; so we are most confident, that you believe, and find, that the preservation of the king's authority is as necessary for the preservation of parliaments; and that it is not the name, but the right constitution of them, which can prepare and apply proper remedies for those evils which are grievous to the people, and which can thereby establish their peace and security. And therefore we have not the least doubt, but that you will be as tender in, and as jealous of, any thing that may infringe our honour, or impair our authority, as of your own liberty and property; which is best preserved by preserving the other. How far we have trusted you in this great affair, and how much it is in your power to restore the nation to all that it hath lost, and to redeem it from any infamy it hath undergone, and to make the king and people as happy as they ought to be; you will find by our inclosed Declaration; a copy of which we have likewise sent to the house of peers: and you will easily believe, that we would not voluntarily, and of ourself, have reposed so great a trust in you, but upon an entire confidence that you will not abuse it, and that you will proceed in such a manner, and with such due consideration of us who have trusted you, that we shall not be ashamed of declining other assistance (which we have assurance of) and repairing to you for more natural and proper remedies for the evils we would be freed from; nor sorry, that we have bound up our own interests so entirely with that of our subjects, as that we refer it to the same persons to take care of us, who are trusted to provide for them. We look upon you as wise and dispassionate men, and good patriots, who will raise up those banks and fences which have been cast down, and who will most reasonably hope, that the same prosperity will again spring from those roots, from which it bath heretofore and always grown; nor can we apprehend that you will propose any thing to us, or expect any thing from us, but what we are as ready to give, as you to receive. If you desire the advancement and propagation of the Protestant Religion, we have, by our constant profession, and practice of it, given sufficient testimony to the world, that neither the unkindness of those of the same faith towards us, nor the civilities and obligations from those of a contrary profession (of both which we have had an abundant evidence) could in the least degree startle us, or make us swerve from it; and nothing can be proposed to manifest our zeal and affection for it, to which we will not readily consent. And we hope, in due time, ourself to propose some what to you for the propagation of it, that will satisfy the world, that we have always made it both our care and our study, and have enough observed what is most like to bring disadvantage to it. If you desire security for those who, in these calamitous times, either wilfully or weakly have transgressed those bounds which were prescribed, and have invaded each others rights, we have left to you to provide for their security and indemnity, and in such a way, as you shall think just and reasonable; and by a just computation of what men have done, and suffered, as near as is possible, to take care that all men be satisfied; which is the surest way to suppress, and extirpate all such uncharitableness and animosity, as might hereafter shake and threaten that peace, which for the present might seem established. If there be a crying sin, for which the nation may be involved in the infamy that attends it, we cannot doubt but that you will be as solicitous to redeem it, and vindicate the nation from that guilt and infamy, as we can be. If you desire that reverence and obedience may be paid to the fundamental laws of the land, and that justice may be equally and impartially administered to all men, it is that which we desire to be sworn to ourself, and that all persons in power and authority should be so too. In a word, there is nothing that you can propose that may make the kingdom happy, which we will not contend with you to compass; and upon this confidence and assurance, we have thought fit to send you this Declaration, that you may as much as is possible, at this distance, see our heart; which, when God shall bring us nearer together (as we hope he will do shortly) will appear to you very agreeable to what we have professed; and we hope, that we have made that right Christian use of our affliction, and that the observation and experience we have had in other countries, have been such, as that we, and, we hope, all our subjects, shall be the better for what we have seen and suffered. We shall add no more, but our prayers to Almighty God, that he will so bless your counsels, and direct your endeavours, that his glory and worship may be provided for; and the peace, honour, and happiness of the nation, may be established upon those foundations which can best support it. And so we bid you farewell. Given at our Court at Breda, this 4-14th day of April 1660, in the twelfth year of our reign. The KING'S DECLARATION. C. R. Charles, by the grace of God, king of England, Scotland, France, and Ire land, Defender of the Faith, &c. To all our loving subjects of what degree or quality soever, greeting. If the general distraction, and confusion, which is spread over the whole kingdom, doth not awaken all men to a desire, and longing, that those wounds which have so many years together been kept bleeding, may be bound up, all we can say will be to no purpose. However, after this long silence, we have thought it our duty to declare, how much we desire to contribute thereunto: and that, as we can never give over the hope, in good time, to obtain the possession of that right, which God and nature hath made our due; so we do make it our daily suit to the Divine Providence, that he will, in compassion to us, and our subjects, after so long misery and sufferings, remit, and put us into a quiet, and peaceable possession of that our right, with as little blood and damage to our people as is possible; nor do we desire more to enjoy what is ours, than that all our subjects may enjoy what by law is theirs, by a full and entire adm nistration of justice throughout the land, and by extending our mercy where it is wanted and deserved. And to the end that fear of punishment may not engage any conscious to themselves of what is past, to a perseverance in guilt for the future, by opposing the quiet and happiness of their country, in the Restoration both of king and peers, and people, to their just, ancient, and fundamental rights; we do by these pre sents declare, that we do grant a free and general Pardon, which we are ready, upon denrand, to pass under our great seal of Eng land, to all our subjects of what degree or quality soever, who within forty days after the publishing hereof, shall lay hold upon this our grace and favour, and shall by any public set declare their doing so, and that they return to the loyalty and obedience of good subjects; excepting only such persons as shall hereafter be excepted by parliament. Those only excepted, let all our subjects, how faulty soever, rely upon the word of a king, solemnly given by this present Declaration, that no crime whatsoever committed against us, or our royal father, before the publication of this, shall ever rise in judgment, or be brought in question, against any of tliem, to the least indamngement of them, either in their lives, liberties, or estates, or (as far forth as lies in our power) so much s to the prejudice of their reputations, by any reproach, or terms of distinction from the rest of our best subjects; we desiring, and ordaining, that henceforward all notes of discord, sepa ration, and difference of parties, be utterly abolished among all our subjects; whom we invite and conjure to a perfect union among themselves, under our protection, for the resettlement of our just rights, and theirs, in a free parliament; by which, upon the word of a king, we will be advised. And because the passion and uncharita bleness of the times, have produced several opinions in religion, by which men are engaged in parties and animosities against each other; which, when they shall hereafter unite in a freedom of conversation, will be composed, or better understood; we do declare a Liberty to Tender Consciences; and that no man shall be disquieted, or called in question, for differencss |