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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as offering encouragement to perjurers, but also as suppressing or deteriorating the evidence of the witnesses of truth.

The principal shortcoming of perfection in the prosecution of State Offences with regard to Witnesses, in the reign of Charles II., was that of a prisoner's witnesses upon charges of treason and felony not being sworn. This rule was attended with prejudice to the prisoner, inasmuch as the testimony of his witnesses was, on that account, deemed of inferior weight to that of the sworn witnesses of the Crown, in the estimation of Juries and the public. Nor did the Crown Lawyers and the Judges fail to depreciate the witnesses of prisoners for a defect which the law forbad to be remedied. Thus, upon the trial of Gascoigne for the Popish Plot, Chief Justice Jones thought he had annihilated the credit of a witness for the prisoner, when he told the Jury, "Gentlemen, you have the King's witness on oath, he that testifies to the contrary is barely upon his word, and besides he is a Papist."

Sir Matthew Hale states the Rule of the witnesses of a prisoner being unsworn as applicable to capital cases, and adds, that "the reason thereof is not manifest." It is, however, obvious that the reasons of it were the thirst of arbitrary Sovereigns for vengeance, and their avidity for forfeitures. For the same reasons, until the time of Queen Mary, and during the massacres of Henry VIII., no witnesses sworn or unsworn were allowed to be adduced against the Crown.

Sir Edward Coke, after stating, that a Statute creating a particular new felony had provisions fit to be imitated in all new felonies, (such as exemption from escheat, from corruption of blood, and from loss of dower,) adds, "and witnesses for the prisoner to be examined on oath;" on which last provision he observes, "And to say the truth, we never read in any Act of Parliament, ancient author, book case, or record, that, in criminal cases, the party accused should not have witnesses sworn for him; and, therefore, there is not so much as a scintilla juris

against it. And I well remember when the Lord Treasurer Burleigh told Queen Elizabeth, Madam, here is your AttorneyGeneral (I being sent for), Qui pro dominâ Regina sequitur,' she said, she would have the form of records altered, for it should be Attornatus-Generalis qui pro domina veritate sequitur.""

By the Treason Act of William III. (7 Willm. III. c. 3) a prisoner's witnesses were made examinable upon oath in cases of treason; but it was not till a Statute of Anne, (1 Ann. st. 2. c. 9,) that they became so examinable in felony also. Thus fell a practice glaringly unjust, reprobated and pronounced to be unsupported by a scintilla of law, according to Coke, but, nevertheless, habitually enforced by him, wondered at by Hale, and which survived the liberal reign of William III.

A prisoner, by the Treason Act of William III., was empowered to have the like process to compel his witnesses to appear for him, as was usually granted to compel witnesses to appear against prisoners; the absence of such a provision was a defect of procedure in the prosecution of State Offences in the reign of Charles II. In many trials of that reign, the prisoner might with as little success have called for his witnesses, as invoked spirits from the vasty deep. One Turner, tried for felony, in 1664, told the Court that his witnesses sent him word that they dared not come without an order; to which the Chief Justice answered, "When witnesses come against the King, we cannot put them to their oaths, much less precept them to come." It may be supposed that witnesses would be very reluctant to appear for a prisoner upon a State prosecution before such a Judge as Jeffreys. They might have anticipated a scolding like that received by a Wapping scrivener, of whom Jeffreys, on being informed that he was a Trimmer, said, "A Trimmer! I have heard of such a monster, but never saw one; turn you round, Mr Trimmer, and let me see your face." In the Hall, one of the scrivener's friends asked him how he came off? "Come off," said he, "I am escaped from the terrors of that

man's face, which I would scarce undergo again to save my life; and I shall certainly have the frightful impression of it as long as I live." His memory of the Judge proved tenacious, when, at the Revolution, this same scrivener recognised Jeffreys in the disguise of a seaman, holding a pot in his hand, in a cellar at Wapping, intending to escape by sea. The sight of the nautical Judge's visage again made the Trimmer start.

Two Witnesses in cases of treason seem to have been admitted, at least from the time of the trial of Stafford, as being required by a Statute of Edward VI., but, as Michael Foster observes, Sir Matthew Hale "fluctuateth between two opposite opinions," upon the point whether the Statute of Edward VI. had been repealed by a Statute of Mary? The Judges, at the close of the reign of Charles II., might have been less unwilling to profess what was clearly the correct view of this question, as they had invented a device for preserving the outward ceremony of requiring two witnesses, whilst frittering away its substance. This device will be best explained by Chief Justice Jeffreys, in his charge to the Jury upon Algernon Sydney's trial: "Not long ago all the Judges of England were commanded to meet together, and one that is the Senior of the King's Counsel was pleased to put this case: If I buy a knife of I. S., to kill the King, and it be proved by one witness that I bought a knife for this purpose, and another comes and proves I bought such a knife of I. S., they are two witnesses sufficient to prove a man guilty of high treason. And so it was held by all the Judges of England then present, in the presence of all the King's Counsel."

It was, moreover, the law of the reign of Charles II., that a Paper might be a witness within the meaning of the Statute of Edward VI. The Solicitor-General said of the old polemical disquisition found in Sydney's closet: "This Book will be another, and more than two witnesses against the prisoner." And Jeffreys, in his summing up, says, that the prisoner's guilt

stands, "not upon two, but on twenty-two witnesses, if you believe this book was written by him."

The necessity for two witnesses upon prosecutions for high treason was placed beyond doubt by the Treason Act of William. The expediency of the Rule itself may be open to question. It has been canvassed by Bentham, and, since his time, has been modified by a Statute of Victoria, (5th and 6th Vic. c. 51,) whereby, when an overt act of treason is the assassination, or a direct attempt against the life or person of the Sovereign, a conviction may be supported by the like evidence as if the prisoner stood charged with murder, consequently by a single witness.

Accomplices do not appear to have been subject as to their testimony, in the reign of Charles II., to the modern quasi Rule of law, rendering their corroboration practically though not technically indispensable. But, at all times, the confirmation of an accomplice must have been deemed of importance to the credit of his testimony. No usage appears to have prevailed, as at present, of cautioning a Jury against adopting, for the confirmation of an accomplice, any corroboration of his story which does not touch the identity of a prisoner. In Algernon Sydney's case, Lord Howard, the single witness to any treasonable act as of his own knowledge, was an accomplice, and shewn to be one of the vilest character, (Evelyn calls him a "monster of a man"): he had deposed that Sydney sent word to Scotland, that confederates from that Country should come to London. The corroboration of Lord Howard's whole story was, that the confederates indicated had been seen in London, and, upon the discovery of the Rye-house Plot, had absconded. It is obvious that the corroborating witnesses might have been speaking what was perfectly true, and yet that Lord Howard himself, and not Sydney, might have sent for the confederates to come to London. The fabula might have been invented to square with circumstances of undoubted occurrence, or might have been true, except as to the point in issue who were the Actores fabulæ ?