unto those that were guilty of high treason; and so he repeated the form of judgment given against such, the extremity and rigour whereof was expressed in these words, onere, frigore, et fame.' For the first, he was to receive his punishment by the law; to be extended, and then to have weights laid upon him, no more than he was able to bear, which were by little and little to be increased.

"For the second, that he was to be exposed in an open place, near to the prison, in the open air, being naked.

"And lastly, that he was to be preserved with the coarsest bread that could be got, and water out of the next sink or puddle to the place of execution, and that day he had water he should have no bread, and that day he had bread he should have no water; and in this torment he was to linger as long as nature could linger out, so that oftentimes men lived in that extremity eight or nine days; adding further, that as life left him, so judgment should find him.”

But (u), it will be said, in that age similar absurdities were to be found in the law of all countries. My answer is, first, that the cruelties in the law of other countries, shocking and pernicious as they were, might answer some conceivable purpose. Torture might extract the truth, and contribute, in some cases, to the detection of guilt, as well as to the oppression of innocence, whereas it is the peculiar and provoking distinction of many absurdities of our law, that they arise solely from a childish love of form, and are pointed to no object or aim whatever; it is not that they are wrong means to a particular end, but that there is no end at all to which they are directed-they are mere wanton, gratuitous nonsense. For instance, how did it forward the ends of justice that the prisoner should repeat the words "and by my country," before

(u) 1 find, though I did not know it when I wrote this passage, that Selden has made the same remark. In other countries, he says, the use of torture is intelligible; with us it is done at command, without inquiry and without an object.

he was tried? In what way did such articulated air contribute to the detection of his guilt? What crimes did it reveal? What gap in the evidence did it supply? How did it lighten the duties of the judge, or lessen the responsibilities of the jury? You give a man the alternative of perishing, without a trial, in torture, or of consenting to a particular mode of trial. Of what value is his consent? And yet, for the sake of this miserable fallacy, that the ministers of justice might say, "Prisoner, you have put yourself for trial upon your country, which country have found you guilty," a form of expression which had some meaning when it was originally used, and the prisoner might have chosen ordeal or trial by battle-(either of them, by the way, better guarantees of innocence than a trial under the auspices of my Lord Coke, or Jeffreys, or Saunders),—for the sake of such solemn foppery as this, men, accused and untried, were subjected for centuries to the most hideous tortures. Secondly, I would remark that this enlightened practice continued to be the law of England till the twelfth year of George the Third (t). Such were the enlarged, philosophical views, and such the disinterested love of humanity, which characterized the members of our Legislature (u). And this outrage on reason and humanity (which, if the Encyclopedists or Mirabeau had invented it, would have been the topic of incessant invective, and have furnished the enemies of freedom and of discussion with a weapon to the latest posterity) continued to be solemnly enacted in Courts of justice, in a country in which sat a deliberative assembly composed of representatives freely chosen by the people.

In Weston's case, when the trial did proceed, every species

(t) Blackstone takes credit for its abolition then as a proof of our liberality!

(u) Lord Hervey tells us, that it was an avowed maxim of Sir R. Walpole, never to promote any one in the Law or the Church who had suggested any reform in either.

of irregularity was committed; examinations of witnesses, who might have been heard vivâ voce, were read, confessions put in, and Coke interposed repeatedly against the prisoner, guilty most undoubtedly, but not so guilty as others who escaped. As a specimen of Lord Coke's judicial integrity, take the following passage:—

"And for this purpose his Majesty hath, with his own hand, written two sheets of paper on both sides, concerning justice to be administered to all parties which were to be examined; which writing the Lord Chief Justice shewed to the Lord Mayor, and the rest of the Commissioners; and then he declared the King's justice."

And here, as it suited his purpose, he laid down the following just and simple principles for the direction of the jury :— "That albeit the poisoning in the indictment is said to be with rosalgar, white arsenick, and mercury sublimate, yet the jury were not to expect precise proof in that point, shewing how impossible it were to convict a poisoner who useth not to take any witnesses to the composing of his sibber sauces; wherefore he declared the law in the like case; as if a man be indicted for murdering a man with a dagger, and it fall out upon evidence to have been done with a sword or with a rapier, or with neither, but with a staff; in this case the instrument skilleth not, so that the jury find the murder. And so in this prisoner's case, if they would be satisfied of the poisoning, it skilleth not with what.”

Why, indeed, it should be necessary to state a particular poison in the indictment, when another poison might be proved,—what purpose was answered by such a proceeding,— how it contributed to assist the prisoner, or further the purposes of justice, my Lord Coke did not state; nor, though the law in this respect continued to be the same, has any one pointed out a reason for a course which, however analogous to other portions of our law, is scarcely to be vindicated on any principle of sense or equity.

Before Weston had resolved to plead (v), Sir E. Coke adopted a course of proceeding altogether without example and without warrant; "he called upon Sir Lawrence Hyde, the Queen's Attorney, and those of council for the King, to manifest unto the audience the guilt of Weston by his own confession, and if, in the declaration thereof, they meet with any great persons whatever, as certainly there were great ones confederate in that fact," he was "boldly and faithfully" to state what another person had said against them. Such a proceeding, if the value of a cabbage had been at stake, Sir E. Coke well knew was contrary to the first principles of positive law and of natural justice.

This, however, was done; and Hyde, encouraged by the Court, called the marriage of the Earl of Somerset, a marriage made, as we have seen, under the immediate auspices of the King, and sanctioned by the authority of the prelates of the English church, "an adulterous marriage ;" and that the Countess of Somerset (in no way before the Court) "was a dead and rotten branch, which, being lopt off, the noble family of Howard would prosper the better." All this wicked injustice did Sir E. Coke, holding the scales of justice with so firm a hand as we are told, allow to proceed without restraint or interruption. On the 23rd of October Weston pleaded; an event which Sir E. Coke ascribes, with his usual sincerity, to the immediate interposition of the Holy Ghost, but which, in all probability, was owing to a false promise of the Attorney General. The examinations and confessions were read, a witness was called, who repeated a speech of Weston to the effect that he hoped the great flies would not escape if the little ones were caught,--and Weston was convicted. Sir E. Coke's irregular proceeding, in allowing the examinations to be read before the prisoner pleaded, had, it seems, attracted notice, for after

(v) This proceeding, says Mr. Amos, is one of the unfair that occurs in the history of the English law. p. 379.

most irregular and Trial of Somerset,

Weston's conviction he told the jury the outrageous falsehood, "that by the laws of the land they ought and were bound to do so, notwithstanding the greatness of any who might thereby be impeached;" of whom, though they had never been placed upon their trial, this upright judge went on to say, with equal taste and probity, that it was "unum crimen," but not "unicum crimen." In the mean time, notwithstanding Coke's dislike to "auricular communications" with a judge, he kept up a close and anxious correspondence with James as to the demeanour of the prisoner.

In passing sentence, Lord Coke went out of his way to assure his audience, "that there was no practice of conspiracy in prosecuting this business;" "he solemnly protested to God that he knew of none, nor of any semblance or colour thereof; and therefore he much inveighed against the baseness and unworthiness of such as went about so untruly and wickedly to slander the course of justice." Those who know anything of the character of Lord Coke will not be disposed to attach much importance to his appeal to Heaven; but what this passage of officious servility does shew beyond question is, that suspicion was excited, that the public murmured, and that those murmurs did not spare Coke's master. Nothing else would have elicited such a vindication.

The next trial was that of Mrs. Turner. That she was the friend of that abandoned woman, the Countess of Somerset, is certain; and that she was privy to Overbury's death is very probable but evidence of that crime, in the report of her trial, there is none: though letters and conversations, to which she was not a party, were given in evidence against her. The oracle of English law, before the jury were charged, told the prisoner, in their presence, that she had the seven deadly sins, viz., a whore, a bawd, a sorcerer, a witch, a papist, and a murderer.

Elwes, the Lieutenant of the Tower, was next tried. I

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