of pulling down brothels had long obtained, and they were usually repressed by officers, not punished as traitors; secondly, because the finding to pull down brothels might reasonably be intended two or three brothels, and the indefinite expression should not, in materiâ odiosâ, be construed either universally or generally; and, thirdly, because the statute 1 Mary, c. 12, makes assemblies of above twelve persons, and of as high a nature only, felony, and that not without a continuance for an hour after proclamation made." But all the judges were of a different opinion; and it was agreed by all, except Hale, that as to Messenger and Beasley in the first verdict, and as to Cotton in the second, and as to Limerick in the fourth special verdict, the matter, as it was found against the four, was high treason in them all, and they were executed. Shewing, certainly, that the law was indiscriminate in its cruelty, and impartial in its injustice; that the valley was not safer from its thunderbolts than the mountain top; and that if it struck down a pillar of state one day, it did not disdain the murder of an apprentice on the next.

In the case of Tonge and others, who were tried for high treason (1662), the Lord Chief Baron Hale gave it as his opinion," that if a culpable person be promised his pardon on condition to give evidence against the rest, that disables him to be an evidence against the others, because he is bribed by saving his life to be a witness; making a difference where the promise of pardon is for disclosing treason, and where it is for giving evidence; but the other judges did not think the promise of pardon, if he gave evidence, did disable him: but they all advised no such promise should be made, or any threatenings made to them in case they did not give full evidence." Lord Hale says, in his Pleas of the Crown, "For my own part I have always thought that if a person have a promise of pardon, if he gives evidence against one of his own confederates, this disables his testimony if proved upon him." The prisoners were convicted on the evidence of accomplices, extremely improbable in itself, and wholly without corroboration.

In answer to a question put by Serjeant Glynne, whether their testimony ought to be received, Sir Orlando Bridgman, who assisted Forster, said, "Where you make exception against those who are guilty of the same crime, it is a mistake to say they are not witnesses in cases of treason; where there are works of darkness, there are things men will not do in daylight, but in darkness, and who can discover these works better than they that have to do with them, if God turn their hearts? It is true such persons as these are, if they had been convicted, are not witnesses. But though they are in the same fault it is frequent practice, and they are allowed in cases of felony." Tonge, on being pressed with his confession, said, "I confess I did confess it in the Tower, being threatened with the rack." Ludlow tells us, that the whole charge was a scheme of the Court, which had incurred the hatred of the people by the sale of Dunkirk, and by their cruelty, immorality, and corruption, "to disarm their enemies and provide for their present safety." The prisoners were convicted on evidence which we should not think worth a moment's consideration, and were executed, asseverating their innocence to the last. How fairly they had been tried, I leave the reader to judge from the summing up of Chief Justice Forster, which was as follows:

"My masters of the jury," (said that miserable creature), "I cannot speak loud to you, you understand the nature of this business, such as I think you have not had the like precedent in your time. My speech will not give me leave to discourse of it; for the witnesses, they are none but such as may satisfy all honest men. It is clear they all agreed to subvert the government, to destroy his Majesty; what can you have more? Two of the witnesses are without exception, but I do not see any way but their testimony is good. For the parties, they in themselves are very inconsiderable; these are but the out-boughs, and if such fellows are not met withal, these kind of people are the fittest instruments to set up a Jack Straw and a Wat Tyler: therefore you must lop off these,

or else they will encourage others. You see one of their own company hath confessed the fact, out of remorse of his own conscience. But I leave the evidence to you: go together" (d).

Lord Hale, in the First Part of his Pleas of the Crown, ch. 24, reports the matter thus (e):

(d) State Trials, vol. 6, p. 261.

(e) The law, as it now stands, is thus laid down, vol. 2, p. 960, of Mr. Greaves's able and learned edition of Russell on Crimes:-"It being established that an accomplice is a competent witness, the consequence is inevitable, that if credit be given to his evidence, it requires no confirmation from another witness; and, therefore, in strictness, if the jury believe the evidence of an accomplice, they may legally convict a prisoner upon it, though it stands totally uncorroborated. But from a consideration of the situation of an accomplice, this doctrine has been greatly modified in practice; and it has long been considered as a general rule of practice, that the testimony of an accomplice ought to receive confirmation, and that unless it be corroborated in some material part by unimpeachable evidence, the presiding judge ought to advise the jury to acquit the prisoner." 1 Phill. Ev. 32. "It is a practice," said one of the most acute men that ever inhabited this country, "which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice, unless the accomplice is corroborated in some material circumstance. Now, in my opinion, that corroboration ought to consist in some circumstance that affects the identity of the party accused." Then why is it not law? Why is it left in this loose and slovenly manner? Why should not the person whose interest is affected by it have it in his power to turn to the "book where it is written," and insist upon its application? Another judge may take a different view of what is requisite. Let any one read Lord Cochrane's trial, and see if it is safe even in these days to rely implicitly on judges. I am old enough to recollect an instance where no controul of law or public opinion on the conduct of a judge, if he was trying a man who held different opinions from his own in politics, but especially in religion, would have been superfluous; and every legal reader will know the person to whom I allude, and that he is no longer on the Bench. A Code would be not an infallible, but a useful remedy in such cases. All Mr. Greaves's observations on this and every other subject he discusses, are most valuable. The general reader should not fail to study Windham's speech on the evidence in the inquiry concerning the Duke of York and Mrs. Clarke, and Cobbett's strictures upon it. As the law now stands, a judge may legally direct a jury to convict on insufficient evidence. This ought not to be.

* Lord Abinger, Rex v. Farler, 8 C. & P. 106.

"Dec, 10, 1662. Tonge, Philips, and others were indicted for treason for compassing the King's death; the question was, whether those that were parties in the compassing, which were not yet pardoned nor indicted, might be produced as witnesses, namely Riggs and others; and upon conference with all the judges these points were resolved:

"1. That the party to the treason, that confessed it, may be one of the two accusers or witnesses in case of treason, for the statute intended two such witnesses that were allowable witnesses at common law, and so may a particeps criminis be admitted as a witness, and was admitted, to give evidence to the jury; but the jury may, as in other cases, consider of the evidence and credit of the witnesses, but he is sufficient to satisfy the statute.

"2. That the confession before one of the privy council or a justice of the peace, being voluntarily made without torture, is sufficient as to the indictment or trial to satisfy the statute, and it is not necessary that it be a confession in Court; but the confession is sufficient if made before him that hath power to take an examination.

"3. The King having promised a pardon to Riggs, if he would discover the plot, he performed that part by his discovery; and this was held by all no impediment to his testimony, for the promise was not applied to witnessing against any other; but two justices [these were our author and J. Brown] held, that if the King promised a pardon upon condition that he would witness against any others, and that being acknowledged by Riggs when he took upon him to give evidence, &c., that will make him uncapable to give evidence, because he swears for himself; but in that point the greater number were of a contrary opinion, ex libro Bridgman verbatim, and I remember the consultation and resolution accordingly" (f).

Another act of scandalous intolerance, perhaps beyond any that Louis the Fourteenth, in the fulness of his arrogance and

(f) State Trials, vol. 6, p. 228.

under the influence of jesuits, committed, was accomplished by this abject Chief Justice Forster in the case of John Crook, a Quaker, who, with others, refused to take the oath of allegiance, on the ground (distinctly recognised at one time by the Canon Law (g) and the Roman Catholic Church) that oaths were prohibited by Scripture. For this single offence, "the law of England, which”—said Chief Justice Forster to the wretched prisoners-" is not only just but merciful," (State Trials, vol. 6, p. 225), provided the punishment thus announced by the judge: "The jury for the King do find that John Crook, John Bolton, and Isaac Grey are Guilty of refusing to take the Oath of Allegiance, for which you do incur a Premunire, which is the forfeiture of all your real estates during life, and your personal estates for ever, and you to be out of the King's protection, and to be imprisoned during his pleasure; and this is your sentence."

To such an extent had the legislator substituted his own pretended reason, the result, not of patient inquiry, but of selfish interest and superficial arrogance, in the place of the reason of individuals, at any rate free from all suspicion of a mercenary or ambitious bias, and applying itself in all sincerity and with all its force to the very object on which he had cast his scornful and unsteady glance. If the Church of Rome persecuted, she might plead in her defence the tradition and consent of centuries, the sanction of Councils, and the authority of names to which the world had long bowed down in implicit veneration. But what reason could the Church of England allege (except the authority of the English Parliament, which changed its creed four times in four successive reigns), to justify the persecution of Dissenters, that might not be wielded against herself with tenfold force by the Church from which she detached herself, in consequence of the refusal of the Pope to gratify the caprice and lust of an odious tyrant ?

(g) When the judges went the circuit in old times, the prelates granted licences to them to administer oaths.