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"course, prove any crime, either against the "said Earl, or any other person, who either now "is, or hereafter shall be, in his council, he will "leave him or them to their own legal defence, "without interposing to protect them." By these words he tacitly gave up the power assumed in the case of the Earl of Danby. Mr. Seymour, the great opponent of the Exclusion Bill in the Commons, was impeached for diverting money, when treasurer of the navy, to other purposes than those to which it had been appropriated. It is impossible to say whether this charge was founded, or not, but the use made of it at this time to punish a very different offence, was factious and ungenerous. The Commons next proceeded to the trial of Lord Stafford, one of the five Popish lords in the Tower. He had to contend not only with the improbable evidence of Oates, Dugdale, and Turberville, but also witJi the legal talents of Maynard, and Jones ; the result was that he was found guilty by 55 peers, against 31 who acquitted him. Amongst those who voted him guilty, were the Duke of Lauderdale, Lord Guildford, Lord Sunderland, Lord Nottingham, and Lord Anglesey, all staunch supporters of the prerogative. Lord Stafford, after his condemnation, told Burnet, who had
very interesting to the nation, which would implicate the Duke of York, and other great men, little suspected; and he desired to know if he might obtain a pardon for the discovery. Doctor Burnet communicated his proposal to Lord Russell, and others, who said that if he told the whole truth, they would do all they could in his behalf. Upon this, he asked to be brought to the House of Lords, where he began a history of all the counsels that had taken place in concert with the Duke .of York, since the King's restoration, for the re-establishment of the Catholic religion, by means of a toleration. But upon the mention of Lord Shaftesbury as one of,the conspirators,thexe was great tumult in the House, and he was desired to withdraw. ?*
iBoth Lord Shaftesbury and t&e Puke were enraged with (this attempt to impeach them } and no effort in Lord Stafford's favour could have been afterwards made (with success*,.
The Sheriffs, Bethel and iCornish, ,djd fflQt allow the last scene -of Lord Stafford's &fe tp pass without debate. Hhe &ing having, ,uj«n
* It is said, in James's Life, that Doctor Burnet was not allowed to see Lord Stafford without the presence of a warder, and all this story is tacitly contradicted. But 'Burnet's positive evidence weighs, with me, mqre>eban this the prayer of the House of Lords, remitted that part of the sentence which ordered him to be drawn and quartered, they put the following queries to the House of Commons : —
1st. Whether the King, being neither judge, nor party, can order the execution?
2d. Whether the Lords can award the execution?
3d. Whether the King can dispense with any part of the execution?
4th. If the King can dispense with some part of the execution, why not with all? *
Serjeant Maynard said that he considered these questions as an artifice of the Papists to to make a difference between the Lords and Commons. Sir William Jones, though he allowed that, according to Lord Coke, a nobleman, judged to be hanged for felony, could not legally be beheaded by the King's warrant, observed, that Englishmen were in their nature not severe, and that the substance of the sentence might be performed without the circumstance. He concluded by moving this extraordinary vote, which passed without opposition:
* The reader will observe how different this is from Mr. Hume's way of stating the question of the sheriff', — "Since he cannot pardon the whole,'* said they, "how can he have power to remit any part of the sentence ?** Hume, vol. viiL p. 143.
.— ** That this House is content that execution "be done upon Lord Stafford, by severing his "head from his body."
Lord Russell is said to have been one of those who approved of the barbarous interference of the sheriffs. Echard is the only authority I know for this story. * His words are, speaking of Lord Russell, "Whatever may be said of his standing up for the liberties of his country, he can hardly be cleared from thirsting after the blood of others; especially the Lord Stafford, against whom his zeal transported him so far, that he was one of those, who, with Bethel and Cornish, questioned the King's power in allowing that Lord to be only beheaded." Burnet, Kennet, Reresby, North, and Evelyn, are silent on the subject. It does not appear by the parliamentary History of Grey, Chandler, or Cobbett, that Lord Russell took any part in the debate in the Commons; and I know not that Mr. Hume had any authority for saying that ** Lord Russell, notwithstanding the virtue and humanity of his character, seconded in the House the barbarous scruple of the sheriffs." Yet the testimony of Echard is sufficient for inducing us to think it probable, that Lord Russell, in some way or other, gave his approbation 1o the
* Echard, vol. ii. p. 694.
queries of the sheriffs, and it is undoubtedly1 •the circumstance, if true, the most to be la« mented in his whole life.
It is the privilege of the philosopher, and the duty of the historian, to mark such actions with unqualified censure. But to 'men engaged in the business of public life, such an occurrence may suggest further reflections. They must feel how much of their conduct, even when directed to the most laudable objects, must be tinged by the errors attached to hasty judgment, the confidencce inspired by party fellowship, and the violence roused by perpetual contention. How many of their most applauded scenes want a defence in the eye of reason! how much of what is now their boast will require an apology at the tribunal of posterity I
It is, no doubt, the observation of these errors, which has often led men of scrupulous delicacy into a worse fault, and induced them to decline all co-operation in political concerns. They thus hecome totally useless to 4heir country; and to avoid the chance of -being wrong, omit the opportunity of performing durable and essential services.
There is one more observation to be made on the conduct of *Lord Russell on this occasion. It must not be supposed that he wished to aggravate the pgjp ^of JU>rd Stafford's situation.