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“ As for going about to make or raise a rebellion; that, likewise, is a thing so wicked, and withal impracticable, that it never entered into my thoughts. Had I been disposed to it, I never found, by all my observation, that there was ‘the least disposition or tendency to it in the people. And it is known, rebellion cannot be now made here, as in former times, by a few great men.
“ I have been always for preserving the ge‘ vemment upon the due basis, and ancient foundation; and for having things redressed in a legal parliamentary way ; always against all irregularities and innovations whatsoever; and so I shall be, I am sure, to my dying day, be it The Solicitor-General then addressed the Court in favour of the prosecution. He was followed by Jefl'eries, who, alluding to Lord Essex, said, that had he not been conscious of his guilt, he would scarcely have brought himself to an untimely end to avoid the methods of public justice.
sooner or later.” ‘’
* l have copied this speech from the original manuscript in Lord Russell’s hand-writing; endorsed by Lady Russell, “ My lord’s own hand ; concerns his trial.” In the printed trial, the whole substance of the speech appears, but in two different places, pp. (H4. 625. Though evidently intended to be spoken altogether, he probably divided it for the sake of convenience at the time. In the printed speech there are also several omissions and mistakes. It begins with “mighty unfortunate,” instead of “ very unfortunate." “ With what measure you mete, it shall be measured unto you,” is left out, 81c. And the just remark of Lord Russell, that a rebellion could not be then made as formerly by a few great. men, is changed into “we have few great men.” Dalry'mple, always falling into blunders for the Lsake of effect, improves upon this. After mentioning how the audience received the
The Lord Chief Justice, after summing up the evidence, told the jury, “ The question before you will be, whether upon this whole matter, you do believe my Lord Russell had any design upon the King’s life, to destroy the King, or take away his life; for that is the material part here. It is used and given you by the King’s counsel as an evidence of this, that he did conspire to raise an insurrection, and to cause a rising of the people, to make, as it were, a rebellion within the nation, and to surprise the King’s guards, which, say they, can have no other end but to seize and destroy the King; and it is a great evidence, (if my Lord Russell did design to seize the King’s guards, and make an insurrection in
the kingdom,) of a design to surprise the King’s person. It must be left to you upon the whole matter. You have not evidence in this case, as there was in the other matter, that was tried in the morning, or yesterday, against the conspirators, to kill the King at the Rye. There was a direct evidence of a consult to kill the King, that is not given you in this case. This is an act of contriving rebellion, and an insurrection within the kingdom, and to seize his guards, which is urged as an evidence, and surely is in itself an evidence, to seize and destroy the King.” ‘a
The Court then adjourned till four o’clock ; when the jury brought in their verdict of Guilty of the said High Treason.
IT’lS by no means my intention to discuss at length the legal questions which are involved in the trial of Lord Russell. The first of these questions respects the competency‘of a jury not composed of freeholders: the second concerns the nature of his offence. By an Act of Henry V., no person is to serve on a jury, in capital cases, but freeholders to the amount of 40s. The crown lawyers argued, that this provision was repealed by the Act of the first of Queen Mary ; but that Act merely repeals all laws creating treasons since the statute of Edward III., and does not at all interfere with the mode of trial. Lord Russell, therefore, was not legally tried. With respect to the second question, whoever will take the trouble to read the Act of the 25th Edward 111., and look over the various prosecutions which have been brought under it, will be convinced that the present law of‘ high treason is a law of the judges, and not of the legislature. The Act provides, that “ treason shall be said,” “ when a man doth compass or imagine the death of our Lord the King ;” or, “ if’ a man do levy war against our Lord the King, in his realm.” Lawyers have decided that the first of these species of treason extends to any conspiracy to levy war, in order to put any personal restraint , . upon the King, because the graves of princes are near their prisons ; or in order to depose the King, because that is a civil death; or in order to oblige him to alter his measures of government, or remove evil counsellors from about him, because these purposes cannot be effected by open force, without manifest danger to his person. Such interpretations, it is evident, are so far from flowing directly from the law, that they can only be deduced from it, by doubtful reasoning, and arbitrary definition. The second species of high treason, mentioned above, is construed‘ to mean a rising, not against the King’s person, but against his Majesty, to effect any general purpose; as to pull down all meeting-houses, destroy all enclosures, 8w.‘ These extensions of the law of treason were attempted by Richard II. and Henry VIII. with the consent of‘ the