The History of England, from the Accession of James the Second - Volume 4 by Thomas Babington Macaulay (well read books txt) π
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man has fired at one of his fellow subjects should not be sufficient to prove that he has fired at his Sovereign. It can by no means be laid down as a general maxim that the assertion of two witnesses is more convincing to the mind than the assertion of one witness. The story told by one witness may be in itself probable. The story told by two witnesses may be extravagant. The story told by one witness may be uncontradicted. The story told by two witnesses may be contradicted by four witnesses. The story told by one witness may be corroborated by a crowd of circumstances. The story told by two witnesses may have no such corroboration. The one witness may be Tillotson or Ken. The two witnesses may be Oates and Bedloe.
The chiefs of the Tory party, however, vehemently maintained that the law which required two witnesses was of universal and eternal obligation, part of the law of nature, part of the law of God. Seymour quoted the book of Numbers and the book of Deuteronomy to prove that no man ought to be condemned to death by the mouth of a single witness. "Caiaphas and his Sanhedrim," said Harley, "were ready enough to set up the plea of expediency for a violation of justice; they said,-and we have heard such things said,-'We must slay this man, or the Romans will come and take away our place and nation.' Yet even Caiaphas and his Sanhedrim, in that foulest act of judicial murder, did not venture to set aside the sacred law which required two witnesses." "Even Jezebel," said another orator, "did not dare to take Naboth's vineyard from him till she had suborned two men of Belial to swear falsely." "If the testimony of one grave elder had been sufficient," it was asked, "what would have become of the virtuous Susannah?" This last allusion called forth a cry of "Apocrypha, Apocrypha," from the ranks of the Low Churchmen.760
Over these arguments, which in truth can scarcely have imposed on those who condescended to use them, Montague obtained a complete and easy victory. "An eternal law! Where was this eternal law before the reign of Edward the Sixth? Where is it now, except in statutes which relate only to one very small class of offences. If these texts from the Pentateuch and these precedents from the practice of the Sanhedrim prove any thing, they prove the whole criminal jurisprudence of the realm to be a mass of injustice and impiety. One witness is sufficient to convict a murderer, a burglar, a highwayman, an incendiary, a ravisher. Nay, there are cases of high treason in which only one witness is required. One witness can send to Tyburn a gang of clippers and comers. Are you, then, prepared to say that the whole law of evidence, according to which men have during ages been tried in this country for offences against life and property, is vicious and ought to be remodelled? If you shrink from saying this, you must admit that we are now proposing to dispense, not with a divine ordinance of universal and perpetual obligation, but simply with an English rule of procedure, which applies to not more than two or three crimes, which has not been in force a hundred and fifty years, which derives all its authority from an Act of Parliament, and which may therefore be by another, Act abrogated or suspended without offence to God or men."
It was much less easy to answer the chiefs of the opposition when they set forth the danger of breaking down the partition which separates the functions of the legislator from those of the judge. "This man," it was said, "may be a bad Englishman; and yet his cause may be the cause of all good Englishmen. Only last year we passed an Act to regulate the procedure of the ordinary courts in cases of treason. We passed that Act because we thought that, in those courts, the life of a subject obnoxious to the government was not then sufficiently secured. Yet the life of a subject obnoxious to the government was then far more secure than it will be if this House takes on itself to be the supreme criminal judicature in political cases." Warm eulogies were pronounced on the ancient national mode of trial by twelve good men and true; and indeed the advantages of that mode of trial in political cases are obvious. The prisoner is allowed to challenge any number of jurors with cause, and a considerable number without cause. The twelve, from the moment at which they are invested with their short magistracy, till the moment when they lay it down, are kept separate from the rest of the community. Every precaution is taken to prevent any agent of power from soliciting or corrupting them. Every one of them must hear every word of the evidence and every argument used on either side. The case is then summed up by a judge who knows that, if he is guilty of partiality, he may be called to account by the great inquest of the nation. In the trial of Fenwick at the bar of the House of Commons all these securities were wanting. Some hundreds of gentlemen, every one of whom had much more than half made up his mind before the case was opened, performed the functions both of judge and jury. They were not restrained, as a judge is restrained, by the sense of responsibility; for who was to punish a Parliament? They were not selected, as a jury is selected, in a manner which enables the culprit to exclude his personal and political enemies. The arbiters of his fate came in and went out as they chose. They heard a fragment here and there of what was said against him, and a fragment here and there of what was said in his favour. During the progress of the bill they were exposed to every species of influence. One member was threatened by the electors of his borough with the loss of his seat; another might obtain a frigate for his brother from Russell; the vote of a third might be secured by the caresses and Burgundy of Wharton. In the debates arts were practised and passions excited which are unknown to well constituted tribunals, but from which no great popular assembly divided into parties ever was or ever will be free. The rhetoric of one orator called forth loud cries of "Hear him." Another was coughed and scraped down. A third spoke against time in order that his friends who were supping might come in to divide.761 If the life of the most worthless man could be sported with thus, was the life of the most virtuous man secure?
The opponents of the bill did not, indeed, venture to say that there could be no public danger sufficient to justify an Act of Attainder. They admitted that there might be cases in which the general rule must bend to an overpowering necessity. But was this such a case? Even if it were granted, for the sake of argument, that Strafford and Monmouth were justly attainted, was Fenwick, like Strafford, a great minister who had long ruled England north of Trent, and all Ireland, with absolute power, who was high in the royal favour, and whose capacity, eloquence and resolution made him an object of dread even in his fall? Or was Fenwick, like Monmouth, a pretender to the Crown and the idol of the common people? Were all the finest youths of three counties crowding to enlist under his banners? What was he but a subordinate plotter? He had indeed once had good employments; but he had long lost them. He had once had a good estate; but he had wasted it. Eminent abilities and weight of character he had never had. He was, no doubt, connected by marriage with a very noble family; but that family did not share his political prejudices. What importance, then, had he, except that importance which his persecutors were most unwisely giving him by breaking through all the fences which guard the lives of Englishmen in order to destroy him? Even if he were set at liberty, what could he do but haunt Jacobite coffeehouses, squeeze oranges, and drink the health of King James and the Prince of Wales? If, however, the government, supported by the Lords and the Commons, by the fleet and the army, by a militia one hundred and sixty thousand strong, and by the half million of men who had signed the Association, did really apprehend danger from this poor ruined baronet, the benefit of the Habeas Corpus Act might be withheld from him. He might be kept within four walls as long as there was the least chance of his doing mischief. It could hardly be contended that he was an enemy so terrible that the State could be safe only when he was in the grave.
It was acknowledged that precedents might be found for this bill, or even for a bill far more objectionable. But it was said that whoever reviewed our history would be disposed to regard such precedents rather as warnings than as examples. It had many times happened that an Act of Attainder, passed in a fit of servility or animosity, had, when fortune had changed, or when passion had cooled, been repealed and solemnly stigmatized as unjust. Thus, in old times, the Act which was passed against Roger Mortimer, in the paroxysm of a resentment not unprovoked, had been, at a calmer moment, rescinded on the ground that, however guilty he might have been, he had not had fair play for his life. Thus, within the memory of the existing generation, the law which attainted Strafford had been annulled, without one dissentient voice. Nor, it was added, ought it to be left unnoticed that, whether by virtue of the ordinary law of cause and effect, or by the extraordinary judgment of God, persons who had been eager to pass bills of pains and penalties, had repeatedly perished by such bills. No man had ever made a more unscrupulous use of the legislative power for the destruction of his enemies than Thomas Cromwell; and it was by an unscrupulous use of the legislative power that he was himself destroyed. If it were true that the unhappy gentleman whose fate was now trembling in the balance had himself formerly borne a part in a proceeding similar to that which was now instituted against him, was not this a fact which ought to suggest very serious reflections? Those who tauntingly reminded Fenwick that he had supported the bill which attainted Monmouth might perhaps themselves be tauntingly reminded, in some dark and terrible hour, that they had supported the bill which had attainted Fenwick. "Let us remember what vicissitudes we have seen. Let us, from so many signal examples of the inconstancy of fortune, learn moderation in prosperity. How little we thought, when we saw this man a favourite courtier at Whitehall, a general surrounded with military pomp at Hounslow, that we should live to see him standing at our bar, and awaiting his doom from our lips! And how far is it from certain that we may not one day, in the bitterness of our souls, vainly invoke the protection of those mild laws which we now treat so lightly! God forbid that we should ever again be subject to tyranny! But God forbid, above all, that our tyrants should ever be able to plead, in justification of the worst that they can inflict upon us, precedents furnished by ourselves!"
These topics, skilfully handled, produced a great effect on many moderate Whigs. Montague did his best to rally his followers. We still possess the rude outline of what must have been a most effective peroration. "Gentlemen warn us"-this, or very
The chiefs of the Tory party, however, vehemently maintained that the law which required two witnesses was of universal and eternal obligation, part of the law of nature, part of the law of God. Seymour quoted the book of Numbers and the book of Deuteronomy to prove that no man ought to be condemned to death by the mouth of a single witness. "Caiaphas and his Sanhedrim," said Harley, "were ready enough to set up the plea of expediency for a violation of justice; they said,-and we have heard such things said,-'We must slay this man, or the Romans will come and take away our place and nation.' Yet even Caiaphas and his Sanhedrim, in that foulest act of judicial murder, did not venture to set aside the sacred law which required two witnesses." "Even Jezebel," said another orator, "did not dare to take Naboth's vineyard from him till she had suborned two men of Belial to swear falsely." "If the testimony of one grave elder had been sufficient," it was asked, "what would have become of the virtuous Susannah?" This last allusion called forth a cry of "Apocrypha, Apocrypha," from the ranks of the Low Churchmen.760
Over these arguments, which in truth can scarcely have imposed on those who condescended to use them, Montague obtained a complete and easy victory. "An eternal law! Where was this eternal law before the reign of Edward the Sixth? Where is it now, except in statutes which relate only to one very small class of offences. If these texts from the Pentateuch and these precedents from the practice of the Sanhedrim prove any thing, they prove the whole criminal jurisprudence of the realm to be a mass of injustice and impiety. One witness is sufficient to convict a murderer, a burglar, a highwayman, an incendiary, a ravisher. Nay, there are cases of high treason in which only one witness is required. One witness can send to Tyburn a gang of clippers and comers. Are you, then, prepared to say that the whole law of evidence, according to which men have during ages been tried in this country for offences against life and property, is vicious and ought to be remodelled? If you shrink from saying this, you must admit that we are now proposing to dispense, not with a divine ordinance of universal and perpetual obligation, but simply with an English rule of procedure, which applies to not more than two or three crimes, which has not been in force a hundred and fifty years, which derives all its authority from an Act of Parliament, and which may therefore be by another, Act abrogated or suspended without offence to God or men."
It was much less easy to answer the chiefs of the opposition when they set forth the danger of breaking down the partition which separates the functions of the legislator from those of the judge. "This man," it was said, "may be a bad Englishman; and yet his cause may be the cause of all good Englishmen. Only last year we passed an Act to regulate the procedure of the ordinary courts in cases of treason. We passed that Act because we thought that, in those courts, the life of a subject obnoxious to the government was not then sufficiently secured. Yet the life of a subject obnoxious to the government was then far more secure than it will be if this House takes on itself to be the supreme criminal judicature in political cases." Warm eulogies were pronounced on the ancient national mode of trial by twelve good men and true; and indeed the advantages of that mode of trial in political cases are obvious. The prisoner is allowed to challenge any number of jurors with cause, and a considerable number without cause. The twelve, from the moment at which they are invested with their short magistracy, till the moment when they lay it down, are kept separate from the rest of the community. Every precaution is taken to prevent any agent of power from soliciting or corrupting them. Every one of them must hear every word of the evidence and every argument used on either side. The case is then summed up by a judge who knows that, if he is guilty of partiality, he may be called to account by the great inquest of the nation. In the trial of Fenwick at the bar of the House of Commons all these securities were wanting. Some hundreds of gentlemen, every one of whom had much more than half made up his mind before the case was opened, performed the functions both of judge and jury. They were not restrained, as a judge is restrained, by the sense of responsibility; for who was to punish a Parliament? They were not selected, as a jury is selected, in a manner which enables the culprit to exclude his personal and political enemies. The arbiters of his fate came in and went out as they chose. They heard a fragment here and there of what was said against him, and a fragment here and there of what was said in his favour. During the progress of the bill they were exposed to every species of influence. One member was threatened by the electors of his borough with the loss of his seat; another might obtain a frigate for his brother from Russell; the vote of a third might be secured by the caresses and Burgundy of Wharton. In the debates arts were practised and passions excited which are unknown to well constituted tribunals, but from which no great popular assembly divided into parties ever was or ever will be free. The rhetoric of one orator called forth loud cries of "Hear him." Another was coughed and scraped down. A third spoke against time in order that his friends who were supping might come in to divide.761 If the life of the most worthless man could be sported with thus, was the life of the most virtuous man secure?
The opponents of the bill did not, indeed, venture to say that there could be no public danger sufficient to justify an Act of Attainder. They admitted that there might be cases in which the general rule must bend to an overpowering necessity. But was this such a case? Even if it were granted, for the sake of argument, that Strafford and Monmouth were justly attainted, was Fenwick, like Strafford, a great minister who had long ruled England north of Trent, and all Ireland, with absolute power, who was high in the royal favour, and whose capacity, eloquence and resolution made him an object of dread even in his fall? Or was Fenwick, like Monmouth, a pretender to the Crown and the idol of the common people? Were all the finest youths of three counties crowding to enlist under his banners? What was he but a subordinate plotter? He had indeed once had good employments; but he had long lost them. He had once had a good estate; but he had wasted it. Eminent abilities and weight of character he had never had. He was, no doubt, connected by marriage with a very noble family; but that family did not share his political prejudices. What importance, then, had he, except that importance which his persecutors were most unwisely giving him by breaking through all the fences which guard the lives of Englishmen in order to destroy him? Even if he were set at liberty, what could he do but haunt Jacobite coffeehouses, squeeze oranges, and drink the health of King James and the Prince of Wales? If, however, the government, supported by the Lords and the Commons, by the fleet and the army, by a militia one hundred and sixty thousand strong, and by the half million of men who had signed the Association, did really apprehend danger from this poor ruined baronet, the benefit of the Habeas Corpus Act might be withheld from him. He might be kept within four walls as long as there was the least chance of his doing mischief. It could hardly be contended that he was an enemy so terrible that the State could be safe only when he was in the grave.
It was acknowledged that precedents might be found for this bill, or even for a bill far more objectionable. But it was said that whoever reviewed our history would be disposed to regard such precedents rather as warnings than as examples. It had many times happened that an Act of Attainder, passed in a fit of servility or animosity, had, when fortune had changed, or when passion had cooled, been repealed and solemnly stigmatized as unjust. Thus, in old times, the Act which was passed against Roger Mortimer, in the paroxysm of a resentment not unprovoked, had been, at a calmer moment, rescinded on the ground that, however guilty he might have been, he had not had fair play for his life. Thus, within the memory of the existing generation, the law which attainted Strafford had been annulled, without one dissentient voice. Nor, it was added, ought it to be left unnoticed that, whether by virtue of the ordinary law of cause and effect, or by the extraordinary judgment of God, persons who had been eager to pass bills of pains and penalties, had repeatedly perished by such bills. No man had ever made a more unscrupulous use of the legislative power for the destruction of his enemies than Thomas Cromwell; and it was by an unscrupulous use of the legislative power that he was himself destroyed. If it were true that the unhappy gentleman whose fate was now trembling in the balance had himself formerly borne a part in a proceeding similar to that which was now instituted against him, was not this a fact which ought to suggest very serious reflections? Those who tauntingly reminded Fenwick that he had supported the bill which attainted Monmouth might perhaps themselves be tauntingly reminded, in some dark and terrible hour, that they had supported the bill which had attainted Fenwick. "Let us remember what vicissitudes we have seen. Let us, from so many signal examples of the inconstancy of fortune, learn moderation in prosperity. How little we thought, when we saw this man a favourite courtier at Whitehall, a general surrounded with military pomp at Hounslow, that we should live to see him standing at our bar, and awaiting his doom from our lips! And how far is it from certain that we may not one day, in the bitterness of our souls, vainly invoke the protection of those mild laws which we now treat so lightly! God forbid that we should ever again be subject to tyranny! But God forbid, above all, that our tyrants should ever be able to plead, in justification of the worst that they can inflict upon us, precedents furnished by ourselves!"
These topics, skilfully handled, produced a great effect on many moderate Whigs. Montague did his best to rally his followers. We still possess the rude outline of what must have been a most effective peroration. "Gentlemen warn us"-this, or very
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