CHRONOLOGICAL LIST OF CASES.

INTRODUCTION.

No period of English history is more important in the history of law (especially the criminal law), than the reign of Charles II., with regard to the law of treason this is particularly the case. Up to the Restoration, the Government had recourse to legislation, whenever it sought for new powers. The time for the development of the law by legislation had then passed away; it is even doubtful if then any great development of the law by judicial decision was possible. It is true that a special Act making the law of treason more severe during Charles's life was passed soon after the Restoration', but it is remarkable that prosecutions for treason under that Act are comparatively rare. It was the old law of treason, founded on the Act of Edward III, that the Government used as their great instrument of repression. It has been the fashion for nearly all modern historians to speak of the administration of justice between the Restoration and the Revolution in language so strong, that it at once raises a suspicion that it is used either for party purposes, or to confirm preconceived ideas, not to express opinions derived from a study of the proceedings of the courts. Strong language is always attractive, especially when used against political opponents. One writer uses it, he is cited by another as an authority for it, and so abuse passes into accepted fact. Modern Chief Justices speak of their predecessors as "monsters disguised as judges." Grave historians speak of the

1 13 Car. II. c. 1, p. 53. 2 Lord Campbell, Lives of C. J., Vol. 11. 380.

courts entrusted with the administration of the law as "tribunals disgraced by the brutal manners and iniquitous partiality of the Bench'."

It appears presumptuous to say anything in opposition to what popular opinion has so long accepted as true, yet attention may be called to the fact that here, as elsewhere, there are two sides; that it is quite possible not only to say much, but to prove a good deal in defence of the administration of the Criminal Law under Charles II., to shew that the judges did not extend, but only applied the law of treason as it came to them from their predecessors. It is a proposition capable of demonstration, that the trials under Charles II. were fairer, and the law in favour of the prisoners better administered, than at any previous period of our history. Before the Restoration, a State trial was a formality that had to be transacted before a prisoner could legally be put to death. After the Restoration, a State trial was a judicial proceeding in which a prisoner had a chance of escaping. This will be seen from the following figures. In upwards of 300 trials recorded in the first volume, including those under the Commonwealth, there are not 12 acquittals. In the first twenty years of Charles II. out of some 150 trials there are some 30 acquittals. It is true that in the

reports of these trials there is much we find reason to blame; the behaviour of the judges to the prisoners, their ex parte observations, their assumption of the prisoners' guilt, all jar upon our ideas as to the administration of justice. It is also true that the reports of the trials were generally prepared under the authority of the judges, so it may well be that much that would tell for the prisoners or against the judges is omitted, but after making every allowance, the fact remains that Charles II.'s judges administered the law more fairly than it had ever been previously administered in England. This statement is startling. It is opposed to one's preconceived notions to read of a Stuart judge directing a jury to find a special verdict so that a point of law might be argued in a prisoner's favour, or to find that Chief

1 Hallam, Const. Hist. Vol. II. 426.