whom the shameful ransom was paid is described by some as her father, by some as her brother, and by some as her husband. Lastly, the story is one which, long before Kirke was born, had been told of many other oppressors, and had become a favorite theme of novelists and dramatists. Two politicians of the fifteenth century, Rhynsault, the favorite of Charles the Bold, and Oliver le Dain, the favorite of Louis the Eleventh, had been accused of the same crime. Cintio had taken it for the subject of a romance; Whetstone had made out of Cintio's narrative the rude play of Promos and Cassandra; and Shakspeare had borrowed from Whetstone the plot of the noble tragicomedy of Measure for Measure. As Kirke was not the first, so he was not the last, to whom this excess of wickedness was popularly imputed. During the reaction which followed the Jacobin tyranny in France, a very similar charge was brought against Joseph Lebon, one of the most odious agents of the Committee of Public Safety, and, after inquiry, was admitted even by his prosecutors to be unfounded.*

The government was dissatisfied with Kirke, not on account of the barbarity with which he had treated his needy prisoners, but on account of the interested lenity which he had shown to rich delinquents.† He was soon recalled

from the west. A less irregular, and, at the same time, a more cruel massacre, was about to be perpetrated. The vengeance was deferred during some weeks. It was thought

*The silence of Oldmixon and of the compilers of the Western Martyrology would alone seem to me to settle the question. It also deserves to be remarked that the story of Rhynsault is told by Steele in the Spectator, No. 491. Surely it is hardly possible to believe that, if a crime exactly resembling that of Rhynsault had been committed within living memory in England by an officer of James the Second, Steele, who was indiscreetly and unseasonably forward to display his Whiggism, would have made no allusion to that fact. For the case of Lebon, see the Moniteur, 4 Messidor, l'an 3. + Sunderland to Kirke, July 14 and 28, 1685. "His majesty," says Sun derland, "commands me to signify to you his dislike of these proceedings, and desires you to take care that no person concerned in the rebellion be at large'

desirable that the Western Circuit should not begin till the other circuits had terminated. In the mean time the jails of Somersetshire and Dorsetshire were filled with thousands of captives. The chief friend and protector of these unhappy men in their extremity was one who abhorred their religious and political opinions, one whose order they hated, and to whom they had done unprovoked wrong, Bishop Ken. That good prelate used all his influence to soften the jailers, and retrenched from his own episcopal state that he might be able to make some addition to the coarse and scanty fare of those who had defaced his beloved cathedral. His conduct on this occasion was of a piece with his whole life. His intellect was indeed darkened by many superstitions and prejudices; but his moral character, when impartially reviewed, sustains a comparison with any in ecclesiastical history, and seems to approach as near as human infirmity permits to the ideal perfection of Christian virtue.*

His labor of love was of no long duration. A rapid and effectual jail delivery was at hand. Early in September, Jeffreys, accompanied by four other judges, set out on that circuit of which the memory will last as long as our race and language. The officers who commanded. the troops in the districts through which his course lay had orders to furnish him with whatever military aid he might require. His ferocious temper needed no spur; yet a spur was applied. The health and spirits of the lord keeper had given way. He had been deeply mortified by the coldness of the king and by the insolence of the chief justice, and could find little consolation in looking back on a life, not indeed blackened by any atrocious crime,

* I should be very glad if I could give credit to the popular story that Ken, immediately after the battle of Sedgemoor, represented to the chiefs of the royal army the illegality of military executions. He would, I doubt not, have exerted all his influence on the side of law and of mercy, if he had been present. But there is no trustworthy evidence that he was then in the west at all. It is certain from the journals of the House of Lords that, on the Thursday before the battle, he was at Westminster. It is equally certain that, on the Monday after the battle, he was with Monmouth in the Tower.

So

but sullied by cowardice, selfishness, and servility. deeply was the unhappy man humbled, that, when he appeared for the last time in Westminster Hall, he took with him a nosegay to hide his face, because, as he afterward owned, he could not bear the eyes of the bar and of the audience. The prospect of his approaching end seems to have inspired him with unwonted courage. He determined to discharge his conscience, requested an audience of the king, spoke earnestly of the dangers inseparable from violent and arbitrary counsels, and condemned the lawless cruelties which the soldiers had committed in Somersetshire. He soon after retired from London to die. He breathed his last a few days after the judges set out for the west. It was immediately notified to Jeffreys that he might expect the great seal as the reward of faithful and vigorous service.*

At Winchester the chief justice first opened his commission. Hampshire had not been the theater of war; but many of the vanquished rebels had, like their leader, fled thither. Two of them, John Hickes, a Nonconformist divine, and Richard Nelthorpe, a lawyer who had been outlawed for his share in the Rye House Plot, had sought refuge at the house of Alice, widow of John Lisle. John Lisle had sat in the Long Parliament and in the High Court of Justice, had been a commissioner of the great seal in the days of the Commonwealth, and had been created a lord by Cromwell. The titles given by the Protector had not been recognized by any government which had ruled England since the downfall of his house; but they appear to have been often used in conversation even by Royalists. John Lisle's widow was therefore commonly known as the Lady Alice. She was related to many respectable, and to some noble families, and she was generally esteemed even by the Tory gentlemen of her county; for it was well known to them that she had deeply

*North's Life of Guildford, 260, 263, 273; Mackintosh's View of the Reign of James the Second, page 16, note; Letter of Jeffreys to Sunderland, Sept. 5, 1685.

regretted some violent acts in which her husband had borne a part, that she had shed bitter tears for Charles the First, and that she had protected and relieved many Cavaliers in their distress. The same womanly kindness which had led her to befriend the Royalists in their time of trouble would not suffer her to refuse a meal and a hiding-place to the wretched men who now entreated her to protect them. She took them into her house, set meat and drink before them, and showed them where they might take rest. The next morning her dwelling was surrounded by soldiers. Strict search was made. Hickes was found concealed in the malt-house, and Nelthorpe in the chimney. If Lady Alice knew her guests to have been concerned in the insurrection, she was undoubtedly guilty of what in strictness is a capital crime; for the law of principal and accessory, as respects high treason, then was, and is to this day, in a state disgraceful to English jurisprudence. In cases of felony, a distinction, founded on justice and reason, is made between the principal and the accessory after the fact. He who conceals from justice one whom he knows to be a murderer, though liable to punishment, is not liable to the punishment of murder; but he who shelters one whom he knows to be a traitor is, according to all our jurists, guilty of high treason. It is unnecessary to point out the absurdity and cruelty of a law which includes under the same definition, and visits with the same penalty, offenses lying at the opposite extremes of the scale of guilt. The feeling which makes the most loyal subject shrink from the thought of giving up to a shameful death the rebel who, vanquished, hunted down, and in mortal agony, begs for a morsel of bread and a cup of water, may be a weakness, but it is surely a weakness very nearly allied to virtue; a weakness which, constituted as human beings are, we can hardly eradicate from the mind without eradicating many noble and benevolent sentiments. A wise and good ruler may not think it right to sanction this weakness, but he will generally connive at it, or punish it very tenderly. In no case will he treat it as a

crime of the blackest dye. Whether Flora Macdonald was justified in concealing the attainted heir of the Stuarts, whether a brave soldier of our own time was justified in assisting the escape of Lavalette, are questions on which casuists may differ; but to class such actions with the crimes of Guy Faux and Fieschi is an outrage to humanity and common sense. Such, however, is the classification of our law. It is evident that nothing but a lenient administration could make such a state of the law en. durable. And it is just to say that, during many generations, no English government, save one, has treated with rigor persons guilty merely of harboring defeated and flying insurgents. To women especially has been granted, by a kind of tacit prescription, the right of indulging, in the midst of havoc and vengeance, that compassion which is the most endearing of all their charms. Since the beginning of the great civil war, numerous rebels, some of them far more important than Hickes or Nelthorpe, have been protected against the severity of victorious governments by female adroitness and generosity; but no English ruler who has been thus baffled, the savage and implacable James alone excepted, has had the barbarity even to think of putting a lady to a cruel and shameful death for so venial and amiable a transgression.

Odious as the law was, it was strained for the purpose of destroying Alice Lisle. She could not, according to the doctrine laid down by the highest authority, be convicted till after the conviction of the rebels whom she had harbored.* She was, however, set to the bar before either Hickes or Nelthorpe had been tried. It was no easy matter in such a case to obtain a verdict for the crown. The witnesses prevaricated. The jury, consisting of the principal gentlemen of Hampshire, shrank from the thought of sending a fellow-creature to the stake for conduct which seemed deserving rather of praise than of blame. Jeffreys was beside himself with fury. This was the first case of treason on the circuit, and there seemed to be a

* See the preamble to the act reversing her attainder.

PP