been prepared to prove that he had published the obnoxious pamphlet.'

In the next case in which we find Holt engaged, his duties as an advocate and his political propensities fully coincided he was counsel for Lord Russell. But, in those days, a barrister had little opportunity for a display of talent in the defence of persons accused of high treason; for his mouth was closed, and, indeed, his capacity of advocate was not acknowledged by the Court, except when some question of law incidentally arose during the trial. During the impanneling of the jury, exception was made to one of them, on behalf of the prisoner, for not having a freehold; and the question was raised "whether it was required, either by the common law or statute, that, on trials for treason, jurymen should be freeholders?" This was very learnedly argued by Holt; but all his authorities and reasonings were overruled. During the remainder of the trial he had to look on as a mere spectator,-while the illustrious prisoner, assisted only by a heroic woman, in vain struggled against the chicanery of the counsel for the Crown, and the browbeating of corrupt Judges. Holt's own upright and merciful demeanor in the seat of justice may, in part, be ascribed to the horror which the closing scene of this sad tragedy was calculated to inspire.

In civil cases, eager for victory, he seems not to have been very scrupulous as to the arguments he urged, but -according to the American phrase, now naturalized in Westminster Hall,-to have "gone the whole hog." Thus, in the case of the East India Company v. Sandys, in which the question was, whether the King's grant to the plaintiffs of an exclusive right to trade to all countries east of the Cape of Good Hope gave them a right of action against all who infringed their monopoly, he boldly argued that, although such a grant touching the Christian countries of Europe might be bad if not confirmed. by Parliament, the King's subjects had no right to hold intercourse of any kind with Infidels without the express authority of the Crown; citing Lord Coke's doctrine

Rex v. Smith, 7 St. Tr. 931.

The refusal of a challenge to the jurors for want of freehold was made one of the principal grounds for reversing the attainder. 9 St. Tr. 696.

that "Infidels are perpetual enemies, and the Book of Judges, which shows "how the children of Israel were perverted from the true religion by converse with the heathen nations round about, from whom they took wives and concubines." On this occasion he laid him

self open to the severe sarcasm of his opponent, Sir George Treby, who observed, "I did a little wonder to hear merchandizing in the East Indies objected against as an unlawful trade, and did not expect so much divinity in the argument: I must take leave to say that this notion of Christians not to have commerce with infidels is a conceit absurd, monkish, fantastical, and fanatical." Jeffreys, however, was the judge, and he fully adopted the argument that the King's license alone can legalize a trading with infidels; adding sentiments which will make true protectionists venerate his memory: "This island supported inhabitants in many ages without any foreign trade at all, having in it all things necessary for the life of man-Terra suis contenta bonis, non indiga mercis. And truly I think, if at this day East India commodities were absolutely prohibited, though some few traders might be mulcted of enormous gains, it would be for the general benefit of the inhabitants of this realm." So Holt had the triumph, and, I fear, was not ashamed of it; although, when he was himself on the bench, he would sooner have died than have pronounced such a judgment. His most creditable appearance at the bar was in the case of the Earl of Macclesfield v. Starkey,' in which the question arose, "whether an action for defamation could be maintained against a grand juryman for joining in a presentment at the assizes which charged the plaintiff and other gentlemen of the county of Chester as promoters of schism, disaffection, and infidelity, because they had signed an address to Whig members of Parliament, commending the principles of that party?" Holt was for the defendant, and, in a most masterly manner, entered into the distinction between publications that are criminatory and malicious, and the publications that are criminatory without being malicious; showing that no persons are to be sued for acting in the discharge 110 St. Tr. 519; Lives of the Chancellors, v. 585. 10 St. Tr. 371.

Ibid. 1351.

of their duty with a view to the public good, although the character of individuals might thereby be prejudiced; and laying down with wonderful force the grand principle on which the legislature in our time passed the act declaring that the two Houses of Parliament have the right to publish whatever they deem necessary for the information of the community without the danger of an action or indictment against their officers. He succeed ed; less, probably, from the force of his argument, than from the fact that the defendant was a violent Tory, and that the presentment was highly agreeable to the Gov

ernment.

Although ever consistent and zealous in his Whig principles, Holt never associated himself with Shaftesbury, nor entered into the plots which exposed the leaders of the party to the penalties of treason; and, when James II. came to the throne, so moderate did he appear that an attempt was made to gain him over to the Court, and a hope was entertained that he might prove a useful tool in carrying on the scheme which had been deliberately concerted for the subversion of public liberty.

By the famous QUO WARRANTO, the charters of London had been adjudged to be forfeited, and the appointment of all the city officers was in the Crown. Sir Thomas Jenner had accordingly been made Recorder by royal mandate, without the intervention of the aldermen or the common council; and when he was promoted to be a Baron of the Exchequer, the vacant Recordership was offered to Mr. Holt. Although not unaware of the motive by which the Government was actuated, he thought he was not at liberty to refuse a judicial office, and he accepted it, fully determined, in a resolute manner, to perform its duties. He actually seemed, for a short space, to be likely to become an associate of Jeffreys, for, having taken the degree of the coif,' he was immediately promoted to the high dignity of King's Sergeant, and had the honor of knighthood conferred upon him. But he was soon called upon either to maintain

On this occasion he gave rings with the motto-" Deus, Rex, Lex," which is noticed by Bishop Kennet as honorably distinguished from that of the last receding batch of sergeants,-"A Deo Rex, a Rege Lex," setting the King above the Law.

his integrity and to sacrifice office, or really to be degraded to the level of the corrupt Judges who were ready to act according to the orders they received from the ministers of the Crown.

James II. hoped to subvert the religion of the country by the exercise of his dispensing power, and its liberties by keeping up a standing army in time of peace, without the authority of parliament. All his Judges in Westminster Hall, with the exception of Baron Street, had decided that, in spite of acts of parliament requiring the oath of supremacy and the declaration against transubstantiation, he might appoint a Roman Catholic to any office, civil, military, or ecclesiastical; and all these perverters of the laws, except Chief Justice Herbert and Justice Wythens, had given an opinion that an old statute of Edward III. against desertion in time of war empowered the King to keep up, and to rule by martial law, an army raised by his own authority, at a time when he had no foreign enemy and there was profound tranquility at home. Both these questions incidentally arose before Holt, sitting as Recorder at the Old Bailey sessions; and he firmly declared, that although the dispensing power claimed by the Crown had been applied, from ancient times, to statutes imposing pecuniary penalties given to the King, it could not extend to a statute imposing a test to protect the religion of the nation; and that although the King by his prerogative might enlist soldiers, even in time of peace, still, if there was no statute passed to punish mutiny, and to subject them to a particular discipline, they could not be punished for any military offense, and they were only amenable to the same laws as the rest of the King's subjects. The Recordership of London being, under the existing regime, held during the pleasure of the Crown, Holt was immediately removed from it, and was replaced by an obscure Sergeant-at-law, of the name of Tate, who had the recommendation of being ready to hold that the King of England was as absolute as the Grand Signor.

By a refinement of malice he was allowed to continue King's Sergeant, for in the state proscecutions which were impending he was thus effectually prevented from acting

as counsel for the accused, while it was unnecessary to employ him for the Crown. Accordingly, he was not trusted with a brief to assist in trying to convict the Seven Bishops; and they, being deprived of his advocacy, which they would have been eager to secure, were obliged to employ several counsel who were suspected to be under the influence of the Government—and might have been betrayed, if Mr. Somers, till then unknown, had not been added to their number.'

But Holt was summoned, in his capacity of King's Sergeant, to attend the Council assembled by the King, when it was too late, to investigate the circumstances of the birth of the Prince of Wales, and to expose the calumnious story that a supposititious chlld had been introduced in the Queen's bed-chamber in a warming-pan. He assisted in examining the witnesses who proved so satisfactorily her pregnancy and her delivery, and in drawing up the declaration by which an ineffectual attempt was made to disabuse the public mind.

I do not find that Holt joined in the invitation to the Prince of Orange, or that he took any active part in the revolutionary movement till after the flight of King James-when the throne, by all good Whigs, was considered vacant. He then declared that he was completely released from his allegiance to the abdicated monarch, and exerted himself to bring about a settlement which, disregarding hereditary right, should establish a constitutional monarchy, justly esteemed by him the best guarantee for true freedom.

When the Peers first met and formed a provisional government, as they could have no confidence in the legal advice of the Judges, Holt, with several other liberal lawyers, attended them as theira ssessors, and concurred in the proceedings which terminated in the Prince of Orange summoning the Convention Parliament.'

The Diary of the second Lord Clarendon shows that Holt, as King's Sergeant, was obliged to refuse taking a brief for the plaintiff in a suit against the Queen Dowager Catherine of Braganza, although he was not employed for her. The noble diarist, not aware of professional etiquettes, seems to have been very angry; and declares that the only honest lawyers he ever met with were two " thurrough Tories" like himself, Roger North and Sir Charles Porter.

5 Parl. Hist. 19, 21, 24.