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and Sir Bartholomew Shower, being assigned as counsel for him, was making some apologies for the boldness of the line of defense adopted. Holt, C. F.: "Never make apologies, Sir Bartholomew, for it is as lawful for you to be counsel in this case as it is in any other case in which the law allows counsel. It is expected you should do your best for those you are assigned to defend against the charge of high treason (though for attempting the King's life), as it is expected in any other case that you do your duty to your client." He summed up, however, with energy, taking care, as he always properly did, to assist the jury in coming to a right conclusion. Thus he began:-"The prisoner is indicted for high treason in designing and compassing the death of the King, which was to be effected by an assassination in the most barbarous and wicked manner, being to surprise the King and murder him in his coach. The question, gentlemen, is, whether this prisoner be guilty of the crime, or no?”'

Holt's conduct, in presiding at these trials, was applauded even by the Tories. But a charge was brought against him, by Ralph, of straining the law of high treason to please the Government, in the case of Sir John Friend.' The bigoted historian, having bitterly censured the conviction, says, with affected candor, "The Lord Chief Justice Holt, who presided on this occasion, has in general the character of an upright judge; but almost all lawyers have narrow minds, and, by the whole drift of their studies, find themselves biassed to adhere to the King against the prisoners." The direction given to the jury on this occasion, when examined, will be found quite unexceptionable. The prisoner was indicted for compassing the King's death, and was clearly proved to have had the design of dethroning him. An overt act relied upon was, despatching a deputy to France to invite the French King to send over an army to assist those confederated against the Government. Having summed up the evidence, the Chief Justice said:

"Now, Sir John Friend insists, as a matter of law, that as the statute of Edward III. makes two treasons, 113 St. Tr. 154. * Ib. 263. 8 Ib. I

one compassing the death of the King, and another the levying of war; and as war was not actually levied in this case, a bare conspiracy or design to levy war does not come within this law against treason. For that, I must tell you, gentlemen, that if there be only a conspiracy to levy war, it is not treason; but if the design be either to kill the King, or to depose him, or imprison him, or put any force or restraint upon him, and the way or method of effecting the object is by levying war, then the conspiracy to levy war for that purpose is high treason, though no war be levied; for such conspiracy is an overt act, proving the compassing the death of the King. If a man designs the death, deposition, or destruction of the King, and, to effect the design, agrees and consults to levy war,-that this should not be high treason, no war being actually levied, is a very strange. doctrine, and the contrary has always been held to be law. There may be war levied without any design upon. the King's person, or endangering of it, which, if actually levied, is high treason; but a bare design to levy war, without more, does not amount to that offense."

This distinction is fully justified by prior authorities, and has ever since been adhered to. Erskine, in his celebrated defense of Hardy, actually cites this very passage with applause, saying, "If I had anything at stake short of the life of the prisoner, I might sit down. as soon as I have read it; for if one did not know it to be an extract from an ancient trial, one would say it was admirably and accurately written for the present purpose.'

Without meaning any reflection upon Holt, who 113 St. Tr. 1-64. The late statute, II Vict., c. 12, will probably for ever put an end to such questions, as we shall henceforth have no trials for high treason unless where there has been an actual design against the person of the sovereign, or an actual levying of war, or an actual adhering to the King's enemies. Conspiracies to bring about a revolution in the government, or to levy war, will henceforth be prosecuted as felonies. This ap pears to me to be a great improvement in our criminal code. The construction put upon the statute of Edward III., that a conspiracy to levy war was an overt act, to prove a compassing of the King's death, was very strained and far-fetched. Different offenses against the state are now properly discriminated, and between treason and misdemeanor an intermediate class is established, with easy means of prosecution and an appropriate punishment. The conviction of Mitchell upon this statute has proved its efficacy. (May 29, 1848.)

always maintained his character as a good Whig, I must mention his doctrine respecting the liberty of the press, which shows that, in the second reign after the Revolution, the legal right of political discussion had not yet been acquired. If this doctrine were now acted upon, the "Government Journal," which supports, through thick and thin, all the measures of the administration for the time being, would have a monopoly, and there is hardly a newspaper published in the United Kingdom which might not be prosecuted as libelous. On the trial of the printer of the OBSERVATOR, for an article abusing Queen Anne's ministers pretty freely, but in language which we should consider very innocent, the defendant's counsel having attempted to justify it, Holt, C. J., observed: "I am surprised to be told that a writing is not a libel which reflects upon the government, and endeavors to possess the people with the notion that the government is administered by corrupt persons. If writers should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. You are to consider whether the words which I have read to you do not tend to beget an ill opinion of the administration of the government. Their purport is, that 'those who are employed know nothing of the matter, and those who do know are not employed; that men are not adapted to offices, but offices to men, out of a particular regard to their interest and not to their fitness.' The defendant was accordingly found

guilty.'

114 St. Tr. 1128. But although such was considered the letter of the law, the periodical press was much less decorous than at the present day, and the private life of public men was then mercilessly exposed and traduced. Any one now writing of political opponents as Swift did of Cowper, with whom he had been on terms of intimate friendship, would be expelled from society.

CHAPTER XXIV.

CONTINUATION OF TIIE LIFE OF LORD CHIEF JUSTICE HOLT TILL THE TERMINATION OF HIS CONTESTS

I

WITH THE TWO HOUSES OF PARLIAMENT.

NOW come to Holt's contests with the two Houses of Parliament, from which his popularity has principally arisen. The first was with the House of Lords, and throughout the whole of it he conducted himself most laudably-strictly confining himself within the jurisdiction of his court; and, while he nobly vindicated his own independence, never seeking an opportunity for display or wantonly hazarding a collision between rival authorities.

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An indictment for murder having been found against Charles Knowllys, Esqr., and removed by certiorari into the Court of King's Bench, he pleaded in abatement "that he was a peer of the realm, and ought to be tried by peers, being, as of right, Earl of Banbury, and lineally descended from William Knowllys, created Earl of Banbury by King Charles II." That the replication stated, That the prisoner had presented a petition to the Lords spiritual and temporal, praying that he might be tried by them on this charge, and that parliament had thereupon, secundum legem et consuetudinem, resolved that he had no right to the Earldom of Banbury." There was a demurrer to the replication, and the Lords very absurdly were much offended that the Court of King's Bench did not instantly, in conformity to this resolution, overrule the plea. But, after solemn argument, Holt gave judgment that the plea was good, and the replication badmainly upon the ground that this could not be considered res judicata as the Lords had no authority to decide a question of peerage except on a reference from the Crown, and, therefore, that their resolution respecting the Earldom of Banbury was a proceeding coram non jib

dice and a nullity. Having clearly shown the Lords had no original jurisdiction on the subject, and that the question of the prisoner's right to be tried as a peer had never been judicially brought before them, he observed.—

"I admit that the House of Peers has jurisdiction over its own members, and is a supreme court; but it is the law which has vested them with such ample authority, and therefore it is no diminution to their power to say that they ought to observe the limits prescribed for them by this law, which, in no respects, hath made them so great. As to the averment in the replication that the judgment was secundum legem et consuetudinem parliamenti,' I know no reason for its introduction by the King's counsel unless they thought to frighten the Judges: but I regard it not; for though I have great respect and deference for both Houses of Parliament, yet I sit here to administer justice according to the law of the land, and the oath I have sworn. Inheritances are to be determined not by the custom of parliament, but by the common law of England, which is the birthright of every Englishman. Custom ought to consist in usage, and I desire to see the precedent of such judgments. No precedent hath been alleged to warrant the determining inheritances originally per legem parliamenti. If inheritances were determinable by the Lords without their having jurisdiction, they would have uncontrollable power, and 'res est misera, ubi jus est vagum."

So judgment was given in favor of the plea in abatement, and the prisoner was discharged without being tried.

It is quite clear that Holt had not in the slightest degree encroached on the privileges of the House of Lords. His court had jurisdiction of the murder only upon the supposition that the party accused was a commoner, and, unless a sufficient answer was given to the plea that he was a peer, its jurisdiction was gone. The resolution of the Lords on his petition, being a proceeding coram non judice, was no answer at all, and the trial before the King's Bench therefore could not possibly go on.

Knowllys, when set at liberty, still assumed the title of Earl of Banbury, and, two or three years afterwards,