otherwise they may be compelled to it by ecclesiastical rensures."

991

He put an end to the practice which had hitherto prevailed in England, and which still prevails in France, of trying to show the probability of persons having committed the offense for which they are tried by giving evidence of former offenses of which they are supposed to have been guilty. Thus, on the trial before him of Harrison, for the murder of Dr. Clench, the counsel for the prosecution calling a witness to prove some felonious design of the prisoner three years before, the Judge indignantly exclaimed, "Hold, hold! what are you doing now? Are you going to arraign his whole life? How can he defend himself from charges of which he has no notice? and how many issues are to be raised to perplex me and the jury? Away, away! that ought not to be; that is nothing to this matter.'

He likewise put an end to the revolting practice of trying prisoners in fetters. Hearing a clanking when Cranburne, charged with being implicated in the "Assassination Plot," was brought to the bar to be arraigned, he said, without any complaint having been made to him, "I should like to know why the prisoner is brought in ironed. If fetters were necessary for his safe custody before, there is no danger of escape or rescue here. Let them be instantly knocked off. When prisoners are tried, they should stand at their ease.'

A still more important improvement in criminal trials, on his suggestion, was introduced by Parliament passing an act which, for the first time, allowed witnesses called for the prisoner to be examined upon oath.*

Holt's associates in the King's Bench were very respectable men, who had either been removed for their independence by James II., or were selected from the bar for knowledge and good character. They occasionally differed from him, but never factiously combined against him. We have on the contrary, some remarkable instances of their candor. Thus, in Regina v. Tutchin, Powys and Gould having delivered opinions one way, and Powell and Holt the other, the report Britton v. Standish, Cases Temp. Holt, 141. 12 St. Tr. 833-874. 13 St. 221.

41 Ann, st. 2. c. o.

concludes with this "Memoraudum: Powys, Justice, recanted instanter, and Gould, Justice, hasitabat." At times he was too subtle and profound for them. Of this Lord Laymond gives an instance in language which shows that he had no great veneration for the puisnies. After mentioning a decisive objection to an action started by the Chief Justice, he says, "The three judges seemed to be in a surprise, and not, in truth, to comprehend this objection; and, therefore, they persisted in their former opinion, talking of 'agreements,' 'intent of the party,' binding of the land,' and I know not what; and so they gave judgment for the plaintiff, against the opinion of Holt, Chief Justice.""

We have a remarkable proof of the overwhelming weight which his opinion carried, even when he was wrong. An action being brought against the Postmaster General for the loss of Exchequer bills occasioned by the negligence of an inferior agent in the employment of the Post Office, Holt, by a false analogy, between this and actions against the sheriff and other officers who are supposed to do in person the duty the breach of which is complained of, maintained that the Postmaster General was liable. Powys, Gould, and Turton, taking a juster view of the subject, said that, although an action lies against a public officer at the suit of those who suffer a private damage from his default, it must be brought against the person who has violated the law; and that to apply the maxim respondeat superior to the head of a great department of the state would be injurious to the individual, and detrimental to the public. So judgment was given for the defendant. But the plaintiff having declared that he would bring a writ of error in the Exchequer Chamber, and, if necessary, to the House of Lords, the Postmaster General was so frightened, and considered it so certain that Holt would be declared to be in the right, that, rather than continue the litigation, he paid the whole of the demand.' One of the most whimsical questions which arose be16 Mod. 287. 2 Brewster v. Kitchen, I Lord Raym. 322.

Lowe &. Sir Robert Cotton, 1 Lord Raym. 646. This strange opinion of Holt's was solemnly overruled by the Court of King's Bench in Lord Mansfield's time; the law ever since being considered quite settled in favor of the Postmaster General· Whitefield v. Lord Le Despencer, Cowp. 745.

fore him he thus settled: "If a man be hung in chains on my land, after the body is consumed, I shall have the gibbet and chain as affixed to the freehold."

But, as a mere Judge settling civil rights, great as were his merits, he probably would soon have been known only to dull lawyers who search for precedents. It was by his conduct in presiding on the trial of state prosecutions, and in determining questions of constitutional law in which the two Houses of Parliament were parties, that he acquired an immortal reputation.

During the two last preceding Stuart reigns, the administration of criminal justice in cases in which the Crown was concerned had been becoming worse and worse, till at last it reached the utmost verge of infamy. The most powerful justification of the Revolution will be found in the volumes of the State Trials; and I have heard the late Lord Tenterden, a very zealous though enlightened defender of indefeasible hereditary right, declare that "they almost persuaded him to become a Whig." Chief Justices, worse than any before known, were turned out to make place for successors who were still more atrocious. From the proceedings on the trials of Alderman Cornish and of Mrs. Gaunt we may see that, from a course of unblushing violation of the rules framed for the protection of innocence, the judges had lost all sense of decency, and were in the habit of browbeating witnesses, insulting juries, and secking to crush the accused, without any consciousness of impropriety.

Holt had been Chief Justice little more than a year, when, as a Criminal Judge between the Crown and the subject, his qualities were put to a severe test. Lord Preston, a Scottish nobleman, had engaged in a very formidable conspiracy to dethrone King William and to restore King James. Had he succeeded, he would have been celebrated in history for his loyalty; and the first consequence would have been, that the ministers and judges now acting under royal authority would have been tried as traitors. According to recent examples, the prisoner, if not attainted by act of parliament with1 I Lord Raym. 738. But the French Courts lately decided that a stone falling from the heavens belongs to the finder and not the owner of the field in which it falls.

out the form of trial, ought, after reading some depositions against him taken in his absence, and the examination of a pretended accomplice, to have been stopped as often as he attempted to speak in his defence; and, upon a verdict of guilty by a packed jury, to have been led off to execution. But this was a new era in our judicial annals. Lord Preston had quite as patient and as fair a trial as any prisoner would have before Lord Denman in the reign of Queen Victoria. He first resolutely insisted that he was not liable to be tried in this fashion, because he was a peer of Scotland. When his plea was properly overruled, he expressed some apprehension that he might have given offence by his pertinacy; but the Chief Justice mildly observed, "My Lord, nobody blames you, though your Lordship do urge matters that cannot be supported; and we shall take care that they do not tend to your Lordship's prejudice. We consider the condition you are in; you stand at the bar for your life; you shall have all the fair and just dealing that can be; and the Court, as in duty bound, will see that you have no wrong done you." Although a clear case for the Crown was made out by witnesses of undoubted credit, and the Chief Justice summed up the evidence with perfect accuracy and fairness, the prisoner repeatedly interrupted him. Holt, C. J.: "Interrupt me as much as you please, if you think I do not observe right; I assure you I will do you no wrong willingly." Lord Preston: "No, my Lord, I see it well enough that your Lordship would not." When the jury were about to retire to consider of their verdict, Lord Preston requested to speak again, although he had been before fully heard. Holt, C. J.: "It is contrary to the course of all proceedings to have anything said to the jury after the Court has summed up the evinence; but we will dispense with it: what further have you to say?" Lord Preston: "I humbly thank your Lordship; I am not acquainted with such proceedings, but whatever my fate may be, I cannot but own that I have had a fair trial for life." He was then patiently heard, and he chiefly complained of some harsh treatment he had experienced from the new Government when he wished as he alleged, to live quietly in the country. Holt, C. F.: "Suppose your Lordship did think

yourself hardly used, yet your Lordship must remember it was in a time of danger your Lordship was taken up, and you had showed your dissatisfaction with the present Government; and, therefore, they were not to be blamed if they secured themselves against you." The jury, without hesitation, found a verdict of GUILTY; but, with the entire concurrence of the Chief Justice, the prisoner afterwards received a free pardon.'

When Charnock, and the other conspirators engaged in the attempt upon the life of King William, came to be tried before him, although he was obliged to refuse them a copy of the indictment and the assistance of counsel because the statute to regulate trials for high treason had not come into operation, he conducted the trial with the utmost impartiality and moderation, and in strict conformity to the rules of evidence as we now understand them. At the same time, he answered with firmness the objection that "words cannot amount to treason," marking the distinction whether the words have reference to an act. Holt, C. J.: "Now I must tell you, gentlemen, it is true in some cases that words, however seditious, are not treason; for such words loosely spoken, without relation to any act or design, are only a misdeameanor. But arguments, and words of persuasion, to engage in a design on the King's life, and directing or proposing the best way for effecting it, are overt acts of high treason. If two agree together to kill the King, though the agreement be verbal only, they are guilty of this offense; consulting together for such a purpose, though there is nothing reduced to writing, and nothing done upon it, is an overt act of high treason." The prisoners were very justly found guilty, and executed. Before Ambrose Rookwood, implicated in the same conspiracy, could be brought to trial, the statute for regulating trials for high treason had come into operation; 112 St. Tr. 646-822.

12 St. Tr. 1451. Afterwards on the trial of Sir William Parkyns, concerned in the same plot, Holt, in commenting on the treasonable consult, observed," But," says Sir William Parkyns, "this is only words, and words are not treason, they are words that relate to acts, and if you believe that they were spoken they amount to treason." 13 St. Tr. 132. These passages, if cited, might have considerably shortened certain debates in the House of Commons in the session of 1848, on the "Bill for the Protection of the Crown and Government.”