coin current within this realm." So far indeed is this statute of Philip and Mary from repealing that of Edward VI. as to the necessity of two witnesses, that it expressly confirms it on that point, requiring, as before stated, two witnesses at the least, with the exceptions above specified. Such a proceeding therefore as this, which has been exhibited on the part of Prideaux the Attorney-General, was discreditable not only to that law officer, but to the Government which employed and countenanced him in this audacious and shameless mendacity.

Prideaux having again asserted that one witness was "sufficient enough by the forementioned Act of Queen Mary," Lilburne again interrupted him, and it will be seen in what follows that both judge and Attorney-General make but a sorry figure.

"Lilburne. Sir, I beseech you produce your Act of Parliament in Queen Mary's time, to prove, in cases of treason, there ought to be but a single witness.

"Mr. Attorney. Do not interrupt me, Mr. Lilburne. "Lilburne. I pray you then do not urge that which is not right nor true, but notoriously false; for, if you persevere in it, I will interrupt you, and tell you of it to the purpose.

"Justic Jermin. Though you do recite many things, yet I must tell you, the law of the land saith, the Counsel for the Commonwealth must be heard.

"Lilburne. I beseech you, then, let there be no more added to the testimony than right and truth; for my life lies upon it, and I must and will declare the baseness and falseness of it.

"Mr. Attorney. I would not do the tenth part of the hair of your head wrong; but being entrusted I shall do

14 Blackst. Com. 356, 357.

my duty, and discharge my conscience in my place, which is fully and plainly to open that unto them which in my conscience I think is right and just.

"Lilburne. I do repeat it thus, as in my conscience, that he did say, when the copy was first brought, Captain Jones gave him the copy, and Captain Jones did agree with him for the printing of it; and Captain Jones did read the original to his corrector, which corrector amended the printer's faults, and that I had an uncorrected sheet away; and that his forms were taken before he had per

fected that.

"Mr. Attorney. And Mr. Lilburne came the second time.

"Lilburne. Will you spend all day in vain repetitions? You would not give one leave to breathe, nor freely to speak truth, without interruption, although you were laying load upon me for five hours together: I pray, sir, do not now go about to tire the jury with tedious repetitions, nor to sophisticate or adulterate their understandings with your falsehoods and untruths.

"Justice Jermin. Mr. Lilburne, the law of the land is, that the counsel for the State must speak last.

"Lilburne. Sir, your law is according to the law of God, you said; and that law, I am sure, will have no man to bear false witness: why doth Mr. Prideaux tell the jury such falsehoods as he doth, and take up six times more time to take away my life, than you or he will allow me to defend it." 1

It will be observed that this Justice Jermin did not put in his word to admonish the Attorney-General with respect to his false statements, both of law and fact. Yet one should think that this was the principal, the first and 1 State Trials, vol. iv. pp. 1396, 1397.

R

paramount duty of a judge. Why this sacred and paramount duty was left unperformed in 1649, and why it is still left unperformed after the lapse of two centuries of boasted civilization; is a question which may seem easier to answer to those who know only the theory of law than to those who know how much the practice of law is complicated by causes that lie deep in the darkest recesses of human nature. But one remark is obvious enough, that in the present state of society where what passes at a trial in a court of justice is immediately circulated by the press to an extent unknown and unimagined in the 17th century, a very few cases of such bold exposure of mendacity in a counsel as Lilburne's exposure of the mendacity of Prideaux would go far to keep the "licence of counsel" within some bounds of decency.

The Attorney-General admitted that Lilburne's "Agreement of the People" was dated the 1st of May, 1649, and was therefore before the new law of treason of May and July, 1649. But he asserted that when Lilburne "came to bring in those books in August last,

then he

And

does now publish that Agreement of the People.' he afterwards made use of some words 'which, besides containing a clear admission that, by the old constitutional laws of England, they had no case of treason against Lilburne, evinced an injudicious and even indecent eagerness on the part of the Government for his destruction. Indeed, whatever might be the want of respect evinced by Lilburne towards the Court, the defects both of the Attorney-General and of the judges as regards tact, acuteness, constitutional knowledge, and regard for constitutional rights are very apparent throughout this whole proceeding. The words are these: "Mr. Lilburne

1 State Trials, vol. iv. pp. 1397, 1398.

had been tried for his life sooner, upon my knowledge; I say, Mr. Lilburne had been sooner tried, and sooner condemned and executed, if the law had been sooner made and published. But, as he saith right well, 'where there is no law, there is no transgression;' and therefore there being a law against which he hath offended, he must smart for it." 1

"Lilburne. I am sure I was imprisoned most unjustly, without any the least shadow or colour in law, many months before your acts were made, and extremely oppressed; and now you go about to hang me as a traitor, for at most but crying out of your oppression. O unrighteous men! The Lord in mercy look upon me, and deliver me and every honest man from you, the vilest of men !

"Mr. Attorney. And that law was published and proclaimed in this city, by means of which, Mr. Lilburne and others had timely notice that they should not do such things as are there forbidden; it is also told them the penalties of it, which are those that are due for the highest high treason and yet notwithstanding you see with what boldness, with what conscience, in despite of all law and authority, these books have been made and published by Mr. Lilburne. And whereas he is pleased to say many times, that many men have petitioned for him to the Parliament, he will not affirm to you that ever he petitioned himself; but in all his discourses here, he calls them the present men in Westminster;' nay, my lord,

power, the gentlemen at he hath not so much as

owned the power of the Court, since he came before you,

but hath often called you cyphers, and the like.

"Lilburne.

That is no treason, sir, they entitled them

1 State Trials, vol. iv. p. 1400.

selves 'the present power;' and would you hang me for not giving them a better style, than they themselves give to themselves? I think the style of present power or present government,' is a very fit style for them.

"Mr. Attorney. My lord, I have told you long, it is the jury that are judges upon the fact; and to you I must appeal for law, if you do believe the evidence is plain and full against him, for which he stands indicted ; and so God direct all your judgments! I have done.

"Lilburne. Sir, by your favour, I shall desire to address myself in one word to you; which is, to desire that the jury may read the first chapter of Queen Mary, in the statute-book, and the last clause of the chapter of the 13th of Elizabeth; where they shall clearly see, especially in the statute of Queen Mary, that they abhorred and detested the making of words or writing to be treason; which is such a bondage and snare, that no man knows how to say or do, or behave himself, as is excellently declared by the statutes of Hen. 4, c. 2. I have done, sir." 2

The presiding judge, Keble, now commenced his charge to the jury. He began by informing or at least reminding the jury that they are men of conscience, gravity, and understanding; by telling them of the sacredness of an oath "which a man must not transgress in the least, not to save the world;" and then at once proceeded to deal with the matter of two witnesses upon which the Attorney-General had already tried his forensic powers. The judicial attempt to remove the difficulty is a little different from that of the advocate but not more successful. "Mr. Lilburne," said the judge, "hath cited two statutes of Edward VI. to prove there must be two witnesses;

1 By the statute 4 Hen. 4, c. 2, words insidiatores viarum and depopulatores agrorum are not to be used in

an indictment.

2 State Trials, vol. iv. pp. 1400,

1401.