Page:Notes and Queries - Series 11 - Volume 6.djvu/141

 ii s. VL AUG. 10, 1912.] NOTES AND QUERIES.

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but only " durante placito," during the King's pleasure, and many of them were summarily dismissed for displeasing the Government in their conduct of political prosecutions. This, by the way, was the fate of Pemberton and Levins, two of Lord Russell's judges, who returned to the Bar and were counsel for the seven bishops in 1688. The precarious nature of the judges' own tenure of office made them too often the tools of the Government, and rendered them unlikely to disoblige their employers and injure their own prospects by much solicitude for the interests of a person charged with high treason. B. B.

Persons accused of treason in the seven- teenth century were never allowed to employ counsel ; thus there was no particular hard- ship in any individual being refused permis- sion to do so. As for the sacred duty of the judge towards the prisoner, I am afraid that MR. WILLCOCK is taking rather an altruistic view. So long as the judges were removable at the king's pleasure, they regarded it as part of their duty to secure the conviction of persons obnoxious to the Government, just as much as did the lawyers for the prosecution. A popular exposition of the state of the treason laws in the seventeenth century is given by Macaulay in his ' His- tory of England,' vol. iii. chap, xviii., in which the passage beginning " The Crown was served by a band of able, experi- enced, and unprincipled lawyers " is most to the point. M. H. DODDS.

The rule until 1695, when 7 & 8 Will. III. c. 3 allowed defence by counsel, was that counsel could not be allowed to a prisoner unless he had first satisfied the Court that there was a point of law fit to be argued by counsel, in which case the Court would assign him such.

Even this degree of assistance was not conceded till after the Restoration. Raleigh and the Gunpowder Plotters claimed no such assistance.

The Court, indeed, professed to act as the prisoner's counsel, but, in fact, habitu- ally embarrassed and browbeat him. See, e.g., Scroggs in Coleman's case (7 St. Tr., at pp. 13, 14), and L.C.J. North in Col- ledge's case (8 St. Tr., pp. 569-82).

The Court would not assist the prisoner by telling him if he had any point of law. Thus :

Colledge. If you are my counsel, then have I any plea in law to make ?"

Justice Jones. You have heard the Indictment read, what say you ? For you must propose the matter. 8 St. Tr., at p. 581."

Nor would the Court suffer the prisoner to derive any benefit from papers that might be handed to him, or oral communications that might be made to him, suggesting technical, legal objections. See Colledge's case, passim, where the Court plainly deprived the prisoner of his papers ; and Algernon Sidney's case, where " Mr. Wil- liams " was reproved by the Court for making an oral suggestion (9 St. Tr., at p. 823).

If the prisoner a man, as a rule, ignorant of law achieved the almost impossible, and raised a point of law, the Court would assign him counsel, but either made the benefit more illusory than real (see, e.g., ' The Five Popish Lords,' 7 St. Tr., at pp. 1525-6), or, after hearing the arguments with seeming patience, decided unhesitat- ingly that there was nothing in them. Cf. Lord William Russell's case (9 St. Tr., at p. 586), where two counsel argue ineffectu- ally.

Occasionally a vividly pathetic incident deepens the sympathy with which we read those dreadful pages, as where a wife (Mrs. Hill in 7 St. Tr., at p. 203) or a daughter (Mrs. Matthews in Sir T. Armstrong's case, 10 St. Tr., p. 113) dares to raise her voice in a last, piteous endeavour to assist her loved one.

The odious pretence of the judges of that time that they were of counsel for the prisoner was as ghastly a hypocrisy as the injunction with which the inquisitor delivered his victim to the secular judge : " Deal with him tenderly, without effusion of blood." ERIC R. WATSON.

Inner Temple.

CASANOVIANA (11 S. vi. 4). 1. CASA- NOVA AND CHARLES Fox. If I might hazard a conjecture, I would suggest that the Fox whom Casanova met at Lausanne and afterwards at Geneva and Aix in 1760 was Stephen, the elder brother of Charles, who was generally known to his friends and relatives as " Ste." Stephen was then about 16 years of age, but may have looked older. I have no direct evidence of his having travelled on the Continent at that time ; but in a letter to Lady Susan Fox Strangways, dated 7 July, 1761, Lady Sarah Bunbury writes: "Ste. is come; he is very much improved, but looks as he did, only taller and thinner." This is the sort of language that a fond aunt might employ