124. RECORDS OF JUDICIAL CASES (1691-1710)
(A) The Case of John Ashton (1691)[1]
Gentlemen of the jury: You understand that Mr. Ashton is now tried for high treason; it is mentioned in the indictment to be for conspiring the death and deposing the king and queen; and for that purpose he did endeavour to go into France and to carry divers proposals in writing and several memorials to show how this kingdom might be invaded by the French. To prove this, the evidence that has been produced and given by the king's counsel has been long and consists of two parts: witnesses ... have told how Mr. Ashton designed a voyage to France and that he hired a ship for that purpose, and several papers were taken out of his bosom.... At Whitehall this packet [of papers] is opened, and you have several papers produced in evidence and read to you. You have heard what evidence has been given, that these are the very papers that were in the packet thus taken ...; so that there can remain no doubt of these being the same papers that were contained in the packet that was taken out of the bosom of Mr. Ashton.
Then, as to the matter of the papers, I think it is plain beyond all contradiction that the import of them is treasonable: they show a design of invading the kingdom by a foreign force and of deposing the king and queen from the government and of setting the late king up on the throne.... Gentlemen, there are a great many other particulars, but these are enough — nay, half of them were enough to make any man guilty of treason that was concerned in them or that had a hand in carrying or making use of them.... Gentlemen, if there was a design of an invasion — be it by papists or by Protestants — if any act was done tending thereunto, it is high treason within the statute of 25 E[dward III].[2] For purposing and intending to depose the king and queen, manifested by any overt act, hath been always held to be high treason. This, gentlemen, is the sum and substance of the evidence that has been given against the prisoner at the bar.
... Gentlemen, if Mr. Ashton had no knowledge upon what design the other persons were to go into France, though he had actually gone into France, it had been a crime in this juncture of affairs, yet not high treason. But to go into France and carry a treasonable scheme of a design and project of an invasion — that is treason.... Whether Mr. Ashton went with such a purpose or not you are to consider. I would not lead you into any strain of the evidence, but only state how it stands.... Gentlemen, it rests upon you to consider the evidence you have heard, whether it is sufficient to induce you to believe Mr. Ashton was going into France with these papers to carry on the design of deposing the king and queen and invading the kingdom. If you are not satisfied in your consciences that he is guilty, then find him not guilty. On the other side, if you are satisfied that he is guilty, I do not question but you will find him so....
Howell, State Trials, XII, 803 f.
(B) Blankard v. Galdy (1693)[3]
First: in case of an uninhabited country newly found out by English subjects, all laws in force in England are in force there; so it seemed to be agreed. Secondly: Jamaica being conquered and not pleaded to be parcel of the kingdom of England, but part of the possessions and revenue of the crown of England, the laws of England did not take place there until declared so by the conqueror or his successors. The Isle of Man and Ireland are part of the possessions of the crown of England; yet retain their ancient laws.... That it was impossible the laws of this nation, by mere conquest without more, should take place in a conquered country, because for a time there must want officers, without which our laws can have no force; that, if our law did take place, yet, they in Jamaica having power to make new laws, our general laws may be altered by theirs in particulars. Also they held that in the case of an infidel country their laws by conquest do not entirely cease, but only such as are against the law of God; and that in such cases, where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity.
Salkeld, Reports, II, 411 f.
(C) Ashby v. White and Others (1702-03)[4]
The case is truly stated, and the only question is whether or not, if a burgess of a borough, that has an undoubted right to give his vote for the choosing a burgess of parliament for that borough, is refused giving his vote, [he] has any remedy in the king's courts for this wrong against the wrongdoer. All my brothers agree that he has no remedy; but I differ from them, for I think the action well maintainable that the plaintiff had a right to vote and that, in consequence thereof, the law gives him a remedy if he is obstructed; and this action is the proper remedy....
And here, the plaintiff having this right [of voting by virtue of his burgage tenure], it is apparent that the officer did exclude him from the enjoyment of it; wherein none will say he has done well, but wrong to the plaintiff. And it is not at all material whether the candidate that he would have voted were chosen, or likely to be; for the plaintiff's right is the same and, being hindered of that, he has injury done him for which he ought to have remedy. It is a vain thing to imagine there should be right without a remedy; for want of right and want of remedy are convertibles. If a statute gives a right, the common law will give remedy to maintain it; and wherever there is injury, it imports a damage. And there can be no petition in this case to the parliament; nor can they judge of this injury, or give damages to the plaintiff. Although this matter relates to the parliament, yet it is an injury precedaneous to the parliament; and where parliamentary matters come before us as incident to a cause of action concerning the property of the subject ... , though the incident matter be parliamentary, we must not be deterred; but are bound by our oaths to determine it. The law consists, not in particular instances, but in the reason that rules them; and if, where a man is injured in one sort of right, he has a good action, why shall he not have it in another? And though the house of commons have right to decide elections, yet they cannot judge of the charter originally, but secondarily in the determination of the election; and therefore, where an election does not come in debate, as it doth not in this case, they have nothing to do. And we are to exert and vindicate the queen's jurisdiction, and not to be frighted because it may come in question in parliament. And I know nothing to hinder us from judging of matters depending on charter or prescription.
Holt, Reports, pp. 524 f.
(D) The Queen v. Paty and Others (1704)[5]
I am of the opinion that the prosecution of the suit is lawful and no breach of the privilege of that house; nor can their judgment make it so or conclude this court from determining contrary. And when the house of commons exceed their legal bounds and authority, their acts are wrongful and cannot be justified more than the acts of private men. There is no question but their authority is from the law and, as it is circumscribed, so it may be exceeded. If we should say they are judges of their privilege and their own authority, and nobody else, that would make their privileges as they would have them. In such case, if there be a wrongful imprisonment by the house of commons, what court shall deliver the party? Shall we then say there is no redress, and that we are not able to execute those laws on which the liberty of the subject depends? It is true all courts are so far judges of their own privileges that they may punish for contempts; but to make any court final judges of them, exclusive of every other jurisdiction, is to introduce a state of confusion by making every man a judge in his own cause.
It was here a doubt whether any writ of error lay upon a judgment given on a habeas corpus. This case went into the house of lords, where it occasioned great debates between the two houses of parliament; but, the parliament being soon after prorogued, the dispute was dropped.
Ibid., pp. 526 f.
(E) The Queen v. Tutchin (1704)[6]
Gentlemen of the jury: This is an information that is preferred by the queen's attorney general against Mr. Tutchin for writing and composing and publishing, or causing to be writ, composed, or published, several libels against the queen and her government; and all these that are set forth as libels are entitled The Observator, and they are in number six.... [The defendants] say they are innocent papers and no libels, and they say nothing is a libel but what reflects upon some particular person. But this is a very strange doctrine: to say it is not a libel reflecting on the government, endeavouring to possess the people that the government is maladministered by corrupt persons that are employed in such or such stations either in the navy or army. To say that corrupt officers are appointed to administer affairs is certainly a reflection on the government. If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist; for it is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government than to endeavour to procure animosities as to the management of it. This has been always looked upon as a crime, and no government can be safe without it be punished.
Now you are to consider whether these words I have read to you do not tend to beget an ill opinion of the administration of the government.... Now they, on his behalf, insist on these things. First they say, "You do not prove any crime against him in London." Indeed, it is not proved that he writ them in London; but the question is whether there is not proof of the composing and publishing in London ... Gentlemen, I must leave it to you. If you are satisfied that he is guilty of the composing and publishing these papers at London, you are to find him guilty.
Howell, State Trials, XIV, 1125 f.
(F) Impeachment of Sacheverell (1710)[7]
Whereas his late majesty King William III, then prince of Orange, did with an armed force undertake a glorious enterprise for delivering this kingdom from popery and arbitrary power, and divers subjects of this realm, well affected to their country, joined with and assisted his late majesty in the said enterprise and, it having pleased Almighty God to crown the same with success, the late Happy Revolution did take effect and was established; and whereas the said glorious enterprise is approved by several acts of parliament ...: yet, nevertheless, the said Henry Sacheverell ... preached a sermon at the cathedral church of St. Paul before the lord mayor, aldermen, and citizens of London on the 5th day of November last ...; which said sermon he, the said Henry Sacheverell, likewise published in print ... , with a wicked, malicious, and seditious intention to undermine and subvert her majesty's government and the Protestant succession as by law established, to defame her majesty's administration, to asperse the memory of his late majesty, to traduce and condemn the late Happy Revolution, to contradict and arraign the resolutions of both houses of parliament, to create jealousies and divisions amongst her majesty's subjects, and to incite them to sedition and rebellion.
Article I. He, the said Henry Sacheverell, in his said sermon preached at St. Paul's doth suggest and maintain that the necessary means used to bring about the said Happy Revolution were odious and unjustifiable, that his late majesty, in his declaration, disclaimed the least imputation of resistance; and that to impute resistance to the said Revolution is to cast black and odious colours upon his late majesty and the said Revolution.
Article II. He ... doth suggest and maintain that the foresaid toleration granted by law is unreasonable and the allowance of it unwarrantable; and asserts that he is a false brother, with relation to God, religion, or the Church, who defends toleration and liberty of conscience....
Article III. He ... doth falsely and seditiously suggest and assert that the Church of England is in a condition of great peril and adversity under her majesty's administration....
Article IV. He ... doth falsely and maliciously suggest that her majesty's administration, both in ecclesiastical and civil affairs, tends to the destruction of the constitution....
All which crimes and misdemeanours the commons are ready to prove.... And the said commons ... do pray that the said Henry Sacheverell be put to answer to all and every the premises, and that such proceeding, examination, trial, judgment, and exemplary punishment may be thereupon had and executed as is agreeable to law and justice.
To the first part of the first article the said Henry Sacheverell denies that, in his said sermon preached at St. Paul's, he doth suggest and maintain that the necessary means used to bring about the Happy Revolution were odious and unjustifiable.... And as to that part of the said article, whereby the said Henry Sacheverell is charged with suggesting and maintaining that his late majesty, in his declaration, disclaimed the least imputation of resistance, the said Henry Sacheverell doth acknowledge himself to have made such suggestion ...; the resistance ... being such a resistance as tended to the conquest of this realm, as plainly appears from ... his late majesty's declaration....
As to the last charge in the said article, the said Henry Sacheverell denies that he doth, in his said sermon, suggest and maintain that to impute resistance to the said Revolution is to cast black and odious colours upon his late majesty and the said Revolution. The persons whom the said Henry Sacheverell in his sermon describes ... are ... those new preachers and new politicians who teach, in contradiction to both Gospel and the laws, that the people have the power vested in them ... to cancel their allegiance at their pleasure and to call their sovereign to account for high treason against his subjects — nay, and to dethrone and murder him for a criminal, as they did the royal martyr.... The said Henry Sacheverell, upon the strictest search into his said sermon ... , doth not find that he hath given any the least colourable pretence for the accusation exhibited against him in this first article, but barely by his asserting the utter illegality of resistance to the supreme power upon any pretence whatsoever.... And the said Henry Sacheverell doth further humbly insist and is advised that the aforesaid assertion is agreeable to and warranted by the common law of England and divers acts of parliament now remaining in full force. The said Henry Sacheverell doth with all humility aver the illegality of resistance on any pretence whatsoever to be the doctrine of the Church of England and to have been the general opinion of our most orthodox and able divines from the time of the Reformation to this day....
To ... the second article ... , the said Henry Sacheverell saith that, upon the most diligent inquiry, he hath not been able to inform himself that a toleration hath been granted by law; but admits that an act did pass in the first year of King William and Queen Mary entitled An Act for Exempting Their Majesties' Protestant Subjects Dissenting from the Church of England from the Penalties of Certain Laws — which exemption the said Henry Sacheverell doth not anywhere maintain or suggest to be unreasonable, or that the allowance of it is unwarrantable....
As to ... the third article ... , the said Henry Sacheverell denies that he hath either asserted or suggested the Church of England to be in a condition of great peril and adversity under her majesty's administration. But he doth freely acknowledge that he hath in his sermon suggested that, when national sins are ripened up to a full maturity to call down vengeance from Providence on a church and kingdom debauched in principles and corrupted in manners ... , then we ... are in danger....
As to the fourth article, it contains charges of a very high and criminal nature of which the said Henry Sacheverell knows his heart to be entirely innocent. And he observes with comfort that ... in this fourth article he is not accused of maintaining and asserting, but barely suggesting what is therein contained. And he humbly hopes that bare suggestions or insinuations, could they with any colour or probability be made out (as he is fully satisfied they cannot), will not ... by your lordships ... be adjudged sufficient to involve an English subject in the guilt and punishment of high crimes and misdemeanours....
Mr. Lechmere: My lords, I am commanded to assist in stating to your lordships the grounds of the charge of the commons and the nature and tendency of the crimes now before you in judgment.... Your lordships will find that the prisoner, in his sermon preached at St. Paul's, has asserted a doctrine in direct defiance and contradiction of that resistance used to bring about the Revolution when he affirms the utter illegality of resistance, on any pretence whatsoever, to be a fundamental of our constitution. And, as your lordships will hear it fully made out from the proofs by those gentlemen to whom that part is assigned, he has also plainly declared himself that even that resistance used at the time of the late Happy Revolution is not to be excepted out of his fundamental rule. My lords, when a preacher of the Gospel and a minister of the Church of England, even under this happy establishment, shall thus publicly condemn the foundations on which it stands, in defiance of her majesty and the great council of the nation then sitting in parliament, it becomes an indispensable duty upon us ... , not only to demand your lordships' justice on such a criminal, but clearly and openly to assert our foundations.... Your lordships on this occasion will again consider the ancient legal constitution of the government of this kingdom; from which it will evidently appear to your lordships that the subjects of this realm had not only a power and right in themselves to make that resistance, but lay under an indispensable obligation to do it. The nature of our constitution is that of a limited monarchy, wherein the supreme power is communicated and divided between queen, lords, and commons, though the executive power and administration be wholly in the crown. The terms of such a constitution ... express an original contract between the crown and the people.... The consequences of such a frame of government are obvious.... If the executive part endeavours the subversion and total destruction of the government, the original contract is thereby broke, and the right of allegiance ceases. That part of the government thus fundamentally injured hath a right to save or recover that constitution in which it had an original interest....[8]
Mr. Walpole: My lords, the commons are now making good their charge against Dr. Henry Sacheverell contained in the first article.... By what has been already offered to your lordships, I make no doubt but you are fully convinced how injurious these positions must be to the peace and quiet of the kingdom, and how highly they deserve and how loudly call for your lordships' speedy and exemplary justice. The great licentiousness of the press in censuring and reflecting upon all parts of the government has of late given too just cause of offence. But when any pamphlets and common libels are matters of complaint, when none but mercenary scribblers and the hackney pens of a discontented party are employed to vent their malice, it is fit to leave them to the common course of the law and to the ordinary proceeding of the courts below. But, my lords, when the trumpet is sounded in Zion; when the pulpit takes up the cudgels; when the cause of the enemies of our government is called the cause of God and of the Church; when this bitter and poisonous pill is gilded over with the specious name of loyalty, and the people are taught for their souls' and consciences' sake to swallow these pernicious doctrines; when, instead of sound religion, divinity, and morality, factious and seditious discourses are become the constant entertainments of some congregations; the commons cannot but think it high time to put a stop to this growing evil, and for the authority of a parliament to interpose and exert itself in defence of the Revolution, the present government, and the Protestant succession....
Sir Simon Harcourt: May it please your lordships, I am counsel for Dr. Sacheverell, who stands impeached in the name of all the commons of Great Britain of high crimes and misdemeanours. The crimes supposed to have been committed by him are contained in four articles. I beg leave to postpone the three last.... That which I take to be the main objection in this case is that the doctor's assertion of the illegality of resistance must be necessarily understood with reference to the executive power. And if it be utterly illegal in any case upon any pretence whatsoever, then it was unlawful at the Revolution; and from thence the consequence is drawn that the doctor is guilty of this first charge, of maintaining that the necessary means used to bring about the Happy Revolution were odious and unjustifiable.... My lords, I admit the doctor has in general terms asserted this proposition of the illegality of resistance to the supreme power on any pretence whatsoever.... It was insisted on the first day that he had not only asserted the utter illegality of resistance to the supreme power on any pretence whatsoever, but also that he had expressly affirmed that the Revolution was not such a case as ought to be excepted out of his general rule. This I deny. If such an expression can be found in the doctor's sermon, I shall think no punishment too great for him.... An unlimited passive obedience and non-resistance is a slavish notion. My lords, Dr. Sacheverell does not contend for it.... I humbly apprehend, my lords, that extraordinary cases, cases of necessity, are always implied though not expressed, in the general rule. Such a case undoubtedly the Revolution was.... Having thus stated to your lordships the question between us ... , I shall endeavour to satisfy your lordships, first, that the doctor's assertion of the illegality of resistance to the supreme power on any pretence whatsoever, in general terms, without expressing any exception or that any exception is to be made, is warranted by the authority of the Church of England and, secondly, that his manner of expression is agreeable to the law of England....
The lord chancellor ...: Mr. Speaker, the lords are now ready to proceed to judgment in the case by you mentioned. Dr. Sacheverell, the lords, having found you guilty[9] of high crimes and misdemeanours charged on you by the impeachment of the house of commons ... , find themselves obliged by law to proceed to judgment against you; which I am ordered to pronounce, and in which you cannot but observe an extreme tenderness towards your character as a minister of the Church of England. Therefore, this high court doth adjudge as followeth: —
That you, Henry Sacheverell, Doctor in Divinity, shall be and you are hereby enjoined not to preach during the term of three years next ensuing; that your two printed sermons, referred to by the impeachment of the house of commons, shall be burnt before the Royal Exchange m London between the hours of one and two o'clock, on the 27th day of this instant March, by the hands of the common hangman in the presence of the lord mayor of the city of London and the sheriffs of London and Middlesex....
Ibid., XV, 37-474.
[1] Ashton, along with Sir Richard Grahme, was arraigned at the Old Bailey, London, on indictment for high treason, 16 January 1691. Grahme, the first to be tried, was convicted on the next day. On 19 January Ashton was brought to trial and likewise found guilty. The following excerpts are from Chief Justice Holt's charge to the jury in the second case.
[2] No. 62F.
[3] The case was tried in the court of king's bench on appeal from Jamaica. In an action for debt on a bond the defendant pleaded that the bond had been given to purchase the office of provost marshal and was void because a statute of Edward VI prohibited the buying of offices concerned with the administration of justice. It was argued for the plaintiff that Jamaica was conquered territory and that the inhabitants were not subject to acts of the English parliament unless specifically named in them. The court found for the plaintiff and the judgment was delivered by Chief Justice Holt. Cf. no. 91C.
[4] In this case, brought in the court of queen's bench, the plaintiff, Matthew Ashby, alleged that in a parliamentary election at Aylesbury he had been illegally excluded from the voting by the defendants, the constables of the borough. Three judges, with Chief Justice Holt dissenting, decided for the defendants on the ground that to interfere would violate the privilege of the commons. On writ of error, the judgment was reversed by the house of lords, thus upholding Holt's opinion, the substance of which follows. See the resolutions of the commons and the lords touching this same matter (no. 123B).
[5] As a result of the judgment of the house of lords in the case of Ashby v. White, various burgesses of Aylesbury, including Paty, brought suit against the constables who had excluded them, along with Ashby, from voting at the election. The commons, in line with their resolution of 26 January (see no. 123B), committed the plaintiffs to Newgate Prison for breach of privilege. On a writ of habeas corpus the legality of this action was brought before the court of queen's bench, which refused to free the prisoners. Chief Justice Holt gave the dissenting opinion that in part follows.
[6] In several numbers of the Observator John Tutchin accused various government officials of being in the pay of the king of France and denounced the administration of the navy as being incompetent and corrupt. On prosecution by the attorney general, Tutchin was found guilty in the court of queen's bench; but, on account of a technical flaw in the proceedings, the court set aside the verdict and ordered a new trial. As the crown never renewed the prosecution, Tutchin went free. The following extract is from Chief Justice Holt's charge to the jury — a fair statement of the existing law by a liberal-minded judge. Cf. no. 117B.
[7] The facts in this famous case are brought out in the following excerpts: (1) the articles of impeachment presented by the house of commons; (2) the answer drawn up by the defendant; (3) two speeches for the prosecution and one for the defence; (4) the judgment by the lords.
[8] At the conclusion of this address the commons introduced the evidence against Dr. Sacheverell.
[9] The vote was 69 to 52.