The feeling of the Whigs, though it had not, like the feeling of the Tories, undergone a complete change, was yet not quite what it had been. Some, who had thought it most unjust that Russell should have no counsel and that Cornish should have no copy of his indictment, now began to mutter that the times had changed;that the dangers of the State were extreme; that liberty, property, religion, national independence, were all at stake;that many Englishmen were engaged in schemes of which the object was to make England the slave of France and of Rome; and that it would be most unwise to relax, at such a moment, the laws against political offences. It was true that the injustice with which, in the late reigns, State trials had been conducted, had given great scandal. But this injustice was to be ascribed to the bad kings and bad judges with whom the nation had been cursed. William was now on the throne; Holt was seated for life on the bench; and William would never exact, nor would Holt ever perform, services so shameful and wicked as those for which the banished tyrant had rewarded Jeffreys with riches and titles. This language however was at first held but by few. The Whigs, as a party, seem to have felt that they could not honourably defend, in the season of their prosperity, what, in the time of their adversity, they had always designated as a crying grievance. A bill for regulating trials in cases of high treason was brought into the House of Commons, and was received with general applause. Treby had the courage to make some objections; but no division took place. The chief enactments were that no person should be convicted of high treason committed more than three years before the indictment was found; that every person indicted for high treason should be allowed to avail himself of the assistance of counsel, and should be furnished, ten days before the trial, with a copy of the indictment, and with a list of the freeholders from among whom the jury was to be taken; that his witnesses should be sworn, and that they should be cited by the same process by which the attendance of the witnesses against him was secured.
The Bill went to the Upper House, and came back with an important amendment. The Lords had long complained of the anomalous and iniquitous constitution of that tribunal which had jurisdiction over them in cases of life and death. When a grand jury has found a bill of indictment against a temporal peer for any offence higher than a misdemeanour, the Crown appoints a Lord High Steward; and in the Lord High Steward's Court the case is tried.
This Court was anciently composed in two very different ways. It consisted, if Parliament happened to be sitting, of all the members of the Upper House. When Parliament was not sitting, the Lord High Steward summoned any twelve or more peers at his discretion to form a jury. The consequence was that a peer accused of high treason during a recess was tried by a jury which his prosecutors had packed. The Lords now demanded that, during a recess as well as during a session, every peer accused of high treason should be tried by the whole body of the peerage.
The demand was resisted by the House of Commons with a vehemence and obstinacy which men of the present generation may find it difficult to understand. The truth is that some invidious privileges of peerage which have since been abolished, and others which have since fallen into entire desuetude, were then in full force, and were daily used. No gentleman who had had a dispute with a nobleman could think, without indignation, of the advantages enjoyed by the favoured caste. If His Lordship were sued at law, his privilege enabled him to impede the course of justice. If a rude word were spoken of him, such a word as he might himself utter with perfect impunity, he might vindicate his insulted dignity both by civil and criminal proceedings. If a barrister, in the discharge of his duty to a client, spoke with severity of the conduct of a noble seducer, if an honest squire on the racecourse applied the proper epithets to the tricks of a noble swindler, the affronted patrician had only to complain to the proud and powerful body of which he was a member. His brethren made his cause their own. The offender was taken into custody by Black Rod, brought to the bar, flung into prison, and kept there till he was glad to obtain forgiveness by the most degrading submissions. Nothing could therefore be more natural than that an attempt of the Peers to obtain any new advantage for their order should be regarded by the Commons with extreme jealousy. There is strong reason to suspect that some able Whig politicians, who thought it dangerous to relax, at that moment, the laws against political offences, but who could not, without incurring the charge of inconsistency, declare themselves adverse to any relaxation, had conceived a hope that they might, by fomenting the dispute about the Court of the Lord High Steward, defer for at least a year the passing of a bill which they disliked, and yet could not decently oppose. If this really was their plan, it succeeded perfectly. The Lower House rejected the amendment; the Upper House persisted; a free conference was held;and the question was argued with great force and ingenuity on both sides.
