condemnations upon
political charges. The judicial torture was hardly known and never
recognised by law.[377] The sentence in capital crimes, fixed
unalterably by custom, allowed nothing to vindictiveness and
indignation. There hardly occurs an example of any one being notoriously
put to death without form of trial, except in moments of flagrant civil
war. If the rights of juries were sometimes evaded by irregular
jurisdictions, they were at least held sacred by the courts of law: and
through all the vicissitudes of civil liberty, no one ever questioned
the primary right of every freeman, handed down from his Saxon
forefathers, to the trial by his peers. A just regard for public safety
prescribes the necessity of severe penalties against rebellion and
conspiracy; but the interpretation of these offences, when intrusted to
sovereigns and their counsellors, has been the most tremendous
instrument of despotic power. In rude ages, even though a general spirit
of political liberty may prevail, the legal character of treason will
commonly be undefined; nor is it the disposition of lawyers to give
greater accuracy to this part of criminal jurisprudence. The nature of
treason appears to have been subject to much uncertainty in England
before the statute of Edward III. If that memorable law did not give all
possible precision to the offence, which we must certainly allow, it
prevented at least those stretches of vindictive tyranny which disgrace
the annals of other countries. The praise, however, must be understood
as comparative. Some cases of harsh if not illegal convictions could
hardly fail to occur in times of violence and during changes of the
reigning family. Perhaps the circumstances have now and then been
aggravated by historians. Nothing could be more illegal than the
conviction of the earl of Cambridge and lord Scrope in 1415, if it be
true, according to Carte and Hume, that they were not heard in their
defence. But whether this is to be absolutely inferred from the
record[378] is perhaps open to question. There seems at least to have
been no sufficient motive for such an irregularity; their participation
in a treasonable conspiracy being manifest from their own confession.
The proceedings against Sir John Mortimer in the 2nd of Henry VI.[379]
are called by Hume highly irregular and illegal. They were, however, by
act of attainder, which cannot well be styled illegal. Nor are they to
be considered as severe. Mortimer h