• Karma and the Little Gentleman in the Black Velvet Waistcoat|戴啟思
  • 2020-02-18    


Karma and the Little Gentleman in the Black Velvet Waistcoat

The great constitutional event in English history in the second part of the Seventeenth Century was the removal of the Catholic King James II in 1688 and the installation of the Protestant double act from Holland, King William III and Mary II, in the following year.

These monarchs were the first constitutional to rule in England to promise to abide by the principle of Parliamentary sovereignty and be guided by the advice of Ministers.

James II still had plenty of supporters when he was kicked out of his kingdom. The Latin for James is 'Jacobus'. People loyal to James II and his successors were known as 'Jacobites'. For seventy years they schemed and plotted to restore James II and his successors to the English throne.

One of the first Jacobites to plot for the restoration of James II was Sir John Fenwick. He started planning for the deposed King's return in 1689 and only left off his scheming when arrested and charged with treason.

Sir John Fenwick figures in legal history for one reason alone. He was the last person to be executed through an Act of Parliament enacted expressly to secure his condemnation and execution for the offence of treason.

Sir John was a victim of an Act of Attainder. These pieces of law-making were a popular means of getting rid of high-profile troublemakers that the monarch could not afford to entrust to trial before a judge and jury or, as in Sir John's case, the evidence was flimsy and might not stand up in court.

Henry VIII was partial to Acts of Attainder. His fifth wife, Catherine Howard, was 'attainted' and condemned under one. Her crimes involved sexual goings-on with other men, and the court could not be trusted to explore evidence of that kind for the sake of the King's dignity. Henry VIII also saw that Parliament 'attainted' several ministers and nobles for treason when it was convenient for him to do this.

In Sir John's case, a witness had already testified in court against other Jacobite plotters to significant effect. He saw to it that the witness disappeared before his trial. He then tried to cut a deal with the prosecution by offering to implicate other conspirators, but the names he offered up were not known Jacobites but were, instead, trusted court officials who had brought William & Mary to the throne. Sir John's information was patently false and amounted impudent time-wasting. The patience of King William was exhausted. Sir John was turned over to a loyal Parliament that would do what the King asked and attaint him.

Both the House of Commons and the House of Commons 'tried' Sir John for treason in attainder proceedings. They relied on hearsay evidence and dispensed with the rule that applied in a court that required two witnesses at least to give proof of acts of treason. Parliament duly passed an Act of Attainder that condemned Sir John to death. His execution by beheading was on 28 January 1697.

Having the power to dispose of opponents without due process was convenient but very unfair. As political power drained from the King to Parliament, Ministers of the Crown became reluctant to use Acts of Attainder as a retributive measure. Who could say that it would not be used against them when the Government changed, and they were in opposition? Attainder was last used in 1798 to strip the lands and property of an Irish lord who had rebelled against the Crown but had inconveniently died before he could be tried.

This power to forfeit the property of an attainted person was another incentive to go to Parliament and not the courts. If the court convicted a person of treason, their property was forfeited to the Crown. The monarch could keep the property or give it to others as a reward for services rendered which were often helping get rid of the individual who had been attainted. However, sometimes persons charged with a felony in court would refuse to plead to the offence so the court could not hold a trial.

At this time, an accused person had to plead guilty or not guilty. The trial could not begin until a plea was taken. A refusal meant that the accused would be tortured to force a plea from their lips. The torture-being pressed with increasingly heavy weights placed on the chest of the accused-continued until a plea of guilty or not guilty was obtained or until the accused died. If the accused did not plead and was pressed to death, their property could not be forfeited because there was then no trial.

Persons of high-rank and riches charged with treason, knowing that they were going to die anyway, would be tempted to endure pressing to death rather than plead guilty or not guilty and see family property lost.

An Act of Attainder got around this awkward legal obstacle because there were no pleas of guilty or not guilty in the Parliamentary attainder process. The property of the attainted person would pass to the Crown automatically when Parliament passed the Act of Attainder.

When alive, Sir John Fenwick was an excellent horseman, and he had a stable of beautiful horses. King William acquired these horses on forfeiture, one of whom had the name 'Sorrel', meaning reddish or chestnut coloured. The King rode the horse regularly. One day in early Spring 1702 he was riding the horse when one of its hooves caught in a molehill. William fell from the horse and injured himself severely. Complications set in and he died on 8 March 1702.

Jacobites rejoiced. The irony of King William dying when riding Sir John's forfeited horse was not lost on them, and they commemorated the fatal fall. It was still highly dangerous to celebrate a misfortune befalling a member of the Royal Family, but this was too good an opportunity to be missed. Jacobites wishing to call to memory the accident when gathered together would offer a toast the memory of the 'Little Gentleman in the Black Velvet Waistcoat', i.e. to the industrious mole that had excavated the fatal hole which tripped Sorrel.

The British Parliament abolished Acts of Attainder in 1870. Colonial records showed that Acts of Attainder had been used to settle political in scores in colonies. When the 1870 Act of Parliament came into effect, the British Government saw to it that colonial governments would no longer be able to attaint people.

The Hong Kong Criminal Procedure Ordinance was amended in the latter part of the nineteenth century to remove the power to attaint.

However, Britain was a long way behind the U.S.A. When it came to draft the Constitution in 1787, the drafters included a clause which forbade attainders along with retroactive laws which criminalized acts done in the past. The requirement said, 'No Bill of Attainder or ex post facto Law shall be passed.' The idea of the legislature having the powers of a criminal court went dead against the separation of powers doctrine in the Constitution.

Although some people might like to see Acts of Attainder resurrected to remove some political nuisances, there is no chance of this happening. The Basic Law provides that the judicial power vests in the Judiciary. It is not now constitutionally possible for Legco and the Chief Executive to 'try' individuals and punish them in a law-making process bypassing the courts.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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