The Popish Plot: A study in the history of the reign of Charles II

by John Pollock

CHAPTER I

MAGISTRATES AND JUDGES

The trials of the Popish Plot have remained the most celebrated in the annals of our judicial history. Their reports occupy three volumes of the State Trials and more than two thousand pages of crowded print. They contain twenty-two trials for treason, three for murder or attempt to murder, eleven for perjury, subornation of perjury, libel, and other misdemeanours. They gave rise to proceedings in Parliament against two Lord Chief Justices, and against two judges of the Court of King’s Bench. They are a standing monument to the most astounding outburst of successful perjury which has occurred in modern times. It is due to their connection with these trials that posterity has branded the names of three[453] judges with lasting infamy, and that fourteen men executed as traitors have earned the reputation of martyrs. Not only are they filled and brimming with the romance of life and death, but there lies locked within them the kernel of that vast mass of treason, intrigue, crime, and falsehood which surrounds and is known as the Popish Plot. Strangely enough, therefore, they have been little studied and never understood.

The consequence of this has been unfortunate. Instead of going to the fountain-head for information, historians have for the most part contented themselves with relying on accounts supplied by writers on the one side or the other, sources which are always prejudiced and usually contradictory. To extract truth from the mutual opposition of two lies is an ingenious and useful task when evidence is not forthcoming at first hand; but it is a method less accurate than the examination of original authorities when these can be consulted. Nor is there only an obligation to devote attention to the trials themselves; they cannot be judged alone: and historians have not escaped error when, although they have studied the trials immediately within view from the actual reports, they have neglected to read them in the light of the preceding practice of the English courts of law, and to ground their opinions upon the whole judicial system which gave them their peculiar character, and of which they were an inseparable part. To appreciate properly the significance of the trials they must not be taken apart from their setting, and it is necessary before passing judgment upon the events recorded in them to review the past which lies behind them and the causes which influenced their nature.

The judicial system of England in the latter half of the seventeenth century was very different from its descendant in the twentieth. Its nature had been determined by the course of political events which moulded it into a form as unlike to that of two centuries after as the later Stuart constitution was to the Victorian.

Throughout the sixteenth and seventeenth centuries, from the time when Henry VIII broke the political power of Rome in England until the day when the last revolution destroyed the influence of the Jesuits in English politics, the English state lived and developed in an atmosphere charged with the thunderstorm and resonant with the note of war. War against foes within the land and without was the characteristic condition of its existence. Besides conflict with foreign powers, war and rebellion, constant in Scotland and almost chronic in Ireland, may be counted in eight reigns three completed revolutions, ten[454] armed rebellions, two great civil wars, and plots innumerable, all emanating from within the English nation alone. From beyond seas enemies schemed almost without ceasing to overturn religion or government or both as they were established at home. There is no need to wonder that the English government was a fighting machine. In this light it was regarded by all men. Where government is now looked on as a means of getting necessary business done, of ameliorating conditions of life, and directing the energy of the country to the highest pitch of efficiency, two centuries and a half ago it was anxiously watched as an engine of attack or defence of persons, property, and conscience. The first duty of government is to govern; to guard the tranquillity of the society over which it is set, to anticipate the efforts of malignants against the social security, and to punish crime, the commission of which it has been unable to prevent. This is at all times a heavy burden; but its weight is redoubled when private gives way to public crime, and the criminal turns his strength against the state itself. For acts directed against society in its corporate being are fraught with far more danger than those which touch it indirectly, however great their magnitude, not only because the consequences of the successful act in the former case are vital, but also because the restless class from which the actors are drawn commands a higher ability than that containing men to whom crime is a means to private gain, and is endowed with a reckless hardihood which springs from the certainty of detection and retribution in case of failure. In the seventeenth century this class was numerous, and the difficulties of guarding against it great. The state was always in danger, the government always battling for its own life and the safety of society, the morrow always gloomy for the success of their cause. To be for or against the government was the shibboleth which marked the peaceable man from the revolutionary. To be “counted to be a very pernicious man against the government”[455] was sufficient to weigh against the credibility of a witness before the highest tribunal of the kingdom. Therefore it was that far wider scope could then be allowed to acts of administration than ought to be allowed in peaceful times, and that the government might be sure of support for its bad as well as its good measures when they appeared to be directed towards the doing of rough justice on individuals whose presence was felt to be a common danger. It could be assumed that the means adopted for this purpose would not be too closely scrutinised.

Government was from necessity a fighting machine. But it was a machine so ill adapted for fighting that its action, far from attaining to mechanical precision and gravity, was coarse, spasmodic, questionable, and was driven to atone for want of ease and regularity by displaying an excess of often ill-directed energy. The means ready to the hand of the administration were scanty. Without an army, without police, without detectives, the order maintained in the country practically depended upon the goodwill of the upper and middle classes. The police of the kingdom consisted of watchmen in the cities and boroughs; in the country, of parish constables. Both were notoriously inefficient. The type of watchmen with which Londoners were familiar in the opening years of the seventeenth century is sufficiently known from the character of Dogberry. About the same time the parish constables were distinguished for being “often absent from their houses, being for the most part husbandmen, and so most of the day in the fields.”[456] As late as 1796 the watchmen of London were recruited by the various authorities from “such aged and often superannuated men living in their respective districts as may offer their services,” and were recognised to be feeble, half-starved, lacking the least hope of reward or stimulus to activity.[457] Without an excessive strain on the imagination it may be conjectured that in the intervening period the police system did not rise to a high pitch of perfection. In the capital the king’s guards and the city trained bands were available forces, but in the provinces the only body on which reliance could be placed for the execution of justice was formed by the sheriff’s officers or in the last resort the cumbrous militia. Even the militia could not be maintained under arms for more than twelve days in the year, for although the force of any county might be kept on foot for a longer period by the king’s special direction, the Lord Lieutenant had no power to raise money with which to pay the men.[458] The only practicable instrument of government for the defence of the state was the judicial system of the country. As there was no method known for the prevention of crime by an organised force of police, and no deterrent exerted on would-be criminals by the existence of a standing body of soldiery, the only possible weapon to be used against them was to be found in the law courts. It followed that the judges and justices of the peace not only fulfilled the judicial and magisterial functions which are known to modern times, but constituted as well an active arm of the administration.

The justices of the peace combined in their persons the characters, which have since been distinguished, of prosecutor, magistrate, detective, and often policeman. They raised the hue and cry, chased malefactors, searched houses, took prisoners. A justice might issue a warrant for the arrest, conduct the search himself, effect the capture, examine the accused with and without witnesses, extract a confession by alternately cajoling him as a friend and bullying him as a magistrate, commit him, and finally give damning evidence against him at his trial. Such was the conduct of Alderman Sir Thomas Aleyn in the case of Colonel Turner, tried and convicted for burglary in 1664.[459] The alderman examined Turner in the first place, and charged him point-blank with the offence. He then searched his house. In this he was unsuccessful, but the next day, owing to information received, tracked the colonel to a shop in the Minories, where he was found in possession of money suspected to be part of the stolen property.[460] Aleyn carried him to the owner of the stolen goods, upon whose engagement not to prosecute Turner confessed that he knew where the plunder was concealed, and by a further series of artifices induced him to surrender, through the agency of his wife, part of the missing jewelry. On this he committed both Colonel and Mrs. Turner to Newgate, and finally appeared at their trial to tell the whole story of his manœuvres in considerable detail and with the greatest composure.[461] Twenty years later, as Sir John Reresby was going to bed one night, he was roused by the Duke of Monmouth’s page to play a similar part. Mr. Thynne had been shot dead as he was driving in his coach along Pall Mall,[462] and Sir John was summoned to raise the hue and cry. He went at once to the house of the murdered man, issued warrants for the arrest of suspected persons, and proceeded to investigate the case. From a Swede who was brought before him he obtained the necessary information, and set out to pursue the culprits. After giving chase all night and searching several houses, he finally took the German officer who had been a principal in the murder in the house of a Swedish doctor in Leicester fields at six o’clock in the morning, and was able to boast in his diary that he had performed the somewhat perilous task of entering the room first and personally arresting the captain.[463] On another occasion Reresby deserved well of the government by his action in an episode connected with the Rye House Plot. Six Scotchmen had been arrested and examined in the North, and were being sent in custody to London by directions of one of the secretaries of state. Sir John however was led to suspect that the examination had not been thoroughly conducted and stopped the men at York. He examined them again and extorted confessions of considerable importance, which he was then able to forward to the secretary in company with the prisoners.[464]

Instances to illustrate the nature of these more than magisterial duties might easily be multiplied. The agitation caused by the Popish Plot was naturally a spur to the activity of justices throughout the country. Especially was this the case in the west of England, where the Roman Catholics had their greatest strength. In Staffordshire Mr. Chetwyn, in Derbyshire Mr. Gilbert, in Monmouthshire Captain Arnold were unflagging in their efforts to scent out conspiracy and popery. In consequence of information laid before the committee of the House of Lords Mr. Chetwyn, in company with the celebrated Justice Warcup,[465] searched Lord Stafford’s house. Tart Hall, for a secret vault in which some priests were said to be concealed. The search was unsuccessful, but the vigorous manner in which it was conducted is testified by Chetwyn’s furious exclamation “that if he were the king, he would have the house set fire to, and make the old rogues come forth.”[466] The same magistrate also would have assisted in the work of obtaining Dugdale’s confession, had he not been absent in London at the time.[467]

To Henry Gilbert, justice of the peace for Derbyshire, belonged the merit of tracking, arresting, and obtaining the conviction of George Busby, Jesuit, for being a Romish priest, at the Derby Assizes of 1681.[468] The evidence which Gilbert gave is very instructive as to the scope of a magistrate’s duty.[469] As early as January 1679 William Waller had come to search Mr. Powtrel’s house at West Hallam, where the Jesuit was said to be concealed, but was dissuaded on Gilbert’s assurance that he had already been over the place several times in vain and believed Busby to have escaped from England. Since then however trustworthy information had come to hand that he was still in hiding. Gilbert first reconnoitred the house under the pretext of buying wood for his coal-pits. He then went away, returned with a constable and five or six other men and, fortified by the news that Busby had been seen in the garden only a few moments before, conducted a thorough search, which resulted in the discovery of various priestly vestments, an altar, “a box of wafers, mass-books, and divers other popish things.”[470] This was on March 1, 1681. A fortnight later, in spite of some opposition from Mr. Justice Charlton, who was on circuit for the spring assizes, Gilbert sent the prize, which by law should have been burnt, back to West Hallam, in the hope of lulling the priest to a false security. On the same night he went to gather the fruits of his manœuvre. Posting men round the house, he made a noise and then waited to see “if they could spy any light, or hear any walking in the lofts or false floors.”[471] A constable and further assistance was summoned, and about midnight Gilbert tapped at a window and demanded admittance. It was refused, and after a proper interval the constable broke in the door and the whole party entered the house. The priest’s chamber was found in disorder; the fire had been lately extinguished, the bedclothes were lying about the room in heaps, and the mattress, which had been turned, was cold on the top, but warm underneath. This was the prelude to a thorough examination of the house. The spies in the garden had heard the priest’s footsteps near a corner under the roof as he retreated to his hiding-place. From one until ten in the morning of March 16 the search was carried on, Gilbert tapping on the plaster inside with his sword and the others meeting him by knocking on the tiles and walls from the other side. Hope was nearly abandoned when the searchers were spurred by the jeers of the people of the house to one last effort. At length they were rewarded. Sounding the roof inch by inch, they came upon a spot near some chimney stacks where the knocks from the two sides did not tally; breaking open the tiles, they discovered a priest’s hole, and in it Busby, whom Mr. Gilbert forthwith bore off in triumph and committed to Derby gaol.

These exploits were no doubt typical of the range of activity common to busy justices of the peace throughout the kingdom. Important business passed through their hands, and they felt their position likewise to be important. They were an energetic body of men and spared not themselves, nor their neighbours, nor those against whom their action was directed in the execution of their duty as government officials. Each was sure to be in his way a local magnate, and thus the influence which the government exerted on the justices was through them spread widely over the country. Well known among provincial magistrates, and still more active than the two above mentioned, was Captain Arnold, whose name appeared in the commission of the peace for Monmouthshire. It was this Arnold who in 1679 assisted Dr. Croft, Bishop of Hereford, in his attack on the Jesuit college at Combe, near Monmouth. The college was dispersed and ten horse loads of books, seized in it, were removed to the library of Hereford Cathedral.[472] In December of the previous year he had been instrumental in the arrest of Father Pugh, formerly of the Society of Jesus, and in the seizure of papers and valuables belonging to Hall, another member of the society.[473] But Arnold exhibited something more than the zeal proper to an energetic and business-like justice. He was a keen adherent to the Whig and extreme Protestant party. In addition to the usual government reward of £50 for the apprehension of a Jesuit, he offered £200 from his own resources for each capture.[474] He made friends with the missioners and then procured their own dependents to give evidence against them. He armed bodies of servants to assist him in his expeditions, and brought the unfortunate priest whom Oates had named as prospective Bishop of Llandaff triumphantly into Monmouth at the head of a dozen horsemen.[475] Chief among his performances was the capture of two well-known Jesuits, David Henry Lewis and Philip Evans, popularly dubbed Captain. Lewis was taken by Arnold in person, Evans through his agency. Against both he produced the witnesses and managed the evidence.[476] Both were convicted of high treason under the statute of Elizabeth, for being priests in orders received from the see of Rome. Evans was executed at Cardiff on July 22, Lewis at Usk on August 27, 1679.[477] In the summer of 1680 Arnold’s name leaped into notoriety in London, when on July 16 John Giles was brought to the bar at the Old Bailey “for assaulting and intending to despatch and murder John Arnold, one of his Majesty’s justices of the peace.”[478] This incident however, which raised Arnold’s importance so high with the Whig party that his popularity bade fair to rival even that of the murdered Sir Edmund Godfrey,[479] affords strong grounds for doubting the candour of motive in his official alertness; for there is reason to believe that no attempt whatever was made upon his life, and that the whole affair was trumped up in a most discreditable manner with a view to establishing more firmly the reputation of the Protestant party and the guilt of the Roman Catholics.[480] One more, and this again a characteristic instance, may suffice to illustrate the varied, almost intriguing, nature of a magistrate’s position and the inquisitorial side which did not completely disappear from his duty until far into the nineteenth century.[481] At Lord Stafford’s trial the three justices who had examined Dugdale immediately after his arrest in December 1678 were called by the prisoner to prove that the witness had then absolutely denied all knowledge of the Plot.[482] To rebut this evidence the managers of the prosecution called William Southall, coroner of the county of Stafford. This man, who was not even a magistrate and occupied the least judicial position known to the law, had taken the opportunity of some legal business which was to be transacted between a cousin of his and Dugdale to undertake a little private examination of the latter on his own behalf in the hopes of obtaining information about the Plot. According to his own account Southall acquitted himself with some skill and, by assuming a knowing air as if convinced of Dugdale’s guilt and playing upon his hopes of pardon and reward, managed to extract from him a material confession. With this he repaired, not to the justices of the peace by whom Dugdale had originally been examined, but to three different magistrates, and in their company was present the next day at a detailed examination of Dugdale, who then swore to nearly the same evidence as he now gave at the trial of Lord Stafford.[483] Whether this story was true, or, as is suggested by the ease of Southall’s success where others naturally better qualified had failed, the interview and its result was arranged beforehand between the two men, is at this point immaterial; for honest or fraudulent, the coroner’s behaviour was accepted as a matter of course, and without the least hint that there was any irregularity in the action of an inferior official going behind the backs of his superiors, and finally transferring so delicate a matter out of their cognisance altogether into the hands of a third party.

Such were the functions of the justices of the peace in the seventeenth century, and so wide was the reach of the magisterial arm stretched out as a weapon in the service of the administration of government. And if the justices filled so important a position, still more important was that assumed by the king’s judges. The justices were able administrators, dealers of small mercy to the evildoer, guardians of the peace in the name of which their commissions ran; but the judges took a place in the foremost rank as great officers of state. The character of their office had been determined by the famous conflict between James I and Lord Chief Justice Coke which came to a head in 1616 and ended in Coke’s dismissal.[484] The Chief Justice’s endeavour had been to erect the bench into an independent tribunal, founded on the ruins of broken agreement between king and Commons, and occupying the position of arbitrator and guardian of the constitution midway between the two. To the king and to Bacon, who advised him, this seemed intolerable; to James, because the ideal of absolutism which guided his mind could not admit in the state a constitutional oracle other than himself; to the Attorney-General, because his liberal instincts, wide statesmanship, and knowledge of political requirements made clear the impracticable nature of Coke’s ideas, the bonds of crabbed technicality with which they sought to shackle the future, their essential conservatism. Coke’s parchment knowledge, too good for James, was not good enough for Bacon. If Bacon inclined towards administrative absolutism, and Coke represented in the struggle the majesty of the law, assuredly the law for which the Chief Justice fought, for ever seeking guidance in the records of the past, was unfit to mould the future of a great nation. So when Coke fell, characteristically enough, over a sordid squabble into which a question of principle was inappropriately dragged, his fall demands our sympathy perhaps, but hardly our regret. Regret at a victory in the personal cause of the monarch and the check given to the forward march of constitutional progress is profitless. Between the ideas of Bacon and Coke there was no middle course open at the moment when a choice became necessary. It was impossible to avoid the conclusion that the judges must either become an independent power in the state, an irresponsible tribunal to which constitutional questions of the highest importance should be referred for decision in strict accordance with the rules of the Court of King’s Bench, or be content to remain in subservience to the crown, supporters of the king’s prerogative, and administrators of his policy. The expedient, which has since made the way plain, of the constitutional supremacy of the Commons of England was then unborn, and as yet in the light of practical affairs inconceivable. The Lord Chief Justice, “toughest of men,” and too stubborn to yield, was broken; but his brethren on the bench gave way and offered assurances of their good conduct for the future and of their devotion to the royal will. James took the opportunity of the lecture which he read to the judges in the star chamber to compare their behaviour in meddling with the prerogative of the crown to the atheism and blasphemy committed by good Christians in disputing the word of God.

Thus the judges became, according to Bacon’s wish, “lions, but yet lions under the throne,” and carried themselves very circumspectly not to “check or oppose any points of sovereignty.”[485] Of their regularity in this course there can be no doubt, for if any lapsed into forbidden ways, a judge he speedily ceased to be. His appointment was durante beneplacito[486] and revocable at the will of the king; and the king took full advantage of his power. The example offered by the case of Coke was not left long in isolation. The government was engaged in the hopeless attempt to uphold the constitution of the Tudor monarchy at a time when the nation had outgrown it, and had opened a war to the death with the progressive tendency of Parliament. In such a struggle the judges were the king’s strongest weapon, and as a weapon that turns uselessly in the hand, the recalcitrant judge was discarded without scruple. When the better class of judges questioned the legality of acts of government they met with the same fate as their rugged predecessor. Under Charles I two Lord Chief Justices were dismissed and Chief Baron Walter was suspended from office. Judicial offices of consequence were filled with “men of confidence,” men who enjoyed the confidence of the king and quickly lost that of every one else.[487]

In their support of the crown by technical legality and practical injustice the courts lost all repute as temples of the law. Even that high royalist, Lord Clarendon, recognised that reliance upon such means was a cause of weakness, not of strength, and that men ceased to respect judicial decisions when they were used to cloak the designs of government. “When they saw,” he writes, “in a court of law (that law that gave them a title to the possession of all they had) reason of state urged as elements of law, judges as sharp-sighted as secretaries of state, and in the mysteries of state, ... they had no reason to hope that doctrine, or the promoter of it, would be contained within any bounds. And here the damage and mischief cannot be expressed that the crown and state sustained by the deserved reproach and infamy that attended the judges; there being no possibility to preserve the dignity, reverence, and estimation of the laws themselves but by the integrity and innocency of the judges.”[488] To the thorough supporter of the administration the matter appeared in a different light. When the two dissenting judges gave way under pressure and adhered to the report of the majority in favour of ship-money, they were told by Lord Wentworth that it was the greatest service the legal profession had rendered to the crown during this period.[489]

For good or evil the work of reducing the bench to an arm of the administration had been done, and from this political degradation it did not recover for nearly three-quarters of a century, until William III was seated on the throne and the judges became independent of the crown.

The stirring events of the great rebellion, the Protectorate, and the Restoration, which so profoundly affected the life and institutions of the nation in other ways, touched the bench but slightly. In the early months of the Long Parliament a resolution was passed by both houses of Parliament to the effect that the judges’ appointments should be for the future quamdiu se bene gesserint, and on January 15, 1641, the king gave effect to this by a declaration that they should no longer hold office at the pleasure of the crown but during good behaviour. For twenty-four years the improvement was maintained in theory; in practice the old system kept its hold unshaken. During the short remainder of Charles I’s reign the judges were concerned on only two occasions in affairs of state. These were however enough to demonstrate that the change in the manner of their appointments had by no means the result of rehabilitating the character of the bench and restoring to it the quality, which it had long lacked, of independence. One of the first acts of the Long Parliament, after dealing with the vital question of ship-money, was to turn upon the judges who had lent the weight of their names to the decision which pronounced its legality. Finch was violently attacked as a traitor in the House of Commons, and his impeachment voted with scarcely a dissentient voice. The Lord Keeper preferred the path of safety to that of dignity and fled to Holland on board a royal vessel, leaving the impeachment to be formally concluded in his absence. At the same time proceedings were commenced against six other judges who had sat at Hampden’s trial.[490] The effect of this was immediate. Only once again did the judges come into prominence before the outbreak of the Civil War. Scarcely five months after Finch’s impeachment the House of Lords demanded their opinion whether or no the articles against Strafford amounted to making him guilty of treason. Without hesitation they replied unanimously that upon the articles which the Lords had voted to be proved it was their opinion that the Earl of Strafford did deserve to undergo the pains and penalties of high treason by law.[491] Not only was their conduct in delivering this extra-judicial opinion decidedly irregular,[492] but their decision was in flagrant opposition to the clearest dictates of justice and rules of law, for the accusations against Strafford cannot be regarded as tantamount, or even approaching, to a substantial charge of treason.[493] The fault lay not in their intelligence, but in the system which had made their honesty an asset in the treasury of government, and had robbed them of their ability to judge facts in the light of law and reason without reference to principles of statecraft or the struggle of parties. It was not upon the merits of the case that their decision was based now that it was unfavourable to the administration, any more than their favourable decisions had been based upon the merits of cases when the administration was in power: the only difference was that formerly they had feared dismissal from the service of an angry sovereign as the result of an independent opinion, whereas now they feared impeachment at the hands of the angrier Commons.

Under the Commonwealth and the Protectorate the bench fared no better. In October 1649 all judges and other officers of the law, down to the very clerks of the courts, who had shown themselves hostile to the Parliament and in sympathy with the monarchy, were summarily dismissed, and their posts filled by men in whom trust could be reposed. Even this was not sufficient. In affairs of state justice was at a still greater discount under the Protectorate than under the monarchy. The cause of right was pleaded in vain when it came into collision with the power and plans of the Protector. “For not observing his pleasure” judges were rebuked, suspended, dismissed. Special judicial commissions were appointed to do his work; obnoxious attorneys and critical counsel were imprisoned.[494] The jury which acquitted Lilburn after “the furious hurley-burleys” of his second trial were sharply examined on their conduct by the Council of State.[495] Moreover the new appointments to the bench in spite of all care were not entirely satisfactory to Cromwell’s government. The judges still exhibited a bent which must have been far from pleasing to the republicans. Sir Matthew Hale withdrew as far as possible from all political trials and refused to sit on Penruddock’s trial after the collapse of the rising at Salisbury.[496] Surely it is this rather than the respectability of their characters that should explain how it came about that at the Restoration nine out of the fifteen republican judges then in office were found acceptable to the new government.

The character of the bench was no more altered by the Restoration than by the rebellion. If the traditions of forty years had clung too closely to be shaken off by those who might perhaps wish to be rid of them, they were not likely to be removed ten years later by those whose interest it was to retain them. The only practical difference was that the judges, whose duty as partisans of the government had been sealed by time and recognised by all who were concerned in the government, could now return to their more natural sphere as servants of the crown as well. Thenceforward until the end of the Stuart monarchy they were indispensable as allies of the king, protectors of the administration, shining examples of loyalty well applied and labour serviceably directed. They possessed moreover the signal advantage of being able to enforce the example which they inculcated. Those who did not obtained an evil reputation at court; and Sir Matthew Hale was looked at askance as one who was suspected of not lending a whole-hearted support to the government.[497] Even the theoretical advantage which had been gained by the Long Parliament now disappeared. Charles II took advantage of the lengthy prorogation of 1665 quietly to reintroduce appointments “at the good pleasure” of the crown.[498]

There was however some change for the better. A large majority of the nation was for the first time for thirty years united in sympathy with the government. The universal desire was for peace and stability. The great constitutional questions which had rent the kingdom and distracted the bench lay for the moment at rest. Government was no longer divided against itself; what was now found in opposition was not a combination of popular feeling with constitutional principle, to crush which the law must be strained by a serviceable judiciary, but a discredited party of fanatics and dissenters, the dregs of a defeated rebellion, against whom the law could be directed legally and to the satisfaction of the vast majority of the king’s subjects.

The demand therefore for that cast of mind which under Charles I had been the peculiarity of a successful judge no longer existed for Charles II. When definitions of law were no longer needed to support the crown in opposition to the other legitimate elements of the constitution, and when the government was in close accord with the people, there was no temptation to subject the law to such strains as it had formerly been made to bear in the effort to galvanise into life a system which had already died a natural death. Perhaps it was less that judges had become more scrupulous than that the objection to their scruples had disappeared. To whatever cause they were due, it is certain that the reign of Charles II was marked by the renewal of decisions which must have been obnoxious to the government. No doubt these are not to be found in particular cases which were regarded as of high consequence, but the tendency is perfectly visible, and in one instance at least proved to be of profound importance. This was the trial of Penn and Meade in 1670, for by the proceedings which arose from it was finally established the principle that a jury has an absolute right to give such a verdict as it thinks proper without being open to question therefore by any other person or authority whatsoever.[499] The Quakers had been indicted for an unlawful assembly, and the jury before whom they were tried, in spite of repeated direction and shameful abuse from the Lord Mayor and the Recorder, found a verdict of not guilty. For this the court sentenced the jurymen to a fine of forty marks apiece and imprisonment until the fine was paid. Bushell, the foreman, and his fellow-jurors obtained a writ of habeas corpus, and the point was argued at length on the return to the writ. Ten judges out of twelve affirmed the absolute discretion of the jury to believe or disbelieve the evidence given according to the dictates of conscience, and not only were the jurymen discharged from custody without paying the fine, but no attempt has ever been made since to contest the principle thus established.[500]

One further instance may be noted. In 1675 a consultation of all the judges but two was held to decide a case which was submitted to them by the Attorney-General. A great riot had been made a month before by the weavers’ apprentices in various parts and suburbs of London by way of protest against the increased introduction of looms into their trade; the looms had been broken, a large amount of property destroyed, and several persons injured. The Attorney-General now wished to indict the rioters for high treason; but the judges were divided, five for, five against the opinion that treason had been committed, and in spite of the evident anxiety of the government to proceed against the apprentices on the graver issue, the Attorney-General had to be content with laying the indictments for a riot and obtaining convictions for the lesser offence.[501] When it is remembered that the London apprentices perpetually drew upon themselves the watchful eye of the government by their obnoxious politics, and that a trade riot was always suspected of being the forerunner of a sectarian revolt, it is evident that the decision of the judges meant considerable annoyance, if not an actual rebuff, to the government.[502]

The general usefulness of the bench was not however impaired by such exceptions. The judges still formed one of the most important parts of the administrative machinery. They were consulted by the government, gave advice, and put into effect the results of their advice. They supplied the king during the long prorogation of 1675 with the pretext which he required for the suppression of the coffee-houses.[503] Before the trial of the regicides they had held a conference with the king’s counsel, Attorney, and Solicitor-General to resolve debatable points which were likely to arise in the course of the trials.[504] When the Licensing Act expired in 1679, the judges were ordered by the king to make a report concerning the control of the press. Their unanimous decision was “that his Majesty may, by law, prohibit the printing and publishing of all newsbooks and pamphlets of news whatsoever, not licensed by his Majesty’s authority, as manifestly tending to a breach of the peace and disturbance of the kingdom”;[505] and their preaching was put into practice before many months had elapsed at the trials of Harris[506] and Carr,[507] the former of whom was sentenced to the pillory and a fine of £500, and the latter to the suppression of the newspaper which he owned.

Actions for libel had always afforded a wide field for the exercise of administrative authority. Under the Clarendon régime the sentence pronounced by Chief-Justice Hyde upon Twyn, the printer, had fully sustained the traditions of the trials of Prynne, Bastwick, and Lilburn.[508] With the multiplication of political pamphlets after 1678 trials and convictions for libel became frequent. Within two years six important prosecutions of authors, printers, or publishers were instituted, and not only resulted almost always in the infliction of heavy punishments, but offered at the same time opportunities for many caustic and edifying remarks from the bench. Some time after, the number of trials for political libels and seditious words held within the space of seven months actually mounted to the total of sixteen.[509]

The advantage of lectures thus delivered in court on general politics and the duties of a good subject was of considerable value to the government. In this part of their duties the judges rivalled even the courtly eloquence of divines whose chief occupation was the advocacy of the doctrine of non-resistance. On his elevation to the bench in October 1676 Sir William Scroggs “made so excellent a speech, that my Lord Montague, then present, told the king he had since his happy restoration caused many hundred sermons to be printed, all which together taught not half so much loyalty; therefore as a sermon desired his command to have it printed and published in all the market towns in England.”[510] It was afterwards made a ground for proceedings in Parliament against Scroggs that he had publicly spoken “very much against petitioning, condemning it as resembling 41, as factious and tending to rebellion, or to that effect”[511] and it was said that Sir Robert Atkyns was dismissed from the bench for contradicting a dictum of the Chief Justice while on circuit, “that the presentation of a petition for the summoning of Parliament was high treason.”[512] Similar behaviour was also made the subject of complaint against Mr. Justice Jones.[513] Even the courteous Lord Chancellor Finch, in delivering sentence upon Lord Stafford, undertook to prove by the way that Godfrey had been murdered, and London burnt, by the papists.[514] But most of all the influence and importance of the judges was shown in trials for treason. In those days state trials were not merely impartial inquiries into the question whether or no certain persons had committed certain acts, the nature of which was under examination: they were life-and-death struggles of the king and his government against the attacks of those who wished to subvert them. It was the business of those engaged in them to see that the king’s cause took no hurt. In this light they were universally regarded, and to this end their conduct was undertaken. Judges and jurors alike were engaged in the recognised task of the defence of the state. To the hearers it was no quaint piece of antiquated phraseology when the clerk of the crown addressed the prisoner arraigned at the bar for high treason: “These good men that are now called, and here appear, are those which are to pass between you and our sovereign lord the king, upon your life and death”; it was a sober expression of vivid truth. The jury stood between the king’s life and the intrigues of a defeated malefactor. Of his innocence they were indeed ready to be convinced, but it would require strong evidence to convince them. In his guilt their belief was already strong. They can scarcely have refrained from regarding themselves less as agents employed in the cause of truth to examine without prejudice the merits of the case before them than as executors of an already predetermined justice.

And here the weight of the judge’s authority was preponderant. He directed those heavy advantages which weighed on the side of the king and against the prisoner. The stringent system of preliminary procedure, which rendered extreme the difficulty of properly preparing his case beforehand, his isolation when actually upon trial, and the unsympathetic atmosphere by which he was surrounded, and of which the counsel for the prosecution were ready to take advantage to press every point home, combined to render the accused almost helpless against the crown. Even when administered with mercy the system was severely favourable to the prosecution; and the adverse rules which hemmed in the prisoner were generally worked to the utmost. To understand these clearly, it will be necessary to pass shortly in review the history of criminal procedure in the English courts of law, and the developments which led to its state at the time of the trials for the Popish Plot.[515]