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

by John Pollock

CHAPTER II

CRIMINAL PROCEDURE

The Reformation, as in almost all other branches of modern history, constitutes the starting-point at which the study of public procedure must be begun. Rather it would be true to say that in this as in other subjects it should form the starting-point. Unfortunately the necessary materials are here wanting. The State Trials, which afford not only the greatest quantity but the finest quality of evidence on the judicial history of England, are printed from reports which do not begin before the reign of Queen Mary in 1554. From that date until our own day they are continuous, and form the greatest collection of historical documents in the English language. From that date too the history of criminal procedure in modern England may be said to begin. Throughout the seventeenth century the courts of law occupy for the student of history a position of singular importance. They were the scenes not only of profound constitutional struggles, but of brilliant and deadly political contests.

The study of criminal procedure is therefore indispensable to an understanding of the numerous historical problems which have been worked out in the courts of law; especially to an understanding of those, not few, which have been worked to a conclusion, but not to a solution.

The difference between the procedure in criminal cases as it exists to-day and as it existed two centuries and a half ago is but little known. It is the more difficult to understand because it is witnessed by few great landmarks in the history of the administration of justice, and owes its existence to no promulgation of new codes or rules to which a triumphant finger may be pointed. Rather the new system has emerged from the old by a procession of unconsidered changes, at different times, of varying importance, the results of which have come to be so universally known and approved, that to the backward glance they seem to be not the outcome of long experience, but inextricable parts of a system which has existed from all time. The essential change has been one of conduct less than of opinion, and is to be found rather in an altered point of view than in any variation of practical arrangements.

The evolution of the forms under which trials were conducted during the later Stuart period was slow and unpronounced. The all-pervading activity of the Tudor privy council in affairs of state had left a deep imprint upon the course of English justice, and one from which it did not soon free itself. It was then that the courts gained the inquisitorial character which they did not lose until after the restoration of the monarchy, and it was not until the Puritan Revolution that the judicial authority of the council, which had grown to such a height of severity in the preceding half century, was swept away. During that time the privy council played a part of high importance in political trials. When a suspected criminal was to be brought to justice a stringent preliminary inquiry was held. The accused was examined on oath and in secret by the council. His examination was taken down in writing and might afterwards be produced against him under the name of a “confession.” The investigation here made had the greatest weight. “In point of fact,” says Dr. Gardiner, “these preliminary investigations formed the real trial. If the accused could satisfy the privy council of his innocence, he would at once be set at liberty. If he failed in this, he would be brought before a court from which there was scarcely a hope of escape.”[516] As a rule he did fail. The privy councillors were not apt to waste their time on persons who were not brought before them as suspect on good grounds, or objectionable for reason of state. Innocence moreover would be little protection to a prisoner in the latter case, for the political grounds against him would be unaffected by any scrutiny of evidence. If the accused was committed by the council, it was with no bright prospect before his eyes. Until the day of his trial he was kept close prisoner. He had no notice of the witnesses who were to be called against him or of the evidence which they would give. Nor was the evidence for the prosecution the only point in which the prisoner was at a disadvantage, for he was not allowed to call witnesses to set up a case for himself. This at least seems to have been the fact; but even had theory permitted the appearance in court of witnesses for the prisoner, in practice the difference made would have been trifling, for he certainly had no means of procuring their attendance or, supposing they came, of ascertaining what they would say. Even at the close of the seventeenth century, when witnesses for the defence were recognised and encouraged by the courts, great difficulty was experienced by prisoners in procuring the attendance of the right persons, and, when these came, they sometimes gave evidence on the wrong side.[517] The accused was brought into court in absolute ignorance of what would be produced against him, and was compelled to defend himself on the spur of the moment against skilled lawyers, who had been preparing their case for weeks or perhaps months beforehand. Neither before or at the trial was he allowed the aid of counsel or solicitor. On being brought to the bar, the prisoner was treated in such a way as to rob him almost of the possibility of escape. During his confinement examinations had been made of all other suspected persons, and their depositions had been taken. Not only could these now be produced in court against him, but the confessions of accomplices, when these could be found, were regarded as specially cogent evidence. No one, it was said, could have so great a knowledge of the crime as the accomplices of the criminal—a remark, it must be admitted, which, at a time when there existed no organised force of police, was not without some show of justice. No doubt such men were of bad character, but then it was not to be expected that one could raise the curtain on scenes of such ill-odour without coming into questionable company. The prisoner was not allowed to cross-examine the witnesses brought against him and had not even the right to confront them in court face to face.[518]

In a trial of any intricacy the case for the crown was usually divided between several counsel. Each worked out his part minutely before giving place to the next, partly by making direct statements, partly by a string of questions addressed to the prisoner. The trial was thus resolved into a series of excited altercations between the accused and the counsel for the crown. The success with which the defence was conducted depended entirely upon the skill and readiness displayed by the prisoner himself. At his trial for treason in 1554[519] Sir Nicolas Throckmorton maintained for close upon six hours a wordy conflict with Sergeant Stamford and the Attorney-General, and acquitted himself so well that the jury after deliberating for two hours returned a verdict of not guilty.[520] The Duke of Norfolk, convicted of high treason in 1571, was set an even harder task, for he was compelled to deal successively with no less than four eminent counsel who had undertaken different parts of the case against him.[521]

Apart from the opening speeches of the crown lawyers and the summing up of the evidence by the judge at the end of the trial, there was little room for any display of fine oratory, and practically none for the sentimental appeal to the jury which at a later date became so prominent a feature in the courts. Every point was argued by the opposing parties in a close and acrimonious conversation, which had at least the merit of throwing light from every possible point of view on the subject in hand. In this the judges presiding did not take much part, nor was the summing up regarded as of special importance; but explanatory remarks, and questions on points which seemed to the judges to have been overlooked, were occasionally interposed from the bench.[522]

But what weighed most heavily of all against the prisoner was the fact that rules of evidence, as they are understood at the present time, were practically unknown. The only distinction recognised was between the evidence of an eye-witness to the actual crime and everything else. If other than eye-witnesses were admitted, there seemed to be no reason why the most insignificant evidence upon hearsay of facts, however remotely connected with those alleged in the charge, should not be produced against the prisoner. Even the production of the originals of documents relied upon as evidence for the prosecution was not required.[523]

This was a fault in criminal procedure which persisted until at least the end of the seventeenth century and exercised a supreme influence upon the course of justice. Grave attention and decisive weight was given to evidence which in modern times would not be allowed to come into court at all. The most irrelevant detail was freely admitted against the prisoner. At Raleigh’s trial in 1603 one Dyer, a pilot, swore that when he was at Lisbon he had accidentally met a man who said that Cobham and Raleigh would cut King James’ throat before he could be crowned.[524] Evidence of a still more remarkable character was given at the trial of Benjamin Faulconer for perjury in 1653. After the charge had been proved, witnesses were called to testify to a variety of facts startlingly unconnected with the case. They swore that the prisoner had been guilty of using bad language, that he had drunk the devil’s health in the streets of Petersfield, and that he had “a common name for a robber on the highway.”[525] All this was allowed as good evidence to raise a presumption of his guilt. Instances of the lax rules of evidence in force might be multiplied. At Hulet’s trial for having been executioner of Charles I witnesses were admitted for the defence to testify that they had heard Brandon, the hangman, say that he had himself cut off the king’s head. On the other hand the evidence for the prosecution chiefly consisted of the testimony of persons who swore that they had heard Hulet admit the truth of the charge.[526] The trial of Hawkins for theft before Sir Matthew Hale in 1669 is still more notable. Not only was evidence allowed to prove for the prosecution that Hawkins had committed, and for the defence that he had not committed, two other thefts wholly unconnected with the case before the court,[527] but the prisoner, who was a country parson, was permitted to produce a certificate signed by over a hundred of his parishioners, to the effect that the prosecutor was “a notorious Anabaptist, an enemy to the Church of England, and a perfect hater of all ministers of the same, but in particular most inveterate and malicious against Robert Hawkins, clerk, late minister of the church of Chilton,” and going on to express their belief in the innocence of Hawkins and the dishonesty of the prosecutor.[528]

The trials of Colonel Turner for burglary and of the Suffolk witches, who were condemned in the year 1665, afford perhaps the strongest instances of the slight extent to which the principles of evidence were understood. In the former the chief part of the evidence given by Sir Thomas Aleyn, the principal witness, was concerned with what other people had done and said, and would by modern methods have certainly been ruled out; in the latter the smallest apprehension of the value of testimony would have resulted in an abrupt termination of the case, for nothing which by courtesy could be called evidence was produced against the wretched old women who were being tried for their lives, and their conviction was obtained partly on the strength of a statement by Dr. Browne of Norwich, author of the Religio Medici, as to the nature of witches and their relations with the devil, no single word of which could have been spoken in a modern court of justice.[529] It was a state of things, due to lack of experience and of scientific vision, which prevailed until after the Revolution and exerted a powerful influence against the accused. In other points however criminal procedure in the English courts underwent changes of considerable importance. From the reign of Queen Mary until the Puritan Revolution it had remained almost unaltered, but during the Commonwealth and Protectorate several modifications were introduced. An apparently spontaneous change, inaugurated by no legislative enactment, bore witness to the fact that the view in which criminal trials were regarded was insensibly shifting from the ancient to the modern standpoint. The inquisitorial nature of the old trial was gradually disappearing. Chief among the differences which may be noted as having arisen is the fact that the prisoner was no longer systematically questioned in court. When he was questioned, it was now, if he were innocent, in his favour. His examination was no longer what it had been in the days of Elizabeth and James I, the very essence of the trial. Questions were still put to him, but now they were directed by the judges and not by the prosecution. The process was of no greater scope than was demanded by the necessities of the defence of a prisoner who has not the assistance of counsel. It was used as a natural means of arriving at the truth of statements made on one side or the other, and served to set in a clear light the strong and weak points of the defence. At the trial of the Turners, who were guilty, a lengthy examination of the prisoners by the court succeeded in shewing the great improbability of statements in their story, and tended directly to the conviction of the colonel.[530] On the other hand, in the case of Sir George Wakeman, who was innocent, the triangular series of questions between judge, witness, and prisoner had an effect which was by no means unfavourable to the accused.[531] The prisoner moreover could, if he wished, refuse to answer questions put to him.[532]

Two other results of the changing spirit of the times may be found in the criminal courts. Witnesses for the prosecution were now always brought face to face with the accused, unless reason such as would be valid to-day was given to the contrary; and the prisoner was not only allowed to cross-examine the witnesses against him, but to call evidence in his own behalf.[533] The value of cross-examination to the defence was doubtless an important advance in theory; practically it was greatly impaired by the natural difficulties, which to an untrained man are almost insuperable, of cross-examining witnesses without proper instruction. But the power of calling witnesses for the defence was in practice as well a gain of immense magnitude.

With these changes the procedure of Tudor times was handed on to the restored monarchy, and was retained without alteration until the end of the Stuart dynasty. The position of a person on trial, bettered as it was, was pitiable. The bench received the prisoner’s witnesses with the utmost suspicion and treated them as if they were proved to be accomplices in his crime. It was pointed out to the jury that they were not upon oath. At the trial of one of the regicides in 1660 it was even hinted that their evidence might be disbelieved on this ground alone.[534] Later practice demanded that the jury should be directed to notice the fact and warned that witnesses not upon oath deserved no less credit for this reason; but opportunity was generally taken to slight their evidence in other ways. If the prisoner’s witnesses were Roman Catholics, it was pointed out that their evidence might be tutored.[535] If not, the counsel for the prosecution could easily make an opening to call attention to the fact that mere words for the prisoner ought not to weigh as heavily as sound oaths for the king, and he would not be hastily checked by the court.[536] Theoretically, the court was “of counsel for the prisoner” in matters of law;[537] practically, as this conflicted with the judges’ duty to the king and their watch over his life, the prisoner was allowed to shift for himself. To justify the denial of counsel to the accused, the argument was constantly used that, in order to convict him, the proof must be so plain that no counsel could contend against it.[538] Honestly enough, no doubt, this was the theory; but in practice the slightest complication of facts or the most awkward piece of perjury could not fail to render the prisoner in his eagerness and ignorance helpless to unravel the skein which was being wound round him.

In particular matters of law counsel might be assigned to argue such points as the court thought fit, but only when they had been proposed to the court by the prisoner himself.[539] When Colledge at his trial for high treason retorted that without the aid of counsel he could not tell what points to submit for argument, he was told by the Attorney-General that ignorance of the law was an excuse for no man.[540]

In countless ways the system worked, in accordance with the tradition of many years, in favour of the king and in glaring disfavour of the prisoner. Peculiar cruelty on the part of the judges has continually been assumed as an explanation of this. In reality recourse need be had to no such hypothesis. The judges handled the means which had come down to them as legitimate, without necessarily indulging the rare vice of spontaneous inhumanity which has been attributed to them by historians. They did their work and performed their duty as it came in their way; and the work of a judge in state trials in the seventeenth century was to modern eyes neither dignified nor pleasant. Nor, although their names are linked to no distinction in the annals of the law, were the judges, whose patents ran “during the good pleasure” of King Charles II, men devoid of talent. Lawyers were raised to the bench by influence at court, since all offices of state were to be obtained by favouritism; but their appointments were seldom devoid of some foundation of solid attainments. Some, like Scroggs, were by nature brilliant; others, like North and Pemberton, had grounded their fortunes on many years of laborious industry.[541] Such men, whose minds were not bent to reverence of the law by severe learning in it, were likely to be influenced by their position as lawyers less than by that as officers of state, and to regard their oaths as constraining them rather to the service of the crown than to an absolute pursuit of justice. Sometimes the rules under which they worked themselves prevented them from doing right to prisoners. They were unable, for instance, to summon or to protect witnesses for the defence, for their power ended with the confines of the court. When Colonel Turner on his trial in 1664 told the bench that his witnesses had sent him word that they did not dare to come without an order, the Chief Justice replied, “When witnesses come against the king, we cannot put them to their oaths, much less precept them to come.”[542] At the trial of Langhorn, the Roman Catholic lawyer, for the Popish Plot, Lord Castlemaine complained to the court that the prisoner’s witnesses were being threatened and assaulted by the mob outside and dared not “come to give their evidence for fear of being killed.” The judges were indignant and declaimed loudly against the “very horrid thing,” but they were powerless to do more than to threaten the offenders with severe punishment, if the earl could produce or point to them. As this was naturally impossible, nothing could be done.[543]

The inability of the court to allow real favour to the accused receives constant illustration from the trial of Lord Stafford. It might have been expected that a venerable peer, standing to be judged by his peers and surrounded by his relatives and old acquaintances, would receive an amount of respect and favour which was denied to meaner folk. But this was far from being the case. In spite of the evident desire of the Lord Chancellor, who presided in the capacity of Lord High Steward, to allow to the accused every advantage that was consistent with his duty, he found it impossible to contest against the managers of the prosecution in their demand that the rules should be exerted against him in all their usual harshness. Time after time the counsel pressed home points of procedure which lay in their favour. It roused the indignation of Jones and Maynard that the barristers retained by Lord Stafford to be his counsel on matters of law stood so near him that they might be suspected of wishing to prompt him in matters of fact, and they were forced to move to a greater distance from the prisoner.[544] When at the end of the second day of the trial Finch urged that before further proceedings a day’s rest should be given to the prisoner to recover from his great physical fatigue, the managers withstood his proposal eagerly. The Lord High Steward asked what inconvenience would ensue. They could suggest none of consequence, but said that the delay would be highly unusual and that it was a most unreasonable thing to demand. Jones’ zeal was such that he exposed himself to a well-deserved snub from the court.[545] Without being in the least abashed he pursued his speech and finally carried the point triumphantly.[546] A similar violation of the maxim De vitâ hominis nulla est cunctatio longa, which the Lord Chancellor quoted on this occasion, occurred during the trial of Lord Russell, when Chief Justice Pemberton would have granted a short respite to the prisoner but for the opposition of the prosecuting counsel. “Mr. Attorney, why may not this trial be respited till the afternoon?” To which the Attorney-General rudely replied, “Pray call the jury”; and Pemberton had nothing for it but to say to the prisoner, “My Lord, the king’s counsel think it not reasonable to put off the trial longer, and we cannot put it off without their consent.” On the last day of Lord Stafford’s trial the court again displayed its weakness as a protector of the accused. Owing to the prisoner’s excessive weakness and failure to make his voice heard, the Lord High Steward ordered a clerk to read the paper from which he was struggling to propose certain points of law to be argued. The managers immediately objected. It was contrary to custom and might be turned into a dangerous precedent. Finch was compelled to give way to their harsh insistence, and Stafford, tottering with fatigue, to make an effort which was almost beyond his strength.[547]

The old criminal trial of the English courts had been conducted strictly on the inquisitorial method of procedure, a system admirably contrived for the conviction of the guilty, but by no means so successful in ensuring the acquittal of the innocent. Of this character it was robbed by the Puritan Revolution, which rendered the administrative methods of continental nations odious to the English mind. But in its place nothing so complete or logical remained. The changes which were then introduced, beneficent as they were, did not institute an order capable, in the interest of justice and of the state, of guaranteeing the discovery of the truth or of safeguarding the rights of the individual. The rigorous system of preliminary procedure, the denial of counsel to assist the accused, the ignorance of the art of cross-examination and of the science of sifting evidence, combined to set judge, jury, and prisoner alike at the mercy of every man of villainy sufficient to swear away a man’s life by a false oath, and of impudence sufficient to brazen out his perjury.[548] Not until greater knowledge of the principles of judicial administration was gained by a long and harsh experience, and until a more stable state of society produced the possibility of treating accused persons with the generosity which is characteristic of modern criminal procedure, were these evils remedied.

Society, as it was in the latter half of the seventeenth century, could neither afford nor pretend to be generous to the prisoner at the bar. In these latter days when a man comes to be tried, the jury are told that it is their first duty to believe him innocent until he is proved to be guilty. The burden of that proof lies heavily upon the shoulders of those who conduct the prosecution. Whatever doubt may exist is counted to the benefit of the accused. He is treated throughout with studied consideration. But when the fourteen men who died for the Popish Plot were brought to the bar, all this was unheard of. Then the prisoner came into court already in the minds of all men half proved an enemy to the king’s majesty, and one to whom no more advantage than was his strict right could be allowed. To the satisfaction of one jury, indeed, he had been actually proved guilty, for the grand jurors “for our Lord the King” had presented upon their oaths that the prisoner “wilfully, feloniously, and of his malice aforethought” had committed the crime for which he was arraigned. Why should he be accounted innocent, to whose guilt at least twelve good men and true had positively sworn? The presumptive innocence of the accused is a modern fiction which has tacitly grown up in a society conscious that its strength is too firm to be shaken by the misdeeds of single offenders, and therefore willing that any individual suspected of offence against its laws shall retain all the advantages on his own side. Before this stage was reached, men thought otherwise. In the seventeenth century society and government were unstable and liable to sudden shocks. A comparatively trifling event might set the balance against the reign of law and order, and consequently the law meted out hard measure to those who came into contact with it. As soon as the accused was committed for trial he was sent to close confinement, from which he did not emerge until he was brought to the bar. Unless by extraordinary favour, he was allowed neither counsel nor solicitor to assist in the preparation of his defence. He was not allowed to see his witnesses before they came into court.[549] All the papers which he wrote in prison were taken from him.[550] The utmost he might claim was that one of his friends should visit him in order to summon the proper witnesses for his defence. Even these interviews, in any case of importance, could be held only in the presence of the jailor, that the prisoner might be cut off from all means of illicit intercourse with the outer world,[551] a precaution which was justified by the fact that, when all possible care had been taken, prisoners still found means underhand to receive communications which would have been prizes of considerable value to the government if they had been intercepted.[552] The age which knew the penal laws as active measures of administration, which was divided from the tragedy at Fotheringay by less than a hundred years and from the Gunpowder Plot by scarcely more than the span of a man’s life, which had only recovered from the successive shocks of revolution and restoration to wait expectantly for the day when rebellion would have to be met once again, and on which within the ten ensuing years did burst another rebellion and a second revolution, could hardly be expected to rate the safety of society more lightly than the life of one who, at the best, was surrounded by incriminating circumstances. Even so late and well-ordered a man as Paley believed that it was better for the innocent to die than for the guilty to go free.[553]