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

by John Pollock

CHAPTER III

TRIALS FOR THE PLOT

Such was the state of society and the procedure of the English courts when Edward Coleman was brought to the bar of the Court of King’s Bench on November 27, 1678 to be tried on the charge of high treason. The trial was a test case. In point of importance it was chief among the series of trials for treason which arose from the Plot, for all the others which followed to some extent depended from this. If Coleman had been acquitted, there could have been no more to come. His letters formed, as they still form, the weightiest part of the evidence against the Roman Catholic intriguers,[554] and had they not secured his conviction, the Jesuits, Mr. Langhorn, Lord Stafford, and Archbishop Plunket would have gone unconvicted also. By his condemnation the way was opened by which they were sent to the scaffold, the innocent and the guilty alike, without favour or discrimination.

In the words of Sir George Jeffreys, Recorder of London, the indictment set forth “that the said Edward Coleman, endeavouring to subvert the Protestant religion and to change and alter the same, and likewise to stir up rebellion and sedition amongst the king’s liege people and also to kill the king,” did hold certain correspondence with “M. la Chaise, then servant and confessor to the French king.”[555] In point of fact the indictment lays by far the greater stress on the former of these counts. The murder of the king is mentioned, but not insisted upon. The charges against Coleman are summed up in the accusation of a plot “to bring and put our said sovereign lord the king to final death and destruction, and to overthrow and change the government of the kingdom of England, and to alter the sincere and true religion of God in this kingdom as by law established; and wholly to subvert and destroy the state of the whole kingdom, being in the universal parts thereof well-established and ordained; and to levy war against our said sovereign lord the king within his realm of England”; and the letters in which he endeavoured to obtain aid and assistance for these objects are mentioned in particular.[556] Sergeant Maynard and Sir William Jones, Attorney-General, followed and opened the evidence for the crown. They too touched on the charge of killing the king and the evidence which Oates was prepared to give on the subject, but dwelt most heavily on Coleman’s correspondence with Throckmorton, Cardinal Howard, and Père de la Chaize. “The prisoner at the bar,” said Maynard, “stands indicted for no less than an intention and endeavour to murder the king; for an endeavour and attempt to change the government of the nation, so well settled and instituted, ... and for an endeavour to alter the Protestant religion and to introduce instead of it the Romish superstition and popery.”[557] The matter could not be better or more briefly stated. The substantial charge against Coleman lay, not in the actual attempt of which he was accused to murder the king, but in the designs which he had formed to alter the established course of government and religion, as settled in the kingdom. By the recognised construction of the statute of Edward III such an attempt was held to include “imagining the king’s death,” and was as much high treason as an assassination plot of the most flagrant character.[558] All that was required was that the intention should be proved by an overt act, and the portion of Coleman’s correspondence which had been seized afforded the plainest proof of his designs. This was the real offence which lay at his door, and for this he was legally and properly condemned to suffer the penalties of high treason. “Mr. Coleman,” said the Chief Justice after the verdict had been delivered, “your own papers are enough to condemn you.”[559]

The case for the prosecution was opened by the evidence of Titus Oates. After an admonition from the bench to speak nothing but the truth, permission was given him to tell his story in his own way. In the course of a long examination by the Chief Justice he reaffirmed the startling evidence which he had given before the two Houses of Parliament, and which had already become a powerful weapon in the Whig armoury. He deposed that he had carried treasonable letters from Coleman and various Jesuits in London to the Jesuit College at St. Omers; that he had carried to Père de la Chaize a letter written by Coleman in thanks for a promise from the confessor of £10,000 to be employed in procuring Charles II’s death;[560] that Coleman had in his hearing expressed approval when he was told that the Jesuits had determined to kill the king;[561] and that Coleman had been engaged in distributing throughout the kingdom copies of certain instructions sent to the Jesuit Ashby concerning the assassination of the king, in order to give heart to those of their party who were not on the scene of affairs.[562] In the medley of wild accusations against the Jesuits and other Roman Catholics, which Oates mingled with this evidence against Coleman, the main point, as in his previous examinations, was the Jesuit consult held, he swore, at the White Horse Tavern in the Strand on April 24, 1678, to concert means for the death of the king. After the consult had broken up into smaller committees, it was at that which met at Wild House that Coleman had, according to Oates, given his formal approval to the project. Later, in a letter which Oates professed to have seen, he had expressed the desire “that the duke might be trepanned into this plot to murder the king.”[563] Bedloe’s evidence, which followed, was of the same nature, though not so wide in scope or so decisive in character.[564] He swore to treasonable correspondence between the Jesuits in London and Paris, to treasonable words which he had heard Coleman speak, to treasonable consults in Paris at which Coleman was not present, and on hearsay from Sir Henry Tichbourn bore out Oates’ statement that Coleman had received a patent to be secretary of state under the new Jesuit régime in England.[565] This closed the oral evidence for the crown, and it was against this that Coleman directed the only part of his case which could be called a defence. He objected to Oates that his testimony was entirely untrustworthy. At the examination before the privy council, Oates had neither known nor accused him personally; yet now he pretended to be his intimate and conversant with all his plans.[566] Oates replied quickly that, when he was confronted with Coleman at the council board, the candles in the room gave so dim a light that he was unable to swear positively to his identity. “I then said,” he declared, “I would not swear I had seen him before in my life, because my sight was bad by candle-light, and candle-light alters the sight much.... I cannot see a great way by candle-light.” Here the monstrous ugliness of Oates’ features came to his aid in a strange fashion. His eyes were set so deep in the sockets that they were universally noted as being out of the common. Contemporary descriptions of him all mark this feature as striking.[567] There must have been signs of something perhaps almost unnatural about them, which would lend colour to the idea that he needed a strong light to see clearly. His reply on the present occasion has been universally treated by historians with ridicule, but it is difficult to believe that it seemed so to spectators and even possible that there was some truth in what he said. The answer at all events was taken, and the court passed to what was in fact the more important point, Coleman’s assertion that Oates had not charged him before the privy council with what he had since brought forward. “The stress of the objection,” said the Chief Justice, “lieth not upon seeing so much, but how come you that you laid no more to Mr. Coleman’s charge at that time?” To this the witness had no sufficient answer. His memory failed him completely. He declared with many turns and qualifications that he had not felt bound “to give in more than a general information against Mr. Coleman,” and that he would have spoken in greater detail had he been urged. But he had been so wearied by two sleepless nights spent in tramping round the town to take prisoners that the king and council were willing to let him go as soon as possible. Unfortunately he let slip that he had accused Coleman in particular with writing treasonable newsletters to inflame the country.[568] Upon this the court seized. If he had been able to charge Coleman with this malodorous correspondence, why had he not been able to accuse him of any of the far graver acts of treason which he now laid to his charge Oates was thereupon subjected to a severe examination by the bench. The questions were constantly put to him: “Why did you not accuse Mr. Coleman by name? You were by when the council were ready to let Mr. Coleman go almost at large? Why did you not name Mr. Coleman at that time? How came you (Mr. Coleman being so desperate a man as he was, endeavouring the killing of the king) to omit your information of it to the council and to the king at both times?”[569] Oates’ answers were the reverse of satisfactory. He became loud in protestation, swore that he had been so tired that he could scarcely stand, and appealed to the king to attest what had passed at his examination; but the Chief Justice kept close to the point and drove him from one position to another, until he seemed ready to take refuge in silence. The saviour of the nation was within an ace of a catastrophe which would have wrecked his whole future career when the prisoner restored the balance by a false move. Turning from the witness, Scroggs asked Coleman if he had any further question to put. With maladroitness singular in a man of his experience, Coleman reverted to the incident of the candles and Oates’ inability to recognise him at the council. The question was threshed out minutely, for Coleman thought that he had found in Sir Thomas Dolman, clerk to the privy council, a witness who could prove that Oates had not only failed to recognise him, but had denied acquaintance altogether with the person of Mr. Coleman. This however Sir Thomas could not do, and the matter was left exactly where it was before: the evidence only shewed that Oates had not been able to identify as Coleman the man with whom he was confronted.[570] This Oates had already admitted and explained. But the examination of Dolman naturally led the court to call upon Sir Robert Southwell, another of the council clerks, to state his version of what had happened. From his evidence it appeared that at the examination before the council Oates had charged Coleman by name with having in person paid £5000 out of £15,000 to Sir George Wakeman as a fee for poisoning the king.[571] This was a fact which Oates had not mentioned in his evidence at the trial, when he only swore that Coleman considered £10,000 too small a sum for such a great work, and had advised that Sir George Wakeman should be paid half as much again.[572] He had moreover forgotten altogether that he had given any evidence of the sort before the council. On this no remark was made either by the court or by the prisoner. The omission however to point out his lapse of memory as of weight against the witness is patent of a genuine explanation. Clearly no possible amount of fatigue would have justified Oates in the eyes of the judges for having failed at his examination by the council to charge Coleman with treason of which he afterwards accused him; but it was a very different thing, and perfectly reasonable, to consider that the great exertions which he had undergone might fairly explain his forgetfulness of the charge which he had then actually made.[573] The question had been reduced to the issue whether or no Oates had then charged Coleman with the high crimes of which he was now giving evidence. This was now indisputably determined in favour of the witness and against the prisoner.

The first reflection upon this scene which occurs to the mind of one who comes to study it in the twentieth century is that in a modern court it could scarcely have taken place at all. It seems as if the elaborate care taken to discuss particular omissions and contradictions in Oates’ evidence was only so much waste of time, for to the modern eye the whole bulk was of a character which would now be considered wholly inadmissible as good testimony. Writing of the evidence of the other informers as well as of Oates throughout the trials, Sir James Fitzjames Stephen says: “No one accustomed to weighing evidence can doubt that he and the subordinate witnesses were quite as bad and quite as false as they are usually supposed to have been. Their evidence has every mark of perjury about it. They never would tie themselves down to anything if they could possibly avoid it. As soon as they were challenged with a lie by being told that witnesses were coming to contradict them, they shuffled and drew back and began to forget.”[574] The evidence which Oates gave against the accused consisted largely in his swearing that he had carried letters from one person to another, which upon a mental comparison with yet more letters, he recognised to be in the handwriting of a third person, being in this case that of Coleman.[575] Or that he had been told by Coleman of treasonable letters which he had written into the country to encourage the Catholic party. Or again, that he had been told by other persons that at a consult, from which he himself had been absent, various treasonable designs were formed and approved; or that it was generally understood among the conspirators that the accused had done this, that, or the other. Even definite facts sworn by the witness, as for instance when Oates swore that he had seen Coleman pay an extra guinea to the messenger who carried £80 to four Irishmen as payment for the king’s death, and when Bedloe swore that he had heard Coleman say that “if there was an hundred heretical kings to be deposed, he would see them all destroyed,”[576] were statements which did not receive and were scarcely susceptible of corroboration. Nowadays it is an established principle that the uncorroborated evidence of an accomplice is not to be acted upon, and the direct evidence of witnesses in the Popish Plot, even when it was most definite and precise, would without exception have fallen under this rule. But in the seventeenth century the rule was unknown. Practically any statement made on oath in the witness box was accepted unconditionally, unless the witness was either contradicted by better evidence or else proved to be no “good witness.” The competence of a witness was technically destroyed only by a record of perjury proved against him, but the credibility of evidence was a question for the judgment of the jury; and where the witness had been convicted of other crimes the jury sometimes disbelieved his word.[577] The evidence of accomplices was not only admitted but highly prized. That it should be uncorroborated excited no wonder, for it was regarded as a remarkable piece of fortune to obtain it at all. To our minds the dead weight of an oath seems to be of far less account in determining the trustworthiness of evidence than its intrinsic probability and the degree to which it is corroborated by other circumstances, but in the judgment of the seventeenth century an oath carried all before it. A remarkable illustration of this is received from the trial of the Five Jesuits in 1679. Fenwick objected that the evidence against him was wholly uncorroborated. “All the evidence that is given,” he said, “comes but to this, there is but saying and swearing. I defy them all to give one probable reason to satisfy any reasonable uninterested man’s judgment how this could be.” “You say there is nothing but saying and swearing,” answered the Chief Justice, “but you do not consider what you say in that matter. All the evidence and all the testimony in all trials is by swearing. A man comes and swears that he saw such a bond sealed, or heard such words spoken; this is saying and swearing; but it is that proof that we go by, and by which all men’s lives and fortunes are determined.... Mr. Fenwick,” he added in summing up to the jury, “says to all this: there is nothing against us but talking and swearing; but for that he hath been told (if it were possible for him to learn) that all testimony is but talking and swearing: for all things, all men’s lives and fortunes are determined by an oath; and an oath is by talking, by kissing the book, and calling God to witness to the truth of what is said.”[578] Fenwick’s cosmopolitan education here gave him the advantage. By the light of experience he is seen to have been in advance of the times in England, but for the law and practice of the English courts his contention was vain. He was asking that the court should in his case lay down a rule which half a century later was new to the English mind.

The ignorance which was thus displayed of the proper nature of testimony has constantly been considered as a mark of atrocious ferocity and cowardly time-service in the judges of the period. Such a view is entirely erroneous. The evidence accepted at political trials did not differ in character from that acted upon at trials the causes of which were remote from politics. Fortunately there are means by which this can be proved exactly. It is fortunate, for it is improbable that the same type of perjured evidence should appear in any other than a political trial. Of perjured evidence there was no doubt plenty at every assize, as is witnessed by the case of the Rev. Mr. Hawkins,[579] where a considerable dose was nearly swallowed without being detected. But in this style of lie there was not the same boldness, the same play of fancy, the same overriding of the limits of likelihood which has rendered the acceptance of Oates’ evidence unintelligible to historians except on the supposition of monstrous immorality in the judges and juries. “Witnesses,” writes Fox, “of such a character as not to deserve credit in the most trifling cause, upon the most immaterial facts, gave evidence so incredible, or, to speak more properly, so impossible to be true, that it ought not to have been believed if it had come from the mouth of Cato; and upon such evidence, from such witnesses, were innocent men condemned to death and executed.”[580] Such a state of things, thought Fox and many after him, is not to be explained on any supposition other than that of wilfully wicked blindness to the truth, and can hardly be paralleled in modern history. There is however, if not a parallel, at least a very great similarity between the evidence offered at the trials for the Popish Plot and that taken at another series of trials of almost the same date, to find which no one need go further than a different page in the same volume of reports. The same tangled farrago of wild nonsense with which Oates and his fellow-witnesses filled the courts is, on another plane, almost exactly reproduced in the witch trials of the seventeenth century.

In the first half of the century the numbers of women who had been condemned and hanged as witches may be counted almost by dozens,[581] and in the reign of Charles II at least five wretched creatures were put to death for practices in the black art. What is here noteworthy about their trials is that they exhibit just the same characteristics as the trials for the Popish Plot. The monstrous evidence offered by the witnesses and the credulity displayed by the court at the trials of the Suffolk witches in 1665 and of the Devon witches seventeen years later at least equalled, if they did not surpass, anything which is recorded of political cases of the same age. Two instances will suffice to demonstrate the truth of this. At the trial at Bury St. Edmunds, Margaret Arnold gave evidence as to the children who were said to have been bewitched: “At another time the younger child, being out of her fits, went out of doors to take a little fresh air, and presently a little thing like a bee flew upon her face and would have gone into her mouth, whereupon the child ran in all haste to the door to get into the house again, screeching out in a most terrible manner; whereupon this deponent made haste to come to her, but before she could get to her, the child fell into her swooning fit, and at last with much pain, straining herself, she vomited up a twopenny nail with a broad head; and after that the child had raised up the nail, she came to her understanding and, being demanded by this deponent how she came by this nail, she answered ‘that the bee brought this nail and forced it into her mouth.’”[582] The information of Elizabeth Eastchurch against Temperance Lloyd, one of the three women condemned in 1682, is a fair specimen of the evidence which was, in the words of Fox, “impossible to be true,” and which was nevertheless accepted and acted upon by the courts. “The said informant upon her oath saith. That upon the second day of this instant July, the said Grace Thomas,[583] then lodging in this informant’s said husband’s house, and hearing of her to complain of great pricking pains in one of her knees, she the said informant did see her said knee, and observed that she had nine places in her knee which had been pricked, and that every one of the said pricks were as though it had been the prick of a thorn. Whereupon this informant afterwards, upon the same 2nd day of July, did demand of the said Temperance Lloyd whether she had any wax or clay in the form of a picture whereby she had pricked and tormented the said Grace Thomas? Unto which the said Temperance made answer that she had no wax or clay, but confessed that she had only a piece of leather which she had pricked nine times.”[584]

When it is considered that the former of these trials was conducted by Lord Chief Justice Hale, the most famous and according to all testimony the most moderate judge of his time, it becomes brilliantly clear that it was not only by incompetent judges, as the nature of the cases makes it clear that it was not only in political trials, that unsound evidence was accepted as genuine, but that the common knowledge of the times did not discriminate in any appreciable manner between evidence which is, and that which ought not to be, sufficient to procure the conviction of prisoners. Without adornment the fact is that evidence which to modern ears is bad, to those of judges and juries of the seventeenth century seemed perfectly good.[585] One further point of similarity between the evidence given at witch trials and at trials for the Plot may be noted. Credence was given to flimsy tales of the devil and his practices, if not solely, at least all the more readily because such ideas were current in the popular mind, and scarcely more than a hint was needed for their embodiment as concrete facts. The same may be said of the revelations of the Popish Plot. For years men had expected nothing more certainly and had feared nothing more keenly than a great onslaught of Catholicism upon their own religion. What they now heard seemed only a just realisation of their prophecies. “They had,” says Bishop Parker, “so familiarly accustomed themselves to these monstrous lies, that at the first opening of Oates’ Plot they with a ready and easy credulity received all his fictions; for whatsoever he published, they had long before expected.”[586]

It is necessary to lay stress upon this aspect of the evidence given by the witnesses at Coleman’s trial, since at all those which followed it reappeared with little variation; but to Coleman himself it was not of the first importance. Sixteen letters selected from his correspondence with Roman Catholics abroad were read at length,[587] and formed the heaviest part of the case against him. From them the nature of his schemes was plainly visible. It was of little moment to him that they were taken as establishing the reality of the nightmare which Oates had sketched. Without anything in common with the blood and thunder tales which that miscreant poured forth, they contained more than enough of treasonable matter to cost the prisoner his head. It was impossible for him to deny the letters. All he could do was to say that he had meant no harm, and to express the hope that they would not be found to bear out the charge of high treason. “I deny the conclusion, but the premises,” he admitted, “are too strong and artificial.”[588] Chief among the correspondence read were three letters to and one from Père de la Chaize and the declaration which Coleman had drawn up to justify the prospective dissolution of Parliament.[589] On the subject of these an important discussion took place between Scroggs and the prisoner. Coleman insisted that there was nothing in his letters to justify the accusation that he had planned the death of the king; he might have used extravagant expressions; but if all the letters were considered together, surely it would be evident that, so far from designing any ill to the king and the Duke of York, his sole aim had been to exalt their power as high as possible. The Chief Justice pointed out that the letters openly declared, almost in so many words, an intention to overthrow the religion and government of the country by the help of foreign power; to say that he had attempted this for the benefit of the king was merely to offer a feeble excuse for his fault; with that the court had nothing to do. Coleman again began to explain his point of view in a rather muddled fashion. People said that he had made use of the duke’s name without leave in his negotiations; was it likely that he had been so foolish as to imagine that his friends abroad would expend their money without the certainty that it was for the duke’s service; still more, was it likely that the duke would use any sum thus obtained to the disservice of the king? “I take it for granted,” he continued “(which sure none in the world will deny), that the law was ever made immediately subject to the king or duke; and consequently to the duke, I cannot think this will ever be expounded by the law of England or the jury to be treason.” At this point the Chief Justice interrupted him impatiently. “These vain inconsequential discourses” served but to waste the time of the court. The plain truth was that the prisoner had formed a design “to bring popery into England, and to promote the interest of the French king in this place”;[590] a fact which Coleman had not even attempted to deny. What Scroggs meant, and what, had he been a better judge, he would have made clear to the prisoner, was that such designs, according to the law which it was his duty to administer as it had been handed down to him, were technically evidence of high treason, whether or no they included an actual plot to kill the king; but he was so much irritated by Coleman’s feeble efforts to say that this was not or ought not to have been so, that he neglected altogether to explain the matter, with the result that when Coleman came up for judgment on the following day he shewed that he was still in the dark about it.[591]

Concerning Coleman’s letters a curious point arose at the trial. In opening the evidence for the crown Sergeant Maynard had remarked that the correspondence found at the prisoner’s house extended only “to some part of the year 1675; from 1675 unto 1678 all lies in the dark; we have no certain proof of it, but we apprehend he had intelligence until 1678.”[592] The Chief Justice took the subject up: “Mr. Coleman, I will tell you when you will be apt to gain credit in this matter.... Can mankind be persuaded that you, that had this negotiation in 1674 and 1675, left off just then, at that time when your letters were found according to their dates? Do you believe there was no negotiation after 1675 because we have not found them?” The prisoner replied, “After that time (as I said to the House of Commons) I did give over corresponding. I did offer to take all the oaths and tests in the world that I never had one letter for at least two years; yea (that I may keep myself within compass), I think it was for three or four.”[593] After he had delivered sentence on the next day, Scroggs adjured the condemned man to confess that he had continued to correspond with agents abroad during the last three years. “I am sorry, Mr. Coleman,” he said, “I have not charity enough to believe the words of a dying man; for I will tell you what sticks with me very much: I cannot be persuaded, and nobody can, but that your correspondence and negotiations did continue longer than the letters that we have found, that is, after 1675.” “Upon the words of a dying man and the expectation I have of salvation,” was Coleman’s answer, “I tell your lordship that there is not a book or a paper in the world that I have laid aside voluntarily.” Scroggs urged that he might have burnt them. “Not by the living God,” returned the prisoner.[594] Coleman lied. The correspondence which he carried on with Paris and Rome, even in the fragmentary state in which it has been preserved, extended beyond the end of the year 1675. Between December in that year and December 1676 he received fifty letters from St. Germain at Paris, and a letter from the same quarter, dated October 5, 1678, was seized on delivery after Coleman’s arrest. From January 1676 to January 1678 a correspondence was steadily maintained between Coleman and Cardinal Howard at Rome either personally or by his secretary Leybourn, and a letter from Leybourn seized on its arrival bore the date October 1, 1678. Shortly before, a “very dark, suspicious letter,” dated September 28, 1678, had been seized on delivery. Coleman even received letters from Italy after his arrest by the help of his wife. The last doubts on the subject are resolved by the evidence of his secretary, Jerome Boatman, taken before the committee of the House of Lords: “I was employed to write home and foreign news. The correspondence was held on until my master was taken. There came letters by post since my master was taken. I delivered the letters to my mistress to carry to my master after he was under the messenger’s hands.”[595] Belief in the dying vows of the Jesuits and their friends is perhaps scarcely strengthened by Coleman’s conduct in this matter. It is remarkable that the means taken for the preparation of the case were so haphazard that the crown lawyers had no knowledge of such valuable material as was in the hands of the committee of the upper house; and it is small testimony to the capacity of the noble lords who negotiated the business of the committee with the Attorney-General[596] that the latter should have been entirely ignorant of its existence.[597]

Throughout his trial Coleman was treated neither more nor less fairly than any other prisoner in any crown case of the period. The practice of the day weighed heavily against him. He did not receive nor could he expect any favour from it. Neither was he met by any special disfavour on political or any other grounds. One point of his defence however should undoubtedly have received more consideration than it did. Oates had charged him with paying a guinea as an extra fee for the king’s murder, “about the 21st day of August.”[598] Almost at the end of the trial, after the final speeches for the prosecution, Coleman announced that if his diary were fetched from his lodgings he could prove that he had been out of town from the 10th of August until the last day of the month.[599] His servant was called, but was unable to do more than say generally that he had been away from London during part of August. With the book, said the prisoner, he would be able to prove his statement exactly; but the Chief Justice would not allow it to be brought, on the ground that even if what he said were true, little would be gained to him.[600] This was no doubt true. Apart from the evidence of Oates, the testimony of Bedloe and his own letters were enough to hang the prisoner, and if Oates’ word had been shaken in this point it would have been but little benefit to Coleman. But a great mistake was made by the court. To have proved a perjury against Oates so early in his career of witness would have inflicted a lasting injury on his character and redoubled the force of the catastrophe which befell him at the trial of Sir George Wakeman eight months later. This was not however apparent at the time, and the Chief Justice’s determination, due to the lateness of the hour and the small extent to which the prisoner’s interest was actually involved, is easy to understand. When he came up to receive judgment the next day Coleman produced the diary,[601] but it was then too late and the chance was gone.

Scroggs proceeded at once to recapitulate the evidence to the jury. What was important in his summing up was almost entirely concerned with the meaning and weight of Coleman’s letters.[602] He pointed out acutely that the construction which the prisoner put upon them and the feeble explanation which he gave of his designs were repugnant to common sense and could not be entertained. “For the other part of the evidence,” he terminated abruptly, “which is by the testimony of the present witnesses, you have heard them. I will not detain you longer now, for the day is going out.”[603] The jury went from the bar and returned immediately with the verdict of Guilty. On the following day Coleman received sentence as usual in cases of high treason, and five days after was executed at Tyburn. As the cart was about to be drawn away he was heard to murmur, “There is no faith in man.” A rumour spread throughout the town that until the end he had expected to receive a pardon promised by the Duke of York, and that, finding himself deceived, he had died cursing the master whom he had so diligently served.[604]

Coleman was not the first man to suffer for the Popish Plot. On November 26, the day Coleman was brought to trial, William Staley, a Roman Catholic goldsmith, had undergone a traitor’s death at Tyburn. Staley was accused by two scoundrels of having in a public tavern uttered words which announced his intention of taking away the king’s life. The chief witness was a wretch named Carstairs, who had eked out a precarious livelihood by acting as a government spy on conventicles in Scotland.[605] Two others of the same kidney corroborated his evidence. They swore that Staley had entered a cookshop in Covent Garden to dine with a French friend named Fromante, and had there burst into a rage against the king; the old man, Fromante, his friend, said “that the king of England was a tormentor of the people of God, and he answered again in a great fury, ‘He is a great heretic and the greatest rogue in the world; here is the heart and here is the hand that will kill him.’... In French the words were spoken, he making a demonstration stamping with his foot: ‘I would kill him myself.’”[606] By an act passed early in Charles II’s reign, “malicious and advised speaking” had been made an overt act of high treason, and on this Staley was indicted. Over his sentence historians have gone into ecstasies of horror, on the ground that it is impossible to believe that “a great Roman Catholic banker” in the position of Staley should have spoken such words.[607] Staley however was not the banker, but the banker’s son, and was not therefore of the same highly responsible age and position as has been supposed. “Young Staley,” as he is called in a letter of the time,[608] is identified by Von Schwerin, ambassador of the Great Elector to the court of Charles II. On November 19 he writes: “Auch ist der Sohn eines sehr reichen Goldschmieds gefänglich eingezogen worden, weil er bei einem Gelage—wiewohl in trunkenem Zustande—Reden geführt hat: die Conspiration sei noch nicht ganz entdeckt, so habe er noch Hände den König zu ermorden.”[609] But the decisive evidence on the point is the fact that William Staley’s father, the banker, was alive some three weeks after he should, according to the received account, have been hanged and quartered. On December 18 his clerk and cashier were examined before the committee of the House of Lords on the subject of a reported connection between their master and Sir George Wakeman. The cashier had been in his service for seven years. The next day Mr. Staley, as ordered, himself attended the committee, bringing with him “the books wherein he has kept his accounts the last two years.”[610] Obviously this man had been head of the firm for more than the previous month, and the account given by the Brandenburg envoy is correct.[611]

To hold that the words attributed to Staley by the witnesses at the trial were spoken “advisedly and maliciously” was undoubtedly to drive the act as far as it would go against the prisoner; but that they were spoken seems almost certain. He hardly denied that he had called the king a rogue and a heretic.[612] His only explanation of the words to which Carstairs swore was that instead of saying “I would kill him myself,” he had said “I would kill myself.” The difference between the words Je le tuerais moi-même and Je me tuerais moi-même is small enough to account for an easy mistake made by a hearer, but it was unfortunate for Staley that, as was pertinently remarked by the Attorney-General, the latter would not make sense in the context. Still more damning was the prisoner’s omission to call as a witness for his defence Fromante, who had taken part in the conversation, and could, if Staley had been innocent, have cleared the point in his favour; but although every facility was given him for doing so, he refused either to call his friend or to make use of the copy of his previous examination, which the Attorney-General offered to lend him.[613] The case was not terminated even by Staley’s sentence and death. In consideration of his exemplary conduct in prison, where he “behaved himself very penitently, from the time of his conviction until the time of his execution, which was attested by the several ministers which visited him during that time,” leave was given by the king that his body should be delivered to his friends after execution for private burial. With great want of tact, and “to the great indignity and affront of his Majesty’s mercy and favour, the friends of the said Staley caused several masses to be said over his quarters, ... and appointed a time for his interment, viz. Friday, the 29th of November 1678, in the evening, from his father’s house in Covent Garden, at which time there was made a pompous and great funeral, many people following the corpse to the church of St. Paul’s, Covent Garden, where he was buried”: in consequence of which an order was given for the disinterment of the body, and to vindicate the majesty of justice his quarters were affixed to the city gates and his head set up to rot on London Bridge.[614]

A fortnight after Coleman’s execution, Whitebread, Fenwick, Ireland, Pickering, and Grove were brought to the bar of the Old Bailey. Thomas White or Whitebread, alias Harcourt, was a man sixty years of age. He had been educated at St. Omers, became a professed father in the Society of Jesus in 1652, and was chosen provincial of the English province at the beginning of the year 1678.[615] It was by his means that Oates had entered the Jesuit College at St. Omers after expulsion from Valladolid, and it was he who Oates swore had boxed his ears on learning that the plot was betrayed.[616] Fenwick, less well known by his real name Caldwell, was ten years his junior. He had joined the English mission from Flanders in 1675, and was now the London agent for the college at St. Omers. Both were noted in the society for their success in the missionary field.[617] Ireland, alias Ironmonger, had come into England in 1677 as procurator of the province.[618] All five were accused by Oates of being principals in the plot and privy to the king’s death. Pickering, a Benedictine, and Grove, a Jesuit lay-brother, were named as the actual agents in one of the schemes for his assassination. Oates’ evidence was long and highly coloured. He had been sent over by the Jesuits to murder Doctor Tonge. He had seen instructions for the murder of the Bishop of Hereford and Dr. Stillingfleet. He had been in the thick of a scheme of Fenwick’s contrivance to raise rebellion in Scotland and Ireland. Whitebread had sealed commissions for the popish army under the seal of Johannes Paulus de Oliva, general of his order. Fenwick had been present when Coleman paid the famous guinea to quicken the message which was to be fatal to the king. All the prisoners had been present at the consult on April 24, 1678, when a resolution to kill the king was signed by at least forty persons, Pickering was to have thirty thousand masses and Grove £1500 for the deed. They had dogged the king in St. James’ Park, and had twisted the silver bullets of their carbines that the wound made might be incurable. Charles would infallibly have been shot had not the flint of Pickering’s pistol been loose, and Pickering had undergone penance of thirty lashes for his carelessness. To use their own words, “they did intend to dispose of the duke too, in case he did not appear vigorous in promoting the Catholic religion.”[619] To all this there was little to be said. The prisoners put some questions to Oates, and were in turn slightly questioned by the court. All that appeared was that Grove had known Oates more intimately than he wished to represent, and that the witness had borrowed from both Grove and Fenwick money which had naturally never been repaid.[620] Fenwick however offered to bring a document from St. Omers, under the seal of the college and attested by unimpeachable witnesses, that Oates had been at the seminary at the time when he swore that he was present in London at the consult at the White Horse Tavern. This was refused by the court without hesitation. Fenwick exclaimed bitterly that the judges seemed to think there was no justice out of England.[621] But in supposing that a special piece of unfairness was directed against himself and his friends he was mistaken. It was a regular and unbroken rule of the court that no evidence could be brought, if such an expression may be used, from outside the trial. Such evidence as reports of other trials, the journals of the Houses of Parliament, the minutes of the privy council was allowed to be used on neither side. It was one of the points in which the practice of the day pressed hardly on the accused, but the judges could not, as Scroggs truly said, “depart from the law or the way of trial.” The theory of the law was that the evidence at a trial might be disproved by the defence, or its value might be destroyed if the witness were proved not to be competent; but neither could it be shaken by such a document as Fenwick proposed to produce,[622] nor could evidence afterwards be called against it to shake the credit of a witness at a previous trial. To effect this the witness must be indicted and convicted for perjury and the record of his conviction proved. Every trial stood by itself, and everything alleged at it had to be proved or disproved on the spot, either by direct evidence or by judicial records sworn at the trial to be correct.[623]

Bedloe was then called. He began by giving evidence of the Plot in general, in pursuit of which he had been employed, he swore, for the last five years to carry letters between Jesuits and monks in England, Ireland, and France, and Sir William Godolphin and Lord Bellasis.[624] But of the prisoners in particular he could only speak to Ireland, Pickering, and Grove. Whitebread and Fenwick he knew by sight alone. At the trial of Reading he confessed that this was a lie.[625] There he explained that he would have borne witness before against the two Jesuits had not Reading been intriguing with him at the time, and that he kept back his evidence in order to lead the attorney deeper into the business.[626] Not only was this admitted by the court as sufficient justification of his conduct, but at their later trial, when Bedloe gave decisive evidence against them, Whitebread and Fenwick hardly made any objection to his credibility upon this ground.[627]

One witness having failed, the prosecution attempted to supply his place by reading a letter written to summon a father of the society to the Jesuit congregation which the provincial had fixed for April 24. But this the Chief Justice would not permit. The letter was from Edward Petre, afterwards confessor to James II, to William Tunstall. It had been found with Harcourt’s papers and did not mention Whitebread’s name at all. The contents might substantiate Oates’ evidence as to the date of the congregation, but they could not conceivably be construed, as the crown lawyers suggested, into evidence touching the prisoners. Scroggs’ opposition prevented the manœuvre, and after a strong warning to the jury he allowed the letter to be read, “to fortify the testimony of Mr. Oates, that there is a general plot: it is not applied to any particular person.”[628]

It was now apparent that the crown had only one witness against the two chief of the accused, which in a case of high treason was not sufficient to procure a conviction. Thereupon Scroggs, with the approval of the other judges, discharged the jury of Whitebread and Fenwick and recommitted them to prison.[629] Six months later they were again tried and executed for the same treason. Whitebread then urged that he had been given in charge once, that on the insufficient evidence he should have been acquitted, and that he ought not to be tried again; but the whole court held without hesitation that the objection was baseless.[630] Afterwards this decision was held up to scorn, and has since often been condemned;[631] but it was grounded upon good authority and supported by the general practice of the courts.[632]

The three remaining prisoners proceeded to make their defence. Beyond repeated assertions of their innocence this amounted, as far as Pickering and Grove were concerned, to little. Ireland made a better effort. Oates had sworn that he was in London in August of the year 1678 and present at a treasonable meeting in Harcourt’s rooms.[633] The prisoner now called evidence to contradict this. His mother and his sister testified that he had left town on August 3 and did not return until the middle of September. Sir John Southcot’s coachman swore that he had been at various places in Staffordshire and on the way thither, in company with his master, from August 5 until the third week in that month, and another witness gave evidence that he had seen Ireland at Wolverhampton shortly after St. Bartholomew’s day, and again on the 7th and the 9th of September.[634] To rebut this the prosecution called a woman who belonged to the household of Lord Arlington. She had once been in the service of Grove, the prisoner, and had at that time seen Ireland constantly and waited upon him with letters from her master. She now swore positively that she had seen him in London at the time when the king went to Windsor in August. By the evidence of Sir Thomas Dolman this was calculated to be the 13th of the month.[635] Oates again took the opportunity to swear that Ireland was in town on the 1st or 2nd of September. It was an unfortunate interruption, for it formed the perjury assigned in the indictment upon which he was convicted at his second trial six years afterwards.[636] Only one more witness was produced. Sir Denny Ashburnham, member of Parliament for the borough of Hastings, was called by Ireland to testify to Oates’ character. Instead however of damaging the informer’s credit, he came forward to say that, although he might have had little respect for Oates’ veracity in the days of his youth, the manifold circumstances by which his testimony was now supported had entirely convinced him of the truth of his statements; “and,” said he, “I do think truly that nothing can be said against Mr. Oates to take off his credibility”;[637] which was of small value from the point of view of the defence.

The prisoners complained bitterly that they had been allowed neither time nor facility to produce their witnesses. At Oates’ second trial for perjury on May 9, 1685 there were called for the prosecution no less than forty-five witnesses, who proved conclusively where Ireland had been on every day but one between August 3 and September 14, 1678, the dates when he left and when he returned to London.[638] Five months after Ireland’s execution, Whitebread, Fenwick, and Harcourt called at their trial, to prove the same points, ten witnesses, whose evidence covered a considerable part of the time in debate,[639] Had he been able himself to call even those ten, not to say the whole number afterwards collected, it can scarcely be doubted that their evidence must have procured his acquittal and have given birth to the reaction against Oates which every additional conviction postponed. As it was, there were for the defence only four witnesses, two of whom were intensely interested in the prisoner’s acquittal, against the hitherto unshaken credit of Oates himself and the testimony of a disinterested person called to support him. Scroggs put the point quite fairly to the jury,[640] and the jury chose to disbelieve the prisoner’s witnesses. The real hardship lay, not in the prejudice of the court or the violent speech which the Chief Justice appended to his summing up of the evidence,[641] but in the fact that the accused were kept wholly in the dark as to the evidence which was to be produced against them. The practice of the law, as it is still the theory,[642] made it impossible for the accused to defend himself with certainty against the evidence which might be brought against him. The preparation of his defence had to be undertaken in the dark and conducted at random.

On the same day Ireland, Pickering, and Grove received sentence of death from Jeffreys, as Recorder of London, in a speech which wavered between pure abuse and a sermon which would have done credit to the most strenuous divine.[643] More than a month later Ireland and Grove were executed at Tyburn. Had Ireland’s execution been postponed, an insurrection was feared. Pickering was respited by the king for so long that the indignant Commons on April 27, 1679 petitioned urgently that the law might take its course on the man who “did remain as yet unexecuted, to the great emboldening of such offenders, in case they should escape without due punishment;” and on May 25 Charles sent a message to the House by Lord Russell to say that the sentence should have effect.[644] All three died protesting their innocence to the last.

Round the dying vows of the fourteen men who were executed for the Plot controversy raged hotly. To Roman Catholics their solemn denials seemed so conclusive that they fancied the effect must be the same on others too.[645] When it became apparent that such earnest assertion was met with frank unbelief, they attributed the fact to the black malice and the wicked prejudice of heretical hearts. To Protestants, on the other hand, the protestations of the Jesuits were clearly the logical result of their immoral doctrines. If anything, they afforded a further confirmation of guilt. Able pamphleteers undertook to prove that according to the principles of their order “they not only might, but also ought to die after that manner, with solemn protestations of their innocency.”[646] Protestant pulpits reverberated with demonstrations that the Jesuits would not “stick at any sort of falsehood in order to their own defence.” Good Bishop Burnet was shocked at the violence of his brother divines and “looked always on this as an opening of their graves, and the putting them to a second death.”[647] Few however were of his mind, and Algernon Sidney expressed the common opinion when he wrote to his cousin: “Those who use to extol all that relates to Rome admire the constancy of the five priests executed the last week; but we simple people find no more in it than that the papists, by arts formerly unknown to mankind, have found ways of reconciling falsehood in the utmost degree with the hopes of salvation, and at the best have no more to brag of than that they have made men die with lies in their mouths.”[648] Party spirit could not fail to be aroused in its most virulent form by the speeches of the condemned men, and to seize upon them as evidence on either side. They were, in point of fact, evidence for neither one party nor the other. Oaths sworn in such a manner were wholly worthless.

As Bedloe lay on his death-bed in the autumn of 1680 he reaffirmed with every protestation of truth, and as he hoped for salvation, the ghastly mass of perjured evidence by which he had sworn away the lives of men. His conscience was clear, he said, and “he should appear cheerfully before the Lord of Hosts, which he did verily believe he must do in a short time.”[649] Three years later the man who has been held up to posterity as the most truthful of his age died, calling God to witness his innocence of the treason for which he was condemned.[650] Yet Lord Russell was a member of the Council of Six and had engaged actively in the preparation of an extensive rebellion. He was an intimate friend of the men who hatched the actual Rye House Plot. If he was unaware that the king’s life was aimed at directly and indirectly, it was because he had deliberately shut his eyes to the tendency of his own schemes and those of his associates.[651] This must be the test of the value of such declarations. The unbounded immorality with which the politics of the reign of Charles II were stamped so clouded the minds of men that truth became for them almost indistinguishable from falsehood. They had only not reached the point of view of the native of Madras, who said of the value of death-bed confessions: “Such evidence ought never to be admitted in any case. What motive for telling the truth can a man possibly have when he is at the point of death?”[652]

Mention has already been made of the trial of Reading.[653] This was the first of a series of important cases which were conducted in the course of the ensuing year. Briefly, they were trials of Roman Catholics for fraudulent endeavours, in the words of the time, to stifle the Plot. Not to speak of the notorious Meal Tub Plot, the most determined and unscrupulous effort of the Roman Catholic party to remove the accusation of treason from themselves to their opponents,[654] there may be noticed four distinct attempts to impair by fraudulent and criminal means the evidence offered for the crown. As early as February 1679 information was laid before a committee of the privy council that an Englishman named Russell, who belonged to the household of the French ambassador, had endeavoured to suborn witnesses to invalidate the credit of Oates and Bedloe, and had offered the sum of £500 for the purpose. The council addressed to the ambassador a request for the delivery of the accused to stand his trial; but the case did not come into court, probably because Russell had either absconded or been shipped abroad.[655] The incident was kept secret and produced no consequences. But within twelve months three other attempts of the same nature were proved against Roman Catholic agents and exercised a considerable influence against their party. The trials of Reading for a trespass and misdemeanour, of Knox and Lane for a misdemeanour, and of Tasborough and Price for subornation of perjury must not be overlooked in forming a judgment on the events of which the courts of justice were the chief scene.

Nathaniel Reading was a Protestant attorney of some standing in his profession. Thirty years before he had been secretary to Massaniello in the insurrection at Naples, and was now living in London and enjoying a fair practice. He had been the friend and legal adviser of Lord Stafford for several years, numbered other gentlemen of title and repute among his acquaintance, and was of a position to receive an invitation to dinner from the Lieutenant of the Tower when he went to visit his client in prison.[656] During the Hilary term of 1679 he had been engaged in procuring the discharge on bail of several prisoners for the Plot, and had gone by leave of the secret committee of the House of Lords to advise the lords imprisoned in the Tower on the like subjects. In the course of his negotiations for them he had become acquainted with Oates and Bedloe, and acted as counsel for the latter in obtaining his pardon from the king. Bedloe was constantly in his company, and the two talked frequently of the nature of the Plot and the witness’ charges against the prisoners.[657] In public Reading exhorted Bedloe to reveal all his knowledge and bring the guilty to justice, but in private conversation suggested that it might be profitable to reduce his evidence against certain of those incriminated. The plot was blown to the winds, the king’s life out of danger, Bedloe would be able to feather his own nest, and no harm would be done. Bedloe promised to consider the matter and, as earnest of his good intentions, withdrew his evidence against Whitebread and Fenwick.[658] At the same time he carried the news of the intrigue to the committee of secrecy. Prince Rupert, the Earl of Essex, and Mr. Speke[659] were informed of the business, and Bedloe was advised to continue his negotiation in the hope of extracting something of importance. Reading had in the meantime gone to the lords in the Tower and brought from them promises of ample reward if Bedloe would consent to save them. A meeting was appointed for March 29, to make the final arrangements.[660] Before Reading appeared, Speke and another witness were hidden in the room in such a position that they could overhear every word which passed between the two men. They heard Bedloe ask, “What say my lords in the Tower now?” Reading replied that Lord Stafford had promised to settle an estate in Gloucestershire on the informer, and that he had orders to draw up a deed to that effect and sign it ten days after Lord Stafford’s discharge from prison. The Earl of Powis, Lord Petre, and Sir Henry Tichbourne also promised rewards if Bedloe would procure their acquittal. Bedloe then drew up an abstract of his evidence against the lords, and Speke saw Reading take the paper to deliver to them in the Tower. Two days later the attorney met Bedloe by appointment in the Painted Chamber at Westminster and gave him in answer to this a corrected version of the evidence which the accused had drawn up for his actual use at their trials. Bedloe without looking at the paper handed it at once to Mr. Speke, who carried it to a committee room in the House of Lords for examination.[661] This paper was read in court, and proved to contain an amended version of Bedloe’s testimony so vague and slight that it could not have possibly been of any use to the prosecution.[662]

Reading’s defence was sufficiently feeble. He was treated by the bench with the greatest indulgence and allowed to make a lengthy and unsupported discourse on Bedloe’s character. It is noteworthy that he objected to the witness not on the ground that he had perjured himself in holding back evidence at the trial of Whitebread, Fenwick, and Ireland, but on account of treasonable practices, which were covered by his pardon. He protested that the first proposal of the intrigue came from Bedloe, and that he only joined in it to prevent the shedding of innocent blood. The estate in Gloucestershire spoken of had been promised by Lord Stafford to himself, if he obtained his acquittal, and not to Bedloe, though hardly it seemed without the understanding that the informer was to have some share in it. He would have thought it a crime not to engage in the business; it was a duty which he owed to God and his country. By saying this he practically confessed to the whole indictment, and after a concise summing up the jury immediately returned a verdict of guilty. Reading was sentenced to be pilloried, to pay a fine of £1000, and to imprisonment for one year.[663]

The case of Knox and Lane was a still more disreputable affair. Thomas Knox was in the service of Lord Dumblane, the Earl of Danby’s son. John Lane and one William Osborne were servants to Titus Oates. These two were discharged by Oates in April 1679, Lane, who had some acquaintance with Dangerfield, was lodged by him and Mrs. Cellier under an assumed name at the house of the Countess of Powis.[664] At Dangerfield’s suggestion they approached Knox on the subject of the charges which Oates had made against the Lord Treasurer.[665] Knox agreed to their suggestion, and together they arranged the details of the scheme. Osborne and Knox lodged information that Oates had conspired with Bedloe to bring false accusations against Lord Danby, while Lane charged his master with using obscene language concerning the king and with the commission of an unnatural crime. But under examination Knox and Lane broke down, and all three were driven to confess that there was not a word of truth in the story which they had concocted. Osborne fled the country, and his two accomplices were clapped into gaol. News however was brought to Lane as he lay in prison that Knox was prepared to stand by his original story. He forthwith retracted his confession, and on November 19, 1679 indictment was brought against Oates “for an attempt to commit upon him the horrid and abominable sin of sodomy.” The grand jury ignored the bill, and a week later the two miscreants were brought to the king’s bench bar on the charge of “a conspiracy to defame and scandalise Dr. Oates and Mr. Bedloe; thereby to discredit their evidence about the horrid Popish Plot.” After a long trial, in which the defendants were treated with all fairness and in which each attempted to throw the blame on the other, the jury returned a verdict of guilty without leaving the bar. The prisoners were sentenced to fine and imprisonment, and Lane in addition to stand for an hour in the pillory. The verdict was received with a shout of applause, “many noblemen, gentlemen, and eminent citizens,” adds the account which was drawn up under Oates’ direction, “coming with great expectations of the issue of this trial, which was managed with that justice, impartiality, and indifference between the king and the defendants, that some have been heard to say they could never believe a plot before, but now they were abundantly satisfied.”[666]

The labyrinthine nature of the intrigues connected with the Popish Plot is amply illustrated by these two trials. The third case presents less intricacy, but no less dishonesty. In January 1680 John Tasborough and Anne Price were tried for subornation of perjury in having offered a bribe to the informer Dugdale to retract the evidence which he had given at the trial of Whitebread, Harcourt, and Fenwick. Mrs. Price had been a fellow-servant with Dugdale in the household of the Roman Catholic peer, Lord Aston. On the night before the trial of the five Jesuits[667] she came to him and begged him not to give evidence against Father Harcourt, who was her confessor. When the trial was over she renewed her solicitations, offering him the reward of £1000 and the Duke of York’s protection if he would recant what he had then sworn. Dugdale was introduced to Tasborough, a gentleman belonging to the duke’s household.[668] Meetings were held at the Green Lettice Tavern in Brownlow Street and at the Pheasant Inn in Fullers-rents. Tasborough confirmed the promises made by Mrs. Price. The informer was to sign a declaration that all his evidence had been false, to receive £1000 in cash, and to be maintained abroad by the Duke of York. The name of the Spanish ambassador was also mentioned. But Dugdale, as Bedloe before him, had secreted witnesses at these interviews. The intriguers were arrested, and the whole story was proved beyond the possibility of doubt at their trial.[669] Tasborough was sentenced to the fine of £100, Price to the fine of twice that sum. All parties at the trial were at considerable pains to exonerate the Duke of York. There was in fact no direct evidence against him; but it is improbable that the culprits had been using his name entirely without authority. They must have known that Dugdale would not put his name to the recantation without substantial guarantee for the reward, and certainly neither was in a position to pay any sufficient part of the sum mentioned from his own resources.

The evidence which Dugdale should have retracted was considerable. His reputation was still undamaged. He had been steward of Lord Aston’s estate at Tixhall, in Staffordshire, was thought to have enjoyed a fair reputation in the county, and to have been imprisoned in the first instance for refusing to take the oaths of allegiance and supremacy.[670] Although he had laid information before the privy council as early as December 1678, it was not until the trial of the Five Jesuits[671] on June 13 of the year following that he appeared in court. The case for the prosecution was opened, as usual, with the evidence of Oates, He reaffirmed the story which he had told at the trial of Whitebread, Fenwick, and Ireland, and gave similar evidence against Harcourt, Gavan, and Turner. Dugdale was then called. He swore to treasonable consults held at Tixhall in September 1678, where Gavan and Turner were present, to treasonable letters between Whitebread, Harcourt, and others, and to a letter dispatched from London by Harcourt on October 20, 1678, addressed to Evers, another Jesuit, and containing the words “This night Sir Edmond Bury Godfrey is dispatched.”[672] The death of the king was to be laid at the door of the Presbyterian party. A general massacre of Protestants was to follow, “and if any did escape that they could not be sure of were papists, they were to have an army to cut them off.”[673] Bedloe followed with the evidence which he had before suppressed against Whitebread and Fenwick, and swore similarly to the treason of Harcourt. Some trifling evidence from Prance closed the first part of the case for the crown.[674] But almost more important than the oral testimony were two letters which were read in court. The one was a note from Edward Petre, containing a summons to the congregation fixed for April 24, 1678; the other a letter from Christopher Anderton, dated from Rome, February 5, 1679, in which occurred the following sentences: “We are all here very glad of the promotion of Mr. Thomas Harcourt; when I writ that the patents were sent, although I guess for whom they were, yet I know not for certain, because our patrons do not use to discover things or resolutions till they know they have effect. And therefore in these kind of matters I dare not be too hasty, lest some might say, a fool’s bolt is soon shot.” Both had been found among Harcourt’s papers several days after Oates was examined by the privy council.[675] They seemed to confirm his evidence in a remarkable manner. He had constantly spoken of the Jesuit design; the former of the letters contained the same word and enjoined secrecy on the subject. The latter seemed to refer to the patents which Oates had declared were sent to the commanders of the popish army. The prisoners explained that the “design” of the congregation was but to settle the business of their order and to choose a procurator to undertake its management at Rome. As for the patents, Anderton had meant to say Literae Patentes, and referred only to Harcourt’s patent as new provincial. Literae Patentes, contended the court, when used in reference to one person, meant a patent; but when the phrase was translated patents, it necessarily pointed at more than one. Oates, said the Chief Justice, interpreted the matter more plainly than the accused.[676]

The Jesuits proceeded to make their defence. Sixteen witnesses were called to prove that Oates had been at St. Omers from December 1677 to June 1678, and had not left the college at the time when he swore that he was present at the consult in London. This was the perjury upon which he was convicted at his first trial in 1685. Five witnesses were called to testify that Gavan had not been in town in April 1678; ten, that Ireland had been in the country in August and September of the same year. Very similar evidence to that now given was accepted six years later by the court to substantiate the charge against Oates, but at the trial of Whitebread, Harcourt, and Fenwick it was disbelieved. The witnesses were examined in detail and gave an elaborate account of the life at the seminary. But the story which they told was not altogether satisfactory. Under examination they shuffled and prevaricated. Sometimes they contradicted one another on points of time. They came prepared to speak to the date of the consult and the time immediately before and after it. When questions were put about dates less closely concerned, they seemed unwilling to answer. One, who declared that he had left Oates at St. Omers on taking leave for England to go to the congregation, was confounded when Oates reminded him that he had lost his money at Calais and had been compelled to borrow from a friend. Another confused the old and new styles. A third stated that whenever a scholar left the college the fact could not but be known to all his fellows. He was immediately contradicted by Gavan, who said that care was taken that the comings and goings of the seminarists should be unnoticed.[677] A rumour was spread abroad that witnesses had been tutored, and was repeated by Algernon Sidney in a letter to Paris.[678] For once rumour was not at variance with truth. Sidney’s information was perfectly correct. Three of the lads from St. Omers were arrested on their arrival in London by Sir William Waller, and their examinations were forwarded by him to the secret committee of the House of Commons. One of these was Christopher Townley, alias Madgworth, alias Sands, who had been a student in the seminary for six years. He admitted that “his instructions from the superior was to come over and swear that Mr. Oates was but once from the college at St. Omers, from December 1677 to June following.” Of his own knowledge he could say no more than that he had been in the seminary all the time during which Oates was there; “the said Mr. Oates might be absent from St. Omers in that time for several days and at several times, but not absent above one week at a time, this examinant being lodged in the college where Mr. Oates was, but did not see him daily.”[679] At the trial he did not scruple to say that he had seen and talked with Oates on every day throughout April and May and that, if Oates had ever been absent, he must certainly have known it.[680] Nor was this all. At his examination he deposed that Parry, Palmer, and Gifford were all absent from St. Omers while Oates was an inmate of the college. At the trial Gifford, Palmer, and Parry were produced to give evidence of their personal knowledge that Oates had been there the whole of the time.[681] No credence whatever can be given to such witnesses. It is worthy of remark that they were housed and entertained by no other than Mrs. Cellier, who was afterwards deeply concerned both in the Meal Tub Plot and in the case of Knox and Lane, and was pilloried for an atrocious libel in connection with the murder of Sir Edmund Berry Godfrey.[682] No doubt can exist on the subject of Oates’ repeated and astounding perjuries. It is as little open to doubt that the witnesses who were opposed to him at this trial were almost equally untrustworthy. They were in fact very cleverly parroted. If his infamy remains undisturbed, the unctuous indignation with which it was denounced by the Jesuits, at the very moment when they were employing means as unhallowed as his own to controvert his statements, at least entitles them to a place by his side in the pillory of history.

Even at this point the false evidence given at this terrible trial was not ended. The crown produced seven witnesses to prove that Oates had been in London at the end of April and the beginning of May 1678. Of these the only two who gave evidence of any weight were Smith, who had been Oates’ master at Merchant Tailors’ School, and Clay, a disreputable Dominican friar, whom Oates had taken out of prison. Both were afterwards proved to have been suborned by Oates and to have perjured themselves.[683]

The Jesuits concluded their defence with speeches of real eloquence. Scroggs summed up the evidence in an elaborate speech and strongly in favour of the crown; and after a quarter of an hour’s absence the jury returned to court with a verdict of guilty against all the prisoners.[684]

On the next day Richard Langhorn was indicted at the Old Bailey for practically the same treason as that for which the Five Jesuits were convicted. Langhorn was a Roman Catholic barrister of considerable eminence.[685] He was the legal adviser of the Jesuits, and conducted for them much business which would now more naturally pass through the hands of a solicitor. Oates consequently named him as an active agent in the Plot and prospective advocate-general under the new government.[686] His trial was a continuation of the trial of Whitebread, Harcourt, and Fenwick, and exhibited all the same characteristics, of perjury on the one side, on the other of prevarication and falsehood. The same evidence was developed at length, and with the same result. Two fresh points of importance alone occurred. To Oates’ great alarm the hostess of the White Horse Tavern in the Strand was called by the defence. Oates had sworn that as many as eighteen or twenty Jesuits had met together there in one room at the congregation of April 24. The woman now declared that no room in her house would hold more than a dozen persons at the same time, and that when a parish jury had once met there the jurors had been compelled for want of space to separate into three rooms. This would undoubtedly have produced an effect, had not three of the spectators in court immediately risen to swear that there were two rooms in the inn which were large enough to hold from twenty to thirty people without crowding them unduly. An unfavourable impression concerning the evidence for the defence was created, and the king’s counsel was able to score an effective point.[687]

Of greater weight than this was a portion of Bedloe’s evidence. He swore that he went one day with Coleman to Langhorn’s chambers in the Temple, and from the outer room saw the lawyer transcribing various treasonable letters brought by Coleman into a register at a desk in his study within.[688] The nature of cross-examination was so imperfectly understood at the time that Langhorn did not attempt to question the witness on the shape of his rooms or to shake his credit by calling evidence to the point. In his memoirs, which were published in the course of the same year, he wrote the following comment on Bedloe’s statement: “Every person who knows my said chamber and the situation of my study cannot but know that it is impossible to look out of my chamber into my study so as to see any one writing there, and that I never had at any time any desk in my study.”[689] This was supported by other evidence. When Oates and Bedloe exhibited in 1680 “articles of high misdemeanours” against Scroggs before the privy council, they charged him in one that at the previous Monmouth assizes he “did say to Mr. William Bedloe that he did believe in his conscience that Richard Langhorn, whom he condemned, died wrongfully.” To which the Chief Justice answered “that at Monmouth assizes he did tell Mr. Bedloe that he was more unsatisfied about Mr. Langhorn’s trial than all the rest; and the rather, that he was credibly informed, since the trial, that Mr. Langhorn’s study was so situated that he that walked in his chamber could not see Mr. Langhorn write in his study; which was Mr. Bedloe’s evidence.”[690]

This was not the first incident which shook the credit of the witnesses in the Chief Justice’s mind. He had in the meantime received a still more striking proof of their worthlessness. On July 18, four days after the execution of Langhorn and nearly a month after that of the Five Jesuits, Sir George Wakeman, in company with three Benedictines, was brought to trial at the Old Bailey. Wakeman was accused of having bargained with the Jesuits for £15,000 to poison the king. The other three were charged with being concerned in the Plot in various degrees. Feeling had run so high after the last two trials that the case was postponed from the end of June for nearly three weeks, that it might have time to cool.[691] Interests were at stake which had not been present in the previous trials. In November of the year before, Oates and Bedloe had accused the queen of high treason, and Oates had sworn that Sir George Wakeman, who was her physician, had received from her a letter consenting to the king’s death.[692] The queen was now implicated with Wakeman, and the trial was regarded as the prelude to an attack on herself.[693]

Before the crown lawyers opened the direct attack, witnesses were, as usual, produced to testify to the reality of the plot. Prance and Dugdale reaffirmed their previous evidence, and Jennison, himself the brother of a Jesuit, swore that he had met Ireland in London on August 19, 1678, thus proving to the satisfaction of the court that Ireland had died with a lie in his mouth.[694] The prosecution then came to the prisoners. Oates told again the story how he had heard the queen at a meeting at Somerset House consent formally to the plot for murdering the king, and swore that he had seen a letter from Wakeman to the Jesuit Ashby, which was occupied chiefly with a prescription for the latter during his stay at Bath, but mentioned incidentally that the queen had given her approval to the scheme. He had also seen an entry in Langhorn’s register of the payment of £5000 made by Coleman as a third part of Wakeman’s fee and a receipt for it signed by Wakeman himself.[695] Bedloe gave evidence which would prove equally the guilt of the queen and her physician, and both swore to the treasonable practices of the other prisoners.[696] To rebut this, Wakeman produced evidence to prove that he had not written the letter for Ashby himself, but had dictated it to his servant Hunt. The letter was addressed to Chapman, an apothecary at Bath, who read it and then tore off and kept the part containing the prescription. Hunt proved that the letter was in his handwriting and was corroborated by another servant in Wakeman’s household. Chapman proved that the body of the letter was in the same handwriting as the prescription, that it contained nothing about the queen or any plan for the king’s murder, and that Oates had given an entirely inaccurate account of the prescription, which was so far from ordering a milk diet, as Oates had sworn that milk would have been not far removed from poison for a patient who was drinking the waters at Bath. Scroggs was afterwards accused of having grossly favoured the prisoner in order to curry favour at court; but the manner in which this evidence was received is an absolute proof to the contrary. The bench held, in a way that now excites surprise, but at the time did not, that Oates had meant that the milk diet was prescribed for Ashby before he went to Bath, and was therefore not at all inconsistent with drinking the waters while he was there; and that Wakeman might easily have written two letters on the same subject. No doubt, said the judges, the witnesses for the defence spoke the truth. What had happened was that Sir George had dictated one letter, which consisted of nothing but medical directions, and of which the apothecary and the other witnesses spoke; but he must certainly have written another, containing the treasonable words to which Oates swore. The court treated the matter as if this were beyond a doubt. To the prisoner’s objection that he was unlikely to have written two letters to convey the same instructions, Mr. Justice Pemberton replied, “This might be writ to serve a turn very well”; and Scroggs closed the discussion by remarking, “This your witnesses say, and you urge, is true, but not pertinent.”[697] Shortly before Wakeman turned to his fellow-prisoners and said, “There is my business done.” He knew that in all human probability he would be condemned. Suddenly, without any warning, there occurred the most unexpected event, which, in a dramatic moment unsurpassed by the most famous in history, shattered the credit of Oates and produced the first acquittal in the trials for the Popish Plot.[698] Sir Philip Lloyd, clerk to the privy council, was asked to state with what Oates had charged the prisoner at his examination before the council. The evidence deserves to be given in Sir Philip’s own words: “It was upon the 31st of September,” he stated; “Mr. Oates did then say he had seen a letter, to the best of his remembrance, from Mr. White to Mr. Fenwick at St. Omers, in which letter he writ word that Sir George Wakeman had undertaken the poisoning of the king, and was to have £15,000 for it; of which £5000 had been paid him by the hands of Coleman. Sir George Wakeman, upon this, was called in and told of this accusation; he utterly denied all, and did indeed carry himself as if he were not concerned at the accusation, but did tell the king and council he hoped he should have reparation and satisfaction for the injury done to his honour. His carriage was not well liked of by the king and council, and being a matter of such consequence as this was, they were willing to know further of it; and because they thought this evidence was not proof enough to give them occasion to commit him, being only out of a letter of a third person, thereupon they called in Mr. Oates again, and my Lord Chancellor desired Mr. Oates to tell him if he knew nothing personally of Sir George Wakeman, because they were in a matter of moment, and desired sufficient proof whereupon to ground an indictment; Mr. Oates, when he did come in again and was asked the question, did lift up his hands (for I must tell the truth, let it be what it will) and said, ‘No, God forbid that I should say anything against Sir George Wakeman, for I know nothing more against him.’ And I refer myself to the whole council whether it is not so.”

Great Birnam wood to high Dunsinane Hill, marching against Macbeth, or the duke uncloaking to Angelo could not create a greater sensation. “My lord,” cried Sir George Wakeman, “this is a Protestant witness too.” Oates began to bluster. He remembered nothing of all this. He did not believe that any such question was asked him at the council board. If there had been, he was in such a state of exhaustion after being deprived of his rest for two nights in succession that he was not in a condition to answer anything. “What,” returned Scroggs, “must we be amused with I know not what for being up but two nights?... What, was Mr. Oates just so spent that he could not say, I have seen a letter under Sir George Wakeman’s own hand?” The informer swore that to his best belief he had spoken of the letter; or if he had not, he believed Sir Philip Lloyd was mistaken; or if not that, he was so weak that he was unable to say or do anything. Then he completely lost control of himself and broke out recklessly: “To speak the truth, they were such a council as would commit nobody.” “That was not well said,” put in Jeffreys quickly. “He reflects on the king and all the council,” cried Wakeman. At this the wrath of the Chief Justice burst out on the perjured miscreant. “You have taken a great confidence,” he thundered, “I know not by what authority, to say anything of anybody”; and becoming more grave, pointed out the decisive importance of what had been proved against him, Oates did not open his mouth again during the rest of the trial.[699]

The case still dragged on its weary length. Numerous other witnesses were called to prove and disprove points of varying importance and connection with the matter at issue. All the prisoners against whom Oates and Bedloe had sworn made long speeches and discoursed on a hundred irrelevant topics. Marshal, the Benedictine, lectured the court and delivered an impassioned harangue on the injustice of the English nation and on the future state. He was stopped and, beginning again, drew down on himself from Scroggs a violent rebuke in which he declared his belief that it was possible for an atheist to be a papist, but hardly for a knowing Christian to be a Christian and a papist. When the heated wrangle which followed was ended, the Chief Justice summed up, setting the evidence on both sides in a clear light and pointing out where its strength lay against the prisoners, but plainly intimating his opinion that the revelation made by Sir Philip Lloyd went far to invalidate Oates’ testimony. As the jury were leaving the box Bedloe broke in: “My lord, my evidence is not right summed up.” “I know not by what authority this man speaks,” said Scroggs sternly. After the absence of about an hour the jury returned. Might they, they asked, find the prisoners guilty of misprision of treason? “No,” replied Jeffreys, the Recorder, “you must either convict them of high treason or acquit them.” “Then take a verdict,” said the foreman; and returned a verdict of not guilty for all the prisoners.

Scarcely was the trial over when a storm broke upon the head of the Lord Chief Justice. He had already earned the hatred of the ferocious London mob by accepting bail for Mr. Pepys and Sir Anthony Deane, who were in prison on account of the Plot.[700] Now the feeling against him amounted to positive fury. Sir George Wakeman, after visiting the queen at Windsor, fled the country to escape the effects of the popular rage.[701] Scroggs stood his ground. The London presses teemed with pamphlets against him. Some observations upon the late trials of Sir George Wakeman, etc., by Tom Ticklefoot; The Tickler Tickled; A New Year’s Gift for the Lord Chief in Justice are among those which deserve to be remembered for their especial virulence. The Portuguese ambassador had the egregious folly to call publicly upon Scroggs the day after the trial and to thank him for his conduct of the case.[702] It was immediately said that the Chief Justice had been bribed. A barrel packed with gold had been sent to him. “Great store of money” had been scattered about. The jury had been bribed. A good jury had been impanelled, but was never summoned, and a set of rascals was chosen in its place.[703] When Scroggs went on circuit for the autumn assizes he was met in the provinces with cries of—A Wakeman, a Wakeman; and at one place a half-dead dog was thrown into his coach.[704] Early in the year following Oates and Bedloe exhibited thirteen articles against the Chief Justice before the privy council, and Oates declared that “he believed he should be able to prove that my Lord Chief Justice danced naked.” On January 21 Scroggs justified himself in a set reply of great skill and wit, and the informers met with a severe rebuff.[705] His other traducers were treated with no greater courtesy. At the opening of the courts for the Michaelmas term of 1679 Scroggs made an able speech of eloquence, distinction, and almost sobriety, in which he grounded his belief in the Plot on the correspondence of Coleman and Harcourt and vindicated the integrity of the judicial honour; and on May 20, 1680 one Richard Radley was fined £200 for saying that the Chief Justice had “received money enough from Dr. Wakeman for his acquittal.”[706] In September 1679 he was received with great favour at the court at Windsor and in December caused horrid embarrassment to Lord Shaftesbury and several other Whig noblemen, whom he met at dinner with the Lord Mayor, by proposing the health of the Duke of York and justifying his own conduct on the bench.[707] In January 1681 he was impeached by the Commons. When the articles of his impeachment were brought up to the House of Lords he was treated, to the indignation of the Whig party, with great consideration and favour; but although the lords refused even to put the question “whether there shall now be an address to the king to suspend Sir William Scroggs from the execution of his place until his trial be over?” he was absent from court at the beginning of the Hilary term, and did not take his place upon the bench during the rest of the term.[708] Three days after the opening of the Oxford parliament Scroggs put in his answer to the impeachment. He denied the truth of the articles exhibited against him severally, and insisted that the nature of the facts alleged in them was not such as could legally be made the ground for a charge of high treason. He prayed the king for a speedy trial.[709] Copies of his answer and petition were sent to the House of Commons, but before further proceedings could be taken Parliament was dissolved on March 28, and the impeachment was blown to the winds in company with other Whig measures of greater importance and still less good repute. The Chief Justice was not left long in the enjoyment of his triumph. In April 1681 Charles removed him from the bench and appointed Sir Francis Pemberton to be Chief Justice in his place. The move was no doubt directed by the approaching trial of Fitzharris. For this was undertaken in the teeth of the bitter opposition of the Whig party, and it was expedient that a man who was already odious to Shaftesbury’s adherents should not endanger the success of the crown by his presence on the bench on so important an occasion. The late Chief Justice was compensated by an annual pension of £1500 and the appointment of his son to be one of “his Majesty’s counsel learned in the law.”[710]

Sir William Scroggs, Chief Justice of the court of king’s bench, was a man of a type not uncommon in the seventeenth century. He was vulgar and profligate, a great winebibber, stained by coarse habits and the ignorant prejudices common to all of his day but the most temperate and learned, but a man of wit, shrewdness, strong character, and master of the talents which were necessary to secure success in the legal profession as it then was.[711] The prominent position into which he was brought by the trials for the Popish Plot has earned for him a reputation for evil second in the history of the English law courts only to that of Jeffreys. He has been accused of cowardice, cruelty, time-service, of allowing his actions on the bench to be swayed by party spirit, and of using his position with gross injustice to secure the conviction of men who were obnoxious to the popular sentiment. These charges cannot be substantiated. When the evidence of interested partisans by whom he was lauded or abused is stripped away, they rest on two grounds: the fact that he presided at trials where men were condemned for the Popish Plot, and at one where men were acquitted of similar charges; and the nature of his speeches in court at those trials. It was said that he obtained the acquittal of Sir George Wakeman because he realised that the king “had an ill opinion” of the Plot, and because he had been told that the popular leaders had no support at court; and that he had taken an opposite course at the previous trials because he believed the contrary to be true.[712] These statements have passed for truth ever since they were made, and have been repeated by one writer after another. They were in fact feeble attempts to explain what their authors did not understand. They are contradicted not only by the statements of other contemporaries, which are of small weight, but by the whole course of the Lord Chief Justice’s action and the circumstances by which he was surrounded. From the very outbreak of the Popish Plot it was notorious in official circles that the king discredited the evidence offered by the informers.[713] It is absurd to suppose that Scroggs was ignorant of the fact. If anything, Charles was rather more inclined to believe in the Plot in the spring of 1679 than on Oates’ first revelations.[714] No judge could possibly have expected to gain favour at court by an exhibition on the bench of zeal which was directed against the court. Still more absurd is it to suppose that a man in the position of the Lord Chief Justice should have imagined that the Earl of Shaftesbury exercised a favoured influence over the king’s mind. Nor does Scroggs’ conduct on the bench afford good ground for these accusations. His behaviour in the test case, the trial of Sir George Wakeman, was exactly the same as it had been in all the previous trials, and exactly the same as it was at the later trials over which he presided, whether they were of priests charged with treason on account of their orders, of persons charged with treason in the Plot, or for offences of a less high character.[715] It is scarcely surprising to hear that after the attack made on him by Oates and Bedloe, “whensoever either of them have appeared before him, he has frowned upon them, spoke very frowardly to them and reflected much upon them.”[716] Nevertheless he treated their evidence quite fairly. The rule was that only a conviction of perjury could disqualify a witness, and Scroggs enforced it without prejudice.[717] Throughout he had the entire support of the other judges, and not least that of Chief Justice North.[718] His mind was filled, equally with theirs, with the fear and horror of popery, and as the chief part of the speaking fell to his lot he expressed this more often and more emphatically than his brethren. But he made up his mind on the merits of each case in accordance with the evidence which was then given and with the stringent and unjust rules of procedure which had been handed down to him. Scroggs was neither a judge of remarkable merit nor a lawyer of learning, but on the evidence which was brought before him, and which was not then, as it would be now, rendered incredible by its own character, he did in a rough manner sound justice.

For the violence and brutality of his speeches there can be no more excuse than for the coarseness and violence of all speech and action in the age in which he lived. But his words must not be judged alone, nor must his manner of speech be considered peculiar. Language in the latter half of the seventeenth century was harsh and exaggerated to a degree hardly comprehended to-day. Scroggs constantly launched forth into tirades against the Roman Catholic religion, full of heated abuse. Sometimes he attributed to the Jesuits, at others to all papists, the bloody, inhuman, abominable doctrine that murder, regicide, and massacre were lawful in the cause of religion. “Such courses as these,” he declared, “we have not known in England till it was brought out of their Catholic countries; what belongs to secret stranglings and poisonings are strange to us, though common in Italy.”[719] He told Coleman, “No man of understanding, but for by-ends, would have left his religion to be a papist.... Such are the wicked solecisms in their religion, that they seem to have left them neither natural sense nor natural conscience: not natural sense, by their absurdity in so unreasonable a belief as of the wine turned into blood; not conscience, by their cruelty, who make the Protestants’ blood as wine, and these priests thirst after it; Tantum religio potuit suadere malorum?”[720] The onslaught on Ireland, Pickering, and Grove was still more virulent: “I would not asperse a profession of men, as priests are, with hard words, if they were not very true, and if at this time it were not very necessary. If they had not murdered kings, I would not say they would have done ours. But when it hath been their practice so to do; when they have debauched men’s understandings, overturned all morals, and destroyed all divinity, what shall I say of them? When their humility is such that they tread upon the necks of emperors; their charity such as to kill princes, and their vow of poverty such as to covet kingdoms, what shall I say to them?... This is a religion that quite unhinges all piety, all morality, and all conversation, and to be abominated by all mankind.”[721] Yet Scroggs’ language was no stronger than that of his brothers on the bench. Jeffreys in sentencing Ireland, Wild in sentencing Green, Jones in sentencing Tasborough attained an exactly similar style. At the trial of Penn and Mead in 1670 the court was at least equally ill-mouthed, and nothing ever heard in a court of justice surpassed the torrents of venomous abuse which Coke, as Attorney-General, poured upon the head of Raleigh at his trial in 1603. One fact in judicial procedure exercised an immense influence on the nature of speeches from the bench. The judges took no notes.[722] In summing up the evidence they relied solely upon memories developed for this purpose to an extent which seems almost marvellous. But another result besides this remarkable mental training was that in his summing up the judge had no set form by which to direct himself. There was not the constraint which comes from the necessity of following a definite guide on prosaic slips of paper. It followed that the whole of this part of his work was far more loose and undefined than it has come to be since the additional burden of taking notes has been imposed. Not only could he, but it was natural that he should, break off from the course of the evidence to interpose comments more or less connected with it; and in the days of little learning and violent religious prejudice, the judge’s comment was likely to take the form of abuse of the creed which he did not profess.

Men of the seventeenth century habitually expressed their thoughts with a coarseness which is disgusting to the modern mind. A man named Keach, who had taught that infants ought not to be baptized, was indicted for “maliciously writing and publishing a seditious and venomous book, wherein are contained damnable positions contrary to the book of common prayer.”[723] At his speech at the opening of Parliament in 1679 Lord Chancellor Finch likened the Roman Catholic priests and their pupils to “the Sons of Darkness,” and declared that “the very shame and reproach which attends such abominable practices hath covered so many faces with new and strange confusions, that it hath proved a powerful argument for their conversion; nor is it to be wondered at that they could no longer believe all that to be Gospel which their priests taught them, when they saw the way and means of introducing it was so far from being Evangelical.”[724] Other parties were equally violent; and on two separate occasions Shaftesbury swore that he would have the lives of the men who had advised the king to measures obnoxious to his party. The most notorious of all Scroggs’ utterances, an acrid sneer at the doctrine of transubstantiation: “They eat their God, they kill their king, and saint the murderer,” is paralleled almost exactly by Dryden’s couplet:

Such savoury deities must needs be good.

As served at once for worship and for food;[725]

and Dryden, who at this time belonged to the court and high church party, became within five years himself a Roman Catholic. The whole literature of the time bears witness to the fact that such language was scarcely beyond the ordinary. It was a convention of the age and must be accepted as such. There would be no greater mistake than to attribute to words of the sort too great an influence on action. The results which attended them were unimportant. Of all Chief Justice Scroggs’ harangues the most consistently brutal and offensive was that directed at Marshal, at the trial of Sir George Wakeman.[726] Yet it was followed immediately by a fair summing up and the acquittal of the prisoners.

Only one other case demands attention in this review of the trials for the Popish Plot. The trial of Elizabeth Cellier for high treason belongs rather to the history of the Meal Tub Plot; those of Sir Thomas Gascoigne, Sir Miles Stapleton, Thwing, and Pressicks to the provincial history of the Plot; that of Archbishop Plunket to its history in Ireland. The acquittal of Lord Castlemaine is chiefly important as an episode in the infamous career of Dangerfield, the informer. The proceedings against Fitzharris belong rather to the history of Whig conspiracy against the crown, the transition to which they mark.[727] But the trial of Lord Stafford calls for more lengthy notice. It was the last of the treason trials for the main Popish Plot, and ranks in importance with the weightiest of those which went before. More than two years had now elapsed since the beginning of the ferment caused by the Plot. During that time it had exercised a magic over men’s minds. This influence was now suffering a decline. The acquittals of Wakeman, Lord Castlemaine, and Sir Thomas Gascoigne had wrought the mob to fury against the court and the Roman Catholics, but they had also sown doubts in the judgment of intelligent persons as to the credit of the informers and the truth of the facts to which they swore. At the end of the year 1680 it was doubtful, said Sir John Reresby, “whether there were more who believed there was any plot by the papists against the king’s life than not.”[728] The situation of the Whig party was critical. Their violent espousal of the Plot and the concentration of all their efforts upon the propagation of ultra-Protestant designs had brought about the result that, should the Plot be discredited before they had gained their object in excluding the Duke of York from the succession to the throne, their power would vanish into thin air. To stave off a day of such evil and to re-establish on its former firm footing the general belief in “the bloody designs of papists,” the trial of Giles for the bogus attempt on Captain Arnold’s life had been undertaken.[729] With the same object Lord Stafford was brought to trial. His imprisonment had already lasted for two years and two months.[730] He was now brought to the bar in preference to any of the other four noblemen who had been imprisoned with him because, as was believed at court, his advanced age and bodily infirmity rendered him a more easy prey to the rancour of the House of Commons.[731] On all sides the case was regarded as of the utmost importance. If the prisoner were condemned the Whigs would gain a great advantage. If he were acquitted, the prosecution of the Plot, which was their sole weapon, would suffer a disastrous check.[732]

Stafford’s trial was conducted upon a scale befitting its consequence. Seven days were occupied in its process, a length which was at the time unprecedented. As many as sixty-one witnesses were called on the one side and on the other. For those who appeared for the prosecution the cost of summons and entertainment amounted to a hundred pounds.[733] The court of the Lord High Steward was held in Westminster Hall. Round the hall were arranged galleries, from which privileged persons watched the proceedings with the keenest interest. From her seat in a private box the Duchess of Portsmouth exerted her charms upon the members of the House of Commons stationed near her, distributing “sweetmeats and gracious looks.” Another box was reserved for the queen. In a third sat the king, a constant attendant during every day of the trial.[734] Opposite the bar was the seat of the Lord High Steward, and near by were placed the managers of the prosecution, Sir William Jones, Sergeant Maynard, Winnington, Treby, Trevor, Powle, the most distinguished lawyers of the House of Commons.

On November 30, 1680, his sixty-ninth birthday, Thomas Howard, Lord Viscount Stafford, was brought to the bar. That nothing might be omitted against the prisoner, the managers called witnesses to prove the reality and general designs of the Popish Plot. The whole story was gone into at immense length. Oates, Dugdale, Jennison, a secular priest named John Smith, and Bernard Dennis, a Dominican friar, gave a volume of evidence to the point. The records of the conviction of nineteen persons for treason and other charges connected with the Plot, beginning with Coleman and ending with Giles, were proved and the record of Coleman’s attainder was read. Thus the whole of one day was occupied.[735] On the following morning the managers proceeded to call witnesses to the treason of Lord Stafford. The mass of evidence which they gave may be reduced to three points. Dugdale swore that at a certain meeting held at Tixhall, in Staffordshire, about the end of August or the beginning of September 1678, the accused had given his full assent to the plot for taking away the king’s life, and in September had offered him the sum of £500 to be the actual murderer.[736] Oates swore that he had seen letters to various Jesuits, signed Stafford, containing assurances of his zeal and fidelity to the design; that the prisoner had in his presence received from Fenwick a commission constituting him paymaster-general of the forces; and that, in conversation with Fenwick, Lord Stafford had said he did not doubt that “Grove should do the business,” adding with reference to the king, “he hath deceived us a great while, and we can bear no longer.”[737] Lastly Turbervile, a new witness, swore that after a fortnight’s acquaintance with the prisoner in Paris, in the year 1675, he had directly proposed to him to kill the king of England, who was a heretic and a rebel against Almighty God.[738] Round these charges the contest was waged hotly. Lord Stafford and his witnesses doing battle against the managers and theirs. On the third day the attack was directed on Dugdale. A servant of Lord Aston proved that the informer had lived in bad repute at Tixhall, that he was discharged from his post of steward, that he ran away to escape his creditors, was caught and imprisoned for debt, and that he had sworn by God that he knew nothing of any plot.[739] The last was confirmed by the magistrates who had arrested Dugdale for debt. He had then been examined about the Plot and denied all knowledge of it. Only two days later he made a full confession.[740] Two servants of the accused were called to prove the nature of the interview in which Dugdale swore that Lord Stafford offered him £500 to kill the king. Every circumstance of it was fully explained. The witnesses had been in the room the whole time, and deposed that the conversation had turned upon nothing more serious than the chances of a horse-race in the neighbourhood.[741] Other Staffordshire men testified to Dugdale’s evil reputation, and two artisans of Tixhall stated that Dugdale had offered them separately money to swear against Lord Stafford.[742]

Of Oates’ evidence little could be made for the defence, but Stafford was able to point out that after having solemnly declared to the House of Lords that he could accuse no other persons “of whatsoever quality they be,” he had proceeded to charge the queen herself with high treason.[743]

Again Dugdale was called and cross-examined on his deposition of December 24, 1678, which was read from the journal of the House of Lords. In that he had said “that presently after one Howard, almoner to the queen, went beyond seas, he was told by George Hobson (servant to the said Lord Aston) that there was a design then intended for the reformation of the government of the Romish religion.” He now swore that he did not know Hobson before the latter came into Lord Aston’s service in 1678. Stafford seized upon this as evidence either that Dugdale was lying, or that his information, sworn two years before, was false. Dugdale contended that the meaning of the clause “was that Hobson told me that presently after almoner Howard went over, there was such a design carrying on.” It is a testimony to the obscurity of the style of ordinary English prose at the end of the seventeenth century that the court held, in apparent opposition to common sense and common justice, that the construction which Dugdale gave to the sentence was not only possible, but the more probable.[744]

Turbervile, the third of the informers, was met in his evidence by numerous contradictions. It was proved that in his original deposition he had altered two dates the day after having sworn to their accuracy. Both in his deposition of November 9, 1680 and at the trial in the course of examination he had sworn that he had constantly seen Lord Stafford in Paris during a fortnight in 1675 when Stafford was ill with gout, and that the prisoner then pressed him to undertake the murder of the king. Two of Lord Stafford’s servants who had been with him in Paris now proved that they had never once seen Turbervile during that time, and that their master had not been ill or lame with gout for at least seven years.[745] Material evidence was brought against the witness on other points. He had sworn that at the end of 1675 Lord Stafford had returned to England by Calais, sending him by Dieppe. The contrary was now proved by an independent witness. It was also proved by a French servant belonging to the household of Lord Powis that Turbervile had lodged with him in Lord Powis’ house in Paris at a time when he professed to be in fear for his life of the earl himself, and by his brother, John Turbervile, that whereas he had sworn that Lord Powis threatened to have him disinherited, he had not at any time had even a remote chance of any inheritance whatsoever.[746]

On the fourth day of this ponderous trial Lord Stafford closed his main defence. He pointed to the turpitude of Oates’ character, and spoke with emotion of his abhorrence that a man guilty of such immorality as to profess a change of religion which he did not experience should be allowed to give evidence against a peer among his peers. “I appeal to your lordships,” he cried, “whether such ... is not a perjured fellow, and no competent witness? No Christian, but a devil, and a witness for the devil.” Even Oates himself was flustered and had to be restrained by the managers from breaking into excesses.[747]

The prosecuting Commons however were undismayed. They called a swarm of witnesses to set up the character of the informers and to destroy that of witnesses for the defence. It was proved by word of mouth and the production of letters that servants of Lord Aston, Lord Bellasis, and Mr. Heveningham had attempted to suborn persons to give false evidence against Dugdale.[748] The new witnesses were in turn contradicted by the defence, and this wonderful series of contradictions was carried still one step further when fresh evidence was called to corroborate them.[749]

On the fifth day Lord Stafford summed up his defence. He laid special stress on the infamous character of his accusers and his own clean record, the points in which the witnesses had been contradicted, and the general improbability of the charge. His speech was badly received. The opportunity of a slight pause was seized by Lord Lovelace to spring to his feet and denounce with indignation the presence in court of a well-known Roman Catholic.[750] Moreover the prisoner made a grave tactical mistake in proposing for argument a number of points of law, of which some were frivolous and others had already been authoritatively determined. Of these the only one which could be considered material was the question whether or no in a case of high treason two witnesses were necessary to prove each overt act alleged, since the witnesses against Lord Stafford had sworn separately, and never together, to the commission of several acts. This had in fact been determined in the case of Sir Harry Vane,[751] but now with remarkable consideration for the prisoner the opinion of the assembled judges was taken: it was unanimous to the effect that the evidence of two separate witnesses to two distinct acts constituted a proof of high treason. The other points were easily disposed of by Jones and Winnington.[752]

In a speech of great ability Sir William Jones answered the accused. Here especially the professional training of the managers had weight. With the ease and decision of a practised lawyer the leader ran over the trial, setting the strong points of the prosecution in a clear light and minimising the value of the defence. His zeal was evident, but hardly unfair. If here and there a statement overshot the mark of strict accuracy, the effect of his speech was only enhanced by the patience with which he submitted to correction from the prisoner. Concluding with a short but powerful address, he demanded that the court should do “that justice to your king and country as to give judgment against these offenders, which will not only be a security to us against them, but a terror to all others against committing the like offences.”[753] On the night of Saturday, December 4, Stafford petitioned to be heard again in his defence. His request was granted, but the rambling speech to which the court listened on the Monday following was calculated to produce any effect rather than that of advancing his cause. The managers only found it necessary to reply very briefly before the court adjourned to consider its verdict.[754]

At eleven o’clock on the next morning the votes were taken. Thirty-one peers pronounced Lord Stafford innocent, fifty-five guilty. The verdict was not unexpected. Stafford had conducted his defence so feebly as to make his acquittal improbable.[755] Physical weakness accounted largely for this; but he had made the mistake of speaking as much as possible, and his remarks were halting, nebulous, indecisive. On the night before the verdict was delivered Barillon wrote that there was every appearance that it would be adverse to the accused.[756] Sir John Reresby was staggered by the evidence for the prosecution, and only maintained his belief in Stafford’s innocence by fixing his mind firmly on the depravity of the witnesses.[757] Anglesey, Lord Privy Seal, afterwards pressed hard for Lord Stafford’s pardon, but at the trial he felt constrained to vote against him, “secundum allegata et probata.”[758] Even Charles, although he knew that Oates and his crew were liars and publicly called them rascals, thought that the evidence against the accused was strong, and that he might well be guilty;[759] and the Countess of Manchester, who was present at the whole trial, wrote to Lady Hatton before the verdict was known, that the charge “was so well proved that I believe not many was unsatisfied, except those that were out of favour with the party might wish it other ways.”[760] Charles was present in Westminster Hall while the peers delivered their verdict, and took notes of the sides on which they voted. When it became evident that the majority were for condemnation, his face to those who were near him shewed profound disappointment.[761] Whether or no he believed in Stafford’s innocence, the conviction was a blow to the king’s cause. But the votes were not directed by political considerations alone. These would probably have ensured an acquittal. If Charles had exerted his personal influence on the court, an acquittal would have been certain.[762] The peers gave judgment on what seemed to them the merits of the case. Three eminent members of Lord Stafford’s family voted for the death.[763] The same verdict was delivered by the Lord Chancellor, the Lord Privy Seal, the Earl of Oxford, Lord Maynard, and the Duke of Lauderdale. Among the thirty-one who found for the accused were such staunch Whigs as Lord Holles, Lord Lucas, and the Earl of Clarendon. All these, had party spirit directed the votes, must have determined to the contrary. The fact must be faced that so late as December of the year 1680, more than two years after Oates’ first revelations, and after the disclosure at Wakeman’s trial had rendered certain the fact of his perjury, many of the most honourable and intelligent men in the kingdom sincerely accepted as credible the evidence offered against Lord Stafford, and as earnest of their belief sent to the scaffold one of their own number, a man bowed down with years and infirmity, the victim of miscreants supported by the enemies of the king, for the false plot against whose life he was now to die. It was a memorial to all time of the ignorance of the principles of evidence and the nature of true justice which characterised their age.

Sentence as usual in cases of high treason was pronounced on the condemned man, but at the request of the peers the king commuted the penalty to beheading alone. Efforts were made to obtain a pardon, but without avail. Charles was determined to let the law take its course that he might not be said to balk the ends of justice.[764]

The sheriffs disputed the validity of the warrant for Stafford’s decapitation and requested the advice of the House of Commons on the following questions: “Can the king, being neither party nor judge, order the execution? Can the lords award the execution? Can the king dispense with any part of the execution? If he can dispense with a part, why not with all?” To the ingenuity of Sir William Jones was due the studied insult offered to Charles in the answer of the House: “The house is content that the sheriffs should execute William, late Viscount Stafford, by severing his head from his body.”[765] The excitement which prevailed in London was intense. Throughout the trial Stafford had been hooted in the streets on his way to and from the Tower. Angry brawls arose between the witnesses and the crowd at the doors of Westminster Hall. When Dugdale swore that the prisoner had offered him £500 to kill the king, a savage hum arose in the precincts of the court itself and drew a severe rebuke from the Lord High Steward.[766] On December 29, 1680 Stafford was led to the scaffold. From the place of execution he read a lengthy speech, which was published in print on the same afternoon, asserting his innocence and vindicating his religion.[767] His words fell on deaf ears. A vast crowd was assembled to witness his death. Almost all historians have repeated the assertion that the spectators were touched and answered with cries of, “We believe you, my Lord; God bless you, my Lord.”[768] The story is a mere fable. Lord Stafford died with howls of execration of the bigoted London mob ringing in his ears. The cries with which he was met testify relentlessly that the belief in his guilt was firmly fixed in the mind of the nation.[769] The Popish Plot was not yet a thing of the past. But the result of Lord Stafford’s trial was not altogether what was expected. Shaftesbury and his party indeed gained a temporary victory, but the ultimate triumph was to the king. His steadiness, restraint, and readiness for compromise contrasted favourably with the intolerance and unconciliating attitude of the Whigs. Their game was played for the crown and, when their rejection of all offers short of that made their motive plain to the nation, Charles had the nation at his back. The violence with which they attempted to force the king’s hand alienated public feeling. He was able to dissolve the Oxford Parliament in safety, and the Whigs were driven to plan open rebellion and the treason of the Rye House Plot.