The History of England, from the Accession of James II — Volume 3

by Baron Thomas Babington Macaulay Macaulay

Some living Whigs obtained without difficulty redress for injuries which they had suffered in the late reign. The sentence of Samuel Johnson was taken into consideration by the House of Commons. It was resolved that the scourging which he had undergone was cruel, and that his degradation was of no legal effect. The latter proposition admitted of no dispute: for he had been degraded by the prelates who had been appointed to govern the diocese of London during Compton's suspension. Compton had been suspended by a decree of the High Commission, and the decrees of the High Commission were universally acknowledged to be nullities. Johnson had therefore been stripped of his robe by persons who had no jurisdiction over him. The Commons requested the king to compensate the sufferer by some ecclesiastical preferment, [385] William, however, found that he could not, without great inconvenience, grant this request. For Johnson, though brave, honest and religious, had always been rash, mutinous and quarrelsome; and, since he had endured for his opinions a martyrdom more terrible than death, the infirmities of his temper and understanding had increased to such a degree that he was as disagreeable to Low Churchmen as to High Churchmen. Like too many other men, who are not to be turned from the path of right by pleasure, by lucre or by danger, he mistook the impulses of his pride and resentment for the monitions of conscience, and deceived himself into a belief that, in treating friends and foes with indiscriminate insolence and asperity, he was merely showing his Christian faithfulness and courage. Burnet, by exhorting him to patience and forgiveness of injuries, made him a mortal enemy. "Tell His Lordship," said the inflexible priest, "to mind his own business, and to let me look after mine." [386] It soon began to be whispered that Johnson was mad. He accused Burnet of being the author of the report, and avenged himself by writing libels so violent that they strongly confirmed the imputation which they were meant to refute. The King, therefore, thought it better to give out of his own revenue a liberal compensation for the wrongs which the Commons had brought to his notice than to place an eccentric and irritable man in a situation of dignity and public trust. Johnson was gratified with a present of a thousand pounds, and a pension of three hundred a year for two lives. His son was also provided for in the public service, [387]

While the Commons were considering the case of Johnson, the Lords were scrutinising with severity the proceedings which had, in the late reign, been instituted against one of their own order, the Earl of Devonshire. The judges who had passed sentence on him were strictly interrogated; and a resolution was passed declaring that in his case the privileges of the peerage had been infringed, and that the Court of King's Bench, in punishing a hasty blow by a fine of thirty thousand pounds, had violated common justice and the Great Charter, [388]

In the cases which have been mentioned, all parties seem to have agreed in thinking that some public reparation was due. But the fiercest passions both of Whigs and Tories were soon roused by the noisy claims of a wretch whose sufferings, great as they might seem, had been trifling when compared with his crimes. Gates had come back, like a ghost from the place of punishment, to haunt the spots which had been polluted by his guilt. The three years and a half which followed his scourging he had passed in one of the cells of Newgate, except when on certain days, the anniversaries of his perjuries, he had been brought forth and set on the pillory. He was still, however, regarded by many fanatics as a martyr; and it was said that they were able so far to corrupt his keepers that, in spite of positive orders from the government, his sufferings were mitigated by many indulgences. While offenders, who, compared with him, were innocent, grew lean on the prison allowance, his cheer was mended by turkeys and chines, capons and sucking pigs, venison pasties and hampers of claret, the offerings of zealous Protestants, [389] When James had fled from Whitehall, and when London was in confusion, it was moved, in the council of Lords which had provisionally assumed the direction of affairs, that Gates should be set at liberty. The motion was rejected: [390] but the gaolers, not knowing whom to obey in that time of anarchy, and desiring to conciliate a man who had once been, and might perhaps again be, a terrible enemy, allowed their prisoner to go freely about the town, [391] His uneven legs and his hideous face, made more hideous by the shearing which his ears had undergone, were now again seen every day in Westminster Hall and the Court of Requests, [392] He fastened himself on his old patrons, and, in that drawl which he affected as a mark of gentility, gave them the history of his wrongs and of his hopes. It was impossible, he said, that now, when the good cause was triumphant, the discoverer of the plot could be overlooked. "Charles gave me nine hundred pounds a year. Sure William will give me more." [393]

In a few weeks he brought his sentence before the House of Lords by a writ of error. This is a species of appeal which raises no question of fact. The Lords, while sitting judicially on the writ of error, were not competent to examine whether the verdict which pronounced Gates guilty was or was not according to the evidence. All that they had to consider was whether, the verdict being supposed to be according to the evidence, the judgment was legal. But it would have been difficult even for a tribunal composed of veteran magistrates, and was almost impossible for an assembly of noblemen who were all strongly biassed on one side or on the other, and among whom there was at that time not a single person whose mind had been disciplined by the study of jurisprudence, to look steadily at the mere point of law, abstracted from the special circumstances of the case. In the view of one party, a party which even among the Whig peers was probably a minority, the appellant was a man who had rendered inestimable services to the cause of liberty and religion, and who had been requited by long confinement, by degrading exposure, and by torture not to be thought of without a shudder. The majority of the House more justly regarded him as the falsest, the most malignant and the most impudent being that had ever disgraced the human form. The sight of that brazen forehead, the accents of that lying tongue, deprived them of all mastery over themselves. Many of them doubtless remembered with shame and remorse that they had been his dupes, and that, on the very last occasion on which he had stood before them, he had by perjury induced them to shed the blood of one of their own illustrious order. It was not to be expected that a crowd of gentlemen under the influence of feelings like these would act with the cold impartiality of a court of justice. Before they came to any decision on the legal question which Titus had brought before them, they picked a succession of quarrels with him. He had published a paper magnifying his merits and his sufferings. The Lords found out some pretence for calling this publication a breach of privilege, and sent him to the Marshalsea. He petitioned to be released; but an objection was raised to his petition. He had described himself as a Doctor of Divinity; and their lordships refused to acknowledge him as such. He was brought to their bar, and asked where he had graduated. He answered, "At the university of Salamanca." This was no new instance of his mendacity and effrontery. His Salamanca degree had been, during many years, a favourite theme of all the Tory satirists from Dryden downwards; and even on the Continent the Salamanca Doctor was a nickname in ordinary use, [394] The Lords, in their hatred of Oates, so far forgot their own dignity as to treat this ridiculous matter seriously. They ordered him to efface from his petition the words, "Doctor of Divinity." He replied that he could not in conscience do it; and he was accordingly sent back to gaol, [395]

These preliminary proceedings indicated not obscurely what the fate of the writ of error would be. The counsel for Oates had been heard. No counsel appeared against him. The judges were required to give their opinions. Nine of them were in attendance; and among the nine were the Chiefs of the three Courts of Common Law. The unanimous answer of these grave, learned and upright magistrates was that the Court of King's Bench was not competent to degrade a priest from his sacred office, or to pass a sentence of perpetual imprisonment; and that therefore the judgment against Oates was contrary to law, and ought to be reversed. The Lords should undoubtedly have considered themselves as bound by this opinion. That they knew Oates to be the worst of men was nothing to the purpose. To them, sitting as a court of justice, he ought to have been merely a John of Styles or a John of Nokes. But their indignation was violently excited. Their habits were not those which fit men for the discharge of judicial duties. The debate turned almost entirely on matters to which no allusion ought to have been made. Not a single peer ventured to affirm that the judgment was legal: but much was said about the odious character of the appellant, about the impudent accusation which he had brought against Catherine of Braganza, and about the evil consequences which might follow if so bad a man were capable of being a witness. "There is only one way," said the Lord President, "in which I can consent to reverse the fellow's sentence. He has been whipped from Aldgate to Tyburn. He ought to be whipped from Tyburn back to Aldgate." The question was put. Twenty-three peers voted for reversing the judgment; thirty-five for affirming it, [396]

This decision produced a great sensation, and not without reason. A question was now raised which might justly excite the anxiety of every man in the kingdom. That question was whether the highest tribunal, the tribunal on which, in the last resort, depended the most precious interests of every English subject, was at liberty to decide judicial questions on other than judicial grounds, and to withhold from a suitor what was admitted to be his legal right, on account of the depravity of his moral character. That the supreme Court of Appeal ought not to be suffered to exercise arbitrary power, under the forms of ordinary justice, was strongly felt by the ablest men in the House of Commons, and by none more strongly than by Somers. With him, and with those who reasoned like him, were, on this occasion, allied many weak and hot-headed zealots who still regarded Oates as a public benefactor, and who imagined that to question the existence of the Popish plot was to question the truth of the Protestant religion. On the very morning after the decision of the Peers had been pronounced, keen reflections were thrown, in the House of Commons, on the justice of their lordships. Three days later, the subject was brought forward by a Whig Privy Councillor, Sir Robert Howard, member for Castle Rising. He was one of the Berkshire branch of his noble family, a branch which enjoyed, in that age, the unenviable distinction of being wonderfully fertile of bad rhymers. The poetry of the Berkshire Howards was the jest of three generations of satirists. The mirth began with the first representation of the Rehearsal, and continued down to the last edition of the Dunciad, [397] But Sir Robert, in spite of his bad verses, and of some foibles and vanities which had caused him to be brought on the stage under the name of Sir Positive Atall, had in parliament the weight which a stanch party man, of ample fortune, of illustrious name, of ready utterance, and of resolute spirit, can scarcely fail to possess, [398] When he rose to call the attention of the Commons to the case of Oates, some Tories, animated by the same passions which had prevailed in the other House, received him with loud hisses. In spite of this most unparliamentary insult, he persevered; and it soon appeared that the majority was with him. Some orators extolled the patriotism and courage of Oates: others dwelt much on a prevailing rumour, that the solicitors who were employed against him on behalf of the Crown had distributed large sums of money among the jurymen. These were topics on which there was much difference of opinion. But that the sentence was illegal was a proposition which admitted of no dispute. The most eminent lawyers in the House of Commons declared that, on this point, they entirely concurred in the opinion given by the judges in the House of Lords. Those who had hissed when the subject was introduced, were so effectually cowed that they did not venture to demand a division; and a bill annulling the sentence was brought in, without any opposition, [399]

The Lords were in an embarrassing situation. To retract was not pleasant. To engage in a contest with the Lower House, on a question on which that House was clearly in the right, and was backed at once by the opinions of the sages of the law, and by the passions of the populace, might be dangerous. It was thought expedient to take a middle course. An address was presented to the King, requesting him to pardon Oates, [400] But this concession only made bad worse. Titus had, like every other human being, a right to justice: but he was not a proper object of mercy. If the judgment against him was illegal, it ought to have been reversed. If it was legal, there was no ground for remitting any part of it. The Commons, very properly, persisted, passed their bill, and sent it up to the Peers. Of this bill the only objectionable part was the preamble, which asserted, not only that the judgment was illegal, a proposition which appeared on the face of the record to be true, but also that the verdict was corrupt, a proposition which, whether true or false, was not proved by any evidence at all.

The Lords were in a great strait. They knew that they were in the wrong. Yet they were determined not to proclaim, in their legislative capacity, that they had, in their judicial capacity, been guilty of injustice. They again tried a middle course. The preamble was softened down: a clause was added which provided that Oates should still remain incapable of being a witness; and the bill thus altered was returned to the Commons.

The Commons were not satisfied. They rejected the amendments, and demanded a free conference. Two eminent Tories, Rochester and Nottingham, took their seats in the Painted Chamber as managers for the Lords. With them was joined Burnet, whose well known hatred of Popery was likely to give weight to what he might say on such an occasion. Somers was the chief orator on the other side; and to his pen we owe a singularly lucid and interesting abstract of the debate.

The Lords frankly owned that the judgment of the Court of King's Bench could not be defended. They knew it to be illegal, and had known it to be so even when they affirmed it. But they had acted for the best. They accused Oates of bringing an impudently false accusation against Queen Catherine: they mentioned other instances of his villany; and they asked whether such a man ought still to be capable of giving testimony in a court of justice. The only excuse which, in their opinion, could be made for him was, that he was insane; and in truth, the incredible insolence and absurdity of his behaviour when he was last before them seemed to warrant the belief that his brain had been turned, and that he was not to be trusted with the lives of other men. The Lords could not therefore degrade themselves by expressly rescinding what they had done; nor could they consent to pronounce the verdict corrupt on no better evidence than common report.