The History of England, from the Accession of James II — Volume 4

by Baron Thomas Babington Macaulay Macaulay

Charnock, King and Keyes were set first to the bar. The Chiefs of the three Courts of Common Law and several other judges were on the bench; and among the audience were many members of both Houses of Parliament.

It was the eleventh of March. The new Act which regulated the procedure in cases of high treason was not to come into force till the twenty-fifth. The culprits urged that, as the Legislature had, by passing that Act, recognised the justice of allowing them to see their indictment, and to avail themselves of the assistance of an advocate, the tribunal ought either to grant them what the highest authority had declared to be a reasonable indulgence, or to defer the trial for a fortnight. The judges, however, would consent to no delay. They have therefore been accused by later writers of using the mere letter of the law in order to destroy men who, if that law had been construed according to its spirit, might have had some chance of escape. This accusation is unjust. The judges undoubtedly carried the real intention of the Legislature into effect; and, for whatever injustice was committed, the Legislature, and not the judges, ought to be held accountable. The words, "twenty-fifth of March," had not slipped into the Act by mere inadvertence. All parties in Parliament had long been agreed as to the principle of the new regulations. The only matter about which there was any dispute was the time at which those regulations should take effect. After debates extending through several sessions, after repeated divisions with various results, a compromise had been made; and it was surely not for the Courts to alter the terms of that compromise. It may indeed be confidently affirmed that, if the Houses had foreseen the Assassination Plot, they would have fixed, not an earlier, but a later day for the commencement of the new system. Undoubtedly the Parliament, and especially the Whig party, deserved serious blame. For, if the old rules of procedure gave no unfair advantage to the Crown, there was no reason for altering them; and if, as was generally admitted, they did give an unfair advantage to the Crown, and that against a defendant on trial for his life, they ought not to have been suffered to continue in force a single day. But no blame is due to the tribunals for not acting in direct opposition both to the letter and to the spirit of the law.

The government might indeed have postponed the trials till the new Act came into force; and it would have been wise, as well as right, to do so; for the prisoners would have gained nothing by the delay. The case against them was one on which all the ingenuity of the Inns of Court could have made no impression. Porter, Pendergrass, De la Rue and others gave evidence which admitted of no answer. Charnock said the very little that he had to say with readiness and presence of mind. The jury found all the defendants guilty. It is not much to the honour of that age that the announcement of the verdict was received with loud huzzas by the crowd which surrounded the Courthouse. Those huzzas were renewed when the three unhappy men, having heard their doom, were brought forth under a guard. [676]

Charnock had hitherto shown no sign of flinching; but when he was again in his cell his fortitude gave way. He begged hard for mercy. He would be content, he said, to pass the rest of his days in an easy confinement. He asked only for his life. In return for his life, he promised to discover all that he knew of the schemes of the Jacobites against the government. If it should appear that he prevaricated or that he suppressed any thing, he was willing to undergo the utmost rigour of the law. This offer produced much excitement, and some difference of opinion, among the councillors of William. But the King decided, as in such cases he seldom failed to decide, wisely and magnanimously. He saw that the discovery of the Assassination Plot had changed the whole posture of affairs. His throne, lately tottering, was fixed on an immovable basis. His popularity had risen impetuously to as great a height as when he was on his march from Torbay to London. Many who had been out of humour with his administration, and who had, in their spleen, held some communication with Saint Germains, were shocked to find that they had been, in some sense, leagued with murderers. He would not drive such persons to despair. He would not even put them to the blush. Not only should they not be punished; they should not undergo the humiliation of being pardoned. He would not know that they had offended. Charnock was left to his fate. [677] When he found that he had no chance of being received as a deserter, he assumed the dignity of a martyr, and played his part resolutely to the close. That he might bid farewell to the world with a better grace, he ordered a fine new coat to be hanged in, and was very particular on his last day about the powdering and curling of his wig. [678] Just before he was turned off, he delivered to the Sheriffs a paper in which he avowed that he had conspired against the life of the Prince of Orange, but solemnly denied that James had given any commission authorising assassination. The denial was doubtless literally correct; but Charnock did not deny, and assuredly could not with truth have denied, that he had seen a commission written and signed by James, and containing words which might without any violence be construed, and which were, by all to whom they were shown, actually construed, to authorise the murderous ambuscade of Turnham Green.

Indeed Charnock, in another paper, which is still in existence, but has never been printed, held very different language. He plainly said that, for reasons too obvious to be mentioned, he could not tell the whole truth in the paper which he had delivered to the Sheriffs. He acknowledged that the plot in which he had been engaged seemed, even to many loyal subjects, highly criminal. They called him assassin and murderer. Yet what had he done more than had been done by Mucius Scaevola? Nay, what had he done more than had been done by every body who bore arms against the Prince of Orange? If an array of twenty thousand men had suddenly landed in England and surprised the usurper, this would have been called legitimate war. Did the difference between war and assassination depend merely on the number of persons engaged? What then was the smallest number which could lawfully surprise an enemy? Was it five thousand, or a thousand, or a hundred? Jonathan and his armourbearer were only two. Yet they made a great slaughter of the Philistines. Was that assassination? It cannot, said Charnock, be the mere act, it must be the cause, that makes killing assassination. It followed that it was not assassination to kill one,—and here the dying man gave a loose to all his hatred,—who had declared a war of extermination against loyal subjects, who hung, drew and quartered every man who stood up for the right, and who had laid waste England to enrich the Dutch. Charnock admitted that his enterprise would have been unjustifiable if it had not been authorised by James; but he maintained that it had been authorised, not indeed expressly, but by implication. His Majesty had indeed formerly prohibited similar attempts; but had prohibited them, not as in themselves criminal, but merely as inexpedient at this or that conjuncture of affairs. Circumstances had changed. The prohibition might therefore reasonably be considered as withdrawn. His Majesty's faithful subjects had then only to look to the words of his commission; and those words, beyond all doubt, fully warranted an attack on the person of the usurper. [679]

King and Keyes suffered with Charnock. King behaved with firmness and decency. He acknowledged his crime, and said that he repented of it. He thought it due to the Church of which he was a member, and on which his conduct had brought reproach, to declare that he had been misled, not by any casuistry about tyrannicide, but merely by the violence of his own evil passions. Poor Keyes was in an agony of terror. His tears and lamentations moved the pity of some of the spectators. It was said at the time, and it has often since been repeated, that a servant drawn into crime by a master was a proper object of royal clemency. But those who have blamed the severity with which Keyes was treated have altogether omitted to notice the important circumstance which distinguished his case from that of every other conspirator. He had been one of the Blues. He had kept up to the last an intercourse with his old comrades. On the very day fixed for the murder he had contrived to mingle with them and to pick up intelligence from them. The regiment had been so deeply infected with disloyalty that it had been found necessary to confine some men and to dismiss many more. Surely, if any example was to be made, it was proper to make an example of the agent by whose instrumentality the men who meant to shoot the King communicated with the men whose business was to guard him.

Friend was tried next. His crime was not of so black a dye as that of the three conspirators who had just suffered. He had indeed invited foreign enemies to invade the realm, and had made preparations for joining them. But, though he had been privy to the design of assassination, he had not been a party to it. His large fortune however, and the use which he was well known to have made of it, marked him out as a fit object for punishment. He, like Charnock, asked for counsel, and, like Charnock, asked in vain. The judges could not relax the law; and the Attorney General would not postpone the trial. The proceedings of that day furnish a strong argument in favour of the Act from the benefit of which Friend was excluded. It is impossible to read them over at this distance of time without feeling compassion for a silly ill educated man, unnerved by extreme danger, and opposed to cool, astute and experienced antagonists. Charnock had defended himself and those who were tried with him as well as any professional advocate could have done. But poor Friend was as helpless as a child. He could do little more than exclaim that he was a Protestant, and that the witnesses against him were Papists, who had dispensations from their priests for perjury, and who believed that to swear away the lives of heretics was a meritorious work. He was so grossly ignorant of law and history as to imagine that the statute of treasons, passed in the reign of Edward the Third, at a time when there was only one religion in Western Europe, contained a clause providing that no Papist should be a witness, and actually forced the Clerk of the Court to read the whole Act from beginning to end. About his guilt it was impossible that there could be a doubt in any rational mind. He was convicted; and he would have been convicted if he had been allowed the privileges for which he asked.

Parkyns came next. He had been deeply concerned in the worst part of the plot, and was, in one respect, less excusable than any of his accomplices; for they were all nonjurors; and he had taken the oaths to the existing government. He too insisted that he ought to be tried according to the provisions of the new Act. But the counsel for the Crown stood on their extreme right; and his request was denied. As he was a man of considerable abilities, and had been bred to the bar, he probably said for himself all that counsel could have said for him; and that all amounted to very little. He was found guilty, and received sentence of death on the evening of the twenty-fourth of March, within six hours of the time when the law of which he had vainly demanded the benefit was to come into force. [680]

The execution of the two knights was eagerly expected by the population of London. The States General were informed by their correspondent that, of all sights, that in which the English most delighted was a hanging, and that, of all hangings within the memory of the oldest man, that of Friend and Parkyns excited the greatest interest. The multitude had been incensed against Friend by reports touching the exceeding badness of the beer which he brewed. It was even rumoured that he had, in his zeal for the Jacobite cause, poisoned all the casks which he had furnished to the navy. An innumerable crowd accordingly assembled at Tyburn. Scaffolding had been put up which formed an immense amphitheatre round the gallows. On this scaffolding the wealthier spectators stood, row above row; and expectation was at the height when it was announced that the show was deferred. The mob broke up in bad humour, and not without many fights between those who had given money for their places and those who refused to return it. [681]

The cause of this severe disappointment was a resolution suddenly passed by the Commons. A member had proposed that a Committee should be sent to the Tower with authority to examine the prisoners, and to hold out to them the hope that they might, by a full and ingenuous confession, obtain the intercession of the House. The debate appears, from the scanty information which has come down to us, to have been a very curious one. Parties seemed to have changed characters. It might have been expected that the Whigs would have been inexorably severe, and that, if there was any tenderness for the unhappy men, that tenderness would have been found among the Tories. But in truth many of the Whigs hoped that they might, by sparing two criminals who had no power to do mischief, be able to detect and destroy numerous criminals high in rank and office. On the other hand, every man who had ever had any dealings direct or indirect with Saint Germains, or who took an interest in any person likely to have had such dealings, looked forward with dread to the disclosures which the captives might, under the strong terrors of death, be induced to make. Seymour, simply because he had gone further in treason than almost any other member of the House, was louder than any other member of the House in exclaiming against all indulgence to his brother traitors. Would the Commons usurp the most sacred prerogative of the Crown? It was for His Majesty, and not for them, to judge whether lives justly forfeited could be without danger spared. The Whigs however carried their point. A Committee, consisting of all the Privy Councillors in the House, set off instantly for Newgate. Friend and Parkyns were interrogated, but to no purpose. They had, after sentence had been passed on them, shown at first some symptoms of weakness; but their courage had been fortified by the exhortations of nonjuring divines who had been admitted to the prison. The rumour was that Parkyns would have given way but for the entreaties of his daughter, who adjured him to suffer like a man for the good cause. The criminals acknowledged that they had done the acts of which they had been convicted, but, with a resolution which is the more respectable because it seems to have sprung, not from constitutional hardihood, but from sentiments of honour and religion, refused to say any thing which could compromise others. [682]