MAGISTRATES AND JUDGES
The trials of the Popish Plot have remained the most celebrated in the annals of our judicial history. Their reports occupy three volumes of the State Trials and more than two thousand pages of crowded print. They contain twenty-two trials for treason, three for murder or attempt to murder, eleven for perjury, subornation of perjury, libel, and other misdemeanours. They gave rise to proceedings in Parliament against two Lord Chief Justices, and against two judges of the Court of King’s Bench. They are a standing monument to the most astounding outburst of successful perjury which has occurred in modern times. It is due to their connection with these trials that posterity has branded the names of three[453] judges with lasting infamy, and that fourteen men executed as traitors have earned the reputation of martyrs. Not only are they filled and brimming with the romance of life and death, but there lies locked within them the kernel of that vast mass of treason, intrigue, crime, and falsehood which surrounds and is known as the Popish Plot. Strangely enough, therefore, they have been little studied and never understood.
The consequence of this has been unfortunate. Instead of going to the fountain-head for information, historians have for the most part contented themselves with relying on accounts supplied by writers on the one side or the other, sources which are always prejudiced and usually contradictory. To extract truth from the mutual opposition of two lies is an ingenious and useful task when evidence is not forthcoming at first hand; but it is a method less accurate than the examination of original authorities when these can be consulted. Nor is there only an obligation to devote attention to the trials themselves; they cannot be judged alone: and historians have not escaped error when, although they have studied the trials immediately within view from the actual reports, they have neglected to read them in the light of the preceding practice of the English courts of law, and to ground their opinions upon the whole judicial system which gave them their peculiar character, and of which they were an inseparable part. To appreciate properly the significance of the trials they must not be taken apart from their setting, and it is necessary before passing judgment upon the events recorded in them to review the past which lies behind them and the causes which influenced their nature.
The judicial system of England in the latter half of the seventeenth century was very different from its descendant in the twentieth. Its nature had been determined by the course of political events which moulded it into a form as unlike to that of two centuries after as the later Stuart constitution was to the Victorian.
Throughout the sixteenth and seventeenth centuries, from the time when Henry VIII broke the political power of Rome in England until the day when the last revolution destroyed the influence of the Jesuits in English politics, the English state lived and developed in an atmosphere charged with the thunderstorm and resonant with the note of war. War against foes within the land and without was the characteristic condition of its existence. Besides conflict with foreign powers, war and rebellion, constant in Scotland and almost chronic in Ireland, may be counted in eight reigns three completed revolutions, ten[454] armed rebellions, two great civil wars, and plots innumerable, all emanating from within the English nation alone. From beyond seas enemies schemed almost without ceasing to overturn religion or government or both as they were established at home. There is no need to wonder that the English government was a fighting machine. In this light it was regarded by all men. Where government is now looked on as a means of getting necessary business done, of ameliorating conditions of life, and directing the energy of the country to the highest pitch of efficiency, two centuries and a half ago it was anxiously watched as an engine of attack or defence of persons, property, and conscience. The first duty of government is to govern; to guard the tranquillity of the society over which it is set, to anticipate the efforts of malignants against the social security, and to punish crime, the commission of which it has been unable to prevent. This is at all times a heavy burden; but its weight is redoubled when private gives way to public crime, and the criminal turns his strength against the state itself. For acts directed against society in its corporate being are fraught with far more danger than those which touch it indirectly, however great their magnitude, not only because the consequences of the successful act in the former case are vital, but also because the restless class from which the actors are drawn commands a higher ability than that containing men to whom crime is a means to private gain, and is endowed with a reckless hardihood which springs from the certainty of detection and retribution in case of failure. In the seventeenth century this class was numerous, and the difficulties of guarding against it great. The state was always in danger, the government always battling for its own life and the safety of society, the morrow always gloomy for the success of their cause. To be for or against the government was the shibboleth which marked the peaceable man from the revolutionary. To be “counted to be a very pernicious man against the government”[455] was sufficient to weigh against the credibility of a witness before the highest tribunal of the kingdom. Therefore it was that far wider scope could then be allowed to acts of administration than ought to be allowed in peaceful times, and that the government might be sure of support for its bad as well as its good measures when they appeared to be directed towards the doing of rough justice on individuals whose presence was felt to be a common danger. It could be assumed that the means adopted for this purpose would not be too closely scrutinised.
Government was from necessity a fighting machine. But it was a machine so ill adapted for fighting that its action, far from attaining to mechanical precision and gravity, was coarse, spasmodic, questionable, and was driven to atone for want of ease and regularity by displaying an excess of often ill-directed energy. The means ready to the hand of the administration were scanty. Without an army, without police, without detectives, the order maintained in the country practically depended upon the goodwill of the upper and middle classes. The police of the kingdom consisted of watchmen in the cities and boroughs; in the country, of parish constables. Both were notoriously inefficient. The type of watchmen with which Londoners were familiar in the opening years of the seventeenth century is sufficiently known from the character of Dogberry. About the same time the parish constables were distinguished for being “often absent from their houses, being for the most part husbandmen, and so most of the day in the fields.”[456] As late as 1796 the watchmen of London were recruited by the various authorities from “such aged and often superannuated men living in their respective districts as may offer their services,” and were recognised to be feeble, half-starved, lacking the least hope of reward or stimulus to activity.[457] Without an excessive strain on the imagination it may be conjectured that in the intervening period the police system did not rise to a high pitch of perfection. In the capital the king’s guards and the city trained bands were available forces, but in the provinces the only body on which reliance could be placed for the execution of justice was formed by the sheriff’s officers or in the last resort the cumbrous militia. Even the militia could not be maintained under arms for more than twelve days in the year, for although the force of any county might be kept on foot for a longer period by the king’s special direction, the Lord Lieutenant had no power to raise money with which to pay the men.[458] The only practicable instrument of government for the defence of the state was the judicial system of the country. As there was no method known for the prevention of crime by an organised force of police, and no deterrent exerted on would-be criminals by the existence of a standing body of soldiery, the only possible weapon to be used against them was to be found in the law courts. It followed that the judges and justices of the peace not only fulfilled the judicial and magisterial functions which are known to modern times, but constituted as well an active arm of the administration.
The justices of the peace combined in their persons the characters, which have since been distinguished, of prosecutor, magistrate, detective, and often policeman. They raised the hue and cry, chased malefactors, searched houses, took prisoners. A justice might issue a warrant for the arrest, conduct the search himself, effect the capture, examine the accused with and without witnesses, extract a confession by alternately cajoling him as a friend and bullying him as a magistrate, commit him, and finally give damning evidence against him at his trial. Such was the conduct of Alderman Sir Thomas Aleyn in the case of Colonel Turner, tried and convicted for burglary in 1664.[459] The alderman examined Turner in the first place, and charged him point-blank with the offence. He then searched his house. In this he was unsuccessful, but the next day, owing to information received, tracked the colonel to a shop in the Minories, where he was found in possession of money suspected to be part of the stolen property.[460] Aleyn carried him to the owner of the stolen goods, upon whose engagement not to prosecute Turner confessed that he knew where the plunder was concealed, and by a further series of artifices induced him to surrender, through the agency of his wife, part of the missing jewelry. On this he committed both Colonel and Mrs. Turner to Newgate, and finally appeared at their trial to tell the whole story of his manœuvres in considerable detail and with the greatest composure.[461] Twenty years later, as Sir John Reresby was going to bed one night, he was roused by the Duke of Monmouth’s page to play a similar part. Mr. Thynne had been shot dead as he was driving in his coach along Pall Mall,[462] and Sir John was summoned to raise the hue and cry. He went at once to the house of the murdered man, issued warrants for the arrest of suspected persons, and proceeded to investigate the case. From a Swede who was brought before him he obtained the necessary information, and set out to pursue the culprits. After giving chase all night and searching several houses, he finally took the German officer who had been a principal in the murder in the house of a Swedish doctor in Leicester fields at six o’clock in the morning, and was able to boast in his diary that he had performed the somewhat perilous task of entering the room first and personally arresting the captain.[463] On another occasion Reresby deserved well of the government by his action in an episode connected with the Rye House Plot. Six Scotchmen had been arrested and examined in the North, and were being sent in custody to London by directions of one of the secretaries of state. Sir John however was led to suspect that the examination had not been thoroughly conducted and stopped the men at York. He examined them again and extorted confessions of considerable importance, which he was then able to forward to the secretary in company with the prisoners.[464]
Instances to illustrate the nature of these more than magisterial duties might easily be multiplied. The agitation caused by the Popish Plot was naturally a spur to the activity of justices throughout the country. Especially was this the case in the west of England, where the Roman Catholics had their greatest strength. In Staffordshire Mr. Chetwyn, in Derbyshire Mr. Gilbert, in Monmouthshire Captain Arnold were unflagging in their efforts to scent out conspiracy and popery. In consequence of information laid before the committee of the House of Lords Mr. Chetwyn, in company with the celebrated Justice Warcup,[465] searched Lord Stafford’s house. Tart Hall, for a secret vault in which some priests were said to be concealed. The search was unsuccessful, but the vigorous manner in which it was conducted is testified by Chetwyn’s furious exclamation “that if he were the king, he would have the house set fire to, and make the old rogues come forth.”[466] The same magistrate also would have assisted in the work of obtaining Dugdale’s confession, had he not been absent in London at the time.[467]
To Henry Gilbert, justice of the peace for Derbyshire, belonged the merit of tracking, arresting, and obtaining the conviction of George Busby, Jesuit, for being a Romish priest, at the Derby Assizes of 1681.[468] The evidence which Gilbert gave is very instructive as to the scope of a magistrate’s duty.[469] As early as January 1679 William Waller had come to search Mr. Powtrel’s house at West Hallam, where the Jesuit was said to be concealed, but was dissuaded on Gilbert’s assurance that he had already been over the place several times in vain and believed Busby to have escaped from England. Since then however trustworthy information had come to hand that he was still in hiding. Gilbert first reconnoitred the house under the pretext of buying wood for his coal-pits. He then went away, returned with a constable and five or six other men and, fortified by the news that Busby had been seen in the garden only a few moments before, conducted a thorough search, which resulted in the discovery of various priestly vestments, an altar, “a box of wafers, mass-books, and divers other popish things.”[470] This was on March 1, 1681. A fortnight later, in spite of some opposition from Mr. Justice Charlton, who was on circuit for the spring assizes, Gilbert sent the prize, which by law should have been burnt, back to West Hallam, in the hope of lulling the priest to a false security. On the same night he went to gather the fruits of his manœuvre. Posting men round the house, he made a noise and then waited to see “if they could spy any light, or hear any walking in the lofts or false floors.”[471] A constable and further assistance was summoned, and about midnight Gilbert tapped at a window and demanded admittance. It was refused, and after a proper interval the constable broke in the door and the whole party entered the house. The priest’s chamber was found in disorder; the fire had been lately extinguished, the bedclothes were lying about the room in heaps, and the mattress, which had been turned, was cold on the top, but warm underneath. This was the prelude to a thorough examination of the house. The spies in the garden had heard the priest’s footsteps near a corner under the roof as he retreated to his hiding-place. From one until ten in the morning of March 16 the search was carried on, Gilbert tapping on the plaster inside with his sword and the others meeting him by knocking on the tiles and walls from the other side. Hope was nearly abandoned when the searchers were spurred by the jeers of the people of the house to one last effort. At length they were rewarded. Sounding the roof inch by inch, they came upon a spot near some chimney stacks where the knocks from the two sides did not tally; breaking open the tiles, they discovered a priest’s hole, and in it Busby, whom Mr. Gilbert forthwith bore off in triumph and committed to Derby gaol.
These exploits were no doubt typical of the range of activity common to busy justices of the peace throughout the kingdom. Important business passed through their hands, and they felt their position likewise to be important. They were an energetic body of men and spared not themselves, nor their neighbours, nor those against whom their action was directed in the execution of their duty as government officials. Each was sure to be in his way a local magnate, and thus the influence which the government exerted on the justices was through them spread widely over the country. Well known among provincial magistrates, and still more active than the two above mentioned, was Captain Arnold, whose name appeared in the commission of the peace for Monmouthshire. It was this Arnold who in 1679 assisted Dr. Croft, Bishop of Hereford, in his attack on the Jesuit college at Combe, near Monmouth. The college was dispersed and ten horse loads of books, seized in it, were removed to the library of Hereford Cathedral.[472] In December of the previous year he had been instrumental in the arrest of Father Pugh, formerly of the Society of Jesus, and in the seizure of papers and valuables belonging to Hall, another member of the society.[473] But Arnold exhibited something more than the zeal proper to an energetic and business-like justice. He was a keen adherent to the Whig and extreme Protestant party. In addition to the usual government reward of £50 for the apprehension of a Jesuit, he offered £200 from his own resources for each capture.[474] He made friends with the missioners and then procured their own dependents to give evidence against them. He armed bodies of servants to assist him in his expeditions, and brought the unfortunate priest whom Oates had named as prospective Bishop of Llandaff triumphantly into Monmouth at the head of a dozen horsemen.[475] Chief among his performances was the capture of two well-known Jesuits, David Henry Lewis and Philip Evans, popularly dubbed Captain. Lewis was taken by Arnold in person, Evans through his agency. Against both he produced the witnesses and managed the evidence.[476] Both were convicted of high treason under the statute of Elizabeth, for being priests in orders received from the see of Rome. Evans was executed at Cardiff on July 22, Lewis at Usk on August 27, 1679.[477] In the summer of 1680 Arnold’s name leaped into notoriety in London, when on July 16 John Giles was brought to the bar at the Old Bailey “for assaulting and intending to despatch and murder John Arnold, one of his Majesty’s justices of the peace.”[478] This incident however, which raised Arnold’s importance so high with the Whig party that his popularity bade fair to rival even that of the murdered Sir Edmund Godfrey,[479] affords strong grounds for doubting the candour of motive in his official alertness; for there is reason to believe that no attempt whatever was made upon his life, and that the whole affair was trumped up in a most discreditable manner with a view to establishing more firmly the reputation of the Protestant party and the guilt of the Roman Catholics.[480] One more, and this again a characteristic instance, may suffice to illustrate the varied, almost intriguing, nature of a magistrate’s position and the inquisitorial side which did not completely disappear from his duty until far into the nineteenth century.[481] At Lord Stafford’s trial the three justices who had examined Dugdale immediately after his arrest in December 1678 were called by the prisoner to prove that the witness had then absolutely denied all knowledge of the Plot.[482] To rebut this evidence the managers of the prosecution called William Southall, coroner of the county of Stafford. This man, who was not even a magistrate and occupied the least judicial position known to the law, had taken the opportunity of some legal business which was to be transacted between a cousin of his and Dugdale to undertake a little private examination of the latter on his own behalf in the hopes of obtaining information about the Plot. According to his own account Southall acquitted himself with some skill and, by assuming a knowing air as if convinced of Dugdale’s guilt and playing upon his hopes of pardon and reward, managed to extract from him a material confession. With this he repaired, not to the justices of the peace by whom Dugdale had originally been examined, but to three different magistrates, and in their company was present the next day at a detailed examination of Dugdale, who then swore to nearly the same evidence as he now gave at the trial of Lord Stafford.[483] Whether this story was true, or, as is suggested by the ease of Southall’s success where others naturally better qualified had failed, the interview and its result was arranged beforehand between the two men, is at this point immaterial; for honest or fraudulent, the coroner’s behaviour was accepted as a matter of course, and without the least hint that there was any irregularity in the action of an inferior official going behind the backs of his superiors, and finally transferring so delicate a matter out of their cognisance altogether into the hands of a third party.