The general usefulness of the bench was not however impaired by such exceptions. The judges still formed one of the most important parts of the administrative machinery. They were consulted by the government, gave advice, and put into effect the results of their advice. They supplied the king during the long prorogation of 1675 with the pretext which he required for the suppression of the coffee-houses.[503] Before the trial of the regicides they had held a conference with the king’s counsel, Attorney, and Solicitor-General to resolve debatable points which were likely to arise in the course of the trials.[504] When the Licensing Act expired in 1679, the judges were ordered by the king to make a report concerning the control of the press. Their unanimous decision was “that his Majesty may, by law, prohibit the printing and publishing of all newsbooks and pamphlets of news whatsoever, not licensed by his Majesty’s authority, as manifestly tending to a breach of the peace and disturbance of the kingdom”;[505] and their preaching was put into practice before many months had elapsed at the trials of Harris[506] and Carr,[507] the former of whom was sentenced to the pillory and a fine of £500, and the latter to the suppression of the newspaper which he owned.
Actions for libel had always afforded a wide field for the exercise of administrative authority. Under the Clarendon régime the sentence pronounced by Chief-Justice Hyde upon Twyn, the printer, had fully sustained the traditions of the trials of Prynne, Bastwick, and Lilburn.[508] With the multiplication of political pamphlets after 1678 trials and convictions for libel became frequent. Within two years six important prosecutions of authors, printers, or publishers were instituted, and not only resulted almost always in the infliction of heavy punishments, but offered at the same time opportunities for many caustic and edifying remarks from the bench. Some time after, the number of trials for political libels and seditious words held within the space of seven months actually mounted to the total of sixteen.[509]
The advantage of lectures thus delivered in court on general politics and the duties of a good subject was of considerable value to the government. In this part of their duties the judges rivalled even the courtly eloquence of divines whose chief occupation was the advocacy of the doctrine of non-resistance. On his elevation to the bench in October 1676 Sir William Scroggs “made so excellent a speech, that my Lord Montague, then present, told the king he had since his happy restoration caused many hundred sermons to be printed, all which together taught not half so much loyalty; therefore as a sermon desired his command to have it printed and published in all the market towns in England.”[510] It was afterwards made a ground for proceedings in Parliament against Scroggs that he had publicly spoken “very much against petitioning, condemning it as resembling 41, as factious and tending to rebellion, or to that effect”[511] and it was said that Sir Robert Atkyns was dismissed from the bench for contradicting a dictum of the Chief Justice while on circuit, “that the presentation of a petition for the summoning of Parliament was high treason.”[512] Similar behaviour was also made the subject of complaint against Mr. Justice Jones.[513] Even the courteous Lord Chancellor Finch, in delivering sentence upon Lord Stafford, undertook to prove by the way that Godfrey had been murdered, and London burnt, by the papists.[514] But most of all the influence and importance of the judges was shown in trials for treason. In those days state trials were not merely impartial inquiries into the question whether or no certain persons had committed certain acts, the nature of which was under examination: they were life-and-death struggles of the king and his government against the attacks of those who wished to subvert them. It was the business of those engaged in them to see that the king’s cause took no hurt. In this light they were universally regarded, and to this end their conduct was undertaken. Judges and jurors alike were engaged in the recognised task of the defence of the state. To the hearers it was no quaint piece of antiquated phraseology when the clerk of the crown addressed the prisoner arraigned at the bar for high treason: “These good men that are now called, and here appear, are those which are to pass between you and our sovereign lord the king, upon your life and death”; it was a sober expression of vivid truth. The jury stood between the king’s life and the intrigues of a defeated malefactor. Of his innocence they were indeed ready to be convinced, but it would require strong evidence to convince them. In his guilt their belief was already strong. They can scarcely have refrained from regarding themselves less as agents employed in the cause of truth to examine without prejudice the merits of the case before them than as executors of an already predetermined justice.
And here the weight of the judge’s authority was preponderant. He directed those heavy advantages which weighed on the side of the king and against the prisoner. The stringent system of preliminary procedure, which rendered extreme the difficulty of properly preparing his case beforehand, his isolation when actually upon trial, and the unsympathetic atmosphere by which he was surrounded, and of which the counsel for the prosecution were ready to take advantage to press every point home, combined to render the accused almost helpless against the crown. Even when administered with mercy the system was severely favourable to the prosecution; and the adverse rules which hemmed in the prisoner were generally worked to the utmost. To understand these clearly, it will be necessary to pass shortly in review the history of criminal procedure in the English courts of law, and the developments which led to its state at the time of the trials for the Popish Plot.[515]
CHAPTER II
CRIMINAL PROCEDURE
The Reformation, as in almost all other branches of modern history, constitutes the starting-point at which the study of public procedure must be begun. Rather it would be true to say that in this as in other subjects it should form the starting-point. Unfortunately the necessary materials are here wanting. The State Trials, which afford not only the greatest quantity but the finest quality of evidence on the judicial history of England, are printed from reports which do not begin before the reign of Queen Mary in 1554. From that date until our own day they are continuous, and form the greatest collection of historical documents in the English language. From that date too the history of criminal procedure in modern England may be said to begin. Throughout the seventeenth century the courts of law occupy for the student of history a position of singular importance. They were the scenes not only of profound constitutional struggles, but of brilliant and deadly political contests.
The study of criminal procedure is therefore indispensable to an understanding of the numerous historical problems which have been worked out in the courts of law; especially to an understanding of those, not few, which have been worked to a conclusion, but not to a solution.
The difference between the procedure in criminal cases as it exists to-day and as it existed two centuries and a half ago is but little known. It is the more difficult to understand because it is witnessed by few great landmarks in the history of the administration of justice, and owes its existence to no promulgation of new codes or rules to which a triumphant finger may be pointed. Rather the new system has emerged from the old by a procession of unconsidered changes, at different times, of varying importance, the results of which have come to be so universally known and approved, that to the backward glance they seem to be not the outcome of long experience, but inextricable parts of a system which has existed from all time. The essential change has been one of conduct less than of opinion, and is to be found rather in an altered point of view than in any variation of practical arrangements.
The evolution of the forms under which trials were conducted during the later Stuart period was slow and unpronounced. The all-pervading activity of the Tudor privy council in affairs of state had left a deep imprint upon the course of English justice, and one from which it did not soon free itself. It was then that the courts gained the inquisitorial character which they did not lose until after the restoration of the monarchy, and it was not until the Puritan Revolution that the judicial authority of the council, which had grown to such a height of severity in the preceding half century, was swept away. During that time the privy council played a part of high importance in political trials. When a suspected criminal was to be brought to justice a stringent preliminary inquiry was held. The accused was examined on oath and in secret by the council. His examination was taken down in writing and might afterwards be produced against him under the name of a “confession.” The investigation here made had the greatest weight. “In point of fact,” says Dr. Gardiner, “these preliminary investigations formed the real trial. If the accused could satisfy the privy council of his innocence, he would at once be set at liberty. If he failed in this, he would be brought before a court from which there was scarcely a hope of escape.”[516] As a rule he did fail. The privy councillors were not apt to waste their time on persons who were not brought before them as suspect on good grounds, or objectionable for reason of state. Innocence moreover would be little protection to a prisoner in the latter case, for the political grounds against him would be unaffected by any scrutiny of evidence. If the accused was committed by the council, it was with no bright prospect before his eyes. Until the day of his trial he was kept close prisoner. He had no notice of the witnesses who were to be called against him or of the evidence which they would give. Nor was the evidence for the prosecution the only point in which the prisoner was at a disadvantage, for he was not allowed to call witnesses to set up a case for himself. This at least seems to have been the fact; but even had theory permitted the appearance in court of witnesses for the prisoner, in practice the difference made would have been trifling, for he certainly had no means of procuring their attendance or, supposing they came, of ascertaining what they would say. Even at the close of the seventeenth century, when witnesses for the defence were recognised and encouraged by the courts, great difficulty was experienced by prisoners in procuring the attendance of the right persons, and, when these came, they sometimes gave evidence on the wrong side.[517] The accused was brought into court in absolute ignorance of what would be produced against him, and was compelled to defend himself on the spur of the moment against skilled lawyers, who had been preparing their case for weeks or perhaps months beforehand. Neither before or at the trial was he allowed the aid of counsel or solicitor. On being brought to the bar, the prisoner was treated in such a way as to rob him almost of the possibility of escape. During his confinement examinations had been made of all other suspected persons, and their depositions had been taken. Not only could these now be produced in court against him, but the confessions of accomplices, when these could be found, were regarded as specially cogent evidence. No one, it was said, could have so great a knowledge of the crime as the accomplices of the criminal—a remark, it must be admitted, which, at a time when there existed no organised force of police, was not without some show of justice. No doubt such men were of bad character, but then it was not to be expected that one could raise the curtain on scenes of such ill-odour without coming into questionable company. The prisoner was not allowed to cross-examine the witnesses brought against him and had not even the right to confront them in court face to face.[518]