The old criminal trial of the English courts had been conducted strictly on the inquisitorial method of procedure, a system admirably contrived for the conviction of the guilty, but by no means so successful in ensuring the acquittal of the innocent. Of this character it was robbed by the Puritan Revolution, which rendered the administrative methods of continental nations odious to the English mind. But in its place nothing so complete or logical remained. The changes which were then introduced, beneficent as they were, did not institute an order capable, in the interest of justice and of the state, of guaranteeing the discovery of the truth or of safeguarding the rights of the individual. The rigorous system of preliminary procedure, the denial of counsel to assist the accused, the ignorance of the art of cross-examination and of the science of sifting evidence, combined to set judge, jury, and prisoner alike at the mercy of every man of villainy sufficient to swear away a man’s life by a false oath, and of impudence sufficient to brazen out his perjury.[548] Not until greater knowledge of the principles of judicial administration was gained by a long and harsh experience, and until a more stable state of society produced the possibility of treating accused persons with the generosity which is characteristic of modern criminal procedure, were these evils remedied.
Society, as it was in the latter half of the seventeenth century, could neither afford nor pretend to be generous to the prisoner at the bar. In these latter days when a man comes to be tried, the jury are told that it is their first duty to believe him innocent until he is proved to be guilty. The burden of that proof lies heavily upon the shoulders of those who conduct the prosecution. Whatever doubt may exist is counted to the benefit of the accused. He is treated throughout with studied consideration. But when the fourteen men who died for the Popish Plot were brought to the bar, all this was unheard of. Then the prisoner came into court already in the minds of all men half proved an enemy to the king’s majesty, and one to whom no more advantage than was his strict right could be allowed. To the satisfaction of one jury, indeed, he had been actually proved guilty, for the grand jurors “for our Lord the King” had presented upon their oaths that the prisoner “wilfully, feloniously, and of his malice aforethought” had committed the crime for which he was arraigned. Why should he be accounted innocent, to whose guilt at least twelve good men and true had positively sworn? The presumptive innocence of the accused is a modern fiction which has tacitly grown up in a society conscious that its strength is too firm to be shaken by the misdeeds of single offenders, and therefore willing that any individual suspected of offence against its laws shall retain all the advantages on his own side. Before this stage was reached, men thought otherwise. In the seventeenth century society and government were unstable and liable to sudden shocks. A comparatively trifling event might set the balance against the reign of law and order, and consequently the law meted out hard measure to those who came into contact with it. As soon as the accused was committed for trial he was sent to close confinement, from which he did not emerge until he was brought to the bar. Unless by extraordinary favour, he was allowed neither counsel nor solicitor to assist in the preparation of his defence. He was not allowed to see his witnesses before they came into court.[549] All the papers which he wrote in prison were taken from him.[550] The utmost he might claim was that one of his friends should visit him in order to summon the proper witnesses for his defence. Even these interviews, in any case of importance, could be held only in the presence of the jailor, that the prisoner might be cut off from all means of illicit intercourse with the outer world,[551] a precaution which was justified by the fact that, when all possible care had been taken, prisoners still found means underhand to receive communications which would have been prizes of considerable value to the government if they had been intercepted.[552] The age which knew the penal laws as active measures of administration, which was divided from the tragedy at Fotheringay by less than a hundred years and from the Gunpowder Plot by scarcely more than the span of a man’s life, which had only recovered from the successive shocks of revolution and restoration to wait expectantly for the day when rebellion would have to be met once again, and on which within the ten ensuing years did burst another rebellion and a second revolution, could hardly be expected to rate the safety of society more lightly than the life of one who, at the best, was surrounded by incriminating circumstances. Even so late and well-ordered a man as Paley believed that it was better for the innocent to die than for the guilty to go free.[553]
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]