The case still dragged on its weary length. Numerous other witnesses were called to prove and disprove points of varying importance and connection with the matter at issue. All the prisoners against whom Oates and Bedloe had sworn made long speeches and discoursed on a hundred irrelevant topics. Marshal, the Benedictine, lectured the court and delivered an impassioned harangue on the injustice of the English nation and on the future state. He was stopped and, beginning again, drew down on himself from Scroggs a violent rebuke in which he declared his belief that it was possible for an atheist to be a papist, but hardly for a knowing Christian to be a Christian and a papist. When the heated wrangle which followed was ended, the Chief Justice summed up, setting the evidence on both sides in a clear light and pointing out where its strength lay against the prisoners, but plainly intimating his opinion that the revelation made by Sir Philip Lloyd went far to invalidate Oates’ testimony. As the jury were leaving the box Bedloe broke in: “My lord, my evidence is not right summed up.” “I know not by what authority this man speaks,” said Scroggs sternly. After the absence of about an hour the jury returned. Might they, they asked, find the prisoners guilty of misprision of treason? “No,” replied Jeffreys, the Recorder, “you must either convict them of high treason or acquit them.” “Then take a verdict,” said the foreman; and returned a verdict of not guilty for all the prisoners.
Scarcely was the trial over when a storm broke upon the head of the Lord Chief Justice. He had already earned the hatred of the ferocious London mob by accepting bail for Mr. Pepys and Sir Anthony Deane, who were in prison on account of the Plot.[700] Now the feeling against him amounted to positive fury. Sir George Wakeman, after visiting the queen at Windsor, fled the country to escape the effects of the popular rage.[701] Scroggs stood his ground. The London presses teemed with pamphlets against him. Some observations upon the late trials of Sir George Wakeman, etc., by Tom Ticklefoot; The Tickler Tickled; A New Year’s Gift for the Lord Chief in Justice are among those which deserve to be remembered for their especial virulence. The Portuguese ambassador had the egregious folly to call publicly upon Scroggs the day after the trial and to thank him for his conduct of the case.[702] It was immediately said that the Chief Justice had been bribed. A barrel packed with gold had been sent to him. “Great store of money” had been scattered about. The jury had been bribed. A good jury had been impanelled, but was never summoned, and a set of rascals was chosen in its place.[703] When Scroggs went on circuit for the autumn assizes he was met in the provinces with cries of—A Wakeman, a Wakeman; and at one place a half-dead dog was thrown into his coach.[704] Early in the year following Oates and Bedloe exhibited thirteen articles against the Chief Justice before the privy council, and Oates declared that “he believed he should be able to prove that my Lord Chief Justice danced naked.” On January 21 Scroggs justified himself in a set reply of great skill and wit, and the informers met with a severe rebuff.[705] His other traducers were treated with no greater courtesy. At the opening of the courts for the Michaelmas term of 1679 Scroggs made an able speech of eloquence, distinction, and almost sobriety, in which he grounded his belief in the Plot on the correspondence of Coleman and Harcourt and vindicated the integrity of the judicial honour; and on May 20, 1680 one Richard Radley was fined £200 for saying that the Chief Justice had “received money enough from Dr. Wakeman for his acquittal.”[706] In September 1679 he was received with great favour at the court at Windsor and in December caused horrid embarrassment to Lord Shaftesbury and several other Whig noblemen, whom he met at dinner with the Lord Mayor, by proposing the health of the Duke of York and justifying his own conduct on the bench.[707] In January 1681 he was impeached by the Commons. When the articles of his impeachment were brought up to the House of Lords he was treated, to the indignation of the Whig party, with great consideration and favour; but although the lords refused even to put the question “whether there shall now be an address to the king to suspend Sir William Scroggs from the execution of his place until his trial be over?” he was absent from court at the beginning of the Hilary term, and did not take his place upon the bench during the rest of the term.[708] Three days after the opening of the Oxford parliament Scroggs put in his answer to the impeachment. He denied the truth of the articles exhibited against him severally, and insisted that the nature of the facts alleged in them was not such as could legally be made the ground for a charge of high treason. He prayed the king for a speedy trial.[709] Copies of his answer and petition were sent to the House of Commons, but before further proceedings could be taken Parliament was dissolved on March 28, and the impeachment was blown to the winds in company with other Whig measures of greater importance and still less good repute. The Chief Justice was not left long in the enjoyment of his triumph. In April 1681 Charles removed him from the bench and appointed Sir Francis Pemberton to be Chief Justice in his place. The move was no doubt directed by the approaching trial of Fitzharris. For this was undertaken in the teeth of the bitter opposition of the Whig party, and it was expedient that a man who was already odious to Shaftesbury’s adherents should not endanger the success of the crown by his presence on the bench on so important an occasion. The late Chief Justice was compensated by an annual pension of £1500 and the appointment of his son to be one of “his Majesty’s counsel learned in the law.”[710]
Sir William Scroggs, Chief Justice of the court of king’s bench, was a man of a type not uncommon in the seventeenth century. He was vulgar and profligate, a great winebibber, stained by coarse habits and the ignorant prejudices common to all of his day but the most temperate and learned, but a man of wit, shrewdness, strong character, and master of the talents which were necessary to secure success in the legal profession as it then was.[711] The prominent position into which he was brought by the trials for the Popish Plot has earned for him a reputation for evil second in the history of the English law courts only to that of Jeffreys. He has been accused of cowardice, cruelty, time-service, of allowing his actions on the bench to be swayed by party spirit, and of using his position with gross injustice to secure the conviction of men who were obnoxious to the popular sentiment. These charges cannot be substantiated. When the evidence of interested partisans by whom he was lauded or abused is stripped away, they rest on two grounds: the fact that he presided at trials where men were condemned for the Popish Plot, and at one where men were acquitted of similar charges; and the nature of his speeches in court at those trials. It was said that he obtained the acquittal of Sir George Wakeman because he realised that the king “had an ill opinion” of the Plot, and because he had been told that the popular leaders had no support at court; and that he had taken an opposite course at the previous trials because he believed the contrary to be true.[712] These statements have passed for truth ever since they were made, and have been repeated by one writer after another. They were in fact feeble attempts to explain what their authors did not understand. They are contradicted not only by the statements of other contemporaries, which are of small weight, but by the whole course of the Lord Chief Justice’s action and the circumstances by which he was surrounded. From the very outbreak of the Popish Plot it was notorious in official circles that the king discredited the evidence offered by the informers.[713] It is absurd to suppose that Scroggs was ignorant of the fact. If anything, Charles was rather more inclined to believe in the Plot in the spring of 1679 than on Oates’ first revelations.[714] No judge could possibly have expected to gain favour at court by an exhibition on the bench of zeal which was directed against the court. Still more absurd is it to suppose that a man in the position of the Lord Chief Justice should have imagined that the Earl of Shaftesbury exercised a favoured influence over the king’s mind. Nor does Scroggs’ conduct on the bench afford good ground for these accusations. His behaviour in the test case, the trial of Sir George Wakeman, was exactly the same as it had been in all the previous trials, and exactly the same as it was at the later trials over which he presided, whether they were of priests charged with treason on account of their orders, of persons charged with treason in the Plot, or for offences of a less high character.[715] It is scarcely surprising to hear that after the attack made on him by Oates and Bedloe, “whensoever either of them have appeared before him, he has frowned upon them, spoke very frowardly to them and reflected much upon them.”[716] Nevertheless he treated their evidence quite fairly. The rule was that only a conviction of perjury could disqualify a witness, and Scroggs enforced it without prejudice.[717] Throughout he had the entire support of the other judges, and not least that of Chief Justice North.[718] His mind was filled, equally with theirs, with the fear and horror of popery, and as the chief part of the speaking fell to his lot he expressed this more often and more emphatically than his brethren. But he made up his mind on the merits of each case in accordance with the evidence which was then given and with the stringent and unjust rules of procedure which had been handed down to him. Scroggs was neither a judge of remarkable merit nor a lawyer of learning, but on the evidence which was brought before him, and which was not then, as it would be now, rendered incredible by its own character, he did in a rough manner sound justice.
For the violence and brutality of his speeches there can be no more excuse than for the coarseness and violence of all speech and action in the age in which he lived. But his words must not be judged alone, nor must his manner of speech be considered peculiar. Language in the latter half of the seventeenth century was harsh and exaggerated to a degree hardly comprehended to-day. Scroggs constantly launched forth into tirades against the Roman Catholic religion, full of heated abuse. Sometimes he attributed to the Jesuits, at others to all papists, the bloody, inhuman, abominable doctrine that murder, regicide, and massacre were lawful in the cause of religion. “Such courses as these,” he declared, “we have not known in England till it was brought out of their Catholic countries; what belongs to secret stranglings and poisonings are strange to us, though common in Italy.”[719] He told Coleman, “No man of understanding, but for by-ends, would have left his religion to be a papist.... Such are the wicked solecisms in their religion, that they seem to have left them neither natural sense nor natural conscience: not natural sense, by their absurdity in so unreasonable a belief as of the wine turned into blood; not conscience, by their cruelty, who make the Protestants’ blood as wine, and these priests thirst after it; Tantum religio potuit suadere malorum?”[720] The onslaught on Ireland, Pickering, and Grove was still more virulent: “I would not asperse a profession of men, as priests are, with hard words, if they were not very true, and if at this time it were not very necessary. If they had not murdered kings, I would not say they would have done ours. But when it hath been their practice so to do; when they have debauched men’s understandings, overturned all morals, and destroyed all divinity, what shall I say of them? When their humility is such that they tread upon the necks of emperors; their charity such as to kill princes, and their vow of poverty such as to covet kingdoms, what shall I say to them?... This is a religion that quite unhinges all piety, all morality, and all conversation, and to be abominated by all mankind.”[721] Yet Scroggs’ language was no stronger than that of his brothers on the bench. Jeffreys in sentencing Ireland, Wild in sentencing Green, Jones in sentencing Tasborough attained an exactly similar style. At the trial of Penn and Mead in 1670 the court was at least equally ill-mouthed, and nothing ever heard in a court of justice surpassed the torrents of venomous abuse which Coke, as Attorney-General, poured upon the head of Raleigh at his trial in 1603. One fact in judicial procedure exercised an immense influence on the nature of speeches from the bench. The judges took no notes.[722] In summing up the evidence they relied solely upon memories developed for this purpose to an extent which seems almost marvellous. But another result besides this remarkable mental training was that in his summing up the judge had no set form by which to direct himself. There was not the constraint which comes from the necessity of following a definite guide on prosaic slips of paper. It followed that the whole of this part of his work was far more loose and undefined than it has come to be since the additional burden of taking notes has been imposed. Not only could he, but it was natural that he should, break off from the course of the evidence to interpose comments more or less connected with it; and in the days of little learning and violent religious prejudice, the judge’s comment was likely to take the form of abuse of the creed which he did not profess.
Men of the seventeenth century habitually expressed their thoughts with a coarseness which is disgusting to the modern mind. A man named Keach, who had taught that infants ought not to be baptized, was indicted for “maliciously writing and publishing a seditious and venomous book, wherein are contained damnable positions contrary to the book of common prayer.”[723] At his speech at the opening of Parliament in 1679 Lord Chancellor Finch likened the Roman Catholic priests and their pupils to “the Sons of Darkness,” and declared that “the very shame and reproach which attends such abominable practices hath covered so many faces with new and strange confusions, that it hath proved a powerful argument for their conversion; nor is it to be wondered at that they could no longer believe all that to be Gospel which their priests taught them, when they saw the way and means of introducing it was so far from being Evangelical.”[724] Other parties were equally violent; and on two separate occasions Shaftesbury swore that he would have the lives of the men who had advised the king to measures obnoxious to his party. The most notorious of all Scroggs’ utterances, an acrid sneer at the doctrine of transubstantiation: “They eat their God, they kill their king, and saint the murderer,” is paralleled almost exactly by Dryden’s couplet:
Such savoury deities must needs be good.
As served at once for worship and for food;[725]
and Dryden, who at this time belonged to the court and high church party, became within five years himself a Roman Catholic. The whole literature of the time bears witness to the fact that such language was scarcely beyond the ordinary. It was a convention of the age and must be accepted as such. There would be no greater mistake than to attribute to words of the sort too great an influence on action. The results which attended them were unimportant. Of all Chief Justice Scroggs’ harangues the most consistently brutal and offensive was that directed at Marshal, at the trial of Sir George Wakeman.[726] Yet it was followed immediately by a fair summing up and the acquittal of the prisoners.
Only one other case demands attention in this review of the trials for the Popish Plot. The trial of Elizabeth Cellier for high treason belongs rather to the history of the Meal Tub Plot; those of Sir Thomas Gascoigne, Sir Miles Stapleton, Thwing, and Pressicks to the provincial history of the Plot; that of Archbishop Plunket to its history in Ireland. The acquittal of Lord Castlemaine is chiefly important as an episode in the infamous career of Dangerfield, the informer. The proceedings against Fitzharris belong rather to the history of Whig conspiracy against the crown, the transition to which they mark.[727] But the trial of Lord Stafford calls for more lengthy notice. It was the last of the treason trials for the main Popish Plot, and ranks in importance with the weightiest of those which went before. More than two years had now elapsed since the beginning of the ferment caused by the Plot. During that time it had exercised a magic over men’s minds. This influence was now suffering a decline. The acquittals of Wakeman, Lord Castlemaine, and Sir Thomas Gascoigne had wrought the mob to fury against the court and the Roman Catholics, but they had also sown doubts in the judgment of intelligent persons as to the credit of the informers and the truth of the facts to which they swore. At the end of the year 1680 it was doubtful, said Sir John Reresby, “whether there were more who believed there was any plot by the papists against the king’s life than not.”[728] The situation of the Whig party was critical. Their violent espousal of the Plot and the concentration of all their efforts upon the propagation of ultra-Protestant designs had brought about the result that, should the Plot be discredited before they had gained their object in excluding the Duke of York from the succession to the throne, their power would vanish into thin air. To stave off a day of such evil and to re-establish on its former firm footing the general belief in “the bloody designs of papists,” the trial of Giles for the bogus attempt on Captain Arnold’s life had been undertaken.[729] With the same object Lord Stafford was brought to trial. His imprisonment had already lasted for two years and two months.[730] He was now brought to the bar in preference to any of the other four noblemen who had been imprisoned with him because, as was believed at court, his advanced age and bodily infirmity rendered him a more easy prey to the rancour of the House of Commons.[731] On all sides the case was regarded as of the utmost importance. If the prisoner were condemned the Whigs would gain a great advantage. If he were acquitted, the prosecution of the Plot, which was their sole weapon, would suffer a disastrous check.[732]
Stafford’s trial was conducted upon a scale befitting its consequence. Seven days were occupied in its process, a length which was at the time unprecedented. As many as sixty-one witnesses were called on the one side and on the other. For those who appeared for the prosecution the cost of summons and entertainment amounted to a hundred pounds.[733] The court of the Lord High Steward was held in Westminster Hall. Round the hall were arranged galleries, from which privileged persons watched the proceedings with the keenest interest. From her seat in a private box the Duchess of Portsmouth exerted her charms upon the members of the House of Commons stationed near her, distributing “sweetmeats and gracious looks.” Another box was reserved for the queen. In a third sat the king, a constant attendant during every day of the trial.[734] Opposite the bar was the seat of the Lord High Steward, and near by were placed the managers of the prosecution, Sir William Jones, Sergeant Maynard, Winnington, Treby, Trevor, Powle, the most distinguished lawyers of the House of Commons.