On November 30, 1680, his sixty-ninth birthday, Thomas Howard, Lord Viscount Stafford, was brought to the bar. That nothing might be omitted against the prisoner, the managers called witnesses to prove the reality and general designs of the Popish Plot. The whole story was gone into at immense length. Oates, Dugdale, Jennison, a secular priest named John Smith, and Bernard Dennis, a Dominican friar, gave a volume of evidence to the point. The records of the conviction of nineteen persons for treason and other charges connected with the Plot, beginning with Coleman and ending with Giles, were proved and the record of Coleman’s attainder was read. Thus the whole of one day was occupied.[735] On the following morning the managers proceeded to call witnesses to the treason of Lord Stafford. The mass of evidence which they gave may be reduced to three points. Dugdale swore that at a certain meeting held at Tixhall, in Staffordshire, about the end of August or the beginning of September 1678, the accused had given his full assent to the plot for taking away the king’s life, and in September had offered him the sum of £500 to be the actual murderer.[736] Oates swore that he had seen letters to various Jesuits, signed Stafford, containing assurances of his zeal and fidelity to the design; that the prisoner had in his presence received from Fenwick a commission constituting him paymaster-general of the forces; and that, in conversation with Fenwick, Lord Stafford had said he did not doubt that “Grove should do the business,” adding with reference to the king, “he hath deceived us a great while, and we can bear no longer.”[737] Lastly Turbervile, a new witness, swore that after a fortnight’s acquaintance with the prisoner in Paris, in the year 1675, he had directly proposed to him to kill the king of England, who was a heretic and a rebel against Almighty God.[738] Round these charges the contest was waged hotly. Lord Stafford and his witnesses doing battle against the managers and theirs. On the third day the attack was directed on Dugdale. A servant of Lord Aston proved that the informer had lived in bad repute at Tixhall, that he was discharged from his post of steward, that he ran away to escape his creditors, was caught and imprisoned for debt, and that he had sworn by God that he knew nothing of any plot.[739] The last was confirmed by the magistrates who had arrested Dugdale for debt. He had then been examined about the Plot and denied all knowledge of it. Only two days later he made a full confession.[740] Two servants of the accused were called to prove the nature of the interview in which Dugdale swore that Lord Stafford offered him £500 to kill the king. Every circumstance of it was fully explained. The witnesses had been in the room the whole time, and deposed that the conversation had turned upon nothing more serious than the chances of a horse-race in the neighbourhood.[741] Other Staffordshire men testified to Dugdale’s evil reputation, and two artisans of Tixhall stated that Dugdale had offered them separately money to swear against Lord Stafford.[742]
Of Oates’ evidence little could be made for the defence, but Stafford was able to point out that after having solemnly declared to the House of Lords that he could accuse no other persons “of whatsoever quality they be,” he had proceeded to charge the queen herself with high treason.[743]
Again Dugdale was called and cross-examined on his deposition of December 24, 1678, which was read from the journal of the House of Lords. In that he had said “that presently after one Howard, almoner to the queen, went beyond seas, he was told by George Hobson (servant to the said Lord Aston) that there was a design then intended for the reformation of the government of the Romish religion.” He now swore that he did not know Hobson before the latter came into Lord Aston’s service in 1678. Stafford seized upon this as evidence either that Dugdale was lying, or that his information, sworn two years before, was false. Dugdale contended that the meaning of the clause “was that Hobson told me that presently after almoner Howard went over, there was such a design carrying on.” It is a testimony to the obscurity of the style of ordinary English prose at the end of the seventeenth century that the court held, in apparent opposition to common sense and common justice, that the construction which Dugdale gave to the sentence was not only possible, but the more probable.[744]
Turbervile, the third of the informers, was met in his evidence by numerous contradictions. It was proved that in his original deposition he had altered two dates the day after having sworn to their accuracy. Both in his deposition of November 9, 1680 and at the trial in the course of examination he had sworn that he had constantly seen Lord Stafford in Paris during a fortnight in 1675 when Stafford was ill with gout, and that the prisoner then pressed him to undertake the murder of the king. Two of Lord Stafford’s servants who had been with him in Paris now proved that they had never once seen Turbervile during that time, and that their master had not been ill or lame with gout for at least seven years.[745] Material evidence was brought against the witness on other points. He had sworn that at the end of 1675 Lord Stafford had returned to England by Calais, sending him by Dieppe. The contrary was now proved by an independent witness. It was also proved by a French servant belonging to the household of Lord Powis that Turbervile had lodged with him in Lord Powis’ house in Paris at a time when he professed to be in fear for his life of the earl himself, and by his brother, John Turbervile, that whereas he had sworn that Lord Powis threatened to have him disinherited, he had not at any time had even a remote chance of any inheritance whatsoever.[746]
On the fourth day of this ponderous trial Lord Stafford closed his main defence. He pointed to the turpitude of Oates’ character, and spoke with emotion of his abhorrence that a man guilty of such immorality as to profess a change of religion which he did not experience should be allowed to give evidence against a peer among his peers. “I appeal to your lordships,” he cried, “whether such ... is not a perjured fellow, and no competent witness? No Christian, but a devil, and a witness for the devil.” Even Oates himself was flustered and had to be restrained by the managers from breaking into excesses.[747]
The prosecuting Commons however were undismayed. They called a swarm of witnesses to set up the character of the informers and to destroy that of witnesses for the defence. It was proved by word of mouth and the production of letters that servants of Lord Aston, Lord Bellasis, and Mr. Heveningham had attempted to suborn persons to give false evidence against Dugdale.[748] The new witnesses were in turn contradicted by the defence, and this wonderful series of contradictions was carried still one step further when fresh evidence was called to corroborate them.[749]
On the fifth day Lord Stafford summed up his defence. He laid special stress on the infamous character of his accusers and his own clean record, the points in which the witnesses had been contradicted, and the general improbability of the charge. His speech was badly received. The opportunity of a slight pause was seized by Lord Lovelace to spring to his feet and denounce with indignation the presence in court of a well-known Roman Catholic.[750] Moreover the prisoner made a grave tactical mistake in proposing for argument a number of points of law, of which some were frivolous and others had already been authoritatively determined. Of these the only one which could be considered material was the question whether or no in a case of high treason two witnesses were necessary to prove each overt act alleged, since the witnesses against Lord Stafford had sworn separately, and never together, to the commission of several acts. This had in fact been determined in the case of Sir Harry Vane,[751] but now with remarkable consideration for the prisoner the opinion of the assembled judges was taken: it was unanimous to the effect that the evidence of two separate witnesses to two distinct acts constituted a proof of high treason. The other points were easily disposed of by Jones and Winnington.[752]
In a speech of great ability Sir William Jones answered the accused. Here especially the professional training of the managers had weight. With the ease and decision of a practised lawyer the leader ran over the trial, setting the strong points of the prosecution in a clear light and minimising the value of the defence. His zeal was evident, but hardly unfair. If here and there a statement overshot the mark of strict accuracy, the effect of his speech was only enhanced by the patience with which he submitted to correction from the prisoner. Concluding with a short but powerful address, he demanded that the court should do “that justice to your king and country as to give judgment against these offenders, which will not only be a security to us against them, but a terror to all others against committing the like offences.”[753] On the night of Saturday, December 4, Stafford petitioned to be heard again in his defence. His request was granted, but the rambling speech to which the court listened on the Monday following was calculated to produce any effect rather than that of advancing his cause. The managers only found it necessary to reply very briefly before the court adjourned to consider its verdict.[754]
At eleven o’clock on the next morning the votes were taken. Thirty-one peers pronounced Lord Stafford innocent, fifty-five guilty. The verdict was not unexpected. Stafford had conducted his defence so feebly as to make his acquittal improbable.[755] Physical weakness accounted largely for this; but he had made the mistake of speaking as much as possible, and his remarks were halting, nebulous, indecisive. On the night before the verdict was delivered Barillon wrote that there was every appearance that it would be adverse to the accused.[756] Sir John Reresby was staggered by the evidence for the prosecution, and only maintained his belief in Stafford’s innocence by fixing his mind firmly on the depravity of the witnesses.[757] Anglesey, Lord Privy Seal, afterwards pressed hard for Lord Stafford’s pardon, but at the trial he felt constrained to vote against him, “secundum allegata et probata.”[758] Even Charles, although he knew that Oates and his crew were liars and publicly called them rascals, thought that the evidence against the accused was strong, and that he might well be guilty;[759] and the Countess of Manchester, who was present at the whole trial, wrote to Lady Hatton before the verdict was known, that the charge “was so well proved that I believe not many was unsatisfied, except those that were out of favour with the party might wish it other ways.”[760] Charles was present in Westminster Hall while the peers delivered their verdict, and took notes of the sides on which they voted. When it became evident that the majority were for condemnation, his face to those who were near him shewed profound disappointment.[761] Whether or no he believed in Stafford’s innocence, the conviction was a blow to the king’s cause. But the votes were not directed by political considerations alone. These would probably have ensured an acquittal. If Charles had exerted his personal influence on the court, an acquittal would have been certain.[762] The peers gave judgment on what seemed to them the merits of the case. Three eminent members of Lord Stafford’s family voted for the death.[763] The same verdict was delivered by the Lord Chancellor, the Lord Privy Seal, the Earl of Oxford, Lord Maynard, and the Duke of Lauderdale. Among the thirty-one who found for the accused were such staunch Whigs as Lord Holles, Lord Lucas, and the Earl of Clarendon. All these, had party spirit directed the votes, must have determined to the contrary. The fact must be faced that so late as December of the year 1680, more than two years after Oates’ first revelations, and after the disclosure at Wakeman’s trial had rendered certain the fact of his perjury, many of the most honourable and intelligent men in the kingdom sincerely accepted as credible the evidence offered against Lord Stafford, and as earnest of their belief sent to the scaffold one of their own number, a man bowed down with years and infirmity, the victim of miscreants supported by the enemies of the king, for the false plot against whose life he was now to die. It was a memorial to all time of the ignorance of the principles of evidence and the nature of true justice which characterised their age.
Sentence as usual in cases of high treason was pronounced on the condemned man, but at the request of the peers the king commuted the penalty to beheading alone. Efforts were made to obtain a pardon, but without avail. Charles was determined to let the law take its course that he might not be said to balk the ends of justice.[764]