Trials for offences against the State have happily been almost unknown in this country, and we therefore find it difficult to conceive of the dangers to which a prisoner is exposed, when the whole power of the government is arrayed against him. But to one familiar with the iniquitous manner in which they were conducted in Great Britain during the seventeenth, and the earlier part of the eighteenth century, the proceedings against O’Connell and his associates seem almost models of judicial fairness and impartiality. To one not thus familiar, it is difficult to convey an adequate idea of the extent to which legal tribunals prostituted their functions to purposes of oppression and revenge. The judges holding their offices by the slight tenure of royal favor, and generally owing their elevation to the zeal they had shown to defend the royal prerogatives, were, with a few honorable exceptions, willing instruments in the hands of power. The interpreters of the law, who, like the prophets of old, were bound to curse, or to bless, in obedience to higher impulses than their own wills, became the mere mouth-pieces of the government; the injustice of the decisions imperfectly concealed by the sanctity of the office. Justice, and the favor of the court were identical. The law and the royal pleasure were inseparably associated in the mind of the judge.
We would not be understood as meaning that the English judges were unjust, or partial in the trials between private citizens. In these cases it was not often that there was any obstacle interposed to the administration of even-handed justice. It was when the government came in as a party; when political offenders were to be tried, that they too often proved false to their trust. The temptations of office; the love of ease, wealth, and distinction; the fear of ministerial enmity, of royal disgrace, were too powerful for poor Honesty. The hour in which their aid was most needed by the friendless prisoner, was that in which it was withdrawn; for surely if men ever need an upright, able, and impartial administration of the law, it is when they contend single-handed against the influences of flattery, bribery, and intimidation, which those in authority are ever able to employ. The odds are fearful in such a contest. The prejudices of juries, the subservience of lawyers, the servility of judges, gave scarce a hope that justice would not be wrested to serve the purposes of the crown; that considerations of state policy would not prove stronger than any abstract belief of the prisoner’s innocence or guilt. That we have not misrepresented the degraded condition of the English tribunals during the period we have mentioned, a referencé to the state trials passim, will abundantly prove. Nor is it at all strange that such should have been the case. During the dynasty of the Tudors, and the reign of the first of the Stuarts, the duty alike of the courts, and of parliament was simply to register the royal edicts. If the formalities of law were observed, it was rather through the good-nature of the sovereign, than from any consciousness of his inability to break through their restraints. But after the rebellion, and especially after the revolution, when the limits of prerogative became marked out with some degree of precision, and monarchs could no longer effect their purposes by open violence, then more subtle means were resorted to, but scarcely less dangerous, to destroy those who were so unfortunate as to become the objects of royal or ministerial enmity. The king, if he could not make the law, could still appoint the judges of the law; and the right of interpretation was hardly less powerful than the power of legislation. Even when, after a lapse of time, the judges became in a great measure independent of the crown, still it was not until many years later, when the voice of an outraged people became more terrible to them than the frowns of kings or ministers, that those accused of political offence could hope for justice at their hands.
The reign of Charles the Second, in every respect the most disgraceful in English history, is that period to which we wish now particularly to ask the reader’s attention. During the latter part of it, the chief justice’s seat was filled first by Scroggs, and afterwards by Jeffries; the former came to the bench a little before the disclosures that took place respecting the Popish Plot, and presided at the trials that took place in consequence of that event. It is to these trials that we shall now confine ourselves; only premising certain facts necessary to the perfect understanding of the extracts which we are about to make.
It is unnecessary to go minutely into the details of the Popish Plot. A general outline will answer our present purpose. The first who pretended any knowledge of it, or made any disclosure respecting it, was Titus Oates. He, when examined before the council in October, 1678, stated that at a consult held by the Jesuits on the 24th of April preceding, at the White Horse Tavern in London, resolutions had been adopted to kill the king, overthrow the established church, and restore popery. Upon this many arrests were made, and among others was Coleman, who had been secretary to the late Duchess of York. His papers were seized, and there was found a correspondence he had carried on several years before with the confessor of Louis XIV., having reference mainly to the restoration of the Catholic religion in England. These letters, although in no way confirmatory of the alleged Plot, except so far as they indicated an anxious desire on the part of the members of that church to regain their lost ascendency in Great Britain, and their intention to use every effort for that purpose, things already well known, yet produced great excitement, and were regarded by many as conclusive proof of the truth of Oates’ statements. Another event, which happened about the same time, raised the excitement to its highest pitch. Sir Edmundbury Godfrey, a London magistrate, before whom Oates had made his depositions, was found murdered, and under such circumstances as precluded the idea of suicide. Suspicion now deepened into certainty. No one longer dared to doubt the reality of the plot. To doubt, was to confess one’s self an accomplice. Nothing was talked of but the Plot. The wildest rumors were caught up and repeated, and soon grew into well-authenticated facts. The name Papist, or Roman Catholic, became synonymous with assassin. Many, not content with carrying arms, clothed themselves in armor. At the funeral of Sir Edmondbury Godfrey, says North, in his Examen, ‘the crowd was prodigious, both at the procession, and in and about the church, and so heated, that any thing called Papist, were it a cat or a dog, had probably gone to pieces in a moment. The Catholics all kept close in their houses and lodgings, thinking it a good compensation to be safe there, so far were they from acting violently at that time. But there was all that which upheld among the common people an artificial fright, so that every one almost fancied a popish knife just at his throat; and at the sermon, beside the preacher, two thumping divines stood upright in the pulpit, to guard him from being killed while he was preaching, by the Papists.’
Oates immediately became a man of great consequence. He was called the saviour of the nation, had lodgings given him at Whitehall, and a pension from parliament of £1200 a year. But the more cool and circumspect could not forget the notorious infamy of his character, or implicitly rely on the word of a man who openly confessed that he had gone among the Jesuits, and declared himself a convert to their faith merely to betray them. But with the populace his credit was unbounded. The more incredible his fictions, the better they suited the vulgar appetite. In this sort of narrative, as Hume truly remarks, a fool was more likely to succeed than a wise man. Accompanied by his guards, for being supposed to be a special object of popish enmity, guards had been assigned him, he walked about in great dignity, attired as a priest, and ‘whoever he pointed at was taken up and committed; so that many people got out of his way as from a blast, and glad they could prove their two last years’ conversation. The very breath of him was pestilential, and if it brought not imprisonment or death over such on whom it fell, it surely poisoned reputation, and left good Protestants arrant papists, and something worse than that, in danger of being put in the plot as traitors.’[1]
Parliament was opened three days after Godfrey’s murder, and immediately voted that it was of opinion that there had been, and was ‘a damnable and hellish plot;’ and every day, both forenoon and afternoon, a session was held at which the whole matter was discussed. The arrests were numerous, and among others were several papist lords, and Sir George Wakeman, the physician to the queen. Even the Duke of York and the Queen herself were accused by Oates as traitors and accomplices. These stories meeting such general credence, and rewards being heaped upon the author, others, as might have been expected, soon followed his example. The most notorious of these minor perjurers was one Bedlow, who pretended to know the secret of Godfrey’s murder. When first examined he knew nothing of the Plot, but told a ridiculous story about forty thousand men who were coming over to England from Spain. The next day, however, his knowledge was greatly increased, and he pretended to be as fully informed of all the particulars of the Plot as Oates himself. As we shall see by and by, whatever the bolder villain swore to, his subordinate confirmed.
Such was the state of things when the first victim of this extraordinary popular delusion were brought to trial. The earliest trial, although the accused was not charged with being concerned in the plot, was that of Stayley, a goldsmith or broker, on the 21st of November, 1678. The charge against him was that he had called the king a heretic, and threatened to kill him. The chief witness against him was one Castars. Bishop Burnet, who was well acquainted with him, says, that when he heard who the witnesses were, he thought he was bound to do what he could to stop it: ‘so I sent both to the lord chancellor and the attorney general to let them know what profligate wretches these witnesses were. Jones, the attorney general, took it ill of me that I should disparage the king’s evidence. Duke Lauderdale, having heard how I had moved in this matter, railed at me with open mouth. He said I had studied to save Stayley for the liking I had to any one that would murder the king.’ The trial proceeded, and one of the witnesses testified to the following words as spoken by the prisoner: ‘The King of England is the greatest heretic, and the greatest rogue in the world; here’s the heart and here’s the hand that would kill him; I myself.’
Prisoner. ‘Here’s the hand, and here’s the heart that would kill myself; not would kill him myself.’
L. C. J. ‘What Jesuit taught you this trick? It is like one of them. It is the art and interest of a Jesuit so to do.’
In this, as in all the subsequent trials, the existence of the Plot was taken for granted as an incontestable fact. Another fact was also assumed, most improperly indeed, but not without some show of reason, that it was an admitted doctrine of the Romish church, that however sinful an act might be in itself, it lost its sinfulness if the interests of the church demanded its performance. Therefore it was argued, to kill a heretic-king, to swear falsely, to deceive an enemy, is to do nothing wrong in the eyes of a Papist, if the pope or the bishops command it. Such a man it is proper for us to regard as an enemy, for his principles would lead him to employ any means for the destruction of those whom he was taught to regard as the enemies of his church.