authenticity of many of the reports of _vivâ voce_ examinations.
There are not more links between us for example, and Sir Nicholas
Throgmorton—whose words I have just quoted—than between us and the
last witness at a contemporary trial. The very words are given
fresh from the speaker's mouth. The volumes, of course, contain
vast masses of the dismal materials which can be quarried only by
the patience of a Dryasdust. If we open them at random we may come
upon reading which is anything but exhilarating. There are pages
upon pages of constitutional eloquence in the Sacheverell case about
the blessed revolution, and the social compact, and the theory of
passive resistance, which are as hopelessly unreadable as the last
parliamentary debate in the 'Times.' If we chance upon the great
case of Shipmoney, and the arguments for and against the immortal
Hampden, we have to dig through strata of legal antiquarianism
solid enough to daunt the most intrepid explorer. And, as trials
expand in later times, and the efforts of the British Barrister to
establish certain important rules of evidence become fully reported,
we, as innocent laymen, feel bound to withdraw from the sacred
place. Indeed, one is forced to ask in passing whether any English
lawyer, with one exception, ever made a speech in court which it was
possible for any one not a lawyer to read in cold blood. Speeches,
of course, have been made beyond number of admirable efficacy for
the persuasion of judges and juries; but so far as the State Trials
inform us, one can only suppose that lawyers regarded eloquence as
a deadly sin, perhaps because jurymen had a kind of dumb instinct
which led them to associate eloquence with humbug. The one exception
is Erskine, whose speeches are true works of art, and perfect models
of lucid exposition. The strangely inarticulate utterance of his
brethren reconciles us in a literary sense to the rule—outrageous in
a moral and political point of view—which for centuries forbade the
assistance of counsel in the most serious cases. In the older trials,
therefore, we assist at a series of tragedies which may shock our
sense of justice, but in their rough-and-ready fashion go at once
to the point and show us all the passions of human beings fighting
in deadly earnest over the issues of life and death. The unities of
time and place are strictly observed. In the good old days the jury,
when once empanelled, had to go on to the end. There was no dilatory
adjourning from day to day.[9] As wrestlers who have once taken hold
must struggle till one touches earth, the prisoner had to finish
his agony there and then. The case might go on by candlelight, and
into the early hours of a second morning, till even the spectators,
wedged together in the close court, with a pestilential atmosphere,
loaded, if they had only known it, with the germs of gaol fever, were
well-nigh exhausted; till the judge confessed himself too faint to sum
up, and even to recollect the evidence; till the unfortunate prisoner,
browbeaten by the judge and the opposite counsel, bewildered by the
legal subtleties, often surprised by unexpected evidence, and unable
to produce contradictory witnesses at the instant, overwhelmed with
all the labour and impossibility of a task to which he was totally
unaccustomed, could only stammer out a vague assertion of innocence.
Here and there some sturdy prisoner—a Throgmorton or a Lilburne—thus
brought to bay under every disadvantage, managed to fight his way
through, and to persuade a jury to let him off even at their own
peril. As time goes on, things get better, and the professions of
fair-play have more reality; but it is also true that the performance
becomes less exciting. In the degenerate eighteenth century it came
to be settled that a minister might be turned out of office without
losing his head; and it is perhaps only from an æsthetic point of
view that the old practice was better, which provided historians with
so many moving stories of judicial tyranny. But in that point of view
we may certainly prefer the old system, for the tragedies generally
have a worthy ending; and instead of those sudden interventions of
a benevolent author, which are meant to save our feelings, at the
end of a modern novel, we are generally thrilled by a scene on the
scaffold, in which it is rare indeed for the actors to play their
parts unworthily.
The most interesting period of the State Trials is perhaps the last
half of the seventeenth century, when the art of reporting seems to
have been sufficiently developed to give a minute verbal record—vivid
as a photograph—of the actual scene, and before the interest was
diluted by floods of legal rhetoric. Pepys himself does not restore
the past more vividly than do some of those anonymous reporters. The
records indeed of the trials give the fullest picture of a social
period, which is too often treated from some limited point of view.
The great political movements of the day leave their mark upon the
trials; the last struggle of parties was fought out by judges and
juries with whatever partiality in open court. We may start, if
we please, with the 'memorable scene' in which Charles I. won his
title to martyrdom; then comes the gloomy procession of regicides;
and presently we have the martyrs to the Popish Plot, and they are
followed by the Whig martyr, Russell, and by the miserable victims
who got the worst of Sedgemoor fight. The Church of England has its
share of interest in the exciting case of the Seven Bishops; and
Nonconformists are represented by Baxter's sufferings under Jeffreys,
and by luckless frequenters of prohibited conventicles; and beneath
the more stirring events described in different histories, we have
strange glimpses of the domestic histories which were being transacted
at the time; there are murderers and forgers and housebreakers, who
cared little for Whig or Tory. Superstition is represented by an
occasional case of witchcraft. And we have some curious illustrations
of the manners and customs of the fast young men of the period, the
dissolute noblemen, the 'sons of Belial flown with insolence and
wine,' who disturbed Milton's meditations, and got upon the stage to
see Nell Gwynn and Mrs. Bracegirdle in the comedies of Dryden and
Etherege. It is unfair to take the reports of a police court as fully
representing the characteristics of a time; but there never was a
time which left a fuller impression of its idiosyncrasies in such an
unsavoury Record Office. Let us pick up a case or two pretty much at
random.
It is pleasantest, perhaps, to avoid the more familiar and pompous
scenes. It is rather in the byplay—in the little vignettes of real
life which turn up amidst more serious events—that we may find the
characteristic charm of the narrative. The trials, for example, of
the regicides have an interest. They died for the most part (Hugh
Peters seems to have been an exception) as became the survivors of the
terrible Ironsides, glorying, till drums beat under the scaffold to
silence them, in their fidelity to the 'good old cause,' and showing
a stern front to the jubilant royalists. But one must admit that
they show something, too, of the peculiarities which made the race
tiresome to their contemporaries as they probably would be to us. They
cannot submit without a wrangle—which they know to be futile—over
some legal point, where simple submission to the inevitable would
have been more dignified; and their dying prayers and orations are
echoes of the long-winded sermons of the Blathergowls. They showed
fully as much courage, but not so much taste, as the 'royal actor'
on the same scene. But amidst the trials there occurs here and there
a fragment of picturesque evidence. A waterman tells us how he was
walking about Whitehall on the morning of the 'fatal blow.' 'Down
came a file of musketeers.' They hurried the hangman into his boat,
and said, 'Waterman, away with him; begone quickly.' 'So,' says the
waterman, 'out I launched, and having got a little way in the water,
says I, "Who the devil have I got in my boat?" Says my fellow, says
he, "Why?" I directed my speech to him, saying, "Are you the hangman
that cut off the King's head?" "No, as I am a sinner to God," saith
he, "not I." He shook, every joint of him. I knew not what to do.
I rowed away a little farther, and fell to a new examination of
him. "Tell me true," says I, "are you the hangman that hath cut off
the King's head? I cannot carry you," said I. "No," saith he;' and
explains that his instruments had been used, but not himself; and
though the waterman threatened to sink his boat, the supposed hangman
stuck to his story, and was presumably landed in safety. The evidence
seems to be rather ambiguous as concerns the prisoner, who was accused
of being the actual executioner; but the vivacity with which Mr.
Abraham Smith tells his story is admirable. Doubtless it had been his
favourite anecdote to his fellows and his fares during the intervening
years, and he felt, rightly as it has turned out, that this accidental
contact with one of the great events of history would be his sole
title to a kind of obscure immortality.
Another hero of that time, unfortunately a principal instead of a
mere spectator in the recorded tragedy, is so full of exuberant
vitality that we can scarcely reconcile ourselves to the belief
that the poor man was hanged two centuries ago. The gallant Colonel
Turner had served in the royal army, and, if we may believe his dying
words, was specially valued by his Majesty. The colonel, however,
got into difficulties: he made acquaintance with a rich old merchant
named Tryon, and tried to get a will forged in his favour by one of
Tryon's clerks; failing in this, he decided upon speedier measures.
He tied down poor old Tryon in his bed one night, and then carried
off jewels to the value of 3,000_l._ An energetic alderman suspected
the colonel, clutched him a day or two afterwards, and forced him to
disgorge. When put upon his defence, he could only tell one of those
familiar fictions common to pickpockets; how he had accidentally
collared the thief, who had transferred the stolen goods to him,
and how he was thus entitled to gratitude instead of punishment. It
is not surprising that the jury declined to believe him; but we are
almost surprised that any judge had the courage to sentence him. For
Colonel Turner is a splendid scoundrel. There is something truly
heroic in his magnificent self-complacency; the fine placid glow of
conscious virtue diffused over his speeches. He is a link between
Dugald Dalgetty, Captain Bobadil, and the audacious promoter of some
modern financiering scheme. Had he lived in days when old merchants
invest their savings in shares instead of diamonds, he would have
been an invaluable director of a bubble company. There is a dash of
the Pecksniff about him; but he has far too much pith and courage
to be dashed like that miserable creature by a single exposure.
Old Chuzzlewit would never have broken loose from his bonds. It is
delightful to see, in days when most criminals prostrated themselves
in abject humiliation, how this splendid colonel takes the Lord Chief
Justice into his confidence, verbally buttonholes 'my dear lord'
with a pleasant assumption that, though for form's sake some inquiry
might be necessary, every reasonable man must see the humour of an
accusation directed against so innocent a patriot. The whole thing is
manifestly absurd. And then the colonel gracefully slides in little
compliments to his own domestic virtues. Part of his story had to
be that he had sent his wife (who was accused as an accomplice) on
an embassy to recover the stolen goods. 'I sent my poor wife away,'
he says, 'and, saving your lordship's presence, she did all bedirt
herself—a thing she did not use to do, poor soul. She found this
Nagshead, she sat down, being somewhat fat and weary, poor heart!
I have had twenty-seven children by her, fifteen sons and twelve
daughters.' 'Seven or eight times this fellow did round her.' 'Let
me give that relation,' interrupts the wife. 'You cannot,' replies
the colonel, 'it is as well. Prythee, sit down, dear Moll; sit thee
down, good child, all will be well.' And so the colonel proceeds with
amazing volubility, and we sympathise with this admirable father of
twenty-seven children under so cruel a hardship. But—not to follow
the trial—the colonel culminated under the most trying circumstances.
His dying speech is superb. He is honourably confessing his sins, but
his natural instinct asserts itself. He cannot but admit, in common
honesty, that he is a model character, and speaks under his gallows
as if he were the good apprentice just arrived at the mayoralty. He
admits, indeed, that he occasionally gave way to swearing, though he
'hated and loathed' the sin when he observed it; but he was—it was the
source of all his troubles—of a 'hasty nature.' But he was brought up
in an honest family in the good old times, and laments the bad times
that have since come in. He has been a devoted loyalist; he has lived
civilly and honestly at the upper end of Cheapside as became a freeman
of the Company of Drapers; he was never known to be 'disguised in
drink;' a small cup of cider in the morning, and two little glasses
of sack and one of claret at dinner, were enough for him; he was a
constant churchgoer, and of such delicate propriety of behaviour that
he never 'saw a man in church with his hat on but it troubled him very
much' (a phrase which reminds us of Johnson's famous friend); 'there
must be,' he is sure, when he thinks of all his virtues, 'a thousand
sorrowful souls and weeping eyes' for him this day. The attendant
clergy are a little scandalised at this peculiar kind of penitence;
and he is good enough to declare that he 'disclaims any desert of his
own'—a sentiment which we feel to be a graceful concession, but not
to be too strictly interpreted. The hangman is obliged to put the
rope round his neck. '_Dost thou mean to choke me, fellow?_' exclaims
the indignant colonel. 'What a simple fellow is this! how long have
you been executioner that you know not how to put the knot?' He then
utters some pious ejaculations, and as he is assuming the fatal cap,
sees a lady at a window; he kisses his hand to her, and says, 'Your
servant, Mistress;' and so pulling down the cap, the brave colonel
vanishes, as the reporter tells us, with a very undaunted carriage to
his last breath.
Sir Thomas More with his flashes of playfulness, or Charles with his
solemn 'Remember,' could scarcely play their parts more gallantly
than Colonel Turner, and they had the advantage of a belief in the
goodness of their cause. Perhaps it is illogical to sympathise all the
more with poor Colonel Turner, because we know that his courage had
not the adventitious aid of a good conscience. But surely he was a
very prince of burglars! We turn a page and come to a very different
question of casuistry. Law and morality are at a deadlock. Instead of
the florid, swaggering cavalier, we have a pair of Quakers, Margaret
Fell, and the famous George Fox, arguing with the most irritating
calmness and logic against the imposition of an oath. 'Give me the
book in my hand,' says Fox; and they are all gazing in hopes that he
is about to swear. Then he holds up the Bible and exclaims, 'This book
commands me not to swear.' To which dramatic argument (the report, it
is to be observed, comes from Fox's side) there is no possible reply
but to 'pluck the book forth of his hand again,' and send him back to
prison. The Quakers vanish in their invincible passiveness; and in the
next page we find ourselves at Bury St. Edmunds. The venerated Sir
Matthew Hale is on the bench, and the learned and eloquent Sir Thomas
Browne appears in the witness-box. They listen to a wretched story
of two poor old women accused of bewitching children. The children
swear that they have been tormented by imps, in the shape of flies,
which flew into their mouths with crooked pins—the said imps being
presumably the diabolical emissaries of the witches. Then Sir Thomas
Browne gravely delivers his opinion; he quotes a case of witchcraft
in Denmark, and decides, after due talk about 'superabundant humours'
and judicious balancing of conflicting considerations, that the fits
into which the children fell were strictly natural, but 'heightened
to a great excess by the subtlety of the devil co-operating with the
malice of the witches.' An 'ingenious person,' however, suggests an
experiment. The child who had sworn that the touch of the witch threw
her into fits, was blindfolded and touched by another person passed
off as the witch. The young sinner fell into the same fits, and the
'ingenious person' pronounced the whole affair to be an imposture.
However, a more ingenious person gets up and proves by dexterous
logic, curiously like that of a detected 'medium' of to-day, that, on
the contrary, it confirms the evidence.[10] Whereupon the witches were
found guilty, the judge and all the court being fully satisfied with
the verdict, and were hanged accordingly, though absolutely refusing
to confess.
Our ancestors' justice strikes us as rather heavy-handed and dull-eyed
on these occasions. In another class of trials we see the opposite
phase—the manifestation of that curious tenderness which has shown
itself in so many forms since the days when highway robbery appeared
to be a graceful accomplishment if practised by a wild Prince and
Poins. Things were made delightfully easy in the race which flourished
after the Restoration. Every Peer, by the amazing privilege of the
'benefit of clergy,' had a right to commit one manslaughter. Like a
schoolboy, he was allowed to plead 'first fault;' and a good many
Peers took advantage of the system.
Lord Morley, for example, has a quarrel 'about half-a-crown.' A Mr.
Hastings, against whom he has some previous grudge, contemptuously
throws down four half-crowns. Therefore Lord Morley and an attendant
bully insult Hastings, assault him repeatedly, and at last fall upon
him 'just under the arch in Lincoln's Inn Fields,' and there Lord
Morley stabs him to death, 'with a desperate imprecation.' The
Attorney-General argues that this shows malice, and urges that Mr.
Hastings, too, was a man of good family. But the Peers only find
their fellow guilty of manslaughter. He claims his privilege, and is
dismissed with a benevolent admonition not to do it again. Elsewhere,
we have Lord Cornwallis and a friend coming out of Whitehall in the
early morning, drunk and using the foulest language. After trying
in vain to quarrel with a sentinel, they swear that they will kill
somebody before going home. An unlucky youth comes home to his
lodgings close by, and after some abuse from the Peer and his friend,
the lad is somehow tumbled downstairs and killed on the spot. As it
seems not to be clear whether Lord Cornwallis gave the fatal kick,
he is honourably acquitted. Then we have a free fight at a tavern,
where Lord Pembroke is drinking with a lot of friends. One of them
says that he is as good a gentleman as Lord Pembroke. The witnesses
were all too drunk to remember how and why anything happened; but
after a time one of them is kicked out of the tavern; another, a Mr.
Cony, is knocked down and trampled, and swears that he has received
what turned out some days later to be mortal injuries from the boots
of Lord Pembroke. The case is indeed, doubtful; for the doctor who
was called in refused to make a post-mortem examination on the ground
that it might lead him into 'a troublesome matter;' and another was
disposed to attribute the death to poor Mr. Cony's inordinate love of
'cold small beer.' He drank three whole tankards the night before his
death; and when actually dying, declined 'white wine posset drink,'
suggested by the doctor, and 'swore a great oath he would have small
beer.' And so he died, whether by boots or beer; and the Lord High
Steward in due time had to inform Lord Pembroke that his lordship was
guilty of manslaughter but, being entitled to his clergy, was to be
discharged on paying his fees. The most sinister figure amongst these
wild gallants is the Lord Mohun, who killed, and was killed by, the
Duke of Hamilton, as all the readers of the 'Journals' of Swift or
of 'Colonel Esmond' remember. He appears twice in the collection. On
December 9, 1690, Mohun and his friend Colonel Hill came swaggering
into the play-house, and got from the pit upon the stage. An attendant
asks them to pay for their places; whereupon Lord Mohun nobly refuses,
saying, 'If you bring any of your masters I will slit their noses.'
The pair have a coach-and-six waiting in the street to carry off Mrs.
Bracegirdle, to whom Hill has been making love. As she is going home
to supper, they try to force her into it with the help of half-a-dozen
soldiers. The bystanders prevent this; but the pair insist upon seeing
Mrs. Bracegirdle to her house, and mount guard outside with their
swords drawn. Mrs. Bracegirdle and her friends stand listening at
the door, and hear them vowing vengeance against Mountford, of whom
Hill was jealous. Presently the watch appears—the constable and the
beadle, and a man in front with a lantern. The constable asks why
are the swords drawn. Mrs. Bracegirdle through the door hears Mohun
reply, 'I am a Peer of England, touch me if you dare.' 'God bless your
honour,' replies the constable, 'I know not what you are, but I hope
you are doing no harm.' 'No,' said he. 'You may knock me down, if
you please,' adds Colonel Hill. 'Nay, said I' (the lantern-bearer),
'we never use to knock gentlemen down unless there be occasion.' And
the judicious watch retire to a tavern in the next street, in order,
as they say, 'to examine what they (Mohun and Hill) were, and what
they were doing.' There was, as the constable explains, 'a drawer
there, who had formerly lived over against him,' and might throw some
light upon the proceedings of these polite gentlemen. But, alas! 'in
the meantime the murder was done.' For as another witness tells us,
Mr. Mountford came up the street and was speaking coolly to Mohun,
when Hill came up behind and gave him a box on the ear. 'Saith Mr.
Mountford, what's that for? And with that he (Hill) whipped out his
sword and made a pass at him, and I turned about and cried murder!'
Mountford was instantly killed; but witnesses peeping through doors,
and looking out of windows, gave conflicting accounts of the scuffle
in the dim street, and Lord Mohun, after much argument as to the law,
was acquitted. Five years later, he appears in the case reported by
Esmond, with little more than a change in the names. An insensate
tavern-brawl is followed by an adjournment to Leicester Fields; six
noblemen and gentlemen in chairs; Mr. Coote, the chief actor in the
quarrel, urging his chairman by threatening to goad him with his
sword. The gentlemen get over the railings and vanish into the 'dark
wet' night, whilst the chairmen philosophically light their pipes. The
pipes are scarcely alight, when there is a cry for help. Somehow a
chair is hoisted over the rails, and poor Mr. Coote is found prostrate
in a pool of blood. The chairmen strongly object to spoiling their
chairs by putting a 'bloody man' into them. They are pacified by a
promise of 100_l._ security; but the chair is somehow broken, and the
watch will not come to help, because it is out of their ward; 'and
I staid half-an-hour,' says the chief witness pathetically, 'with
my chair broken, and afterwards I was laid hold upon, both I and my
partner, and kept till next night at eleven o'clock; and that is all
the satisfaction I have had for my chair and everything.' This damage
to the chair was clearly the chief point of interest for poor Robert
Browne, the chairman, and it may be feared that his account is still
unsettled. Mohun escaped upon this occasion, and, indeed, Esmond is
unjust in giving to him a principal part in the tragedy.