Having failed in one direction, Shaftesbury’s attention was promptly

turned to others. A difficulty confronting him in his hope of excluding

the Duke of York from the succession was the choice of a substitute.

The scheme of Charles’ divorce and second marriage would have overcome

this, but when that was dashed it became necessary to pursue the

question further. At the time when Clarendon was chief minister, his

opponents and among them the Duke of Buckingham proposed, in order to

remove his son-in-law James, whose influence was thought to support

him, that the Duke of Monmouth, the eldest of Charles’ sons living in

England, should be declared legitimate and heir to the crown.[413]

The idea had created agitation at other times as well; and now

Shaftesbury infused fresh life into it by adopting the bastard’s cause

and supporting him with a powerful following. It was this which rent

the Whig party and destroyed its chance of success. Up to a certain

point Shaftesbury could carry the other leaders. Halifax was at one

with him on the treatment of the Plot, for he said that it must be

handled as if it were true, whether it were so or no, and told Sir

William Temple that, unless he would concur in points so necessary for

the people’s satisfaction, he would brand him everywhere as a papist.

He demanded that Catholic priests should without receiving public

warning be submitted to the rigours of a law unenforced since the reign

of Elizabeth. He was willing to join with Shaftesbury in planning

such steps as the French ambassador thought would tend to the entire

annihilation of the royal authority and reduce England to a republic

under kingly forms. But when it became apparent that Shaftesbury had

adopted the cause of the graceful, popular, feather-headed Duke of

Monmouth, Halifax drew away to the king’s side and took with him “the

party volant,” which boasted with the proud title of Trimmers to hold

the balance in the constitution. With them for the moment were also the

more respectable of the old Presbyterian party under the lead of Lord

Holles.[414] If the nation was divided by the Exclusion bill, those in

favour of the project were divided among themselves by the problem in

whose favour exclusion should be. Of the two claimants to consideration

the Prince of Orange in virtue of his wife and his mother had

obviously the better title. On the other hand it was thought that his

father-in-law the Duke of York might have a dangerous influence over

him; and there were fears that the republican party in Holland would in

alarm cast itself into the hands of Louis XIV and thus ruin still more

irretrievably the interests it was desired to preserve. The reasons

against the Duke of Monmouth were evident. To alter the succession

for the son of a prostitute, for the duke’s mother was a woman of

low character, could not but cause offence to many. Still more would

resent the violation of the rights of an heir who had done nothing to

forfeit them but adhere to the dictates of his conscience. Henry VIII

had more than once altered the succession by act of Parliament, but

though he declared his children bastards, they had yet been got in

lawful wedlock. When it came to the point of a struggle, the Duke of

York would have a good rallying cry. Monmouth was nevertheless secure

of a strong party; all who were opposed to James for religion’s sake,

who were many, and all Scotland, which grew daily more exasperated

under the unpopular government of Lauderdale. It may be believed that

the weakness no less than the strength of Monmouth’s position appealed

to Shaftesbury. The Whig power lay not in support of the right, but

in the constituencies, above all in London, where the sentiments by

which Monmouth found favour had their strongest hold. Monmouth was

moreover a man open to influence. Were the Duke of York successfully

excluded, Shaftesbury was more likely to find room for the exercise

of his talents under the rule of James’ nephew than under that of his

son-in-law, William of Orange. Of the two Monmouth gave far better

promise to the earl that he would retain his power in the country and

regain it in the government. Shaftesbury took his measures accordingly.

Yet the Whig prospect looked by no means assured. Dissension in the

party was widespread. “I must confess,” wrote Algernon Sidney, summing

up the arguments on the one side and on the other, “I do not know three

men of a mind, and that a spirit of giddiness reigns amongst us, far

beyond any I have ever observed in my life.”[415]

The prorogation of Parliament in May 1679 filled the nation with ill

humours. Members rode down to their country seats in high discontent.

Alarm was general and, wrote Sidney significantly, “they begin to look

more than formerly unto the means of preserving themselves.”[416]

Scarcely were they clear of Westminster before news came that the

Scottish Covenanters were up in arms and in possession of Glasgow.

The outbreak was not unwelcome. Nor was it unexpected. As early as

the beginning of the month Sidney had information that a rising might

be expected at any moment. A few weeks before an inflammatory speech

was delivered by Shaftesbury in the House of Lords; he charged the

government with fomenting discord in Scotland by its evil rule, and

declared that in England popery was to have brought in slavery, but in

Scotland, while slavery went before, popery was to follow. By the next

post, it was said, forty copies of his speech were carried up north to

hearten the malcontents by the knowledge that they were favoured by

a party in England. The subject was freely discussed by the Whigs in

London. Even if they were not in direct communication with the rebels,

there can be no doubt that they had let it be known on which side their

sympathies lay,[417] The events of the ill-fated rebellion of Bothwell

Brigg do not belong to this story. It did not fail for want of effort

on the part of those who had encouraged its authors. Lauderdale had

been attacked by an address of the Commons, and a deputation under the

Duke of Hamilton now arrived to plead against him before the king.

Charles remarked that “they had objected many damned things he had done

against _them_, but there was nothing objected that was done against

_his_ service.” When the revolt came up for discussion at the council,

Lord Russell rose and expressed his wonder that war had not begun long

ago rather than that it should have come at last, “since his Majesty

thought fit to retain incendiaries near his person and in his very

council.” Lauderdale begged leave to retire, but the king turned to

Russell with the words, “No, no. Sit down, my Lord. This is no place

for addresses.”[418] Charles, who boasted with some justice that he

understood Scotch affairs better than any of his advisers, was for

the immediate suppression of the rising by force. He was opposed by

those who felt their interest advanced by its continuance. The Duke of

Hamilton and his friends gave assurance that peace might be restored

without bloodshed if only such men were employed as were acceptable

to the nation. Shaftesbury did not conceal his desire that the rebels

might at least be successful in obtaining a change of government. The

Presbyterians and other sectaries were united in their hopes for their

brethren in Scotland, and pamphlets were strewn about the town inciting

the people to prevent the court from making preparations of war. By

the suggestion of the Duke of Monmouth as commander-in-chief of the

forces, the king gained his point. Shaftesbury had argued that English

troops could not legally be sent to serve in Scotland. Glad to avail

himself of the prestige his puppet would win from the campaign, he now

consented to the arrangement, hoping that the duke would carry powers

not only to beat but to treat with the rebels; more might perhaps be

gained by negotiation than by arms. In this he was nearly successful.

While the commission giving to Monmouth full powers was signed,

Lauderdale sat silent. As the council rose he followed the king into

his bedchamber and begged him, unless he wished to follow his father,

to rescind that part of the commission which might be used to encourage

rebellion in Scotland and raise another in England. “Why did you not

argue this in council?” asked Charles. His gross but able administrator

answered with emphasis, “Sire, were not your enemies in the room?”

To the great disappointment of Monmouth and the Whigs as well as the

Covenanters, peremptory orders were sent after him that he should not

treat but fall on them at once. Shaftesbury’s party discovered that

they had been tricked. Lord Cavendish and Lord Gerard refused to serve

under their commissions; Mr. Thynne declined to receive one; Lord Grey

of Werke resigned his command of the horse. Even after Monmouth had

started an attempt was made to obtain his recall and, had time allowed,

a monster petition in favour of the rebels, to be signed by many

peers and gentlemen and all the principal householders of London, was

prepared for presentation to the king. Charles made use of the event,

by an order which had the additional advantage of creating a difference

between the Earls of Essex and Shaftesbury, to raise a troop of two

hundred guards to be about his person.[419]

The copies of Shaftesbury’s speech intended for such fatal use in

Scotland were said to have been made in the Green Ribbon Club.[420]

That famous society, founded in the year 1675, quickly acquired

ascendency over the Whig party. To-day it has been almost forgotten;

its influence was unknown to the classic historians of England, who

were in politics mostly Whig; but during seven tumultuous years of

English history it played a part that can only be compared to the work

of the more notorious Jacobin organisation of a century later across

the Channel. The club met at the King’s Head Tavern at the corner of

Chancery Lane and Fleet Street. Its character may be known at once

from the fact that its members organised and paid for the imposing

ceremonies of pope burning, by which the most fiendish lies of Oates

were yearly sustained and the worst passions of the London mob, a word,

it may be noted, itself derived from the club, systematically inflamed.

Oates himself was a member, and Aaron Smith, his legal adviser; and

under the leadership of Shaftesbury the club was filled with men of

the same kidney, who crowded on to the balcony with pipes in their

mouths and wigs laid aside to witness the papal holocaust with which

each great procession ended opposite their windows. Here was the

fountain of the inner counsels of the Whig party and the seat of its

executive. Within the walls of the club the decision had been taken to

agitate for the dissolution of Parliament after the long prorogation

of 1677; here a few years later the Rye House conspiracy was schemed;

here the actual assassination plot was hatched. Over the country the

Green Ribbon Club enjoyed a profound influence. It was the centre of

the party pamphleteers who devoted keen ability to incite the nation

and defame the government, and their productions were scattered far

and wide by means of a highly effective service of correspondents.

While policy was debated and action resolved by the chiefs of the club,

their agents at the coffee-houses in London and throughout the country

obeyed orders from headquarters. At the elections their activity was

unparalleled. Tracts poured into the constituencies. Industrious agents

attacked the character of the court candidates and firmly organised

the national opposition. It was the Green Ribbon Club which introduced

the “Protestant flail” to London and clothed the town in silk armour

as a defence against the expected daggers of papists. The club almost

usurped the functions of Parliament. Many members of that body belonged

to it, attended its consultations, took their cue from its decisions.

Agents thronged the lobby of the House of Commons, posting members with

arguments for debate, whipping in sluggards to a division, carrying the

latest news back to the club. Men of all classes and various character

belonged to the society, broken scoundrels and wealthy statesmen, pious

enthusiasts and tired profligates, the remains of the Cromwellian

party, the forerunners of the Revolution, poets, aldermen, country

gentlemen, assassins, bound together in a common league of animosity

against Charles II and his government, not a few traitors to that bond

itself. Scarcely a name of note on the Whig side is absent from the

list, which contained Shaftesbury and Monmouth, Buckingham, Ireton,

Slingsby Bethel, Sir William Waller, the Spekes, the Trenchards, Howard

of Escrick, Sir Robert Peyton, Russell, Holles, and Algernon Sidney.

With the lapse of time the counsels of the club became more violent;

and the most infamous of political tracts, “An Appeal from the Country

to the City,” which spread deliberate and abominable lies to incite

the nation to rebellion, and urged the Duke of Monmouth to strike with

force for the crown, not because he had a right to it, but because

he had none, was written by Robert Ferguson, nicknamed the Plotter,

himself a member, Shaftesbury’s _âme damneé_.[421] More than a third

of the whole number of members of the club were concerned in the Rye

House Plot. Sixteen or eighteen took an active part in Monmouth’s

invasion. After the Revolution they obtained their reward. Shadwell,

the poet of the club, was made laureate in place of Dryden. Aaron Smith

became Chancellor of the Exchequer to King William. Lord Grey of Werke,

basest of traitors, was given office and an earldom. Sir John Trenchard

was made secretary of state. Dukedoms were conferred upon the Earls

of Bedford and Devonshire and a marquisate upon Lord Mulgrave. Ireton

became lieutenant-colonel of dragoons and gentleman of the horse to

the king. Oates was pilloried and pensioned. Speake, Ayloffe, Rouse,

Nelthrop, and Bettiscomb were hanged.[422]

In August 1679 the chance of the Green Ribbon Club seemed to have

arrived. After a hard game of tennis the king took a chill in walking

by the river-side at Windsor. Fever ensued, and a horrible fear that

Charles lay on his death-bed struck at men’s hearts. The cry rose

everywhere that he had been poisoned. The Duchess of Portsmouth was

accused of having done the black deed. Amazement and horror were

universal. People looked upon any ill that should happen to the king,

said Sir William Temple, as though it were the end of the world. The

privy council was obliged to take action to prevent an overwhelming

rush of inquirers into the royal bedchamber. Algernon Sidney returning

to town found the general apprehension such that, had the king died,

there was no extremity of disorder that might not be expected. “Good

God!” wrote Henry Savile from Paris, “what a change such an accident

would make! the very thought of it frights me out of my wits. God

bless you and deliver us all from that damnable curse,”[423] There

were indeed good grounds for the fears so poignantly expressed. The

Duke of York, who had been sent from the country in February, was

still beyond seas. Monmouth had returned from Scotland, puffed with

success in having pacified the Covenanters. Shaftesbury divided the

court and seemed to have the nation at his back. If the king died, he

was prepared to make a bold push for fortune. The second declaration

of Monmouth, published in the following reign, made mention of a

consult held at this time “for extraordinary remedies.” No copy of the

declaration can now be traced, but it was seen and the fact noted by

David Hume. That consult decided upon notable measures. Early in the

course of the next year Sir Robert Peyton was accused by Mrs. Cellier

and Gadbury the astrologer of treasonable practices, and was examined

before the privy council. Though he denied his guilt, he let it be

understood that the charge was not baseless and confessed to the House

of Commons that he had been intriguing with the Duke of York. His old

associates turned against him, and Peyton was expelled the House;

but his object was accomplished and he went over to the court side,

to find a reward for his perfidy in the favour of James. No definite

accusation was made against the heads of the popular party, but the

extent of the Whig plans became vaguely known. On the news of the

king’s illness preparations had been quickly made for insurrection.

Money was collected and old Cromwellian officers engaged. A large

force would have been in the field at a few days’ notice. Had Charles

died at Windsor the leaders of the movement were ready to seize the

Tower, Dover Castle, and Portsmouth, and to arrest the Lord Mayor and

those privy councillors who should offer to proclaim the Duke of York

king.[424]

The government was not idle in face of the danger. With the consent of

the king Sunderland, Halifax, and Essex, most unstable of triumvirates,

summoned the duke from Brussels. Leaving his wife and children, James

set out in disguise and reached Windsor on September 2 without being

recognised by more than two persons on the way. Charles received

him with admirably feigned surprise. The danger was past; Jesuits’

powder, the modern quinine, had already restored the king to the point

of eating mutton and partridges, and within ten days he was again

discussing important business with the French ambassador. Another

issue of events had been expected. If the worst had taken place, the

Lord Mayor and aldermen had concerted means to declare the duke their

sovereign. Fortunately for the nation the Whigs were deprived of the

chance to decide whether they or the government held the stronger hand.

On the contrary the hopes raised by the king’s illness brought on them

a serious rebuff. Once in England James, who had continually pressed

for his recall and thought his brother’s behaviour was driving the

country to ruin, shewed no desire to depart again. It was represented

to him that his absence was for the king’s advantage, and he consented

to leave; but on conditions, for Sunderland suggested that Monmouth,

whom his father’s danger made yet more arrogant and his uncle’s

unexpected arrival sulky and furious, should quit the country too.

James after a brief visit to Brussels took coach for Scotland, but

Monmouth, to the delight of the court party deprived of his office of

captain-general of the forces and his command of the horse guards, for

Holland. There was some thought of his attempting to refuse, but milder

counsels prevailed and he was persuaded that a willing submission

would serve to invest him in the eyes of the people with the character

of a martyr. The generalship was abolished and the business of the

office handed over to Sunderland. Yet another slight was put upon the

Whig party. Sir Thomas Armstrong, the intimate agent of Monmouth and

a fierce opponent of the Duke of York, was banished from the king’s

presence and court for ever.[425]

As the year 1679 wore away the disturbance of the kingdom seemed to

increase. A rising had been expected as the result of James’ return to

England, and alarms of the same nature were raised when the king paid

a visit to London after his recovery. Guards were set in Covent Garden

and Lincoln’s Inn Fields; barges and an escort two hundred strong

were in readiness to carry the royal party to the Tower in case of a

tumult; but no stir was made and the day passed quietly. Fears of the

vaguest character were abroad. “I am very confident,” wrote Charles

Hatton, “you will suddenly hear very surprising news, but what I am

unable to inform you as yet.” At the back of men’s minds the feeling

was growing that the Whigs could not attain their object except by

plunging the country into civil war.[426] The agitation became greater

than ever when at the end of November the Duke of Monmouth returned

without leave to England. He entered London at midnight to the sound of

ringing bells and by the light of a thousand bonfires, crackling almost

at the palace doors. His popularity seemed unbounded. Crowds followed

him in the streets and stopped passers to drink his health. Nell Gwyn,

cheered by the crowd as “the Protestant whore,” entertained him at

supper. He struck from his arms the bar sinister, which denoted the

maimed descent: it was a fashion among the royal bastards, for the Duke

of Richmond, Charles’ son by Louise de Kéroualle, who was thought to

have intentions on the queen’s throne for herself, had done the same,

and displayed the lions of England without diminution.[427] The king

was incensed, refused to see the pretender, deprived him of all his

offices, ordered him to quit London. Monmouth at length obeyed, but it

was to make a royal progress through the west of England, captivating

the people and laying the foundations of the support for his hapless

attempt against his uncle’s crown.[428]

Meanwhile the question arose when Parliament should meet. The elections

had not much altered the complexion of the House of Commons, but it was

noted that while the Whigs held their own in the counties and great

corporations, the court began to gain in many small boroughs.[429] On

the appointed day in October Charles first prorogued and then adjourned

Parliament till the following January. Shaftesbury attempted to force

the king’s hand by appearing in company with sixteen other peers to

present a petition that set forth the danger in which the monarch,

the religion, and the government of England lay, and their prayer

that his Majesty would make effectual use of the great council of the

realm. Charles replied he would consider it, and heartily wished that

all others were as solicitous as himself for the good and peace of

the nation. Three days later he shewed the meaning of his answer by

proroguing Parliament, without the advice of the council, to November

1680. He followed the stroke by summoning the Lord Mayor and aldermen

to his presence to enforce on them their duty of preserving the peace

and preventing ill-disposed persons from pursuing the ends of discord

under cover of petitioning. The surprise of the Whigs was intense. Only

one thing was left for them to do. They went on petitioning. Petitions,

prepared in accordance with Shaftesbury’s instructions, bombarded the

king from all over the country. A proclamation issued to denounce

merely had the effect of redoubling them. Charles’ own answers were

far more effective. The men of Wiltshire presented a petition as from

their county, but lacking the sanction of the grand jury were rated

as a company of loose and disaffected persons. The petitioners from

London and Westminster were told by Charles that he was the head of

the government and would do as he thought best; while to the Berkshire

gentlemen he replied, “We will argue the matter over a cup of ale when

we meet at Windsor, though I wonder my neighbours should meddle with

my business.” In one case alone Charles had the worst of a passage of

arms. When a citizen of Taunton offered him a petition, the king asked

how he dared do so? To which the man replied, “Sir, my name is Dare.”

The government was not behindhand in dealing with the situation. To

shew that the petitioners did not represent the country, an immediate

flood of counter addresses poured in, expressing confidence in the

king’s wisdom and abhorrence of the petitioners. Petitioners and

abhorrers divided the nation, and it was by no other godfather than

Titus Oates that the latter party, by a name famous in English history,

was christened Tory.[430] In this clamorous contest the king gained an

undeniable success. But success did not bring repose. Watchfulness was

more severely needed than ever. To calm suspicion the penal laws were

once more sharpened against the Catholics. Additional garrisons were

thrown into the Tower and Tilbury Fort. Portsmouth and Sheerness were

strengthened. London remained quiet, but the Christmas festivities were

suspected of unfortunate possibilities. There was talk of threatening

Shaftesbury with a prosecution.[431]

Instead of a prosecution Shaftesbury was drawn into a negotiation with

the court. The French ambassador learned with agitation that the earl

went secretly by night to Whitehall to discuss terms of settlement

with the king. Shaftesbury offered to let drop the Exclusion bill

and assure Charles an ample revenue for the rest of his life if he

would consent to a divorce and to marry a Protestant. The king should

make a show of resistance, to be overborne by apparently irresistible

pressure, the country would be satisfied, and peace return to the

land. Charles made believe that he viewed the notion with favour. Only

Lord Holles and very few others were admitted to knowledge of what was

passing. Soon Lauderdale, whose character and career were particularly

displeasing to the Presbyterians, was added to their number. Holles

drew back, then fell ill, and the scheme languished. Nevertheless

Shaftesbury hoped for success. Suddenly his hopes were shattered. On

January 29, 1680 Charles brought the matter to an end by declaring to

the council that, since the Duke of York’s absence had not produced

the desired effect, he was about to recall him to England. A royal

yacht left immediately for Edinburgh to convey him thence. On February

24 James arrived in London. The recorder of the city presented him

with a complimentary address. A sumptuous banquet was given the royal

brothers by the Lord Mayor. To crown the display a grand illumination

was arranged to testify the extraordinary joy all good subjects were

supposed to feel.[432] Shaftesbury might well harbour resentment at the

artifice of which he had been a victim.

In the “Appeal from the Country to the City” the Duke of Monmouth was

recommended by name to be the saviour of the people, since he who had

the worst title was like to make the best king. Between that, the

project of the queen’s divorce, and the pretence that Monmouth was in

fact the legitimate heir to the throne the minds of Whig politicians

wavered. The last idea had already risen to such prominence that, when

the Duke of York left the kingdom in March, a solemn declaration was

drawn from Charles that he had never married or made any contract of

marriage with any other woman than his wife, Queen Catherine, then

living.[433] For greater security the king’s signature was attested by

his councillors and the deed enrolled in Chancery. Shaftesbury had no

sooner emerged from his defeat of the midnight meetings at Whitehall

than the fable sprang into renewed life. Mysterious tales were bruited

abroad of a certain black box, which, if found, should contain the

contract of marriage between the king and Lucy Walters, mother of

the Duke of Monmouth. The box was said to be in the possession of

Sir Gilbert Gerard. If it did not contain the actual contract, at

any rate there lay in it a certificate from the hand of Dr. Cosens,

late Bishop of Durham, who had solemnised the marriage. Others had it

that one Dr. Clare, an eminent royalist parson, had read the service.

At least the ceremony had been witnessed by a judge and three other

persons of quality. The story attained such proportions that an

extraordinary meeting of the council was held. Sir Gilbert Gerard was

called to state what he knew. It appeared that he knew nothing. He

had never seen either contract or box, and had no knowledge whatever

of anything of the sort. The rumour was traced to a maternal aunt of

the late Lucy Walters: who had set her on could only be conjectured.

It cannot be doubted that the tale emanated from the office of the

Whig party. The authors of it were men of versatility. Sir Gilbert

Gerard’s statement seemed to have dissolved the myth, but within a

few weeks the appearance of a pamphlet entitled “A Letter to a Person

of Honour concerning the Black Box” brought the facts again into

question.[434] The whole account of the black box, affirmed the letter,

was a mere romance, an ingenious device of the Duke of York to sham

and ridicule the marriage, which indeed had no relation to it, for

with the exposure of the box the true history would at the same time

fall into discredit. It was notorious that assurance of Monmouth’s

legitimacy had been given to the Countess of Wemyss before she disposed

her daughter in marriage to him. In a letter from the king to Mrs.

Walters, intercepted by Cromwell’s officers, he had addressed her as

wife. And it was beyond doubt that she had actually received homage

from many of the royalist party. Many copies of this pamphlet were

scattered in the Exchange and dispersed throughout the kingdom. It had

an instant effect. On June 7 another declaration was published by the

king, condemning the libel, denouncing its falsehood, and forbidding

all subjects on pain of the utmost rigour of the law to utter anything

contrary to the royal pronouncement. The result was a second “Letter

to a Person of Honour,” in which Charles’ word was contradicted and

his motives traduced. All the former statements were repeated, some

arguments added, and the pamphlet ended by the modest proposals, “That

Parliament, being admitted to sit, may examine this affair, whereof

they alone are competent judges; and that the Duke of York may be

legally tried for his manifold treasons and conspiracies against the

king and kingdom,” which treasons were set out at length in thirty-four

articles.[435] To carry the war still further into the enemies’ camp,

on June 26 Shaftesbury appeared in Westminster Hall in company with

the Earl of Huntingdon, Lord Grey, Lord Gerard, Lord Russell, Lord

Cavendish, and nine commoners to present the Duke of York to the grand

jury as a popish recusant and to indict the Duchess of Portsmouth for

a national nuisance. With them went Titus Oates, invested as it were

with a representative authority on behalf of the Whig party. That both

charges were true is certain; but the action of the Whigs was dictated

by a purely partisan spirit, and Chief Justice Scroggs, judging the

fact so, discharged the jury before they could find a bill. Four days

later the attack was repeated in another court, and with the same

result. The judges only followed their chief’s example. James appeared

downcast and knew well what danger he ran. His adversaries seemed to

be throwing off the mask, strong in the support of which they were

assumed to be conscious. When it was told to Shaftesbury that the king

had railed at him and his party as seditious rebels, he replied aloud

and in public, “The king has nothing to do but take the pains to punish

rebels and seditious persons. We will keep with the bounds of the law,

and we shall easily find means by the law to make him walk out of the

kingdom.” There were not many who could boast of having the last laugh

in a game with Charles. Not many months after, when the law by which he

held was put into operation against the Whig leader, Charles heard that

Shaftesbury had accused him of suborning perjurers, and thereupon very

pleasantly quoted a Scotch proverb. Veiled in the decency of a learned

language it ran: “In die extremi judicii videbimus cui podex nigerrimus

sit.”[436]

Violent distempers were now feared on all sides. Partisans of the

Prince of Orange were intriguing keenly on his behalf. In the spring of

the year Charles was ill again, and the several parties hastily met to

concert action. “God keep the nation,” wrote Dorothy Sidney, “from the

experiment what they could have done.” The danger may be gauged by the

fact that, had the king’s illness continued, three hundred members of

the Commons were determined to remain sitting despite the prorogation.

A considerable movement was detected among the London prentices. The

date of May 29 had been fixed for a large meeting to be held under

pretence of burning the Rump; four or five thousand men had pledged

themselves to attend, but information was laid, the leaders arrested,

and the outbreak apprehended by the court did not take place.[437]

Those of the opposite party were no less alarmed. Their chief enemy,

James, was holding a brilliant court and still maintained himself

against them. Shaftesbury left town for Easter, fearing a personal

attack. Mr. William Harbord looked abroad to spy some safe retreat.

Sir William Waller fled to Holland, thence to Italy, pursued by the

watchful eye of the government. On the pretext of Catholic intrigues,

the city guards were doubled.[438] A penetrating observer might have

perceived a change drawing over the spirit of the times. While the

Whig attack, far from having spent itself, grew only the more fierce,

and a final struggle with authority seemed imminent, the nation had

begun to reflect upon the turn of events. If passion was exasperated

by the last bold step against the Duke of York, it shewed too the

extremity to which his opponents were driving. Thereafter could be no

thought of reconciliation: they must either ruin him or themselves

end in ruin. It was not without some justice that Charles I called

the English sober. As the future was dimly shaped to men in shadows

of high misfortune, the fear of open strife and loss of all they had

given so much to gain in recalling Charles II to the throne of his

fathers weighed more heavily upon them. Innate reverence for authority,

standing to the letter of its rights, returned in some of its ancient

force. Though they were willing to see the royal prerogative curbed,

there was no sympathy for those who would strike against its existence.

And in the party which fostered terror and maddened the nation by the

Popish Plot were not a few to whom this was the object, Independents

and other sectaries, fierce republicans who had fought through the

Civil War and might not be sorry at the chance of fighting through

another. It was felt that the least accident might throw everything

into confusion. People began at length to test the stories circulated

for their consumption. Tales “that Holborn should be burnt down and the

streets run with blood” were no longer accepted on the mere statement.

The Irish Plot, loudly denounced about this time by Shaftesbury, found

small credence except from the London mob, and even in London the busy

merchants who feared disorder exercised an influence of restraint. At

the end of July Sir Leoline Jenkins was able to write: “Letters from

several parts beyond the seas do tell us that we are represented there

as if we were already in a flame. God be praised! ’tis no such matter.

All things are as still and peaceable as ever they were, only we are

pelted at with impudent, horrid libels.” Evidently the English nation

was in no humour for a second civil war.[439]

The king met Parliament on October 21, 1680. James was again on his

way to Edinburgh, induced to withdraw himself by a promise of full

support, but inwardly persuaded that he was lost. Seven of the council

had favoured the journey, eleven were against it. “Since he has so many

friends for him,” said Charles, “I see he must go.” In spite of gay

hearts the royal prospect was not bright. The king had tried a bout

with the Whigs over the city elections, and was forced to accept their

choice; and the Duchess of Portsmouth, fearful of an attack on herself

and with a heavy bribe in her purse, had gone over to the side of his

enemies.[440] The session opened with turbulence almost unexampled

even in the hot times that had passed. For discrediting the Plot in the

last parliament, a member had been expelled by the Commons. He was now

followed by two others. Petitioning was voted to be the right of the

subject. Abhorrers were violently attacked. Charles had long expressed

his willingness for any compromise that should leave his brother the

title of king when he came to the throne, and offered Expedients,

the effect of which would be to take all power from the hands of

the sovereign. Similar proposals were made by others also. Halifax

suggested that the duke should be banished for five years, Essex an

association in defence of the Protestant religion, Shaftesbury would

still be satisfied by a divorce. Otherwise he stood firm for Exclusion.

James viewed the Expedients alike with horror, and the Commons rejected

them with insult. Once let a popish king have the title, it was said,

and he would take the power too. “Expedients in politics are like

mountebanks’ tricks in physic,” cried Sir William Jones. The bill, the

bill, and nothing but the bill, was the cry. Colonel Titus summed the

matter up neatly. “You shall have the Protestant religion,” he said,

“you shall have what you will to protect you, but you must have a

popish king who shall command your armies and your navies, make your

bishops and judges. Suppose there were a lion in the lobby, one cries:

Shut the door and keep him out. No, says another, open the door and let

us chain him when he comes in.” The metaphor became popular in verse:—

I hear a lion in the lobby roar;

Say, Mr. Speaker, shall we shut the door

And keep him out?—or shall we let him in

To try if we can turn him out again?[441]

On November 4 the Exclusion bill was introduced, heralded by

denunciations of James. The violence of the debates beggars

description. If swords were not drawn, their use was not forgotten.

The prospect of civil war was freely mooted. “The case, in short, is

this,” exclaimed Mr. Henry Booth, “in plain English, whether we would

fight for or against the law.” Sir William Jones pursued, “The art of

man cannot find out any remedy as long as there is a popish successor

and the fears of a popish king.” He was answered by Colonel Legge, a

personal friend of the Duke of York: “There has been talk in the world

of another successor than the duke, in a Black Box; but if Pandora’s

box must be opened, I would have it in my time, not in my children’s,

that I may draw my sword to defend the right heir.” On November 11 the

bill was passed, and four days later with a mighty shout was carried

to the Lords by Russell, followed by a great body of the Commons.

To signify the attitude of the city, he was accompanied by the Lord

Mayor and aldermen. At the debate which followed Charles was present.

He heard the passionate attacks of Shaftesbury, the grave force of

Essex’s oratory. He witnessed the treachery of Sunderland, who joined

his enemies. He heard Monmouth urge Exclusion as the only safety for

the king’s life, and broke in with a loud whisper, “the kiss of Judas.”

He saw Halifax rise to champion the right, and heard him speak fifteen

or sixteen times and carry the day by his inexhaustible powers of

wit, sarcasm, and eloquence. At nine o’clock in the evening, after a

debate of six hours, the bill was thrown out by sixty-three votes to

thirty.[442] It was a memorable victory.

The fury of the Commons exceeded all bounds. Supplies were refused.

Votes and addresses were passed against Halifax, against Jeffreys,

Recorder of London, against Lord Chief Justice North, against placemen

and pensioners, against the judges, against James. “No sooner does a

man stand by the king but he is attacked,” wrote the duke to William

of Orange. To the attack against Halifax Charles answered suavely

that “he doth not find the grounds in the address of this House to

be sufficient to induce him to remove the Earl of Halifax.” He told

Reresby: “Let them do what they will, I will never part with any

officer at the request of either House. My father lost his head by such

compliance; but as for me, I intend to die another way.” And Halifax

took occasion to say to Sir John: “Well, if it comes to a war, you

and I must go together.” A bill for a Protestant association for the

government of the country with Monmouth at its head was being prepared,

when on January 10, 1681 the king suddenly prorogued and then dissolved

Parliament, leaving twenty-two bills depending and eight more already

ordered. The next parliament was summoned for March 21, and according

to the old advice of Danby not in the capital, but at Oxford.[443]

Charles’ wisdom in this course cannot be questioned. Before the

last session Ferguson the Plotter had returned from concealment in

Holland. An agent of Essex was busy in London concerning “the linen

manufacture,” for which he had enrolled three or four hundred men and

spent as much as a thousand pounds. Hugh Speke sent down to the country

to have his horse ready. “Get him in as good case as you can,” he

wrote, “for God knows what use I may have for him and how suddenly.”

There is reason to think that Shaftesbury had been planning to place

Parliament under control of the city.[444] London had always armed

the Whigs with the possibility of support other than parliamentary.

The removal of Parliament to Oxford made it certain that the coming

struggle would be fought on ground favourable to the king. No sooner

was Charles’ determination known than Shaftesbury, Monmouth, and Essex,

together with thirteen other peers, presented a petition shewing that

evil men, favourers of popery and enemies of the happiness of England,

had made choice of Oxford as a place where the Houses would be daily

menaced by the swords of papists who had crept into the ranks of the

king’s guards, and making their humble prayer and advice that the

parliament should sit at Westminster as usual. “That, my lord, may

be your opinion,” returned the king to Essex; “it is not mine.”[445]

The Whigs promptly set to making the elections their own. Nothing was

omitted to secure their success. Instructions from the Green Ribbon

Club directed events in all parts of the country. Members bound

themselves to prosecute the Plot, to demand restriction of the king’s

power to prorogue and dissolve Parliament, to support the Exclusion,

the right of petitioning, the Association.[446] When the means of man

were exhausted, supernatural powers were called to assist. On the one

side and on the other were raised ghosts, who foretold doom to their

opponents. The city of London elected its old representatives. They

were begged to refuse supplies and assured that in pursuit of their

ends they should have the support of the citizens’ lives and fortunes.

A host of scribblers, libellers, and caricaturists poured into Oxford.

A rumour was spread that the city would be the scene of a massacre. The

Whig chiefs rode down attended by bands of armed retainers. Guards of

townsmen accompanied members from the boroughs. The Londoners appeared

in a great company with bows of blue satin in their hats, on which were

woven the inscription: “No Popery! No Slavery!” Tory crowds met them

at the gates, red-ribboned, brandishing clubs and staves, and crying,

“Make ready! Stand to it! Knock ’em down! Knock ’em down!” In the midst

of his life-guards, among whom Essex had failed at Charles’ polite

request to point out the creeping papists, the king drove from Windsor.

Information had come to hand of a plot to kidnap him at Oxford.

Measures were taken accordingly. A regiment was moved up to the Mews in

case of an attack on Whitehall. The constable of the Tower was advised

to hold himself in readiness. Attention was given to Lambeth Palace and

the forts on the Thames. The cannon at Windsor were looked to, and Lord

Oxford’s regiment was posted along the Windsor road, should Charles be

compelled to retreat. “If the king would be advised,” said Halifax, “it

is in his power to make all his opponents tremble.”[447] It was what he

had come prepared to do.

Since the fall of Danby, Charles had lived in a state of poverty.

Scarcely any supplies were furnished by Parliament. None came from

France. His resources were at one moment so low that he even thought

of recalling his ministers from the courts of foreign princes.[448] At

the same time thousands of pounds were being absorbed by the informers

against popish plotters, tens of thousands by the royal mistresses.

The treasury was in the hands of Laurence Hyde, second son of Lord

Chancellor Clarendon. That he was able to pay the way is a source of

wonder and admiration. Such a state of affairs could not last for

ever, and Charles had recourse to the mine whence he had drawn so much

wealth before. Though Louis XIV had gained his immediate object by

turning against his cousin, he felt as time went on that the tools

he used might destroy his own work. His constant desire was to keep

England in such a position that, if she would, she could not thwart his

plans. For this he had joined the Whigs against Danby. From the same

motive his ambassador supported Shaftesbury in his advertisement of

Monmouth and bribed not only members of parliament, but city merchants

and Presbyterian preachers. But there was a point beyond which he

could not follow this line. It would be as little to his interest to

see Charles’ authority overthrown and English policy directed by a

Protestant parliament as to contend with Charles adopting and leading

the same policy. Therefore in the autumn of 1679 Barillon had tried to

come to an agreement with Charles. He offered the sum of £200,000 for

three years but, attempting to get more than the king was willing to

give, found the proposal fall to the ground. Charles threw himself on

to the side of the allies against France and in July of the following

year concluded a treaty with Spain to resist the pretensions of Louis.

Alarmed by the violence of the Commons and realising that their

hostility to France could not be cured by gold, Barillon again broached

the subject. The king hung back until just before the dissolution of

the last parliament at Westminster and by skilful play obtained what he

wanted. A verbal treaty was concluded in the queen’s bedroom, between

the bed and the wall. Charles agreed to disengage himself from the

Spanish alliance and to prevent the interference of Parliament. In

return he was to receive from Louis an amount equivalent to twelve and

a half million francs in the course of the next three years. So close

was the secret kept that besides the two kings only Barillon, Laurence

Hyde, and the Duke of York had knowledge of the treaty.[449] Though

he was tight bound by it for the matter of foreign policy, Charles

had attained his object. Except for the advancement of his power at

home and to quicken the growth of English commerce he did not care

for foreign politics. So long as he could turn Louis’ ambition to his

own advantage he was satisfied. This the new treaty accomplished, and

although Louis too gained handsomely by it, he was obliged to confess

the victory not altogether his by the complete reversal of his policy

of the last four years in England. Charles met Parliament strong in the

consciousness of his independence.

The session that now opened gave little hope of a peaceful end. Meeting

on March 21, the Houses listened to a speech of studious moderation

from the throne. Charles promised consent to any means whereby under

a Catholic successor the administration should remain in Protestant

hands, but what he had already said with regard to the succession, by

that he would abide—there should be no tampering with that. There could

be no mistake as to his attitude. “I, who will never use arbitrary

government myself,” he said with a proud lie, “am resolved never to

suffer it in others.” Charles could well offer a compromise, for he

knew it would never be accepted. The two parties, it was said, were

like hostile forces on opposite heights. The Commons refused the

Expedients. They adopted the cause of a wretch named Fitzharris,

whose obscure intrigue, by whomever directed, was certainly most base

and most criminal, and tried to turn him into an engine of political

aggression. It was evident that they meant to force the king to abandon

James and recognise the Duke of Monmouth. Shaftesbury once more tried

negotiation. In conversation with Charles in the House of Lords he

pressed him in the public interest and for the peace of the nation to

accept the position and give way. The king returned: “My Lord, let

there be no self-delusion, I will never yield and will not let myself

be intimidated. I have the law and reason on my side. Good men will be

with me. There is the church,” and he pointed to where the bishops sat,

“which will remain united with me. Believe me, my Lord, we shall not be

divided.” It was an open declaration of war. On March 26 the Exclusion

bill was voted. Monday, March 28, was fixed for the first reading. On

Sunday the king busied himself with preparing the Sheldonian theatre

for the Commons, who complained that Convocation House was too small;

he viewed the plans, strolled among the workmen, congratulated himself

on being able to arrange for the better comfort of his faithful

subjects, and made all show of expecting a long session. That night his

coach was privately sent a stage outside Oxford with a troop of horse.

Next morning he was carried as usual to the House of Lords in a sedan

chair, followed by another with drawn curtains, seeming to contain a

friend. When the king stepped out his friend was found to be a change

of clothes. He had come to make his enemies tremble. At the last

moment an accident nearly wrecked the scheme. The wrong robes had been

brought. Hastily the chair was sent back for the robes of state, while

Charles held an unwilling peer in conversation that he might not give

the alarm. Then, when all was ready, he swiftly took his seat on the

throne and, without giving the Lords time to robe, summoned the Commons

to attend. As Sir William Jones was in the act of appealing to Magna

Carta as the safeguard of the subject’s right, the Black Rod knocked at

the door. The Commons thronged eagerly through the narrow passages to

the king’s presence, the Speaker leading with Russell and Cavendish at

either hand. They thought they had come to receive Charles’ surrender.

When the tumult was calmed the king spoke; “My lords and gentlemen,

that all the world may see to what a point we are come, that we are

not like to have a good end, when the divisions at the beginning are

such, therefore, my Lord Chancellor, do as I have commanded you.” Finch

thereupon declared Parliament, which had lived for exactly one week, to

be dissolved, and Charles immediately left the throne. As he reached

his dressing-room he turned to a friend, his eyes gleaming, with the

remark that it was better to have one king than five hundred. He made a

short dinner and, leaving by the back stairs, drove off in Sir Edward

Seymour’s coach to where his own was waiting. That night he was in

Windsor.[450]

The dissolution scattered the opposition as a gust of wind the leaves

of a tree in autumn. Shaftesbury in vain attempted to hold the Houses

together. His followers in the Lords remained for an hour under

pretence of signing a protest, while messengers were dispatched urging

the Commons to fulfil their promises. But they were too much cowed

by the stroke. They feared “if they did not disperse, the king would

come and pull them out by the ears.” Presently they fled. In a quarter

of an hour the price of coaches in the town doubled. Oxford had the

appearance of a surrendered city disgorging its garrison.[451] And with

their flight the history of the Popish Plot comes to an end. On that

the Whigs had staked all, and they had lost. The country was alienated

by their violence and rapacity and fearful of the horrors of civil

war. Once deprived of their means of action in Parliament they could

do nothing but go whither the king drove them, to plot frank rebellion

without the shadow of legality. Up to this point Shaftesbury had led

a bold attack, not without good hope of success. Now he was left to

sustain the defence, stubborn and keen, but in the end incapable of

avoiding ruin. The tide had at last turned, and Charles, who since the

first appearance of Oates had borne with unexampled equanimity a series

of the most fierce assaults, found himself upon a pinnacle of triumph,

his enemies lying crushed beneath his throne until he should goad them

to complete disaster. Had he struck twelve months sooner the country

would in all likelihood have been on their side; but he had gauged the

temper of his people correctly and knew now that they would be with

him. The history of these years is in brief the history of Charles

II’s reign, the history of a long struggle for the power of the crown.

In the panic of the Popish Plot and the wild agitation of the Exclusion

bill that struggle, exasperated by the Dover treaty and the Catholic

intrigues, came to a head. Its consequence was the Rye House Plot,

the perfection of Whig failure. In that struggle too the conflicting

principles found their absolute exponents in the two wittiest and two

of the most able statesmen in English history, each gifted with a

supreme political genius, each exclusive of the other, each fighting

for personal ascendency no less than for an idea, for principle no

less than for power, Charles II and the Earl of Shaftesbury. Without

a grasp of this the history of the times cannot be understood, and

for this reason some historians have found in them, and more have

left, a mere tangle of helpless chaos. Of the two Charles had the

better fortune in his life, Shaftesbury after death. For Shaftesbury,

ruined, disappointed, embittered at the loss of all his hopes, was

yet the father of the Revolution: all that Charles had gained was

thrown away by his less worthy brother. But the personal triumph of

the king was unique. While to the world he seemed a genial debauchee,

whose varied talents would have fitted him equally to be a chemist,

shipwright, jockey, or dancing-master, the horseman, angler, walker,

musician, whose energy tired while his company delighted the most

brilliant of English courts, more admirable than Crichton had he not

been more indolent, he laboured in an inner life at a great endeavour

and, chiefly by letting himself be misunderstood, achieved it.[452]

He restored the crown to its ancient place in the state, whence his

father and his grandfather had let it fall. He gave Parliament just

enough rope to hang itself.

TRIALS FOR TREASON

CHAPTER I

MAGISTRATES AND JUDGES

The trials of the Popish Plot have remained the most celebrated in the

annals of our judicial history. Their reports occupy three volumes of

the State Trials and more than two thousand pages of crowded print.

They contain twenty-two trials for treason, three for murder or attempt

to murder, eleven for perjury, subornation of perjury, libel, and other

misdemeanours. They gave rise to proceedings in Parliament against two

Lord Chief Justices, and against two judges of the Court of King’s

Bench. They are a standing monument to the most astounding outburst

of successful perjury which has occurred in modern times. It is due

to their connection with these trials that posterity has branded the

names of three[453] judges with lasting infamy, and that fourteen men

executed as traitors have earned the reputation of martyrs. Not only

are they filled and brimming with the romance of life and death, but

there lies locked within them the kernel of that vast mass of treason,

intrigue, crime, and falsehood which surrounds and is known as the

Popish Plot. Strangely enough, therefore, they have been little studied

and never understood.

The consequence of this has been unfortunate. Instead of going to

the fountain-head for information, historians have for the most part

contented themselves with relying on accounts supplied by writers on

the one side or the other, sources which are always prejudiced and

usually contradictory. To extract truth from the mutual opposition

of two lies is an ingenious and useful task when evidence is not

forthcoming at first hand; but it is a method less accurate than the

examination of original authorities when these can be consulted. Nor is

there only an obligation to devote attention to the trials themselves;

they cannot be judged alone: and historians have not escaped error

when, although they have studied the trials immediately within view

from the actual reports, they have neglected to read them in the light

of the preceding practice of the English courts of law, and to ground

their opinions upon the whole judicial system which gave them their

peculiar character, and of which they were an inseparable part. To

appreciate properly the significance of the trials they must not be

taken apart from their setting, and it is necessary before passing

judgment upon the events recorded in them to review the past which lies

behind them and the causes which influenced their nature.

The judicial system of England in the latter half of the seventeenth

century was very different from its descendant in the twentieth. Its

nature had been determined by the course of political events which

moulded it into a form as unlike to that of two centuries after as the

later Stuart constitution was to the Victorian.

Throughout the sixteenth and seventeenth centuries, from the time

when Henry VIII broke the political power of Rome in England until

the day when the last revolution destroyed the influence of the

Jesuits in English politics, the English state lived and developed

in an atmosphere charged with the thunderstorm and resonant with the

note of war. War against foes within the land and without was the

characteristic condition of its existence. Besides conflict with

foreign powers, war and rebellion, constant in Scotland and almost

chronic in Ireland, may be counted in eight reigns three completed

revolutions, ten[454] armed rebellions, two great civil wars, and

plots innumerable, all emanating from within the English nation

alone. From beyond seas enemies schemed almost without ceasing to

overturn religion or government or both as they were established at

home. There is no need to wonder that the English government was a

fighting machine. In this light it was regarded by all men. Where

government is now looked on as a means of getting necessary business

done, of ameliorating conditions of life, and directing the energy of

the country to the highest pitch of efficiency, two centuries and a

half ago it was anxiously watched as an engine of attack or defence

of persons, property, and conscience. The first duty of government

is to govern; to guard the tranquillity of the society over which it

is set, to anticipate the efforts of malignants against the social

security, and to punish crime, the commission of which it has been

unable to prevent. This is at all times a heavy burden; but its weight

is redoubled when private gives way to public crime, and the criminal

turns his strength against the state itself. For acts directed against

society in its corporate being are fraught with far more danger than

those which touch it indirectly, however great their magnitude, not

only because the consequences of the successful act in the former

case are vital, but also because the restless class from which the

actors are drawn commands a higher ability than that containing men to

whom crime is a means to private gain, and is endowed with a reckless

hardihood which springs from the certainty of detection and retribution

in case of failure. In the seventeenth century this class was numerous,

and the difficulties of guarding against it great. The state was always

in danger, the government always battling for its own life and the

safety of society, the morrow always gloomy for the success of their

cause. To be for or against the government was the shibboleth which

marked the peaceable man from the revolutionary. To be “counted to be

a very pernicious man against the government”[455] was sufficient to

weigh against the credibility of a witness before the highest tribunal

of the kingdom. Therefore it was that far wider scope could then be

allowed to acts of administration than ought to be allowed in peaceful

times, and that the government might be sure of support for its bad as

well as its good measures when they appeared to be directed towards the

doing of rough justice on individuals whose presence was felt to be

a common danger. It could be assumed that the means adopted for this

purpose would not be too closely scrutinised.

Government was from necessity a fighting machine. But it was a machine

so ill adapted for fighting that its action, far from attaining to

mechanical precision and gravity, was coarse, spasmodic, questionable,

and was driven to atone for want of ease and regularity by displaying

an excess of often ill-directed energy. The means ready to the hand

of the administration were scanty. Without an army, without police,

without detectives, the order maintained in the country practically

depended upon the goodwill of the upper and middle classes. The police

of the kingdom consisted of watchmen in the cities and boroughs; in

the country, of parish constables. Both were notoriously inefficient.

The type of watchmen with which Londoners were familiar in the opening

years of the seventeenth century is sufficiently known from the

character of Dogberry. About the same time the parish constables were

distinguished for being “often absent from their houses, being for

the most part husbandmen, and so most of the day in the fields.”[456]

As late as 1796 the watchmen of London were recruited by the various

authorities from “such aged and often superannuated men living in

their respective districts as may offer their services,” and were

recognised to be feeble, half-starved, lacking the least hope of

reward or stimulus to activity.[457] Without an excessive strain on

the imagination it may be conjectured that in the intervening period

the police system did not rise to a high pitch of perfection. In the

capital the king’s guards and the city trained bands were available

forces, but in the provinces the only body on which reliance could

be placed for the execution of justice was formed by the sheriff’s

officers or in the last resort the cumbrous militia. Even the militia

could not be maintained under arms for more than twelve days in the

year, for although the force of any county might be kept on foot for

a longer period by the king’s special direction, the Lord Lieutenant

had no power to raise money with which to pay the men.[458] The only

practicable instrument of government for the defence of the state

was the judicial system of the country. As there was no method known

for the prevention of crime by an organised force of police, and no

deterrent exerted on would-be criminals by the existence of a standing

body of soldiery, the only possible weapon to be used against them was

to be found in the law courts. It followed that the judges and justices

of the peace not only fulfilled the judicial and magisterial functions

which are known to modern times, but constituted as well an active arm

of the administration.

The justices of the peace combined in their persons the characters,

which have since been distinguished, of prosecutor, magistrate,

detective, and often policeman. They raised the hue and cry, chased

malefactors, searched houses, took prisoners. A justice might issue

a warrant for the arrest, conduct the search himself, effect the

capture, examine the accused with and without witnesses, extract

a confession by alternately cajoling him as a friend and bullying

him as a magistrate, commit him, and finally give damning evidence

against him at his trial. Such was the conduct of Alderman Sir Thomas

Aleyn in the case of Colonel Turner, tried and convicted for burglary

in 1664.[459] The alderman examined Turner in the first place, and

charged him point-blank with the offence. He then searched his house.

In this he was unsuccessful, but the next day, owing to information

received, tracked the colonel to a shop in the Minories, where he

was found in possession of money suspected to be part of the stolen

property.[460] Aleyn carried him to the owner of the stolen goods, upon

whose engagement not to prosecute Turner confessed that he knew where

the plunder was concealed, and by a further series of artifices induced

him to surrender, through the agency of his wife, part of the missing

jewelry. On this he committed both Colonel and Mrs. Turner to Newgate,

and finally appeared at their trial to tell the whole story of his

manœuvres in considerable detail and with the greatest composure.[461]

Twenty years later, as Sir John Reresby was going to bed one night,

he was roused by the Duke of Monmouth’s page to play a similar part.

Mr. Thynne had been shot dead as he was driving in his coach along

Pall Mall,[462] and Sir John was summoned to raise the hue and cry. He

went at once to the house of the murdered man, issued warrants for the

arrest of suspected persons, and proceeded to investigate the case.

From a Swede who was brought before him he obtained the necessary

information, and set out to pursue the culprits. After giving chase all

night and searching several houses, he finally took the German officer

who had been a principal in the murder in the house of a Swedish doctor

in Leicester fields at six o’clock in the morning, and was able to

boast in his diary that he had performed the somewhat perilous task of

entering the room first and personally arresting the captain.[463] On

another occasion Reresby deserved well of the government by his action

in an episode connected with the Rye House Plot. Six Scotchmen had been

arrested and examined in the North, and were being sent in custody

to London by directions of one of the secretaries of state. Sir John

however was led to suspect that the examination had not been thoroughly

conducted and stopped the men at York. He examined them again and

extorted confessions of considerable importance, which he was then able

to forward to the secretary in company with the prisoners.[464]

Instances to illustrate the nature of these more than magisterial

duties might easily be multiplied. The agitation caused by the Popish

Plot was naturally a spur to the activity of justices throughout the

country. Especially was this the case in the west of England, where

the Roman Catholics had their greatest strength. In Staffordshire Mr.

Chetwyn, in Derbyshire Mr. Gilbert, in Monmouthshire Captain Arnold

were unflagging in their efforts to scent out conspiracy and popery. In

consequence of information laid before the committee of the House of

Lords Mr. Chetwyn, in company with the celebrated Justice Warcup,[465]

searched Lord Stafford’s house. Tart Hall, for a secret vault in which

some priests were said to be concealed. The search was unsuccessful,

but the vigorous manner in which it was conducted is testified by

Chetwyn’s furious exclamation “that if he were the king, he would

have the house set fire to, and make the old rogues come forth.”[466]

The same magistrate also would have assisted in the work of obtaining

Dugdale’s confession, had he not been absent in London at the time.[467]

To Henry Gilbert, justice of the peace for Derbyshire, belonged the

merit of tracking, arresting, and obtaining the conviction of George

Busby, Jesuit, for being a Romish priest, at the Derby Assizes of

1681.[468] The evidence which Gilbert gave is very instructive as to

the scope of a magistrate’s duty.[469] As early as January 1679 William

Waller had come to search Mr. Powtrel’s house at West Hallam, where

the Jesuit was said to be concealed, but was dissuaded on Gilbert’s

assurance that he had already been over the place several times in

vain and believed Busby to have escaped from England. Since then

however trustworthy information had come to hand that he was still

in hiding. Gilbert first reconnoitred the house under the pretext of

buying wood for his coal-pits. He then went away, returned with a

constable and five or six other men and, fortified by the news that

Busby had been seen in the garden only a few moments before, conducted

a thorough search, which resulted in the discovery of various priestly

vestments, an altar, “a box of wafers, mass-books, and divers other

popish things.”[470] This was on March 1, 1681. A fortnight later, in

spite of some opposition from Mr. Justice Charlton, who was on circuit

for the spring assizes, Gilbert sent the prize, which by law should

have been burnt, back to West Hallam, in the hope of lulling the priest

to a false security. On the same night he went to gather the fruits of

his manœuvre. Posting men round the house, he made a noise and then

waited to see “if they could spy any light, or hear any walking in the

lofts or false floors.”[471] A constable and further assistance was

summoned, and about midnight Gilbert tapped at a window and demanded

admittance. It was refused, and after a proper interval the constable

broke in the door and the whole party entered the house. The priest’s

chamber was found in disorder; the fire had been lately extinguished,

the bedclothes were lying about the room in heaps, and the mattress,

which had been turned, was cold on the top, but warm underneath. This

was the prelude to a thorough examination of the house. The spies in

the garden had heard the priest’s footsteps near a corner under the

roof as he retreated to his hiding-place. From one until ten in the

morning of March 16 the search was carried on, Gilbert tapping on the

plaster inside with his sword and the others meeting him by knocking

on the tiles and walls from the other side. Hope was nearly abandoned

when the searchers were spurred by the jeers of the people of the house

to one last effort. At length they were rewarded. Sounding the roof

inch by inch, they came upon a spot near some chimney stacks where the

knocks from the two sides did not tally; breaking open the tiles, they

discovered a priest’s hole, and in it Busby, whom Mr. Gilbert forthwith

bore off in triumph and committed to Derby gaol.

These exploits were no doubt typical of the range of activity common to

busy justices of the peace throughout the kingdom. Important business

passed through their hands, and they felt their position likewise

to be important. They were an energetic body of men and spared not

themselves, nor their neighbours, nor those against whom their action

was directed in the execution of their duty as government officials.

Each was sure to be in his way a local magnate, and thus the influence

which the government exerted on the justices was through them spread

widely over the country. Well known among provincial magistrates, and

still more active than the two above mentioned, was Captain Arnold,

whose name appeared in the commission of the peace for Monmouthshire.

It was this Arnold who in 1679 assisted Dr. Croft, Bishop of Hereford,

in his attack on the Jesuit college at Combe, near Monmouth. The

college was dispersed and ten horse loads of books, seized in it, were

removed to the library of Hereford Cathedral.[472] In December of the

previous year he had been instrumental in the arrest of Father Pugh,

formerly of the Society of Jesus, and in the seizure of papers and

valuables belonging to Hall, another member of the society.[473] But

Arnold exhibited something more than the zeal proper to an energetic

and business-like justice. He was a keen adherent to the Whig and

extreme Protestant party. In addition to the usual government reward

of £50 for the apprehension of a Jesuit, he offered £200 from his own

resources for each capture.[474] He made friends with the missioners

and then procured their own dependents to give evidence against them.

He armed bodies of servants to assist him in his expeditions, and

brought the unfortunate priest whom Oates had named as prospective

Bishop of Llandaff triumphantly into Monmouth at the head of a dozen

horsemen.[475] Chief among his performances was the capture of two

well-known Jesuits, David Henry Lewis and Philip Evans, popularly

dubbed Captain. Lewis was taken by Arnold in person, Evans through

his agency. Against both he produced the witnesses and managed the

evidence.[476] Both were convicted of high treason under the statute

of Elizabeth, for being priests in orders received from the see of

Rome. Evans was executed at Cardiff on July 22, Lewis at Usk on

August 27, 1679.[477] In the summer of 1680 Arnold’s name leaped into

notoriety in London, when on July 16 John Giles was brought to the

bar at the Old Bailey “for assaulting and intending to despatch and

murder John Arnold, one of his Majesty’s justices of the peace.”[478]

This incident however, which raised Arnold’s importance so high with

the Whig party that his popularity bade fair to rival even that of the

murdered Sir Edmund Godfrey,[479] affords strong grounds for doubting

the candour of motive in his official alertness; for there is reason

to believe that no attempt whatever was made upon his life, and that

the whole affair was trumped up in a most discreditable manner with

a view to establishing more firmly the reputation of the Protestant

party and the guilt of the Roman Catholics.[480] One more, and this

again a characteristic instance, may suffice to illustrate the

varied, almost intriguing, nature of a magistrate’s position and the

inquisitorial side which did not completely disappear from his duty

until far into the nineteenth century.[481] At Lord Stafford’s trial

the three justices who had examined Dugdale immediately after his

arrest in December 1678 were called by the prisoner to prove that the

witness had then absolutely denied all knowledge of the Plot.[482] To

rebut this evidence the managers of the prosecution called William

Southall, coroner of the county of Stafford. This man, who was not

even a magistrate and occupied the least judicial position known to

the law, had taken the opportunity of some legal business which was

to be transacted between a cousin of his and Dugdale to undertake a

little private examination of the latter on his own behalf in the hopes

of obtaining information about the Plot. According to his own account

Southall acquitted himself with some skill and, by assuming a knowing

air as if convinced of Dugdale’s guilt and playing upon his hopes of

pardon and reward, managed to extract from him a material confession.

With this he repaired, not to the justices of the peace by whom Dugdale

had originally been examined, but to three different magistrates, and

in their company was present the next day at a detailed examination of

Dugdale, who then swore to nearly the same evidence as he now gave at

the trial of Lord Stafford.[483] Whether this story was true, or, as

is suggested by the ease of Southall’s success where others naturally

better qualified had failed, the interview and its result was arranged

beforehand between the two men, is at this point immaterial; for honest

or fraudulent, the coroner’s behaviour was accepted as a matter of

course, and without the least hint that there was any irregularity

in the action of an inferior official going behind the backs of his

superiors, and finally transferring so delicate a matter out of their

cognisance altogether into the hands of a third party.

Such were the functions of the justices of the peace in the seventeenth

century, and so wide was the reach of the magisterial arm stretched

out as a weapon in the service of the administration of government.

And if the justices filled so important a position, still more

important was that assumed by the king’s judges. The justices were able

administrators, dealers of small mercy to the evildoer, guardians of

the peace in the name of which their commissions ran; but the judges

took a place in the foremost rank as great officers of state. The

character of their office had been determined by the famous conflict

between James I and Lord Chief Justice Coke which came to a head in

1616 and ended in Coke’s dismissal.[484] The Chief Justice’s endeavour

had been to erect the bench into an independent tribunal, founded on

the ruins of broken agreement between king and Commons, and occupying

the position of arbitrator and guardian of the constitution midway

between the two. To the king and to Bacon, who advised him, this seemed

intolerable; to James, because the ideal of absolutism which guided

his mind could not admit in the state a constitutional oracle other

than himself; to the Attorney-General, because his liberal instincts,

wide statesmanship, and knowledge of political requirements made

clear the impracticable nature of Coke’s ideas, the bonds of crabbed

technicality with which they sought to shackle the future, their

essential conservatism. Coke’s parchment knowledge, too good for James,

was not good enough for Bacon. If Bacon inclined towards administrative

absolutism, and Coke represented in the struggle the majesty of the

law, assuredly the law for which the Chief Justice fought, for ever

seeking guidance in the records of the past, was unfit to mould the

future of a great nation. So when Coke fell, characteristically

enough, over a sordid squabble into which a question of principle was

inappropriately dragged, his fall demands our sympathy perhaps, but

hardly our regret. Regret at a victory in the personal cause of the

monarch and the check given to the forward march of constitutional

progress is profitless. Between the ideas of Bacon and Coke there was

no middle course open at the moment when a choice became necessary.

It was impossible to avoid the conclusion that the judges must either

become an independent power in the state, an irresponsible tribunal

to which constitutional questions of the highest importance should

be referred for decision in strict accordance with the rules of the

Court of King’s Bench, or be content to remain in subservience to the

crown, supporters of the king’s prerogative, and administrators of

his policy. The expedient, which has since made the way plain, of the

constitutional supremacy of the Commons of England was then unborn, and

as yet in the light of practical affairs inconceivable. The Lord Chief

Justice, “toughest of men,” and too stubborn to yield, was broken; but

his brethren on the bench gave way and offered assurances of their

good conduct for the future and of their devotion to the royal will.

James took the opportunity of the lecture which he read to the judges

in the star chamber to compare their behaviour in meddling with the

prerogative of the crown to the atheism and blasphemy committed by good

Christians in disputing the word of God.

Thus the judges became, according to Bacon’s wish, “lions, but yet

lions under the throne,” and carried themselves very circumspectly

not to “check or oppose any points of sovereignty.”[485] Of their

regularity in this course there can be no doubt, for if any lapsed

into forbidden ways, a judge he speedily ceased to be. His appointment

was _durante beneplacito_[486] and revocable at the will of the king;

and the king took full advantage of his power. The example offered by

the case of Coke was not left long in isolation. The government was

engaged in the hopeless attempt to uphold the constitution of the Tudor

monarchy at a time when the nation had outgrown it, and had opened

a war to the death with the progressive tendency of Parliament. In

such a struggle the judges were the king’s strongest weapon, and as a

weapon that turns uselessly in the hand, the recalcitrant judge was

discarded without scruple. When the better class of judges questioned

the legality of acts of government they met with the same fate as

their rugged predecessor. Under Charles I two Lord Chief Justices were

dismissed and Chief Baron Walter was suspended from office. Judicial

offices of consequence were filled with “men of confidence,” men who

enjoyed the confidence of the king and quickly lost that of every one

else.[487]

In their support of the crown by technical legality and practical

injustice the courts lost all repute as temples of the law. Even that

high royalist, Lord Clarendon, recognised that reliance upon such

means was a cause of weakness, not of strength, and that men ceased to

respect judicial decisions when they were used to cloak the designs of

government. “When they saw,” he writes, “in a court of law (that law

that gave them a title to the possession of all they had) reason of

state urged as elements of law, judges as sharp-sighted as secretaries

of state, and in the mysteries of state, ... they had no reason to

hope that doctrine, or the promoter of it, would be contained within

any bounds. And here the damage and mischief cannot be expressed that

the crown and state sustained by the deserved reproach and infamy

that attended the judges; there being no possibility to preserve the

dignity, reverence, and estimation of the laws themselves but by the

integrity and innocency of the judges.”[488] To the thorough supporter

of the administration the matter appeared in a different light. When

the two dissenting judges gave way under pressure and adhered to the

report of the majority in favour of ship-money, they were told by Lord

Wentworth that it was the greatest service the legal profession had

rendered to the crown during this period.[489]

For good or evil the work of reducing the bench to an arm of the

administration had been done, and from this political degradation it

did not recover for nearly three-quarters of a century, until William

III was seated on the throne and the judges became independent of the

crown.

The stirring events of the great rebellion, the Protectorate, and the

Restoration, which so profoundly affected the life and institutions of

the nation in other ways, touched the bench but slightly. In the early

months of the Long Parliament a resolution was passed by both houses of

Parliament to the effect that the judges’ appointments should be for

the future _quamdiu se bene gesserint_, and on January 15, 1641, the

king gave effect to this by a declaration that they should no longer

hold office at the pleasure of the crown but during good behaviour. For

twenty-four years the improvement was maintained in theory; in practice

the old system kept its hold unshaken. During the short remainder of

Charles I’s reign the judges were concerned on only two occasions in

affairs of state. These were however enough to demonstrate that the

change in the manner of their appointments had by no means the result

of rehabilitating the character of the bench and restoring to it the

quality, which it had long lacked, of independence. One of the first

acts of the Long Parliament, after dealing with the vital question

of ship-money, was to turn upon the judges who had lent the weight

of their names to the decision which pronounced its legality. Finch

was violently attacked as a traitor in the House of Commons, and his

impeachment voted with scarcely a dissentient voice. The Lord Keeper

preferred the path of safety to that of dignity and fled to Holland

on board a royal vessel, leaving the impeachment to be formally

concluded in his absence. At the same time proceedings were commenced

against six other judges who had sat at Hampden’s trial.[490] The

effect of this was immediate. Only once again did the judges come into

prominence before the outbreak of the Civil War. Scarcely five months

after Finch’s impeachment the House of Lords demanded their opinion

whether or no the articles against Strafford amounted to making him

guilty of treason. Without hesitation they replied unanimously that

upon the articles which the Lords had voted to be proved it was their

opinion that the Earl of Strafford did deserve to undergo the pains

and penalties of high treason by law.[491] Not only was their conduct

in delivering this extra-judicial opinion decidedly irregular,[492]

but their decision was in flagrant opposition to the clearest dictates

of justice and rules of law, for the accusations against Strafford

cannot be regarded as tantamount, or even approaching, to a substantial

charge of treason.[493] The fault lay not in their intelligence, but

in the system which had made their honesty an asset in the treasury of

government, and had robbed them of their ability to judge facts in the

light of law and reason without reference to principles of statecraft

or the struggle of parties. It was not upon the merits of the case

that their decision was based now that it was unfavourable to the

administration, any more than their favourable decisions had been based

upon the merits of cases when the administration was in power: the

only difference was that formerly they had feared dismissal from the

service of an angry sovereign as the result of an independent opinion,

whereas now they feared impeachment at the hands of the angrier Commons.

Under the Commonwealth and the Protectorate the bench fared no better.

In October 1649 all judges and other officers of the law, down to the

very clerks of the courts, who had shown themselves hostile to the

Parliament and in sympathy with the monarchy, were summarily dismissed,

and their posts filled by men in whom trust could be reposed. Even

this was not sufficient. In affairs of state justice was at a still

greater discount under the Protectorate than under the monarchy.

The cause of right was pleaded in vain when it came into collision

with the power and plans of the Protector. “For not observing his

pleasure” judges were rebuked, suspended, dismissed. Special judicial

commissions were appointed to do his work; obnoxious attorneys and

critical counsel were imprisoned.[494] The jury which acquitted Lilburn

after “the furious hurley-burleys” of his second trial were sharply

examined on their conduct by the Council of State.[495] Moreover the

new appointments to the bench in spite of all care were not entirely

satisfactory to Cromwell’s government. The judges still exhibited a

bent which must have been far from pleasing to the republicans. Sir

Matthew Hale withdrew as far as possible from all political trials and

refused to sit on Penruddock’s trial after the collapse of the rising

at Salisbury.[496] Surely it is this rather than the respectability

of their characters that should explain how it came about that at the

Restoration nine out of the fifteen republican judges then in office

were found acceptable to the new government.

The character of the bench was no more altered by the Restoration

than by the rebellion. If the traditions of forty years had clung too

closely to be shaken off by those who might perhaps wish to be rid of

them, they were not likely to be removed ten years later by those whose

interest it was to retain them. The only practical difference was that

the judges, whose duty as partisans of the government had been sealed

by time and recognised by all who were concerned in the government,

could now return to their more natural sphere as servants of the crown

as well. Thenceforward until the end of the Stuart monarchy they were

indispensable as allies of the king, protectors of the administration,

shining examples of loyalty well applied and labour serviceably

directed. They possessed moreover the signal advantage of being able to

enforce the example which they inculcated. Those who did not obtained

an evil reputation at court; and Sir Matthew Hale was looked at askance

as one who was suspected of not lending a whole-hearted support to the

government.[497] Even the theoretical advantage which had been gained

by the Long Parliament now disappeared. Charles II took advantage of

the lengthy prorogation of 1665 quietly to reintroduce appointments “at

the good pleasure” of the crown.[498]

There was however some change for the better. A large majority of the

nation was for the first time for thirty years united in sympathy with

the government. The universal desire was for peace and stability.

The great constitutional questions which had rent the kingdom and

distracted the bench lay for the moment at rest. Government was no

longer divided against itself; what was now found in opposition was

not a combination of popular feeling with constitutional principle, to

crush which the law must be strained by a serviceable judiciary, but a

discredited party of fanatics and dissenters, the dregs of a defeated

rebellion, against whom the law could be directed legally and to the

satisfaction of the vast majority of the king’s subjects.

The demand therefore for that cast of mind which under Charles I had

been the peculiarity of a successful judge no longer existed for

Charles II. When definitions of law were no longer needed to support

the crown in opposition to the other legitimate elements of the

constitution, and when the government was in close accord with the

people, there was no temptation to subject the law to such strains

as it had formerly been made to bear in the effort to galvanise into

life a system which had already died a natural death. Perhaps it was

less that judges had become more scrupulous than that the objection to

their scruples had disappeared. To whatever cause they were due, it

is certain that the reign of Charles II was marked by the renewal of

decisions which must have been obnoxious to the government. No doubt

these are not to be found in particular cases which were regarded as

of high consequence, but the tendency is perfectly visible, and in

one instance at least proved to be of profound importance. This was

the trial of Penn and Meade in 1670, for by the proceedings which

arose from it was finally established the principle that a jury has

an absolute right to give such a verdict as it thinks proper without

being open to question therefore by any other person or authority

whatsoever.[499] The Quakers had been indicted for an unlawful

assembly, and the jury before whom they were tried, in spite of

repeated direction and shameful abuse from the Lord Mayor and the

Recorder, found a verdict of not guilty. For this the court sentenced

the jurymen to a fine of forty marks apiece and imprisonment until the

fine was paid. Bushell, the foreman, and his fellow-jurors obtained a

writ of habeas corpus, and the point was argued at length on the return

to the writ. Ten judges out of twelve affirmed the absolute discretion

of the jury to believe or disbelieve the evidence given according to

the dictates of conscience, and not only were the jurymen discharged

from custody without paying the fine, but no attempt has ever been made

since to contest the principle thus established.[500]

One further instance may be noted. In 1675 a consultation of all the

judges but two was held to decide a case which was submitted to them

by the Attorney-General. A great riot had been made a month before

by the weavers’ apprentices in various parts and suburbs of London

by way of protest against the increased introduction of looms into

their trade; the looms had been broken, a large amount of property

destroyed, and several persons injured. The Attorney-General now wished

to indict the rioters for high treason; but the judges were divided,

five for, five against the opinion that treason had been committed,

and in spite of the evident anxiety of the government to proceed

against the apprentices on the graver issue, the Attorney-General had

to be content with laying the indictments for a riot and obtaining

convictions for the lesser offence.[501] When it is remembered that the

London apprentices perpetually drew upon themselves the watchful eye of

the government by their obnoxious politics, and that a trade riot was

always suspected of being the forerunner of a sectarian revolt, it is

evident that the decision of the judges meant considerable annoyance,

if not an actual rebuff, to the government.[502]

The general usefulness of the bench was not however impaired by such

exceptions. The judges still formed one of the most important parts of

the administrative machinery. They were consulted by the government,

gave advice, and put into effect the results of their advice. They

supplied the king during the long prorogation of 1675 with the pretext

which he required for the suppression of the coffee-houses.[503] Before

the trial of the regicides they had held a conference with the king’s

counsel, Attorney, and Solicitor-General to resolve debatable points

which were likely to arise in the course of the trials.[504] When the

Licensing Act expired in 1679, the judges were ordered by the king to

make a report concerning the control of the press. Their unanimous

decision was “that his Majesty may, by law, prohibit the printing and

publishing of all newsbooks and pamphlets of news whatsoever, not

licensed by his Majesty’s authority, as manifestly tending to a breach

of the peace and disturbance of the kingdom”;[505] and their preaching

was put into practice before many months had elapsed at the trials of

Harris[506] and Carr,[507] the former of whom was sentenced to the

pillory and a fine of £500, and the latter to the suppression of the

newspaper which he owned.

Actions for libel had always afforded a wide field for the exercise of

administrative authority. Under the Clarendon _régime_ the sentence

pronounced by Chief-Justice Hyde upon Twyn, the printer, had fully

sustained the traditions of the trials of Prynne, Bastwick, and

Lilburn.[508] With the multiplication of political pamphlets after

1678 trials and convictions for libel became frequent. Within two

years six important prosecutions of authors, printers, or publishers

were instituted, and not only resulted almost always in the infliction

of heavy punishments, but offered at the same time opportunities for

many caustic and edifying remarks from the bench. Some time after, the

number of trials for political libels and seditious words held within

the space of seven months actually mounted to the total of sixteen.[509]

The advantage of lectures thus delivered in court on general politics

and the duties of a good subject was of considerable value to the

government. In this part of their duties the judges rivalled even the

courtly eloquence of divines whose chief occupation was the advocacy

of the doctrine of non-resistance. On his elevation to the bench in

October 1676 Sir William Scroggs “made so excellent a speech, that

my Lord Montague, then present, told the king he had since his happy

restoration caused many hundred sermons to be printed, all which

together taught not half so much loyalty; therefore as a sermon desired

his command to have it printed and published in all the market towns

in England.”[510] It was afterwards made a ground for proceedings in

Parliament against Scroggs that he had publicly spoken “very much

against petitioning, condemning it as resembling 41, as factious and

tending to rebellion, or to that effect”[511] and it was said that

Sir Robert Atkyns was dismissed from the bench for contradicting a

dictum of the Chief Justice while on circuit, “that the presentation

of a petition for the summoning of Parliament was high treason.”[512]

Similar behaviour was also made the subject of complaint against Mr.

Justice Jones.[513] Even the courteous Lord Chancellor Finch, in

delivering sentence upon Lord Stafford, undertook to prove by the way

that Godfrey had been murdered, and London burnt, by the papists.[514]

But most of all the influence and importance of the judges was shown

in trials for treason. In those days state trials were not merely

impartial inquiries into the question whether or no certain persons had

committed certain acts, the nature of which was under examination: they

were life-and-death struggles of the king and his government against

the attacks of those who wished to subvert them. It was the business

of those engaged in them to see that the king’s cause took no hurt.

In this light they were universally regarded, and to this end their

conduct was undertaken. Judges and jurors alike were engaged in the

recognised task of the defence of the state. To the hearers it was

no quaint piece of antiquated phraseology when the clerk of the crown

addressed the prisoner arraigned at the bar for high treason: “These

good men that are now called, and here appear, are those which are

to pass between you and our sovereign lord the king, upon your life

and death”; it was a sober expression of vivid truth. The jury stood

between the king’s life and the intrigues of a defeated malefactor.

Of his innocence they were indeed ready to be convinced, but it would

require strong evidence to convince them. In his guilt their belief

was already strong. They can scarcely have refrained from regarding

themselves less as agents employed in the cause of truth to examine

without prejudice the merits of the case before them than as executors

of an already predetermined justice.

And here the weight of the judge’s authority was preponderant. He

directed those heavy advantages which weighed on the side of the

king and against the prisoner. The stringent system of preliminary

procedure, which rendered extreme the difficulty of properly preparing

his case beforehand, his isolation when actually upon trial, and the

unsympathetic atmosphere by which he was surrounded, and of which the

counsel for the prosecution were ready to take advantage to press every

point home, combined to render the accused almost helpless against

the crown. Even when administered with mercy the system was severely

favourable to the prosecution; and the adverse rules which hemmed in

the prisoner were generally worked to the utmost. To understand these

clearly, it will be necessary to pass shortly in review the history of

criminal procedure in the English courts of law, and the developments

which led to its state at the time of the trials for the Popish

Plot.[515]

CHAPTER II

CRIMINAL PROCEDURE

The Reformation, as in almost all other branches of modern history,

constitutes the starting-point at which the study of public procedure

must be begun. Rather it would be true to say that in this as in other

subjects it should form the starting-point. Unfortunately the necessary

materials are here wanting. The State Trials, which afford not only the

greatest quantity but the finest quality of evidence on the judicial

history of England, are printed from reports which do not begin before

the reign of Queen Mary in 1554. From that date until our own day

they are continuous, and form the greatest collection of historical

documents in the English language. From that date too the history of

criminal procedure in modern England may be said to begin. Throughout

the seventeenth century the courts of law occupy for the student of

history a position of singular importance. They were the scenes not

only of profound constitutional struggles, but of brilliant and deadly

political contests.

The study of criminal procedure is therefore indispensable to an

understanding of the numerous historical problems which have been

worked out in the courts of law; especially to an understanding of

those, not few, which have been worked to a conclusion, but not to a

solution.

The difference between the procedure in criminal cases as it exists

to-day and as it existed two centuries and a half ago is but little

known. It is the more difficult to understand because it is witnessed

by few great landmarks in the history of the administration of

justice, and owes its existence to no promulgation of new codes or

rules to which a triumphant finger may be pointed. Rather the new

system has emerged from the old by a procession of unconsidered

changes, at different times, of varying importance, the results of

which have come to be so universally known and approved, that to the

backward glance they seem to be not the outcome of long experience, but

inextricable parts of a system which has existed from all time. The

essential change has been one of conduct less than of opinion, and is

to be found rather in an altered point of view than in any variation of

practical arrangements.

The evolution of the forms under which trials were conducted during

the later Stuart period was slow and unpronounced. The all-pervading

activity of the Tudor privy council in affairs of state had left a

deep imprint upon the course of English justice, and one from which

it did not soon free itself. It was then that the courts gained

the inquisitorial character which they did not lose until after

the restoration of the monarchy, and it was not until the Puritan

Revolution that the judicial authority of the council, which had

grown to such a height of severity in the preceding half century,

was swept away. During that time the privy council played a part of

high importance in political trials. When a suspected criminal was

to be brought to justice a stringent preliminary inquiry was held.

The accused was examined on oath and in secret by the council. His

examination was taken down in writing and might afterwards be produced

against him under the name of a “confession.” The investigation here

made had the greatest weight. “In point of fact,” says Dr. Gardiner,

“these preliminary investigations formed the real trial. If the accused

could satisfy the privy council of his innocence, he would at once

be set at liberty. If he failed in this, he would be brought before

a court from which there was scarcely a hope of escape.”[516] As a

rule he did fail. The privy councillors were not apt to waste their

time on persons who were not brought before them as suspect on good

grounds, or objectionable for reason of state. Innocence moreover

would be little protection to a prisoner in the latter case, for the

political grounds against him would be unaffected by any scrutiny of

evidence. If the accused was committed by the council, it was with no

bright prospect before his eyes. Until the day of his trial he was

kept close prisoner. He had no notice of the witnesses who were to be

called against him or of the evidence which they would give. Nor was

the evidence for the prosecution the only point in which the prisoner

was at a disadvantage, for he was not allowed to call witnesses to set

up a case for himself. This at least seems to have been the fact; but

even had theory permitted the appearance in court of witnesses for the

prisoner, in practice the difference made would have been trifling, for

he certainly had no means of procuring their attendance or, supposing

they came, of ascertaining what they would say. Even at the close of

the seventeenth century, when witnesses for the defence were recognised

and encouraged by the courts, great difficulty was experienced by

prisoners in procuring the attendance of the right persons, and, when

these came, they sometimes gave evidence on the wrong side.[517] The

accused was brought into court in absolute ignorance of what would be

produced against him, and was compelled to defend himself on the spur

of the moment against skilled lawyers, who had been preparing their

case for weeks or perhaps months beforehand. Neither before or at the

trial was he allowed the aid of counsel or solicitor. On being brought

to the bar, the prisoner was treated in such a way as to rob him almost

of the possibility of escape. During his confinement examinations had

been made of all other suspected persons, and their depositions had

been taken. Not only could these now be produced in court against him,

but the confessions of accomplices, when these could be found, were

regarded as specially cogent evidence. No one, it was said, could have

so great a knowledge of the crime as the accomplices of the criminal—a

remark, it must be admitted, which, at a time when there existed no

organised force of police, was not without some show of justice.

No doubt such men were of bad character, but then it was not to be

expected that one could raise the curtain on scenes of such ill-odour

without coming into questionable company. The prisoner was not allowed

to cross-examine the witnesses brought against him and had not even the

right to confront them in court face to face.[518]

In a trial of any intricacy the case for the crown was usually divided

between several counsel. Each worked out his part minutely before

giving place to the next, partly by making direct statements, partly

by a string of questions addressed to the prisoner. The trial was thus

resolved into a series of excited altercations between the accused

and the counsel for the crown. The success with which the defence was

conducted depended entirely upon the skill and readiness displayed by

the prisoner himself. At his trial for treason in 1554[519] Sir Nicolas

Throckmorton maintained for close upon six hours a wordy conflict with

Sergeant Stamford and the Attorney-General, and acquitted himself so

well that the jury after deliberating for two hours returned a verdict

of not guilty.[520] The Duke of Norfolk, convicted of high treason

in 1571, was set an even harder task, for he was compelled to deal

successively with no less than four eminent counsel who had undertaken

different parts of the case against him.[521]

Apart from the opening speeches of the crown lawyers and the summing

up of the evidence by the judge at the end of the trial, there was

little room for any display of fine oratory, and practically none

for the sentimental appeal to the jury which at a later date became

so prominent a feature in the courts. Every point was argued by the

opposing parties in a close and acrimonious conversation, which had at

least the merit of throwing light from every possible point of view

on the subject in hand. In this the judges presiding did not take

much part, nor was the summing up regarded as of special importance;

but explanatory remarks, and questions on points which seemed to the

judges to have been overlooked, were occasionally interposed from the

bench.[522]

But what weighed most heavily of all against the prisoner was the fact

that rules of evidence, as they are understood at the present time,

were practically unknown. The only distinction recognised was between

the evidence of an eye-witness to the actual crime and everything

else. If other than eye-witnesses were admitted, there seemed to be

no reason why the most insignificant evidence upon hearsay of facts,

however remotely connected with those alleged in the charge, should not

be produced against the prisoner. Even the production of the originals

of documents relied upon as evidence for the prosecution was not

required.[523]

This was a fault in criminal procedure which persisted until at least

the end of the seventeenth century and exercised a supreme influence

upon the course of justice. Grave attention and decisive weight was

given to evidence which in modern times would not be allowed to come

into court at all. The most irrelevant detail was freely admitted

against the prisoner. At Raleigh’s trial in 1603 one Dyer, a pilot,

swore that when he was at Lisbon he had accidentally met a man who said

that Cobham and Raleigh would cut King James’ throat before he could

be crowned.[524] Evidence of a still more remarkable character was

given at the trial of Benjamin Faulconer for perjury in 1653. After the

charge had been proved, witnesses were called to testify to a variety

of facts startlingly unconnected with the case. They swore that the

prisoner had been guilty of using bad language, that he had drunk the

devil’s health in the streets of Petersfield, and that he had “a common

name for a robber on the highway.”[525] All this was allowed as good

evidence to raise a presumption of his guilt. Instances of the lax

rules of evidence in force might be multiplied. At Hulet’s trial for

having been executioner of Charles I witnesses were admitted for the

defence to testify that they had heard Brandon, the hangman, say that

he had himself cut off the king’s head. On the other hand the evidence

for the prosecution chiefly consisted of the testimony of persons who

swore that they had heard Hulet admit the truth of the charge.[526]

The trial of Hawkins for theft before Sir Matthew Hale in 1669 is

still more notable. Not only was evidence allowed to prove for the

prosecution that Hawkins had committed, and for the defence that he

had not committed, two other thefts wholly unconnected with the case

before the court,[527] but the prisoner, who was a country parson,

was permitted to produce a certificate signed by over a hundred of

his parishioners, to the effect that the prosecutor was “a notorious

Anabaptist, an enemy to the Church of England, and a perfect hater

of all ministers of the same, but in particular most inveterate and

malicious against Robert Hawkins, clerk, late minister of the church

of Chilton,” and going on to express their belief in the innocence of

Hawkins and the dishonesty of the prosecutor.[528]

The trials of Colonel Turner for burglary and of the Suffolk witches,

who were condemned in the year 1665, afford perhaps the strongest

instances of the slight extent to which the principles of evidence

were understood. In the former the chief part of the evidence given

by Sir Thomas Aleyn, the principal witness, was concerned with what

other people had done and said, and would by modern methods have

certainly been ruled out; in the latter the smallest apprehension of

the value of testimony would have resulted in an abrupt termination of

the case, for nothing which by courtesy could be called evidence was

produced against the wretched old women who were being tried for their

lives, and their conviction was obtained partly on the strength of a

statement by Dr. Browne of Norwich, author of the _Religio Medici_,

as to the nature of witches and their relations with the devil, no

single word of which could have been spoken in a modern court of

justice.[529] It was a state of things, due to lack of experience and

of scientific vision, which prevailed until after the Revolution and

exerted a powerful influence against the accused. In other points

however criminal procedure in the English courts underwent changes

of considerable importance. From the reign of Queen Mary until the

Puritan Revolution it had remained almost unaltered, but during the

Commonwealth and Protectorate several modifications were introduced. An

apparently spontaneous change, inaugurated by no legislative enactment,

bore witness to the fact that the view in which criminal trials were

regarded was insensibly shifting from the ancient to the modern

standpoint. The inquisitorial nature of the old trial was gradually

disappearing. Chief among the differences which may be noted as having

arisen is the fact that the prisoner was no longer systematically

questioned in court. When he was questioned, it was now, if he were

innocent, in his favour. His examination was no longer what it had been

in the days of Elizabeth and James I, the very essence of the trial.

Questions were still put to him, but now they were directed by the

judges and not by the prosecution. The process was of no greater scope

than was demanded by the necessities of the defence of a prisoner who

has not the assistance of counsel. It was used as a natural means of

arriving at the truth of statements made on one side or the other,

and served to set in a clear light the strong and weak points of the

defence. At the trial of the Turners, who were guilty, a lengthy

examination of the prisoners by the court succeeded in shewing the

great improbability of statements in their story, and tended directly

to the conviction of the colonel.[530] On the other hand, in the case

of Sir George Wakeman, who was innocent, the triangular series of

questions between judge, witness, and prisoner had an effect which was

by no means unfavourable to the accused.[531] The prisoner moreover

could, if he wished, refuse to answer questions put to him.[532]

Two other results of the changing spirit of the times may be found in

the criminal courts. Witnesses for the prosecution were now always

brought face to face with the accused, unless reason such as would

be valid to-day was given to the contrary; and the prisoner was not

only allowed to cross-examine the witnesses against him, but to call

evidence in his own behalf.[533] The value of cross-examination to the

defence was doubtless an important advance in theory; practically it

was greatly impaired by the natural difficulties, which to an untrained

man are almost insuperable, of cross-examining witnesses without proper

instruction. But the power of calling witnesses for the defence was in

practice as well a gain of immense magnitude.

With these changes the procedure of Tudor times was handed on to the

restored monarchy, and was retained without alteration until the end

of the Stuart dynasty. The position of a person on trial, bettered

as it was, was pitiable. The bench received the prisoner’s witnesses

with the utmost suspicion and treated them as if they were proved to

be accomplices in his crime. It was pointed out to the jury that they

were not upon oath. At the trial of one of the regicides in 1660 it was

even hinted that their evidence might be disbelieved on this ground

alone.[534] Later practice demanded that the jury should be directed

to notice the fact and warned that witnesses not upon oath deserved

no less credit for this reason; but opportunity was generally taken

to slight their evidence in other ways. If the prisoner’s witnesses

were Roman Catholics, it was pointed out that their evidence might be

tutored.[535] If not, the counsel for the prosecution could easily

make an opening to call attention to the fact that mere words for the

prisoner ought not to weigh as heavily as sound oaths for the king,

and he would not be hastily checked by the court.[536] Theoretically,

the court was “of counsel for the prisoner” in matters of law;[537]

practically, as this conflicted with the judges’ duty to the king

and their watch over his life, the prisoner was allowed to shift for

himself. To justify the denial of counsel to the accused, the argument

was constantly used that, in order to convict him, the proof must

be so plain that no counsel could contend against it.[538] Honestly

enough, no doubt, this was the theory; but in practice the slightest

complication of facts or the most awkward piece of perjury could not

fail to render the prisoner in his eagerness and ignorance helpless to

unravel the skein which was being wound round him.

In particular matters of law counsel might be assigned to argue

such points as the court thought fit, but only when they had been

proposed to the court by the prisoner himself.[539] When Colledge at

his trial for high treason retorted that without the aid of counsel

he could not tell what points to submit for argument, he was told by

the Attorney-General that ignorance of the law was an excuse for no

man.[540]

In countless ways the system worked, in accordance with the tradition

of many years, in favour of the king and in glaring disfavour of the

prisoner. Peculiar cruelty on the part of the judges has continually

been assumed as an explanation of this. In reality recourse need be

had to no such hypothesis. The judges handled the means which had come

down to them as legitimate, without necessarily indulging the rare

vice of spontaneous inhumanity which has been attributed to them by

historians. They did their work and performed their duty as it came in

their way; and the work of a judge in state trials in the seventeenth

century was to modern eyes neither dignified nor pleasant. Nor,

although their names are linked to no distinction in the annals of the

law, were the judges, whose patents ran “during the good pleasure” of

King Charles II, men devoid of talent. Lawyers were raised to the

bench by influence at court, since all offices of state were to be

obtained by favouritism; but their appointments were seldom devoid

of some foundation of solid attainments. Some, like Scroggs, were by

nature brilliant; others, like North and Pemberton, had grounded their

fortunes on many years of laborious industry.[541] Such men, whose

minds were not bent to reverence of the law by severe learning in it,

were likely to be influenced by their position as lawyers less than by

that as officers of state, and to regard their oaths as constraining

them rather to the service of the crown than to an absolute pursuit

of justice. Sometimes the rules under which they worked themselves

prevented them from doing right to prisoners. They were unable, for

instance, to summon or to protect witnesses for the defence, for their

power ended with the confines of the court. When Colonel Turner on

his trial in 1664 told the bench that his witnesses had sent him word

that they did not dare to come without an order, the Chief Justice

replied, “When witnesses come against the king, we cannot put them

to their oaths, much less precept them to come.”[542] At the trial

of Langhorn, the Roman Catholic lawyer, for the Popish Plot, Lord

Castlemaine complained to the court that the prisoner’s witnesses

were being threatened and assaulted by the mob outside and dared not

“come to give their evidence for fear of being killed.” The judges

were indignant and declaimed loudly against the “very horrid thing,”

but they were powerless to do more than to threaten the offenders with

severe punishment, if the earl could produce or point to them. As this

was naturally impossible, nothing could be done.[543]

The inability of the court to allow real favour to the accused receives

constant illustration from the trial of Lord Stafford. It might have

been expected that a venerable peer, standing to be judged by his peers

and surrounded by his relatives and old acquaintances, would receive

an amount of respect and favour which was denied to meaner folk. But

this was far from being the case. In spite of the evident desire

of the Lord Chancellor, who presided in the capacity of Lord High

Steward, to allow to the accused every advantage that was consistent

with his duty, he found it impossible to contest against the managers

of the prosecution in their demand that the rules should be exerted

against him in all their usual harshness. Time after time the counsel

pressed home points of procedure which lay in their favour. It roused

the indignation of Jones and Maynard that the barristers retained by

Lord Stafford to be his counsel on matters of law stood so near him

that they might be suspected of wishing to prompt him in matters of

fact, and they were forced to move to a greater distance from the

prisoner.[544] When at the end of the second day of the trial Finch

urged that before further proceedings a day’s rest should be given to

the prisoner to recover from his great physical fatigue, the managers

withstood his proposal eagerly. The Lord High Steward asked what

inconvenience would ensue. They could suggest none of consequence, but

said that the delay would be highly unusual and that it was a most

unreasonable thing to demand. Jones’ zeal was such that he exposed

himself to a well-deserved snub from the court.[545] Without being

in the least abashed he pursued his speech and finally carried the

point triumphantly.[546] A similar violation of the maxim _De vitâ

hominis nulla est cunctatio longa_, which the Lord Chancellor quoted on

this occasion, occurred during the trial of Lord Russell, when Chief

Justice Pemberton would have granted a short respite to the prisoner

but for the opposition of the prosecuting counsel. “Mr. Attorney, why

may not this trial be respited till the afternoon?” To which the

Attorney-General rudely replied, “Pray call the jury”; and Pemberton

had nothing for it but to say to the prisoner, “My Lord, the king’s

counsel think it not reasonable to put off the trial longer, and we

cannot put it off without their consent.” On the last day of Lord

Stafford’s trial the court again displayed its weakness as a protector

of the accused. Owing to the prisoner’s excessive weakness and failure

to make his voice heard, the Lord High Steward ordered a clerk to read

the paper from which he was struggling to propose certain points of

law to be argued. The managers immediately objected. It was contrary

to custom and might be turned into a dangerous precedent. Finch

was compelled to give way to their harsh insistence, and Stafford,

tottering with fatigue, to make an effort which was almost beyond his

strength.[547]

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]

When it is considered that the former of these trials was conducted by

Lord Chief Justice Hale, the most famous and according to all testimony

the most moderate judge of his time, it becomes brilliantly clear that

it was not only by incompetent judges, as the nature of the cases

makes it clear that it was not only in political trials, that unsound

evidence was accepted as genuine, but that the common knowledge of the

times did not discriminate in any appreciable manner between evidence

which is, and that which ought not to be, sufficient to procure the

conviction of prisoners. Without adornment the fact is that evidence

which to modern ears is bad, to those of judges and juries of the

seventeenth century seemed perfectly good.[585] One further point of

similarity between the evidence given at witch trials and at trials for

the Plot may be noted. Credence was given to flimsy tales of the devil

and his practices, if not solely, at least all the more readily because

such ideas were current in the popular mind, and scarcely more than a

hint was needed for their embodiment as concrete facts. The same may be

said of the revelations of the Popish Plot. For years men had expected

nothing more certainly and had feared nothing more keenly than a great

onslaught of Catholicism upon their own religion. What they now heard

seemed only a just realisation of their prophecies. “They had,” says

Bishop Parker, “so familiarly accustomed themselves to these monstrous

lies, that at the first opening of Oates’ Plot they with a ready and

easy credulity received all his fictions; for whatsoever he published,

they had long before expected.”[586]

It is necessary to lay stress upon this aspect of the evidence

given by the witnesses at Coleman’s trial, since at all those which

followed it reappeared with little variation; but to Coleman himself

it was not of the first importance. Sixteen letters selected from his

correspondence with Roman Catholics abroad were read at length,[587]

and formed the heaviest part of the case against him. From them the

nature of his schemes was plainly visible. It was of little moment to

him that they were taken as establishing the reality of the nightmare

which Oates had sketched. Without anything in common with the blood and

thunder tales which that miscreant poured forth, they contained more

than enough of treasonable matter to cost the prisoner his head. It was

impossible for him to deny the letters. All he could do was to say that

he had meant no harm, and to express the hope that they would not be

found to bear out the charge of high treason. “I deny the conclusion,

but the premises,” he admitted, “are too strong and artificial.”[588]

Chief among the correspondence read were three letters to and one

from Père de la Chaize and the declaration which Coleman had drawn

up to justify the prospective dissolution of Parliament.[589] On the

subject of these an important discussion took place between Scroggs

and the prisoner. Coleman insisted that there was nothing in his

letters to justify the accusation that he had planned the death of

the king; he might have used extravagant expressions; but if all the

letters were considered together, surely it would be evident that,

so far from designing any ill to the king and the Duke of York, his

sole aim had been to exalt their power as high as possible. The Chief

Justice pointed out that the letters openly declared, almost in so

many words, an intention to overthrow the religion and government of

the country by the help of foreign power; to say that he had attempted

this for the benefit of the king was merely to offer a feeble excuse

for his fault; with that the court had nothing to do. Coleman again

began to explain his point of view in a rather muddled fashion. People

said that he had made use of the duke’s name without leave in his

negotiations; was it likely that he had been so foolish as to imagine

that his friends abroad would expend their money without the certainty

that it was for the duke’s service; still more, was it likely that the

duke would use any sum thus obtained to the disservice of the king?

“I take it for granted,” he continued “(which sure none in the world

will deny), that the law was ever made immediately subject to the king

or duke; and consequently to the duke, I cannot think this will ever

be expounded by the law of England or the jury to be treason.” At

this point the Chief Justice interrupted him impatiently. “These vain

inconsequential discourses” served but to waste the time of the court.

The plain truth was that the prisoner had formed a design “to bring

popery into England, and to promote the interest of the French king in

this place”;[590] a fact which Coleman had not even attempted to deny.

What Scroggs meant, and what, had he been a better judge, he would

have made clear to the prisoner, was that such designs, according to

the law which it was his duty to administer as it had been handed down

to him, were technically evidence of high treason, whether or no they

included an actual plot to kill the king; but he was so much irritated

by Coleman’s feeble efforts to say that this was not or ought not to

have been so, that he neglected altogether to explain the matter, with

the result that when Coleman came up for judgment on the following day

he shewed that he was still in the dark about it.[591]