Chapter III: Trials for the Plot (1)

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]

Concerning Coleman’s letters a curious point arose at the trial. In opening the evidence for the crown Sergeant Maynard had remarked that the correspondence found at the prisoner’s house extended only “to some part of the year 1675; from 1675 unto 1678 all lies in the dark; we have no certain proof of it, but we apprehend he had intelligence until 1678.”[592] The Chief Justice took the subject up: “Mr. Coleman, I will tell you when you will be apt to gain credit in this matter.... Can mankind be persuaded that you, that had this negotiation in 1674 and 1675, left off just then, at that time when your letters were found according to their dates? Do you believe there was no negotiation after 1675 because we have not found them?” The prisoner replied, “After that time (as I said to the House of Commons) I did give over corresponding. I did offer to take all the oaths and tests in the world that I never had one letter for at least two years; yea (that I may keep myself within compass), I think it was for three or four.”[593] After he had delivered sentence on the next day, Scroggs adjured the condemned man to confess that he had continued to correspond with agents abroad during the last three years. “I am sorry, Mr. Coleman,” he said, “I have not charity enough to believe the words of a dying man; for I will tell you what sticks with me very much: I cannot be persuaded, and nobody can, but that your correspondence and negotiations did continue longer than the letters that we have found, that is, after 1675.” “Upon the words of a dying man and the expectation I have of salvation,” was Coleman’s answer, “I tell your lordship that there is not a book or a paper in the world that I have laid aside voluntarily.” Scroggs urged that he might have burnt them. “Not by the living God,” returned the prisoner.[594] Coleman lied. The correspondence which he carried on with Paris and Rome, even in the fragmentary state in which it has been preserved, extended beyond the end of the year 1675. Between December in that year and December 1676 he received fifty letters from St. Germain at Paris, and a letter from the same quarter, dated October 5, 1678, was seized on delivery after Coleman’s arrest. From January 1676 to January 1678 a correspondence was steadily maintained between Coleman and Cardinal Howard at Rome either personally or by his secretary Leybourn, and a letter from Leybourn seized on its arrival bore the date October 1, 1678. Shortly before, a “very dark, suspicious letter,” dated September 28, 1678, had been seized on delivery. Coleman even received letters from Italy after his arrest by the help of his wife. The last doubts on the subject are resolved by the evidence of his secretary, Jerome Boatman, taken before the committee of the House of Lords: “I was employed to write home and foreign news. The correspondence was held on until my master was taken. There came letters by post since my master was taken. I delivered the letters to my mistress to carry to my master after he was under the messenger’s hands.”[595] Belief in the dying vows of the Jesuits and their friends is perhaps scarcely strengthened by Coleman’s conduct in this matter. It is remarkable that the means taken for the preparation of the case were so haphazard that the crown lawyers had no knowledge of such valuable material as was in the hands of the committee of the upper house; and it is small testimony to the capacity of the noble lords who negotiated the business of the committee with the Attorney-General[596] that the latter should have been entirely ignorant of its existence.[597]

Throughout his trial Coleman was treated neither more nor less fairly than any other prisoner in any crown case of the period. The practice of the day weighed heavily against him. He did not receive nor could he expect any favour from it. Neither was he met by any special disfavour on political or any other grounds. One point of his defence however should undoubtedly have received more consideration than it did. Oates had charged him with paying a guinea as an extra fee for the king’s murder, “about the 21st day of August.”[598] Almost at the end of the trial, after the final speeches for the prosecution, Coleman announced that if his diary were fetched from his lodgings he could prove that he had been out of town from the 10th of August until the last day of the month.[599] His servant was called, but was unable to do more than say generally that he had been away from London during part of August. With the book, said the prisoner, he would be able to prove his statement exactly; but the Chief Justice would not allow it to be brought, on the ground that even if what he said were true, little would be gained to him.[600] This was no doubt true. Apart from the evidence of Oates, the testimony of Bedloe and his own letters were enough to hang the prisoner, and if Oates’ word had been shaken in this point it would have been but little benefit to Coleman. But a great mistake was made by the court. To have proved a perjury against Oates so early in his career of witness would have inflicted a lasting injury on his character and redoubled the force of the catastrophe which befell him at the trial of Sir George Wakeman eight months later. This was not however apparent at the time, and the Chief Justice’s determination, due to the lateness of the hour and the small extent to which the prisoner’s interest was actually involved, is easy to understand. When he came up to receive judgment the next day Coleman produced the diary,[601] but it was then too late and the chance was gone.

Scroggs proceeded at once to recapitulate the evidence to the jury. What was important in his summing up was almost entirely concerned with the meaning and weight of Coleman’s letters.[602] He pointed out acutely that the construction which the prisoner put upon them and the feeble explanation which he gave of his designs were repugnant to common sense and could not be entertained. “For the other part of the evidence,” he terminated abruptly, “which is by the testimony of the present witnesses, you have heard them. I will not detain you longer now, for the day is going out.”[603] The jury went from the bar and returned immediately with the verdict of Guilty. On the following day Coleman received sentence as usual in cases of high treason, and five days after was executed at Tyburn. As the cart was about to be drawn away he was heard to murmur, “There is no faith in man.” A rumour spread throughout the town that until the end he had expected to receive a pardon promised by the Duke of York, and that, finding himself deceived, he had died cursing the master whom he had so diligently served.[604]

Coleman was not the first man to suffer for the Popish Plot. On November 26, the day Coleman was brought to trial, William Staley, a Roman Catholic goldsmith, had undergone a traitor’s death at Tyburn. Staley was accused by two scoundrels of having in a public tavern uttered words which announced his intention of taking away the king’s life. The chief witness was a wretch named Carstairs, who had eked out a precarious livelihood by acting as a government spy on conventicles in Scotland.[605] Two others of the same kidney corroborated his evidence. They swore that Staley had entered a cookshop in Covent Garden to dine with a French friend named Fromante, and had there burst into a rage against the king; the old man, Fromante, his friend, said “that the king of England was a tormentor of the people of God, and he answered again in a great fury, ‘He is a great heretic and the greatest rogue in the world; here is the heart and here is the hand that will kill him.’... In French the words were spoken, he making a demonstration stamping with his foot: ‘I would kill him myself.’”[606] By an act passed early in Charles II’s reign, “malicious and advised speaking” had been made an overt act of high treason, and on this Staley was indicted. Over his sentence historians have gone into ecstasies of horror, on the ground that it is impossible to believe that “a great Roman Catholic banker” in the position of Staley should have spoken such words.[607] Staley however was not the banker, but the banker’s son, and was not therefore of the same highly responsible age and position as has been supposed. “Young Staley,” as he is called in a letter of the time,[608] is identified by Von Schwerin, ambassador of the Great Elector to the court of Charles II. On November 19 he writes: “Auch ist der Sohn eines sehr reichen Goldschmieds gefänglich eingezogen worden, weil er bei einem Gelage—wiewohl in trunkenem Zustande—Reden geführt hat: die Conspiration sei noch nicht ganz entdeckt, so habe er noch Hände den König zu ermorden.”[609] But the decisive evidence on the point is the fact that William Staley’s father, the banker, was alive some three weeks after he should, according to the received account, have been hanged and quartered. On December 18 his clerk and cashier were examined before the committee of the House of Lords on the subject of a reported connection between their master and Sir George Wakeman. The cashier had been in his service for seven years. The next day Mr. Staley, as ordered, himself attended the committee, bringing with him “the books wherein he has kept his accounts the last two years.”[610] Obviously this man had been head of the firm for more than the previous month, and the account given by the Brandenburg envoy is correct.[611]

To hold that the words attributed to Staley by the witnesses at the trial were spoken “advisedly and maliciously” was undoubtedly to drive the act as far as it would go against the prisoner; but that they were spoken seems almost certain. He hardly denied that he had called the king a rogue and a heretic.[612] His only explanation of the words to which Carstairs swore was that instead of saying “I would kill him myself,” he had said “I would kill myself.” The difference between the words _Je le tuerais moi-même_ and _Je me tuerais moi-même_ is small enough to account for an easy mistake made by a hearer, but it was unfortunate for Staley that, as was pertinently remarked by the Attorney-General, the latter would not make sense in the context. Still more damning was the prisoner’s omission to call as a witness for his defence Fromante, who had taken part in the conversation, and could, if Staley had been innocent, have cleared the point in his favour; but although every facility was given him for doing so, he refused either to call his friend or to make use of the copy of his previous examination, which the Attorney-General offered to lend him.[613] The case was not terminated even by Staley’s sentence and death. In consideration of his exemplary conduct in prison, where he “behaved himself very penitently, from the time of his conviction until the time of his execution, which was attested by the several ministers which visited him during that time,” leave was given by the king that his body should be delivered to his friends after execution for private burial. With great want of tact, and “to the great indignity and affront of his Majesty’s mercy and favour, the friends of the said Staley caused several masses to be said over his quarters, ... and appointed a time for his interment, viz. Friday, the 29th of November 1678, in the evening, from his father’s house in Covent Garden, at which time there was made a pompous and great funeral, many people following the corpse to the church of St. Paul’s, Covent Garden, where he was buried”: in consequence of which an order was given for the disinterment of the body, and to vindicate the majesty of justice his quarters were affixed to the city gates and his head set up to rot on London Bridge.[614]

A fortnight after Coleman’s execution, Whitebread, Fenwick, Ireland, Pickering, and Grove were brought to the bar of the Old Bailey. Thomas White or Whitebread, alias Harcourt, was a man sixty years of age. He had been educated at St. Omers, became a professed father in the Society of Jesus in 1652, and was chosen provincial of the English province at the beginning of the year 1678.[615] It was by his means that Oates had entered the Jesuit College at St. Omers after expulsion from Valladolid, and it was he who Oates swore had boxed his ears on learning that the plot was betrayed.[616] Fenwick, less well known by his real name Caldwell, was ten years his junior. He had joined the English mission from Flanders in 1675, and was now the London agent for the college at St. Omers. Both were noted in the society for their success in the missionary field.[617] Ireland, alias Ironmonger, had come into England in 1677 as procurator of the province.[618] All five were accused by Oates of being principals in the plot and privy to the king’s death. Pickering, a Benedictine, and Grove, a Jesuit lay-brother, were named as the actual agents in one of the schemes for his assassination. Oates’ evidence was long and highly coloured. He had been sent over by the Jesuits to murder Doctor Tonge. He had seen instructions for the murder of the Bishop of Hereford and Dr. Stillingfleet. He had been in the thick of a scheme of Fenwick’s contrivance to raise rebellion in Scotland and Ireland. Whitebread had sealed commissions for the popish army under the seal of Johannes Paulus de Oliva, general of his order. Fenwick had been present when Coleman paid the famous guinea to quicken the message which was to be fatal to the king. All the prisoners had been present at the consult on April 24, 1678, when a resolution to kill the king was signed by at least forty persons, Pickering was to have thirty thousand masses and Grove £1500 for the deed. They had dogged the king in St. James’ Park, and had twisted the silver bullets of their carbines that the wound made might be incurable. Charles would infallibly have been shot had not the flint of Pickering’s pistol been loose, and Pickering had undergone penance of thirty lashes for his carelessness. To use their own words, “they did intend to dispose of the duke too, in case he did not appear vigorous in promoting the Catholic religion.”[619] To all this there was little to be said. The prisoners put some questions to Oates, and were in turn slightly questioned by the court. All that appeared was that Grove had known Oates more intimately than he wished to represent, and that the witness had borrowed from both Grove and Fenwick money which had naturally never been repaid.[620] Fenwick however offered to bring a document from St. Omers, under the seal of the college and attested by unimpeachable witnesses, that Oates had been at the seminary at the time when he swore that he was present in London at the consult at the White Horse Tavern. This was refused by the court without hesitation. Fenwick exclaimed bitterly that the judges seemed to think there was no justice out of England.[621] But in supposing that a special piece of unfairness was directed against himself and his friends he was mistaken. It was a regular and unbroken rule of the court that no evidence could be brought, if such an expression may be used, from outside the trial. Such evidence as reports of other trials, the journals of the Houses of Parliament, the minutes of the privy council was allowed to be used on neither side. It was one of the points in which the practice of the day pressed hardly on the accused, but the judges could not, as Scroggs truly said, “depart from the law or the way of trial.” The theory of the law was that the evidence at a trial might be disproved by the defence, or its value might be destroyed if the witness were proved not to be competent; but neither could it be shaken by such a document as Fenwick proposed to produce,[622] nor could evidence afterwards be called against it to shake the credit of a witness at a previous trial. To effect this the witness must be indicted and convicted for perjury and the record of his conviction proved. Every trial stood by itself, and everything alleged at it had to be proved or disproved on the spot, either by direct evidence or by judicial records sworn at the trial to be correct.[623]

Bedloe was then called. He began by giving evidence of the Plot in general, in pursuit of which he had been employed, he swore, for the last five years to carry letters between Jesuits and monks in England, Ireland, and France, and Sir William Godolphin and Lord Bellasis.[624] But of the prisoners in particular he could only speak to Ireland, Pickering, and Grove. Whitebread and Fenwick he knew by sight alone. At the trial of Reading he confessed that this was a lie.[625] There he explained that he would have borne witness before against the two Jesuits had not Reading been intriguing with him at the time, and that he kept back his evidence in order to lead the attorney deeper into the business.[626] Not only was this admitted by the court as sufficient justification of his conduct, but at their later trial, when Bedloe gave decisive evidence against them, Whitebread and Fenwick hardly made any objection to his credibility upon this ground.[627]

One witness having failed, the prosecution attempted to supply his place by reading a letter written to summon a father of the society to the Jesuit congregation which the provincial had fixed for April 24. But this the Chief Justice would not permit. The letter was from Edward Petre, afterwards confessor to James II, to William Tunstall. It had been found with Harcourt’s papers and did not mention Whitebread’s name at all. The contents might substantiate Oates’ evidence as to the date of the congregation, but they could not conceivably be construed, as the crown lawyers suggested, into evidence touching the prisoners. Scroggs’ opposition prevented the manœuvre, and after a strong warning to the jury he allowed the letter to be read, “to fortify the testimony of Mr. Oates, that there is a general plot: it is not applied to any particular person.”[628]

It was now apparent that the crown had only one witness against the two chief of the accused, which in a case of high treason was not sufficient to procure a conviction. Thereupon Scroggs, with the approval of the other judges, discharged the jury of Whitebread and Fenwick and recommitted them to prison.[629] Six months later they were again tried and executed for the same treason. Whitebread then urged that he had been given in charge once, that on the insufficient evidence he should have been acquitted, and that he ought not to be tried again; but the whole court held without hesitation that the objection was baseless.[630] Afterwards this decision was held up to scorn, and has since often been condemned;[631] but it was grounded upon good authority and supported by the general practice of the courts.[632]

The three remaining prisoners proceeded to make their defence. Beyond repeated assertions of their innocence this amounted, as far as Pickering and Grove were concerned, to little. Ireland made a better effort. Oates had sworn that he was in London in August of the year 1678 and present at a treasonable meeting in Harcourt’s rooms.[633] The prisoner now called evidence to contradict this. His mother and his sister testified that he had left town on August 3 and did not return until the middle of September. Sir John Southcot’s coachman swore that he had been at various places in Staffordshire and on the way thither, in company with his master, from August 5 until the third week in that month, and another witness gave evidence that he had seen Ireland at Wolverhampton shortly after St. Bartholomew’s day, and again on the 7th and the 9th of September.[634] To rebut this the prosecution called a woman who belonged to the household of Lord Arlington. She had once been in the service of Grove, the prisoner, and had at that time seen Ireland constantly and waited upon him with letters from her master. She now swore positively that she had seen him in London at the time when the king went to Windsor in August. By the evidence of Sir Thomas Dolman this was calculated to be the 13th of the month.[635] Oates again took the opportunity to swear that Ireland was in town on the 1st or 2nd of September. It was an unfortunate interruption, for it formed the perjury assigned in the indictment upon which he was convicted at his second trial six years afterwards.[636] Only one more witness was produced. Sir Denny Ashburnham, member of Parliament for the borough of Hastings, was called by Ireland to testify to Oates’ character. Instead however of damaging the informer’s credit, he came forward to say that, although he might have had little respect for Oates’ veracity in the days of his youth, the manifold circumstances by which his testimony was now supported had entirely convinced him of the truth of his statements; “and,” said he, “I do think truly that nothing can be said against Mr. Oates to take off his credibility”;[637] which was of small value from the point of view of the defence.

The prisoners complained bitterly that they had been allowed neither time nor facility to produce their witnesses. At Oates’ second trial for perjury on May 9, 1685 there were called for the prosecution no less than forty-five witnesses, who proved conclusively where Ireland had been on every day but one between August 3 and September 14, 1678, the dates when he left and when he returned to London.[638] Five months after Ireland’s execution, Whitebread, Fenwick, and Harcourt called at their trial, to prove the same points, ten witnesses, whose evidence covered a considerable part of the time in debate,[639] Had he been able himself to call even those ten, not to say the whole number afterwards collected, it can scarcely be doubted that their evidence must have procured his acquittal and have given birth to the reaction against Oates which every additional conviction postponed. As it was, there were for the defence only four witnesses, two of whom were intensely interested in the prisoner’s acquittal, against the hitherto unshaken credit of Oates himself and the testimony of a disinterested person called to support him. Scroggs put the point quite fairly to the jury,[640] and the jury chose to disbelieve the prisoner’s witnesses. The real hardship lay, not in the prejudice of the court or the violent speech which the Chief Justice appended to his summing up of the evidence,[641] but in the fact that the accused were kept wholly in the dark as to the evidence which was to be produced against them. The practice of the law, as it is still the theory,[642] made it impossible for the accused to defend himself with certainty against the evidence which might be brought against him. The preparation of his defence had to be undertaken in the dark and conducted at random.

On the same day Ireland, Pickering, and Grove received sentence of death from Jeffreys, as Recorder of London, in a speech which wavered between pure abuse and a sermon which would have done credit to the most strenuous divine.[643] More than a month later Ireland and Grove were executed at Tyburn. Had Ireland’s execution been postponed, an insurrection was feared. Pickering was respited by the king for so long that the indignant Commons on April 27, 1679 petitioned urgently that the law might take its course on the man who “did remain as yet unexecuted, to the great emboldening of such offenders, in case they should escape without due punishment;” and on May 25 Charles sent a message to the House by Lord Russell to say that the sentence should have effect.[644] All three died protesting their innocence to the last.