Chapter III: Trials for the Plot (2)

Round the dying vows of the fourteen men who were executed for the Plot controversy raged hotly. To Roman Catholics their solemn denials seemed so conclusive that they fancied the effect must be the same on others too.[645] When it became apparent that such earnest assertion was met with frank unbelief, they attributed the fact to the black malice and the wicked prejudice of heretical hearts. To Protestants, on the other hand, the protestations of the Jesuits were clearly the logical result of their immoral doctrines. If anything, they afforded a further confirmation of guilt. Able pamphleteers undertook to prove that according to the principles of their order “they not only might, but also ought to die after that manner, with solemn protestations of their innocency.”[646] Protestant pulpits reverberated with demonstrations that the Jesuits would not “stick at any sort of falsehood in order to their own defence.” Good Bishop Burnet was shocked at the violence of his brother divines and “looked always on this as an opening of their graves, and the putting them to a second death.”[647] Few however were of his mind, and Algernon Sidney expressed the common opinion when he wrote to his cousin: “Those who use to extol all that relates to Rome admire the constancy of the five priests executed the last week; but we simple people find no more in it than that the papists, by arts formerly unknown to mankind, have found ways of reconciling falsehood in the utmost degree with the hopes of salvation, and at the best have no more to brag of than that they have made men die with lies in their mouths.”[648] Party spirit could not fail to be aroused in its most virulent form by the speeches of the condemned men, and to seize upon them as evidence on either side. They were, in point of fact, evidence for neither one party nor the other. Oaths sworn in such a manner were wholly worthless.

As Bedloe lay on his death-bed in the autumn of 1680 he reaffirmed with every protestation of truth, and as he hoped for salvation, the ghastly mass of perjured evidence by which he had sworn away the lives of men. His conscience was clear, he said, and “he should appear cheerfully before the Lord of Hosts, which he did verily believe he must do in a short time.”[649] Three years later the man who has been held up to posterity as the most truthful of his age died, calling God to witness his innocence of the treason for which he was condemned.[650] Yet Lord Russell was a member of the Council of Six and had engaged actively in the preparation of an extensive rebellion. He was an intimate friend of the men who hatched the actual Rye House Plot. If he was unaware that the king’s life was aimed at directly and indirectly, it was because he had deliberately shut his eyes to the tendency of his own schemes and those of his associates.[651] This must be the test of the value of such declarations. The unbounded immorality with which the politics of the reign of Charles II were stamped so clouded the minds of men that truth became for them almost indistinguishable from falsehood. They had only not reached the point of view of the native of Madras, who said of the value of death-bed confessions: “Such evidence ought never to be admitted in any case. What motive for telling the truth can a man possibly have when he is at the point of death?”[652]

Mention has already been made of the trial of Reading.[653] This was the first of a series of important cases which were conducted in the course of the ensuing year. Briefly, they were trials of Roman Catholics for fraudulent endeavours, in the words of the time, to stifle the Plot. Not to speak of the notorious Meal Tub Plot, the most determined and unscrupulous effort of the Roman Catholic party to remove the accusation of treason from themselves to their opponents,[654] there may be noticed four distinct attempts to impair by fraudulent and criminal means the evidence offered for the crown. As early as February 1679 information was laid before a committee of the privy council that an Englishman named Russell, who belonged to the household of the French ambassador, had endeavoured to suborn witnesses to invalidate the credit of Oates and Bedloe, and had offered the sum of £500 for the purpose. The council addressed to the ambassador a request for the delivery of the accused to stand his trial; but the case did not come into court, probably because Russell had either absconded or been shipped abroad.[655] The incident was kept secret and produced no consequences. But within twelve months three other attempts of the same nature were proved against Roman Catholic agents and exercised a considerable influence against their party. The trials of Reading for a trespass and misdemeanour, of Knox and Lane for a misdemeanour, and of Tasborough and Price for subornation of perjury must not be overlooked in forming a judgment on the events of which the courts of justice were the chief scene.

Nathaniel Reading was a Protestant attorney of some standing in his profession. Thirty years before he had been secretary to Massaniello in the insurrection at Naples, and was now living in London and enjoying a fair practice. He had been the friend and legal adviser of Lord Stafford for several years, numbered other gentlemen of title and repute among his acquaintance, and was of a position to receive an invitation to dinner from the Lieutenant of the Tower when he went to visit his client in prison.[656] During the Hilary term of 1679 he had been engaged in procuring the discharge on bail of several prisoners for the Plot, and had gone by leave of the secret committee of the House of Lords to advise the lords imprisoned in the Tower on the like subjects. In the course of his negotiations for them he had become acquainted with Oates and Bedloe, and acted as counsel for the latter in obtaining his pardon from the king. Bedloe was constantly in his company, and the two talked frequently of the nature of the Plot and the witness’ charges against the prisoners.[657] In public Reading exhorted Bedloe to reveal all his knowledge and bring the guilty to justice, but in private conversation suggested that it might be profitable to reduce his evidence against certain of those incriminated. The plot was blown to the winds, the king’s life out of danger, Bedloe would be able to feather his own nest, and no harm would be done. Bedloe promised to consider the matter and, as earnest of his good intentions, withdrew his evidence against Whitebread and Fenwick.[658] At the same time he carried the news of the intrigue to the committee of secrecy. Prince Rupert, the Earl of Essex, and Mr. Speke[659] were informed of the business, and Bedloe was advised to continue his negotiation in the hope of extracting something of importance. Reading had in the meantime gone to the lords in the Tower and brought from them promises of ample reward if Bedloe would consent to save them. A meeting was appointed for March 29, to make the final arrangements.[660] Before Reading appeared, Speke and another witness were hidden in the room in such a position that they could overhear every word which passed between the two men. They heard Bedloe ask, “What say my lords in the Tower now?” Reading replied that Lord Stafford had promised to settle an estate in Gloucestershire on the informer, and that he had orders to draw up a deed to that effect and sign it ten days after Lord Stafford’s discharge from prison. The Earl of Powis, Lord Petre, and Sir Henry Tichbourne also promised rewards if Bedloe would procure their acquittal. Bedloe then drew up an abstract of his evidence against the lords, and Speke saw Reading take the paper to deliver to them in the Tower. Two days later the attorney met Bedloe by appointment in the Painted Chamber at Westminster and gave him in answer to this a corrected version of the evidence which the accused had drawn up for his actual use at their trials. Bedloe without looking at the paper handed it at once to Mr. Speke, who carried it to a committee room in the House of Lords for examination.[661] This paper was read in court, and proved to contain an amended version of Bedloe’s testimony so vague and slight that it could not have possibly been of any use to the prosecution.[662]

Reading’s defence was sufficiently feeble. He was treated by the bench with the greatest indulgence and allowed to make a lengthy and unsupported discourse on Bedloe’s character. It is noteworthy that he objected to the witness not on the ground that he had perjured himself in holding back evidence at the trial of Whitebread, Fenwick, and Ireland, but on account of treasonable practices, which were covered by his pardon. He protested that the first proposal of the intrigue came from Bedloe, and that he only joined in it to prevent the shedding of innocent blood. The estate in Gloucestershire spoken of had been promised by Lord Stafford to himself, if he obtained his acquittal, and not to Bedloe, though hardly it seemed without the understanding that the informer was to have some share in it. He would have thought it a crime not to engage in the business; it was a duty which he owed to God and his country. By saying this he practically confessed to the whole indictment, and after a concise summing up the jury immediately returned a verdict of guilty. Reading was sentenced to be pilloried, to pay a fine of £1000, and to imprisonment for one year.[663]

The case of Knox and Lane was a still more disreputable affair. Thomas Knox was in the service of Lord Dumblane, the Earl of Danby’s son. John Lane and one William Osborne were servants to Titus Oates. These two were discharged by Oates in April 1679, Lane, who had some acquaintance with Dangerfield, was lodged by him and Mrs. Cellier under an assumed name at the house of the Countess of Powis.[664] At Dangerfield’s suggestion they approached Knox on the subject of the charges which Oates had made against the Lord Treasurer.[665] Knox agreed to their suggestion, and together they arranged the details of the scheme. Osborne and Knox lodged information that Oates had conspired with Bedloe to bring false accusations against Lord Danby, while Lane charged his master with using obscene language concerning the king and with the commission of an unnatural crime. But under examination Knox and Lane broke down, and all three were driven to confess that there was not a word of truth in the story which they had concocted. Osborne fled the country, and his two accomplices were clapped into gaol. News however was brought to Lane as he lay in prison that Knox was prepared to stand by his original story. He forthwith retracted his confession, and on November 19, 1679 indictment was brought against Oates “for an attempt to commit upon him the horrid and abominable sin of sodomy.” The grand jury ignored the bill, and a week later the two miscreants were brought to the king’s bench bar on the charge of “a conspiracy to defame and scandalise Dr. Oates and Mr. Bedloe; thereby to discredit their evidence about the horrid Popish Plot.” After a long trial, in which the defendants were treated with all fairness and in which each attempted to throw the blame on the other, the jury returned a verdict of guilty without leaving the bar. The prisoners were sentenced to fine and imprisonment, and Lane in addition to stand for an hour in the pillory. The verdict was received with a shout of applause, “many noblemen, gentlemen, and eminent citizens,” adds the account which was drawn up under Oates’ direction, “coming with great expectations of the issue of this trial, which was managed with that justice, impartiality, and indifference between the king and the defendants, that some have been heard to say they could never believe a plot before, but now they were abundantly satisfied.”[666]

The labyrinthine nature of the intrigues connected with the Popish Plot is amply illustrated by these two trials. The third case presents less intricacy, but no less dishonesty. In January 1680 John Tasborough and Anne Price were tried for subornation of perjury in having offered a bribe to the informer Dugdale to retract the evidence which he had given at the trial of Whitebread, Harcourt, and Fenwick. Mrs. Price had been a fellow-servant with Dugdale in the household of the Roman Catholic peer, Lord Aston. On the night before the trial of the five Jesuits[667] she came to him and begged him not to give evidence against Father Harcourt, who was her confessor. When the trial was over she renewed her solicitations, offering him the reward of £1000 and the Duke of York’s protection if he would recant what he had then sworn. Dugdale was introduced to Tasborough, a gentleman belonging to the duke’s household.[668] Meetings were held at the Green Lettice Tavern in Brownlow Street and at the Pheasant Inn in Fullers-rents. Tasborough confirmed the promises made by Mrs. Price. The informer was to sign a declaration that all his evidence had been false, to receive £1000 in cash, and to be maintained abroad by the Duke of York. The name of the Spanish ambassador was also mentioned. But Dugdale, as Bedloe before him, had secreted witnesses at these interviews. The intriguers were arrested, and the whole story was proved beyond the possibility of doubt at their trial.[669] Tasborough was sentenced to the fine of £100, Price to the fine of twice that sum. All parties at the trial were at considerable pains to exonerate the Duke of York. There was in fact no direct evidence against him; but it is improbable that the culprits had been using his name entirely without authority. They must have known that Dugdale would not put his name to the recantation without substantial guarantee for the reward, and certainly neither was in a position to pay any sufficient part of the sum mentioned from his own resources.

The evidence which Dugdale should have retracted was considerable. His reputation was still undamaged. He had been steward of Lord Aston’s estate at Tixhall, in Staffordshire, was thought to have enjoyed a fair reputation in the county, and to have been imprisoned in the first instance for refusing to take the oaths of allegiance and supremacy.[670] Although he had laid information before the privy council as early as December 1678, it was not until the trial of the Five Jesuits[671] on June 13 of the year following that he appeared in court. The case for the prosecution was opened, as usual, with the evidence of Oates, He reaffirmed the story which he had told at the trial of Whitebread, Fenwick, and Ireland, and gave similar evidence against Harcourt, Gavan, and Turner. Dugdale was then called. He swore to treasonable consults held at Tixhall in September 1678, where Gavan and Turner were present, to treasonable letters between Whitebread, Harcourt, and others, and to a letter dispatched from London by Harcourt on October 20, 1678, addressed to Evers, another Jesuit, and containing the words “This night Sir Edmond Bury Godfrey is dispatched.”[672] The death of the king was to be laid at the door of the Presbyterian party. A general massacre of Protestants was to follow, “and if any did escape that they could not be sure of were papists, they were to have an army to cut them off.”[673] Bedloe followed with the evidence which he had before suppressed against Whitebread and Fenwick, and swore similarly to the treason of Harcourt. Some trifling evidence from Prance closed the first part of the case for the crown.[674] But almost more important than the oral testimony were two letters which were read in court. The one was a note from Edward Petre, containing a summons to the congregation fixed for April 24, 1678; the other a letter from Christopher Anderton, dated from Rome, February 5, 1679, in which occurred the following sentences: “We are all here very glad of the promotion of Mr. Thomas Harcourt; when I writ that the patents were sent, although I guess for whom they were, yet I know not for certain, because our patrons do not use to discover things or resolutions till they know they have effect. And therefore in these kind of matters I dare not be too hasty, lest some might say, a fool’s bolt is soon shot.” Both had been found among Harcourt’s papers several days after Oates was examined by the privy council.[675] They seemed to confirm his evidence in a remarkable manner. He had constantly spoken of the Jesuit design; the former of the letters contained the same word and enjoined secrecy on the subject. The latter seemed to refer to the patents which Oates had declared were sent to the commanders of the popish army. The prisoners explained that the “design” of the congregation was but to settle the business of their order and to choose a procurator to undertake its management at Rome. As for the patents, Anderton had meant to say _Literae Patentes_, and referred only to Harcourt’s patent as new provincial. _Literae Patentes_, contended the court, when used in reference to one person, meant a patent; but when the phrase was translated patents, it necessarily pointed at more than one. Oates, said the Chief Justice, interpreted the matter more plainly than the accused.[676]

The Jesuits proceeded to make their defence. Sixteen witnesses were called to prove that Oates had been at St. Omers from December 1677 to June 1678, and had not left the college at the time when he swore that he was present at the consult in London. This was the perjury upon which he was convicted at his first trial in 1685. Five witnesses were called to testify that Gavan had not been in town in April 1678; ten, that Ireland had been in the country in August and September of the same year. Very similar evidence to that now given was accepted six years later by the court to substantiate the charge against Oates, but at the trial of Whitebread, Harcourt, and Fenwick it was disbelieved. The witnesses were examined in detail and gave an elaborate account of the life at the seminary. But the story which they told was not altogether satisfactory. Under examination they shuffled and prevaricated. Sometimes they contradicted one another on points of time. They came prepared to speak to the date of the consult and the time immediately before and after it. When questions were put about dates less closely concerned, they seemed unwilling to answer. One, who declared that he had left Oates at St. Omers on taking leave for England to go to the congregation, was confounded when Oates reminded him that he had lost his money at Calais and had been compelled to borrow from a friend. Another confused the old and new styles. A third stated that whenever a scholar left the college the fact could not but be known to all his fellows. He was immediately contradicted by Gavan, who said that care was taken that the comings and goings of the seminarists should be unnoticed.[677] A rumour was spread abroad that witnesses had been tutored, and was repeated by Algernon Sidney in a letter to Paris.[678] For once rumour was not at variance with truth. Sidney’s information was perfectly correct. Three of the lads from St. Omers were arrested on their arrival in London by Sir William Waller, and their examinations were forwarded by him to the secret committee of the House of Commons. One of these was Christopher Townley, alias Madgworth, alias Sands, who had been a student in the seminary for six years. He admitted that “his instructions from the superior was to come over and swear that Mr. Oates was but once from the college at St. Omers, from December 1677 to June following.” Of his own knowledge he could say no more than that he had been in the seminary all the time during which Oates was there; “the said Mr. Oates might be absent from St. Omers in that time for several days and at several times, but not absent above one week at a time, this examinant being lodged in the college where Mr. Oates was, but did not see him daily.”[679] At the trial he did not scruple to say that he had seen and talked with Oates on every day throughout April and May and that, if Oates had ever been absent, he must certainly have known it.[680] Nor was this all. At his examination he deposed that Parry, Palmer, and Gifford were all absent from St. Omers while Oates was an inmate of the college. At the trial Gifford, Palmer, and Parry were produced to give evidence of their personal knowledge that Oates had been there the whole of the time.[681] No credence whatever can be given to such witnesses. It is worthy of remark that they were housed and entertained by no other than Mrs. Cellier, who was afterwards deeply concerned both in the Meal Tub Plot and in the case of Knox and Lane, and was pilloried for an atrocious libel in connection with the murder of Sir Edmund Berry Godfrey.[682] No doubt can exist on the subject of Oates’ repeated and astounding perjuries. It is as little open to doubt that the witnesses who were opposed to him at this trial were almost equally untrustworthy. They were in fact very cleverly parroted. If his infamy remains undisturbed, the unctuous indignation with which it was denounced by the Jesuits, at the very moment when they were employing means as unhallowed as his own to controvert his statements, at least entitles them to a place by his side in the pillory of history.

Even at this point the false evidence given at this terrible trial was not ended. The crown produced seven witnesses to prove that Oates had been in London at the end of April and the beginning of May 1678. Of these the only two who gave evidence of any weight were Smith, who had been Oates’ master at Merchant Tailors’ School, and Clay, a disreputable Dominican friar, whom Oates had taken out of prison. Both were afterwards proved to have been suborned by Oates and to have perjured themselves.[683]

The Jesuits concluded their defence with speeches of real eloquence. Scroggs summed up the evidence in an elaborate speech and strongly in favour of the crown; and after a quarter of an hour’s absence the jury returned to court with a verdict of guilty against all the prisoners.[684]

On the next day Richard Langhorn was indicted at the Old Bailey for practically the same treason as that for which the Five Jesuits were convicted. Langhorn was a Roman Catholic barrister of considerable eminence.[685] He was the legal adviser of the Jesuits, and conducted for them much business which would now more naturally pass through the hands of a solicitor. Oates consequently named him as an active agent in the Plot and prospective advocate-general under the new government.[686] His trial was a continuation of the trial of Whitebread, Harcourt, and Fenwick, and exhibited all the same characteristics, of perjury on the one side, on the other of prevarication and falsehood. The same evidence was developed at length, and with the same result. Two fresh points of importance alone occurred. To Oates’ great alarm the hostess of the White Horse Tavern in the Strand was called by the defence. Oates had sworn that as many as eighteen or twenty Jesuits had met together there in one room at the congregation of April 24. The woman now declared that no room in her house would hold more than a dozen persons at the same time, and that when a parish jury had once met there the jurors had been compelled for want of space to separate into three rooms. This would undoubtedly have produced an effect, had not three of the spectators in court immediately risen to swear that there were two rooms in the inn which were large enough to hold from twenty to thirty people without crowding them unduly. An unfavourable impression concerning the evidence for the defence was created, and the king’s counsel was able to score an effective point.[687]

Of greater weight than this was a portion of Bedloe’s evidence. He swore that he went one day with Coleman to Langhorn’s chambers in the Temple, and from the outer room saw the lawyer transcribing various treasonable letters brought by Coleman into a register at a desk in his study within.[688] The nature of cross-examination was so imperfectly understood at the time that Langhorn did not attempt to question the witness on the shape of his rooms or to shake his credit by calling evidence to the point. In his memoirs, which were published in the course of the same year, he wrote the following comment on Bedloe’s statement: “Every person who knows my said chamber and the situation of my study cannot but know that it is impossible to look out of my chamber into my study so as to see any one writing there, and that I never had at any time any desk in my study.”[689] This was supported by other evidence. When Oates and Bedloe exhibited in 1680 “articles of high misdemeanours” against Scroggs before the privy council, they charged him in one that at the previous Monmouth assizes he “did say to Mr. William Bedloe that he did believe in his conscience that Richard Langhorn, whom he condemned, died wrongfully.” To which the Chief Justice answered “that at Monmouth assizes he did tell Mr. Bedloe that he was more unsatisfied about Mr. Langhorn’s trial than all the rest; and the rather, that he was credibly informed, since the trial, that Mr. Langhorn’s study was so situated that he that walked in his chamber could not see Mr. Langhorn write in his study; which was Mr. Bedloe’s evidence.”[690]

This was not the first incident which shook the credit of the witnesses in the Chief Justice’s mind. He had in the meantime received a still more striking proof of their worthlessness. On July 18, four days after the execution of Langhorn and nearly a month after that of the Five Jesuits, Sir George Wakeman, in company with three Benedictines, was brought to trial at the Old Bailey. Wakeman was accused of having bargained with the Jesuits for £15,000 to poison the king. The other three were charged with being concerned in the Plot in various degrees. Feeling had run so high after the last two trials that the case was postponed from the end of June for nearly three weeks, that it might have time to cool.[691] Interests were at stake which had not been present in the previous trials. In November of the year before, Oates and Bedloe had accused the queen of high treason, and Oates had sworn that Sir George Wakeman, who was her physician, had received from her a letter consenting to the king’s death.[692] The queen was now implicated with Wakeman, and the trial was regarded as the prelude to an attack on herself.[693]

Before the crown lawyers opened the direct attack, witnesses were, as usual, produced to testify to the reality of the plot. Prance and Dugdale reaffirmed their previous evidence, and Jennison, himself the brother of a Jesuit, swore that he had met Ireland in London on August 19, 1678, thus proving to the satisfaction of the court that Ireland had died with a lie in his mouth.[694] The prosecution then came to the prisoners. Oates told again the story how he had heard the queen at a meeting at Somerset House consent formally to the plot for murdering the king, and swore that he had seen a letter from Wakeman to the Jesuit Ashby, which was occupied chiefly with a prescription for the latter during his stay at Bath, but mentioned incidentally that the queen had given her approval to the scheme. He had also seen an entry in Langhorn’s register of the payment of £5000 made by Coleman as a third part of Wakeman’s fee and a receipt for it signed by Wakeman himself.[695] Bedloe gave evidence which would prove equally the guilt of the queen and her physician, and both swore to the treasonable practices of the other prisoners.[696] To rebut this, Wakeman produced evidence to prove that he had not written the letter for Ashby himself, but had dictated it to his servant Hunt. The letter was addressed to Chapman, an apothecary at Bath, who read it and then tore off and kept the part containing the prescription. Hunt proved that the letter was in his handwriting and was corroborated by another servant in Wakeman’s household. Chapman proved that the body of the letter was in the same handwriting as the prescription, that it contained nothing about the queen or any plan for the king’s murder, and that Oates had given an entirely inaccurate account of the prescription, which was so far from ordering a milk diet, as Oates had sworn that milk would have been not far removed from poison for a patient who was drinking the waters at Bath. Scroggs was afterwards accused of having grossly favoured the prisoner in order to curry favour at court; but the manner in which this evidence was received is an absolute proof to the contrary. The bench held, in a way that now excites surprise, but at the time did not, that Oates had meant that the milk diet was prescribed for Ashby before he went to Bath, and was therefore not at all inconsistent with drinking the waters while he was there; and that Wakeman might easily have written two letters on the same subject. No doubt, said the judges, the witnesses for the defence spoke the truth. What had happened was that Sir George had dictated one letter, which consisted of nothing but medical directions, and of which the apothecary and the other witnesses spoke; but he must certainly have written another, containing the treasonable words to which Oates swore. The court treated the matter as if this were beyond a doubt. To the prisoner’s objection that he was unlikely to have written two letters to convey the same instructions, Mr. Justice Pemberton replied, “This might be writ to serve a turn very well”; and Scroggs closed the discussion by remarking, “This your witnesses say, and you urge, is true, but not pertinent.”[697] Shortly before Wakeman turned to his fellow-prisoners and said, “There is my business done.” He knew that in all human probability he would be condemned. Suddenly, without any warning, there occurred the most unexpected event, which, in a dramatic moment unsurpassed by the most famous in history, shattered the credit of Oates and produced the first acquittal in the trials for the Popish Plot.[698] Sir Philip Lloyd, clerk to the privy council, was asked to state with what Oates had charged the prisoner at his examination before the council. The evidence deserves to be given in Sir Philip’s own words: “It was upon the 31st of September,” he stated; “Mr. Oates did then say he had seen a letter, to the best of his remembrance, from Mr. White to Mr. Fenwick at St. Omers, in which letter he writ word that Sir George Wakeman had undertaken the poisoning of the king, and was to have £15,000 for it; of which £5000 had been paid him by the hands of Coleman. Sir George Wakeman, upon this, was called in and told of this accusation; he utterly denied all, and did indeed carry himself as if he were not concerned at the accusation, but did tell the king and council he hoped he should have reparation and satisfaction for the injury done to his honour. His carriage was not well liked of by the king and council, and being a matter of such consequence as this was, they were willing to know further of it; and because they thought this evidence was not proof enough to give them occasion to commit him, being only out of a letter of a third person, thereupon they called in Mr. Oates again, and my Lord Chancellor desired Mr. Oates to tell him if he knew nothing personally of Sir George Wakeman, because they were in a matter of moment, and desired sufficient proof whereupon to ground an indictment; Mr. Oates, when he did come in again and was asked the question, did lift up his hands (for I must tell the truth, let it be what it will) and said, ‘No, God forbid that I should say anything against Sir George Wakeman, for I know nothing more against him.’ And I refer myself to the whole council whether it is not so.”

Great Birnam wood to high Dunsinane Hill, marching against Macbeth, or the duke uncloaking to Angelo could not create a greater sensation. “My lord,” cried Sir George Wakeman, “this is a Protestant witness too.” Oates began to bluster. He remembered nothing of all this. He did not believe that any such question was asked him at the council board. If there had been, he was in such a state of exhaustion after being deprived of his rest for two nights in succession that he was not in a condition to answer anything. “What,” returned Scroggs, “must we be amused with I know not what for being up but two nights?... What, was Mr. Oates just so spent that he could not say, I have seen a letter under Sir George Wakeman’s own hand?” The informer swore that to his best belief he had spoken of the letter; or if he had not, he believed Sir Philip Lloyd was mistaken; or if not that, he was so weak that he was unable to say or do anything. Then he completely lost control of himself and broke out recklessly: “To speak the truth, they were such a council as would commit nobody.” “That was not well said,” put in Jeffreys quickly. “He reflects on the king and all the council,” cried Wakeman. At this the wrath of the Chief Justice burst out on the perjured miscreant. “You have taken a great confidence,” he thundered, “I know not by what authority, to say anything of anybody”; and becoming more grave, pointed out the decisive importance of what had been proved against him, Oates did not open his mouth again during the rest of the trial.[699]

The case still dragged on its weary length. Numerous other witnesses were called to prove and disprove points of varying importance and connection with the matter at issue. All the prisoners against whom Oates and Bedloe had sworn made long speeches and discoursed on a hundred irrelevant topics. Marshal, the Benedictine, lectured the court and delivered an impassioned harangue on the injustice of the English nation and on the future state. He was stopped and, beginning again, drew down on himself from Scroggs a violent rebuke in which he declared his belief that it was possible for an atheist to be a papist, but hardly for a knowing Christian to be a Christian and a papist. When the heated wrangle which followed was ended, the Chief Justice summed up, setting the evidence on both sides in a clear light and pointing out where its strength lay against the prisoners, but plainly intimating his opinion that the revelation made by Sir Philip Lloyd went far to invalidate Oates’ testimony. As the jury were leaving the box Bedloe broke in: “My lord, my evidence is not right summed up.” “I know not by what authority this man speaks,” said Scroggs sternly. After the absence of about an hour the jury returned. Might they, they asked, find the prisoners guilty of misprision of treason? “No,” replied Jeffreys, the Recorder, “you must either convict them of high treason or acquit them.” “Then take a verdict,” said the foreman; and returned a verdict of not guilty for all the prisoners.

Scarcely was the trial over when a storm broke upon the head of the Lord Chief Justice. He had already earned the hatred of the ferocious London mob by accepting bail for Mr. Pepys and Sir Anthony Deane, who were in prison on account of the Plot.[700] Now the feeling against him amounted to positive fury. Sir George Wakeman, after visiting the queen at Windsor, fled the country to escape the effects of the popular rage.[701] Scroggs stood his ground. The London presses teemed with pamphlets against him. _Some observations upon the late trials of Sir George Wakeman_, etc., by Tom Ticklefoot; _The Tickler Tickled_; _A New Year’s Gift for the Lord Chief in Justice_ are among those which deserve to be remembered for their especial virulence. The Portuguese ambassador had the egregious folly to call publicly upon Scroggs the day after the trial and to thank him for his conduct of the case.[702] It was immediately said that the Chief Justice had been bribed. A barrel packed with gold had been sent to him. “Great store of money” had been scattered about. The jury had been bribed. A good jury had been impanelled, but was never summoned, and a set of rascals was chosen in its place.[703] When Scroggs went on circuit for the autumn assizes he was met in the provinces with cries of—A Wakeman, a Wakeman; and at one place a half-dead dog was thrown into his coach.[704] Early in the year following Oates and Bedloe exhibited thirteen articles against the Chief Justice before the privy council, and Oates declared that “he believed he should be able to prove that my Lord Chief Justice danced naked.” On January 21 Scroggs justified himself in a set reply of great skill and wit, and the informers met with a severe rebuff.[705] His other traducers were treated with no greater courtesy. At the opening of the courts for the Michaelmas term of 1679 Scroggs made an able speech of eloquence, distinction, and almost sobriety, in which he grounded his belief in the Plot on the correspondence of Coleman and Harcourt and vindicated the integrity of the judicial honour; and on May 20, 1680 one Richard Radley was fined £200 for saying that the Chief Justice had “received money enough from Dr. Wakeman for his acquittal.”[706] In September 1679 he was received with great favour at the court at Windsor and in December caused horrid embarrassment to Lord Shaftesbury and several other Whig noblemen, whom he met at dinner with the Lord Mayor, by proposing the health of the Duke of York and justifying his own conduct on the bench.[707] In January 1681 he was impeached by the Commons. When the articles of his impeachment were brought up to the House of Lords he was treated, to the indignation of the Whig party, with great consideration and favour; but although the lords refused even to put the question “whether there shall now be an address to the king to suspend Sir William Scroggs from the execution of his place until his trial be over?” he was absent from court at the beginning of the Hilary term, and did not take his place upon the bench during the rest of the term.[708] Three days after the opening of the Oxford parliament Scroggs put in his answer to the impeachment. He denied the truth of the articles exhibited against him severally, and insisted that the nature of the facts alleged in them was not such as could legally be made the ground for a charge of high treason. He prayed the king for a speedy trial.[709] Copies of his answer and petition were sent to the House of Commons, but before further proceedings could be taken Parliament was dissolved on March 28, and the impeachment was blown to the winds in company with other Whig measures of greater importance and still less good repute. The Chief Justice was not left long in the enjoyment of his triumph. In April 1681 Charles removed him from the bench and appointed Sir Francis Pemberton to be Chief Justice in his place. The move was no doubt directed by the approaching trial of Fitzharris. For this was undertaken in the teeth of the bitter opposition of the Whig party, and it was expedient that a man who was already odious to Shaftesbury’s adherents should not endanger the success of the crown by his presence on the bench on so important an occasion. The late Chief Justice was compensated by an annual pension of £1500 and the appointment of his son to be one of “his Majesty’s counsel learned in the law.”[710]

Sir William Scroggs, Chief Justice of the court of king’s bench, was a man of a type not uncommon in the seventeenth century. He was vulgar and profligate, a great winebibber, stained by coarse habits and the ignorant prejudices common to all of his day but the most temperate and learned, but a man of wit, shrewdness, strong character, and master of the talents which were necessary to secure success in the legal profession as it then was.[711] The prominent position into which he was brought by the trials for the Popish Plot has earned for him a reputation for evil second in the history of the English law courts only to that of Jeffreys. He has been accused of cowardice, cruelty, time-service, of allowing his actions on the bench to be swayed by party spirit, and of using his position with gross injustice to secure the conviction of men who were obnoxious to the popular sentiment. These charges cannot be substantiated. When the evidence of interested partisans by whom he was lauded or abused is stripped away, they rest on two grounds: the fact that he presided at trials where men were condemned for the Popish Plot, and at one where men were acquitted of similar charges; and the nature of his speeches in court at those trials. It was said that he obtained the acquittal of Sir George Wakeman because he realised that the king “had an ill opinion” of the Plot, and because he had been told that the popular leaders had no support at court; and that he had taken an opposite course at the previous trials because he believed the contrary to be true.[712] These statements have passed for truth ever since they were made, and have been repeated by one writer after another. They were in fact feeble attempts to explain what their authors did not understand. They are contradicted not only by the statements of other contemporaries, which are of small weight, but by the whole course of the Lord Chief Justice’s action and the circumstances by which he was surrounded. From the very outbreak of the Popish Plot it was notorious in official circles that the king discredited the evidence offered by the informers.[713] It is absurd to suppose that Scroggs was ignorant of the fact. If anything, Charles was rather more inclined to believe in the Plot in the spring of 1679 than on Oates’ first revelations.[714] No judge could possibly have expected to gain favour at court by an exhibition on the bench of zeal which was directed against the court. Still more absurd is it to suppose that a man in the position of the Lord Chief Justice should have imagined that the Earl of Shaftesbury exercised a favoured influence over the king’s mind. Nor does Scroggs’ conduct on the bench afford good ground for these accusations. His behaviour in the test case, the trial of Sir George Wakeman, was exactly the same as it had been in all the previous trials, and exactly the same as it was at the later trials over which he presided, whether they were of priests charged with treason on account of their orders, of persons charged with treason in the Plot, or for offences of a less high character.[715] It is scarcely surprising to hear that after the attack made on him by Oates and Bedloe, “whensoever either of them have appeared before him, he has frowned upon them, spoke very frowardly to them and reflected much upon them.”[716] Nevertheless he treated their evidence quite fairly. The rule was that only a conviction of perjury could disqualify a witness, and Scroggs enforced it without prejudice.[717] Throughout he had the entire support of the other judges, and not least that of Chief Justice North.[718] His mind was filled, equally with theirs, with the fear and horror of popery, and as the chief part of the speaking fell to his lot he expressed this more often and more emphatically than his brethren. But he made up his mind on the merits of each case in accordance with the evidence which was then given and with the stringent and unjust rules of procedure which had been handed down to him. Scroggs was neither a judge of remarkable merit nor a lawyer of learning, but on the evidence which was brought before him, and which was not then, as it would be now, rendered incredible by its own character, he did in a rough manner sound justice.

For the violence and brutality of his speeches there can be no more excuse than for the coarseness and violence of all speech and action in the age in which he lived. But his words must not be judged alone, nor must his manner of speech be considered peculiar. Language in the latter half of the seventeenth century was harsh and exaggerated to a degree hardly comprehended to-day. Scroggs constantly launched forth into tirades against the Roman Catholic religion, full of heated abuse. Sometimes he attributed to the Jesuits, at others to all papists, the bloody, inhuman, abominable doctrine that murder, regicide, and massacre were lawful in the cause of religion. “Such courses as these,” he declared, “we have not known in England till it was brought out of their Catholic countries; what belongs to secret stranglings and poisonings are strange to us, though common in Italy.”[719] He told Coleman, “No man of understanding, but for by-ends, would have left his religion to be a papist.... Such are the wicked solecisms in their religion, that they seem to have left them neither natural sense nor natural conscience: not natural sense, by their absurdity in so unreasonable a belief as of the wine turned into blood; not conscience, by their cruelty, who make the Protestants’ blood as wine, and these priests thirst after it; Tantum religio potuit suadere malorum?”[720] The onslaught on Ireland, Pickering, and Grove was still more virulent: “I would not asperse a profession of men, as priests are, with hard words, if they were not very true, and if at this time it were not very necessary. If they had not murdered kings, I would not say they would have done ours. But when it hath been their practice so to do; when they have debauched men’s understandings, overturned all morals, and destroyed all divinity, what shall I say of them? When their humility is such that they tread upon the necks of emperors; their charity such as to kill princes, and their vow of poverty such as to covet kingdoms, what shall I say to them?... This is a religion that quite unhinges all piety, all morality, and all conversation, and to be abominated by all mankind.”[721] Yet Scroggs’ language was no stronger than that of his brothers on the bench. Jeffreys in sentencing Ireland, Wild in sentencing Green, Jones in sentencing Tasborough attained an exactly similar style. At the trial of Penn and Mead in 1670 the court was at least equally ill-mouthed, and nothing ever heard in a court of justice surpassed the torrents of venomous abuse which Coke, as Attorney-General, poured upon the head of Raleigh at his trial in 1603. One fact in judicial procedure exercised an immense influence on the nature of speeches from the bench. The judges took no notes.[722] In summing up the evidence they relied solely upon memories developed for this purpose to an extent which seems almost marvellous. But another result besides this remarkable mental training was that in his summing up the judge had no set form by which to direct himself. There was not the constraint which comes from the necessity of following a definite guide on prosaic slips of paper. It followed that the whole of this part of his work was far more loose and undefined than it has come to be since the additional burden of taking notes has been imposed. Not only could he, but it was natural that he should, break off from the course of the evidence to interpose comments more or less connected with it; and in the days of little learning and violent religious prejudice, the judge’s comment was likely to take the form of abuse of the creed which he did not profess.

Men of the seventeenth century habitually expressed their thoughts with a coarseness which is disgusting to the modern mind. A man named Keach, who had taught that infants ought not to be baptized, was indicted for “maliciously writing and publishing a seditious and venomous book, wherein are contained damnable positions contrary to the book of common prayer.”[723] At his speech at the opening of Parliament in 1679 Lord Chancellor Finch likened the Roman Catholic priests and their pupils to “the Sons of Darkness,” and declared that “the very shame and reproach which attends such abominable practices hath covered so many faces with new and strange confusions, that it hath proved a powerful argument for their conversion; nor is it to be wondered at that they could no longer believe all that to be Gospel which their priests taught them, when they saw the way and means of introducing it was so far from being Evangelical.”[724] Other parties were equally violent; and on two separate occasions Shaftesbury swore that he would have the lives of the men who had advised the king to measures obnoxious to his party. The most notorious of all Scroggs’ utterances, an acrid sneer at the doctrine of transubstantiation: “They eat their God, they kill their king, and saint the murderer,” is paralleled almost exactly by Dryden’s couplet:

Such savoury deities must needs be good.
As served at once for worship and for food;[725]

and Dryden, who at this time belonged to the court and high church party, became within five years himself a Roman Catholic. The whole literature of the time bears witness to the fact that such language was scarcely beyond the ordinary. It was a convention of the age and must be accepted as such. There would be no greater mistake than to attribute to words of the sort too great an influence on action. The results which attended them were unimportant. Of all Chief Justice Scroggs’ harangues the most consistently brutal and offensive was that directed at Marshal, at the trial of Sir George Wakeman.[726] Yet it was followed immediately by a fair summing up and the acquittal of the prisoners.