Chapter III · (continued 2)

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:

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.

Only one other case demands attention in this review of the trials for the Popish Plot. The trial of Elizabeth Cellier for high treason belongs rather to the history of the Meal Tub Plot; those of Sir Thomas Gascoigne, Sir Miles Stapleton, Thwing, and Pressicks to the provincial history of the Plot; that of Archbishop Plunket to its history in Ireland. The acquittal of Lord Castlemaine is chiefly important as an episode in the infamous career of Dangerfield, the informer. The proceedings against Fitzharris belong rather to the history of Whig conspiracy against the crown, the transition to which they mark.727 But the trial of Lord Stafford calls for more lengthy notice. It was the last of the treason trials for the main Popish Plot, and ranks in importance with the weightiest of those which went before. More than two years had now elapsed since the beginning of the ferment caused by the Plot. During that time it had exercised a magic over men’s minds. This influence was now suffering a decline. The acquittals of Wakeman, Lord Castlemaine, and Sir Thomas Gascoigne had wrought the mob to fury against the court and the Roman Catholics, but they had also sown doubts in the judgment of intelligent persons as to the credit of the informers and the truth of the facts to which they swore. At the end of the year 1680 it was doubtful, said Sir John Reresby, “whether there were more who believed there was any plot by the papists against the king’s life than not.”728 The situation of the Whig party was critical. Their violent espousal of the Plot and the concentration of all their efforts upon the propagation of ultra-Protestant designs had brought about the result that, should the Plot be discredited before they had gained their object in excluding the Duke of York from the succession to the throne, their power would vanish into thin air. To stave off a day of such evil and to re-establish on its former firm footing the general belief in “the bloody designs of papists,” the trial of Giles for the bogus attempt on Captain Arnold’s life had been undertaken.729 With the same object Lord Stafford was brought to trial. His imprisonment had already lasted for two years and two months.730 He was now brought to the bar in preference to any of the other four noblemen who had been imprisoned with him because, as was believed at court, his advanced age and bodily infirmity rendered him a more easy prey to the rancour of the House of Commons.731 On all sides the case was regarded as of the utmost importance. If the prisoner were condemned the Whigs would gain a great advantage. If he were acquitted, the prosecution of the Plot, which was their sole weapon, would suffer a disastrous check.732

Stafford’s trial was conducted upon a scale befitting its consequence. Seven days were occupied in its process, a length which was at the time unprecedented. As many as sixty-one witnesses were called on the one side and on the other. For those who appeared for the prosecution the cost of summons and entertainment amounted to a hundred pounds.733 The court of the Lord High Steward was held in Westminster Hall. Round the hall were arranged galleries, from which privileged persons watched the proceedings with the keenest interest. From her seat in a private box the Duchess of Portsmouth exerted her charms upon the members of the House of Commons stationed near her, distributing “sweetmeats and gracious looks.” Another box was reserved for the queen. In a third sat the king, a constant attendant during every day of the trial.734 Opposite the bar was the seat of the Lord High Steward, and near by were placed the managers of the prosecution, Sir William Jones, Sergeant Maynard, Winnington, Treby, Trevor, Powle, the most distinguished lawyers of the House of Commons.

On November 30, 1680, his sixty-ninth birthday, Thomas Howard, Lord Viscount Stafford, was brought to the bar. That nothing might be omitted against the prisoner, the managers called witnesses to prove the reality and general designs of the Popish Plot. The whole story was gone into at immense length. Oates, Dugdale, Jennison, a secular priest named John Smith, and Bernard Dennis, a Dominican friar, gave a volume of evidence to the point. The records of the conviction of nineteen persons for treason and other charges connected with the Plot, beginning with Coleman and ending with Giles, were proved and the record of Coleman’s attainder was read. Thus the whole of one day was occupied.735 On the following morning the managers proceeded to call witnesses to the treason of Lord Stafford. The mass of evidence which they gave may be reduced to three points. Dugdale swore that at a certain meeting held at Tixhall, in Staffordshire, about the end of August or the beginning of September 1678, the accused had given his full assent to the plot for taking away the king’s life, and in September had offered him the sum of £500 to be the actual murderer.736 Oates swore that he had seen letters to various Jesuits, signed Stafford, containing assurances of his zeal and fidelity to the design; that the prisoner had in his presence received from Fenwick a commission constituting him paymaster-general of the forces; and that, in conversation with Fenwick, Lord Stafford had said he did not doubt that “Grove should do the business,” adding with reference to the king, “he hath deceived us a great while, and we can bear no longer.”737 Lastly Turbervile, a new witness, swore that after a fortnight’s acquaintance with the prisoner in Paris, in the year 1675, he had directly proposed to him to kill the king of England, who was a heretic and a rebel against Almighty God.738 Round these charges the contest was waged hotly. Lord Stafford and his witnesses doing battle against the managers and theirs. On the third day the attack was directed on Dugdale. A servant of Lord Aston proved that the informer had lived in bad repute at Tixhall, that he was discharged from his post of steward, that he ran away to escape his creditors, was caught and imprisoned for debt, and that he had sworn by God that he knew nothing of any plot.739 The last was confirmed by the magistrates who had arrested Dugdale for debt. He had then been examined about the Plot and denied all knowledge of it. Only two days later he made a full confession.740 Two servants of the accused were called to prove the nature of the interview in which Dugdale swore that Lord Stafford offered him £500 to kill the king. Every circumstance of it was fully explained. The witnesses had been in the room the whole time, and deposed that the conversation had turned upon nothing more serious than the chances of a horse-race in the neighbourhood.741 Other Staffordshire men testified to Dugdale’s evil reputation, and two artisans of Tixhall stated that Dugdale had offered them separately money to swear against Lord Stafford.742

Of Oates’ evidence little could be made for the defence, but Stafford was able to point out that after having solemnly declared to the House of Lords that he could accuse no other persons “of whatsoever quality they be,” he had proceeded to charge the queen herself with high treason.743

Again Dugdale was called and cross-examined on his deposition of December 24, 1678, which was read from the journal of the House of Lords. In that he had said “that presently after one Howard, almoner to the queen, went beyond seas, he was told by George Hobson (servant to the said Lord Aston) that there was a design then intended for the reformation of the government of the Romish religion.” He now swore that he did not know Hobson before the latter came into Lord Aston’s service in 1678. Stafford seized upon this as evidence either that Dugdale was lying, or that his information, sworn two years before, was false. Dugdale contended that the meaning of the clause “was that Hobson told me that presently after almoner Howard went over, there was such a design carrying on.” It is a testimony to the obscurity of the style of ordinary English prose at the end of the seventeenth century that the court held, in apparent opposition to common sense and common justice, that the construction which Dugdale gave to the sentence was not only possible, but the more probable.744

Turbervile, the third of the informers, was met in his evidence by numerous contradictions. It was proved that in his original deposition he had altered two dates the day after having sworn to their accuracy. Both in his deposition of November 9, 1680 and at the trial in the course of examination he had sworn that he had constantly seen Lord Stafford in Paris during a fortnight in 1675 when Stafford was ill with gout, and that the prisoner then pressed him to undertake the murder of the king. Two of Lord Stafford’s servants who had been with him in Paris now proved that they had never once seen Turbervile during that time, and that their master had not been ill or lame with gout for at least seven years.745 Material evidence was brought against the witness on other points. He had sworn that at the end of 1675 Lord Stafford had returned to England by Calais, sending him by Dieppe. The contrary was now proved by an independent witness. It was also proved by a French servant belonging to the household of Lord Powis that Turbervile had lodged with him in Lord Powis’ house in Paris at a time when he professed to be in fear for his life of the earl himself, and by his brother, John Turbervile, that whereas he had sworn that Lord Powis threatened to have him disinherited, he had not at any time had even a remote chance of any inheritance whatsoever.746

On the fourth day of this ponderous trial Lord Stafford closed his main defence. He pointed to the turpitude of Oates’ character, and spoke with emotion of his abhorrence that a man guilty of such immorality as to profess a change of religion which he did not experience should be allowed to give evidence against a peer among his peers. “I appeal to your lordships,” he cried, “whether such ... is not a perjured fellow, and no competent witness? No Christian, but a devil, and a witness for the devil.” Even Oates himself was flustered and had to be restrained by the managers from breaking into excesses.747

The prosecuting Commons however were undismayed. They called a swarm of witnesses to set up the character of the informers and to destroy that of witnesses for the defence. It was proved by word of mouth and the production of letters that servants of Lord Aston, Lord Bellasis, and Mr. Heveningham had attempted to suborn persons to give false evidence against Dugdale.748 The new witnesses were in turn contradicted by the defence, and this wonderful series of contradictions was carried still one step further when fresh evidence was called to corroborate them.749

On the fifth day Lord Stafford summed up his defence. He laid special stress on the infamous character of his accusers and his own clean record, the points in which the witnesses had been contradicted, and the general improbability of the charge. His speech was badly received. The opportunity of a slight pause was seized by Lord Lovelace to spring to his feet and denounce with indignation the presence in court of a well-known Roman Catholic.750 Moreover the prisoner made a grave tactical mistake in proposing for argument a number of points of law, of which some were frivolous and others had already been authoritatively determined. Of these the only one which could be considered material was the question whether or no in a case of high treason two witnesses were necessary to prove each overt act alleged, since the witnesses against Lord Stafford had sworn separately, and never together, to the commission of several acts. This had in fact been determined in the case of Sir Harry Vane,751 but now with remarkable consideration for the prisoner the opinion of the assembled judges was taken: it was unanimous to the effect that the evidence of two separate witnesses to two distinct acts constituted a proof of high treason. The other points were easily disposed of by Jones and Winnington.752

In a speech of great ability Sir William Jones answered the accused. Here especially the professional training of the managers had weight. With the ease and decision of a practised lawyer the leader ran over the trial, setting the strong points of the prosecution in a clear light and minimising the value of the defence. His zeal was evident, but hardly unfair. If here and there a statement overshot the mark of strict accuracy, the effect of his speech was only enhanced by the patience with which he submitted to correction from the prisoner. Concluding with a short but powerful address, he demanded that the court should do “that justice to your king and country as to give judgment against these offenders, which will not only be a security to us against them, but a terror to all others against committing the like offences.”753 On the night of Saturday, December 4, Stafford petitioned to be heard again in his defence. His request was granted, but the rambling speech to which the court listened on the Monday following was calculated to produce any effect rather than that of advancing his cause. The managers only found it necessary to reply very briefly before the court adjourned to consider its verdict.754

At eleven o’clock on the next morning the votes were taken. Thirty-one peers pronounced Lord Stafford innocent, fifty-five guilty. The verdict was not unexpected. Stafford had conducted his defence so feebly as to make his acquittal improbable.755 Physical weakness accounted largely for this; but he had made the mistake of speaking as much as possible, and his remarks were halting, nebulous, indecisive. On the night before the verdict was delivered Barillon wrote that there was every appearance that it would be adverse to the accused.756 Sir John Reresby was staggered by the evidence for the prosecution, and only maintained his belief in Stafford’s innocence by fixing his mind firmly on the depravity of the witnesses.757 Anglesey, Lord Privy Seal, afterwards pressed hard for Lord Stafford’s pardon, but at the trial he felt constrained to vote against him, “secundum allegata et probata.”758 Even Charles, although he knew that Oates and his crew were liars and publicly called them rascals, thought that the evidence against the accused was strong, and that he might well be guilty;759 and the Countess of Manchester, who was present at the whole trial, wrote to Lady Hatton before the verdict was known, that the charge “was so well proved that I believe not many was unsatisfied, except those that were out of favour with the party might wish it other ways.”760 Charles was present in Westminster Hall while the peers delivered their verdict, and took notes of the sides on which they voted. When it became evident that the majority were for condemnation, his face to those who were near him shewed profound disappointment.761 Whether or no he believed in Stafford’s innocence, the conviction was a blow to the king’s cause. But the votes were not directed by political considerations alone. These would probably have ensured an acquittal. If Charles had exerted his personal influence on the court, an acquittal would have been certain.762 The peers gave judgment on what seemed to them the merits of the case. Three eminent members of Lord Stafford’s family voted for the death.763 The same verdict was delivered by the Lord Chancellor, the Lord Privy Seal, the Earl of Oxford, Lord Maynard, and the Duke of Lauderdale. Among the thirty-one who found for the accused were such staunch Whigs as Lord Holles, Lord Lucas, and the Earl of Clarendon. All these, had party spirit directed the votes, must have determined to the contrary. The fact must be faced that so late as December of the year 1680, more than two years after Oates’ first revelations, and after the disclosure at Wakeman’s trial had rendered certain the fact of his perjury, many of the most honourable and intelligent men in the kingdom sincerely accepted as credible the evidence offered against Lord Stafford, and as earnest of their belief sent to the scaffold one of their own number, a man bowed down with years and infirmity, the victim of miscreants supported by the enemies of the king, for the false plot against whose life he was now to die. It was a memorial to all time of the ignorance of the principles of evidence and the nature of true justice which characterised their age.

Sentence as usual in cases of high treason was pronounced on the condemned man, but at the request of the peers the king commuted the penalty to beheading alone. Efforts were made to obtain a pardon, but without avail. Charles was determined to let the law take its course that he might not be said to balk the ends of justice.764

The sheriffs disputed the validity of the warrant for Stafford’s decapitation and requested the advice of the House of Commons on the following questions: “Can the king, being neither party nor judge, order the execution? Can the lords award the execution? Can the king dispense with any part of the execution? If he can dispense with a part, why not with all?” To the ingenuity of Sir William Jones was due the studied insult offered to Charles in the answer of the House: “The house is content that the sheriffs should execute William, late Viscount Stafford, by severing his head from his body.”765 The excitement which prevailed in London was intense. Throughout the trial Stafford had been hooted in the streets on his way to and from the Tower. Angry brawls arose between the witnesses and the crowd at the doors of Westminster Hall. When Dugdale swore that the prisoner had offered him £500 to kill the king, a savage hum arose in the precincts of the court itself and drew a severe rebuke from the Lord High Steward.766 On December 29, 1680 Stafford was led to the scaffold. From the place of execution he read a lengthy speech, which was published in print on the same afternoon, asserting his innocence and vindicating his religion.767 His words fell on deaf ears. A vast crowd was assembled to witness his death. Almost all historians have repeated the assertion that the spectators were touched and answered with cries of, “We believe you, my Lord; God bless you, my Lord.”768 The story is a mere fable. Lord Stafford died with howls of execration of the bigoted London mob ringing in his ears. The cries with which he was met testify relentlessly that the belief in his guilt was firmly fixed in the mind of the nation.769 The Popish Plot was not yet a thing of the past. But the result of Lord Stafford’s trial was not altogether what was expected. Shaftesbury and his party indeed gained a temporary victory, but the ultimate triumph was to the king. His steadiness, restraint, and readiness for compromise contrasted favourably with the intolerance and unconciliating attitude of the Whigs. Their game was played for the crown and, when their rejection of all offers short of that made their motive plain to the nation, Charles had the nation at his back. The violence with which they attempted to force the king’s hand alienated public feeling. He was able to dissolve the Oxford Parliament in safety, and the Whigs were driven to plan open rebellion and the treason of the Rye House Plot.