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 Jesuits667 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 Jesuits671 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:

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.