492 In a somewhat similar case the judges under Charles II refused to give an opinion until the matter had been argued before them by counsel. The Attorney-General, among other questions put to the judges at the outbreak of the agitation of the Popish Plot, asked “Whether there be any evidence against these particular persons besides the single testimony of Mr. Oates?” To which it was answered that it was a question of fact, and could only be determined in court. S.P. Dom. Charles II 407: i. 128.
493 Gardiner ix. 306, 307. Gneist 555 n. Hallam (ii. 107) attempts to uphold the judges’ decision, but Stephen’s argument (i. 362, 363) must be held to settle the question.
494 Gneist 570 n. (2).
495 4 State Trials 445–450.
496 Foss, Judges of England vii, 109, 110. Burnet, Life and Death of Sir Matthew Hale. Mr. J. M. Rigg in his article on Hale in the Dictionary of National Biography doubts the truth of this on the ground that Penruddock was tried at Exeter, and Hale belonged to the Midland circuit. Hale however changed his circuit on at least one occasion. See Foss vii. 112, and the Gentleman’s Mag., July 1851, p. 13, where an anecdote is told which shows that Hale had belonged at one time to the Western circuit.
497 North, Life of Lord Keeper Guildford 119. Dryden, Prose Works (ed. Malone) iv. 156.
498 Gneist 600 n. (2).
499 6 State Trials 951–1013.
500 See also Hallam iii. 8. Stephen i. 373–375.
501 Hale, P.C. i. 143–146.
502 Compare the attempt to create a riot among the apprentices in July 1679, immediately after the trial of the Five Jesuits.
503 Parl. Hist. iv. 803. Ralph i. 297. North, Examen 139.
504 Amos, The English Constitution in the Reign of Charles II 302.
505 Gazette, May 5, 1680.
506 7 State Trials 926–931.
507 Ibid. 1111–1130.
508 Twyn and two other printers were sentenced to the pillory, imprisonment, and heavy fines. Amos 249. 6 State Trials 513–539. See also the trials of Dover, Brewster, and Brooks, which followed on Twyn’s case, ibid. 539–564.
509 April 30 to November 28, 1684. Luttrell, Diary, printed 10 State Trials 125–129.
510 Clarendon Correspondence i. 2.
511 8 State Trials 193, i.e. as resembling the opinions of 1641.
512 Gneist 600 n.
513 8 State Trials 194.
514 7 State Trials 1556–1567.
515 In this I have constantly used, as will be seen, Sir J. F. Stephen’s History of the Criminal Law in England (vol. i., especially chapters viii. and xi.), a work to which I am under the deepest obligations.
516 History of England i. 125.
517 See the trial of Ireland, Pickering, and Grove. 7 State Trials 126–129, and 10 State Trials 1087.
518 See Raleigh’s Trial, 2 State Trials 18. Jardine, Crim. Trials 421, where the court decided unanimously against Raleigh’s repeated demand for the production of Lord Cobham, not, according to Sir James Fitzjames Stephen’s opinion, without fair colour of law. Hist. Crim. Law i. 335, 336.
519 1 State Trials 869.
520 Not indeed without grievous consequences to themselves. Being brought to question for their verdict, four of them submitted and apologised at once. The remainder were imprisoned by order of the Star Chamber and fined heavily. Stephen i. 329.
521 1 State Trials 957–1042.
522 Stephen i. 326.
523 Ibid. 336, 350.
524 2 State Trials 25.
525 4 State Trials 354–356.
526 5 State Trials 1185–1195.
527 6 State Trials 932–936.
528 Ibid. 938.
529 6 State Trials 697.
530 6 State Trials 605–610.
531 7 State Trials 591–688. And see below 93 seq.
532 See Lilburn’s Trial. 4 State Trials 1342.
533 Stephen i. 358.
534 Trial of Hulet, who was said to have been the actual executioner of Charles I. 5 State Trials 1185–1195. In summing up, Sir Orlando Bridgeman, L.C.S., said to the jury:—“Gentlemen, you hear what has been proved on behalf of the prisoner, that is, if you believe the witnesses that are not upon oath.” Hulet was convicted, but the evidence was thought so unsatisfactory that the judges afterwards procured a reprieve.
535 See the Lord Chief Justice’s remarks on the witnesses for the Five Jesuits. 7 State Trials 41. As to the amount of truth in the allegation see below.
536 At the trial of Colledge:—Sergeant Maynard: “It is Mr. Oates’ saying; it is Mr. Turbervile’s oath.” 8 State Trials 638.
537 See e.g. the statement of Hyde, L.C.J., at Twyn’s trial in 1663. L.C.J.: “If I did not mistake, you desired to have counsel; was that your request?” Twyn; “Yes.” L.C.J.: “Then I will tell you, we are bound to be of counsel with you in point of law; that is, the court, my brethren and myself, are to see that you suffer nothing for your want of knowledge in matter of law; I say we are to be of counsel with you.... To the matter of fact, whether it be so or no; in this case the law does not allow you counsel to plead for you, but in matter of law we are of counsel for you, and it shall be our care to see that you have no wrong done you.” 6 State Trials 516, 517. See also the 5th Resolution in the case of Sir Harry Vane. 6 State Trials 131.
538 See e.g. Coleman’s trial. 7 State Trials 14. L.C.J.: “The labour lies upon their hands, ... therefore you need not have counsel, because the proof must be plain upon you.” See also Don Pantaleon Sa’s case. 4 State Trials 466.
539 See Colledge’s trial. L.C.J. North: “Counsel you cannot have, unless matter of law arises, and that must be propounded by you; and then if it be a matter debatable, the court will assign you counsel; but it must be upon a matter fit to be argued.” 8 State Trials 570. Similarly Jones, J., ibid. 571.
At Sidney’s trial Jeffreys, L.C.J.: “If you assign any particular point of law, then, if the court think it such a point as may be worth the debating, you shall have counsel.”
540 8 State Trials 579.
541 See Burnet ii. 196, 291. Pepys, Diary January 21, 1667. North, Life of Guildford 195, 196, 291.
542 6 State Trials 570.
543 7 State Trials 463.
544 7 State Trials 1339. That the barristers withdrew is evident from Winnington’s subsequent remark: “We did perceive his counsel come up towards the bar and very near him, and therefore we thought it our duty to speak before any inconvenience happened.” Ibid. 1340.
545 Sir W. Jones: “My Lords, we do not presume at all to offer our consent to what time the court shall be adjourned.” L.H.S.; “No, we do not ask your consent.”
546 7 State Trials 1371–1373.
547 7 State Trials 1544.
548 The trial of Hawkins for theft in 1669 is of great interest in this connection. It was evidently considered to be an extreme piece of good fortune that the accused was able to prove the conspiracy against him, and it was only owing to the folly and clumsiness of the prosecutor that he could clearly prove the perjury. 6 State Trials 922–952.
549 Sometimes this gave rise to great hardship, as in Oates’ second trial for perjury, where a witness named Sarah Paine was summoned, but the wrong Sarah coming, the mistake was not detected until she was put in the witness-box. 10 State Trials 1287.
550 This however was considered rather unfair at the time. See the case of Atkins. 6 State Trials 1491. The action of the government and the judges in Colledge’s case (8 State Trials 570–587) in depriving the prisoner of papers which leave had been given him to write, that the crown case might be managed accordingly, strained this practice still further, and is justly termed by Sir J. F. Stephen “one of the most wholly inexcusable transactions that ever occurred in an English court.” Hist. Crim. Law i. 406.
551 This was certainly so in Newgate and the other London prisons, but Reading’s intrigue with the Five Popish Lords seems to shew that the rule was relaxed for the Tower. 7 State Trials 301.
552 See the cases of Coleman and Fitzharris. Mrs. Coleman managed to convey letters to her husband in prison after his arrest. House of Lords MSS. 8. Mrs. Fitzharris also was used, according to the information received by the government, to convey messages to her husband from the leaders of his party. She used, while talking to him in the presence of a warder, to lower her voice so that he alone could hear, and then repeat the message in the middle of their ordinary conversation. Information of Lewis the spy. May 30, 1681. S.P. Dom. Charles II 415: 334.
553 Principles of Moral and Political Philosophy ii. 310.
554 That this was recognised at the time is evident from the attention which they received in the debates in the Commons on the Duke of York. That on the Lords’ Provision in the Popery bill exempting the duke was carried on amid cries of “Coleman’s letters! Coleman’s letters!” 4 Parl. Hist. 1044. And see the whole of the Debate on a Motion for Removing the Duke of York, where they had the greatest weight. Ibid. 1026–1034.
555 7 State Trials 6.
556 Ibid. 3, 4.
557 Ibid. 7–13.
558 See above 45–48.
559 7 State Trials 70.
560 Ibid. 16, 17.
561 Ibid. 18.
562 Ibid. 22.
563 7 State Trials 18, 19.
564 Ibid. 30–33.
565 Ibid. 23, 31.
566 Ibid. 25.
567 Dryden, Absalom and Achitophel 646: “Sunk were his eyes.” Warner MS. history 104. “Oculi parvi et in occiput retracti.” L’Estrange, Hue and Cry after Dr. O. “His eyes are very small and sunk.”
568 7 State Trials 25.
569 Ibid. 25–27.
570 7 State Trials 27–29. L.C.J.: “What did he (Oates) say?” Dolman: “That he did not well know him.” L.C.J.: “Mr. Oates, you say you were with him (Coleman) at the Savoy and Wild-House; pray, Sir Thomas, did he say he did not know him, or had seen Mr. Coleman there?” Dolman: “He did not know him as he stood there.” Dolben, J.: “Did he say he did not know Mr. Coleman, or that he did not know that man?” Dolman: “He said he had no acquaintance with that man (to the best of my remembrance).”
571 7 State Trials 29, 30.
572 7 State Trials 21.
573 Oates’ work had certainly been remarkably hard, and his fatigue was no invention of his own. See the evidence of Sir Thomas Dolman at Sir George Wakeman’s trial. 7 State Trials 656. Oates was confronted with Coleman, and charged him with high treason on the night of Monday, September 30. Dolman: “My Lord, Mr. Oates did appear before the king and council, I think on the Saturday before which was Michaelmas eve. The council sat long that morning, the council sat again in the afternoon, and Mr. Oates was employed that night I think to search after some Jesuits, who were then taken, and that was the work of that night. The council I think sat again Sunday in the afternoon. Mr. Oates was then examined; the council sat long, and at night he was sent abroad again to search the lodgings of several priests and to find out their papers, which he did seize upon, and one of the nights in that season was a very wet night; he went either with a messenger or with a guard upon him. On Monday morning the council sat again, and he was further examined, and went abroad; and Monday night Mr. Oates was in as feeble and weak a condition as ever I saw man in my life, and was very willing to have been dismissed for that time, for he seemed to be in very great weakness and disorder, so that I believe he was scarce able to give a good answer.”
The whole incident is very similar to that which occurred at Wakeman’s trial, with the exception that then the evidence went against the witness, whereas now it was against the prisoner. The conduct of the court on the two occasions was perfectly consistent. Ibid. 651–653. See below.
574 Hist. Crim. Law i. 385.
575 Compare the trial of Whitebread, Harcourt, Fenwick, etc. When Oates had finished his evidence, Fenwick said: “Pray, my Lord, be pleased to take notice that this man’s evidence all along is that he saw such and such letters from such and such persons. They have no evidence but just that, they saw such and such letters.” 7 State Trials 358.
576 7 State Trials 21, 32.
577 As in the case of Dangerfield. 7 State Trials 1110.
578 7 State Trials 359, 411.
579 See above 293.
580 Fox, History of the Early Part of the Reign of James II 34.
581 Gardiner, History of England vii. 323–326.
582 6 State Trials 693.
583 One of the women supposed to be bewitched.
584 8 State Trials 1021. Lives of the Norths i. 167.
585 An extraordinary instance of the nature of the ideas of the time on the subject of evidence appears in an examination before the Lords’ committee of inquiry. Oates complained that the Bishop of Chichester and Justice Bickley had reviled his evidence. A witness named Nicholas Covert was examined: “says he was at the public meeting at Chichester, but he remembers not that anything was said reflecting on Dr. Oates. The discourse was concerning the Narratives, and somebody there said that he had contradicted himself twenty-two times.” House of Lords MSS. 146. If a score of self-contradictions were not generally taken as an objection to a witness, it is hard to imagine what would have been.
586 History of his own Time. London, 1727, 386.
587 Ralph i. 412.
588 7 State Trials 13.
589 Ibid. 35–53.
590 7 State Trials 59, 60.
591 Being asked what he had to say he returned again to the subject: “As for my papers I humbly hope ... that I should not have been found guilty of any crime in them but what the act of grace could have pardoned.”... Ibid. 71.
592 7 State Trials 8.
593 Ibid. 15.
594 Ibid. 76.
595 House of Lords MSS. 8, November 6, 1678.
596 House of Lords MSS. 14.
597 This misunderstanding is so extraordinary that I was tempted at one time to adopt the theory that the prosecution was aware of the existence of the later letters, and suppressed the knowledge from motives of expedience. Certainly the managers of the prosecutions for the plot were guilty of conduct which not only would now be thought unprofessional, but was on any consideration highly suspicious, as for instance in the suppression of the forged letters sent by Oates and Tonge to Father Bedingfield (see Ralph i. 384. Sir G. Sitwell, The First Whig 36), and on a question of honesty simply the balance of probability might turn against them. But the supposition cannot be maintained. It was suggested at the time that, if the letters of the years 1673, 1674, 1675 contained such dangerous matter as appeared from their perusal, those of the three ensuing years must, had they been found, have revealed still more horrible schemes. But the force of this argument was not sufficient to afford a motive for taking the risk of detection (Ralph i. 412). And although the personality of Shaftesbury, by whom alone such a scheme could have been worked out, was of great potency in the committee of the House of Lords, he hardly dominated it so completely as to render the manœuvre practicable in the presence of such men as Lord Anglesey, the Marquis of Winchester, and the Bishop of Bath and Wells (House of Lords MSS. i.).
598 See above 312. 7 State Trials 59.
599 Ibid. 65.
600 L.C.J.: “If the cause did turn upon that matter, I would be well content to sit until the book were brought; but I doubt the cause will not stand on that foot; but if that were the case it would do you little good.” 7 State Trials 65.
601 7 State Trials 71.
602 Ibid. 66–68. Besides this he said several other things, of which mention will be made later.
603 Ibid. 70.
604 Ibid. 78. Luttrell, Brief Relation i. 4. Burnet ii. 178.
605 Burnet ii. 113.
606 Evidence of Carstairs, 6 State Trials 1503.
607 Macaulay, Hist. of England i. 237. Lingard xiii. 107, 108.
608 Hist. MSS. Com. Rep. 14. Appendix ii. 361. See also Fairfax Correspondence. Civil Wars (ed. R. Bell) ii. 297. James Babington to Henry Lord Fairfax, November 20, 1678. “Staley, the goldsmith’s son, was tried to-day at the King’s Bench, and condemned.”
609 Schwerin, Briefe aus England 356. On December 2 (n.s.) he notes: “Des Goldschmied’s Sohn, von dessen unbesonnenen Reden ich bereits Mittheilung gemacht, ist gehangen und nachher geviertheilt worden. Man hatte sich vorher überzeugt, dass er gesagt, dass der König in England sei der grösste Ketzer und Schelm in der Welt. Darauf hat er mit der Hand auf die Brust geschlagen, mit den Füssen fünf bis sechsmal auf die Erde gestampft, und mit ausgestrecktem Arm gesagt. Dies ist die Hand, die ihn hätte umbringen sollen, der König und das Parlament glaubten, das alles gethan und vorbei sei, allein die Schelme wären betrogen.” Ibid. 362. Barillon’s testimony is on the same side: “Le témoin, sur la foi duquel Staley, fils d’un orrèvre, a été condamné, a accusé le Duc d’Hamilton.” December 16/26, 1678. And Warner (MS. history 40): “Primus, qui Catholico sanguine Angliam rigavit, fuit Gulielmus Stalaeus, alterius Gulielmi auri fabri et trapazitae Londiniensis civis divitis filius.” The act under which Staley was condemned is 13 Charles II cap. i.
610 House of Lords MSS. 77, 78.
611 Burnet (ii. 171) speaks of Staley as “the popish banker, who had been in great credit, but was then under some difficulties”; but this is one of the rare mistakes he makes in point of fact.
612 He disclaimed all such sentiments and did deny the words, but afterwards said that he had “never with intention, or any thought or ill-will, spake any word upon this matter.” 6 State Trials 1506, 1508.
613 6 State Trials 1509. Lingard (xiii. 108) states on the authority of Les Conspirations d’Angleterre that Fromante, who is there called Firmin, was put into prison to prevent his appearance at the trial; but the work is by no means above suspicion, and is directly contradicted on the point. Large extracts from Les Conspirations d’Angleterre, which was published in 1681 and is now extremely rare, are quoted by Arnauld, Œuvres xiv. 515–535. Arnauld says in a note: “C’est M. Rocole, ancien chanoine de S. Benoit à Paris, qui en est l’auteur; mais l’avertissement qui le fait paraître Protestant, n’est pas de lui.” There is among the State Papers an order in council for the arrest of Bartholemew Fermin for high treason on account of the Popish Plot, but without date. S.P. Dom. Charles II 408; i. 110.
614 6 State Trials 1511, 1512.
615 Foley v. 233, 234.
616 Ibid. v. 12. Lingard xiii. 64. True Narrative of the Horrid Plot and Conspiracy, lxxvii.
617 Foley v. 233, 244, 245.
618 Ibid. 223.
619 7 State Trials 91–101.
620 Ibid. 101–104.
621 Ibid. 105.
622 7 State Trials 105. L.C.J.; “You must be tried by the laws of England, which sends no piece of fact out of the country to be tried.”
623 There is much evidence to show this. The following instances are from the same volume of the State Trials:—The Attorney-General not allowed to read a certificate against the accused 129. Whitebread not allowed to use Oates’ Narrative 374. Fenwick, Whitebread, and Harcourt not allowed to use the report of Ireland’s trial. Harcourt was, in fact, mistaken on the point for which he wished to refer to the report 360, 384–386. Lord Stafford not allowed to use the council book as evidence 1440. See also 451, 462, 467, 654.
624 7 State Trials 106–108.
625 On April 16, 1679. Ibid. 259–310, and see below.
626 7 State Trials 272, 295.
627 Ibid. 392.
628 Ibid. 117, 118. Sergeant Baldwin produced the letter, saying, “We do conceive a letter from one of that party, bearing date about the same time, concerning Mr. Whitebread’s summons, who was then master of the company, is very good evidence against them.”
The prosecution was forced to retract, and Mr. Finch, the junior, was made to eat his leader’s words: “My Lord, it can affect no particular person, but we only use it in general.”
629 7 State Trials 120.