A question was now raised which might justly excite the anxiety of every man in the kingdom. That question was whether the highest tribunal, the tribunal on which, in the last resort, depended the most precious interests of every English subject, was at liberty to decide judicial questions on other than judicial grounds, and to withhold from a suitor what was admitted to be his legal right, on account of the depravity of his moral character. That the supreme Court of Appeal ought not to be suffered to exercise arbitrary power, under the forms of ordinary justice, was strongly felt by the ablest men in the House of Commons, and by none more strongly than by Somers. With him, and with those who reasoned like him, were, on this occasion, allied many weak and hot-headed zealots who still regarded Oates as a public benefactor, and who imagined that to question the existence of the Popish plot was to question the truth of the Protestant religion. On the very morning after the decision of the Peers had been pronounced, keen reflections were thrown, in the House of Commons, on the justice of their lordships. Three days later, the subject was brought forward by a Whig Privy Councillor, Sir Robert Howard, member for Castle Rising. He was one of the Berkshire branch of his noble family, a branch which enjoyed, in that age, the unenviable distinction of being wonderfully fertile of bad rhymers. The poetry of the Berkshire Howards was the jest of three generations of satirists. The mirth began with the first representation of the Rehearsal, and continued down to the last edition of the Dunciad.397 But Sir Robert, in spite of his bad verses, and of some foibles and vanities which had caused him to be brought on the stage under the name of Sir Positive Atall, had in parliament the weight which a stanch party man, of ample fortune, of illustrious name, of ready utterance, and of resolute spirit, can scarcely fail to possess.398 When he rose to call the attention of the Commons to the case of Oates, some Tories, animated by the same passions which had prevailed in the other House, received him with loud hisses. In spite of this most unparliamentary insult, he persevered; and it soon appeared that the majority was with him.
Some orators extolled the patriotism and courage of Oates: others dwelt much on a prevailing rumour, that the solicitors who were employed against him on behalf of the Crown had distributed large sums of money among the jurymen. These were topics on which there was much difference of opinion. But that the sentence was illegal was a proposition which admitted of no dispute. The most eminent lawyers in the House of Commons declared that, on this point, they entirely concurred in the opinion given by the judges in the House of Lords. Those who had hissed when the subject was introduced, were so effectually cowed that they did not venture to demand a division; and a bill annulling the sentence was brought in, without any opposition.399The Lords were in an embarrassing situation. To retract was not pleasant. To engage in a contest with the Lower House, on a question on which that House was clearly in the right, and was backed at once by the opinions of the sages of the law, and by the passions of the populace, might be dangerous. It was thought expedient to take a middle course. An address was presented to the King, requesting him to pardon Oates.400 But this concession only made bad worse. Titus had, like every other human being, a right to justice: but he was not a proper object of mercy. If the judgment against him was illegal, it ought to have been reversed.
If it was legal, there was no ground for remitting any part of it. The Commons, very properly, persisted, passed their bill, and sent it up to the Peers. Of this bill the only objectionable part was the preamble, which asserted, not only that the judgment was illegal, a proposition which appeared on the face of the record to be true, but also that the verdict was corrupt, a proposition which, whether true or false, was not proved by any evidence at all.
The Lords were in a great strait. They knew that they were in the wrong. Yet they were determined not to proclaim, in their legislative capacity, that they had, in their judicial capacity, been guilty of injustice. They again tried a middle course. The preamble was softened down: a clause was added which provided that Oates should still remain incapable of being a witness; and the bill thus altered was returned to the Commons.
The Commons were not satisfied. They rejected the amendments, and demanded a free conference. Two eminent Tories, Rochester and Nottingham, took their seats in the Painted Chamber as managers for the Lords. With them was joined Burnet, whose well known hatred of Popery was likely to give weight to what he might say on such an occasion. Somers was the chief orator on the other side; and to his pen we owe a singularly lucid and interesting abstract of the debate.
The Lords frankly owned that the judgment of the Court of King's Bench could not be defended. They knew it to be illegal, and had known it to be so even when they affirmed it. But they had acted for the best. They accused Oates of bringing an impudently false accusation against Queen Catherine: they mentioned other instances of his villany; and they asked whether such a man ought still to be capable of giving testimony in a court of justice.
The only excuse which, in their opinion, could be made for him was, that he was insane; and in truth, the incredible insolence and absurdity of his behaviour when he was last before them seemed to warrant the belief that his brain had been turned, and that he was not to be trusted with the lives of other men. The Lords could not therefore degrade themselves by expressly rescinding what they had done; nor could they consent to pronounce the verdict corrupt on no better evidence than common report.
