630 7 State Trials 315–317.

631 Cf. Rookwood’s case 1696. Powell, J.: “Certainly now the jury is charged, they must give a verdict either of acquittal or conviction.” Sir T. Trevor, Att. Gen.: “I know what has been usually thought of Whitebread’s case.” And the trial of Cook, 1696. Powell, J.: “Whitebread’s case was indeed held to be an extraordinary case.” And see 7 State Trials 497–500 n, where many instances and opinions adverse to the decision of the court are collected.

632 Hale, P.C. ii. 294. “By the ancient law, if the jury sworn had been once particularly charged with a prisoner, it was commonly held they must give up their verdict, and they could not be discharged before their verdict was given up.... But yet the contrary course hath for a long time obtained at Newgate, and nothing is more ordinary than after the jury is sworn and charged with a prisoner and evidence given, yet if it appears to the court that some of the evidence is kept back, or taken off, or that there may be a fuller discovery and the offence notorious, as murder or burglary, and that the evidence, though not sufficient to convict the prisoner, yet gives the court a great and strong suspicion of his guilt, the court may discharge the jury of the prisoner, and remit him to the gaol for further evidence; and accordingly it has been practised in most circuits of England, for otherwise many notorious murders and burglaries may pass unpunished, by the acquittal of a person probably guilty, where the full evidence is not searched out or given.” “The whole law upon this subject,” says Sir James Fitzjames Stephen, “was elaborately considered a few years ago in R. v. Winsor (L.R. 1 Q.B. 289), when it appeared, from many authorities, that the practice had fluctuated.” Hist. Crim. Law i. 397.

633 7 State Trials 98.

634 7 State Trials 122–126.

635 Ibid. 121, 122.

636 Ibid. 124.

637 7 Ibid. 128.

638 10 State Trials 1243–1281.

639 7 State Trials 388–391.

640 Ibid. 132.

641 Ibid. 133–135.

642 Stephen i. 399.

643 7 State Trials 138–141.

644 7 State Trials 142–144. Klopp II. 464, app. IV.

645 Foley v. 58.

646 See “An impartial consideration of these speeches,” etc., 1670, attributed to John Williams, D.D. “Animadversions on the last speeches of the Five Jesuits,” etc., 1679. Printed 7 State Trials 543.

647 Burnet ii. 201.

648 Sidney, Letters 123, 124. The opinion of Ranke, who in his writings was neither Catholic nor Protestant, lies midway between these views: “Grässlich ist die lange Reihe von Hinrichtungen Solcher, die nichts bekannten,” v. 235.

649 “The examination of Captain William Bedloe deceased, taken in his last sickness by Sir Francis North, Chief Justice of the Court of Common Pleas.” Printed 6 State Trials 1493–1498.

650 See Russell’s written Speech, printed at length, Ralph i. 755–757.

651 Sitwell, First Whig 153–158. And see Stephen i. 408, 409.

652 Stephen i. 449. And see Burnet II. 303, 304.

653 Above 328.

654 See above 204–209.

655 Longleat MSS. Coventry Papers xi. 363. Order of the king in council, February 5, 1679.

656 7 State Trials 259, 287, 296.

657 Ibid. 287–289, 292.

658 So Bedloe swore 7 State Trials 271. Burnet (ii. 199) says that Bedloe made use of Reading’s intrigue to cover his omission to swear against the Jesuits in the previous December. But Reading never denied the fact that Bedloe’s account of this part of the transaction was correct.

659 Presumably, from the absence of any Christian name, Mr. George Speke of White Lackington, M.P. for Somersetshire, a more reputable person than his sons Hugh and Charles. George Speke had been a royalist and after the Restoration lived in retirement for many years, but, following the example of his son-in-law, John Trenchard, turned against the court and became a leader of the Whig interest in his part of the country. In 1680 he entertained Monmouth during his western progress. Fea, King Monmouth 96.

660 The date fixed first was March 28, and was afterwards altered. 7 State Trials 281.

661 Evidence of Bedloe, Speke, and Wiggins. Ibid. 270–286.

662 Ibid. 278, 279.

663 7 State Trials 310.

664 Colonel Mansell’s Exact and True Narrative of the late Popish Intrigue 64.

665 See Ralph i. 431. Echard 970, 971. Danby, Memoirs 39, 40.

666 7 State Trials 763–812. An Exact and True Narrative of the Horrid Conspiracy of Thomas Knox, William Osborne, and John Lane to invalidate the testimonies of Dr. Oates and Mr. William Bedloe. London 1680.

667 See below.

668 Burnet ii. 200.

669 7 State Trials 881–926.

670 This was contradicted and his reputation much debated at the trial of Lord Stafford eighteen months later; but at the time it was believed to be the fact.

671 Thomas Whitebread, provincial; William Harcourt, rector of the London province; John Fenwick, procurator for the college at St. Omers; John Gavan, and Anthony Turner. 7 State Trials 311–418.

672 Ibid. 340, 1455. This was so far confirmed that Dugdale was proved to have spoken on Tuesday, October 15, 1678 of the death of a justice of the peace in Westminster, which does not go far. Dugdale also declared at Lord Stafford’s trial that on Coleman’s arrest the Duke of York sent to Newgate to ask if he had made disclosures to anybody, and when Coleman returned that he had done so only to Godfrey, the duke gave orders to have Godfrey killed. 7 State Trials 1316–1319. Burnet ii. 190, 191. And see above 153, n. Burnet says: “The Earl of Essex told me he swore it on his first examination, December 24, 1678, but since it was only on hearsay from Evers, and so was nothing in law, and yet would heighten the fury against the duke, the king charged Dugdale to say nothing of it.” This is a mistake. Dugdale’s first and second examinations, December 24 and 29, 1678. S.P. Dom. Charles II 408: II. 49, 22. Dugdale did formally tell the story in his information, but not until March 21, 1679. Fitzherbert MSS. 135.

673 Dugdale’s evidence. 7 State Trials 334–342.

674 7 State Trials 343–349.

675 Ibid. 119, 355. House of Lords MSS. 15.

676 7 State Trials, 350–357.

677 7 State Trials 359–378.

678 “... Three of them, having been apprehended by Sir Will. Waller at their first coming, told him they were come to be witnesses, and being asked what they were to witness, they said they must know that from their superiors.” Sidney, Letters 101.

679 Examination of Christopher Townley, April 28, 1679. Fitzherbert MSS. 151, 152.

680 7 State Trials 371. At the trial of Langhorn another witness was produced to explain this, but his testimony was unconvincing.

681 Ibid. 361, 364, 366. Information was also given that Gifford had admitted in conversation “that his Superior of the College at St. Omers had sent him over to swear on behalf of the Lords, and that he must obey, and would, right or wrong.” Examinations of Chamberlayne and Gouddall. Fitzherbert MSS. 149.

682 Examinations of Coulster and Townley. Fitzherbert MSS 151, 152.

683 7 State Trials 396–403. North, Examen 239, 240. 10 State Trials 1183–1188. Smith, Intrigues of the Popish Plot. The evil reputation of these men was unknown at the time of the trial. See Burnet ii. 226.

684 7 State Trials 404–418.

685 At the time of the fire of London, Tillotson told Burnet a story of Langhorn’s methods of business which is too ridiculous to be believed. Burnet i. 412.

686 True Narrative lxxxi.

687 7 State Trials 463–465, 470.

688 Ibid. 439.

689 7 State Trials 514.

690 Ibid. 172, 173.

691 Sidney, Letters 124. “Wakeman’s trial is put off, as is believed, to avoid the indecency of the discourses that would have been made.”

692 L.J. xiii. 388–392. C.J. November 28, 29, 1678. Ralph i. 397. James (Or. Mem.) i. 529.

693 Burnet ii. 231.

694 7 State Trials 602–618.

695 Ibid. 619–623.

696 Ibid. 624–641. Bedloe however gave no evidence against the prisoner Rumley.

697 7 State Trials 644–651. Sir J. F. Stephen has strangely missed the bearing of this evidence, and writes as if it had been decisive in favour of the prisoners. Hist. Crim. Law i. 391.

698 The first serious acquittal at least, for the trial of Atkins, after the conviction of Green, Berry, and Hill for the murder of Godfrey, was hardly more than formal.

699 7 State Trials 651–653.

700 Hatton Correspondence ii. 187. Charles Hatton to Lord Hatton, July 10, 1679. “Mr. Pepys and Sir Anthony Deane was bailed yesterday, and if my Lord Chief Justice hang five hundred Jesuits, he will not regain the opinion he thereby lost with the populace, to court whom he will not act against his conscience.” Luttrell, Brief Relation i. 74.

701 Verney MSS. 474.

702 Burnet ii. 232. The Narrative of Segnior Francisco de Faria, 1680, 17, 18.

703 Deposition of F. de Faria, March 24, 1681. S.P. Dom. Charles II 415: 159. Verney MSS. 474. Luttrell, Brief Relation i. 17, 74.

704 Luttrell, Brief Relation i. 19.

705 8 State Trials 163–174. Hatton Correspondence ii. 220.

706 7 State Trials 702–706.

707 Hatton Correspondence ii. 191, 195, 207–210.

708 C.J. ix. 661, 688–692. L.J. xiii. 736–739. Luttrell, Brief Relation i. 64.

709 L.J. xiii. 752.

710 Luttrell, Brief Relation i. 74, 75.

711 See Burnet ii. 196. North, Examen 567, 568. Lives of the Norths, 195, 196. Hatton Correspondence, passim.

712 Burnet ii. 196. North, Examen 568.

713 Reresby, Memoirs 146. “Being with the king at the Duchess of Portsmouth’s lodgings, my Lord Treasurer being also present, the king told me he took it (Oates’ story) to be some artifice, and that he did not believe one word of the Plot.” Reresby, though always well-informed, was never at this time in possession of real secrets.

Barillon, October 1/10, 1678. “Le Roi de la Grande Bretagne m’a dit qu’il ne croyait pas que cette accusation eût un veritable fondement.”

Shaftesbury, The present state of the Kingdom at the opening of the Parliament, March 6, 1679. “As concerning the plot and the murder of Godfrey, the king’s discourses and managing are new and extraordinary. No man can judge by them but that he is in the plot against his own life; and no man doubts but he is so far in as concerns us all.” Printed Christie ii. 309.

714 Barillon, January 16/26, 1679. “Le Roi d’Angleterre ne me parle plus comme il a parlé jusqu’à present. Il me dit hier que la déposition d’un dernier témoin nommé Ducdale lui parassait si peu concertée et si pleine de faits vraisemblables qu’il ne pouvait plus s’empêcher de croire à une conspiration contre sa personne. Ce Prince me redit toutes les raisons qui lui ont fait croire qu’Oats et Benloi sont des parjures et des imposteurs, mais en même temps il me fit connaître que ce qu’ils avaient dit de faux n’empêchait pas qu’il n’y eût quelque chose de vrai qui servait pour fondement à tout ce qu’ils avaient pu inventer d’eux mêmes.”

715 See the trials of Andrew Bromwich, 7 State Trials 715–726, Lionel Anderson and others, ibid. 729–750, Knox and Lane, ibid. 763–812, Lord Castlemaine, ibid. 1067–1112.

716 Luttrell, Brief Relation i. 34.

717 See e.g. his summing up at Lord Castlemaine’s trial. 7 State Trials 1408–1412.

718 In spite of his own and his brother’s assertions there cannot be the least doubt of this. North afterwards declared in his memoirs that he never believed in the Popish Plot, a statement which is belied by every action and word of his on the bench.

719 7 State Trials 218, at the trial of Green, Berry, and Hill.

720 7 State Trials 69.

721 Ibid. 133, 134.

722 Ibid. 218, 411, 642, 1102. 10 State Trials 1170. L.C.J.: “You may assure yourselves, I will remember whatsoever has been said on the one side and on t’other as well as I can; the gentlemen of the jury are men of understanding, and I see they take notes, and I’ll give them what assistance I can.” Instances might be multiplied. See Stephen i. 377, 566, 567.

723 6 State Trials 701–710. His trial was in 1665.

724 Parl. Hist. iv. 1088.

725 7 State Trials 134. Absalom and Achitophel 120.

726 7 State Trials 678–680. This is another fair specimen. “Never brag of your religion, for it is a foul one, and so contrary to Christ; it is easier to believe anything than to believe that an understanding man may be a papist.”

727 These trials in their order of mention will be found:—7 State Trials 1043. Ibid. 959. 8 State Trials 502. 7 State Trials 1162. 8 State Trials 447. 7 State Trials 1067. 8 State Trials 243.

728 Reresby, Memoirs 194.

729 See Appendix E.

730 The proceedings in Parliament against the five popish lords are collected in 7 State Trials 1218–1292.

731 Reresby, Memoirs 193, 194, North, Examen 218.

732 Barillon, November 31/December 9, 1680. “Ce qui se passera dans ce procès est de grande consequence. Si le comte de Stafford était absous, la conjuration recevrait une grande atteinte, et quoique le peuple soit prévenu, il est néantmoins assujetti aux règles et aux lois, et ne s’en départ pas aisément.”

733 Secret Services of Charles II and James II 24.

734 Barillon, December 6/16, 9/19, 1680. James i. 640.

735 7 State Trials 1298–1339.

736 Dugdale’s evidence. 7 State Trials 1341–1347.

737 Oates’ evidence. Ibid. 1347–1350.

738 Turbervile’s evidence. Ibid. 1351–1355.

739 Ibid. 1394, 1395.

740 7 State Trials 1397–1400.

741 Ibid. 1388–1393.

742 Ibid. 1396–1406.

743 Ibid. 1407–1415.

744 7 State Trials 1415–1419.

745 Stafford admitted afterwards that in recent years he had constantly used a walking stick, “being lame with weariness.” Ibid. 1478.

746 Ibid. 1419–1434.

747 7 State Trials 1437–1447.

748 Ibid. 1462, 1463.

749 Ibid. 1485–1492.

750 Ibid. 1486–1491.

751 6 State Trials 119.

752 7 State Trials 1519–1529.

753 Ibid. 1493–1515.

754 Ibid. 1544–1551.

755 Reresby thought that he acquitted himself well, but James said “it was always his misfortune to play his game worst when he had the best cards.” James i. 637.

756 Barillon, December 16/26 1680.

757 Reresby, Memoirs 194.

758 Anglesey, Memoirs 9.

759 Barillon, November 21/December 1, 1680. “Ce Prince prend souvent la liberté de se moquer la conjuration, et ne se constraint pas d’appeller tout haut Oatz et Bedlow des coquins. Il a dit cependant que les preuves contre le Vicomte de Stafford étaient fortes, et qu’il pouvait bien n’être pas innocent.”

760 Hatton Correspondence ii. 241.

761 Barillon, December 9/19 1680.

762 Ibidem.

763 The Earls of Carlisle, Berkshire, and Suffolk. The appearance of Lord Howard of Escrick on the same side is of no importance on account of his bad character.

764 Anglesey, Memoirs 9. James to Hyde. Clarendon Cor. i. 50. James to Col. Legge, Dartmouth MSS. 54. Barillon, December 19/29, 1680.

765 L.J. xiii. 724. C.J. December 23, 1680. Parl. Hist. iv. 1261. 7 State Trials 1562.

766 7 State Trials 1544, 1440–1447, 1342, 1343.

767 Ibid. 1564–1567.

768 Echard 997. Lingard xiii. 247–249.

769 Dispatch of Sarotti-Bignola, January 10, 1681. “Tanta è la impressione de’ popoli della verità della congiura e della reità del conte (Stafford), che da pochi è stato compatito e molti lo hanno ingiurato con infami parole.” Quoted Brosch 451. Dispatch of Thun, January 10, 1681. “Der Henker hat den kopf auf der Bühne herumgetragen und dem Volke gezeigt, welches darüber ein unausprechliches Freuden- und frohlockendes Geschrei hat erschallen lassen.” Quoted Klopp II 473, app. XXII.

770 7 State Trials 1129–1162.

771 Ibid. 1162.

772 Ibid. 1133.

773 Ibid. 1161.

774 Evidence of Richmond and Bridges. Ibid. 1140, 1142.

775 Evidence of Arnold. 7 State Trials 1135–1137.

776 Evidence of Phillips. Ibid. 1138.

777 Evidence of Philpot. Ibid. 1145, 1146.

778 Evidence of Watkins, Richmond, and Powel. Ibid. 1139.

779 Evidence of H. Jones and J. Jones. Ibid. 1146, 1147.

780 Evidence of W. Richmond. 7 State Trials 1140, 1141, and evidence for the defence. Ibid. 1148–1151.

781 Ibid. 1152–1159.

782 Ibid. 1160. Luttrell, Brief Relation i. 53, 55. S.P. Dom. Charles II 414: 79. Petition of John Giles. Read in Council, 6 August 1680.