Bedlow’s evidence, as usual, was mainly confirmatory of the statements of Oates, embellished by such new incidents as his feebler powers of invention could frame. He was, however, not quite satisfied with this subordinate part; and therefore at the close of his evidence pretends to recollect that he had omitted one thing very material: ‘At the same time that there was a discourse about these three gentleman being to destroy the king at New-Market, there was a discourse of a design to kill several noble persons, and the several parts assigned to every one. Knight was to kill the Earl of Shaftsbury, Pritchard, the Duke of Buckingham, Oniel, the Earl of Ossory, Obrian, the Duke of Ormond,’ An assassination of noblemen on a truly magnificent scale!
Nothing appearing in Bedlow’s evidence to implicate Fenwick and Whitebread, and two witnesses being necessary to prove the charge, they were sent back to prison. When they were subsequently brought up for trial for the same offence, and pleaded that they could not a second time be tried, their plea was overruled, although founded on one of the commonest principles of law, and sanctioned by a thousand precedents. The reasoning of Scroggs and North, the Chief Justice of the Common Pleas, is so curious that it is worth quoting. Whitebread, after objecting that he is informed that no man can be put in jeopardy of his life the second time for the same cause: ‘I speak it not for my sake only, but for the sake of the whole nation; no man should be tried twice for the same cause; by the same reason a man may be tried twenty or one hundred times.’
Scroggs. ‘You say well, it is observed, Mr. Whitebread; but you must know that you were not put in jeopardy of your life for the same thing, for first the jury were discharged of you; it is true, it was supposed when you were indicted that there would be two witnesses against you, but that fell out otherwise, and the law of the land requiring two witnesses to prove you guilty of treason, it was thought reasonable that you should not be put upon the jury at all, but you were discharged, and then you were in no jeopardy of your life.’
‘Under favor, my lord, I was in jeopardy, for I was given in charge to the jury; and ’tis the case in Seyer, 31 Eliz., he was indicted for a burglary committed the 31st of August, and pleaded to it, and afterward another indictment was preferred, and all the judges did declare that he could not be indicted the second time for the same fact, because he was in jeopardy of his life again.’
C. J. North. ‘The oath the jury take is, that they shall well and truly try, and true deliverance make of such prisoners as they shall have in charge; the charge of the jury is not full ‘till the court give them a a charge at last, after evidence had; and because there was a mistake in your case, that the evidence was not so full as might be, the jury before they ever considered concerning you at all they were discharged, and so you were not in jeopardy; and, I in my experience, know it to be often done, and ’tis the course of law.’
In this opinion all the judges coincided. Sad indeed was the condition of things in poor England when all her judges could resort to such miserable quibbles; or worse than this, could deliberately falsify the law, to condemn to an ignominious death two defenceless prisoners!
To return from this digression. The three remaining prisoners were found guilty. The Chief Justice in charging the jury was even more violent against the Papists than in his charge at Coleman’s trial: ‘Some hold that the pope in council is infallible; and ask any Popish Jesuit of them all and he will say the pope is himself infallible in council or he is no true Jesuit; and if so, whatever they command is to be justified by their authority; so that if they give a dispensation to kill a king, that king is well killed. They indulge all sorts of sins, and no human bonds can hold them.
‘They have some parts of the foundation ’tis true, but they are adulterated and mixed with horrid principles and impious practises. They eat their God, they kill their king, and saint the murderer. This is a religion that quite unhinges all piety, all morality, all conversation, and to be abominated by all mankind.
‘I return now to the fact which is proved by two witnesses, and by the concurrent evidence of the letter and the maid; and the matter is as plain and notorious as can be, that there was an intention of bringing in popery by a cruel and bloody way; for I believe they never could have prayed us into their religion. I leave it therefore for you to consider whether you have not as much evidence from these two men as can be expected in a case of this nature; and whether Mr. Oates be not rather justified by the testimony offered against him, than discredited. Let prudence and conscience direct your verdict, and you will be too hard for their art and cunning.
‘Gentlemen, if you think you shall be in long we will adjourn the court till the afternoon and take your verdict then.’