I Do appoint Richard Sare to Print the two Tryals of Titus Otes for Perjury And Order That no other Person do presume to Print the same Jeffreys THE TRYALS Convictions Sentence OF TITUS OTES UPON TWO INDICTMENTS For Willful Malicious and Corrupt PERJURY AT THE KINGS-BENCH-BARR at Westminster Before the Right Honourable George Lord Jeffreys Baron of Wem Lord Chief Justice of His Majesties Court of Kings-Bench and the rest of the Judges of that Court. Upon Friday the 8th and Saturday the 9th days of May Anno Domini 1685. And in the First Year of the Reign of our Soveraign Lord King JAMES the II. c. LONDON Printed for R. Sare at Grays-Inn-Gate in Holborn and are to be sold by Randal Taylor 1685. Die veneris oct Maii 1685. in Banco Regis De Term. Pasch Anni Regni Regis Jacobi primi Dominus Rex versus Titus Oates THis day being apointed for the Tryal of one of the Causes between our Soveraign Lord the King and Titus Oates for Perjury the same began between eight and nine in the Morning and proceeded in the manner following First Proclamation was made for Silence then the Defendant was called who appeared in Person being brought up by Rule from the King's Bench Prison where we was in Custody and was advised to look to his Challenges to the Jury that were Impanel'd to try the Cause Oates My Lord I am to manage my own Defence and have a great many Papers and things which I have brought in order to it I pray I may have some Conveniency for the Managing my own Tryal Lord C. Justice Ay Ay let him sit down there within the Bar and let him have Conveniency for his Papers Clerk Crown Cryer swear Sir William Dodson Oates My Lord I except against Sir William Dodson Mr. Att. Gen. What is the Cause of Exception Mr. Oats L. C. J. Why do you challenge him Oates My Lord I humbly conceive in these cases of Criminal Matters the Defendant has Liberty of excepting against any of the Jurors without shewing Cause provided there be a full Jury besides L. C. J. No no that is not so you are mistaken in that Mr. Oates Oates My Lord I am advised so I do not understand the Law my self L. C. J. But we tell you then it cannot be allow'd if Mr. Attorney will consent to wave him well and good Mr. Att. Gen. No my Lord I know no reason for it I cannot consent to any such thing L. C. J. Then if you will not have him sworn you must shew your Cause presently Oates My Lord I cannot assign any Cause L. C. J. Then he must be sworn Cl. Cr. Swear him Cryer Sir William Dodson take the Book you shall well and truly try this Issue between our Soveraign Lord the King and Titus Oates and a true Verdict give according to the Evidence so help you God Cl. Cr. Swear Sir Edmund Wiseman which was done Richard Aley Esq who was sworn Benjamin Scutt Oates My Lord I challenge him L. C. J. For what Cause Oates My Lord he was one of the Grand Jury that found the Bill L. C. J. Was he so that is an exception indeed what say you Mr. Attorney Att. Gen. My Lord I believe he was upon one of the Indictments but I think it was not this L. C. J. But if he were in either of them he cannot be so impartial Mr. Att. Gen. My Lord we will not stand upon it we 'll wave him Cl. Cl. Thomas Fowlis Oates Pray let me see that Gentleman who was shown to him Are you not a Goldsmith in Fleetstreet between the two Temples Fowlis Yes I am Oates Very well Sir I do not except against you only I desire to know whether it were you or not Cl. Cr. Swear him which was done Thomas Blackmore Sworn Peter Pickering Sworn Robert Beddingfield Sworn Thomas Rawlinson Sworn Roger Reeves Sworn Edward Kempe sworn Oates My Lord I challenge him L. C. J. You speak too late he is sworn already Oates My Lord they are so quick I could not speak but he was one of the Grand Jury too L. C. J. We cannot help it now Mr. Att. Gen. I did know that he was so but to shew that we mean nothing but fair we are content to wave him L. C. J. You do very well Mr. Attorney General let him be withdrawn Cl. Cr. Mr. Kempe you may take your case swear Ambrose Isted which was done Henry Collier Sworn Richard Howard Sworn Cl. Cr. Cryer count these Cryer One c. Sir William Dodson Cl. Cr. Richard Howard Cryer Twelve good men and true hearken to the Record and stand together and hear the Evidence The Names of the Twelve sworn were these Jury Sir William Dodson Sir Edmund Wiseman Richard Aley Thomas Fowlis Thomas Blackmore Peter Pickering Robert Beddingfield Thomas Rawlinson Roger Reeves Ambrose Isted Henry Collier and Richard Howard Oates Before the Councel opens the Cause I desire to move one thing to your Lordship L. C. J. What is it you would have Oates My Lord I have three Witnesses that are very material one's to my Defence who are now Prisoners in the King's Bench for whom I moved yesterday that I might have a Rule of Court to bring them up to day but it was objected that they were in Execution and so not to be brought I humbly move your Lordship now that I may have a Habeas Corpus for them to bring them immediately hither L. C. J. We cannot do it Oates Pray Good my Lord they are very material Witnesses for me and I mov'd yesterday for them L. C. J. You did so but we told your Councel then and so we tell you now we cannot do it by Law it will be an escape Oates My Lord I shall want their Testimony L. C. J. Truely we cannot help it the Law will not allow it and you must be satisfied Cl. Cr. Gentlemen you that are sworn of this Jury hearken to the Record by Virtue of an Inquisition taken at Justice Hall in the Old Bayly in the Parish of St. Sepulcher in the Ward of Faringdon without London upon Wednesday the 10th of December in the 36th of the Raign of our late Soveraign Lord Charles the II. by the grace of God of England Scotland France and Ireland King Defender of the Faith c. Before Sir James Smith Knight Mayor of the City of London Sir George Jefferies Knight and Baronet Lord Chief Justice of this Honourable Court Sir Thomas Jones Knight Lord Chief Justice of the Court of Common Pleas William Montague Lord Chief Baron of the Exchequer Sir James Edwards Knight Sir John More Knight Aldermen of the said City Sir Thomas Jenner Knight one of his Majesties Sergeants at Law and Recorder of the same City and others their Companions Justices of Oyer and Terminer by the Oaths of twelve Jurors Honest and Lawful Men of the City of London aforesaid who then and there being sworn and charged to enquire for
you were present at a Consult of the Jesuits the 24th of April 78. at the White-horse-Tavern in the Strand Ubi revera you were not there Now Do you admit in the first place that you were forsworn in that particular Oates No my Lord I do not L. C. J. If the Jury find that you were forsworn in that first point that you were not there it will be easily believed you swore false in the other point that you did not carry the Resolution from Chamber to Chamber Oates But my Lord it is not well assign'd I think L. C. J. That will be sav'd to you after the Verdict I tell you if there be occasion for it Oates My Lord I suppose the Proof ought to be according to the Record and the Record makes the Perjury differ from the Oath L. C. J. I tell you that is to the form and that will be sav'd to you after the Verdict one way or the other Oates Then will your Lordship be pleased to consider there was a Record brought in which is almost the same with that I am to offer to be read on my behalf and which is the first Proof that I have to offer of the Consult that was held in London in April 78. And I desire Mr. Percivile may be called I forget his Christian-name and Mr. Vaughan who is my Sollicitor But pray my Lord let me first have the Opinion of the Court whether they did prove the words that I am said to swear as they are laid in the Indictment L. C. J. Yes very fully we think so but the Jury are to try that that is a point of Fact but if you will you shall have our thoughts about it We think they are fully proved Cryer Here is Mr. Percivile Oates Pray swear him which was done L. C. J. What do you ask him Oates Mr. Percivile you examin'd the Conviction of Mr. Ireland pray put it in Is it a true Copy Percivile Yes it is Oates My Lord I desire that the Conviction and Attainder of Mr. Ireland may be read Mr. Att. Gen. It has been read already Oates My Lord I will not take up the Courts time any more than is necessary for my Defence L. C. J. Nay do as you will as long as you offer things pertinent and decent the Court will hear you with all patience and you may take what time is necessary for you Oates I thank your Lordship I design'd nothing at all of reflection upon the Court but a reflection on the Witnesses that came in against me C. of the Crown This is a Copy of the same Record that was before read Oates Well if that be allowed for Evidence for me I am contented to spare the time of the Court not to read it again but my Lord I offer this and desire to have Councel assign'd me to argue this point in Law that is Whether or no the Convictions and Attainders of Ireland Whitebread and the rest of them of a Treasonable Consult of the 24th of April 78. where it was resolv'd to murder the late King ought not to be taken as a sufficient Legal Proof of the Fact so long as those Attainders remain of force and whether the averment of that being false is to be received against those Records L. C. J. There is no difficulty in that at all in the world Mr. Oates Oates My Lord I do not know the Law and therefore I pray I may have Councel assign'd to argue that point L. C. J. There is no question in it God forbid if a Verdict be obtain'd by Perjury that that Verdict should protect the perjur'd party from being prosecuted for his false Oath There were no Justice in that nor is it an averment against a Record for this is not a Writ of Error in fact that will reverse it but the Record remains a good Record and unimpeached still But though it be a good Record yet it is lawful to say this Verdict was obtain'd upon the Testimony of such an one that forswore himself in that Testimony and for that particular Perjury he may surely be prosecuted Oates Is not that Attainder an uncontroulable Evidence of the Fact 'till it be revers'd L. C. J. Yes it is against the party attainted but if that Attainder was founded upon a Verdict that was obtain'd by Perjury God forbid but he should be told so that did perjure himself Oates Well my Lord if your Lordship rules that for Law then I will go on and I must now observe to the Jury in the opening the Evidence two things First That the Indictment upon which Ireland was try'd was found the 16th of December 78 and on the 17th of December the next day Ireland was try'd at the Old-Bailey and then I find this Indictment brought against me for Perjury is found at the Old-Bailey six years after the Fact by special Commission Now I submit it to your Lordships and the Juries consideration why the Presentment and the finding of this Bill for Perjury has been so long delay'd since it appears by the Evidence that the Witnesses that have been produc'd to prove the Perjury were either at the Trial of the Five Jesuits or might have been produced then and though they are not all the same persons yet they all bear the same Testimony that was then offered but were not credited and I hope when my Evidence is heard they will have the same Reputation with this Jury that they had with those others My Lord I must acquaint your Lordship and this Court That in this Indictment for which Mr. Ireland was convicted Mr. Whitebread and Mr. Fenwick did undergo part of the Tryal and did hear the whole body of the Evidence that the Witnesses testified against them but there being but one Witness against them two at that time which was my self Mr. Bedloe being then upon an Intrigue as your Lordship may remember my Lord Chief Justice Scroggs who was then the mouth of the Court did discharge the Jury of Mr. Whitebread and Mr. Fenwick and remanded them to Prison which Mr. Whitebread six months after did remark to the Court and urg'd it as a Plea for himself to be discharg'd but that being over-rul'd by the Court he was try'd Now he had six months time to provide himself with new fresh Evidence to asperse me and to endeavour to falsifie that Testimony I gave in against Whitebread and Fenwick when Ireland was try'd and so he knew what it was I must further observe to you my Lord and Gentlemen of the Jury That my Case is very hard that since the substance of my Testimony was with credit receiv'd and the Jury upon convicting them were acquainted That they had found an unexceptionable Verdict That all the Objections against the Evidence were then fully answer'd That there was nothing that the Prisoners had been wanting in to object which could be objected and that the thing was as clear as the Sun And yet after six years time
I must come to be called to an account for Perjury in my Testimony of that part of the Popish Plot with which the King and Kingdom four successive Parliaments all the Judges of the Land and three Juries were so well satisfied I shall therefore offer to your Lordship and the Juries consideration the unanimous Votes of three Houses of Commons I shall offer the Proceedings of the House of Lords that is the highest Judicature in the Kingdom I shall prove what I have open'd by the Testimony of several Noblemen that are here who will testifie this for me My Lord I shall prove that several attempts have been made to baffle this Testimony as that of the Murther of Sir Edmundbury Godfrey who took my Depositions the Contrivance of Paine Farewell and Thompson made in the year 81 or 82 I forget which I shall then produce Evidence that I was actually here in Town at the time in question and then upon the whole I shall submit it to your Lordship and the Jury But to prepare your Lordship and the Jury the better for my Evidence I would again urge the strangeness of this Prosecution and the hardship that is put upon me to be tryed for Perjury in an Evidence given six years ago and formerly very industriously though not succesfully endeavoured to be falsified by sixteen St. Omers Youths that were produced and examined before all the Judges in the Kingdom and that not only once at Whitebread's Trial but a second time at Langhorn's Trial in neither of which would the Jury believe them because of their Religion and Education and the persons under whom they were educated who were men of known Artifice Then my Lord I would this argue If that time my Evidence were true it must be true still for Truth is always the same and if it were then true and I can prove it to be true 't will be thought a hard thing without all doubt that this should be put upon me Then my Lord I would fain know from my Prosecutors Why this Indictment of Perjury has been deferred so long Why these Witnesses that come now to testifie this matter and could then have been brought did not come before to justifie at the Trials of these persons what they now say which might have sav'd their Lives if true and had been credited Then I shall offer to your Lordship what I desire You and the Jury would please to observe That though the King's Councel are now against me yet they are also against themselves for they were of Councel for the King in those Cases particularly Mr. Sollicitor at Langhorn's Trial Sir Robert Sawyer at Sir George Wakeman's Trial They were of Councel before for the truth of my Testimony they are now against it I only mention that and pass it over But this is not the first attempt that has been made to discredit the Testimony of the Popish Plot as I told you before Now can it be supposed that the love and desire of publick Justice can be the cause of this attempt to falsifie my Evidence after so many Trials in which it has been credited and confirmed Can any thing my Lord more plainly tend to destroy and subvert the methods of Justice to frighten all Witnesses from henceforth from ever appearing to discover any Conspiracies and does it not tend to expose and vilifie the known Understanding and Justice of the late King of ever Blessed Memory to arraign the Wisdom of His Privy-Council His Great and Noble Peers His Loyal Commons in three successive Parliaments His Twelve Judges and all those several Juries that were upon those Trials Had not those Juries sense had they not honesty had they no consciences And the Judges before whom those Conspirators were try'd were they men of no Justice nor Honour nor Integrity nor Conscience nor Understanding Shall those Juries be said to have drawn the innocent Blood of these men upon their own Heads and the Nation as if I were perjur'd it must be innocent Blood that was shed upon it L. C. J. No no that goes a great deal too far Mr. Oates The Jury have no share nor the Judges neither in that Blood which was shed by your Oath Mr. Justice Withens No That is your own most certainly and not theirs Oates But this I say makes it most plain The Evidence was then true and I hope I shall make it as evidently plain 't is as true now and I do not question but upon the Evidence I shall now give both Positive and Collateral the Jury will believe me and acquit me of this foul Accusation Pray my Lord be pleased to consider that when the Jury brought in Ireland guilty of the High-Treason of which he was accused and convicted him Pickering and Grove says my Lord Chief Justice Scroggs that then was to them Gentlemen you have done like very good Subjects and very good Christians that is like very good Protestants and now much good may do them with their Thirty Thousand Masses as I shall prove he did say Then I insist in the second place That Whitebread's Conviction does reinforce the Conviction of Ireland because of the attempt by the St. Omers Witnesses to have overthrown my Evidence But since I am attaqu'd again in the same kind by the violence of the Popish Interest and by the malice of my Popish Adversaries I am contented to stand the Test with all my heart And then to conclude all I shall shew the Court That 't is in vain for the Popish Party to expect and think to wipe their mouths with Solomon's Whore and say they have done no wickedness No I question not but thousands of Protestants in this Kingdom are fully satisfied and convinced of the Truth of the Popish Plot all and every part of it Now my Lord if you please to give me leave to proceed on in my Evidence I shall beg that these Records of Conviction may be read which are my first Proof of the Consult and I shall then bring Witnesses viva voce and shall make it appear that what I did swear at those Trials was true L. C. J. Not to intetrupt you in your Defence or the method you will take for it I would put you upon that which is proper for you to apply your self to because the question now is not Whether there was a Consult or Congregation of the Jesuits here upon the 24th of April 78 but the question that toucheth you is Whether you were present at any such Consult here in London the 24th of April 78 These Gentlemen some of them do say there was a Consult and others that they heard of it and believe there was such an one because it was usual to have a Triennal Congregation for some particular purposes But the question is Whether you have sufficient proof to prove your self to be here on the 24th of April 78 at which time it is agreed of all hands there was a Consult Oates But will your
Lordship be pleased to take notice of the drift of the Evidence how they are consistent one with another These Gentlemen that have now been sworn to prove that I was not at this Consult do attempt to prove that I was at St. Omers Now to answer this I shall not go about to prove that I was not then at St. Omers but that I was actually then and about that time here in London and then all that proof that Mr. Attorney-General has brought must be laid aside L. C. J. You say well prove that Oates Now my Lord to introduce and prepare the Jury for this it will be necessary I humbly conceive to read the Records of the Conviction of Whitebread and Ireland L. C. J. Well go your own way We are not to direct you I only tell you where the question lies Oates Sir Samuel Astrey pray be pleased to read them in English that the Jury may understand them First read Ireland's Record which was done Oates Now read Whitebread's Record Read but the Attainder I will not trouble the Court with the whole Record Cl. of the Crown Thomas White alias Whitebread William Harcourt alias Harrison John Fenwick John Gaven and Anthony Turner were found guilty of High-Treason and attainted and Execution awarded against them upon that Attainder Oates Does not the Record say The Jurors say upon their Oaths they are guilty L. C. J. Yes I 'll warrant you Cl. of the Crown It is Dicunt super sacramentum suum Oates Very well These my Lord I do produce as my first Evidence to prove that there was a Trayterous Consult held upon the 24th of April 78 at the White-horse-Tavern in the Strand it having been believed and affirmed by two Verdicts Now give me leave to offer but this to the Court That at the Trial of Mr. Ireland I gave so full and ample a Testimony against Whitebread and Fenwick accompanied with all the circumstances of Time and Place that my Lord Chief Justice Scroggs said The Evidence might be sufficient to have satisfied a private conscience though it was not a legal Proof then to convict him there being but one Witness against them And for this I call Mr. Robert Blayney Mr. Att. Gen. Pray swear Mr. Blayney which was done L. C. J. What do you ask Mr. Blayney Oates Mr. Blayney have you your Notes of Ireland's Trial here Mr. Blayney Yes Sir I have Oates Pray will you look into what my Lord Chief Justice Scroggs said when he discharged the Jury of Whitebread and Fenwick Mr. Blayney Whereabouts is it Sir in the Printed Trial Oates It is page 55. Mr. Blayney I have found the place what is it you would ask me about it Oates Whether my Lord Chief Justice Scroggs did not use these words to the Jury I do acknowledge that Mr. Oates has given a very full and ample Testimony accompanied with all the circumstances of Time and Place against them all That may go far with you all things considered to believe there is a Plot Yet I do not think they have proved it against Whitebread and Fenwick by Two Witnesses though the Testimony be so full as to satisfie a private conscience yet we must go according to Law too It will be convenient from what is already proved to have them stay till more proof come in 'T is a great Evidence that is against them but it not being sufficient in point of Law We discharge you of them It is not a legal Proof to convict them by whatsoever it may be to satisfie your consciences Mr. Blayney I have look'd upon my Notes and I cannot find exactly those words L. C. J. He says he cannot find that passage as it is there Mr. Blayney There is something to that purpose my Lord. Oates Pray Sir will you look into your Notes in the very same place what my Lord Chief Baron said You must speaking to the Jayler understand they are no way acquitted the Evidence is so full against them by Mr. Oates 's Testimony that there is no reason to acquit them it is as flat as by one Witness can be Mr. Blayney There is such a passage I find in my Notes L. C. J. He says there is such a passage Oates Then I desire Mr. Blayney would look into his Notes what my Lord Chief Justice Scroggs said in his summing up the Evidence against Ireland He mentions the Evidence of Sir Dennis Ashburnham who was produced to discredit me and then he adds When the matter is so accompanied with so many other circumstances which are material things and cannot be evaded or deny'd it is almost impossible for any man either to make such a story or not to believe it when it is told It is Ireland's Trial page 72. Mr. Blayney My Lord I do find such a passage in my Notes L. C. J. He says there is such a passage in his Notes Oates Then I would ask Mr. Blaney another question at the bringing in the Verdict of the Jury against Ireland Pickering and Grove my Lord Chief Justice Scroggs that then was had this expression You have done Gentlemen like very good Subjects and very good Christians that is to say like very good Protestants and now much good may their 30000 Masses do them Blayney Yes my Lord there is in my Notes such an expression of my L. C. J. Scroggs Oates Pray you Mr. Blayney have you Whitebread's Trial the Trial of the Five Jesuits I mean Mr. Blayney My Lord when I received a Subpoena from Mr. Oates to be here this day and to bring my Notes of Ireland Whitebread and Langhorns Trials I did as I did before upon another occasion make a search for all my Notes but could not find any but those of the Trial of Ireland and Langhorn and those I have brought here but have not Whitebread's L. C. J. He says he has not the Notes of Whitebread's Trial he cannot find them Oates Then I must desire my Lord that the Printed Trials may be read L. C. J. No they are no Evidence If you can prove what was said at any of them you may by Witnesses but not by the Printed Books Oates Then will your Lordship be pleased to give me leave to mention what was said by your Lordship at that time when you were Recorder of London about your satisfaction with the Evidence L. C. J. Ay with all my heart and whatever I said I will own if I can remember it Oates Will your Lordship be pleased to be sworn then L. C. J. No there will be no need for that I will acknowledge any thing I said then Oates Then if your Lordship pleases I will read those passages out of the Books L. C. J. Ay do so Oates Says Mr. Recorder of London in particular to that part of the Prisoners Defence at the Trial of the Five Jesuits and the full scope given them of making Objections to the Evidence when he gave Judgment of Death upon these Five Jesuits and
Langhorn for I now speak of your Lordship in the third person Your several Crimes have been prov'd against you you have been fully heard and stand convicted of those Crimes you have been indicted for L. C. J. I believe I might say something to the same purpose as you have read now Oates I thank your Lordship for that acknowledgment L. C. J. Ay I 'll own any thing I did say Oates My Lord I have one passage more to urge and that was my Lord after the Jesuits had been convicted when the Jury brought in their Verdict and found Whitebread Fenwick Harcourt Gaven and Turner guilty your Lordship applying your self to the Jury said thus to them Gentlemen you of the Jury there has been a long Evidence given against the Prisoners at the Bar they were all indicted arraigned and tried for High-Treason depending upon several circumstances They can none of them say the Court refused to hear any thing they could say for themselves but upon a long Evidence and a patient hearing of the Defence they made they are found guilty and for any thing appears to us it is a just Verdict you have given L. C. J. I believe I might say something to that purpose too at that time and no doubt the Jury did as the Case then stood find an unexceptionable Verdict Oates There is another place my Lord that I would instance in for your Lordships Opinion of the Evidence of the Popish Plot and that is this Now my Lord I bring your Lordship as you were of Councel for the King at Mr. Colledge's Trial at Oxford the 17th of August 81 There you my now Lord Chief Justice directing your self to the Jury had this expression We come not here to trip up the heels of the Popish Plot by saying that any of them who suffer'd for it did die contrary to Law for if Mr. Dugdale was not a person fit to be believed or if the rest of the Judges who try'd Gaven were out in the Law then that man dy'd wrongfully for he had as much right to be try'd according to Law as any other person whatsoever This was your Lordships Opinion of the matter then and your Lordship as Councel for the King did there deliver the Law as well as Fact to the Jury If then they went against Law that would go to trip up the heels of the Popish Plot Mr. Justice Withens We are got into an endless Wood of sayings of people I know not where and when and when all is done 't is to no purpose Oates My Lord it is a part and a great part of my Defence to shew what credit has been given to the Evidence of the Popish Plot. L. C. J. Ay but what Councel says at the Bar or what Judges say in the Court of their Opinion is no Evidence of a Fact of which the Jury are Judges only Oates My Lord every Judge is upon his Oath and delivers his Judgment according to his Oath L. C. J. Not as to the Fact but only in points of Law so as to tell the Jury what the Law is if the Fact be so and so Oates My Lord it goes a great way with the Jury to have the Judges Opinion L. C. J. Mr. Oates deceive not your self all this you have insisted on hitherto has not been to the purpose nor is any sort of Evidence in this case and therefore do not run away with an opinion of this as Evidence a Judges Opinion is of value in points of Law that arise upon Facts found by Juries but are no Evidence of the Fact for Judges only do presume the Fact to be true as it is sound by the Jury and therefore say they Out of that Fact so found the point of Law arising is thus or thus Then in Case after a Jury has given a Verdict of the Fact a Judges Opinion of the Fact which may be perhaps contrary to the Verdict should be an Evidence as to that Fact that would be to overthrow and nullifie the Juries Verdict No that is not the Judges Province Surely you would not have a Judges private Opinion that Twelve men have found a Verdict against the Fact to be an Evidence as to that Fact No but admit the Fact to be so or so then the person convicted of the Fact ought to suffer so or so And by the same reason as this a Jury of honest Gentlemen here when I tell them here is a plain Fact either to convict you or to acquit you upon this Indictment are not bound to go by what I say in point of Fact but they are to go according to their own Oaths and according to the Evidence and Testimony of the Witnesses It is not my Opinion that is to weigh at all with them whether you are Guilty of this Perjury or are Innocent but the Evidence that is given here in Court Therefore what my Lord Chief Justice Scroggs said at any of those Trials or what I said or any other person that either was of Councel or a Judge on the Bench said as our Opinions is but our Opinions on the Fact as it occurred to our present apprehensions but is no Evidence nor binding to this Jury I must tell you there is no doubt but that those Juries did every one of them believe the Evidence you gave or they would not have convicted the Prisoners Do you think they would have found a Verdict against their own belief and being upon their Oaths to make true Deliverance between the King and the Prisoners have perjured Themselves to hang Others If they had so done they had committed Wilful Murther and the worst of Murthers too being under colour of the Process of Law but yet all this is no Evidence I do not discommend you for insinuating these things as introductive and preparative to what Evidence you have to offer but it is no Evidence one way or other Alack-aday how many times have we Causes here in Westminster-hall wherein we have Verdict against Verdict and yet no imputation to either of the Juries which might give different Verdicts upon different Grounds There was a notable Case lately of my Lady Ivies at this Bar We all thought upon the first Trial that she had as good a Title to the Land as could be all the Judges and the Councel went way I believe satisfied with the Juries Verdict for her But when the Cause came to be heard again we found all the Witnesses to prove her Title were guilty of notorious Porjury and the same persons which did believe before that she was in the Right and the Jury had done well when they heard the second Trial did believe she was in the wrong and accordingly the second Jury found it so and we believe that last Verdict to be good without any reflection on the Credit of the First Jury because the Evidence was as strong on her side then as it was afterwards against her In these Cases we give our Opinions
L. C. J. You must not ask questions in that manner It is properest for you to propose your questions to the Court and they will ask the Witnesses Oates Then I will not ask him but propose it to your Lordship L. C. J. Ay propose what questions you please and if they are fair I 'le ask them Oates Then my Lord I would ask Mr. Walker this question when 't was he met me with a disguise in what year and what month Mr. Walker My Lord I have been interrogated in former times upon this point six or seven years ago and I do confess I did see the man and met him between St. Martins-lane and Leicester-fields and truly my Lord I think I may say it was my unhappiness to meet with him for I have had a great deal of trouble by it since Subpoena upon Subpoena trouble after trouble that I am even weary of it for I am an old man but I do say I did meet him at that end of the Town between St. Martins-lane and Leicester-fields in a strange disguise he was just like a Vagrant a very Rascal and that 's true I believe my Lord. Mr. Att. Gen. Did you know him before Mr. Walker Yes or I had not known him then L. C. J. When was this Mr. Walker My Lord I 'le tell you my Lord Chief Justice Scroggs when I was at the Old-Bayly asked me if I knew what time it was I saw him thus said I my Lord 't is almost a year and a half since I saw him and I being an old man little thought it worth the while to lay up the particular time in my Memory but I 'le cast about in my thoughts to make the best conjecture I can for now I will not be upon my Oath it being but conjecture L. C. J. But now you are upon your Oath remember that man Mr. Walker My Lord I am speaking what I said to the Court at that time L. C. J. Pray do not tell us an old tedious Story of the questions and answers in the Old-Bayly but mind what is said to you here my question is now what time you saw Oates disguised between St. Martins-lane and Leicester-fields as you say you did Mr. Walker My Lord I cannot prescribe the time but I 'le guess as near as I can with the best probability and that is upon this circumstance when I went forward into Leicester-fields in the Court before the House I saw the Elm-Trees budded forth as big as an Hazle-Nut so that I did conjecture by that Token it might be between Lady-day the latter end of April that was the time as near as I could guess L. C. J. In what year was that Mr. Walker I cannot very well tell what year it was L. C. J. Was it in 77 or 78. Mr. Walker Truly my Lord I never thought it worth so much taking notice of to fix the particular time in my memory Oates Whether was it that year the Plot was discovered or the Michaelmass following Mr. Walker I cannot tell when the Plot was discovered or whether it be found out yet or no Oates But was it the year before you were Examined Mr. Walker To aswer you Mr. Oates when it was exactly I cannot say truly I would give you the best satisfaction I could and do you as much right as I would do my self I think if that time when I was Examined were in 77 or 78 it was near a year and a quarter before I did see you L. C. J. Well what can you make of this Oates 'T is not to be supposed he is a very willing Witness but yet he says 't was a year and a quarter before the Trial in which he was Examined which must be in April 78. L. C. J. I would know this question of you were you present at the Old-Bayley when the Five Jesuits were Tried Mr. Walker I was there my Lord. L. C. J. Were you at any Trial but one Mr. Walker I was not Examin'd at any time but one L. C. J. Have you any more questions to ask him Mr. Walker My Lord Chief Justice that then was did ask me if I knew any of the Prisoners at the Bar and I look'd upon all of them and I said I knew not either of them Oates Pray my Lord ask him whether he was not produc'd when the St. Omers Men were produc'd and gave his evidence as to my being in Town at that time L. C. J. He hears the Question let him answer it Mr. Walker I am not able to answer you because you put several Questions together but this I say I was never Examined but once though I have been Subpoena'd often to my great torment and trouble Oates Did you give Evidence at that Trial that you saw me in April 78 Mr. Walker I testified that I saw you and by such circumstances it must be about such a time as well as I could suggest but I could not nor cannot speak positively Oates Now my Lord I shall go on to another part of my Evidence and call some other Witnesses and first of all I come to Mr. Serjeant Maynard and I desire he may be sworn Which was done L. C. J. What do you ask my Brother Maynard Oates I call Mr. Serjeant Maynard to give an account of the Proceedings of the House of Commons upon my Discovery of the Popish Plot. L. C. J. We will not admit that to be any Evidence at all nor can it be by Law Oates My Lord Mr. Serjeant Maynard was one of the Committee of the House of Commons that managed the Impeachment and can give an account of the Evidence and Records that were produc'd at the Trial of the late Viscount Stafford Mr. Serj. Maynard I know nothing truly nor can remember any thing of it now L. C. J. He says he remembers nothing Mr. Serj. Maynard If Mr. Oates had told me before hand when he Subpoena'd me what time and what particular things he would have Examin'd me to probably if I was there I have Notes that I then took but I can never swear to my Memory for any Cause so long ago Oates My Lord I am very sorry Mr. Serjeant Maynard's Age should so impair his Memory L. C. J. I dare say you are not more sorry than he is for his Age. Oates Well my Lord I cannot help it Then I desire Mr. Blayney may be ak'd whether he has his Notes of my Lord Stafford's Trial. Mr. Blayney No my Lord I have them not here Mr. Oates by his Ticket of his Subpoena desir'd only the Notes of Ireland Whitebread and Langhorns Trial. L. C. J. But I must tell you Mr. Oates if those Notes were here they could be of no use to you without the Record of my Lord Stafford's Attainder if you ask any thing upon another Trial you must produce first the Record of that Trial and then you may examine to what was given in Evidence at the Trial. Oates My Lord it is
Parliament and then if they may be brought L. C. J. Which they cannot be nor never were nor I am sure ought to be nor I hope never will be as long as there is any Justice in the Nation Oates But my Lord you will allow the Records of the House of Lords to be Evidence L. C. J. Yes I tell you I will and for that reason because they are Records out of a Court of Record an Order of Court Baron is no Evidence because it is no Court of Record but a Judgment of a Court Leet is Evidence because it is a Court of Record and there 's the difference Oates My Lord I call in the next place my Lord of Anglesey if he be in Court L. C. J. No he is not here Oates Pray will you give me leave to call my Lord Keeper then L. C. J. See in the Court of Chancery whether my Lord Keeper be there Cryer No my Lord he is not he is gone Oates He was Subpoena'd my Lord and I can have Affidavit made of it he was a material Witness for me L. C. J. I cannot help it he is not here Oates Pray call my Lord Chief Baron L. C. J. Go one of you into the Exchequer and see if my Lord Chief Baron be there and tell him Mr. Oates calls for him as a Witness Oates And Mr. Justice Levins Cryer The Courts are both up and they are all gone Oates They were subpoena'd I am sure to be here well go and see whether they are there or no. L. C. J. In the mean time do you call some other Witnesses Oates I call my Lord Chief Justice Jones L. C. J. The Cryer is gone to look for the Judges Oates Then I call my Lord of Clare L. C. J. Here is my Lord of Clare E. of Clare My Lord I can remember nothing it is so long time ago L. C. J. My Lord of Clare says he can remember nothing Oates I only call my Lord of Clare to ask him one question which I hope his Lordship will remember L. C. J. Swear my Lord of Clare which was done well what is it you ask my Lord Oates My Lord of Clare the question I would ask your Lordship is with what credit I was received in the House of Lords upon my Discovery and that you will to the best of your memory give my Lord and the Jury an account how the House of Peers proceeded upon my Evidence E. of Clare Truly my Lord I cannot give any account it is of so long standing Oates It is a great while ago my Lord and therefore it is hard measure that I must be brought to this Tryal so long after L. C. J. If it be a long time we cannot help it we cannot force People to prosecute sooner than they will do Oates I desire Mr. Baron Gregory may be called L. C. J. He is not here but see and call my Brother Gregory I hear they are all together in the Treasury Oates Then I call Mr. Williams that was Speaker in the House of Commons L. C. J. Here is Mr. Williams he was sworn Oates I desire Mr. Williams because you were then Speaker of the Commons House of Parliament you would be pleased to tell what you remember concerning the credit I received in that Parliament in which you were Speaker upon the Discovery I made of the Popish Plot and particularly as to the Consult of Jesuits to kill the late King in the month of April 78. Mr. Williams My Lord my Memory is never very good but especially in a case that is at such a distance of time and which consists of so many Particulars as this I mean Mr. Oates Discovery But this my Lord I do remember he was examin'd at the Bar of the House of Commons and gave a long account but it is more than any man can do to tell every Particular that is said in that House L. C. J. Was he upon his Oath Mr. Williams at the Bar of the House of Commons Mr. Williams My Lord he was as other men are that are examin'd in the House of Commons L. C. J. We all know it could not be upon Oath they have not Power to give an Oath Mr. Williams What Reputation he was of I cannot say so well as what their Proceedings did testifie L. C. J. Nor in case they did believe him never so much is it any thing to this question which is whether he swore true or false at Ireland's Tryal Mr. Wiliams My Lord when a Person is brought to the Barr there to be a Witness in any Cause every body is silent and the Witness is heard what he has to say and so was Mr. Oates when he had done he withdrew but what the Opinion of the House was upon it I must submit to their Votes and Resolutions L. C. J. Which you know Mr. Williams are no Evidence Mr. Williams That I must submit to the Court. Oates I desire my Lord of Clare would be pleased to tell if he remembers what Credit the House of Lords gave me upon my Discovery E. of Clare My Lord I do not well hear Mr. Oates question Oates My Lord my question is this when I was brought to the Bar of the Lords House whether I did not receive the thanks of the Lords House for my Discovery E. of Clare Truly Sir at the beginning of the Discovery of the Popish Plot I was not in Town nor in the House L. C. J. But now Mr. Oates I hope you are satisfied by the answer that is given by your own Witness that what is done in the House of Commons is no Evidence and I would have you remember that is the Reason of it because they are no Court of Record and because they cannot so much as give an Oath Oates My Lord I see my Lord of Huntingdon is here and tho I did not Subpoena his Lordship nor design'd to have troubled him yet being here I desire his Lordship would give the Court an account what Credit I had in the House of Lords upon my Discovery L. C. J. Swear my Lord of Huntingdon which was done E. of Huntingdon I do believe my Lord Mr. Oates Discovery found a good reception in the House of Lords but it was grounded upon the opinion that what he said was true and that he was an honest man for so the House then accounted him to be and upon this it was their Lordships gave credit to his Testimony and indeed had the matter been true it was of high Importance to have it thorougly examined But since that time it being apparent there were so many and great Contradictions Falsities and Perjuries in his Evidence upon which so much innocent blood hath been shed I believe a great many Persons who were concerned in the Trials of those unfortunate men are heartily afflicted and sorry for their share in it And I do believe most of the House of Peers have altered their opinion as to this
material Circumstances which I have before reckoned up to you But Gentlemen false witnesses are very often detected by little Circumstances though I must needs say these are not small ones for these are very remarkable things in themselves and great Contradictions to one another and therefore 't is impossible they both can swear true There were some other witnesses that were produced by Mr. Oates formerly upon this point one of which was Clay the Priest and he you hear is contradicted by Mr. Howard's Testimony who not only tells you he was not at his House when he says he was but shews that Clay was mistaken in point of time It was not in May but in July But that 's not all we have another Evidence Gentlemen to show how this mistake comes to pass and which will give a great light into this sort of practice that has been used in this matter for we have two witnesses that give you an account how Oates and Sir William Waller were at the Gate-house with Clay and there did threaten him That unless he swore he dined with Oates at Mr. Howard's in May they knew he was a Priest and he should be hanged The man was somewhat cautious at first for truly he knew nothing of the matter but at last upon condition he might have his money again that was taken from him he had been a Rogue formerly and he did not know what he might do Now we find presently after that he was in fact brought as a witness what he swore Mr. Howard tells you and you have heard him contradicted in that point of time For Mr. Howard says it was in July and then it was agreed that Oates was in England for our witnesses tell you that at Midsummer he came away from St. Omers So that Gentlemen the Evidence that was formerly produced for him is not only taken away by positive Counter-proof but there is fixt upon him with great Infamy the additional Crime of Subornation by forcing People to swear for him under the Threats of being hanged and we all know how such People lay under great fears and terrors at that time There was another witness that was produced formerly for him but I shall not take upon me to repeat all the particular Evidence that has been now given about that matter In short our Objection to that Testimony lies thus That Oates did swear in his Narrative that Smith was a dangerous man and imployed by the Jesuits to stir up the People against the Government that appears by Oates his own Oath But it likewise appears that afterwards they were reconciled and that he gave Smith a Certificate under his hand that he was a good Protestant and a good Subject and about Eminent Service for the King Now we see no reason hitherto why Mr. Oates should change his mind after having sworn him such an ill man all of a suddain to be so kind to give him his Protection and so advantageous a Character as that was in that Season But Gentlemen the mystery is easily unfolded if we go three or four days further in time which brings us to the Trials of Whitebread and Langhorn it seems Mr. Oates was then aware of that which is now an Objection to his Testimony for it was made an Objection at the first Trial of Ireland That he was not at this Consult for he was then actually at St. Omers but no witnesses were there to prove it but now he was aware that some were a coming over and it concerned him to make some good proof if he could that really and in truth he was here in London at that time And I cannot omit to take notice of what my Lord Chief Justice was pleased to observe and object to him now It is a wonder a man should be here in Town so long a man that had much Acquaintance as it seems he had a man that went about freely and publickly as his own witnesses say he did should be seen by no body but these few should not be able to give an account by any body where he lodged at any one time in this Interval Nay by no Circumstances that must occur to his own Knowledge to be able to shew where he lodged is very strange though it should be that he did lodge in the Houses of those that would not come to give Evidence as he alleadges yet it is almost impossible but there must be some other Circumstances to prove his being here besides the Evidence of the Landlord of the House where he lodged but he gives no account where he was lodged and whom he conversed withal but these People only and that they should see him who were not his Intimates and none else in the World is to me one of the most strange things that can be conceived Now Gentlemen when he has given no manner of satisfaction that he was here and is by twenty witnesses sworn not to be here What is it that he says to all this why he doth insist upon it that his Credit must not be now Impeached because that once he had the fortune to be believed and some men have died and suffered for it as if no Perjury were to be punished but that which is unsuccessful whereas the reason why Perjury is taken notice of in the Temporal Courts is only because of the mischief that it may do Shall it then be no Crime when a man has done the mischief when the fear of that mischief was the ground of making it a Crime that is a most monstrous way of arguing And yet this would Mr. Oates have look like an Argument that because he has been believed in his false Oaths and men have suffered by his Perjury and he has been successful in his Crime that Success has protected his wickedness from punishment This I confess is a new way of arguing and such as none but Mr. Oates could certainly have invented But Gentlemen to contradict this we have shown you that as he has had the fortune to be believed so he has likewise had the fortune to be disbelieved For there has been produced as many Records of Acquitals where he was an Evidence as there have been produced Convictions upon his Testimony so that he has been as often disbelived as believed Whither then does he betake himself next he has called a great many witnesses to give you as Evidence for him an account what Opinions at that time the Houses of Parliament the Courts of Justice and the Juries had of his Evidence and then insists upon it that now to call his Credit in question is to arraign the Justice of the Nation the Wisdom of both Plouses of Parliament that believed him the Honesty of the Juries that convicted those whom he accused and the Integrity and Understanding of the Judges who were Learned Wife and Just men and with great earnestness he asks the question Why now at this time of day should this be called in question which
upon his Oath backt with all the Imprecations of Evil to himself that a man can use That there was not one word of truth in Oates's Testimony nor did he ever see Oates in his life till such time as he was taken up upon his Accusation Now are here two persons of Honour and Quality that upon their Oaths do particularly give you an account as in the presence of Almighty God that Oates has twice forsworn himself against them Gentlemen there is notice to be taken of the Journal of the House of Lords and though it is true for the sake of the Precedent and to secure the Justice of the Nation we did keep them strictly to their proof that it was upon Oath And as to the business of Smith though we do believe the thing in our private judgments yet we thought it not fit to be permitted that persons should upon their own Oathes confess themselves to be guilty of Perjury and afterwards give Evidence against others for such are not to have the countenance of ever being Witnesses again yet by the Records of Parliament and other Evidence there is enough to make the matter aimed at clear For it is clear by his Narrative that Oates did first swear as far as he could well swear to bring him into the displeasure of the People for that was his way to intimidate all he had to do with and thereby force them to comply with his Designes And there was no more plausible Accusation at that time than to accuse a man for saying somewhat against the Parliament or being in a Combination to subvert the Protestant Religion But you see when he comes to have his own turn serv'd then this man upon whom he had fixed such an odious Character is really no Papist at all but engag'd in service for his King and Country and has Mr. Oates's Passport a thing of great advantage to him at that season This the Kings Council make use of with great reason as an Evidence of Tampering for the man has altered his opinion of one he had before accused and now brings him as an honest to give Evidence for him And this say they must be intended to be done by Practice and by Threats And the rather Gentlemen for that you have an account by Witnesses sworn that there was one Clay a Popish Priest that lay in Prison at the Gatebouse and while he was there Oates and Sn William Waller came into the Prison to him and tampering with him says Oates I hear there are some St. Omers Boys that intend to testifie that I was at St. Omers when I say I was at London but you must swear that you din'd with me at Mr. Howards in May 1678 or if you will not you know I know you to be a Priest and I 'll hang you Says Clay Where is my Silver and Gold that was taken away from me And we all know Sir William Waller was wonderful good at the fingering of Gold he us'd to take away broad Pieces as Popish Reliques because of the Crosses upon them Says Clay Give me my Gold again I will swear for you I have been a Rogue before and I may be a Rogue again And accordingly a Contract is made for him to swear directly that Oates and he were together at Mr. Howard's house in May 78. This very Fellow that tells you now the story told it the next morning to another man who has likewise sworn the same Then is Clay conveyed by Oates to the Old-Baily and there swears being thus threatned and suborn'd That in May 1678 he and Mr. Oates dined together at Mr. Howard's house and you have Mr. Howard produc'd who does swear that Glay did swear so but indeed he was not there with Mr. Oates at dinner till July after This Gentlemen is direct Corruption and Subornation and if a man will be a corrupt Knave and endeavour to suborn Witnesses to swear that which is false he is the more likely to swear false himself Besides that you are to take notice here is his own Narrative produced where you have it sworn by himself That he went back to St. Omers about the beginning of May and was there all the month of May and in June till the latter end of it Then all this while either Mr. Oates or his Witnesses are perjur'd in the Case He says he stay'd but three or four days in England after the Consult was over and then went streight back again to St. Omers Which must be the first week in May but if you believe his two Witnesses he din'd with them several times after that and so it is apparent some of them are guilty of gross and foul Perjury Now Centlemen I cannot but resort back to the Objection that I made at first 'T is strange to me that a man that came upon such a designe should go publickly about the streets at noon-day though in a disguise yet he was known But if you take the persons time to be in the year 1677 then it is easily reconciled what they did say of their seeing him in such a disguise and so all their Testimony may stand together and perhaps they may mistake in a point of time though not in the substance of their Evidence and I would out of charity conclude it to be so But I will say if they are to be taken strictly to the year 1678 it is monstrous to imagine that we should have no body brought to let us know where he lodged where he eat with whom he convers'd for all that time Gentlemen I have detained you the longer in this matter because I take it to be of so great weight wherein the Justice and Honour of the Nation are so much engaged and it was therefore fit this Cause should be tryed in the most solemn and publick manner in order to vindicate the Nation from the Reproach and Calumny of Injustice and Oppression And sure I am if you think these Witnesses swear true as I cannot see any colour of objection there does not remain the least doubt but that Oates is the blackest most perjur'd Villain that ever appeared upon the face of the Earth C. Crown Tipstaff you must take care of the Jury L. C. J. Gentlemen if any of you have a mind to drink at the Bar before you go you shall have some got for you Jury No my Lord we do not care for drinking L. C. J. Then we will stay for you Then the Jury withdrew to consider of their Verdict and after about a quarter of an hours stay they return'd and delivered in their Verdict That the Defendant was guilty of the Perjury whereof he was Indicted Which being Recorded the Lord Chief Justice spoke to the Jury to this effect L. C. J. Gentlemen that we are not God be thanked in those times of Disorder and Confusion that we have been heretofore in to have Humming or Hissings to declare the Auditors Approbation or Dislike of Juries Verdicts But because there has been this day mention made of the Opinions of Judges about Verdicts I shall take the liberty to declare my mind to you now That formy part I am satisfied in my Conscience you have given a good and a just Verdict and so I believe is every other Judge upon the Bench. To which the rest of the Judges assented and then the Court arose