Mr. Recorder, (sir Thomas Jenner,) he must plead before he could be heard. Whereupon desiring to know whether he might have the same advantage after his pleading as before, as to gain longer time for his trial; and being answered he might, he held up his hand, and then the indictment was read. Mr. Bateman pleaded not guilty, and desired his trial might be put off, saying, He was not prepared to make his defence, and therefore prayed a longer time, saying, he had been close prisoner for the space of ten weeks, and was over and above very much indisposed; and further alledged, he had had no notice nor pannell of the jury. As for notice of trial, he was answered, that it was not usual to give any in that court, but that he ought to have expected it, and prepared for it accordingly; and as for the pannell, it was not denyed him. Then he prayed a copy of the indictment, but was told it could not be allowed; and upon his further alledging his unpreparedness and no notice of trial, and the like, the king's counsel urged that he had opportunity enough to take notice of his trial, for that it was upon an indictment of the precedent sessions. Then he asked,, what time he might have between his arraignment and trial; and was answered, as much as would stand with the conveniency of the court: and after several hours respite, he a second time was brought to the bar, and then upon his humble request, pen, ink, and paper was allowed him, and his son to assist him; and then were sworn to try the issue, Richard Aley, esq., Richard Williams, John Cannum, Patrick Barret, John Palmer, James Raynor, Edward Rhedish, George Lilburn, Daniel Fouls, Peter Floyer, Lawrence Cole, John Cooper. And he making no exceptions to them, then the Indictment was read. The Jurors, &c. "That Charles Bateman, late of the parish of St. Dunstan in the West, in the ward of Farringdon Without, London, surgeon, as a false traitor, against the most illustrious and excellent prince, Charles the second, late king of England, Scotland, France, and Ireland, de fender of the faith, and his natural lord; not having the fear of God in his heart, nor weighing the duty of his allegiance; but being moved and seduced by the instigation of the devil, the cordial love, and true, due and natural obedience, which a true and faithful subject of our late lord the king, towards him should, and of right ought to bear, altogether withdrawing and practising, and with all his strength intending the peace and common tranquillity of this kingdom to disquiet and disturb, and war and rebellion against our late lord the king, within this kingdom to stir up, move, and procure; and the government of our late lord the king, of this kingdom to subvert; and our said late lord the king, from the stile, title, honour, and kingly name of the imperial crown of this kingdom to depose and deprive, and our said late lord the king to death and final destruction to bring and put; the 30th day of May, in the 35th year of his reign, and divers other days and times, as well before as afterwards, at the parish and ward aforesaid, falsely, maliciously, devilishly, and traitorously, with divers other rebels and traitors to the Jurors unknown, did conspire, compass, imagine, and intend our said late lord the king, then his supreme and natural lord, not only of his kingly state, title, power and government of his kingdom of England to deprive and depose, but also our said late lord the king to kill, and to death bring and put, and the ancient government of this kingdom to change, alter, and subvert; and a miserable slaughter amongst the subjects of our said late lord the king to cause and procure, and insurrection and rebellion against our said late lord the king to procure and assist. And the same most wicked treasons and traitorous conspiracies, compassings, imaginations and purposes aforesaid to effect, and bring to pass, he the said Charles Bateman, as a false traitor, then and there (to wit), the said 30th day of May, in the 35th year aforesaid, and divers other days and times, as well before as afterwards, at the parish and ward aforesaid, falsely, unlawfully, most wickedly, and traitorously, did promise and undertake to the said other false rebels and traitors then and there being present, That he the said Charles Bateman would be assisting and aiding in the taking and apprehending the person of our said late lord the king, and in taking and seizing the city of London, and the Tower of London, the Savoy, and the royal palace of White-hall, against the duty of his allegiance, against the peace, &c. and against the form of the statute in this case made and provided, &c. Mr. Phipps, counsel for the king, opened the nature of it, and was seconded by Mr. Serjeant Selby and Mr. Charles Moloy, after which, Mr. Josias Keeling was sworn, whose evidence was, that he had been at divers meetings and consults, where the methods had been proposed for the purposes aforesaid; and more particularly one time with Rumbold the Maltster, since executed for high treason; and that then, three papers were produced by Rumbold, and opened, containing the model of the design, to divide the city into twenty parts, and to raise five hundred men in each part, to be under one chief, and nine or ten subordinates whom he should appoint, the names of the lanes and streets of each division being likewise inserted therein; and at that time Rumbold proposed the business of the Rye-house, saying, He had a house very convenient to plant men in, to seize the king in his return from Newmarket, but that he somewhat boggled about the killing of the postillion, which had been proposed the better to stop the coach, because it looked too much like an exploit in cold blood. He further deposed that he had been at divers other places where it had been discoursed to the same effect, and that Mr. Bateman was looked upon as a person fitting to manage one division in order to an insurrection, to seize the Tower, city, &c. This being the sum of Mr. Keeling's evidence; Mr. Bateman said, that what he had sworn, did not affect or charge any treason upon him; and was answered by the court that it did not, and bid the jury take notice, that what Mr. Keeling had sworn, was only to the conspiracy in general, and did not affect the prisoner in particular. Then Thomas Lee was sworn, and gave evidence, That he being made acquainted with the design by Mr. Goodenough, &c. and how the city was to be divided into twenty parts and managed; and being asked, who was a fit man to manage one part, he nominated Mr. Bateman, and thereupon was desired to go to him, and speak with him about it as from Mr. Goodenough; and when he came to discourse him about that affair, he apprehended very plainly that he was no stranger to it, nor boggled to give his assent, and seemed much desirous to speak with Mr. Goodenough about it: that he likewise went one day to the late duke of Monmouth's house with Mr. Bateman; and Mr. Bateman, after he had some discourse with one of the duke's servants, came to him and told him, the duke was willing to engage in the business, and assured him, that he had divers horses kept in the country, to be in a readiness when matters should come to extremity; and from thence he went with him to the King'shead tavern, and there had discourse to the same effect: and from thenee they came to the Devil-tavern within Temple-bar, where Mr. Bateman proposed the seizing the City, Tower, Savoy, White-hall, and the person of the late king, and promised not to be wanting therein. At another time, he met him at the Half-moon lavern in Aldersgate-street, where discoursing about the conditions the conspirators were in, as to the intended insurrection, he said, If he could but see a cloud as big as a man's hand, he would not be wanting to employ his interest: and that there were other discourses tending to the insurrection, but were broke off by the coming in of one John Almeger, before whom Mr, Bateman would not discourse, because he knew not of his coming. Mr. Lee being asked the design of that meeting, replied, it was upon the account of carrying on the conspiracy, and that Mr. Bateman had told him, that he intended to take a house near the Tower, to place men in, in order to surprise it, and that he had held divers conferences with some sea captains on that affair; and that he had been with them at coffee-houses, &c. at sundry other times; but there, to prevent discovery, they spoke of the design at a great distance. To this evidence, Mr. Bateman objected, that if he had been conscious of what was laid to his charge, he was fit for Bedlam: saying, He wondered if he had heard him speak such words, he had not accused him sooner' but was answered that Mr. Goodenough was not to be had till after the rebellion in the west; and that Lee's single testimony in case of high treason, in so high a nature, was not sufficient. Then Mr. Richard Goodenough was called, who being sworn, deposed, that being in company with Mr. Bateman (to the best of his remembrance) at the King's-head tavern in St. Swithin's-alley, near the Royal-exchange, and having some discourse about the intended insurrection, and of Wade and others that had engaged to promote it; Mr. Bateman not only approved of the design, but promised to use his interest in raising men; and not only to be assisting in the division allotted him, but in surprising the City, Savoy, &c. and in driving the guards out of town. To this he objected, that he was pot at the King's-head with Goodenough; to which Mr. Goodenough replied, 'He had not sworn positive to the place, though he verily believed that was the place; but however, as to the discourse and words then spoken by Mr. Bateman, he was posi'tive.' The Evidence being thus full against Mr. Bateman, and liberty granted him to make what defence he could, he desired that sir Robert Adams might be heard, in relation to a false report the said Mr. Lee had raised of sir Robert and others; and sir Robert being in court, gave evidence, that there had been a report abroad, said to be raised by Mr. Lee, that he (viz. Mr. Lee) had beaten three knights, and that Mr. Lee came to him and asked his pardon, acknowledging the thing in itself was altogether false. To the same purpose sir Simon Lewis was called, but appeared not. Amos Child being called by Mr. Bateman, to testify his knowledge of Mr. Lee, and being asked what he could say against him, declared, that he knew nothing to the contrary but Mr. Lee was an honest man. One Baker being called by Mr. Bateman, to testify that Mr. Lee would have suborned him against him to his prejudice, some years since, of which he had made an affidavit before sir William Turner, and the said Baker not then appearing in court, he desired sir William Tur ner to give some account of Baker's examination, which the said sir William had taken; but it being about two years since, sir William declared, He could not charge his memory with any of the particulars contained therein. Mr. Tompkins, sir William Turner's clerk, being called, and asked what he could say coucerning any examination of Baker's taken before sir William, that related to Lee; he said, there was an examination taken anno 1683, wherein Mr. Lee was mentioned; but to the best of his remembrance it was returned before the king and council, and he could not give any account of the particulars. Then Mr. Bateman desired to know upon what statute he was indicted, and was informed by the court, That the treason wherewith he stood charged, was comprehended within the 25th of Edward 3, and the 13th of Car. 2, by overt-act; and having little more to say in his covery of the conspiracy, if he could have proown defence, after a favourable hearing of all cured further evidence to have corroborated his he had materially to offer, and his son having own, and Baker being looked upon as a broken been allowed by the court to assist him, in fellow, and that he lodged near the Sessionslooking over his notes, and calling his wit- house, and yet came not in before, though nesses, by reason he, through sickness, pre-often called; the consideration of the whole tended himself incapable: Then the Lord matter was left to the jury, and an officer beChief Justice of the King's-bench summed up ing sworn to attend them, went out, and after the evidence at large, and omitted nothing that about half an hour's 'debating that, and what might be for the advantage of the prisoner, else was before them, gave in their verdict, whereby the matter was fairly, fully, and That Charles Bateman, then at the bar, was clearly left to the jury; and thereupon Mr. guilty of the high treason as laid in the indictBateman was taken from the bar. After which ment; which verdict was accordingly-recordthe other prisoners being called and tried, and ed, and the prisoner re-conveyed to Newgate: the jury ready to go forth to consider of their And being again brought to Justice-hall, on verdict, Mr. Bateman's daughter came in and Friday the 11th of December, in order to re besought the court, that Baker, whom she said ceive sentence; and upon holding up his band, she had found out, might be heard against Mr. being asked what he could say for himself, why Lee; but Mr. Lee being gone, and the trial al- the court should not give judgment against ready over, the king's counsel opposed it, un- him according to the law; he desired to know Jess Mr. Lee could be found (which he could whether Mr. Goodenough was fully pardoned, not be at that time); and the court having de- and was told, that as for the out-lawry he was livered their opinion that it was not convenient pardoned, and that his pardon hath been alto examine any witness after the jury had re- lowed and approved of in that court, and in the ceived their charge, it being a very ill prece- court of King's-bench, and for any thing else dent, and of dangerous consequence; yet some he was not prosecuted. Then he said, his opiof the jury desiring it, the court, to prevent nion was altogether for monarchy, and that he any objections that might be made, consented, hoped he should have an advocate with the and Baker had leave to speak: whose evidence king; but had nothing more material to offer. was, that being in company with Mr. Lee, some time in the year 1683, and discoursing about divers matters, he bid him go to the sign of the Peacock, and to the Angel and Crown, to a surgeon and a linen-draper, whom he named, the former of which he remembered to be the prisoner, and to insinuate himself into their company, and discourse them; and when he demanded of Mr. Lee to what end he should do it, or about what he should discourse them, he told him it might be about state-affairs, and by that means he would find a way to make him a great man; and when he excused his attempting to intrude into such company as was above him, he being but a shoemaker, Mr. Lee told him he knew that he kept company with such and such men, and why could he not as well do it with those he had inentioned. Upon this he prayed a divine might have And of this, he said, his examination was taken leave to come to him, as likewise his relations; before sir William Turner; but this being no- which being allowed, he departed the court, thing to the purpose, but was rather looked and was on Friday the 18th of December, exe upon as a design Mr. Lee had to make a dis-cuted at Tyburn according to the sentence. veral things in aggravation of that great crime, Then Mr. Recorder, after having spoke sewhereof, after a fair and favourable trial, he was convicted, advised him not to flatter him self with hopes of life, and thereby delay his repentance necessary for his future happiness, and pronounced the sentence, which was, That he should return to the place from 'whence he came, from thence be drawn to the place of execution, there to be hanged by 'the neck, and whilst alive be cut down, and 'his bowels to be taken out and burnt; his head to be severed from his body, and his body divided into four parts, and that his head ' and quarters be disposed at the pleasure of the king!? REMARKS on the Trial of Mr. CHARLES BATEMAN. By Sir JOHN HAWLES, Solicitor-General in the Reign of King William the Third. THE last person which concluded the tra- a factious fellow; and he had revived the megedy,* was one Charles Bateman, a chirur-mory of his demerits, by attending when Oates geon; his demerits were, that he had been, or at least was reputed to have been, chirurgeon to the earl of Shaftesbury, and one whom his lordship had a kindness for, and therefore, according to the cant of the time, he was called * See the Note at p. 455. came from his whipping, and letting him blood. Whether either of those circumstances were true or not, I know not, but they were believed: and therefore the 9th of December, 1685, he was indicted and tried for high treason. On his trial he seemed to be distracted, and therefore, out of abundance of charity, the court appointed his son to make his defence for him. ed at discretion, witness Mr. Johnson and Oates. And in 1683, when the words were pretended to be spoken, Bateman had not been spared, if accused; and though it be a good reason for the court to have given, why they did not proceed against the prisoner till that time, because there were not two witnesses against him; yet it was no reason for Lee, why he did not accuse the prisoner before that time, especially he having been several times before that time examined, not only of what he knew, but of what persons he knew concerned: but, to say truth, Lee, in the trial, did not pretend to answer the objection, but the court, in the manner before, endeavoured to answer it for him. doing it in prejudice of the king. In Colledge's trial, he was told, that persons that advised a prisoner in treason, even before a trial, were guilty of a high misdemeanour; nay, a solicitor had been indicted of high treason for it: and therefore nothing can excuse the allowing the prisoner counsel in matter of fact, as was done in this case (it is not material, whether the son was a barrister at law or not) but the weakness of the prisoner, who to all appearance was moped mad. The witnesses against him were Keeling, who only spoke of a design in general, without mentioning Bateman to be concerned in it. Thomas Lee and Richard Goodenough swore, at several times and places, his discourse to them severally, of seizing the Tower, City, and Savoy. Baker for the prisoner said, Lee in the year 1683, would have had him insinuated himself in the prisoner's company, and discourse about state-affairs, and by that he would find a way to make Baker a great man: upon the evidence the prisoner was found guilty. Against Goodenough's evidence, there is only this to be said, that he was pardoned, The last matter observable in this trial, was but so far only, as to qualify him to be a wit- the permitting Bateman's son to make his faness, though not a very credible one, not only ther's defence, which was an extraordinary unthe guilt sticking to him, but even the punish- paralleled favour; it was the first and last time ment of what he had then lately done, hanging that, or any thing like it, had been done; the over his head; and what was said for some lord Russel's lady, indeed was permitted to time, of all the witnesses for the king, at that take notes at the trial for her lord, but he only time, and for some time before, was true, they was permitted to make use of them. Fitzhunted like cormorants, with halters about their harris's wife, when she but whispered her husnecks, though even that matter by one of the band, or but told him what jurors he should king's counsel was boasted to the jury, as a challenge, and what not, was severely correctcircumstance of more credibility; for he as-ed, and threatened to be thrust out of court, for sured them there was not a witness which he produced had a pardon, as the witnesses in the Popish Plot had. 'Tis true, in the Popish Plot, upon very good reason the witnesses having confessed what they pretended to know, of matters in which they had an hand, it was not thought proper to use them as witnesses, though they had used them as informers, till they were pardoned, lest it might happen to be, or at least it would have been, suspected, that the terror of the punishment of the crimes confessed might influence them to swear falsely, to the jeopardy of other men's lives, to save their own; which, as the lord Howard truly said, was the drudgery of swearing. But to Lee's evidence, besides the evidence of Baker against him, that he would have procured Baker to have been a witness against the prisoner, and enticed him with the promise of making him a great man; and besides that, it appears in Rouse's trial, that Rouse and he were upon the trepan with each other, to bring each other into the pretence of a plot, in order to make some advantageous discovery of it, of which Lee got the start of Rouse; the objection which was made to his evidence, why Lee had not accused the prisoner sooner, there be ing near three years between the pretended design, and the discovery of it, was never satisfactorily answered. It was a foolish story, to say Goodenough could not be had before, and a single testimony in high treason was not sufficient; every one knows, that though a single witness is not sufficient to convict a man of high treason, yet a single person's testimony is enough to commit a person accused, and upon conviction on the testimony of a single witness, to make him a prisoner for his life, witness Mr. Hampden and others; besides the subjecting him to other corporal punishments, inflict But the court, by excusing their favour upon that account, incurred a worse censure; for nothing is more certain law, than that a person who falls mad after a crime supposed to be committed, shall not be tried for it; and if he falls mad after judgment he shall not be executed: [3 Coke, Instit. p. 4. 4 Co. Rep. 124. b. Hale's H. P. C. Vol. 1. p: 35.] though I do not think the reason given for the law in that point will maintain it, which is, that the end of punishment is the striking a terror into others, but the execation of a madman hath not that effect; which is not true, for the terror to the living is equal, whether the person be mad or in his senses: and that is the reason of breaking the person executed for treason, and exposing his quarters, which is done rather to deter the living, that for punishing the dead. But the true reason of the law I think to be this, a person of non sana memoria,' and a lunatick during his lunacy, is by an act of God (for so it is called, though, the means may be human, be it violent, as hard imprisonment, terror of death, or natural, as sickness) disabled to make his just defence. There may be circumstances lying in his private knowledge, which would prove his innocency, of which he can have no advantage, because not known to the persons who shall take upon them his defence; and that is the reason many civil actions die with the persons against whom they lay in their life-times; and that is the reason why in criminal matters, persons by ordinary course of law cannot be convicted after their deaths. For in all civil actions there is as much reason for the person injured, to have satisfaction out of the estate of the person who injured him, in the hands of his heir or executor after his death as there was to have it out of the estate of the injurer, in his own hands in his life-time: and there is as much reason that the heir or executor of a person who hath committed a crime, which by law would have forfeited his estate if in bis life-time be had been attainted of the same, should forfeit the estates they claim from him, as if he had been attainted in his life-time, which had prevented the said estates vesting in them. And it hath been sometimes practised, where the crimes of the persons deceased have been notorious, and without any doubt; as was the case of several persons mentioned in the act of pains and penalties: which act had example from many other acts of parliament in other reigns, where the persons were dead before punishment overtook them. And though of late years it hath been pretended, that the king's safety depends upon the speedy trial and execution of a person guilty of high-treason; yet this was never thought so heretofore, nor in truth in itself is so: for it is plain, in reason as well as experience, that what is said of witches, is true of all malefactors, when once they are in custody, their power of doing mischief ceases. of non sana memoria should be permitted to put off a trial or stay execution, all malefactors will pretend to be so: But I say there is a great difference between pretences and realities, and sana and non sana memoria hath been often tryed in [1 And. 107.] capital matters, and the prisoners have reaped so little benefit by their pretences, it being always discovered, that we rarely hear of it. In this case the prisoner might have been tried as well absent as present, according to that repealed statute, for any advantage he did or could reap by being present: and it seems very probable the court thought him distempered, for if he was of sane memory, his son ought not to have been permitted to make his father's defence; if he was distempered, he ought not to have been tried, much less executed. And this person being the last man, as far as I can remember, or can find by the printed trials, who suffered for the plot of high treason first set on foot by Fitzharris, and carried on against Colledge, and the other persons herein mentioned: and the design stopping here, I think fit to end my remarks on the proceedings of all capital matters with him. But I think it is fit for me to make some apology for the thing, and for myself, for taking on me to censure the opinions and actions of persons whose characters carried authority with them. I confess I never thought that either the great seal or a garment added to a man's sense, learning, or honesty; but he remained just such, as to those. qualities, after his preferment, as he was hefore: and as to many of the persons reflected on in these remarks, the censure of colonel Sidney was true: and for the best of them, it is plain they not only varied from one another in their opinions, but even from themselves in the judgment of the same case, but always tending to the destruction of the person tried for his life; witness the opinion of the court in the challenge of jurors not having a freehold, and the designing to levy war, not treason within the statute of Edw. III. and forty other matters. And that not only gives a liberty to enquire, but naturally puts one upon the enquiry, which of the two opinions is right? Though it is impossible for one not to think meanly of the person, who, in so great a concern as a man's life, should be so rash as to give his opinion without consideration, or so unsteady as to give different opinions in the same case: for if a man who tells history The king is therefore no otherwise benefited by the destruction of his subjects, than that the example deters others from committing the like crimes; and there being so many to be made examples of, besides those on whom the misfortunes of madness fall, it is inconsistent with humanity to make examples of them; it is inconsistent with religion, as being against christian charity to send a great offender quick, as it is stiled, into another world, when he is not of a capacity to fit himself for it. But what ever the reason of the law is, it is plain the law is so; and for remedying it in high-treason, was the 33d of Henry the eighth made [cap. 20.] whereby it is enacted, That if a man fall mad after he hath committed high-treason, he shall notwithstanding be tryed in his absence; and if a man fall mad after he is attainted of high-treason, he shall notwithstanding be exeQuted. Which statute extending only to high-backward and forward, is justly suspected in treason, the law continued, and yet it is as it was at common law in all other capital matters; and even that statute [3 Cok. Instit. p. 6.] was called a cruel and inhumane law, and therefore lived not long, for it was afterwards repealed, [1 and 2 Phil, and Mar, cap 10.] so that the law, to this matter, when this man was tried and executed, was as it was at common law; and therefore if he was of non sance memoriæ,' he ought not to have been tried, much less executed. I know it will be objected, that if this matter point of truth, the knowledge and sincerity of a man, who gives different opinions in the same case, is justly suspected in point of law; which together with the fulsome, but injurious stuff vented for crown law, was the first matter which put me on considering and writing what I have done. As for myself, if Tully thought it a reproach to his son if he did not abound with philosophy, having heard Cratippus for the space of a whole year, and that at Athens; surely one who hath had his education at one of the three |