Page images

of Exchequer of Pleas for the first time, whether the presence of a third party, when a master accuses his servant of negligence and misconduct in the matter of his employment, takes away the privilege; and the decision was that it does not, on the ground that, in the words of Parke B., delivering the judgment of the Court (p. 194), 'the business of life could not be well carried on if such restraints were imposed on this and similar communications, and if on every occasion in which they were made, they were not protected unless strictly private.' And in Emmens v. Pottlel the point arose for decision, also apparently for the first time, whether a vendor of a newspaper in the ordinary course of business, who did not know that it contained a libel, and whose ignorance was not due to any negligence on his own part, and who did not know, and who had no grounds for supposing that the newspaper in question was likely to contain libellous matter, was in law publisher of the libel contained in it, and so liable; and the Court of Appeal decided he was not. Lord Esher M. R., with whom Cotton L.J. concurred, decided the point by reference to the consequences which would follow in law if the defendants were held liable.

• The result would be,' he says (p. 557), 'that every common carrier who carries a newspaper which contains a libel would be liable for it, even if the paper were one of which every man in England would say that it was not likely to contain a libel. To my mind the mere statement of such a result shows that the proposition from which it flows is unreasonable and unjust. The question does not depend on any statute, but on the common law, and in my opinion, any proposition the result of which would be to show that the common law of England is wholly unreasonable and unjust, cannot be part of the common law of England.'

And so, lastly, in Darley Main Colliery Co. v. Mitchell?, Lord Blackburn, referring to a well-settled rule of law that all damages which result from one and the same cause of action must be assessed and recovered at one and the same time, says :

I think that this rule is established as the general rule of law. I do not think it is one of those rules of law which depend upon natural justice. I think it is an artificial rule of positive law introduced on the balance of convenience and inconvenience. I think that if it were res integra a great deal might be said against the expediency of the rule.'

Thus we have seen that a great mass of case-law is purely judgemade law, based upon considerations of justice, morality, common sense, public policy and convenience, and other practical considerations. But these are in truth the grounds—perhaps, indeed,



(1885) 16 Q. B. D. 354.

(1886) 11 App. Cas. 127, at p. 138.

the only grounds-on which any law can properly be made, whether by judges or by parliament; and it may certainly be claimed that judges make their law with a more single eye to these considerations than any parliament can be expected to do. And if the subject with which these 'articles have attempted to deal could be worked out with entire accuracy and completeness, we should have a portrayal of the legal mind of England, as it has developed and established itself during centuries of judicial work and thought, so far as regards the proper balancing and harmonizing of these legitimate bases for law.


University of Toronto.


N the annals of crime few events have attained a greater celebrity


rated the reign of terror at the Court of Charles II.

Godfrey was justice of the peace for Middlesex and Westminster, and it was before him that Titus Oates on September 28, 1678, deposed on oath to the existence of the Popish Plot. On October 12 Godfrey disappeared ; and five days later his corpse was found head downwards in a ditch, with marks taken to be those of strangulation on the neck, with a large sum of money on it, and transfixed by Godfrey's own sword. The verdict was that he had been throttled and only stabbed after death, and the result of the official inquiry and of three trials (at the chief of which the evidence of one Miles Prance was decisive) was the firm belief that he was murdered in the Queen's palace, Somerset House, by certain Catholics for no very good reason. This has since been generally discredited. The present writer has offered 1 cause for supposing that Godfrey was murdered in Somerset House, not by those hanged for it, but by other Catholics, among them Jesuit priests, for the excellent reason that he had become possessed of a secret which, if published, would have meant utter ruin to their leader, the Duke of York; this secret being that the meeting of the Jesuits on April 24, 1678, was held not, as Oates swore, at a tavern in the Strand, but in the Duke of York's own residence, St. James's Palace.

Mr. Alfred Marks, the latest student of the evidence in this interesting case, concludes it to be one of suicide. His book?, which is advertised by an introduction from the pen of a learned Jesuit, seeks to answer the question propounded in its title with scientific accuracy; and as this is purely a question of evidence, no apology shall be made for discussing Mr. Marks's treatment of the evidence at some length. In the investigation of cases of the kind, there are three chief principles to be followed :(1) the principle that the inquirer should understand the charac

ter and the general course of events of the times with which he is dealing, and always should keep them present in his mind as a background to the particular facts before him ;

1 The Popish Plot, 1903.

2 Who Killed Sir Edmund Berry Godfrey? By Alfred Marks. With an Intro. duction by Father J. H. Pollen, S.J. Burns & Oates. 1905. xv and 210 pp.

(2) the principle that he should, in investigating his problem,

reject all doubtful evidence unless it is corroborated from other sources, or unless the facts alleged are intrinsically probable

and the witness had no motive to falsify them; (3) the principle laid down by the late Dr. Gardiner, which may

be called the lock and key principle.' I propose to consider Mr. Marks's book in the light of these principles, of which he

ignores the two first and challenges the last. First, as to a general knowledge of the conditions, which, it will hardly be disputed, is a prime requirement. Without a proper acquaintance with the setting and antecedents of his mystery the investigator is at fault from the outset. Yet Mr. Marks's book gives frequent evidence of his lacking exactly this requirement. His knowledge of the pamphlet literature (though not, apparently, of the manuscripts) of the Popish Plot is considerable ; but he has clearly not mastered the special conditions that determined the Plot's history and influence. Thus on p. 2 we read of the romances of these wretches of proved infamy,' on p. 3 'proof availed nothing against the oaths of notorious perjurers,' on p. 172 of 'premeditated murder under the forms of law, on p. 6 that the Revocation of the Edict of Nantes in 1686 was 'the answer to the cry


revenge for the persecution of Catholics in England in 1679. Of these statements the first shows a serious misunderstanding of the social conditions of the time, the second and third a complete misreading of the judicial practice of the time, the last an artless ignorance of the European history of the time. For example, it is now proved beyond doubt that most of the informers were men of infamous character ; but it is equally certain that it was not proved on their first appearance. To take two of them, Dugdale, until Lord Stafford's trial in December 1680, when his character was hotly debated, was thought to be a man of very decent repute; and Jennison, whose own brother was a Jesuit, was considered a wealthy country gentleman, coming forward out of pure honesty. The fact ignored by Mr. Marks is that when posts were few and postage dear, when police scarcely existed and detectives and the telegraph were not dreamt of, when coffee-house gossip was undisturbed by the information of an ubiquitous press, and before cross-examination was invented, the state of the public mind implied by his 'proved' did not exist. *Proved' betrays him : he writes as if all the resources of modern investigation were at command in 1678, whereas in reality it took months and even years to establish facts as to character which nowadays might be common knowledge in a few hours. And there is a further consideration. The evidence of accomplices was

in the seventeenth century the chief, when not the only, means of bringing home crime to its authors; and it was not to be expected that men who had been on their own showing actively engaged in crime should come into court with spotless hands. Mr. Marks might have found testimony in Burnet's history that such evil stories as were at first bruited about concerning Oates were naturally set down as canards floated by his enemies : but Burnet is an authority whose excellent information he uses most sparingly, referring moreover, when he does so, to an obsolete edition instead of the standard one by Mr. Airy. Thus Mr. Marks starts on his quest with a sadly false conception of the spirit of the times.

Now, had Mr. Marks written thirty years ago, this would have been intelligible. Then, although his views on the Edict of Nantes might have seemed somewhat queer, the colours in his picture of seventeenth-century England would have passed well enough. But now, if he had profited by Stephen's History of the Criminal Law, or by the present writer's Popish Plot, or by the excellent account of these matters in Mr. Trevelyan's England under the Stuarts, he would have been saved from disbing up a chaudfroid of views which were natural when Lingard wrote but to-day are ignorant. Everyone touching the subject has the means of knowing the state of the law of evidence at the date of the Plot, that alleged traitors were treated in the same way and suffered under the same hardships whether they were Catholic or Protestant, and that proof accepted against them was of just the same character as that accepted against persons charged with other crimes. Mr. Marks, however, has neglected these means.

After this it is not surprising to find him in an error which is shared by so experienced and sceptical an inquirer as Mr. Andrew Lang. Mr. Marks, who does not appear to be acquainted with Mr. Lang's critical essays on the same mystery (in The Valet's Tragedy and the Cornhill Magazine, August, 1903), argues at length (pp. 54-8) against the possibility of Godfrey having been murdered by Jesuits in Somerset House and afterwards taken to Primrose Hill, on the ground that such a murder would not have been a method adopted by sensible men, and would have meant much needless trouble and risk to the murderers. They would, he thinks, have preferred to sink the corpse in the river, which was convenient. Mr. Lang also conceives that your wily Jesuit' would have caused the corpse to disappear. Now here are several misapprehensions, some general, some particular. In general, it is well known that amateurs in crime (persons, that is, who are suddenly confronted by the necessity of committing one, and who are not accustomed to an habitual and vulgar criminal atmosphere)



« PreviousContinue »