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which would prove him to be so affected, some are concerned with the expression of his voice in speaking ordinary words, with his look, his gesturo, his movement and so on, and being taken by L'Estrange years after the event could certainly not be considered trustworthy, even if they were not at points contradicted by good evidence. For example, on the evening before his disappearance, Godfrey was with some friends at the house of Colonel Welden. In 1686 one Radcliffe, who was present, deposed to L'Estrange that Godfrey behaved in a strange and moody fashion. In 1678, on the other hand, Welden said that Sir Edmundbury was in good humour’; and at the inquest Radcliffe himself said just the same thing?. Passing from these, which Mr. Marks uses freely and without question (pp. 100-102), we come to the more material depositions of Captain Gibbon, Mrs. Gibbon, and their daughter, who were in some way connected with Godfrey by blood or marriage. Pausing to notice that we are completely ignorant of the relations of this family with Godfrey, otherwise than appears from their testimony to L'Estrange, and, what is perhaps more important, of their relations with his surviving brothers, we find them saying that Godfrey's father had tried to kill himself, had attacked bis children with a cleaver, and had often been bound down to his bed, that Godfrey himself had said, 'I do inherit my father's deep melancholy. ... My father's dark melancholy hath seized me and I cannot get it out of me,' and that his maidservant had related how the night before his disappearance Godfrey had burnt all his papers 2. This Mr. Marks (p. 104) terms a 'mass of evidence establishing Godfrey's mental disorder.'
To prove a negative is notoriously difficult and a certain test of the statements thus recorded could hardly be expected to be found. Nevertheless, we may examine them to the best of our ability. And to start with these depositions must assuredly be classed as .doubtful evidence. The agent who takes them, the date at which they are taken, the manner in which they are published, are all to the impartial student in the highest degree suspicious. They come practically from a single source; they come through a single and a partisan channel; even the means of knowing whether we have them complete and ungarnished are absent. If they are to be admitted as good evidence without corroboration, doubtful-much less doubtful-evidence on the other side must be admitted too. For instance, we have five depositions taken in June, 1682, one by Mr. Justice Dolben, the remainder by the Lord Mayor, to the effect that about 9 o'clock p.m. (the hour, according to Prance, of the murder) on Saturday, October 12, 1678, Sir Edmund Godfrey was seen in the Strand close to the Water-gate of Somerset House, and was even seen to stop and speak to some men. We have another taken by Dolben in July 1682, to the effect that two days previous to that date one Captain Spence, who resembled Sir Edmund Godfrey, was assaulted by a group of men in the same place, but was released on one of them crying out · This is not he! Now, if reliance is placed on these depositions, the probability that Godfrey was murdered in the way and the place described by Prance is immensely heightened; and if the 1686 depositions are claimed as valid, a far better claim can be made for these. Taken less than four years after Godfrey's death, in the course of a public inquiry, and at a time when belief in the Plot was on the wane everywhere and at court a sign of disloyalty, when in fact the Tory reaction had set in strongly, they have far greater authority than those taken four years later by L'Estrange, acting as James's inquisitor. Nevertheless, I do not think they should be admitted : I think that on account of the nature of the facts alleged they should be considered 'doubtful,' and therefore, being uncorroborated, rejected. Similarly, I consider doubtful all the later evidence as to Godfrey's movements on the fatal day.
1 House of Lords MSS., 48, Oct. 25, 1678. Brief Hist. iii. 299. See too Popish Plot, 93 n.
Brief Hist. iii. chs. iii, iv.
Here, while the depositions taken in 1682 are under consideration, we may profitably glance at that of Mr. Robert Forset, taken on July 1 of that year by Mr. Justice Dolben. In my judgment Forset's deposition is thoroughly good evidence. The deponent was a gentleman of independent means; the facts he testified to were such as would undoubtedly arrest his attention at the time; yet, when other testimony to the same effect was available, no reason existed why he should come forward until that testimony was questioned and in need of corroboration. His deposition has been referred to above as indicating that the weather on October 15 and 16, 1678, was soft; but the direct point of his evidence was that on the fifteenth his hounds were hunted by himself, and again on the sixteenth by a friend, over the field and along the ditch in which Godfrey's corpse was found on the seventeenth, and that on neither day was the body in the ditch nor were his gloves and cane lying on the edge of the ditch where they were afterwards found. This is very lightly dismissed by Mr. Marks (p. 84) without his offering any serious grounds for so doing. No such grounds in fact exist : either Forset's evidence is decisive, or else it must be set aside as sheer romance-and equally no grounds exist for doing this. It is preposterous to say, as Mr. Marks implies should be said, that a man, learning the startling fact that a dead body had been discovered in the spot where he and his friend had been looking for a hare on the two previous days and had found nothing, would probably make a mistake in the date unless he referred to his diary. The reason why Forset, who had been twice subpænaed but not called upon, did not give his evidence earlier was obviously that it only corroborated the evidence at the inquest, summarized by the coroner before the Lords' Committee: 'There was nothing in the field on Tuesday 1. His evidence stands on quite a different footing from the later evidence as to the time o'clock when Godfrey was seen, the inflections of his voice, and so forth.
18 St. Tr. 1387, 1388, 1391-3.
And if this latter evidence is doubtful, still more on general grounds is the Gibbons's evidence doubtful. Indeed, if L'Estrange's statement of Mrs. Gibbon's account of what Godfrey said were accepted, no reason could be alleged for rejecting Burnet's statement of Tillotson's account of what Mrs. Langhorne said ?, which would go far to corroborate Oates's information in an important point, and which in my judgment is doubtful and should not be accepted. Moreover, so far from finding corroboration of the Gibbons's testimony, we actually find that grounds exist, though not perhaps of the first order, for rejecting it. Among the 1678 depositions handed to L'Estrange is one taken by the coroner from Mrs. Gibbon for the purpose of the inquest. It is perfectly natural and ordinary, and as unlike her later account of iny father's dark melancholy,' of which it contains no mention, as can well be imagined 3. What candour in L'Estrange to print it! some may think : L'Estrange, however, never knew when he was contradicting himself, and certainly expected his assurance that the coroner had orders to 'stifle' Mrs. Gibbon's evidence to be taken on trust. Doubtless in James II's reign it was. The rational inference two centuries afterwards is that at the later date she spiced her evidence for L'Estrange's benefit.
This is one of the grounds for rejecting Mrs. Gibbon. The other is the mention of the subject in the sermon preached at Godfrey's funeral by Dr. Lloyd, who was a friend of the deceased and afterwards as Bishop of St. Asaph earned fame among the 'seven’against James II. Lloyd tells us that after Godfrey's body was found stories were put about to the effect that he might have killed himself in distraction, which they said) was an hereditary disease in his family, that his father and his grandfather had it before him.' Like a prudent and an honest man, Lloyd suspended his judgment until
1 House of Lords MSS., 47.
3 Brief Hist. iii. 322.
he had inquired into the facts; and 'I found upon inquiry,' he says,
that all the colour they had to say it was only this : that his father was sometimes afflicted with melancholy, almost to distraction; but it was before he was fifty years old ; he soon recovered of it and lived to the eightieth year of his age. Besides, I am informed that there was never any appearance of the like distemper in any one person of all that numerous family : nor did any of his relations ever come to an untimely end, as has been falsely reported 1.' We have here a competent witness investigating the rumour when fresh and finding it baseless. Lloyd's information implicitly and all but directly contradicts the statements taken by L'Estrange from Mrs. Gibbon eight years afterwards: according to what he could learn, Godfrey's father at one time suffered from hypochondria, but soon recovered and lived to a ripe age-very different from the account of him as a chronic homicidal and suicidal maniac-and none of his family had ever suffered from the same disease. Upon this Mr. Marks comments (p. 97): "Dr. Lloyd's mention of the grandfather's diseased mental condition is perhaps the only one to be found. That Godfrey's father was subject to mental derangement is well established.' Lloyd states that Godfrey's father was for a short time hypochondriacal : Mr. Marks thence infers that he was habitually deranged. Lloyd states that the grandfather, among others, was perfectly sane: Mr. Marks takes this for proof that he was mad. By similar reasoning the statement that Big Ben had not stopped for two years previous to March 1906 would afford proof that during that time it had never gone.
I have now shown, without touching upon the surgical questions, that it is practically certain—so far as certainty can ever be obtained by circumstantial evidence that Godfrey's body was not on October 15 and 16 in the place where it was found on October 17, and also that Godfrey did not walk thither but was driven or carried. Since it is inconceivable that he wandered in and about London for four and a half days without being seen, then drove to Primrose Hill and there committed suicide on the night of October 16, it follows that he met his death elsewhere in the interval and that his corpse was carried to Primrose Hill during that night. I have also shown that no reason exists for believing that he was mentally deranged, which is the only hypothesis on which his suicide can be accounted for. It remains to examine the surgical points and the opinion of Dr. Freyberger, quoted at length by Mr. Marks (pp. 108-14). And first it must be observed that whatever, to use Mr. Marks's word, it is 'permissible' to say of Dr. Freyberger, it is not only permissible but necessary to say that Mr. Marks submitted the evidence to him
· Lloyd's Sermon, 24.
in a most improper manner. On p. 108 he gives a list of extracts from reports of the trials, &c., though without specifying what extracts, and of other information, with which he supplied Dr. Freyberger, and on which apparently the latter formed his judgment. “Dr. Freyberger,' he says (p. 90), 'to whom an outline of the case was at first submitted, took great interest in it, and gave to the study of the evidence much time and care.' This method of procedure, it need hardly be said, was entirely wrong. Had Dr. Freyberger wished, he was, like any one else, at liberty to study the problem as a matter of history: his professional knowledge would doubtless have served him well on the surgical points involved; but beyond those points he would have been on the same footing as every other historical inquirer. He would have no claim to offer an expert opinion on a question of historical evidence. He has, however, admittedly not taken this course. He has not studied the case, but an outline' of it and other information supplied by Mr. Marks. His opinion is offered as an expert opinion on a matter of professional and technical knowledge.
Let us ask ourselves what is the meaning and use of expert opinion. I take it to be this. The inquirer, studying a subject, finds evidence on the bearing of which he is not competent himself to pass judgment. He therefore applies to some one who is expert in such matters for a technical opinion; and that opinion is only of value in so far as it is technical. It behoves him to see that he obtains a strictly professional opinion: for that the expert is responsible ; for the facts on which it is based the responsibility is
It is important that the basis of the opinion obtained should be clearly distinguished from the opinion itself, so that those to whom it is offered may be sure exactly how far, and on what points the opinion offered is professional and technical, and how far within the competence of ordinary persons to judge. The expert should know exactly on what technical points his opinion is asked, and should restrain bis opinion to the limits set by them. Until he has given his opinion on those points it is most inadvisable that he should take great, or any, interest in an "outline' of the caso, unless he is prepared to study it, as an ordinary inquirer, from end to end, lest considerations not within his professional competence should influence his judgment. The correct and the only safe method, therefore, of obtaining expert opinion is to submit stated points for opinion or questions for answer : the public will then know for what the expert is responsible and for what the inquirer who applies to him. Obtained in any other way, expert opinion is exposed to the reflection made on it in a certain wellknown judge's aphorism.