Chapter IX: Part 9

LORD CHIEF-JUSTICE--And why didst thou tell us so many lyes
then? Jesu God! that we should live to see any such creatures
among mankind, nay, and among us too, to the shame and reproach
be it spoken of our nation and religion: is this that that is
called the Protestant religion, a thing so much boasted of, and
pretended to? we have heard a great deal of clamour against
Popery and dispensations; what dispensations, pray, does the
Protestant religion give for such practices as these? I pity
thee with all my soul, and pray for thee, but it cannot but make
all mankind to tremble, and be filled with horror, that such a
wretched creature should live upon the earth: Prithee be free,
and tell us what discourse there was.

DUNNE--My lord, they did talk of fighting but I cannot remember
what it was.

LORD CHIEF-JUSTICE--Did you lie with them?

DUNNE--No, my lord, I did not.

LORD CHIEF-JUSTICE--Well I see thou wilt answer nothing
ingenuously, therefore I will trouble myself no more with thee:
go on with your evidence, gentlemen.

MR. JENNINGS--My lord, we have done, we have no more witnesses.

_Mrs. Lisle_ is then called upon for her defence, and proceeds to say that had she been tried in London Lady Abergavenny and other persons of quality could have testified with what detestation she had spoken of the rebellion, and that she had been in London till Monmouth was beheaded. She had denied Nelthorp's being in the house because of her fear of the soldiers,

who were very rude and violent and could not be restrained by
their officers from robbery and plundering my house. And I
beseech your lordship to make that construction of it; and I
humbly beg of your lordship not to harbour an ill opinion of me,
because of those false reports that go about of me relating to
my carriage towards the old king, that I was any ways consenting
to the death of King Charles I., for, my lord, that is as false
as God is true; my lord, I was not out of my chambers all the
day in which that king was beheaded, and I believe I shed more
tears for him than any woman then living did; and this the late
Countess of Monmouth, and my lady Marlborough, and my lord
chancellor Hyde, if they were alive, and twenty persons of the
most eminent quality could hear witness for me.

She did not know Nelthorp, and only took Hicks because he was a nonconformist minister, and there being warrants out against all such, she was willing to shelter him from them.

She then called _Creed_, who said that he heard Nelthorp say that Lady Lisle did not know of his coming, and did not know his name, and that he did not tell his name till he was taken.

Lady Lisle then concluded her defence by fresh protestations of her loyalty to the King.

But though I could not fight for him myself, my son did, he was
actually in arms on the King's side in this business. I
instructed him always in loyalty, and sent him thither; it was I
that bred him up to fight for the King.

_Jeffreys_ begins his summing up by reminding the jury of the terms of their oath and reminding them of their duty--

That not any thing can move you either to compassion of the
prisoner on the one hand, or her allegations and protestations
of innocence; nor, on the other hand, to be influenced by
anything that comes from the court, or is insinuated by the
learned counsel at the bar, but that you will entirely consider
what evidence has been given to you, and being guided by that
evidence alone, you that are judges of the fact will let us know
the truth of that fact, by a sincere and upright verdict.

He goes on to dwell on the wickedness of Monmouth's rebellion, and the mercy of God as shown in the restoration of Charles II. and

the best of religions, the true Protestant reformed religion,
the religion established by law, which now is, and I hope will
ever remain established among us, as now professed and
practised in the Church of England.

After dwelling on this and on the blessing of having asked so steadfast a supporter of the Church of England as James II., he proceeds to discuss the actual facts of the case.

This person, Mrs. Lisle, the prisoner at the bar, she is accused
for receiving and harbouring this person: and gentlemen, I must
tell you for law, of which we are the judges, and not you, That
if any person be in actual rebellion against the King and
another person (who really and actually was not in rebellion)
does receive, harbour, comfort and conceal him that was such, a
receiver is as much a traitor as he who indeed bore arms: We are
bound by our oaths and consciences, to deliver and declare to
you what is law; and you are bound by your oaths and consciences
to deliver and declare to us, by your verdict, the truth of the
fact.

Gentlemen, that he [Hicks] was there in rebellion, is undeniably
and unquestionably proved: That there are sufficient testimonies
to satisfy you that this woman did receive and harbour him, is
that which is left to your consideration; and, for that the
proofs lie thus: And truly I am sorry to have occasion for
repeating the circumstances of the proof; I mean the great art
that has been used to conceal it; how difficult a thing it was
to come at it; what time has been spent in endeavouring to find
out truth in a fellow, that in defiance of all admonition,
threats and persuasion, would prevaricate and shuffle to conceal
that truth; nay lie, and forswear himself to contradict it. But
out of pure Christian charity, as I told him, so I tell you I
do heartily pray, and all good Christians I hope will join with
me in it, to the God of infinite mercy that He would have mercy
upon his soul, upon which he hath contracted so great a guilt by
the impudence of his behaviour and pertinacious obstinacy in
those falsehoods which he hath made use of in this case.

Gentlemen, I would willingly forget all his prevarications, but
I must take notice of them in short, to come to the truth. First
he says, he came upon an errand from a man, he knows not whom,
to my Lady Lisle's house; and thither he is brought by one
Barter; and when he comes there he tells her, he comes in the
name of one Hicks, who desired to be entertained there. Then she
asks the question, whether Hicks had been in the army; and he
told her he did not know; and he swears now he did not: But at
last it came out that it was to entertain Hicks and another
person; but it should seem that other persons were not named;
and Barter tells you that Hicks and another person (who
afterwards proved to be Nelthorp) are promised to be
entertained, and ordered to come in the evening. But not to go
backward and forward, as he has done in his evidence, denying
what he afterwards acknowledged that he saw anybody besides a
little girl; that he pulled down the hay out of the rack for his
horse; that he eat anything but cake and cheese that he brought
with him from home; that he was ever made to drink, or to eat or
drink in the house, or ever meddled or made with any body in the
house. At last we are told that Carpenter met with him; and came
out with a lanthorn and candle, took care of his horse, carried
him into the room where Hicks and Nelthorp were, and the
prisoner at the bar, Mrs. Lisle; there they all supped together;
there they fell into discourse; there Nelthorp's name was named,
and they talked of being in the army, and of the fight; and so
it is all come out, and makes a full and positive evidence.

But then suppose there was no more than the other evidence, and
that the fellow remain in an hardhearted obstinacy, then you are
to consider the circumstances even from his first evidence, that
this was after the rebellion was all over; for it seems during
the rebellion she was in London, and it was notoriously known
that the King's forces were in pursuit of the rebels, and this
without any positive proof would be in itself a sufficient
testimony to convice any considerate person, that she was to
conceal those she ought not to conceal; because she directed the
particular time wherein they should come, and that was at night;
and no prudent person would receive strangers in the night, and
give such directions in such a season without some extraordinary
ground for it. When they came there, she provided a supper for
them; and you see what care is taken, that the woman only is
permitted to bring that supper to the door, and the husband must
set it on the table; nobody is permitted to attend there but he.
Works of darkness always desire to be in the dark; works of
rebellion and such like, are never done in the light.

But then comes that honest fellow Barter (I call him so because
he appears so to be, and he ought to be remembered with a great
remark for his honesty), he tells you, he conducted him to the
house, and what discourse passed there in his hearing. The
prisoner asked him what countryman he was, and whether he was a
brick-maker, and promised him so many acres of land in
Carolina. The fellow upon observation and consideration, found
himself under a great load, could not eat or sleep quietly, as
men that have honest minds are uneasy under such things;
falshood and treason, and hypocrisy are a heavy load; and
blessed be God, things were by this means discovered: for he
goes and tells Col. Penruddock; and withal Dunne swears to
Barter, it was the bravest job he had ever had in his life;
whereas in the beginning of his story, he would have told you a
strange story of a black beard and I do not know what, and that
he got not one groat by it; that he gave the man 2s. 6d. out of
his own pocket, and was so industrious as when he knew the way
no farther, that he would hire one himself to shew him the way,
and all for nothing but only for the kindness he had for a black
beard.

Besides, gentlemen, I am sorry to remember something that
dropped even from the gentlewoman herself; she pretends to
religion and loyalty very much, how greatly she wept at the
death of King Charles the Martyr, and owns her great obligations
to the late King, and his royal brother; that she had not had a
being, nor any thing to maintain it for twenty years last past
but from their bounty, and yet no sooner is one in the grave,
but she forgets all gratitude and entertains those that were
rebels against his royal successor; I will not say what hand her
husband had in the death of that blessed martyr, she has enough
to answer for of her own guilt; and I must confess it ought not
one way or other to make any ingredient into this case what she
was in former times, and I told a relation of hers, a Mr.
Tipping by name, that came to me, last night, to desire that she
might not lie under some imputations that were gone abroad of
her that she rejoiced at the death of King Charles I., nor that
any false report of that nature might influence the Court or
jury against her, that it should not;--be the thing true or
false, it is of no weight one way or other in the trial of this
case, nor is she to be accountable for it.

But I must remember you of one particular, that is plain upon
this evidence, and is of very great moment in this case; that
after all these private messages and directions given to come by
night, and the kind reception they met with when they came, and
after all this care to lodge them and feed them, when Col.
Penruddock, after the discovery made by Barter, came to search
her house, then she had nobody in it truly, which is an
aggravation of the offence testified by col. Penruddock himself,
whose father likewise was a martyr, and died for his fidelity to
the crown; and who was the judge of that father we all very well
know.[60]

God Almighty is a just God, and it may be worth considering
(especially by her) how God has been pleased to make use of him
as the instrument in this business; and she would do likewise
well to consider the finger of God in working upon the heart of
that man Barter, who was employed in all this affair, and that
all the truth has been told by Nelthorp,[61] that blackest of
villains Nelthorp, that would have murdered the King and his
royal brother; that he was one of those barbarous, malicious
assassinates in that black conspiracy, and outlawed, should be
harboured, by one that pretends a love for the royal family,
and entertained and discoursed with at night about being in the
army; yet that he and that other villain Hicks, who pretends to
religion, and to be a preacher of the gospel, but is found in
rebellion, and in the company of traitors, should be denied the
next morning.

I hope they themselves are all by this time satisfied truth will
come out, and I hope you will not be deceived by any specious
pretences. Our forefathers have been deluded, but the deception
I hope is now at an end. And I must needs say if all these
witnesses that have freely discovered their knowledge, joined to
that truth which is at length drawn from that Dunne, be worthy
of any credit, it is as plain a proof as can be given, and as
evident as the sun at noon day.

Gentlemen, upon your consciences be it; the preservation of the
government, the life of the King, the safety and honour of our
religion, and the discharge of our consciences as loyal men,
good Christians, and faithful subjects, are at stake; neither
her age or her sex are to move you who have nothing else to
consider but the evidence of the fact you are to try. I charge
you therefore, as you will answer it at the bar of the last
judgment, where you and we must all appear, deliver your verdict
according to conscience and truth.

With that Great God the impartial judge there is no such thing
as respect of persons, and in our discharge of our duty in
courts of justice, he has enjoined us his creatures, that we
must have no such thing as a friend in the administration of
justice, all our friendship must be to truth, and our care to
preserve that inviolate.

LISLE--My lord, if your lordship please----

LORD CHIEF-JUSTICE--Mistress, you have had your turn, you cannot
now be heard any more after the jury is charged.

MRS. LISLE--My lord, I did not know Nelthorp, I declare it,
before he was taken.

LORD CHIEF-JUSTICE--You are not indicted for Nelthorp, but we
are not to enter into dialogues now, the jury must consider of
it.

JURY-MAN--Pray my lord, some of us desire to know of your
lordship in point of law, whether it be the same thing, and
equally treason, in receiving him before he was convicted of
treason, as if it had been after.

LORD CHIEF-JUSTICE--It is all the same, of that certainly can be
no doubt; for if in case this Hicks had been wounded in the
rebels' army, and had come to her house and there been
entertained but had died there of his wounds, and so could never
have been convicted, she had been nevertheless a traitor.[62]

Then the jury withdrew, and staying out a while the Lord
Jeffreys expressed a great deal of impatience, and said that he
wondered in so plain a case they would go from the bar, and
would have sent for them with an intimation, that if they did
not come quickly, he would adjourn, and let them lie by it all
night; but about after half-an-hour's stay, the Jury returned,
and the foreman addressed himself to the Court thus:

FOREMAN--My lord, we have one thing to beg of your lordship some
directions in, before we can give our verdict in this case; We
have some doubt upon us whether there be sufficient proof that
she knew Hicks to have been in the army.

LORD CHIEF-JUSTICE--There is as full proof as proof can be; but
you are judges of the proof, for my part I thought there was no
difficulty in it.

FOREMAN--My lord, we are in some doubt of it.

LORD CHIEF-JUSTICE--I cannot help your doubts, was there not
proved a discourse of the battle and of the army at supper time?

FOREMAN--But my lord, we are not satisfied that she had notice
that Hicks was in the army.

LORD CHIEF-JUSTICE--I cannot tell what would satisfy you; Did
she not enquire of Dunne, whether Hicks had been in the army?
and when he told her he did not know, she did not say she would
refuse him if he had been there, but ordered him to come by
night, by which it is evident she suspected it, and when he and
Nelthorp came, discoursed with them about the battle and the
army. Come, come, gentlemen, it is a plain proof.

FOREMAN--My lord, we do not remember it was proved that she did
ask any such question when they were there.

LORD CHIEF-JUSTICE--Sure you do not remember anything that has
passed! Did not Dunne tell you there was such discourse, and she
was by, and Nelthorp's name was named. But if there were no such
proof the circumstances and management of the thing is as full
of proof as can be; I wonder what it is you doubt of.

MRS. LISLE--My lord, I hope----

LORD CHIEF-JUSTICE--You must not speak now.

Then the jury laid their heads together for near a quarter of an
hour, and at length agreed, and being called over, delivered in
this verdict by the foreman.

CLERK OF ARRAIGNS--Alice Lisle, hold up thy hand. Gentlemen of
the jury, look upon the prisoner, how say ye? Is she guilty of
the treason whereof she stands indicted, or not guilty.

FOREMAN--Guilty.

CLERK OF ARRAIGNS--What goods or chattels, lands or tenements
had she?

FOREMAN--None that we know of.

CLERK OF ARRAIGNS--Look to her, jailor, she is found guilty of
high treason; and prepare yourself to die.

Then the verdict was recorded.

LORD CHIEF-JUSTICE--Gentlemen, I did not think I should have any
occasion to speak after your verdict, but finding some hesitancy
and doubt among you, I cannot but say I wonder it should come
about; for I think in my conscience the evidence was as full,
and plain as could be, and if I had been among you, and she had
been my own mother, I should have found her guilty.

Then the Court adjourned till the next morning.

The next day Lady Lisle and other prisoners were brought up to receive sentence.

Jeffreys, after lamenting the condition of 'you Mrs. Lisle, a gentlewoman of quality and of fortune, so far stricken in years, one who all your life-time have been a great pretender to, and professor of, religion, and of that religion which bears a very good name, the Protestant religion,' goes on to point out that 'there is no religion whatsoever (except that hypocritical profession of theirs which deserves not the name of religion, I mean the canting, whining Presbyterian, phanatical profession) that gives the least countenance to rebellion or faction.' He cannot but deplore 'that in this little case so many perjuries should be added to the crime of treason, such as for my part I cannot but tremble to remember.' She should repent of her own false asseverations and protestations

that you upon your salvation should pretend ignorance in the
business, when since that time, ever since last night, there has
been but too much discovered how far you were concerned: no it
is not unknown who were sent for upon the Monday night, in order
to have that rebellious seditious fellow to preach to them, what
directions were given to come through the orchard the back and
private way, what orders were given for provision and how the
horses were appointed to be disposed of.

After exhortations to all the prisoners to repent, the Court awards

that you Mrs. Lisle be conveyed from hence to the place from
whence you came, and from thence you are to be drawn on a hurdle
to the place of execution, where your body is to be burnt alive
till you be dead. And may the Lord have mercy on your soul.

The rest of the prisoners then had the usual judgment as in cases of felony.

LORD CHIEF-JUSTICE--Look you, Mrs. Lisle, when I left his
majesty he was pleased to remit the time of all executions to
me; that whenever I found any obstinacy or impenitence I might
order the executions with what speed I should think best;
therefore Mr. Sheriff, take notice you are to prepare for this
execution of this gentlewoman this afternoon. But on that, I
give you, the prisoner, this intimation; we that are the judges
shall stay in town an hour or two; you shall have pen, ink and
paper, brought you, and if in the mean time you employ that pen,
ink and paper, and this hour or two well (you understand what I
mean) it may be you may hear further from us, in a deferring the
execution.

On the intercession of 'some divines of the church of Winchester' execution was respited till 2nd of September; and her sentence was afterwards commuted to beheading. She was accordingly beheaded on the afternoon of the 2nd of September 1685 in the market-place of Winchester.

In 1689, on the petition of her daughters Mrs. Lloyd and Mrs. Askew, her attainder was annulled by Act of Parliament on the ground that the verdict was 'injuriously extorted and procured by the menaces and violences and other illegal practices of George Lord Jeffreys, baron of Wem, then Lord Chief-Justice of the King's Bench.'[63]

FOOTNOTES:

[53] George Jeffreys, Baron Jeffreys of Wem (1648-1689), was born, of good family, near Wrexham in Denbighshire. He was educated at Shrewsbury, St. Paul's, Westminster, and Trinity College, Cambridge, where he was admitted in 1662. He first practised at the Old Bailey and the Middlesex Sessions, then held at Hicks's Hall. His learning in law was never extensive; but his natural abilities were very great, and, as far as one can judge from the reports, he practised cross-examination with much more real skill than most of his contemporaries. In fact, his cross-examinations from the bench, though scandalous and brutal to the last degree, seem to be the earliest instances we have of the art as now understood. He was appointed Common Serjeant in 1671, left the popular party and was made Solicitor-General to the Duke of York in 1677, and became Recorder of London in 1678. He did what he could to aid in the persecutions connected with the Popish Plot, and was made Chief-Justice of Chester in 1680. The House of Commons petitioned the King for his removal from office in the same year, for the part he had taken in opposing petitions for a Parliament; and he was reprimanded by the House and resigned his Recordership the same year, but was made Chairman of the Middlesex Sessions soon afterwards. He was the chief promoter of the _Quo Warranto_ proceedings by which the City was deprived of its charter, and was engaged in the prosecution of Lord Russell. He was made Lord Chief-Justice in 1683. He presided at the trials of Algernon Sidney and Titus Oates. He was called to the House of Lords in 1685, and tried Richard Banks in the same year. On his return from the 'Bloody Assize' he was made Lord Chancellor. He suggested the revival of the Court of High Commission, and presided in it at the proceedings against Magdalen College. He advised the trial of the Seven Bishops, and narrowly missed being made Chancellor of the University of Oxford. On the flight of James II. he attempted to escape disguised as a sailor, but was seized in the Red Cow in Anchor and Hope Alley. He was removed to the Tower, where he died, and was buried in the next grave to Monmouth. The well-deserved detestation with which he was regarded makes it difficult to form any just estimate of his character. Where he had no temptation to do injustice he seems to have been a very good judge; but he had no hesitation in doing gross injustice by detestable methods, for wholly discreditable reasons. He is not seen quite at his worst in Alice Lisle's trial, because she was probably guilty and Dunne was a liar; nor is he seen at his best as a cross-examiner, because he had very good material to go on. He has been unfortunate in attracting the notice of popular writers such as Burnet, Campbell, and Macaulay, who have all found him a convenient subject for picturesque abuse; and a tendency to not too ingenious paradox diminishes the value of the work of a more recent biographer written from the opposite point of view.

[54] Appointed Attorney-General in 1689, and Chief-Justice of the Common Pleas in the same year. He was a prominent Whig, and at the time of this trial had appeared for the defence in several previous State Trials, among others that of Lord Russell, vol. ii. p. 6. He afterwards appeared for the defence in the case of the Seven Bishops, and was well known as an adherent of the Prince of Orange at the Revolution. He died in 1691.

[55] See his dying speech, _State Trials_, xi. 312, in which he makes no reference to Lady Lisle.

[56] This passage with several others proves that Jeffreys had got up the case beforehand pretty much as counsel would to-day. Cf. pp. 246, 259, 268, 273.

[57] Cf. p. 245.

[58] He was born in Denbighshire.

[59] Cf. p. 245.

[60] _Ante_, p. 239.

[61] Cf. _ante_, p. 245.

[62] Lady Lisle's attainder was afterwards reversed on the ground that this ruling is wrong; it does not represent the present law (see Stephen's _Digest_, art. 62), which, however, rests on a subsequent dictum of Hale's followed by Foster, due probably to his recollection of this case. Sir James Stephen suggests that as a matter of mere law Jeffreys may have been right (_Hist. Crim. Law_, vol. ii. p. 234); he also says: 'I think that this is another of the numerous instances in which there really was no definite law at all, and in which the fact that a particular course was taken by a cruel man for a bad purpose has been regarded as a proof that the course taken was illegal.'--(_Ibid._, vol. i. p. 413).

[63] Cf. with note, p. 270.

Printed by T. and A. CONSTABLE, Printers to Her Majesty at the Edinburgh University Press

* * * * *

TRANSCRIBERS' NOTES

Pages 11, 37: Inconsistent spelling of Gawdie/Gawdy as in original.

Pages 12, 25: Inconsistent hyphenation of Durham House/Durham-House as in original.

Pages 16, 153: Inconsistent spelling of musquets/muskets as in original.

Page 21: machiavelian standardised to Machiavelian (second occurrence).

Pages 30, 41: Inconsistent hyphenation of hearsay/hear-say as in original.

Page 42, footnote 17: Inconsistent spelling of Amias/Amyas as in original.

Pages 55, 97, 99, footnote 56: Inconsistent hyphenation of beforehand/ before-hand as in original.

Page 91: your's as in original.

Page 103: Repeated 'the' removed in 'Answer must be the the same'.

Page 127, footnote 30: Inconsistent spelling of Geoffry/Geoffrey as in original.

Pages 129, 159: Inconsistent spelling of visor/vizor as in original.

Page 135: Lord-Chief Baron standardised to Lord Chief-Baron.

Page 137: latitute as in original.

Page 142: Commonweath corrected to Commonwealth.

Page 152: waved as in original.

Pages 162, 204: Inconsistent hyphenation of apiece/a-piece as in original.

Page 164: Capell standardised to Capel (third occurrence).

Page 166: Reference to Mr. . G. Stephens as in original. It is unclear whether there should be another initial or the full-stop (period) should be removed.

Footnote 37: Livingtone standardised to Livingstone. Various sources give the name as Livingstone, Livingston or Levingston.

Page 197: 'More that that' as in original.

Page 206: Inconsistency between Sheriffs and Sheriff as in original. It is unclear whether this is an error on Col. Turner's part or in the printed text.

Page 215: Amy Durent as printed. It should perhaps read Amy Duny.

Page 227, footnote 52: Inconsistent spelling of Brown/Browne in footnote as in original.

Page 233: Inconsistent hyphenation of boat-man/boatman as in original.

Pages 243, 253: falshood as in original.

Pages 245, 249: Inconsistent spelling of sniveling/snivelling as in original.

Page 254: 'after all this pains' as in original.

Pages 255, 257: Inconsistent hyphenation of Malt House/malt-house/ Malt-house as in original.

Page 266: convice as in original.

Page 271: Jeffries standardised to Jeffreys.

End of Project Gutenberg's State Trials, Political and Social, by Various