Part 16

_Vernon_ replied that he had no right to this, and that as it would seem to cast a slur upon their honesty he objected to it being done.

_Shepard_ admitted that he had no right to it, but asked it as a favour; on which all witnesses were ordered to leave the court, an exception being made in favour of Mr. Jarrit Smith, who claimed a right to be present as he was prosecuting solicitor as well as a witness.

_Chamberlayn_ was called, and said that about three weeks before the death of Sir John he was asked by Goodere to interpose with Mr. Jarrit Smith to bring about a reconciliation between him and Sir John. He went to Mr. Smith as he was asked to, and he promised to do all he could in the matter. The brothers had been at law a long while, and spent a great deal of money, and that was why Goodere wanted Mr. Smith to bring about a reconciliation between them.

_Jarrit Smith_ was then called, and deposed that Mr. Chamberlayn had brought him the message he had described, and had brought Goodere to his house, and that he had promised him to do what he could to bring about a reconciliation.

Some little time after they were gone, I saw sir John, and told him that Mr. Goodere had applied to me to do all I could to reconcile them. Sir John seemed to speak much against it at first, and thought it would be to no purpose; for that he had been a real friend to the captain, who had used him very ill; but at last he was pleased to pass a compliment on me, and said, I cannot refuse anything you ask of me. He then mentioned several things the captain had said; and in particular told me that at the death of sir Edward Goodere, his father, Mr. Goodere, the prisoner, had placed several persons in the house where sir Edward lay dead, in order to do him some mischief, and he apprehended to take away his life.

SHEPARD--I must submit it to the Court, that what sir John said at that time is not a matter of evidence.

THE RECORDER--It is not evidence, but perhaps it is introductory to something Mr. Smith has further to say; if it be not, it should not have been mentioned.

SMITH--And that he had endeavoured to set aside a common recovery, and made strong application to the Court of Common Pleas for that purpose.

SHEPARD--Whether this be evidence, I insist upon it that in point of law it is not, and it may have an effect on the jury.

THE RECORDER--I will take notice to the jury what is not evidence. Go on, Mr. Smith.

SMITH--After sir John had repeated several stories of this sort, he concluded at last (as I told you before), And why, Mr. Smith, if you ask it of me, I can't refuse. I saw Mr. Goodere soon after, and told him I had seen sir John and talked with him, and he was pleased to tell me, that he would see him, and bid me contrive a convenient place to bring them together. I told Mr. Goodere about the attempt to set aside the recovery. I wonder, said Mr. Goodere, he should mention anything of that, for I can set it aside when I please. I told him, I thought he could not; for, said I, I have a good opinion on it, and am to lend a large sum of money on the Worcestershire estate. He said, I wonder that any body will lend him money on that estate; I am next in remainder, and they will run a risk of losing their money, I do assure you; and he cannot borrow a shilling on it without my consent: but if my brother was reconciled, then, if we wanted money, we might do it together, for he cannot secure it alone. He told me, that he should take it as a great favour, if I could fix a time as soon as I could to bring them together. Soon after I saw sir John, and he told me he was very deaf, and was advised to go to Bath, and then appointed to be with me on Tuesday, the 13th of January last, in the morning, when he would talk with me about the business of advancing the money on his estate. After this I saw Mr. Goodere, and told him that I had seen his brother; that he was to be with me on Tuesday, the 13th of January last, and desired him to be in the way, for sir John was always very punctual to his appointment; and if business or anything happened to prevent him he always sent me a letter. Mr. Goodere thanked me, and told me he would be in the way; and on the Tuesday morning sir John came to me on horseback, just alighted and came into my office. I asked him to sit down, which he refused, saying his head was bad; that he must go for Bath, having been advised to go there for some time, and then he did not doubt but he should be better. I told sir John, that his brother knew he was to be in town therefore hoped he would sit down a little, for that I had promised him to bring them together. He said, I can't now, but you shall see me again soon, and then I may do it. I asked him, when shall I see you again, to finish the business you and I are upon? the writings are ready, name your own time, the money will be paid. He appointed to be with me on Monday morning to settle that business; and said, I shall come to town the Saturday or Sunday before, and when I come I will let you know it: he then mounted his horse and rid off. Shortly after (as I was going to the Tolzey) at, or under Blind-gate, I met Mr. Goodere, and told him I was glad to see him and that his brother had been in town. He said he had seen him and thought he looked better than he used to do. I told Mr. Goodere that his brother had appointed to be with me on Monday morning next on business, and I expected him to be in town either the Saturday or Sunday before. I then had many compliments from Mr. Goodere, and he said, how good it would be to make up the matter between him and his brother. I heard nothing of sir John being in town till Sunday the 18th of January last, in the morning, when he sent me a letter to let me know that he came to town the night before, and would be glad to call upon me at any time I would appoint. I sent him for answer, that I was to dine from home, but would return and be at home at three o'clock that afternoon. And as I was passing by, I stopt the coach at captain Goodere's lodgings in Princes Street. I asked if he was at home? Found him alone, and then shewed him sir John's letter. He read it, and asked the time I appointed. I told him three o'clock that afternoon. Said he, I think my brother writes better than he used to do. I said, Mr. Goodere, I think it would be best for you to be accidentally on purpose at that time at my house. No, says he, I don't think that will be so well, I think it would be better for you to send for me. I returned to my house, and my servant told me that sir John had called, and that he would be here again presently. Whilst my servant was telling this, sir John came in; I took him by the hand, and asked him how he did? I thank God, says he, I am something better; and after I have settled this affair with you, I will go to Bath for some time, and then, I hope, I shall be better. I said, captain Goodere is waiting, I beg you will give me leave to send for him; you know you said you would see him. With all my heart, says sir John, I know I gave you leave. I then sent down a servant to captain Goodere's lodgings, to let him know sir John was with me, and desired him to come up. The servant returned, and said, Here is captain Goodere; on which I said, sir John, please to give me leave to introduce your brother. He gave me leave: captain Goodere came in, went directly and kissed him as heartily as ever I had seen any two persons who had real affection one for the other. I desired them to sit down. Sir John sat on one side of the fire, and captain Goodere on the other, and I sate between them. I called for a table and a bottle of wine, and filling a full glass, I said, sir John, give me leave to drink love and friendship. Ay, with all my heart, says sir John; I don't drink wine, nothing but water; notwithstanding, I wish love and friendship. Captain Goodere filled a bumper, and pledged it, spoke to his brother, and drank love and friendship with his brother's health. We sate some time, all seemed well, and I thought I could have reconciled them. The cork lying out of the bottle, captain Goodere takes up the cork in his hand, put it into the mouth of the bottle and struck it in very hard. I then said, though sir John will not drink wine, you and I will. No, says captain Goodere, I will drink water too, if I drink any more; and there was no more drank. After they had talked several things (particularly captain Goodere of the pleasantness of the situation of the estate in Herefordshire and goodness of the land) in a very pleasant and friendly way, sir John rose up, and said, Mr. Smith, what time would you have me be with you to-morrow morning? I appointed nine o'clock. He said, Brother, I wish you well; then said to me, I will be with you half an hour before. Sir John went down the steps; the captain was following; I stopt him, and said, Pray don't go, captain, let you and I drink a glass of wine. No more now, I thank you, sir, said he. I think, said I, I have done great things for you. He paused a little and said, By God, it will not do; and in a very short time the captain went very nimbly down the steps. I followed him to the door, and observed him to go after sir John down the hill; and before he turned the churchyard wall, to be out of my sight, I observed some sailors come out of the White Hart ale-house, within view of my door, and they ran up to captain Goodere. I heard him say, Is he ready? (I thought he meant the boat), they said, Yes. He bid them make haste. Then they ran very fast towards the lower-green, one of them having a bottle in his hand; captain Goodere went very fast down the hill, and had it not been by mere accident I should have followed him (but some people think it was well I did not), for I promised my wife to return to the house where we dined in Queen's-square, where I went soon after.

MR. RECORDER--Mr. Smith, did they all go toward the lower green?

SMITH--No, Sir; but some towards the butts on St. Augustine's back. Sir John went that way, and captain Goodere followed him; but the men who came out of the ale-house went toward the lower green some of them. About 5 o'clock in the evening, as I was riding up the hill towards the College-green I observed a soldier looked hard at me into the coach, as if he had something to say, and seemed to be in a confusion. I walked into the court, the soldier with me, and then he said, I am informed, Sir, your name is Mr. Jarrit Smith. Yes, says I, it is. (What I am now going to say, Mr. Recorder, is what the soldier told me.) He told me, that as he was drinking with a friend at the King's Head ale-house at the Lime-kilns, he heard a noise, and ran out to see what was the matter, when he saw a person dressed (as he described) like sir John's dress.

VERNON--Pray, Sir, how was sir John dressed?

SMITH--Sir John was dressed in black clothes, he had a ruffled shirt on, a scarlet cloak, a black velvet cap (for the sake of keeping his ears warm) and a broad-brimmed hat flapping. He described this exactly, and told me likewise, that the captain of the man-of-war and his crew had got the person into custody, and by force had put him on board the man-of-war's barge or boat lying near the Slip, by the King's Head; that the gentleman cried out, For God's sake if you have any pity or compassion upon an unfortunate man, go to Mr. Jarrit Smith, and tell him how I am used: and that the captain hearing him cry out, stopt his mouth with his hand.

MR. RECORDER--What did the soldier desire of you?

SMITH--The soldier desired me to enquire into it, for that he did not know the intention of taking off a gentleman in that way.

MR. RECORDER--Did you do any thing on that request of the soldier?

SMITH--Yes, Sir; it immediately occurred to me, that sir John, when he left my house, told me that he was going to his lodgings. I went to his lodgings (which was at one Mr. Berrow's near the mint), I there asked for him, and related the story I had heard; they told me they had not seen him since he went to my house.

VERNON--Mr. Smith, Sir, will you inform us by what name the unfortunate gentleman (you are speaking of) was commonly called?

SMITH--Sir John Dineley Goodere; his mother was a Dineley, and there came a great estate from her side to him, which occasioned his being called by the name of Dineley.

VERNON--When sir John went from your house on Tuesday, was he alone, or had he any attendants with him?

SMITH--Sir John was well guarded; he had pistols, and I think his servant had pistols also.

VERNON--I think you told us but now, that sir John was to be with you on Sunday; pray, when did you let Mr. Goodere know it, Sir?

SMITH--I met captain Goodere that very day at Blind-gate, and told him of it; and he said, he had met his brother himself.

VERNON--Pray, Sir, did Mr. Goodere tell you, to whom the estate would go on sir John's death?

SMITH--Yes, he has often said he was the next remainder man, and that the estate would come to himself on his brother's death.

MR. RECORDER--Well, Mr. Goodere, you have heard what Mr. Smith hath said, have you any questions to ask him?

MR. SHEPARD--Mr. Recorder, what I have to ask of you, with submission, in behalf of Mr. Goodere, is, that you will indulge counsel to put his questions for him to the Court, and that the Court will then be pleased to put them for him to the witnesses. It is every day's practice at the courts of Westminster, Old Bailey, and in the Circuit.

_Vernon_ replied that the matter was entirely in the discretion of the Court, and that Shepard could ask for nothing as a matter of right.

The judges, I apprehend, act as they see fit on these occasions, and few of them (as far as I have observed) walk by one and the same rule in this particular; some have gone so far as to give leave for counsel to examine and cross-examine witnesses, others have bid counsel propose their questions to the court; and others again have directed that the prisoner should ask his own questions; the method of practice in this point is very variable and uncertain; but this we certainly know, that by the settled rule of law the prisoner is allowed no other counsel but the court in matters of fact, and ought either to ask his own questions of the witnesses, or else propose them himself to the Court.

He then asked Jarrit Smith one more question, to which he replied.

VERNON--Sir, I think you were present when Mr. Goodere was brought to Bristol after his brother's being killed; I'd be glad to know whether you then heard him say anything, and what, concerning this foul business?

SMITH--I was present when Mr. Goodere was brought to Bristol after this murder happened, when he was asked (before the justices) about the seizing, detaining and murdering sir John Dineley; and he then directly answered that he did not know that his brother was murdered or dead. He was then asked in relation to the manner of seizing him, and carrying him away; he said he knew nothing of it till he came to the boat, and when he came there he saw his brother in the boat; but he did not know that his brother had been used at that rate.

SHEPARD--Mr. Smith, Sir, you are speaking about sir John; by what name did you commonly call him?

SMITH--Sir John Dineley Goodere.

THE RECORDER--Mr. Goodere, have you any questions to ask Mr. Smith?

GOODERE--Yes, Sir. Mr. Smith, I ask you what sir John Dineley's business was with you, and how much money were you to advance?

SMITH--Five thousand pounds, Sir; and I told him that I was satisfied that it was a good title.

GOODERE--I ask you if you knew him to be a knight and a baronet?

SMITH--I can't tell; I never saw the letters patent.

GOODERE--Can't you tell how you styled him in the writings?

_Vernon_ objected to this, because baronetage must be derived from letters-patent, and therefore could not be properly proved by Mr. Smith's personal knowledge; and added that it was not material, because the indictment alleged that the person murdered was Sir John Dineley Goodere, and the prosecution would prove that he usually went by that name.

To this _Shepard_ answered that if the person killed was a baronet, and was not so described, there was a misdescription, and the prisoners could not be convicted on that indictment.

_Vernon_ then argued at some length that the necessity of setting out a personal description in an indictment applied only to the defendant, and that all that the law required in the description of the person on whom the offence was committed was a convenient certainty; and that a description by the Christian and surname sufficed. Besides, this was all begging the question, for as it did not appear in proof that the deceased was a baronet, he might, for all that appeared judicially, have been christened Sir John.

Had we called the deceased in the indictment sir John Dineley Goodere baronet, then, Sir, we should probably have been told that we had failed in proof of the identity of the person, for that the baronetage was in its creation annexed to, and made a concomitant on, the patentee's name of Goodere, and waited only on that name; and that the deceased, considered as a baronet, was not of the maternal name of Dineley, and so upon the matter no such person as sir John Dineley Goodere baronet ever existed _in rerum natura_.[53]

_Shepard_ pointed out that they could not be expected to produce letters-patent to show that the deceased was a baronet, because the prisoner had not been allowed to see, or to have a copy of his indictment; and that it was only on hearing it read that the defence became aware that the deceased was not described as a baronet. He therefore hoped that Goodere might be allowed to ask the question he proposed of Mr. Smith, who having been familiar with Sir John, and seen all his papers and title-deeds, must know the certainty of his title and degree.

_The Recorder_ held that it was sufficient if the deceased was described by his Christian and surname; and that the question proposed to the witness was improper, for that it was not material whether the deceased was a baronet or not.[54]

_Morris Hobbs_ was the landlord of the White Hart. He could see Mr. Jarrit Smith's house from his windows; and had seen the prisoners before.

VERNON--I would not lead you in your evidence, but would be glad you'd give an account to Mr. Recorder, and the jury, whether Mr. Goodere (the gentleman at the bar) applied to you about coming to your house; if so, pray tell us when it was, and upon what occasion?

HOBBS--The 12th of January (which was on Monday) captain Goodere and Mahony came to my house; captain Goodere asked my wife, Have you good ale here? She said, Yes; he also asked, What place have you over-head? I answered, A closet, a place where gentlemen usually sit to look out. Will you please to let me see it, says he? Yes, Sir, said I. I went up to shew it, he and Mahony went up; the captain said it was a very fine prospect of the town; he asked for a pint of ale, I drawed it, and he gave it to Mahony, he drank it: and then the captain asked my wife, whether he might have a dish of coffee made to-morrow morning? Sir, said she, it is a thing I don't make use of in my way; but, if you please, I will get it for you. Then he told her, he would be there to-morrow morning by about nine o'clock. Mahony was by then.

VERNON--Did you hear this discourse pass between your wife and Mr. Goodere?

HOBBS--Yes, I did, and then the captain paid for his pint of ale, and went away; and the next morning (being Tuesday the 13th of January) he came again to my house before my wife was up, and I was making the fire (for I keep no servant). I did not know him again, I thought he was another man; says he, Landlord, can't you open them windows in the parlour? I told him, I would, and so I did; he looked out, and I thought that he had been looking for somebody coming from College prayers. He asked where my wife was? Says I, she is a-bed: because, said he, I talked with her about having some coffee for breakfast. I told him, she should come down presently, but I had much rather he would go down to the coffee-house, where he would have it in order. No, says he, I will have it here. My wife came down, he asked if he might go upstairs where he was before; he went up, and by and by Mahony and three men more came in; I did not know Mahony's name; when they came in, the captain was above stairs; he directed me to make his men eat and drink whatever they would, and he would pay for it; I brought them bread and cheese, they eat what they pleased; Mahony went backwards and forwards, up stairs and down several times; he went out, but where, or what for, I did not know.

VERNON--Did Mahony, when he went up stairs, go in to Mr. Goodere?

HOBBS--Yes, several times; Mahony put the coffee, and some bread and butter, and made the toast, and did everything for the captain, I thought he had been his footman. When the captain had breakfasted, and had made the men welcome, he shifted himself (some porter brought fresh clothes to him). By and by a man rid along, who, I believe, was sir John Goodere's man, with pistols before him; I heard somebody say that it was his man: and soon after the captain had shifted himself, Mahony went out about a quarter of an hour, and came back sweating, and went up to the captain; and I looking out of the window saw the man on horseback, and leading another horse (which I took to be his master's) and by and by sir John mounted, and rid down between my house and the church; and I had some glimpse of him, and heard the captain say, Look well at him, but don't touch him.

THE RECORDER--This you heard the gentleman above stairs say to the four men below?

HOBBS--Yes, Sir, he spoke these words to the four who came in.

VERNON--Did sir John and his man appear to have any arms?

HOBBS--Yes, Sir, they had both pistols before them.

VERNON--Those men that were along with Mahony, do you know what ship they belonged to?

HOBBS--There was a young man, I believe something of an officer, came to my wife, and asked her, Is the captain of the man-of-war here? She answered that she did not know; but there was a gentleman above, and there were six other men besides in the other room in another company, which I did not know belonged to the captain, until he ordered six pints of ale for them. The captain ordered entertainment for ten men.

VERNON--Where were those six men?

HOBBS--In the kitchen; they did not belong to the man-of-war, nor were not in company with the other four.