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Essays on historical truth online

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would not have any to go away unsatisfied of anything
against my Lord Deputy. There are many precedents
and rules that this Court hath liberty in their judgments
to call for witnesses at hearing to satisfy their consciences.
My Lords, besides Sir Philip Manwairing's deposition,
that which he did here affirm, that he was near to my
lord all the while, and that he did diligently observe all
that passed.

' Another witness was Isaac [Joshua] Carpenter ; he
doth agree witli Sir Pliihp ; he saith, my lord did but
shake the cane, and he doth not know whether he
touched him, and he was the man that brought the
fellow thither.

'The third witness was Holloway; it is true some

' This Sir .John Finch, created in 1G40 Baron Finch of Fordwick, besides
his judgment in the case of ship-money and his obtaining by threats the
concurrence of the other judges, declared, when he was Lord Keeper of the
Great Seal, upon a demurrer put in to a bill before him, which had no other
equity in it than an order of the Lords of the Council ' that, whilst he was
keeper, no man should be so saucy as to dispute those orders, but that the
wisdom of that lioard sliould be always ground enough for him to make a
decree in Chancery.' — Clarendon, Hist. vol. i. p. 74, Oxford, 1712,


speak out of his moutli ; he speaketh exactly in his
answer : lie knoweth of no hurt or wrong was done by
my Lord Deputy, neither doth he believe it.

'Atkinsonson [Atkins] the goaler, he was the only
single man of those that were present that saith ray Lord
Deputy did strike Eobert Esmond with a cane.
. ' Take the quality of these persons, take their number,
four to one, I wonder whether any man can think there
was a stroke.'

Now according to Lord Chief Justice Finch's own
words. Sir Philip Manwairing was the only witness that
' at hearing ' was induced to say that he beheved in his
conscience the Lord Deputy ' did not so much as touch
him,' though in his deposition he said ' whether he
touched him or not he cannot depose.' Carpenter ' doth
not know whether he touched him ; ' and this is what Lord
Cliief Justice Finch calls ' agreeing with Sir Pliihp.'
Hollow^ay 'knoweth of no hurt or wrong was done by my
Lord Deputy ; ' but does he contradict his deposition
that ' he saw the Lord Deputy strike three or four
strokes ' [the number specified by Atkins] ? Here are
three witnesses, only one of whom, even according to
the Judge's own account, states that the Lord Deputy
did not commit this act of cruel and cowardly violence
upon an unresisting man, who, besides being a prisoner,
was sick and infirm ; while the fourth witness, Atkins,
besides his distinct deposition as to the strokes, also
deposes as to the condition of Esmond in consequence of
them, and that he heard Eichard Eoach and divers others
report that the said strokes occasioned Esmond's death.
And yet this judge, this Lord Chief Justice Finch, calls
the result of this calculation, this weighing and sifting of

HUME. 159

Evidence as to quantity and quality, ' four to one,' adding,
' I wonder wlietlier any man can think tliere was a
stroke.' On the other hand I wonder wlietlier any man
wlio reads the evidence can think there was not. Dr.
Beck, in his ' Medical Jurisprudence,' in leicience to the
case of George Clarke, who received a blow on the head
with a bludgeon, during the election riots at Brentford in
December 1768, from Edward McQuirk, says, 'wounds
of the pericranium, in good constitutions, and well treated,
are not dangerous ; but in bad ones they are often serious,
and are succeeded by an erysipelatous inflammation, which
is readily extended to the brain.' ^ It is observable that
Clarke died six days after the infliction of the blow on
the head, and that Esmond died in a little more than six
days after the infliction of tlie blows on the head. ' After
about six days' imprisonment in Dublin Castle, Esmond
returned home, and within a few davs after died.'
Esmond being, as has been shown, of a bad constitution,
the probability is that the blows on the head, if they did
not altogether occasion, at least hastened his death. A
habit in the highest functionaries of a government of
dealinji" with evidence in such a way as this indicates the
existence of a mortal disease in that government.

Now this Lord Chief Justice Finch's mode of dealing
with evidence presents a parallel, particularly instructive, to
Hume's mode of dealing with evidence. If it be the duty

^ Beck's Medical Jurisprudence, p. GiO, (Jth edition, London, lM.'i8. In a
note (p. 025) Dr. Beck says : — ' I have found in the collection of piunplilets
made by the late Sir James Mackintosh, and which (amounting to upwards
of one hundred volumes) is now in the possession of my friend M. II. Web-
ster, Esq. of this city [New York], one with the following title : " An Ap-
peal to the public, touching the death of Mr. George Clarke, who received a
lalow at Brentford, on the 8Lh of December, of wiiich he languislied and
died on the 14th. By John Foot, surgeon, London, 1709."' '


of an historian, as it is that of a judge, to state the
evidence with equal care, with equal fulness, and with
equal accuracy, on both sides ; and if it be true that few
crimes equal in magnitude those of the man who,
pretending to write history, deliberately perverts the
materials of history, suppresses and misstates evidence,
and produces a story which he calls a history, and which
is not only without evidence but is in direct opposition
to evidence, I fear that there are few of the writers of the
books called histories who will escape censure. David
Hume is certainly not one of those few.

Esmond's case Hume of course suppressed altogether.
I will give another case which Hume could not suppress
altogether. He therefore only suppressed the most
material part of the evidence, because it told against the
conclusion which he sought to establish.

As Brodie and others have proved Hume guilty of
many misrepresentations still worse than those here cited,
these instances are selected merely because they have not
been exposed before.

Arthur Capel, Earl of Essex, was committed to the
Tower on July 10, 1683. This was towards the end of
the reign of Charles XL, and at the time when Charles's
brother James, then Duke of York, afterwards James H.,
was supposed to have great influence in the government.
On July 1 3, the same day on which William Lord Eussell
was tried and condemned to death, the Earl of Essex was
found dead in his chamber in the Tower, with his throat
cut. A coroner's jury was summoned ; but before they
were empanelled the earl's body was taken out of the
closet where it lay and stripped of its clothes. The
clothes were carried away and the closet washed ; and


wlien one of the jury insisted, as by the law of England
he had a right to do, upon seeing the earl's clothes, the
coroner was sent for into another room, and upon his
return told the jury it was my lord's body, and not his
clothes, they were to sit upon.

The following directions, given by Dr. Beck to the
members of his own profession, show the importance of
the request here made by the juryman. ' Besides no-
ticing the surface of the body, we sliould pay great atten-
tion to the following circumstances : the situation in
which it is found, the position of its members, and the
state of its dress. The quantity of blood on the ground
or o?i the clothes should be noticed.' ^ And in another
part of the same valuable work Dr. Beck says : ' Before
the body is removed from the place where it was found,
it is proper to notice its situation and attitude, the state of
the clothes, and the condition of the ground — whether it
bears the marks of footsteps, and their direction. We
should remark also whether there are any indications of
struggling. If death be apparently caused by a wound,
the body should be first viewed, if possible, exactly in the
position in which it was found.' ^ Now the obvious
question which occurs is, tvhy were all these rules violated
in this case? Mr. Best, in quoting these directions of
Dr. Beck in his treatise on ' Presumptions of Law and
Fact,' remnrks : * It is of the utmost importance to ex-
amine minutely for the traces of another person at the
scene of death, for it is by no means an uncommon
practice with murderers to dispose the bodies of their
victims in such a manner as to lead to the supposition of

' Beck's Medical Jurisprudence, p. 531, 6th edition, London, 1838.
- Ibid. p. 4tt5.


suicide.'^ Li this case it may be inferred that the mur-
derer or mm'derers could not dispose of the body of the
victim so as to lead to the supposition of suicide without
removing the clothes, the condition of which would have
rebutted that supposition. However, it would seem that
some of the clothes were seen by some of the witnesses,
for Dr. Beck states in his account of the case, which he
appears to have drawn up with great care after examining
every accessible source of information, that ' two witnesses
swore that the neck of Lord Essex's cravat was cut in three
pieces, and that there were Jive cuts on his right hand."*^
It is also stated that Lord Essex was right-handed.^
Consequently, he would naturally present his right hand
as a defence against the attack of an assassin. I have
said ' murderer or murderers,' because if there is any
weight m the opinion of the eminent surgeon, Dupuytren,
given in a trial for murder in Paris in 1814, the five cuts
on Lord Essex's right hand would prove that there was
only one murderer. On the trial referred to, Dupuytren
was asked if any marks on the dead body could indicate
whether the murdered person had been attacked by one
or more persons. He replied by begging the Court not
to give to his conjectures more weight than they deserved.
All he could say was merely probabilities ; but it appeared
to him that a plurality of persons had been engaged in
the murder, and for the following reasons. When a man
is struck, his first act is to present his hands as a defence
against the blow. Now in this case [the murder of
Dantun in Paris in 1814] there was not the slightest

^ Best on Presumptions of Law and Fact, p. 276, London, 1844.

* Beck's Medical .Jurisprudence, p. -541, <>th edition, Loudon, 1838.

3 Ibid.

nuME. 163

murk of injury on them. The same person that inflicted
all these wounds could not at the same time have held
the victim's hands. The hands must have been held by
an accomplice of the person who iuUicted the wounds.^
The inference from this is, that in the case of Lord Essex
one strong man was employed ; which circumstance, by
diminishing the number of [)articipators in tlie crime,
would also diminish the chances of detection and increase
the chances of success of the story of suicide.

The fiicts above stated afford evidence almost if n(jt
altocjetlier conclusive that the Earl of Essex was mur-
dered. I will now state another flict, which Hume men-
tions as the only fact tending to support the opinion that
the earl was murdered ; and which Hume also, with his
usual zeal to defend the Stuarts at any cost, attempts to
treat as of no weight. Hume's words are : ' The coroner's
inquest brought in the verdict self-murder ; yet because
two children ten years old (one of whom, too, departed
from his evidence) had affirmed that they heard a great
noise from his window, and that they saw a hand throw
out a bloody razor ; these circumstances were laid hold
of, and the murder was ascribed to the king and the
duke, who happened that morning to pay a visit to the
Tower.' 2

It will be at once seen that this statement of the two
children (even if one of them ' departed from his evi-
dence,' the meaning of which words of Hume is not
very clear farther than that there was a slight discre-
pancy, for if there had been enough to shake their

* Causes c^lebres du XIX'' Siocle, vol. i. p. 400, cited in Beck's Medical
Jurisprudence, p. 540, Gth edition, London, 1838.
^ Hume's History of England, chap. 0!>.


testimony to the foundation, Hume would not have been
slow to take advantage of it) is a very important one.
Children of that age would be very unlikely to invent
such a circumstance. And if ' faction,' to which Hume
attempts to ascribe the whole story of Essex's having
been murdered, had thought of suborning witnesses, they
would have selected witnesses of another kind than
children of ten years of age.

Before I proceed to give the medical evidence, I must
state what has appeared to me to be the effect of the
medical testimony in a very considerable number of cases
which I have examined. While undoubtedly of late
years medical, at least chemical, science has aided most
effectually in bringing criminals to justice, it is no less
true that there are many cases in which the medical
testimony has had a totally opposite effect. Even where
the circumstantial evidence presses on the accused with
the weight of a millstone, to use Bentham's expression,
it would seem that while in some cases the weight of a
great medical authority has been employed in embar-
rassing the matter by some scientific paradox, ^ in others
the medical witnesses have not promoted but hindered
the ends of justice by confusing the minds of the jury and
withdrawing them from those facts of the case which
altogether, independently of medical testimony, were
simple and conclusive. A remarkable example of this is
afforded by this case of the Earl of Essex, and upon the
strength of the confusion thereby produced in the mind
of Bishop Burnet, neither a very powerful nor a very

^ See particularly the examination of the celehrated surgeon, John
Hunter, in Donellan's case, printed in Beck's Medical Jurisprudence, pp.
897-lKX), Gth edition, from the original report of the trial, taken in short-
hand by Joseph Gurney.

HUME. 165

acute mind, that writer, wlio would appear to have been
incapable of weighing evidence and of whom many of
the statements seem to confirm Dalrymple's observation,
' that whenever Burnet's narrations are examined he ap-
pears to be mistaken,' has pronounced an o[)inion that
the earl committed suicide. Burnet says that ' when the
body was brought home to his own house, and the
wound was examined by his own surgeon, he said to me,
it was impossible that the wound could be as it was if
given by any hand but his own. For except he had
cast his head back and stretched up his neck all he could,
the aspera arteria must have been cut.' Let the reader
now observe the discrepancy between this statement and
that given under oath by tlie surgeons before the
coroner's jury. Before the jury two surgeons, Sherwood
and Andrews, deposed as to the wound. Sherwood
stated that the aspera arteria (the trachea) and the gullet,
with the jugular arteries, were all divided. Andrews
said that the throat was cut from one jugular to the
otlier, and through the windpipe and gullet into the
vertebra? of the neck, both jugular veins being divided.
The verdict of the coroner's jury was in the following
words : ' Tiiat, with a razor, the Earl of Essex gave
himself one mortal wound, cut from one jugular to the
other, and by the aspera arteria and the windpipe to
the vertebra? of the neck, both the jugulars being
thoroughly divided ; and of this he died.'

The matter was also agitated for some time before a
committee of the House of Lords, and several physicans
and surgeons who were examined by them declared
' that they would not positively say that it was impossible
for my lord to cut his throat through each juguhu' vein,


the aspera arteria, and gullet, to the very back-bone, and
even behind each jugular vein on each side of the neck
(as some judicious surgeons who had viewed the throat
had reported it to be cut) ; but this they would be very
positive in, that they never saw any man's throat so cut
which was cut by himself. And they did then further
declare that they did believe, that when any man had
cut through one of his jugular veins, and the gullet and
windpipe, and to the very neck-bone, nature would
thereby be so much weakened by the great effusion of
blood and animal spirit, that the felo de se would not
have strength sufficient to cut through and behind the
other jugular, as my lord's throat, by surgeons who saw
it, was said to be cut.' ^

Modern historians dwell much on the earl's being
subject to fits of deep melancholy, and being acccus-
tomed to maintain the lawfulness of suicide. What
Evelyn says in his ' Diary ' on this subject, while it further
disproves the statement of Burnet about the aspera
arteria not having been cut, seems to lead to the suppo-
sition that the story about his maintaining the law-
fulness of suicide was an invention of those who had
murdered him. Evelyn says : — ' The astonishing news
was brought to us of the Earl of Essex having cut his
throat, having been but three days a prisoner in the
Tower, and this happening in the very day and instant
that Lord Eussell was on his trial, and had sentence of

* Beck's Medical Jurisprudence, pp. 540-542, 6th edition, London, 1838.
Dr. Beck's authorities are :— The Trial of Lawrence Braddon, in Hargrave's
State Trials, vol. iii. p. 855 ; The Earl of Essex's Innocency and Honour Vin-
dicated by L. Braddon (published in 1690), ibid. vol. iii. pp. 899-934 ; The
Bepublic of Letters for August, 1735 ; ' Some Passages sent by a Person of
Honour to the Author of theRepublic,' &c.; another pamphlet by Braddon
(published in 1725), reprinted in Howell's State Trials, vol. ix. p. 1229.

HUME. 167

deatli. TJiis accident exceedingly aniuzed me, my Lord
Essex being so well known by me to be a person of such
sober and religious deportment, so well at his ease, and
so much obliged to the king. It is certain that the king
and duke were at the Tower, and passed by his window
about the same time this morning, when my lord, asking *
for a razor, shut himself into a closet, and perpetrated
the horrid act. Yet it was wondered by some how it
was possible that he should do it in the manner he was
found, for the wound was so deep and wide, that being
cut through the gullet, windpipe, and both the jugulars,
it reached to the very vertebras of the neck, so that the
head held to it by a very little skin, as it were ; the
gaping,^ too, of the razor and cutting his own fingers was
a httle strange, but more that, having passed the jugulars,
he should have strength to proceed so far, that an
executioner could hardly have done more with an axe.
There were odd reflections on it. This fatal news,
coming to Ilicks's Hall upon the article of my Lord

' These words are no doubt the courtiers' account of the matter, -which
the courtly Evelyn would of course hear. The instrument produced at the
inquest was a French razor, four-and-a-quarter inches in its blade, and no
spill or tongue at the end, so tliat it must have been held by the blade, and,
as Dr. Beck observes, it would seem diliicult to inflict so large a wound with
it. — Beck's Med. Jur. p. 541. Besides, if the earl asked for a razor, would
they be likely to give him a razor without a handle ? Surely not.

^ I suppose Evelyn means by the gaping, the notches in the razor produced.
A surgeon is stated to have suggested to the coroner's jury that the notches ia
the razor were made by my Im-d ayahist his neck-bone : a suggestion which Dr.
Beck has marked in italics, and the strangeness of which will be seen on
reference to the declaration quoted above of the physicians and sur^-eons
examined before a committee of the House of Lords. Lord Essex was ri^-ht-
handed, and the razor lay on the left side. — Beck's Med. Jur. p. 54L How-
ever, I must add, in fairness to all parties, that a skilful and experienced sur-
geon whose opinion I asked on this point said that he had known a case
where a man, committing suicide by cutting hU throat with a razor, liad done
nearly all that is here described by one stroke, the razor making a sweep
nearly from one ear to the other.


Eussell's trial, was said to have no little influence on the
jury, and all the bench, to his prejudice. Others said
that he had himself on some occasions hinted that in
case he should be in danger of having his life taken from
him by any public misfortune, those who tliirsted for
his estate should miss of their aim, and that he should
speak favourably of that Earl of Northumberland and
some others who made away with themselves ; hut these
are discourses so unlike his sober and prudent conversation^
that I have no inclination to credit them. What might
instigate him to this devilish fact I am unable to con-
jecture. My Lord Clarendon, his brother-in-law, who
was with him but the day before, assured me he was
then very cheerful, and declared it to be the effect of his
innocence and loyalty ; and most people believe that his
Majesty had no severe intentions against him, though he
was altogether inexorable as to Lord Eussell and some
of the rest.'

The use to the court of Essex's imputed suicide appears
from the observation that the news coming to Hicks's Hall
at a critical time was said to have had no little influence
on the jury and the bench, to the prejudice of Lord Eussell.
' My Lord Eussell,' said the Attorney-General, ' was one of
the council for carrying on the plot with the Earl of Essex,
who has this morning prevented the hand of justice upon
himself.' And Jefferys, who was one of the counsel for
the Crown, said, ' Who should think that the Earl of Essex,
■who had been advanced so much in his estate and honour,
should be guilty of such desperate things ; which had he
not been conscious of, he would scarce have brought him-
self to this untimely end to avoid the methods of public


In this case the medi(;al evidence can hardly be consi-
dered as conchisive. The points of the case that furnish
strong evidence against suicide are (1) the cuts on the
earl's right hand, and (2) the refusal of the authorities
in the Tower to allow the coroner's jury to see the earl's
clothes. This latter circumstance renders this case a
lemarkable example of suppression of evidence. And
suppression or destruction, as well as fabrication or
forgery of evidence, may always in a greater or less degree
be regarded as affording evidence of dehnquency on tlie
part of those committing such act of suppression, de-
struction, fabrication or forgery. While this tragical
death of the Earl of Essex presents a remarkable case of
the suppression of evidence, the violent deaths of the Earl
of Gowrie and his brother form a still more remarkable
case — a case exhibiting at once the suppression and fabri-
cation of evidence, and the effect of torture. Tliis remark-
able case Hume did not take any notice of. It will form
the subject of the next essay.

Towards the end of the forty-nintli chapter of liis
history of England, Hume has given the following cha-
racter of James I. : 'In all history it would be difficult
to find a reign less illustrious, yet more unspotted and un-
blemished, than that of James in both kingdoms.' The
following pages will demonstrate the total inaccuracy of
this statement with regard to both kingdoms ; that is, first
with regard to Scotland, and secondly with regard to
England. Again, in the forty-fifth chapter of his history
of England, Hume says of James I. : ' Strongly inclined
himself to mirth and wine and sports of all kinds, he ap-
prehended the censure of the Puritans for his manner of
life, free and disengaged.' These and tlie other observa-

170 i:ssAy^ ox misroRiCAL truth.

tions of David Hume on the character of James I. remind
us of the Greek sophists or professors of rhetoric who
wrote, by way of exercises, panegyrics on characters pro-
verbial for depravity. I am well aware that David Hume
could not have spoken or written the truth respecting
James, if he had been a contemporary of that king, but, at
the risk of his life. James always hunted such persons to
death. ^ But Hume wrote more than a century after the
death of James, and he was under no obhgation, save that
of the love of showing his powers as a sophist, to write a
panegyric on King James. If Tiberius liad been of the
Stuart instead of the Claudian gens, and Hume instead of
Tacitus had written his history, he would have come down
to posterity as an amiable and jovial elderly gentleman,
perhaps a little eccentric in some of his amusements, but

Online LibraryAndrew BissetEssays on historical truth → online text (page 13 of 40)