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Wiggins v. People in Utah/Dissent Clifford

MR. JUSTICE CLIFFORD dissenting.

Murder is the charge preferred against the prisoner, which, at common law, is defined to be, when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and in the peace of the State, with malice aforethought, either express or implied. Modern statutes defining murder in many cases affix degrees to the offence, according to the nature and aggravation of the circumstances under which the act of homicide is committed.

Offences against the lives and persons of individuals are defined by the statutes of Utah, as follows: Whoever kills any human being, with malice aforethought, the statute of the Territory enacts, is guilty of murder; and the succeeding section of the same act provides that all murder perpetrated by poison or by lying in wait, or by any other kind of wilful, deliberate, and premeditate killing, or which is committed in the perpetration, or attempt to perpetrate, any one of the offences therein enumerated, is murder of the first degree, and shall be punished with death. Laws Utah, 51, c. 21, tit. 2, sects. 4, 5.

Pursuant to that enactment, the grand jury of the third judicial district, in due form of law, preferred an indictment against the prisoner for the murder of John Kramer, charging that he, the prisoner, did, at the time and in the manner and by the means therein described, feloniously, wilfully, deliberately, premeditatedly, and with malice aforethought, kill and murder the deceased, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the United States resident in the said Territory.

Sufficient appears to show that the prisoner was arraigned in due form of law, and that he pleaded to the indictment that he was not guilty, as required by the statute of the Territory; that, material witnesses for the prisoner being absent, the indictment was on his motion continued to the next term of the court. Both parties being ready at the succeeding term of the court, the jury was duly impanelled, and sworn well and truly to try the issue, as provided by law. Witnesses were called and examined by the prosecution and for the defence, and the cause was regularly committed to the jury having the prisoner in charge.

None of these proceedings are called in question; and it appears that the jury retired, and, having duly considered the case, returned into court, and gave their verdict that the prisoner is guilty of murder in the first degree. Sentence in due form of law was rendered by the court, as more fully appears in the record; and the prisoner excepted to the rulings and instructions of the court, and appealed to the Supreme Court of the Territory, as he had by law a right to do, where the judgment of the subordinate court was affirmed. Laws Utah, 66, c. 31, sect. 5.

Error lies from that court to the Supreme Court in criminal cases, where the accused has been sentenced to capital punishment; and the record shows that the prisoner sued out a writ of error, and removed the cause into this court. 18 Stat. 254.

Four errors are assigned in the transcript: 1. That the court erred in affirming the judgment of the District Court. 2. That the court erred in holding that the affidavit offered to procure a continuance was insufficient. 3. That the court erred in sustaining the ruling of the District Court, that the uncommunicated threats of the deceased, made in connection with the exhibition of a pistol a short time before the homicide, were inadmissible in evidence to the jury. 4. That the court erred in overruling the exceptions of the prisoner to the instructions given to the jury by the District Court.

Two of the errors assigned-to wit, the second and fourth having been abandoned here in the argument for the prisoner, the re-examination of the case will be confined to the third assigned error, as the only remaining one which deserves any special consideration.

Expert testimony, not in any way contradicted, was introduced by the prosecutor to the effect that the witness saw the deceased immediately after he came to his death, and he testified that he made a post-mortem examination of the body the next day; that the deceased received two pistol wounds; that one shot struck him in the side, a little back of a middle line from the hollow of the arm down and just at the border of the ribs; and the witness stated that he examined that wound, but that he did not trace the ball, as the other wound was the one that proved fatal; that the other shot struck him in the chin, and that, ranging downward, it cut the external jugular vein, the ball burying itself in the muscles of the shoulder, and that the deceased bled to death from that wound; and the witness added, to the effect that from the course the ball took, and the wounds it made in its course, the deceased must have been sitting at the time with his head bowed down and resting on his breast.

Death ensued immediately; and the record discloses what immediately preceded the homicide and what occurred at the time it was committed. Beyond doubt, the homicide occurred about two o'clock in the morning; and it is equally certain that it was effected by the described shots from a pistol. Prior to that time, say about one o'clock or a little later,-the deceased, with six or seven other persons, was in the saloon of the prisoner, and it appears that the deceased and two of the others had a difficulty, and that one of them was struck over the head in the affray. Revolvers were drawn by the deceased and one Bean, when the prisoner interfered and took the pistols from both of them, and in the scuffle struck the deceased over the head. He then put Bean out of the back-door, gave him his pistol, and told him to go home; and he put the deceased out of the front-door, and told him to go home. Half an hour or more later the prisoner came down the street with one of the witnesses for the prosecution, and when they arrived in front of the Salt Lake House the witness states that he saw the deceased sitting on the carriage-steps of the hotel, with his face resting on his hands, apparently in a stupor or asleep; that the prisoner jumped to the rear of the witness, and that the firing immediately commenced; that the witness did not know, and cannot tell, who fired the first shot; that at the first report he, the witness, turned round and saw the blaze of the second shot from a pistol in the hands of the prisoner. Witness advanced to the carriage-steps, and he testifies that he said to the prisoner, 'Jack, don't kill him,' to which it seems no response was given. Instead of that, the prisoner then jumped to the carriage-steps and fired another shot, which, as the witness states, passed right in front of him into the body of the deceased. Something may be inferred as to its effect, from the fact that the deceased raised his hands, as the witness states, and that he heard him say, 'Don't kill me, I am not armed.' Immediately after the firing ceased the prisoner stooped down as if to pick up something, and when he rose up the witness noticed that he had something in his left hand, but the witness is not able to state what it was.

Three witnessess testify that there were three shots fired in rapid succession in front of the hotel, and one of them states that he heard a fourth shot farther down the street. Two of the witnesses concur that the first shot ranged from east to west, and that the range of the other two bore a little to the north of west.

Several witnesses were examined for the defence, and one of them testified that the deceased, when he was put out of the saloon and told to go home, said he would go if the prisoner would give his gun, and that the prisoner pushed him out of the door and handed him his pistol, and that the deceased remarked, 'I will make it hot for you.' Testimony was also given by another witness called for the defence, to the effect that the deceased, after he was ejected from the saloon, showed the witness a pistol when he was sitting in front of a store opposite the Salt Lake House.

Two questions were asked the witness, as follows: 1. What, if any, threats did the deceased make against the prisoner? 2. What, if any thing, did the deceased say concerning the prisoner?

Objection was made to each question, and both were excluded by the court, and the prisoner excepted to the respective rulings. Had the questions been admitted, the prisoner expected to prove that the deceased made the threat that he would kill the prisoner before he went to bed that night; but the defence admitted that the evidence would not show that the prisoner had knowledge of the threat at the time of the killing. Due exception was taken to the ruling, which is the basis of the assignment of error not waived by the prisoner. Evidence was also introduced by the defence that the general character of the deceased was bad, and that he was a dangerous, violent, and brutal man.

Subsequent to the affray in the saloon, and before the homicide, the deceased had a conversation with another witness called and examined by the prosecution. He said that the prisoner had taken his pistol from him and beat him over the head with it, and it appears that he showed the witness the wounds in his head. About an hour or less after that interview they met again, in front of the hotel, and walked up the street together, and in the course of the conversation the witness asked him if he was armed, and the deceased gave the witness very positive assurance that he was not, that he had no weapon about him except a pocket-knife, which he showed to the witness. Presently the deceased left and went down the street, and the witness, in about a minute, started in the same direction, and as he passed the saloon where the affray occurred the prisoner came out and commenced conversing with the witness. Among other things, he said that the deceased and Bean had a difficulty in his saloon, and that he took their pistols away from them and beat them over the head with the pistols; that he put one of them out of the back-door and the other out of the front-door; that he gave Bean back his pistol, and told him that they could not have any trouble in the saloon; that if there was to be any killing there, he was going to do it himself. At that stage of the conversation the witness asked him what he did with the pistol of the deceased, and the witness states that the prisoner pulled back the lapel of his coat, and said, 'I have it here.' Immaterial matters are omitted. Suffice it to say, the prisoner proceeded down the street, and the witness soon followed; and when the latter got around Godbe's corner he heard a shot fired, then he turned and ran back towards the hotel, and when he turned the corner he saw the flash and heard the report of two other shots, and when he got in front of Hale's saloon he heard another shot farther down the street.

Four shots were heard; and the witness, who was a police-officer, states that when he came in front of the hotel he was requested to arrest the prisoner, and that he ran towards the corner where the prisoner was crossing and called to him to stop, and that he came back, and that they started up the street, when the following conversation ensued: 'I said, 'Jack, I guess you have killed Dutch John.' He said, 'If I haven't, I will.' When they got in front of the hotel, I asked him for his pistol. He handed me one, saying, 'That is Bill Bean's;' and another, 'That is Dutch John's;' and a third one, a single-barrelled derringer, and said, 'This is mine." One chamber was empty in the pistol identified as Dutch John's, and three chambers were empty in the one identified as Bean's, and the derringer was loaded.

Questions of the kind involved in the single assignment of error to be re-examined cannot be understandingly determined without a clear view of what the state of the case was at the time the ruling was made, and inasmuch as it is the judgment of the Supreme Court of the Territory to which the writ of error is addressed, it seems to be just and right that the reasons which that court assigned for affirming the judgment of the subordinate court should receive due consideration.

Enough appears to show that the prisoner insisted that the evidence of uncommunicated threats should have been admitted, because there is a conflict in the testimony as to who fired the first shot, and that the evidence of the threats, if it had been admitted, would have aided the jury in determining that question. Influenced by that suggestion, the first step of the court, apparently, was to examine the evidence reported in the transcript; and, having come to the conclusion that there is no conflict in the evidence as to who fired the first shot, they decided that the ruling of the District Court excepted to, in excluding the two questions as to the threats, is correct.

Introductory to that conclusion, they find the facts to be, that the deceased was sitting upon a carriage-step in front of the hotel, with his hands up to his face and his head bowed down, apparently in a stupor or asleep, as the prisoner and the night-watch came near, and that the prisoner, as they were passing, jumped behind the witness, and that the firing immediately commenced, the testimony of two witnesses being that the firing was from east to west, and that the prisoner was east of the deceased. Obviously, they regarded the statement of the witness, that he did not know who fired the first shot, as merely negative testimony; for they proceed to state that the positive testimony of the two witnesses, that the firing was from east to west, showed that it was impossible that the deceased should have fired the first shot.

In the next place, they advert to the statement that the prisoner stooped down, just after the shooting, as if to pick up something, and to the testimony of one of his witnesses, that he exhibited a pistol shortly before his death; and they remark, that the testimony, if no other facts were found, might tend to prove that the deceased had a pistol in his possession, but that it would not be sufficient to raise a doubt as to who fired the first shot.

Even conceding the truth of the testimony, they still were of the opinion that the prisoner was the aggressor; but they proceeded to say that they did not think that the deceased even had a pistol, and gave their reasons for the conclusion, as follows: 'His pistol was in the hands of the prisoner just before and just after the killing, and if the deceased had a pistol, as one witness testifies, shortly before his death, it is evident that he did not have it when he was killed, for after the first shot he threw up his arms and said, 'Do not kill me, I am unarmed,' a thing which it is not reasonable to suppose he would have said if he had just fired the first shot, and, besides, no such pistol was found on his person or near him after the killing.' 'If the prisoner had picked up an additional pistol, it would certainly have been found upon him; but such was not the fact;' and they add, that 'this second pistol, if any existed, could not have been in the possession of the deceased when he was killed.'

Suppose the facts to be as found by the Supreme Court of the Territory, then it follows that there was no evidence in the case tending to show that the deceased was the aggressor, or that the act of homicide was perpetrated in self-defence, within the principles of the criminal law as understood and administered in any jurisdiction where our language is spoken.

Homicide, apparently unnecessary or wilful, is presumed to be malicious, and, of course, amounts to murder, unless the contrary appears from circumstances of alleviation, excuse, or justification; and it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the jury, unless they arise from the evidence produced against him by the prosecution. Fost. Cr. L. 255; 1 East, P. C. 224; 4 Bl. Com. 201; 1 Russ., C. & M. (4th ed.) 483.

Cases arise, as all agree, where a person assailed may, without retreating, oppose force to force, even to the death of the assailant; and other cases arise in which the accused cannot avail himself of the plea of self-defence, without showing that he retreated as far as he could with safety, and then killed the assailant only for the preservation of his own life. Fost. Cr. L. 275; 1 East, P. C. 277; 4 Bl. Com. 184.

Courts and text-writers have not always stated the rules of decision applicable in defences of the kind in the same forms of expression. None more favorable to the accused have been promulgated anywhere than those which were adopted seventy years ago, in the trial of Selfridge for manslaughter. Pamph. Rep. 160.

Three propositions were laid down in that case: 1. That a man who, in the lawful pursuit of his business, is attacked by another, under circumstances which denote an intention to take away his life or do him some enormous bodily harm, may lawfully kill the assailant, provided he use all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as far as he can, or disabling his adversary without killing him, if it be in his power. 2. That when the attack upon him is so sudden, fierce, and violent, that a retreat would not diminish but increase his danger, he may instantly kill his adversary without retreating at all. 3. That when, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life or to commit any felony upon his person, the killing the assailant will be excusable homicide, although it should afterwards appear that no felony was intended.

Learned jurists excepted at the time to the third proposition, as too favorable to the accused; but it is safe to affirm that the legal profession have come to the conclusion that it is sound law, in a case where it is applicable. Support to that proposition is found in numerous cases of high authority, to a few of which reference will be made.

When one without fault is attacked by another, under such circumstances as to furnish reasonable ground for apprehending a design to take away his life or do him some great bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, the assailed may safely act upon the appearances and kill the assailant, if that be necessary to avoid the apprehended danger; and the killing will be justified, although it may afterwards turn out that the appearances were false, and that there was not in fact either design to do him serious injury, or danger that it would be done. Shorter v. People, 2 Comst. 197; People v. McLeod, 1 Hill, 420; 1 Hawk. P. C., ch. 9, sect. 1, p. 79.

Two other cases decided in the same State have adopted the same rule of decision, and it appears to be well founded in reason and justice. Patterson v. People, 46 Barb. 635; People v. Sullivan, 3 Seld. 400; State v. Sloan, 47 Mo. 612; Whart. on Homicide, 212; State v. Baker, 1 Jones (N. C.), 272; Com. v. Drum, 58 Penn. St. 9.

Unless the party has reasonable ground of apprehension at the time, the justification will fail; it being settled law that a bare fear, unaccompanied by any overt act indicative of the supposed intention, will not warrant the party entertaining such fears in killing the other party by way of precaution, if there be no actual danger at the time. 1 East, P. C. 272; Ros. Crim. Ev. (7th Am. ed.) 768; State v. Scott, 4 Ired. 409; State v. Harris, 4 Jones, 190; Dill v. State, 25 Ala. 15; Dyson v. State, 26 Miss. 362; Holmes v. State, 23 Ala. 24; Carroll v. State, 23 id. 33.

Two grounds are assumed in support of the proposition that the evidence of previous threats ought to have been admitted: 1. That it would have confirmed the other evidence introduced by the prisoner to prove that he committed the act of homicide in self-defence. 2. That it would have aided the jury in determining which of the parties fired the first shot.

Remarks already made are sufficient to show that a bare fear of danger to life, unaccompanied by any overt act or manifestation indicative of a felonious intent to that effect, will not justify the person entertaining such fears in killing the supposed assailant. Such a defence is not made out, unless all the conditions of the proposition before explained concur in the immediate circumstances which attend the act of homicide.

When a person apprehends that another, manifesting by his attitude a hostile intention, is about to take his life, or to do him enormous bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, he may, if no other practicable means of escape are at hand, oppose force by force, and may even kill the assailant, if that be necessary to avoid the apprehended danger; but he must act and decide as to the necessity and the force of the circumstances at his peril, and with the understanding that his conduct is subject to judicial investigation and review.

Apply that rule to the case before the court, and it is clear that there was no evidence in the case tending to show that the prisoner killed the deceased in self-defence. Proof to that effect is entirely wanting, and every attending circumstance disproves the theory, and shows that such a defence, if it was set up in the court below, was utterly destitute of every pretence of foundation, as appears from the following circumstances: 1. That the prisoner was not alone. 2. That when he, in company with the night-watchman, approached the hotel, the deceased was sitting on the steps, asleep or in a stupor, apparently unaware of their approach. 3. That the prisoner might have passed on, turned back, or stood still in perfect safety. 4. That if he feared any thing, his needful protection was at hand. 5. That the deceased neither spoke nor moved, and was as harmless as if he had been inanimate matter. 6. That the prisoner, better than any one else except the sleeping man, knew that the deceased was unarmed, because he, the prisoner, had the pistol of the deceased in his own pocket. 1 Gabb. Cr. L. 496.

Viewed in the light of the attending circumstances, it is amazing that any one can come to the conclusion that there is any evidence tending to show that the prisoner, as a reasonable being, could have believed that it was necessary to take the life of the deceased in order to save his own life, or to save himself from enormous bodily harm. Logue v. Com., 38 Penn. St. 265.

Stronger evidence of express malice is seldom or never exhibbited, as appears from the fact that he continued to fire after the wounded man threw up his hands and cried out, 'Don't kill me, I am unarmed,' and also from the fact that when the police-officer remarked to him, 'Jack, I guess you have killed Dutch John,' he said, 'If I haven't, I will.'

Testimony merely confirmatory of a proposition, wholly unsupported by other evidence, is not admissible as substantive evidence. Grant that, and still it is insisted by the prisoner that the evidence of previous threats made by the deceased should have been admitted to confirm the evidence introduced by the prisoner, to prove that the deceased fired the first shot.

Mere theories are not entitled to consideration, unless they find some support in the evidence. There is no evidence in the case tending to show that the deceased fired the first shot, or that he fired at all, or that he manifested any intention to offer any violence whatever to the prisoner. Two witnesses testify that the prisoner, when he jumped behind the night-watchman, was east of the deceased, and that the range of the firing was from east to the west, fully justifying the conclusion of the court below that it is impossible that the deceased should have fired the first shot.

Better reasons for the admissibility of the evidence must be given than those suggested in the preceding propositions, else the assignment of errors cannot be sustained, as it is clear that the other evidence in the case discloses no real theory of defence which the excluded testimony would tend to confirm.

Some stress is laid upon the fact that one witness testified that the deceased showed him a pistol after he was ejected from the saloon; but the answer to that, given by the court below, is quite satisfactory, which is, that the pistol of the deceased was in the possession of the prisoner just before and immediately after the killing, and that if the deceased had a pistol, as the witness testified, it is evident he did not have it when he was killed, for after the first shot he threw up his hands, and said, 'Don't kill me, I am unarmed.' Declarations of the kind made in articulo mortis are competent evidence; and, there being nothing in the case to contradict the statement, it is entitled to credit. 1 Greenl. Ev., sect. 156; Ros. Crim. Ev. (7th ed.) 30.

Four shots where fired; and when the prisoner was arrested, immediately after the homicide, he gave up three pistols to the officer,-his own, the deceased's, and Bean's. There was one empty chamber in the deceased's pistol, and three empty chambers in Bean's, showing that the prisoner had been in no danger throughout, except from the multiplicity of fire-arms which he had in his own pockets.

Attempt is next made in argument to show that evidence of previous threats made by the deceased is admissible in behalf of the prisoner, even though he did not introduce any other evidence which it tends to confirm, the suggestion being that the modern decisions support that proposition.

Criminal homicide, in order that it may amount to murder, must have been perpetrated with malice aforethought; and the prosecution, to prove the ingredient of malice, may introduce evidence of lying in wait, antecedent menaces, former grudges, or any formed design or concerted scheme to do the deceased bodily harm. Malice is the essential criterion by which murder is distinguished from manslaughter, and of course it must be charged in the indictment and proved at the trial. Acts, conduct, and declarations of the kind, if done or made by the prisoner, are clearly admissible when offered by the prosecution; but the case is generally different when the evidence is offered in respect to the deceased.

Years ago evidence was offered, in a case of manslaughter, to show that the deceased was well known by the defendant and others as a drunken, quarrelsome man; but the court excluded the testimony, holding to the effect that the evidence was immaterial, as it constituted no defence to the accused. State v. Field, 14 Me. 244.

Later, the defendant in another jurisdiction offered evidence to prove that the deceased was a man of great muscular strength, practised in seizing persons by the throat in a peculiar way, which would render them helpless and shortly deprive them of life; but the court excluded the evidence, holding that the only evidence which was relevant and material was the manner in which the deceased assaulted the defendant at the time of the homicide. Com. v. Mead, 12 Gray, 169.

Decided cases, too numerous for citation, are reported, in which it is held that evidence of the bad character of the deceased is not admissible in an indictment for felonious homicide, for the reason that it cannot have any effect to excuse or palliate the offence. Reported cases of an exceptional character may be found where it is held that evidence of the dangerous character of the deceased may be admitted to confirm other evidence offered by the prisoner, to show that the killing was in self-defence. 2 Bishop, Crim. Proced. (2d ed.) sect. 627.

Difficult questions also arise in other cases, as to the admissibility of previous threats made by the deceased. Judges and text-writers generally agree that such threats, not communicated to the prisoner, are not admissible evidence for the defence, where the charge is felonious homicide.

Courts of justice everywhere agree that neither the bad character of the deceased nor any threats that he may have made forfeits his right to life, until, by some actual attempt to execute his threats, or by some act or demonstration at the time of the killing, taken in connection with such character and threats, he induces a reasonable belief on the part of the slayer that it is necessary to deprive him of life in order to save his own or to prevent some felony upon his person. Prichett v. State, 22 Ala. 39; Com. v. Hilliard, 2 Gray, 294.

Exceptional cases arise where it is held that the evidence should be received as confirmatory of other evidence in the case tending to support the theory that the killing was in self-defence. Cases of that character may be found where courts have ruled that evidence of the kind may be admitted, even though the prisoner had no knowledge of the same at the time of the alleged felonious homicide; but there is not a well-considered case to be found anywhere, in which it is held that evidence of previous threats is admissible as substantive proof that the act of homicide was committed in self-defence, nor which shows that such evidence is admissible for any purpose, whether the threats were known or unknown to the prisoner, except to confirm or explain other evidence in the case, tending to justify or excuse the homicidal act, as having been committed in opposing force to force in defence of life, or to avoid enormous bodily harm. 2 Whart. Cr. L. (6th ed.) 1020; 1 Hale, P. C. 481.

Provided the uttering of the threats was known to the prisoner, the tendency of modern decisions is to admit the evidence, even if the other evidence to support the theory of self-defence is slight, and to exclude it in all cases where the threats have not been communicated, unless the circumstances tend strongly to inculpate the deceased as the first aggressor. People v. Lamb, 2 Keyes, 466; Powell v. State, 19 Ala. 577; Dupree v. State, 33 id. 380.

Examples, almost without number, are found in the reported cases, which support those propositions, to a few of which reference will be made.

Violent threats were made by the deceased against the prisoner in the case of Stokes v. People, 53 N. Y. 174; and the court held that proof of the same was admissible, whether known to the prisoner or not, inasmuch as other evidence had been given making it a question for the jury whether the homicidal act was or was not perpetrated by the prisoner in defending himself against an attempt of the deceased to take his life or to commit a felony upon his person.

Authorities to show that fear only is not sufficient to justify the taking of the life of another have already been referred to, of which there are many more. State v. Collins, 32 Iowa, 38; Whart. Homicide, 407.

Pursuant to that rule, it was held, in the case of Newcomb v. State, 37 Miss. 400, that the belief on the part of the accused that the deceased designed to kill him is no excuse for the homicidal act, unless the deceased at the time made some attempt to execute such a design, and thereby induced the accused reasonably to believe that he intended to do so immediately. Hence the court held that it was not competent for the accused to introduce evidence of an assault that the deceased committed on him six weeks before, nor to give evidence of previous uncommunicated threats, the other evidence showing that the deceased at the time of the killing made no hostile demonstration against the accused calculated to show that the accused was in any danger of life or limb.

Actual danger of the kind, or a reasonable belief of such actual danger, must exist at the time, else the justification will fail. Repeated threats, even of a desperate and lawless man, will not and ought not to authorize the person threatened to take the life of the threatener, nor will any demonstration of hostility, short of a manifest attempt to commit a felony, justify a measure so extreme.

Reasonable doubt upon that subject cannot be entertained; but the Supreme Court of Kentucky decided, that, where one's life had been repeatedly threatened by such an enemy, and it appeared that he had recently been exposed to an attempt by the same person to assassinate him, and that the previous threats were continued, the person threatened might still go about his lawful business, and if on such an occasion he happened to meet the threatener, having reason to believe him to be armed and ready to execute his murderous intention, and if he did so believe, and from the threats, the previous attempt at assassination, the character of the man, and the circumstances attending the meeting, he had a right to believe that the presence of his adversary put his life in imminent peril, and that he could secure his personal safety in no other way than to kill the supposed assailant, he was not obliged to wait until he was actually assailed. Bohammon v. Com., 8 Bush, 488.

Beyond all doubt, that is the strongest case to support the theory set up for the prisoner in this case to be found in the judicial reports, and yet it is obvious that it does not make an approach to what is necessary to constitute a defence for the crime charged against the prisoner in the indictment.

Except where threats are recent, and were accompanied by acts and conduct indicative of an intention to execute the threatened purpose, the evidence of previous threats is not admitted by the Supreme Court of Arkansas. Atkins v. State, 16 Ark. 584; Pitman v. State, 22 id. 357.

Where the evidence of previous threats is necessary, in connection with the other evidence, to make out a case of self defence, the Supreme Court of Indiana hold that the evidence is admissible. Holler v. State, 37 Ind. 61.

Jurists and text-writers appear to concur that antecedent threats alone, whether communicated or not, will not justify a subsequent deadly assault by the other party, unless the party who made the previous threats manifests, at the time of the act, a design to carry the threats into immediate effect. People v. Scroggins, 37 Cal. 683.

Argument to establish that proposition seems to be unnecessary in this case, as the legislature of the Territory have enacted that a bare fear that a felony is about to be committed 'shall not be sufficient to justify the killing' in such a case. 'It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge,' showing that the court below could not have decided otherwise than they did without violating the statute law of the Territory. Laws Utah, p. 60, sect. 112.

Weighed in the light of the adjudged cases, it is clear that the evidence of previous uncommunicated threats is never admitted in the trial of an indictment for murder, unless it appears that other evidence has been introduced tending to show that the act of homicide was committed in self-defence, and that the evidence of such threats may tend to confirm or explain the other evidence introduced to establish that defence.

Society, in my opinion, is deeply interested that criminal justice shall be accurately and firmly administered; and, being unable to concur in the opinion and judgment of the court in this case, I have deemed it proper to state the reasons for my dissent.


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Page:Folk-lore - A Quarterly Review. Volume 5, 1894.djvu/71

 Rh even in our own land, and if any such aid as this was ever given to it in Western Christendom generally, there is no longer any surprise to be felt at its long continuance.

The discussion on the particular problems of folk-lore which is presented by folk-tales has not been allowed to drop back during the last session, and Mr. Nutt's powerful and singularly lucid defence of the anthropological interpretation is a performance of which any society might be proud. I confess the folk-tale loses much of its old charm now that it has become the sport of literature. Maimed, altered, and distorted in one direction; clothed in red, blue, and green in another direction—of course, those who cannot see that these are not the doings of folk-lore will never give the folk-tale all the credit it really deserves as an element of the anthropology of civilised races. They will always remember its literary rough handling, and they will rather scorn its traditional faithfulness. So that personally I am not at all sorry that some attention is now being given to real hero-tales for the purpose of the literary amusement of our children. Folk-tales, when they are reduced to the level of literature, will never really teach children literature, nor morals, nor manners; because all their charm is in the unconscious—the unconscious—beauty and poetry of their incidents and characters. Let the real hero-tale of history then be brought to do its duty in the nursery, and in the meantime let us note how it was in the years gone by the original of the traditional tale itself.

The following is in outline the story of a real Kaffir heroine: A father who had been unfortunate, and had lost all his wealth, was importuned to give up his two daughters for wives to the master who had befriended him in his necessities. He had no power, even if he had the will, to resist the demand; so in due time the daughters were sent to their intended lord's kraal. They would not go into the hut, until at last they were forcibly carried in. It was night, and one of the girls, worn out with fatigue and

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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 64 weeping, had fallen asleep. But if she slept, her sister was awake, and determined to be fiee. Her eyes turned towards a distant land, for among those of her tribe who had taken refuge there was a certain young man with whom she had been acquainted from childhood, and who had obtained possession of her heart before that evil day which compelled him to run for his life. When she thought the fit moment had come, Uzinto released herself from her bonds, and taking up her mat, crept out of the hut. She determined to make away over or through the fence, and this being done, she ran across the dewy grass and began her journey. Soon after daylight she met a party of men who asked where she was going. She replied without hesitation that she was going to see a relative amongst the Amakoba; but there were marks of tears upon her face, and her questioners insisted to know why she had been weeping. It was easy to say that she had been taking snuff, but they were not satisfied with this explanation, and expressed their conviction that she was a fugitive on the forbidden land. Her denial of this assertion being vehement and vigorous, she was allowed to proceed. When Uzinto reached the country of the Amakoba the sun was setting, and she had no choice but to enter a kraal and solicit permission to remain the night. The events of the last few days were known here, and the people easily divined that she was absconding. They told her plainly that they should send a messenger to her husband in the morning, and detain her until the answer had been received. She was too well secured to escape during the night, and next morning, after the messenger had been sent, she was committed to the custody of the women of the kraal. These had their own business to attend to, and contented themselves with leaving her bound in the hut. After a time she severed her bonds, and again set forth. Before she had gone far, however, a boy in charge of the cattle saw her, and immediately ran to inform the women. These, who were at work in the garden, threw down their


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 Rh picks and commenced a hot pursuit. They had not much difficulty in catching the fugitive, but she wept, begged them to kill her, and behaved so extraordinarily that the women allowed her to escape. She now determined to avoid the kraals, and travel as much as possible in the bush. A terrible fright caused by a leopard was the only incident she met with, and at the end of the fourth day she forded the river Tugela, very tired and very hungry. Uzinto now went to a kraal to obtain food, and to discover where her people lived. The owner saw that she was a fugitive, and thought it a fine opportunity to gain a wife without expense. She declined to become an inmate of his house, and abode with one of his wives for the night. The jealous wife communicated to her the information she wanted, and told her that the man wished to deceive her. When Uzinto departed in the morning the master of the kraal met her, and again endeavoured to persuade her to return. He was rich; she should have plenty of milk and plenty of beef; she had only to become his wife to be happy and honoured. She listened in silence, and went on her way to her own people, where she was received by the chief as one of his wards. Then began her search for her lover. His brother's kraal adjoined her new home, and one morning, meeting her lover's favourite nephew, affecting not to know him, she said that his face was not altogether strange to her, and wondered where she had seen him. The boy did not think he had seen her anywhere, and when she suggested the Folosi river, he told her he had never been there. The truth was, the shrewd urchin knew her, and wanted to make her more explicit, and say whose nephew he was. She found that her lover was many miles away. The boy took a message from her, and her lover's reply was favourable, though no present accompanied it; and when Uzinto thought thereon her heart was sad. Meantime two suitors paid her unremitting attention, but she turned a deaf ear to their prayers. After a while her lover came back, but the offended maiden would not deign


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 66 to speak to him, and when he became ill she attended to him, but in silence. After his recovery she took a little girl and set off for his kraal, under cover of the night, that she might have an interview without creating suspicion. The entrance was closed, but she threw a stone upon the Kut. Then, after a scene with her lover, she fixed her value at ten cows, told him when he had worked long enough to obtain that number she would come to his kraal and be betrothed. Some time afterwards she appeared unexpectedly at her lover's kraal, and demanded to be betrothed. But the people were afraid to kill the goat without the chief's sanction, and a messenger being sent to their chief, she was obliged to go back. Again, however, she presented herself at her lover's hut, and this time, in spite of the chief's rights, the goat was killed, and she became the wife of her old lover.

This real-life incident is told in Shooter's Kaffirs of Natal and the Zulu Country (pp. 60-71), and I do not think it is difficult to transpose its facts to the domain of the folk-tale. Let the mother relate her adventures to her children, and they in their turn relate it to their children, and it is questionable whether the tradition would represent a very distant parallel to the folk-tale proper. Look at the Kaffir folk-tale, indeed. In Theal's Kaffir Folk-lore the story of Sikulume, so marvellously like many European stories in the trials that beset the lovers, is not so much unlike the narrative given above; the difficulties and trials are, of course, taken to the region of the marvellous, but their true origin might well be found in the actual facts of savage life. And a consideration of such facts ought to help forward the question as to whether the incidents of folk-tales are simply due to a borrowing from literature or to the personified nature-gods being made actors in legends, or whether they do not rather add to "the evidence in favour of myths being ordinarily formed round a nucleus of facts". The Kaffir maiden's story is one that


text:
Author:George McCall Theal

Works

 * Kaffir Folk-Lore (1882, London)
 * Compendium of South African History
 * History of South Africa, comprising:
 * Ethnography and Condition of South Africa before A.D. 1505 (1919)
 * History of Africa south of the Zambesi from 1505 to 1795 (3 vol., 1916–1922)
 * History of South Africa from 1795 to 1872 (5 vol., 1915–1920)
 * History of South Africa since September 1795 (5 vol., 1908, an earlier edition of the above)
 * History of South Africa from 1873 to 1884 (2 vol., 1919)

title: Author:George McCall Theal


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 Rh has been acted over and over again in savage society, told over and over again to savage children, not exclusively in any particular part of the world, but during a particular stage of culture, and could therefore have arisen independently anywhere where the same savage conditions attended the marriage of young women. If this is the theory stigmatised as casual by Mr. Jacobs, it will not die under the name.

Jamieson, in a note to one of his ballads, relates an event which happened to him in Scotland which almost exactly reproduces some of the events told in Scottish fairy tales, showing that we are too apt to judge of these fragments of the past by the light of modern days:—

"On a very hot day in the beginning of Autumn, the author was travelling afoot over the mountains of Lochaber, from Fort Augustus to Fort Inverness, and when he came to the house where he was to have breakfasted there was no person at home, nor was there any place where refreshment was to be had nearer than Durio, eighteen miles further. With this disagreeable prospect he proceeded about three miles further, and turned aside to the first cottage he saw, where he found a hale-looking, lively, tidy little middle-aged woman spinning wool, with a pot on the fire, and some greens ready to be put into it. She understood no English, and his Gaelic was by no means good. She informed him that she had nothing in the house that could be eaten except cheese, a little sour cream, and some whiskey. On being asked rather sharply how she could dress the greens without meal, she 'good-humouredly told him that there was plenty of meal in the croft, pointing to some unreaped barley that stood dead ripe and dry before the door; and if he could wait half an hour he should have brose and butter, bread and cheese, bread and milk, or anything he chose. To this he most readily consented, as well on account of the singularity of the proposal as of the necessity of the time; and the good dame set with all possible expedition about her arduous undertaking. She first of all brought him some cream in a bottle, telling him, ' He that will not work, neither shall he eat'; if he wished for butter, he must shake that bottle with all his might and sing to it like a mavis all the while;


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 68  for, unless he sung to it, no butter would come. She then went to the croft, cut down some barley, burnt the straw to dry the grain, rubbed the grain between her hands, and threw it up before the wind to separate it from the ashes; ground it upon a quern or hand-mill, sifted it, made a bannock of the meal, set it up to bake before the fire; went to her cow, singing all the while, varying the strain according to the employment to which it was adapted. In the meanwhile a hen cackled under the eaves of the cottage; two new-laid eggs were immediately plunged into the boiling kail-pot, and in less than half an hour the poor, starving, faint, and way-worn traveller, with wonder and delight, sat down to a repast that under such circumstances would have been a feast for a prince."

In this address, which I think will about complete my work as President, I have been too discursive to be exact; but I wish to add to what I have already had the opportunity of saying from this chair, something to fill up gaps in my previous addresses, something to emphasise important matters of principle previously stated, something too by way of regret and apology for having done so little for the grand subject to which this Society is devoted—a subject nearly identical with the psychical evolution of humanity. I attempted in my first year of office to indicate the work which was needed from the Society by way of collection and by way of classification. When I compare my statement of the requirements with what we have done, I am satisfied with the quality and direction of our labours, but I am disheartened as to the quantity. In my second address I was able to speak about the principles of folk-lore research, and to formulate some for our guidance. Again, comparison of hopes with realisation does not show much in favour of realisation. Still, that what we are doing now is done upon clearly defined lines, with some idea of order and method, is an immense gain, the import of which will probably be more realised in future years.

There is so much that deals with the pathos, the humour, the grandeur of human life in the work which falls to the


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 Rh folk-lorist that he forgets the littlenesses and degradations of human life—nay, he accounts for these unpleasant sides of man's history, and in accounting for them he so frequently finds that brutal and bestial actions are the outcome of far from inhuman or unholy motives, that there is ample room left for a liberal view of human history. Surely there is nothing more solemnly awful than to think, as Lumholtz thinks of the Australians, that "they have no traditions; many of them do not even know their father, and any knowledge of earlier generations is out of the question." Put the black patch of oblivion upon our own national and ancestral traditions, and I venture to think that not even the gospel of universal love would replace the loss. But folk-lore restores the Australian black fellow, low down as he is in the scale of human culture, to his place as an inheritor of traditions, and the restoration removes a blot from mankind in general, and hence broadens the outlook which the study of even the most backward races affords to the inquirer. So it is all along the line. Nothing that is trivial or revolting escapes our notice or inquiry; nothing that man has done or thought in his worst moments, or dreamed of in his most insane, is too unholy for a folklorist to investigate; and because we see that each act or thought has a parent act or thought, we find out that however irrational, cruel, and detestable men or tribes of men can be, their acts and beliefs are but a phase in the giant struggle of man for the life to which we have succeeded as our rightful heritage.

It is said that during the present month a worthy magistrate was shocked by the paganism which lurks behind the sport of snap-dragon; but we could, I venture to think, educate him into understanding that there is sometimes more real humanity in a touch of genuine paganism than in some of the platitudes that at present do duty for higher things.


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 REVIEWS.

work is published from the manuscripts of the late Dr. Rand. Some of the legends had been previously published by Dr. Rand in his lifetime; and Mr. Leland used his manuscripts in preparing The Algonquin Legends of New England, where students first made the acquaintance of the Micmac hero Glooscap. The entire collection now appears, edited by Miss Helen L. Webster, and published under the direction of the Department of Comparative Philology, Wellesley College, Massachusetts, in whose library Dr. Rand's manuscripts have been placed by Professor E. N. Horsford, who purchased them after the writer's death.

Of the genuineness of the traditions here gathered together there is no doubt, but for scientific purposes their presentation leaves something to be desired. Dr. Rand, of whose interesting life a sketch is presented in the Introduction, had his own ideas on the subject of translation. The idiom of the American aboriginal tongues is so utterly different from ours, that any approach to a literal version would have been impossible. But Dr. Rand paraphrases and interpolates comments—in a word, tells the stories, as he says, in his own way; and it is a way that cannot be commended for imitation. Take, for instance, the following passage in a variant of a well-known story —

"Night overtook them, and they lay down in the forest under the open sky to sleep. The atmosphere was clear.


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Author:Silas Tertius Rand

Works

 * Legends of the Micmacs
 * A first reading book in the Micmac language (1875)

title: Author:Silas Tertius Rand


text: Folk-Lore/Volume 5/Presidential Address

title: Folk-Lore/Volume 5/Presidential Address


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 remain a lasting monument to the memory of Mr. Davies and the civic fathers who worked with him. Mr. Davies has done much to encourage the formation of progressive institutions. Those products of democracy—building societies—have ever received his support, and in accepting the position of director of the Fremantle Building Society, he inspired confidence in the institution among the working classes, and induced many to take advantage of the opportunities offered to become the owners of their own homes. He also conceived the idea of erecting baths on the Esplanade, within an easy distance of the town.

Although so loyal to his native town, and anxious for its prosperity, Mr. Davies is very liberal in his ideas, and a warm supporter of any public work likely to be of advantage to the community at large. His interests are bound up in the land of his birth. In 1895 Mr. Davies was gazetted a Justice of the Peace.

HENRY ERNEST PARRY, J.P., M.I.C.E.

IVIL engineering can reasonably claim to have solved many difficult problems in the physical world. The scope of its research is much wider than the name would lead one to suppose, embracing as it does all the fundamental principles of Natural Philosophy. Its contributions have not been directed to the piling up of a mass of abstract theories to adorn a classic volume, but rather to the interests of humanity by continual improvements and inventions for the expediency of a practical world. It were futile to speak but broadly of the many avenues and channels into which the science of civil engineering runs. The bare mention of railways, bridges, and roads—the most indispensable and useful means for universal transit—will serve to prove the practical importance of the profession. If custom did not blunt sensibility we should look on these as, par excellence, the monuments of skill. Even in this colony, where infancy forbids for obvious reasons the higher results of civil engineering, the foundations on which she rears her superstructures are the legacy and outcome of the bare first principles of this limitless science. Travellers who sit at ease in a luxurious compartment, and think merely of the journey's end might read with profit the lives of those who devise the means to facilitate and render comfortable their passage from one point to the other.

In the development of railway extension, so great a boon in Western Australia, Henry Parry has been an indefatigable worker. He was born in the Island of Barbados, in the West Indies, in 1856. His grandfather was Bishop of that isle for many years, and his father, who was Co-adjutor Bishop of Barbados, and a learned, pious, and distinguished man, came to Perth in 1877, as Bishop of the colony. At the age of ten years Henry left Barbados, and was taken to England. He received a capital mental training. At Clifton, his uncle, St. John Parry (the noted coach), who was undoubtedly one of the great classical grammarians of his time, took him under his careful supervision, and crammed his youthful mind with much scholastic feeding. Here he first revelled in the irregularities of Greek verbs and verse, and heard the pathetic tale of some noble epic. He had been a pupil, too, of Harrison's College in his native island, which boasted a brilliant staff of teachers. Its teacher of mathematics—that science so indispensable to the region of calculation and mensuration—could ably cope with the absent-minded professor in his subject. It is to him that Mr. Parry owes his first love for science, and the material of his valuable teaching is indelibly impressed on his memory. He apprenticed himself in early years to George Bowen, in Huntingdonshire, England, and qualified as a civil engineer within the specified time.

In 1878 Mr. Parry sailed for Western Australia to his new home in Perth. The Government about this time was forced by public needs to extend railway communication in the colony. People coming fresh from the facilities and comforts of the home country grumbled complainingly against tedious and longsome travel by coach. Mr. J. H. Thomas, engineer-in-chief to the Government, appointed Mr. Parry assistant engineer on the new Eastern Railway. In 1880 the trial lines were satisfactorily laid after a year's hard work, and the completion of the work conferred an immense boon on all the colonists, and had the further advantage of opening up and developing these parts of the colony, more especially from an agricultural point of view. From 1881 to 1883 Mr. Parry was locomotive superintendent and resident engineer of the Geraldton and Northampton Railway. At the end of the latter year his services were transferred to the Eastern Railway. He was appointed assistant resident engineer under Mr. Clayton Mason. A more responsible position was soon given to one who had shown himself so capable of filling with the utmost satisfaction all his previous offices. In 1885 he

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 action of Dr. Hawford, the master, in withholding his fellowship from Hugh Broughton. In 1580 he proceeded M.A., and was incorporated M.A. at Oxford in 1584. In 1588 he was elected head-master of the grammar school at Reading, and in 1591 was presented to the vicarage of Stanstead Abbots in Hertfordshire, which he resigned in 1593. The advowson of Great Munden in Hertfordshire was granted 11 July 1604 to a certain Thomas Nicholson upon trust to present it to Bradock. Bradock never obtained the presentation, which did not fall vacant till 1616; he probably died before that date. Bradock translated into Latin Bishop Jewell's confutation, in six parts, of the attack of Thomas Harding on Jewell's 'Apologia Ecclesiæ Anglicanæ.' The translation, taking up 637 folio pages, was published at Geneva in 1600, and was undertaken that foreign scholars and divines might be able to follow the controversy which the ' Apologia ' had occasioned. It is dedicated to John Whitgift, archbishop of Canterbury.

 BRADSHAIGH, RICHARD. [See .]

 BRADSHAW, ANN MARIA (1801–1862), actress and vocalist, was born in London in August 1801. Her maiden name was Tree, and her father, who lived in Lancaster Buildings, St. Martin's Lane, was in the East India House. After a training in the chorus at Drury Lane, and a short experience in Bath, she appeared in 1818 at Covent Garden as Rosina in 'The Barber of Seville.' Subsequently she played, principally as a substitute for Miss Foote or Miss Stephens, Patty in 'The Maid of the Mill,' Susannah in 'The Marriage of Figaro,' and other similar characters. Her first recorded appearance in ah original role seems to have been as Princess Stella in the 'Gnome King,' a spectacular piece produced on 6 Oct. 1819 at Covent Garden. On 11 Dec. of the same year she appeared as Luciana in an opera founded by Reynolds on 'The Comedy of Errors.' This led to the series of Shakespearean performances on which her fame rests. In various renderings, musical and otherwise, of Shakespearean comedy, she played with success Ariel, Viola, Imogen, Julia (in the 'Two Gentlemen of Verona'), Ophelia, and Rosalind. With the exception of a solitary appearance at Drury Lane on April 1823, when she was lent by her own management, she appears to have remained at Covent Garden till her retirement. This took place on 15 June 1825 in two of her original characters, Mary Coppin 'Charles II,' by Howard Payne, and Clari in the opera of that name, by the same author. Shortly afterwards she married, under passably romantic circumstances, and after, it is said, an attempt at suicide, James Bradshaw, a man of property. She died on 18 Feb. 1862. Of medium stature and pleasing figure, and with no special claim to beauty, she owed her popularity to the pathos in her voice. Though inferior to her singing, her acting won commendation. She was much praised for the modesty of her performance in male attire. Her sister, Ellen Tree, became the wife of Mr. Charles Kean.

 BRADSHAW, GEORGE (1801–1853), originator of railway guides, only son of Thomas Bradshaw, by his wife, Mary Rogers, was born at Windsor Bridge, Pendleton, Salford, on 29 July 1801. His parents taxed their limited means to give a good education to their only child by placing him under the care of Mr. Coward, a Swedenborgian minister; thence he removed to a school kept by Mr. Scott at Overton, Lancashire. On leaving school he was apprenticed to Mr. J. Beale, an engraver, who had acquired some reputation by the execution of the plates of 'The Art of Penmanship Improved,' by Duncan Smith, 1817. In 1820 he accompanied his parents to Belfast, and there established himself as an engraver and printer, but, not finding adequate occupation, returned to Manchester in the following year. His attention had been for some time directed to the engraving of maps, and in 1827 he determined to devote himself more especially to that branch of art. The first map projected, engraved, and published by him was one of Lancashire, his native county. This was followed in 1830 by his map of the canals of Lancashire, Yorkshire, &c. This map eventually became one of a set of three known as 'Bradshaw's Maps of Inland Navigation.' Soon after the commencement of the railway system, Bradshaw, the originator of railway guides, produced 'Bradshaw's Railway Time Tables' in 1839, a small 18mo book, bound in cloth, price 6d. In 1840 the name was changed to 'Bradshaw's Railway Companion,' which contained more matter, with sectional maps, and was sold at 1s. It was not published periodically, but appeared


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 occasionally, and was supplemented by a monthly time-sheet. The agent in London for the sale of this work was Mr. William Jones Adams, who, it would appear, was the first to suggest the idea of a regular monthly book at a lower price, as an improvement on 'The Companion.' This idea was taken up by Bradshaw, and the result was the appearance in December 1841 of; No. 1 of 'Bradshaw's Monthly Railway Guide,' in the well-known yellow wrapper, a work which has gained for itself a world-wide fame. Another undertaking was 'Bradshaw's Railway Map,' produced in 1838. Among his other publications may be mentioned 'Bradshaw's Continental Railway Guide,' printed in Manchester, but of which the first number was published in Paris in June 1847; and 'Bradshaw's General Railway Directory and Shareholder's Guide,' which first appeared in 1849.

Bradshaw when a young man joined the Society of Friends, and was an active co-adjutor of Cobden, Pease, Sturge, Scoble, Elihu Burritt, and others in holding peace conferences, in the attempts to establish an ocean penny postage, and other philanthropic labours. Part of his time he devoted to the establishment of schools for the poorer classes. Bradshaw joined the Institution of Civil Engineers as an associate in February 1842. In August 1853 he went to Norway on a tour combining business and recreation, and on 6 Sept., while on a visit to a friend in the neighbourhood of Christiania, he was seized by Asiatic cholera, and died in a few hours. He was buried in the cemetery belonging to the cathedral of Christiania.

He married, on 16 May 1839, Martha, daughter of William Darbyshire of Stretton, near Warrington, and left a son, Christopher.

 BRADSHAW, HENRY (d. 1513), Benedictine monk and poet, was a native of Chester. Being from childhood much addicted to religion and learning, he was, while young, received among the monks of St. Werburgh's. Thence he was sent to Gloucester Hall, Oxford, and there passed his course in theology. He then returned to his monastery. He wrote 'De Antiquitate et magnificentia Urbis Cestriæ;' 'Chronicon and a Life of St. Werburgh,' in English verse, including the 'Foundation of the City of Chester,' the 'Chronicle of the Kings,' &c. The date of his death is fixed at 1513, by 'A Balade to the Auctour,' printed with this poem. A full description of this rare volume is given by Dibdin (Typographical Antiquities, ii. 491). The title is, 'Here begynneth the Holy Lyfe and History of Saynt Werburge, very frutefull for all christen people to rede. Imprinted by Richarde Pynson … A° MDXXI.' 4to. Three ballads follow; at the end of these is the colophon, 'And thus endeth the lyfe and historye of Saynt Werburge. Imprinted, &c.' Herbert (Typographical Antiquities, i. 270) says that a few years before he wrote, the very existence of this book was questioned. Five copies are, however, known to be in existence, one in the Minster Library at York, two in the Bodleian Library (Catal. iii. 802), one, the copy described by Dibdin as Heber's, in the British Museum, and the fifth in Mr. Miller's collection (Remains, &c. Chetham Soc. xv.) It was reprinted for the Chetham Society in 1848, being edited by E. Hawkins. Copious extracts are given, not always exactly, by Warton. The main body of the poem is a translation from a Latin work then in the library of St. Werburgh's, called the 'True or Third Passionary,' by an author of whom Bradshaw says 'uncertayne was his name.' Warton's conjecture, then, that this writer was Goscelin, is, as Hawkins points out (Introd. Chetham Soc. xv. 5), unlikely to be correct. The 'prologes' and some other parts of the volume are original. Bradshaw wrote, he says, for the people—

Warton speaks slightingly of Bradshaw's powers. Dibdin, who also gives some long extracts, rates them more highly. Many passages are vigorous, and some are certainly picturesque. In his concluding stanza he speaks of Chaucer and Lydgate, of 'preignaunt Barkley,' and of 'inventive Skelton.' Herbert also attributes to Bradshaw a book beginning: 'Here begynneth the lyfe of saynt Radegunde,' also in seven-line stanzas, printed by Pinson, n. d., without the name of the author or translator.


text: Dictionary of National Biography, 1885-1900/Bradshaigh, Richard


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 was appointed resident engineer for the Chidlow Wells—Beverley section. In 1886 the Institute of Civil Engineers admitted him as an associate member. During Mr. Parry's career his name has become associated with the construction of many railroads, such as the Clackline and Newcastle line, and the all-important railway from Spencer's Brook to Northam. He superintended, on behalf of the Government, the making of a railroad from Albany to Beverley, a distance of 244 miles, which was looked upon as a gigantic undertaking. With very little assistance he had to survey the mass of the ground through which the proposed railroad was to pass, and to arrange all its measurements. No fault can be found with any part of the work. At present (1896) he is executive engineer of all lines from Perth to Bunbury, and from there to Boyanup and Vasse. He was gazetted a J.P. in 1887.

He has taken an active interest in mining, and made several investments with profitable results. It is impossible for an enthusiastic speculator to be unaffected by mine-epidemic. His engineering talents are to be directed to mining on his own behalf. In 1881 he married the daughter of Sir Malcolm Fraser. In the Masonic Order Mr. Parry is prominent. He was initiated into the mysteries of the craft in 1880, and in the York Lodge held the office of Grand Master for twelve months. He is now a member of the District Grand Lodge.

In 1897 Mr. Parry severed connection with the Government, and now practices on his own behalf.

ISIDORE JAMES KNIGHT COHN, J.P.

XPERIENCE is a kind of talismanic force which guides man on his path of life. In a comparatively new country the man of experience must invariably succeed; he brings to bear in his fresh fields of labour the knowledge he has acquired in other lands. Decidedly entertaining is the biography of Mr. I. J. K. Cohn, who has had a variety of experiences in the Australian colonies. From his early boyhood he has been associated with gold mining, and if there is one calling more than another that is conducive to adventure it is that of the seekers for this precious metal.

Isidore James Knight Cohn was horn in Melbourne in 1843. Tiring of a city life and yearning to get to the goldfields, he left the domestic roof for Castlemaine at the early age of thirteen years. The little lad was fortunate enough to get in with a party of men who agreed to give a him third share in their findings. This infantile gold quest was not very successful, for we find him eighteen months afterwards on the road to Melbourne, carrying his swag. Three years later he proceeded to Bendigo, having in the meantime married, his young wife accompanying him. He had only a few pence in his pocket, but devoted himself to vigorous work, and although but eighteen years of age he applied for a prospector's license over the Burra-Eureka mine, situated between Sparrowhawk and Ironbark. Then, some months later, the goldfields of New Zealand caused a general exodus from Victoria, and Mr. Cohn joined in the pilgrimage. The gold was being found in the South Island, and with his swag on his back he tramped to Dunstan, and from there to Nookimia, mining and prospecting en route. Having no luck at either place, he proceeded to Dunedin, where he found letters awaiting him which called for his immediate presence in Melbourne. After settling his business in the latter place, he went to the Caledonian diggings, about twenty-four miles out from the capital. He remained there for two years, working puddling machines, and digging between times. Wood's Point was his next rendezvous, and with his pack horses he was one of the first to arrive. He became very largely interested in reefing, but made little or no money in his ventures. Not to be outdone, he started in photography—an art in which he had always displayed studious interest. Travelling from town to town and colony to colony, he became a peripatetic photographer in earnest. At one time he was engaged in taking views for an art publication. It necessitated his going to Cobar, New South Wales and this probably proved the turning point in his life.

Mr. Cohn decided to settle in Cobar, and opened an hotel, afterwards launching out in the coaching and livery business. The copper mines of that district were developing well at this time, and he pioneered the coaches running from Cobar to Bourke, to Ningan, to Condobolin, Nimagee, and, in conjunction with a Mr. Sproule, to Hillston. He cut the first track through to Wilcannia from Cobar, and was an original shareholder in the first crushing plant erected at Bourke. Mr. Cohn stopped in Cobar a few years, then journeyed to Silverton, New South Wales, when mining was in full swing there. Then he heard of gold being discovered in the Kimberley district, Western Australia, and although doing well at Silverton, he departed, and arrived at Perth in 1885. Making all enquiries about the country before starting, he lost no time in getting to the Kimberley district. He proceeded to Derby, the main port, and

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 time to consider it.' The next day he formally accepted the office, with (it is said) every sign of humility. It was resolved by the court that he should henceforward bear the title of lord president.

Clarendon is probably right in describing Bradshaw as 'not much known in Westminster Hall, though of good practice in the chamber.' There were certainly many lawyers having a higher reputation both in parliament and at the bar who might have been expected to be chosen before Bradshaw president of the great commission. But there were obvious reasons for appointing a lawyer of comparatively little prominence. The proceedings demanded a very precise observance of legal formalities, and a lawyer was indispensable. But the anti-royalists had very few lawyers among them who believed in the justice or legality of the latest development of their policy. Whitelocke and Widdrington both refused to serve on the commission; Serjeant Nicholas, who had been nominated to the commission at the same time as Bradshaw, declined to take part in the trial; the parliamentary judges Rolle, St. John, and Wilde deemed the proceedings irregular from first to last; Edward Prideaux, an able lawyer, whom the commons had appointed solicitor-general on 12 Oct. 1648, was unwilling to appear against the king, and his place was filled for the occasion by John Cook, a man of far smaller ability. But the commissioners, whether or no they had any misgivings, were resolved to prove their confidence in the man of their choice. Everything was done to lend dignity to the newly elected president. The deanery at Westminster was handed over to him as his residence for the future, but during the trial it was arranged that he should lodge at Sir Abraham Williams's house in Palace Yard to be near Westminster Hall. He was given scarlet robes and a numerous body-guard. Although his stout-heartedness is repeatedly insisted on by his admirers, Bradshaw had some fear of personal violence at this time. 'Besides other defence,' says Kennett, 'he had a high-crowned beaver hat lined with plated steel to ward off blows.' The hat is now in the Ashmolean Museum at Oxford (Complete Hist. iii. 181 n.;, Biog. Hist. ii. 397).

Private meetings of the commission, attended by less than half the full number of members, were held under Bradshaw's presidency in the Painted Chamber at Westminster almost every day of the week preceding the trial, and on the morning of each day of the trial itself. The trial opened at Westminster Hall on Saturday, 20 Jan. 1648-9. Bradshaw's name was read out by a clerk, and he took his seat, a crimson velvet chair, 'having a desk with a crimson velvet cushion before him.' He was surrounded by attendants, and placed in the midst of his colleagues. The president addressed the prisoner as soon as he was brought into court as 'Charles Stuart, king of England,' and invited him to plead, but the king persistently declined the invitation on the ground of the court's incompetency, and Bradshaw's frequent and impatient appeals had no effect upon him. Finally Bradshaw adjourned the proceedings to the following Monday. The same scene was repeated on that and the next two days. The president repeatedly rebuked the prisoner for his freedom of language, and absolutely refused to allow him to make a speech. On 25 Jan. twenty-nine witnesses were hurriedly examined; on 26 Jan. Bradshaw and the commissioners framed a sentence of death at a private sitting in the Painted Chamber. It was read over by them on the morning of the next day (27 Jan.), after which Bradshaw proceeded to Westminster Hall and pronounced judgment in a long-winded and strongly worded oration. Before Bradshaw spoke, Charles made an earnest appeal to be heard in his defence. Some of the commissioners were anxious to grant him this request, but Bradshaw finally disallowed it. After the sentence was pronounced, the king renewed his demand, but Bradshaw roughly told him to be quiet, and ordered the guards to remove him. On 30 Jan., the day of the execution, the commission held its last meeting in private; the death-warrant was duly engrossed and signed by fifty-eight members. Bradshaw's signature headed the list.

Bradshaw was censured by crowds of pamphleteers for his overbearing and brutal behaviour towards the king at the trial (cf. Reason against Treason, or a Bone for Bradshaw to pick, 9 July 1649). His friends professed to admire his self-confidence and dignity, and spoke as if he had had no previous judicial experience. On the whole it appears that he behaved very much as might be expected of a commonplace barrister suddenly called from the bench of a city sheriffs' court to fill a high and exceptionally dignified judicial office.

The lord president's court was re-established, with Bradshaw at its head, on 2 Feb. 1648-9, and throughout the month it was engaged in trying leading royalists for high treason. The chief prisoners were the Duke of Hamilton, Lord Capel, and Henry Rich, earl of Holland. Bradshaw, arrayed in his scarlet robes, pronounced sentence of death upon them all in very lengthy judgments. He showed none of these prisoners any


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 BRADSHAW, JAMES (1636?–1702), ejected minister, of the Bradshaws of Haigh, near Wigan, the elder and royalist branch of the family, was born at Hacken. in the parish of Bolton, Lancashire, about 1636. He was educated at the Bolton grammar school and Corpus Christ College, Oxford, but did not graduate. This was due to the influence of his uncle Holmes, then a minister in Northamptonshire, under whom he studied divinity, Returning to Lancashire, he was ordained minister of Hindley. With other Lancashire ministers, he was concerned in the royalist rising under [q. v.] He was ejected in 1662, but, continuing to preach, he suffered some months' imprisonment at the instance of his relative Sir Roger Bradshaw, an episcopalian magistrate. On the indulgence of 1672 he got possession of Rainford Chapel,in the parish of Prescot. The neighbouring clergy now and then preached for him, read-ing the prayer-book; hence the churchwarden was able to say 'yes' to the question at visitations: 'ave you common prayer read yearly in your chapel?' Pearson, the bishop of Chester, would not sustain informations against peaceable ministers, so Bradshaw was not disturbed. He was also one of the Monday lecturers at Bolton. He died at Rainford in 1702, in his sixty-seventh year, his death being the result of a mishap while riding to preach. His son Ebenezer, presbyterian minister at Ramsgate, was ordained 22 June 1694 in Dr. Annesley's meeting-house, Bishopsgate Within, near Little St. Helen's (this was at the first public ordination among presbyterians after the Restoration). Bradshaw published: Halley confuses him (ii. 184) with another James Bradshaw, born at Darcy Lever, near Bolton, Lancashire, educated at Brasenose College, Oxford, presbyterian rector of Wigan, who in 1644 encouraged the siege of Lathom House by sermons from Jerem. xv. 14, in which he compared Lathom's seven towers to the seven heads of the beast. He was superseded at Wigan by Charles Hotham for not observing the parliamentary fast, but called to Macclesfield, whence he was ejected in 1662. He preached at Houghton Chapel, and subsequently at Bradshaw Chapel, reading some of the prayers, but not subscribing. He died in May 1683, aged 73.
 * 1) . 'The Sleepy Spouse of Christ alarm'd,' &c., 1677, 12mo (sermons on Cant. v., preface by Nathaniel Vincent, M.A., who died 21 June 1697, aged 52).
 * 2) 'The Trial and Triumph of Faith.'

 BRADSHAW, JAMES (1717–1746), Jacobite rebel, born in 1717, was the only child of a well-to-do Roman catholic in trade at Manchester. He was educated at the free school, and learned some classics there. About 1734 he was bound apprentice to Mr. Charles Worral, a Manchester factor, trading at the Golden Ball, Lawrence Lane, London. In 1740 Bradshaw was called back to Manchester through the illness of his father, and after his father's death he found himself in possession of a thriving trade and several thousand pounds. Very quickly (about 1741) he took a London partner, Mr. James Dawson, near the Axe Inn, Aldermanbury, and he married a Miss Waggstaff of Manchester. She and an only child both died in 1743. Bradshaw thereupon threw in his lot with the Pretender. He was one of the rebel courtiers assembled at Carlisle on 10 Nov. 1745. He visited his own city on 29 Nov., where he busied himself in recruiting at the Bell Inn. He was a member of the council of war, and received his fellow-rebels in his own house. Having accepted a captaincy in Colonel Towneley's regiment he marched to Derby, paying his men out of his own purse; he headed his company on horseback in the skirmish at Clifton Moor; he attended the Pretender's levée on the retreat through Carlisle in December; and preferring to be in Lord Elcho's troop of horse when the rebels were striving to keep together in Scotland in the early weeks of 1746, he fought at Falkirk. He was at Stirling, Perth, Strathbogie, and finally at Culloden, on 16 April in the same year, where in the rout he was taken prisoner. His passage to London was by ship, with forty-two fellow-prisoners. He was taken to the New Gaol, Southwark; his trial took place at St. Margaret's Hill on 27 Oct. On that occasion he was dressed in new green cloth, and bore himself somewhat gaily. His counsel urged that he had always had 'lunatick pranks,' and had been driven entirely mad by the death of his wife and child. He was found guilty, and having been kept in gaol nearly a month more, he was executed on Kennington Common, 28 Nov. 1746, aged only 29.

 BRADSHAW, JOHN (1602–1659), regicide, was the second surviving son of Henry Bradshaw, a well-to-do country gentleman,


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 of Marple and Wibersley halls, Stockport, Cheshire, who died in 1654. His mother was Catherine, daughter of Ralph Winnington of Offerton in the same county, who was married at Stockport on 4 Feb. 1593, and died in January 1603-4. The eldest surviving son, Henry, the heir to the family property, was born in 1600. Francis, the youngest son, was baptised on 13 Jan. 1603-4.

John was born at Wibersley Hall in 1602, and baptised at Stockport Church on 10 Dec. in that year. Educated first at the free school of Stockport, he afterwards attended schools at Bunbury, Cheshire, and Middleton, Lancashire. There is a doubtful tradition that he spent some time in his youth at Macclesfield, and there wrote on a gravestone the lines:

He studied law in London, and was called to the bar at Gray's Inn on 23 April 1627. He had previously served for several years as clerk to an attorney at Congleton, and apparently practised as a provincial barrister. He was mayor of Congleton in 1637, and high steward of the borough several years later (Gent. Mag. lxxxviii. i. 328). He formally resigned the office in May 1656. At Congleton he maintained no little state, and possessed much influence in the neighbourhood. He was steward of the manor of Glossop, Derbyshire, in 1630.

'All his early life,' writes Bradshaw's friend, Milton, in the 'Second Defence of the People of England' (1654), 'he was sedulously employed in making himself acquainted with the laws of his country; he then practised with singular success and reputation at the bar.' Before 1643 he had removed from Congleton to Basinghall Street, London, and in that year was a candidate for the post of judge of the sheriffs' court in London. The right of appointment was claimed by both the court of aldermen and the court of common council, and the latter elected Bradshaw on 21 Sept. About the same time the aldermen nominated Richard Proctor, a rival candidate. Bradshaw entered at once upon the duties of the office, and continued in it till 1649, when other employment compelled him to apply for permission to nominate a deputy. Proctor meanwhile brought an action against him in the king's bench. The suit lingered till February 1654-5, when the claim of the court of common council to the appointment was established.

In October 1644 Bradshaw was one of the counsel employed in the prosecution of Lord Macguire of Fermanagh and Hugh Macmahon for their part in the Irish rebellion of 1641. Bradshaw acted with William Prynne, and the latter received much assistance from Bradshaw in his elaborate argument proving that Irish peers were amenable to English juries. The trial resulted in the conviction of Macguire. In 1645 Bradshaw was counsel for John Lilburne in his successful appeal to the House of Lords against the sentence pronounced on him in the Star-chamber for publishing seditious books eight years before. The commons nominated Bradshaw one of the commissioners of the great seal on 8 Oct. 1646, but the lords declined to confirm this arrangement. On 22 Feb. 1646-7 he was appointed chief justice of Chester, and on 18 March following a judge in Wales. In June he was one of the counsel retained (with Oliver St. John, Jermin, and William Prynne) for the prosecution of Judge Jenkins on the charge of passing judgment of death on men who had fought for the parliament. In a letter to the mayor of Chester (1 Aug. 1648) he promises to resume his practice of holding 'the grand sessions' at Chester after 'the sad impediment' of the wars, but only promises attention to the city's welfare on condition of its inhabitants' constant compliance with the directions of parliament (Hist. MSS. Comm. 5th Rep. p. 344). On 12 Oct. 1648 the parliament created Bradshaw and several other lawyers of their party serjeants-at-law.

On 2 Jan. 1648-9 the lords rejected the ordinance of the commons for bringing the king to trial before a parliamentary commission. The commons straightway resolved to proceed on their sole authority. Certain peers and judges had been nominated members of the commission; but the names of the former were now removed (3 Jan.), and those of Bradshaw, Nicholas, and Steele, all lawyers without seats in the house, substituted. On 6 Jan. the ordinance for the trial passed its final stage. On 8 Jan. the commission held its first private meeting in the Painted Chamber at Westminster to discuss the procedure at the trial, but Bradshaw did not put in an appearance. A second meeting took place two days later, from which Bradshaw was also absent. The commissioners then proceeded to elect a president, and the choice fell upon the absent lawyer. Mr. Say filled the post for the rest of that day's sitting, but a special summons was sent to Bradshaw to be present at the meeting to be held on 12 Jan. He then appeared and 'enlarged upon his own want of abilities to undergo so important a charge. … And when he was pressed … he


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 mercy, but he appeared to least advantage as the judge of [q. v.], a royalist charged with conspiracy against the Commonwealth. He sought by repeated cross-examinations to convict Andrews out of his own mouth, and kept him in prison for very many months. Finally Bradshaw condemned him to death on 6 Aug. 1650 ( account of the trial, 1660, reprinted in State Trials, v. 1-42). Bradshaw did not continue, however, to perform work of this kind. His place was filled by Serjeant Keeble in 1651, and by Serjeant 1'Isle in 1654.

Bradshaw found other occupation in the council of state, to which he was elected by a vote of the commons on its formation (14 Feb. 1648-9), and chosen its permanent president (10 March). He did not attend its sittings till 12 March, after which he was rarely absent. No other member was so regular in his attendance. He was in frequent correspondence with Oliver Cromwell during the campaigns of 1649 and 1650 in Ireland and Scotland, and during those years offices and honours were heaped upon him. On 20 July 1649 parliament nominated him attorney-general of Cheshire and North Wales, and eight days later chancellor of the duchy of Lancaster, a post in which he was continued by a special vote of the house on 18 July 1650. On 19 June 1649 parliament, having taken his great merit into consideration, paid him a sum of 1,000l., and on 15 Aug. 1649 formally handed over to him lands worth 2,000l. a year. The estates assigned him were those of the Earl of St. Albans and Lord Cottington. He was re-elected by parliament a member of the council of state (12 Feb. 1649-50, 7 Feb. 1650-1, 24 Nov. 1651, and 24 Nov. 1652), and presided regularly at its sittings, signing nearly all the official correspondence. He was not very popular with his colleagues there. He seemed 'not much versed in such businesses,' writes Whitelocke, 'and spent much of their time by his own long speeches.'

Cromwell's gradual assumption of arbitrary power did not meet with Bradshaw's approval. On 20 April 1653 Cromwell, who had first dissolved the Long parliament, presented himself later in the day before the council of state, and declared it at an end. Bradshaw, as president, rose and addressed the intruder in the words: 'Sir, we have heard what you did at the house in the morning, and before many hours all England will hear it; but, sir, you are mistaken to think the parliament is dissolved, for no power under heaven can dissolve them but themselves; therefore take you notice of that' (, Memoirs, 195). Bradshaw did not sit in Barebones's parliament, which met on 4 July 1653, but an act was passed (16 Sept.) by the assembly continuing him in the chancellorship of the duchy of Lancaster. He was elected [for Stafford] to the next parliament, which assembled on 4 Sept. 1654, but declined on 12 Sept. to sign the 'recognition' pledging members to maintain the government 'as it is settled in a single person and a parliament.' He was summoned by Cromwell before the council of state formed by him on becoming protector, together with Vane, Rich, and Ludlow, and was bidden by Cromwell to take out a new commission as chief justice of Chester. He refused to submit to the order. He declared that he had been appointed during his good behaviour, and had done nothing to forfeit his right to the place, as he would prove before any twelve jurymen. Cromwell did not press the point, and Bradshaw immediately afterwards went his circuit as usual. But Cromwell revenged himself by seeking to diminish Bradshaw's influence in Cheshire. In the parliament which met 17 Sept. 1656 Bradshaw failed to obtain a seat, owing to the machinations of Tobias Bridges, Cromwell's major-general for the county (, vi. 313). There had been a proposal to nominate him for the city of London, but that came to nothing. 'Serjeant Bradshaw,' writes Thurloe jubilantly to Henry Cromwell in Ireland (26 Aug. 1656), 'hath missed it in Cheshire, and is chosen nowhere else.'

Bradshaw was now an open opponent of the government. According to an anonymous letter sent to Monk he entered early in 1655 into conspiracy with Haslerig, Pride, and others, to seize Monk as a first step towards the army's overthrow (, Papers, iii. 185). He was also suspected, on no very valid ground, of encouraging the fifth-monarchy men in the following year. In August 1656 an attempt was made by Cromwell to deprive him of his office of chief justice of Chester. In private and public Bradshaw vigorously denounced Cromwell's usurpation of power, and he is credited with having asserted that if such conduct ended in the Protector's assumption of full regal power, he and Cromwell 'had committed the most horrid treason [in their treatment of Charles I] that ever was heard of' (Bradshaw's Ghost, being a Dialogue between the said Ghost and an apparition of the late King, 1659). Under date 3 Dec. 1657 Whitelocke writes of the relations between Cromwell and Bradshaw that 'the distaste between them' was perceived to increase. During the last years of the protectorate Bradshaw took no part in politics.

The death of the great Protector (3 Sept. 1658), and the abdication of Richard


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 (25 May 1659), restored to Bradshaw some of his lost influence. The reassembled Long parliament nominated him on 13 May one of the ten members of the reestablished council of state who were not to be members of parliament. On 3 June 1659 he was appointed a commissioner of the great seal for five months with Serjeants Fountaine and Tyrrel. But Bradshaw's health was rapidly failing, and on 9 June he wrote to the parliament asking to be temporarily relieved during indisposition of the duties of commissioner of the seal. On 22 July he took the necessary oath in the house to be faithful to the Commonwealth, but was still unable to attend to the work of the office. Matters went badly in his absence. The Long parliament again fell a victim to the army, and on hearing of the speaker's (Lenthall) arrest, 13 Oct., by Lieutenant-colonel Duckenfield on his way to Westminster, Bradshaw rose from his sick bed, and presented himself at the sitting of the council of state. Colonel Sydenham endeavoured to justify the army's action, but Bradshaw, 'weak and extenuated as he was,' says Ludlow, 'yet animated by ardent zeal and constant affection to the common cause, stood up and interrupted him, declared his abhorrence of this detestable action; and telling the council, that being now going to his God, he had not patience to sit there to hear His great name so openly blasphemed.' According to George Bate, his royalist biographer, he raved like a madman, and flung out of the room in a fury (The Lives … of the prime actors … of that horrid murder of … King Charles, 1661). On arriving home at the deanery of Westminster, which he had continued to occupy since his appointment as lord president, he became dangerously ill, and 'died of a quartan ague, which had held him for a year,' on 31 Oct. 1659 (Mercurius Politicus, 31 Oct.) 'He declared a little before he left the world that if the king were to be tried and condemned again, he would be the first man that would do it' (, Desiderata Curiosa, xiv. 32). He was buried with great ceremony in Westminster Abbey (22 Nov.), and his funeral sermon—an elaborate eulogy—was preached by John Howe, preacher at the abbey since 1654 (Merc. Pol. 22 Nov.) Whitelocke describes him as 'a strict man, and learned in his profession; no friend of monarchy.' Clarendon writes of him with great asperity, while Milton's stately panegyric, written in Bradshaw's lifetime (1654), applauded his honest devotion to the cause of liberty. He was not a great man, but there is no reason to doubt his sincere faith in the republican principles which he consistently upheld. He was apparently well read in history and law. According to the pamphleteers, he had built a study for himself on the roof of Westminster Abbey, which was well stocked with books. Charles II, in a letter to the mayor of Bristol (8 March 1661-2), states that Bradshaw's papers, which were then in the hands of one George Bishop, included 'divers papers and writings' taken by Bradshaw 'out of the office of the King's Library at Whitehall, which could not yet be recovered' (Hist. MSS. Comm. 5th Rep. p. 328). Bradshaw is stated to have supplied 'evidences' to Marchmont Needham, when translating Selden's 'Mare Clausum' (, Hist. Libr. iii. 124). He fully shared the piety of the leaders of the parliament, and, in spite of his high-handed conduct as lord president of the commission, does not seem to have been of an unkindly nature. Mr. Edward Peacock found a document a few years ago which proved that Bradshaw, after obtaining the grant of the estates of a royalist named Richard Greene at Stapeley, heard of the destitute condition of Greene's three daughters; whereupon he ordered (20 Sept. 1650) his steward to collect the rent and pay it to them (Athenæum, 23 Nov. 1878). Similarly, on receiving the tithes of Feltham, Middlesex, he issued an address (4 Oct. 1651) to the inhabitants of the parish, stating that his anxiety 'touching spyritualls' had led him to provide and endow a minister for them without putting them to any charge (Athenæum for 1878, p. 689).

On 15 May 1660 it was resolved that Bradshaw, although dead, should be attainted by act of parliament, together with Cromwell, Ireton, and Pride, all of whom died before the Restoration. As early as 3 May 1654 Bradshaw had been specially excepted from any future pardon in a proclamation issued by Charles II. On 12 July 1660 the sergeant-at-arms was ordered to deliver to the house Bradshaw's goods (Commons Journal, viii. 88). On 4 Dec. 1660 parliament directed that the bodies of Bradshaw, Cromwell, and Ireton 'should be taken up from Westminster' and hanged in their coffins at Tyburn. This indignity was duly perpetrated 30 Jan. 1660-1. The regicides' heads were subsequently exposed in Westminster Hall and their bodies reburied beneath the gallows ( Diary, 4 Feb. 1660-1).

Bradshaw married Mary (b. 1596), daughter of Thomas Marbury of Marbury, Cheshire, but had no children. She died between 1655 and