One witness having failed, the prosecution attempted to supply his place by reading a letter written to summon a father of the society to the Jesuit congregation which the provincial had fixed for April 24. But this the Chief Justice would not permit. The letter was from Edward Petre, afterwards confessor to James II, to William Tunstall. It had been found with Harcourt’s papers and did not mention Whitebread’s name at all. The contents might substantiate Oates’ evidence as to the date of the congregation, but they could not conceivably be construed, as the crown lawyers suggested, into evidence touching the prisoners. Scroggs’ opposition prevented the manœuvre, and after a strong warning to the jury he allowed the letter to be read, “to fortify the testimony of Mr. Oates, that there is a general plot: it is not applied to any particular person.”[628] It was now apparent that the crown had only one witness against the two chief of the accused, which in a case of high treason was not sufficient to procure a conviction. Thereupon Scroggs, with the approval of the other judges, discharged the jury of Whitebread and Fenwick and recommitted them to prison.[629] Six months later they were again tried and executed for the same treason. Whitebread then urged that he had been given in charge once, that on the insufficient evidence he should have been acquitted, and that he ought not to be tried again; but the whole court held without hesitation that the objection was baseless.[630] Afterwards this decision was held up to scorn, and has since often been condemned;[631] but it was grounded upon good authority and supported by the general practice of the courts.[632]