to the Jury one of them demanded whether any one proved the hand that was in that Note The Attorney answer'd No but Everis swears that Sr T. A. shew'd him a Bill subscribed Joseph Hayes for so many hundred Guilders The Common Serjeant said He says it was 160 odd Pounds now the sum of this Note is 161 l. 5 s. which is the change of 150 Guineas Mr North concluded saying We have done at present Mr Hayes then said Here is no body proves this Letter to be my hand positively They only prove it by similitude and comparison and belief I conceive there is but one Witness that that Letter was found in Sr T. A's hands Everis says he saw a Bill had my Name to it Sir you did not know me nor ever saw my hand Everis answered No never in my Life Mr Hayes then said 'T is only an evidence of Reputation he heard it was my Bill you saw no Money paid upon it did you Everis No but I saw a Letter from Mr Israel Hayes that gave some account of it Mr Hayes said All this is but Similitude and Circumstance and I thought in case of Treason there ought to be two Witnesses and hope you will let it be so here here is no evidence but the Letter and that is not two Witnesses There is no body has proved the knowingly in the Indictment that runs that I knew Sr T. A. and his Treason that ought to be proved but I am sure 't is not your Lordship says that the Indictment and the Proclamation are sufficient notice that he was a Traytor that may admit of Counsel to debate it There ought to be Witnesses that could shew me to be concerned with him which no Body in the World can prove or that I ever saw him and that Witness that says he saw the Bill or this Letter does not know that I wrote it There are them that say they heard of Money paid upon this Bill but there is not one of them says he saw any Money paid and these are several Witnesses every one to a several thing Here is no proof but by the East-India Porters and those who say they believe this Eetter to be my hand No body says he saw me write this Letter or had any Correspondence with Sr T. A. If they pretend there was Money paid beyond Sea Is this Indictment well laid for it is laid to be paid in London The payment of Money beyond Sea can be no evidence of the Fact upon this Indictment for the Jury of London are to enquire of matters arising in London only If I am to be tryed for payment of Money boyond Sea the fact should have been laid there and the Tryal were to proceed upon the Statute of 35 H. 8. cap. 2. The Indictment should be taken by Special Commission from the King and the Tryal be in the County that the King should chuse I desire Counsel upon this point Lord Chief Justice No 't is an idle Whim and I would fain know the Counsel that put that foolish Notion into your head Mr Hayes If you will allow me Counsel you shall hear who they are I have been informed the Law is so Chief Justice We are of another opinion If any whimsical Notions are put into you by some Enthusiastick Counsel the Court is not to take notice of their Crochets Mr Hayes proceeded and said The Witnesses are Strangers to me There is is one that has been sworn to whom I have paid several thousands of pounds that says he does not believe it to be my hand then he called Mr Sturdivant who looking upon the Letter said I do not believe it to be his hand I have had dealings with him and he hath given me many Receipts Mr Hayes then said There have been a great many Forgeries and this Letter is forged there have been Forgeries so like that the Persons themselves have not known their own hands Chief Justice Every body knows that a hand may be counterfeited very like in Mr Sidney's Case Mr Wharton a young Gentleman not above one or two and twenty said he could undertake to counterfeit any Man's hand whatsoever Mr Hayes then told the Jury that he was not a Man of that Quality to give Sr T. A. 150 Guineas Chief Justice We all know you have been a very †The resolution in that day was to enslave the City the Nation and every one who was found to withstand it was treated with this sort of Language and then made a Traytor if they found an opportuniry unless by chance as in this case a Jury failed them active Man a busie Fellow about the City as forward a Spark as any I know of a great while I don't know what you talk of your Quality but We know your qualifications you have always been factious and turbulent against the King and the Government Mr Hayes then affirmed that he neither gave nor lent nor returned any sum of Money to this Person and then called Mr Langley who testified that a Letter was Counterfeited and a Bill of Exchange for 450 l. and so exactly like that if he had not known of it before he saw it he must have owned it for his hand and the party that paid the Money paid it in his own wrong for he never drew any such Bill Mr Hayes added Mr Common Serjeant had my Books several dayes in his hands where there is an Account of 20000 l. between my Brother and me and if I would set my hand to such a Letter and Bill and write my Name at length is it not as reasonable that I should put the Name of Laurence in my Books and if it were there it would appear Indeed here is an Account produced of divers parcels of Money disbursed in little sums but I appeal to the Merchants whether ever any Bill of Exchange was ever paid in such parcels No foreign Bill was ever paid by 3 l. or 5 l. or 20 l. at a time it must be paid at the day or it will be protested here is a computation of a sum like to the sum in the Bill but these are Suppositions and not proof Then Mr Hayes called Alderman Jeffryes to speak to his Reputation and Conversation who said that he had known him many Years and never knew any hurt by him The Chief Justice demanded of the Alderman whether he had been at any of the Elections at Guild-hall for Mayors or Sheriffs when Mr Bethel and Mr Cornish and them People were chosen and whether he had seen Mr Hayes there and how he did behave himself * It is true that he was upon every occasion active in the maintenance of the City-Rights and his Lordship and the Common Serjeant had ever been as forward Sparks on the other side that made them so intent upon the destruction of every well deserving worthy Citizen whom they could draw under an Accusation A very forward active Man I will warrant you
in all Writs of Error and matters of Judgment proceed Secundum Legem Terrae and so for Life and Death And there is not one Law in Westminster-Hall as to matters of Judgment and another in the Lords House It is not sufficiently disclosed to you that there is any such thing as an Impeachment depending there 't is only alledged that he was Impeached and so much the New-Books told us but to infer thence that there was an Impeachment carried up and lodged for the same Treason is no consequence And then 't is alledged Quae quidem Impetitio when no Impeachment is before set forth but only that he was Impeached generally When a Record is pleaded in Bar or in Abatement the Crimes ought to be set out to appear the same so are all the Presidents of Cok's Entries 53. Holcroft and Burgh's Case and Watt's and Bray's Case in 41 42 Eliz. Cok's Entries 59. Wrot and Wigg's Case 4 Rep. 45 c. The Record must be set out that the Court may judge upon it and the Record must not be tryed per Pais but by it self Mr Wallop was of opinion that upon this Averment the Jury may try the Fact what a pretty Case would it be that a Jury should judge upon the whole debates of the House of Commons whethere it be the same matter or No I did demur with all the care I could to bring nothing of that in question I take it there is nothing of that matter before you concerning an Impeachment depending before the Parliament but whatsoever was done 't is so imperfectly pleaded that this Court cannot take any notice of it The Soticitor General 's Argument was to this effect The Point in question is whether this Plea be sufficient in point of Law They on the other fide argue the Plea to be good both in matter and form I will not now debate whether Magna Charta which Ordains that every Man shall be tryed by his Peers and the Statute 4 Edw. 3. which says that the Lords shall not be compelled nor shall have power to give Judgment upon a Commoner have sufficiently secured the Liberty of the Subject from Impeachments Nor is it the question before you whether you shall judge of any matter that is a Right or Priviledge of Parliament This is an Indictment for Treason Neither will it be the Question whether an Impeachment depending in the House of Lords against a Commoner by the Commons will bar this Court of its Jurisdiction They say the Commons are the grand Inquest of the Nation and They make their Presntments to the Lords Now when such a Presentment is made 't is worthy consideration whether it be not a Presentment for the King for an Impeachment does not conclude as an Appeal does but contra Ligeantiae suae debitum Coronam digintmem demini Regis so far 't is the King's Suit In an Impeachment the Witnesses for the Prisoner are not sworn neither hath the Prisoner Counsel in matter of Fact as he has in an Appeal at the Subjects Suit The King may pardon part of the Sentence It was so done in Richard the second 's time and in my Lord Stafford's Case but suppose it that 't is the Suit of the People yet that cannot preclude the King from his Suit The Consequence which they urge as such a dismal one will be nothing which is If he should be acquitted here he could not plead auter foitz acquit and so would be twice brought in Jeopardy for the same Offence for it is the same in all Cases of Appeals This is not like the Case of an Appeal for Murder neither for tho' it hath been used discretionarily to stay the Suit of the King and prefer the Subjects Suit it was because the Subject had the nearest concern as the Son in the Death of the Father The reason of that turns quite contrary here in this Case that very reason will have the King's Suit to be preferred for there is no Treason but against the King he has the nearest concern and the wrong is primarily and originally to himself Now for the Objection that if you try this Man upon the same reason you may try the Lords in the Tower Their Case is different and the Lords removing the Indictments against them into Parliament that no Prosecution might be upon them seems to imply that this Tryal may be in this Case for certainly they thought the King's Court might proceed had not the Indictments been removed As to the form of the Plea I conceive 't is not a formal Plea We know here of no form of Pleading an Indictment but what sets forth the Indictment particularly 't is so in all the Presidents I have seen and the law-Law-Books resolve it must be so as Wrott and Wiggs Case But they say there is a difference between their Case and those I put for that 't is the Course of Parliament to Impeach generally so they could not have pleaded otherwise then the Case was This Reason holds rather the other way For if in any Case such a general way of pleading with reference to the Record were to be admitted it were in Case of an Indictment because there is no Indictment but what particularly sets forth the Felony and when produced is capable of being applyed but here if the Record be brought in 't will no more ascertain the matter of the Impeachment then the Plea does already And as the Plea is naught for not setting out the Record so is the Averment insufficient too for the he does averr That the Treason in the Indictment and the Treason for which he was Impeached are one and the same and not diverse affirmatively and negatively yet he ought to have said That the Treason for which he is indicted and the Treason mentioned in the Impeachment it one and the same For if he was Impeached generally without mention of particulars it is impossible to be reduced to a certainty so 't is an Averment of a Fact not capable to be tryed We do think upon the whole matter without entring upon the debate whether a particular Impeachment lodged in the House of Lords does preclude the King from his proceedings We have a good Case upon this Plea for that is not a Question necessary to be resolved tho' it be not granted by the King neither But the Question is whether this be a formal Plea and whether here be sufficient matter set forth upon a Record to bring the other matter into Question and tye up the hands of the Court. Serjeant Jefferies then said I shall only offer one word to the informality of the Plea They cite the Case of the Lords in the Tower as a Judgment for them which seems to be against them for by the Lords removing the Indictments into Parliament They seem to be of Opinion that notwithstanding they were Impeached before the Lords yet there might have been proceedings upon those Indictments had they not been
found the 12th of July and Mr Glover proved a Copy of the King's Proclamation against Sr Thomas dated the 28th of June 1683. Then Ezekiel Everis was sworn and testified that in August 1683 he was at Cleve in Germany with the Lord Grey who went by the name of Thomas Holt and Sr Tho. A. came thither by the Name of Mr Henry Laurence and shew'd him a Bill of Exchange from England upon Mr Israel Hayes in Amsterdam for 160 l. odd Money and that it was for 150 Guineas paid in England and he told him it was drawn by Joseph Hayes and it was signed Joseph Hayes and the Bill was accepted and he saw Israel Hayes his Letter to Sr Thomas by the Name of Laurence which mentioned the sending the said sum to Cleve The Common Serjeant Crispe then delivered a parcel of Letters into the Court and swore that he received them of the Lord Godolphin and they had been ever since in his hands The Lord Godolphin then testified that he received three Letters produced in Court from Mr Constable Mr Chudley's Secretary who told him they were taken about Sr Thomas that one of them without any Name mentioned 150 Guineas returned to Henry Laurence Constable testified that he was present when the Scout of Leyden apprehended Sr Tho. A. and that the Letters were taken out of his Pocket and he himself delivered them to Mr Chudley who sealed them up and sent them by him to the Lord Godolphin Charles Davis testified that taking Boat from Amsterdam to Rotterdam he met Israel Hayes and Sr Tho. A. coming to take Boat and Sr Thomas went with him in the Boat and he told him his Name was Henry Laurence Davis added that he lodged a Month in one Briscowe's House at Amsherdam where there was a Club every Thursday There were Mr Israel Hayes Mr Henry Ireton one Wilmore Emerton Dare and some other English Merchants and he heard them several times abuse the King at the Table The Attorney General then shewed Mr Hayes a Letter saying It may be he will save us the labour of proving it but Mr Hayes disowning it Mr Walpoole was called and Mr Hayes said he was my Servant and went away after a rate that possibly would not be allowed Walpoole testified that he served Mr Hayes almost four Years and three quarters and did believe the Letter to be Mr Hayes his hand Mr Hayes said My Lord in matters of Treason I hope you will not admit of comparison of hands and belief for Evidence The Chief Justice answered Yes no doubt of it Mr Hayes replyed It has not been so in other Cases that have not been Capital as particularly in the Lady Carr's Case The Chief Justice said that is a mistake you take it from Algernon Sidney but without all doubt it is good Evidence Judge Wythens said Comparison of Hands was allowed for good Evidence in Colman's Case Mr Hayes answered That with submission vastly differs Those Letters were found in his own Custody This was not found in my possession but in another Man's and in another Nation Sr John Trevor Counsel for the King said This Gentleman was a Trader with the East-India-Company and made Contracts with them which are entred in their Books We will compare them with the Writing in this Letter The Common Serjeant then called Harman and Brittle and demanded of them where the Books were and they produced them Harman testified that he knew Mr Hayes and that he made several Contracts in 1683 and that he saw him in September 1683 subscribe his Hand to a Book of the Companies shewn to him Brittle testified that he is Porter in the Street to the East-India-Company and that he saw Mr Hayes write his Hand to a Book shown to him Capt. Piercehouse produced a Note Query if not the same Peircehouse in the Pannel of the Jury which he said was Mr H. his and that he supposed it to be his hand and compared it with the hand in the Book and said that he delivered the Goods upon it and Walpoole then said he believed it to be Mr Hayes his hand Then Mr Sturdivant was called and they shew'd him the Letter and he said Here is Joseph Hayes writ but I do not know it to be his Hand The Common Serjeant warmly said that Mr Sturdivant swore he did know Mr H. his hand before the Grand Jury but Mr Sturdivant affirmed the Common Serjeant was under a mistake Then Sr John Trevor called for Mr Hardresse but the * The Common Serjeant as hath been elsewhere observed upon the discovery of Keeling's Plot in 1683 boasted what work that Plot would make when it came into the City We now have him pulling it into the City by Head and Shoulders and find him in this Case appearing and exerting himself in a three or four sold capacity viz. the Manager if not Contriver of this prosecution and a Counsel Solicitor and Witness against the worthy Citizen now designed to destruction Common Sejeant answered That he was out of Town before he could be served with a Subpena Then the Letter was read it was subscribed Joseph Hayes and dated the 31st of August 1683. directed to Mr Henry Laurence senior at Amsterdam and began thus Sir at your desire I have sent you a Bill c. The Letter and the East-India-Books were then shewn to the Jury and to the Prisoner Mr Hayes denyed the Letter to be his Writing and said 'T is very strange I should not know my own hand May not Counsel be admitted to plead Whether comparison of hands and belief are any evidence in Criminal Causer I have been informed it hath been denyed to be evidence The Ch. Justice told him he was under a mistake some body has put it into your Head and pussed you up with a vain Story there is no such thing 'T is a Fiction a meer Whim only said by Mr Sidney and no ground in the World for it Mr Hayes replyed Was it not so in the Case of my Lady Carr there is a Record of that I suppose The Chief Justice affirmed it was not so and said Don't talk of it * It was in Trinity Term 1669. Anno 21 Car. 2. there was no such thing at all Comparison of hands was allowed for good proof in Sidney's Case We must not alter the Law for any Body Mr attorney General said Besides this comparison of hands We shall give an account of the Correspondence of the Prisoner's Brother and that he received the Money of him and then said Mr Common Serjeant Where had you this Papery The Common Serjeant to show his care and zeal in this matter said Pray have a care of the Papers and then gave evidence that he had them from my Zord Godolphin and said This is an Account of the Receipt and Disbursement of the Money Shew it Mr Constable Constable said This is one of the Papers was taken out of Sr T. A's Pocket It being shewn
him leave but he found him very resolute and so fairly took his leave and never came near him more That he believes he might say to Mr North that he had such a power in Mr Smyth to perswade him to tell what he knew That no body besides Mr North either perswaded or advised him to go to Mr Smyth Mr Roger North being examined said that he procured no Order for Sr Ambrose Philips to go to Aaron Symth nor doth he believe he ever had any conversation with him about that matter and he is confident he never delivered him any Order for going to him nor told him that he should find any such Order at the Tower nor to the best of his remembrance knew he of any such Order and that Sr Ambrose Philips mis-remembers if he says he had any such Order from him Sr John Moore being examined said That 't was not he that rejected the Sheriffs but the Court of Aldermen That Mr Papillon was set aside by the Court because Sr John had drunk to Sr Dudly North. That he doth not believe or remember that he had any Orders from Court to drink to Sr Dudly That Secretary Jenkins was often to visit him but never gave him any * Perswasion would do with an easie willing Man Directions That he believes Mr Papillon and Mr Dubois demanded the Poll That he had no direction from Whitehall to reject the Poll but the Court of Aldermen did reject it That the Souldiers were sent to keep the Peace that he remembers not that he either the day before or that morning of the Poll made any promise not to disturb the Poll nor doth he remember what time of the day he went to disturb the Poll Many of the Citizens came to his House and would have him to the Hall telling him the Poll went on tho' he adjourned it which Adjournment he saith was by advice of the Court of Aldermen Mr Normansel and Mr Trotman the Secondaries deposed that Graham and Burton were the Prosecutors of my Lord Russell that Sr Dudly North had the Books from them and returned my Lord Russell's Jury that Juries had usually been returned by the Secondaries and taken out of two three or four Wards but this Jury was taken out of about nineteen VVards That Sr Benjamine Thorowgood returned the Jury upon Alderman Cornish Mr Trotman added that Graham and Burton were also the Prosecutors of Alderman Cornish Mr Perry who had been Clerk to Mr Trotman nine Years deposed That he was not by at the return of my Lord Russell's Jury but he made a Copy of it and is was under Sr Dudly North's hand That he was with Mr Trotman at Sr Benjamine Thorowgood's House who had the Books of both the Compters and he wrote the Names as Sr Benjamine directed him That in common cases the Pannels used to be returned out of two or three Wards Mr Crisp the Common Serjeant deposed The proper Officers swear out of two or three but the Common Serjeant swears out of six so makes some advance towards Sr Dudley North's number that he hath known Juries returned out of six Wards and never out of fewer than four That he was in Court at part of the Lord Ruffell's Tryal That he remembers his Lordship desired he might be heard by Counsel and that they might have time to consider of it but the Court heard them immediately The Gentleman paid too great a deference to the Coure to say they refused my Lord Russell time and therefore expresses it in the tender Words That the Court heard them immediately Sr Dudly North being examined said That he was a Freeman of London and the Lord Mayor drank to him as Sheriff and he took upon him the Office and was 2000 l. out of Purse which he never had again directly or indirectly But he was wellrewarded by being first one of the Commissioners of the Customs and then of the Treasury whereby he was sufficiently reimbursed and rewarded also for the good service he did in his Sheriffalty Sr Dudly went on saying That he impanuelled the Juries for the Sessions when the Lord Russell was tryed That he returned the best * It being Sr Dudley's own Jury and they doing their business to content he treated them at a Tavern after the Verdict given as appears by the Journal of the House of Lords Jury he could without observing any Ward and drew this out of several Wards because they might be the more substantial Men. That to the best of his remembrance Sr Peter Rich concurred in this Jury if he had opposed it he should not have done it That the Juries before were returned by the Secondaries but this being a very * It was indeed a very extraordinary business to murder as valuable a Noble Man as ever drew Breath in England extraordinary business he thought it requisite to take care of it himself That he took no care of what opinion the Jury were of but only that they were substantial Men yet he cannot shew one Man called a Whigg returned on the Jury That he had no order or directions from any Man * Note his Brother the Lord Keeper was now mination alive to take care of this business Sr Peter Rich declared That he was never asked in his whole year to impannel a Jury and that he never impanneled any or signed any Pannel to his knowledge and sayes positively that the Books were sent to him by the Secondaries and that he never saw the Pannel of my Lord Russell's Jury till he heard it read in Court That the usual practise of the return of Juryes in London is by the Secondaries Sr Benjamin Thorowgood being examined said that he was Sheriff at the time when Mr Cornish suffered That the two Secondaries brought him the Books That he knows not out of how many Wards the Jury was returned but he thinks out of most of them and he believes it to be the Custom to return the Jury so But the Secondaries swear the contrary That he thought it a piece of justice in him to see the Jury fairely returned being the Gentleman to be tryed had been one of his Predecessors That the Jury were of the sufficientest This is Sr Benjamine's opinion that the substance as well as the honesty of the City was got into Tory Hands the Jury being all of that stamp but to let their honesty alone the contrary is as evident as to the ability of more than one of these Jury-Men as 't is that Juryes were wont to be taken out of most of the Wards ablest and honestest Men of the City of London and he believes all the Men that served of the Jury were those he returned Mr Henry Cornish being examined deposed that his Father was kept close from his Commitment to the day of his Tryal and Captain Richardson would admit none of his Friends to come to him That he went to Normansel the Secondary for a Copy of