towards them because they laboured under many Difficulties as the Tide then ran He therefore desired Sr Robert to call Mr B. by the Name of Johnson That they did hope to bring the Earl's Murder upon the Stage before they could any of those in the Tower to a Tryal That Sr H. Capel had told Mr B. that it was a thing too great for him That Mr B. had been at great trouble and charge about it and that as times went he knew few would have undertaken it besides himself Mr Lewis of Marlborough being called by Mr Braddon witnessed That upon the day of the Earl's Death riding within three or four Miles of Andover fifty two Miles from London between three and five in the Afternoon a man told him for news that he heard the Earl of Essex had cut his Throat and that at his going home to Marlborough the next day he told his Neighbours what he had heard the day before and that they thereupon said It was done but yesterday how could you hear it so soon Mr Feilder of Andover witnessed That upon the Wednesday and Thursday of the Week in which the Earl of Essex dyed it was the common talk of the Town of Andover †Note in like manner it was proved in the Tayal of the Lord Stafford that it was reported at a great distance that Sr Edmundbury Godfrey had murdered himself before it was known at London what was become of him that he had cut his Throat that the Women talked of it as they came in out of the Town and that on the Saturday night in that Week the certain news of it came Mrs Edwards the Boys Mother testified that the Boy came from the Tower and told her that he had seen the King c. and that the Earl of Essex had cut his Throat and then wept and further said That he saw a Razour thrown out at the Window and was going to take it up but a short fat Woman came and took it and went in again that he told her all this weeping and crying and never denyed it till after Mr Braddon had been there and then denyed it upon this occasion when Mr B. came his enquiry put them all into a great damp and after he was gone the Boy being then at School her Husband said to her Daughter Sarah Don't you say any thing to your Brother and when he comes in we will talk to him that her Daughter was grievously affrighted thereat and so amazed that so soon as the Boy came in She told him that there had been a Gentleman to enquire about what he had said and that he thereupon said to her Why Sister will any thing of harm come and upon her answering him That She did not know but it might be her Father and the Family might be ruined he then denyed what he had said but at the same time he came to his Mother and cryed he should be hanged this was also acknowledged by the Daughter Sarah Edwards the Boy 's Sister testified what the Boy had declared of seeing the Razour c. And that She told him upon Tuesday the 17th of July that a Gentleman had been there to enquire about it and that the Boy did thereupon ask her whether any harm would come of it and that upon her answering him that She could not tell he did deny what he had declared That Mr B. came again soon after upon the same day and found them all daunted upon their hearing the Boy deny it and Mr Brad. ask'd him about it bad him speak the Truth telling him * Indeed Jovian Hicks many others of our passively Obedient and Non-Resisting Gentlemen of the Cassock have handled many Texts of Scripture at a very unwarrantable rate to decoy Mankind to the foolish Exchange of their glorious title to Freedom for that of Slavery But we have here the first instance of a Man's preaching up the lawfulness of Perjury from the dreadful Judgment of Heaven upon Ananias Sapphira It was a dreadful thing to be a Lyar and bad him read the 5th of the Acts where he would find that two were struck dead for telling a Lye She further testified that Mr Braddon came the next day the Wednesday about noon and that then her Brother probably having read the 5th of Acts did again own that what he had declared ahout the Razour c. was true that Mr Braddon wrote down what he acknowledged and she further confessed that she told the Boy that his Father would be in danger of loseing his Place The matter pinching at this time the Chief Justice to perplex the Cause and divert from the Evidence fell to hectoring Mr Wallop Counsel for the Defendants a Person of great Integrity and Master of more Law than all the Judges then upon the Bench telling him in a most scurrilous manner that he was zealous for Faction and Sedition as every Man was deemed to be at that Conuncture who was so hardy as to stand up in any honest Cause in that Court and impetuous in the worst of Causes and that his Lordship could see nothing in all this Cause but villany and baseness which in truth to an high degree was most evident in the carriage of the Court and Prosecutors of this Cause and that Mr Wallop should not have liberty to broach his Seditious Tenets there Such the asserting the native Rights of English-men were in that day esteemed by the Bene placito Judges of that Court Mrs Burt then produced by Mr Braddon testified That She was present when Mr Braddon came to speak with the Boy and that he said to him if it be true that you have spoken own it for 't is a dreadful thing to be found in a Lye and that Mr Braddon advised him to read the 5th of Acts and that the Boy then said Sir it is true and what I said I will speak before any Justice of Peace in the World and he then told Mr Braddon the whole Story Jane Lodeman a Girl 13. years old called by Mr Braddon declared that she did not know young Edwards and testified that she saw an hand throw a bloody Razour out of the Earl of Essex's Window and presently after heard two Shriekes or two Groans and saw a Woman come out in a White-Hood but did not see her take up the Razour and she added that she presently told all this to her Aunt Here Mr Solicitor was pleased to sport himself with the Girl by way of Dialogue thus Solicitor Was the Razour bloody Girl Yes Solicitor Very bloody Girl Yes Solicitor Are you sure 't was a Razour or a Knife Girl I am sure 't was a Razour Solicitor Was it open or shut Girl It was open Solicitor What colour was the handle Girl Sir I cannot tell I see it but as it flew out Solitior Was it all over bloody Girl No. Solicitor All but a little speck Girl It was very bloody Then Jeffryes finding the
advantage thereat and would not hear me when I had called to mind that which I am sure would have invalidated their Evidence and tho' he granted some things of the same nature to another yet he granted it not to me my Blood will be also found at the Door of the Vnrighteous Jury who found me Guilty upon the single Oath of an Outlawed man for there was none but his Oath about the Money who is no legal Witness tho' he be pardoned his outlawry not being recalled and also the Law requires two Witnesses in point of Life and then about my going with him to the place mentioned it was by his own Words before he could be Outlawed for it was two Months after his absconding and tho' in a Proclamation yet not high Treason as I have heard so that I am clearly murdered by you and also bloody Mr Atterbury who so insatiately hunted after my Life and tho' it is no profit to him yet through the ill-will he bore me left no Stone unturned as I have ground to believe until he brought me to this and shewed favour to Burton who ought to have dyed for his own Fault and not to have bought his Life with mine And lastly Richardson who is cruel and severe to all under my Circumstances and did at that time without all Mercy or Pity hasten my Sentence and held up my Hand that it might be pronounced all which together with the great one of all * * King James the second by whose Power all these and multitudes of more Cruelties are done I do heartily and freely forgive as done against me But as it s done in an implacable mind against the Lord Christ his Righteous Cause and Followers I leave it to him who is the Avenger of all such Wrongs and hath said I have raised up one from the North and he shall come upon Princes as upon Morter and as the Potter treadeth Clay Isa 41.25 He shall cut off the Spirit of Princes and be terrible to the Kings of the Earth Psal 76.12 And know this also that though you are seemingly fixed and because of the Power in your Hands and a weighing out your Violence and dealing with despightful Hand because of the old and new hatred by impoverishing and by every way distressing those you have got under you yet unless you secure Jesus Christ and his holy Augels you shall never do your business nor your Hands accomplish your Enterprizes for he will come upon you er'e you are aware and therefore O that you will be wise instructed and learn is the desire of her that finds no Mercy from you Elizabeth Gaunt Postscript SVch as it is you have it from her who hath done as she could O is sorry she can do not better hopes you will pitty and cover weakness shortnese and any thing that is wanting and begs that none may be weakned or humbled at the lowness of my Spirit for God's design is to humble and â—baseus that he aloâ—â— may be exalted in this day and I hope he will appear in the needful time and it may be reserved the best Wine tall last as he hath done for some before me none goâ—â—â— to Warfare at his own charge and the Spirit bloweth not only where but when it listeth and it becomes me who have so often grieved quenched and resisted it to wait for and upon the motions of the Spirit and not to murmur but I may mourn because through want of it I honour not my God nor his blessed Cause which I have so long loved and delighted to love and repent of nothing about it but that I served him and it no better Remarks upon the Tryal of Mr Joseph Hayes at the King 's Beath upon an Indictment of high Treason for corresponding with Sr Thomas Armstrong MR Hayes was brought by Habeas Corpus upon the 3d of November 1684 from the Gatâ—â—house and was arraigned upon an Indictment to this effect viz. That he being a false Traytor against the King c the 31st of August in the 31th Year of the King knowing Sr Thomas Armstrong to have constired the death of the King and to have sted for the same did traytorously relieve comfort and maintain him and for his Relief and Maintenance did pay the sum of 150 l. against the duty of his Allegiance c. To this he pleaded Not Guilty Upon the 21st of November 1684 He was brought to Tryal before the Lord Chief Justice Jeffryes Judge Holloway Judge Wythens and Judge Walcot and the Jury being called he prudently challenged the following Persons which if he had not done it is more than probable that he had dyed as poor Colledge did at Oxford Sr Thomas Griffith Richard Ellis Thomas Langham Henry Whistler Nicholas Smyth Thomas Soper Tho. Passenger Henry Minchard Peter Jones William Crowch Peter Devet Henry Lodes William Pownes Charles Gregory William Peele Richard Weedon Thomas Pory Tho. Peircehouse Richard Burden John George John Steventon Robert Watkins George Twine Thomas Short Robert Townshend James Bush Walter Mastors Thomas Larkham Edward Cooke William Fashion John Flowerdew John Greens John Grice Charles Fowler and James Smyth In all 35. The Jury sworn were Samuel Sheppard Daniel Allen Rowland Platt Adam Bellamy Daniel Templeman William Dewart Edward Pigget Tho. Brailesford Edward Cheeke Edw. Vnderwood Robert Masters William Warren It is likely that he would have challenged one if not more of the last four but that he had challenged the number of 35. before these four were called and the Law allowed him not to challenge more Then the Indictment being read Mr Dolben as Counsel for the King opened it to the Jury Mr Attorney General then enforced the Charge thus After Sr Tho. Armstrong had fled the Prisoner relieved and aided him with Money and that after he was Indicted and sued to the Exigent besides a Proclamation followed upon his flight which was a sufficient notice to all the King's Subjects Sr Thomas went by the Name of Henry Laurence beyond Sea by that Name the Prisoner held a Correspondence with him and sent him a Letter dated the 21st of August and tells him he had sent him a Bill of Exchange for 165 l. drawn upon his Brother Israel Hayes who was acquainted with Sr Thomas If it were not for these receiving and nourishing of Traytors they would not lurk at Amsterdam as they do The Letter was taken about Sr Thomas and we shall prove it is the Prisoner's Hand-writing and that Sr Thomas received the Money I hope you will take care But like good Men they took all the care they could to stop the Fountain of Blood that to the scandal of the Nation had too long issued from the Old-Bayly by Convicting this Gentleman to stop the Fountain that issues so much supply to these Traytors that lurk abroad Mr Hayes then affirmed that he never knew Sr Thomas in his life Then the Indictment against Sr Thomas was read which was
time of day or night it was when he came to his House and whether when he came he alighted at the Stables or not and who took his Horse and at what Door he was let in and who let him into the House Saxon said It was just when it began to be dark that he alighted just at the Old Buildings and that the Man that eaine with him took his Horse and he went into the House and brought out a Candle that he never was at the House before and cannot tell which Door he went in at That the Man went with him just to the Door and let him within the Door and he saw no other man but that man till he came into the Room where my Lord and the two Gentlemen were My Lord D. asked him whether no body else but they were there Saxon answer'd No you were so wise you would let no Body be by Mr Attorney then said My Lord We shall give no more evidence at present but shall rest here till We see what defence this Noble Lord will make for himself My Lord Delamere then proceeded saying May it please your Grace and you my Lords It is an Offence of a very high nature for which I am this day to answer before your Lordships yet I thank God I am not affraid to speak in this place because I am not only very well assured of my own innocence but also well assured of your Lordships Wisdom and Justice which cannot be imposed upon or surprized by Instnuations and slorid Har angues nor governed by any thing but the Justice of the Cause I think that in matters relating to the Church and the things injoyned therein few have conformed more in practise than I have done and yet I am not ashamd to say that I have always a ten derness for all those who could not keep pace with me and Charity for those that have out gone me and differed from me tho' never so far nay tho' of a different Religion for I always thought Religion lay more in Charity than Persecution In every publick Trust I was faithful in the discharge of it for I never voted nor spoke in any manner but as my Conscience and Judgment did dictate to me I have always made the Laws the measure of my Loyalty and have endeavoured as far as in me lay to live peaceably with all men This my Lords was not only the dictates of my own Inclination but it was the Principle of my Father and the Lesson that he taught me Whosoever did know him I dare say did believe him to be a good Man For my part I endeavoured always to imitate his Example and that I hope will go very far to vindicate me from the imputation of being inclined to any such Crime as I stand charged with Here have been a great many Witnesses and a great deal of Swearing but little or nothing of legal Evidence to affect me for there is but one Man that faith any thing home and positively against me All the rest are but Hear-says and such remote Circumstances as may be tack'd to any Evidence against any other Person but are urged against me for want of greater matters to charge me with and therefore I hope the produced pressing of these things against me is rather a strong Argument that I am innocent and that there have been mischievous and ill Designs of some against me than that I am guilty Had they had geater matters your Lordships would have been sure to have heard of them My Lord of Nottingham when he sate in the same place that your Grace does now at the Tryal of my Lord Cornwallis speaking to the Peers had this passage I know your Lordships will weigh the fact with all its Circumstances from which it is to receive its true and its proper doom your Lordships are too just to let pitty make any abatement for the Crime and too wise to suffer Rhethorick to make any Improvement of it This only will be necessary to be observed by all your Lordships That the fouler the Crime is the clearer and plainer ought the proof of it to be 3 There is no other * 'T is then great pitty that the Law as to this is not altered and every English man who may have what Counsel he will in a Cause of 40 s. value allowed Counsel when he is concerded for his Life good reason can be given why the Law refuseth to allow the Prisoner at the Bar Counsel in matter of Fact when Life is concerned but only this because the Evidence by which he is condemned ought to be so very evident and so plain that all the Counsel in the World should not be able to answer it My Lords I think the Evidence given against me doth not come up to this and I hope your Lordships will regard this of my Lord Nottingham's as more worthy of your consideration than the fine Flourishings and Insinuations of the King's Council which tend if it be not so design'd rather to misguide your Lordships than to lead you to find out the truth My Lords I shall begin with Saxon for he I perceive is the great Goliah whose evidence is to maintain this Accusation and if I cut him down I suppose I shall be thought to have done my own business I shall first call some of his Neighbours who have conversed with him and know him My Lord Delamere then called Six Witnesses who proved Saxon to be a very ill Man and to have been guilty of Forgeries and several Cheats That being done his Lordship said I shall pass over this part of my Evidence tho' I have many more Witnesses to this point and come to matter of fact to encounter this positive proof against me Saxon has testified that about the 3d or 4th of June he as on extraordinary Person being confided in was sent for by me to Mere where he found me Sr Robert Cotton and Mr Offley who employed him to transact the stiring up the Country to rise and joyn with the D. of M. Now I will prove that Sr Robert was not in Cheshire for several Months both before and after the time he speaks of and I shall prove he was then in London at that time Mr Billing Sr Robert Cotton's Steward testified that Sr Robert came to London the 10th of April last and that he saw him constantly once or twice a day That about the end of July he went for three dayes to Epsam and came to Town again and continued here till he was committed to the Tower and never was in Cheshire since the 6th of April last Margaret Davis witnessed that Sr Robert Cotton came to Town the 10th of April and has not been out of Town any night since except it were in August The Lord High Steward catcht hold of this saying You say he did not go out of Town till †See here the vast difference between this Tryal before an August Assembly
and engaged to him the King should never let the Paper be seen and said this was the time to gain the King's favour It being long ago Mr Row declared these things as he believes and to the best of his Remembrance Mr Robert Yard being examined declared that the Advertisement concerning the Duke of M. which was put into the Gazete was what was handled in Council the day after the Duke came in It was the giving an Account of what passed betwixt the King and the Duke That he had the Paper either from the Lord Sunderland or Sr Leoline Jenkins John Hambden Esq declared himself thus His Case is so twisted with those of the Noble Persons whose Murders you enquire after that he knows not how to speak of theirs without relating his his own and that he looks upon himself almost as much murdered as any of them by reason of his Sufferings My Lord Russell and Col. Sidney were clap'd up in the Tower after which he was sent for and brought into the Cabinet Council or select number of Lords and askt whether he was of the Council of six so the Lord Howard was pleased to call it He saw there the King the Lord Keeper North and Lord Hallifax there were some others present whose faces he did not fee he does not remember a Clerk with them my Lord Keeper asked some Questions and so did the King He was pressed much to confess he claimed the Liberty as an English-man not to accuse himself he was sent to the Tower and made close Prisoner he was kept in the strictest custody for twenty Weeks when he had been there after the Lord R. was executed and a little before Col. Sidney was executed he had an intimation by a private note that there was an intention to try him for a Misdemeanour he was bailed out upon 30000 l. After this it happened the D. of M. came in and had a Pardon but several coming to see him he spoke some things freely which did not please the Court and at the Old Dutchess of Richmond 's he spoke as if those Gentlemen that were put to Death dyed unjustly Whereupon after the King was told this by a Lady he would have him confess his being concerned in the Plot and a Paper was drawn to that purpose which the King would have him sign which he did A Gentleman viz. Sr James Forbes came to him from the Duke with the Copy of the Paper the Duke had signed to own the Plot as soon as he saw it he said it was a Confession 〈◊〉 the Plot and according to the Law then in practise it would hang him because a Paper had been given in evidence against Col. Sidney upon which he was condemned for if a Paper which was said and not proved to be writ by him could supply the place of a second Evidence then a Paper which could be proved to be written and signed by the D. of M. might much more properly be made use of as his Evidence to hang other People He said he was told by Sr James Forbes that the D. was in a manner forced to do it and perswaded and overborne in it by the Lord H. when Sr James Forbes went back the D. was concerned to madness and said if he lived till next day he would have the Paper again and accordingly he went to the King and told him he could not rest till he had it The King with great indignation threw him the Paper and bid him never see his face more and he believes he did not and so the Duke went away and by that he escaped the Tryal then He was told by Mr Waller who is since dead that the Duke's owning the Plot to the King was the cause of Colonel Sidney's death for the King ballanced before He was after this brought to a Tryal for Misdemeanour and was convicted on the Lord Howard's evidence He pleaded Magna Charta that a Salvo Contenemento but the Court fined him 4000 l. and to Imprisonment till the Fine paid and security for the good Behaviour The King made his choice of putting him in Prison and he was committed to the Marshal's House in the King's Bench where he was ten Months He offered several summs of Money and they answered they had rather have him rot in Prison than he should pay the Fine After this they put him in the Common Prison where he was kept ten or eleven Months very close then they contrive a Writ called a long Writ to reach his Real and Personal Estate whilst he was thus a Prisoner After this he heard a new Witness appeared which was after the defeat of the Duke of Monmouth He was sent Close Prisoner to the Tower by the Lord Sunderland's Warrant and put into such a Room where he had no conveniency and with two of the Rudest Warders in the Tower to lie in the Room with him After seven or eight weeks he was removed to Newgate where he was kept close eleven weeks his Friends offered Money for his Pardon to some in power who were the Lord Jefferyes and Mr Petre the summ was 6000 l. and that was effectual It is not possible for a Man to suffer more than he did By the help of the Money on condition he would plead Guilty to his Indictment he was to come off His Friends advised him to it because it could hurt none there being none living of those called the Council of six but the Lord Howard Whereupon pleading guilty he was discharged paying 3 or 400 l. to Burton and Graham for the charge of his Pardon As for the Subject matter of what he confessed * The designing to rise in Arms to rescue the Laws and Liberties of his Country when threatned with destruction no man will think he ought to be ashamed that thinks my Lord Russell was Murdered And he said this was the way that our Ancestors always took when the Soveraign Authority came to so great a height as may be made out by many instances he said Custom had made this the Law of England and that all Civilized and well governed Nations about us had used the same way Notwithstanding his pleading Guilty he hath been very ready to secure the Kingdom and he was one of the two or three Men that received Letters from Holland of this Revolution And he saith he thinks King William's coming into England to be nothing else but the Continuation of the Council of six and if not he desires to be better informed Being asked by the Lord H. how he came to send his Wife to the Man whom he thought was instrumental in obtaining the Paper which he thought endangered his Life He answered did not he send his Wife to the Lord Jefferies Mr Petre and others who should he send to but to those in power and who could help him but those in power He did not think that the Lord H. struck directly at his Life or that his Lordship had any personal
one is to the matter To the Form 1st The general Allegation that he was impeached de alta Proditione is uncertain it ought to have been particularly set out that the Court might judge Whether it be the same Crime and it is not helped by the Averrment 2dly Here is no Impeachment alledged to be upon Record They make a general Allegation that F. Harris was Impeached Impetitus fuit by the Commons before the Lords Quae quidem Impetitio in pleno robore existit prout per Recordum inde c. Now there is no Impeachment mentioned before And quae quidem Impetitio is a relative Clause and no Impeachment being mentioned before in the Plea there is nothing averred upon the Record to be continued or discontinued for Impetitio does not actively signifie the Impeaching or passively the Person Impeached but it signifies the Impeachment the Accusation which is to be upon Record Therefore when they say he was impeached and afterwards alledge Quae quidem Impetitio remains upon Record that cannot be good for the Relative there is only Illusive For the matter of the Plea 't is a Plea to the Jurisdiction of the Court There the point will be Whether a Suite depending even in a Superior Court can take away the Jurisdiction of an Inferiour Court which had an Original Jurisdiction of the Cause and of the Person at the time of the Fact committed I insist upon these Exceptions Mr Williams for the Prisoner then said I take these things to be admitted Mr Attorney having demurred generally 1. That the Prisoner stands Impeached 2. That the Impeachment is now in being 3. That this was done secundum Legem Consuetudiem Parliamenti and being so remains in plenis suis robore effectu And more particularly the Plea refers to the Record for the parts and Circumstances of the Impeachment prout patet per Record So that it refers the Impeachment to the Record and tells you 't is amongst the Records of that Parliament 4. Moreover That the Treason in the Impeachment and the Treason in the Indictment are one and the same and that this Person Fitz-Harris indicted and F. H. impeached are one and the same Person And withal it appears upon the Record that this Impeachment was depending before the Indictment found for the Parliament was the 21st of March and it appears this is an Indictment of this Term And further it appears not by any thing to the contrary in the Record but that this Parliament is still in being and then it must be admitted so to be Whether your Lordship now will think fit in this Court to proceed upon that Indictment is the substance of the Case I think it will not be denyed but that the Commons may Impeach any Commoner before the Lords That was the Case of Tresilian and Belknap in the time of Richard the second Vpon that Impeachment one of them was Executed and the other Banished in Parliament Mr Attorney allows the Parliament to be a Superior Court but says yet the Inferiour Court having Original Jurisdiction of the Person and Cause may proceed notwithstanding an Impeachment in Parliament I will shew how manifestly an Indictment and an Impeachment differ The Case of an Appeal is like the Case of an Impeachment An Appeal of Murder is at the suite of the Party and in this case 't is at the suite of the Commons t is not in the Name of the King but of all the Commons of England So that 't is like an Appeal and not like an Indictment an Indictment is for the King an Impeachment for the People It is not safe to alter the old ways of Parliament 't is out of the road of Comparisons when they will compare an Indictment and an Impeachment together It becomes not the Justice of this Court to weaken the Methods of Proceedings in Parliament Your proceeding upon this Indictment is to subject the Method of their Proceedings there to the Proceedings of this Court It is not fit that the Justice of the Kingdom and the High Court of Parliament should be crampt by the Methods of an Inferiour Court and a Jury The Parliament is the supreame Court and this Court every way inferiour to it and 't will be very strange that the Supreame Court should be hindred here For the highest Court is always supposed to be the wisest and the Commons in Parliament a greater and wiser Body than a Grand Jury of any one County And the Judges in that Court the Peers to be the Wisest Judges Will the Law of England suffer an Examination Impeachment and Prosecution for Treason to be taken out of the Hands of the greatest and wisest Inquest in England And will it suffer the Judicature to be taken out of the hands of the wisest Judges It stands not with the Wisdom of the Law or of the Constitution of the Government Another thing is this the common Argument in an extraordinary Case there is no Precedent for this way of Proceeding 'T is my Lord Cok's Argument 〈◊〉 Coke's Littleton fol. 108. and in the â—th Instit fol. 17. in the Case of the indictment against the Bishop of Winchester and of that against Mr Plowden He says 't is a dangerous attempt for Inferiour Courts to alter or meddle with the Law of Parliaments So in this case in regard it never was done from the beginning of the World till now it being without President there is no Law for it Another mischief which follows upon this is If you take this Case out of the power of the Parliament and bring it into this Court where the Offence may be pardoned you change the method of proceedings which make the Offence without consent of the Prosecutors not pardonable by Law This may be of dangerous consequence to the Publick by giving this Court a Jurisdiction and possessing it of these Causes expose them to the will of the Prince This way of proceeding inverts the Law in another thing 'T is a Principle that no man's Life is to be put twice in danger for the same thing If you proceed upon this Indictment and he be acquitted will that acquittal bind the Lords in Parliament If they may proceed upon the Impeachment then you invade every English-man's right and his Life may be brought in question twice upon the same account I take it to be a Critical thing now at this time to make such attempts as these are There are Lords now that lie under Impeachments of Treason if you goon in this do you not open a Gap that may be a ground to deliver them By the same Justice the Lords may be tryed by another Court This proceeding will have this effect it will stir up a Question between the Jurisdiction of this Court and the Parliament for in probability if this Person be acquirted the Commons and the Lords too will look into it If he be found guilty here is the Power of the Commons in Impeaching and the Jurisdiction of
Fact is an Impeachment of Treason what would They have had us to do or wherein is our fault What would They have had us said We were Impeached of Treason so and so particularizing how can that be There is no such thing Then they would have us said Nul tiel Record and We must have been condemned for failing in our Record then indeed we had been where They would have had us but having done according to our Fact if that Fact will oust this Court of Jurisdiction I see not how we should plead otherwise or what answer they will give to it This must needs be agreed to me If this Impeachment be in the nature of an Appeal surely an Appeal does suspend the Proceedings upon an Indictment for that Fact and so 't is expresly in my Lord Dyer fol. 296. Stanley was indicted and convicted of Murder and before Judgment the Wife brought her Appeal and They moved for Judgment No said the Court here is an Appeal brought They could not go to Judgment till the Appeal was determined So the Stat. 3. H. 7. Cap. 1. and Vaux's Case 4 Rep. 39. If this then be of the nature of an Appeal this Suit ought to have its Course and Determination before you proceed on this Indictment Inferiour Courts have never taken upon them to meddle with the Actions of Superiour Courts but leave them to proceed according to their Laws and if that be done in any Case there will be as much regard had in this great Cause to the Court of Parliament as in others In the Earl of Northumberland's Case Cotton's Records 5 H. 4. fol. 426. He confesses himself guilty of an Offence against his Allegiance the King would have the Justices to consider of it No said the Parliament 't is matter of Parliament and the Judges have nothing to do with it The Lords make a Protestation to this purpose and went on themselves and adjudged it to be no Treason There is that Record more Rot. Parl. 11 R. 2. Pars 1. N. 6. I only offer these things with what my Lord Coke sayes Hath been formerly thought Prudence in the Judges to do So I hope That if the matter be good the form is as good as the matter can be put into and therefore we hope you will allow us the benefit of it The Attorney General argued thus for the King Notwithstanding what hath been said I take it this is a Naughty Plea and there is no matter disclosed therein that we can take Issue upon The great substance of the Arguments of the Prisoners Counsel is against him for 't is least he should escape but he pleads this Plea that he might escape For the Cautions given you what a difficult thing it is for two Jurisdictions to interfeir Fitz-Harris is much concerned in that matter who hath forfeited his Life to the Law yet he would fain live a little longer and is concerned that the Judicature of Parliament should be preserved I observe 't is an unusual Plea It concludes Si Curia procedere vult I wonder they did not put in aut debeat you have no Will but the Law and if you cannot give Judgment you ought not to be pressed in it but it being according to Law that Malefactors be brought to condign punishment We must press it whatsoever the Consequences are It is the Interest of all the Kingdom as well as of the King that so notorious a Malefactor should not escape or the Truth be stifled but brought into Examination in the face of the Sun but They say if it be not Law you will not proceed it ties up your Hands But they give not one Instance to make good what they say Put the Case it had been a good Impeachment he had been arraigned upon it and acquitted and had afterwards come to be Indicted in this Court and would not plead this in Bar but to the Jurisdiction it would not have been a good Plea Then certainly an Impeachment depending singly cannot be a good Plea to the Jurisdiction This Court hath a full Jurisdiction of this Case and of this Person and this you had at the time of the Fact committed What then is it that must oust this Court of Jurisdiction For all the Cases that have been put about matters not originally examinable in this Court make not to the matter in question where the Fact is done out of the Jurisdiction of the Court that may be pleaded to the Jurisdiction but where the Court may originally take Cognizance of it I would know what can oust that Jurisdiction less than an Act of Parliament I will be bold to say the King by his Great Seal cannot do it To say the Proceedings in Parliament ought to be a Bar that is another Case the Party may plead it in Abatement or Bar as the Case requires For the Cases they put the Reasons are that the Court had no Original Jurisdiction There is not one of the Cases cited but where it was out out of the Jurisdiction of the Court originally As for the Case of the five Lords in the Tower I observe the House of Lords removed the Indictments into their House fore-seeing that the King might have proceeded upon them if not removed thither But our Case is quite another thing for those Lords were not fully within your Jurisdiction The Case of 11. R. 2. will be nothing to our purpose at all that was in the Case of the Lords Appellants a proceeding contrary to Magna Charta contrary to the Statute of Edw. 3. and the known Priviledges of the Subject Those proceedings had a Countenance in Parliament and they would be controuled by none nor be advised by the Judges but proceed to the trying of Peers and Commoners according to their own Will and Pleasure And between the time of 11 R. 2. and 1 H. 4. see what Havock they made by those illegal proceedings and in 1 H. 4. these very Lords were sentenced and it was resolved by Act of Parliament That no more Appeals should be any more in Parliament The other great point is this There is nothing at all certainly disclosed to you by this Plea therefore there is nothing confessed by us only the Fact that is well pleaded They say They have pleaded it to be secundum Legem Consuetudinem Parliamenti but I say They must disclose to you what is the Law and Custom of Parliament in such Case or you must take it upon you upon your own knowledge or you cannot give Judgment There are three things to be considered of the Parliament the Legislative part the matters of Priviledge and the Judicial part For the two first both Houses proceed only Secundum Legem Consuetudinem Parliamenti But for the Judicial part they have in all times been guided by the Statutes and Laws of the Land and have been ousted of a Jurisdiction in several Cases as by the Statute of 4 Edw. 3. 1 H. 4. And the Lords
House without Bishopsgate and that she there saw him with a Man that had but one Eye and was full of Pock-holes Burton's Wife then testified that Mrs Gaunt came to enquire where here Husband was and she told her he was at her Daughter 's and Mrs Gaunt told her That if she were willing her Husband should go away she would take care therein and Mrs Gaunt appointed them to meet without Bishopsgate The Lord Chief Justice Jones and Judge Wythens and also the King's Counsel viz. the Attorney the Solicitor General Mr North and Crispe the Common Serjeant rack'd their Inventions to draw Burton and his Wife to charge Mrs Gaunt with the knowledge of his being in a Plot or in the Proclamation but nothing of that could be made out Nor is here any sort of proof that Mrs Gaunt harboured this ungrateful Wretch or that she gave him either Meat or Drink as the Indictment charges her And it must be further noted that here is only the single Testimony of Burton of her giving him Money and sending him away The Evidence being short in this The Chief Justice fell upon the Prisoner with ensnaring Questions demanding of her What was the reason she would send Burton away whether she gave him Money Whether she heard that his Name was in the Proclamation c Here Captain Richardson officiously interposed saying She says she is not come here to tell your Lordships what she did The Chief Justice then sum'd up the Evidence thus Burton sayes this Woman was very solicitous to send him beyond Sea That her Husband being concerned in the Plot and she as Burton believes knowing that he could make some discovery concerning her Husband endeavoured to convey him away It is true there is not direct proof that there was any particular mention that Burton was in the Proclamation but he and his Wife say that they verily believe the Prisoner knew that he was in the Proclamation and she her self being examined says that she might hear that he was in the Proclamation and that his House was searched and he could not be found and yet she conceals him what could be the meaning of this but that she was very zealous to maintain the Conspiracy and was a great Assistant to all concerned in it She will not tell you any other cause why she should be concerned to convey this Man beyond Sea and therefore in all reason you ought to conceive it was for this The Jury being thus sent out and returning Mrs Gaunt desired to be heard declaring that she hoped they would not take any advantage against her and that she had some Witnesses to call But Wythens said It ought not to be done you ought to take the Verdict and so the Jury pronounced her Guilty and Jenner the Recorder passed this Sentence You are to be carried back to the place from whence you came from thence you are to be drawn upon a Hurdle to the place of Execution and there you are to be burnt to Death Mrs Gaunt only said I say this Woman did tell several Untruths of me I don't understand the Law The Sentence was executed upon this Excellent Woman upon Friday then following being the 23d of October 1685. When she left her Murderers the following Memorial Newgate 22d of October 1685. NOt knowing whether I should be suffered or able because of Weaknesses that are upon me through my hard and close Imprisonment to speak at the place of Execution I write these few Lines to signifie I am well reconciled to the way of my God towards me tho' it be in ways I looked not for and by terrible things yet in Righteousness for having given me Life he ought to have the disposing of it when and how he pleaseth to call for it and I desire to offer up my all to him it being but my reasonable service and also the first terms that Christ offers that he that will be his Disciple must forsake all and follow him and therefore let none think it hard or be discouraged at what hath happened unto me for he doth nothing without cause in all that he hath done unto us he being Holy in all his Ways and Righteous in all his Works and it is but my lot in common with poor desolate Sion at this day neither do I find in my heart the least regret of any thing that I have done in the service of my Lord and Master Jesus Christ in favouring and succouring any of his poor Sufferers that have shewed favour to his righteous Cause which Cause tho' it be now fallen and trampled on as if it had not been anointed yet it shall revive and God will plead it at another rate then yet he hath done with all its Opposers and malitious Haters and therefore let all that love and fear him not omit the least duty that comes to hand or lieth before them knowing that Christ hath need of them and expects that they should serve him and I desire to bless him that he hath made me useful in my Generation to the comfort and relief of many distressed Ones that the Blessing of those that have been ready to perish hath come upon me and I have been helped to make the Heart of the VVidow to sing and I bless his holy Name that in all this together with what I was changed with I can approve my Heart to him that I have done his Will tho' I have crossed man's Will and the Scripture that satisfied me in it is the 16th of Isa 3 4. Hide the Out-casts betray not him that wandreth let my Out-casts dwell with thee Obadiah 12.13 14. Thou shouldst not have given up him that escaped in the day of distress But Man saith You shall give them up or you shall dye for it Now whom to obey judge ye So that I have cause to rejoyce be exceeding glad in that I suffer for Righteousness sake and that I am accounted worthy to suffer for well-doing and that God hath accepted any Service from me that hath been done in Sincerity tho' mixed with manifold Weaknesses and Infirmities which he hath been pleased for Christ's sake to cover and forgive And now as concerning my Fact as it s called alas it is but a little one and might well become a Prince to forgive but He that sheweth no Mercy shall find none and I may say of it in the Language of Jonathan I did but taste a little Honey and lo I must dye for it I did but relieve a poor unworthy and distressed Family and lo I must dye for it I desire in the Lamb-like Will to forgive all that are concerned and to say Lord lay it not to their Charge but I fear and believe that when he comes to make Inquisition for Blood Mine will be found at the Door of the furious * * Wythens Judge who because I could not remember things through my dauntedness at Burton's Wife Daughter's witness and my Ignorance took
to kill the King I take God to witness I never had any such design nor ever had a thought to take away the King's Life Neither ever had any man the impudence to propose so barbarous and base a thing to me Mr Nelthorp at his death in 1685 said I can with great comfort appeal to the great God before whose Tribunal I am to appear what I did was in the sincerity of my Heart thinking it my duty to hazard my Life for the Preservation of the Protestant Religion and the English Liberties which I thought invaded and in great danger to be lost As to the design of Assassinating or Murdering the late King or his present Majesty it was a thing I always detested and I never was in the least concerned in it Nor did I believe there was such a design I dye in Charity with all the World and can readily and heartily forgive my greatest Enemies and even those that have been the Evidence against me Mr Rouse declared that he was told that They did not intend to spill one drop of Blood and affirmed that Lee the Witness against him did by his Evidence make him the Author of the very words that came out of his the said Lee's own Mouth Mr Richard Rumbold who at his death at Edenburgh in 1685 was found to be a very brave Man most serious Christian and had been represented as the main Promoter of the Murdering design with his last breath desired all to believe his dying Words and therewith affirmed that he never directly or indirectly intended such a Villany as the death of King Charles the second and the Duke of York but declared that he abhorred the thoughts of so horrid an intention That he was sure this Truth would at the great day be manifest to all Men And he concluded that he dyed in the defence of the just Laws and Liberties of the Nation and said that for that Cause were every Hair of his Head and Beard a Life he would joyfully sacrifice them all and wisht he had a Limb for every Town in Christendom To conclude these solemn serious dying Declarations Protestations and Appeals to the heart-searching God have always out-weighed with me the Evidence of those two or three Witnesses who swore these Persons out of their Lives and by so doing saved their own And I did and do most stedfastly believe that the only Plot in that day was the same which the Almighty has at length owned and most signally prospered in the hand of our gracious August and Rightful Soveraign King William I mean the rescuing the Protestant Religion and the Laws and Liberties of England from a most impetuous Torrent of Popery and Tyranny wherewith they were very dangerously threatned And methinks it should even convert a Tory unless his Brains were pick'd out of his Shull by him who pick'd the Guineas out of his Pocket when he casts his Eye upon that apposite Emphatical Expression in the Observator vol. 2. Number 125. To deal freely with thee TRIMMER I have more Faith in the Words of one dying Traytor under the stroke of Iustice than of twenty Living Errata's PAge 34. last Line read Closet p 63 first line r and he be found p 91 line 9 dele that p 105 l 2. dele us p 151 l 25 r acquainted with p 203 l 5 for with r which p 213 l 20 for it is r its p 241 l 14 r possessed p 247 l 22 r always had p 252 l 25 r every day from that p 253 l 3 r Sr Robert p 277 l 26 r Gold-Finch p 288 l 9 r were not sent