not to be found That very Night my Lords this same Brand and Disney they meet this Noble Lord my Lord Delamere at the Coffee-House and give him an Account of the Messages And as soon as ever he had received the Message upon that Twenty-Seventh of May at Ten of the Clock at Night does my Lord Delamere dispatch out of Town with only one Servant to attend him and Two other Friends that he had pick't up or appointed to meet him and go with him With all these Badges of Plot and Design does my Lord Delamere set out that Night It was the same Night that Jones came to Town It was late at Night He changed his Name and went by the Name of Brown He chose to go all the By-roads and would not keep the High-common-road and went with great speed as We cannot but presume according to the Message delivered by Jones on purpose to repair into Cheshire And if your Lordships please to observe You will find several remarkable Instances of Plot and Contrivance in the matter First That a Nobleman and one of 10 considerable a Character in his Country as my Lord Delamere should make such haste out of Town with 10 small an Equipage as but one Servant Then That he should go so late at Night Again That he should change his Name and That should prove to be a Name not casually taken up as the first Name he could think of next his own but a Name of distinction that he was known by among all his own Party For all the Communications between the Confederates and Him were managed as to Him under the Name of Brown By that Name several of the late Duke of Monmouth's Trayterous Declarations were sent for which were to be sent to him or by him into Cheshire And that alone with Submission my Lords would be a shrewd Circumstance of Suspicion that a Noble Lord such an one as my Lord Delamere should assume the Name of a Commoner and post out of Town so ill accompanied in a Disguise at that time of Night especially the Parliament being then Sitting as really it was But besides all this Circumstantial Evidence We shall prove by Positive Testimony what the hasty Business was that made my Lord undertake this Journey in this manner For having notice of the Duke of Monmouth's Intention to Land speedily in England when he comes into Cheshire he actually sets about the Work to put that County in a forwardness to assist in the Rebellion endeavours to stir up the People to joyn with him and acquaints One that he imployed in that Affair with the whole Design that he was engaged to raise so many Thousand Men and so much Money to be ready by such a Day Nor does my Lord rest here But after the Duke of Monmouth was Landed in the West to corrupt the Minds of the People We shall prove what Discourses he had and these will testifie his Inclinations to the Cause concerning the great Victories he had obtained over the King's Forces and how he applauded his Conquests My Lords We shall plainly shew You all this that I have opened in plain Proof And then We shall submit it to your Lordships Judgments Whether this Noble Peer be Not Guilty as he has Pleaded to his Indictment Lord H. Steward Call your Witnesses Mr. Attorney Who do You begin with Mr. Att. Gen. My Lord Howard of Escrick We desire he may be first sworn Which was done Lord H. Steward Well What do You ask my Lord Howard Mr. Att. Gen. My Lord I call You to give an Account what You know of a Design of an Insurrection that was to have been and in what Parts and what share Cheshire was to have had in it in the late King's Time Lord H. Steward You hear the Question What say You to it my Lord Lord Howard My Lord I am to direct my self to speak to what was done in the late King's Time For as to that Noble Lord at the Barr I have nothing to say against him Lord H. Steward My Lord Howard If I apprehend Mr. Attorney aright You are not called as a particular Witness against my Lord Delamere but only to give an Account what was agreed upon in any Consultations where You were present in the late KING's Time about a Conspiracy for an Insurrection Lord Howard If so my Lord then I am called not to be an Evidence against my Lord Delamere but against my Self that is to repeat what I have often delivered at several Tryals in the Courts of Justice and which I must always repeat with Shame and Confusion for my Guilt as I cannot but always reflect upon it with Sorrow and Horror But if it be for the Service of His Majesty and this Honourable Court for me so to do I shall endeavour to comply with it and repeat it as well as I can by the Assistance of a broken Memory it being an Account of Things done several Years past and from a Memory interrupted by such Accidents as are very well known and as have disabled me to make a more distinct and particular Relation before so great an Auditory My Lords I suppose it will be expected I should begin my Account with the Occasion and Ground and the Time when those Things happened Lord H. Steward Take your own Method my Lord. Lord Howard Truly my Lord I am not able to fix the particular Time unless You will give me leave to reckon the Years by the Sheriffs of London as the Romans used to do theirs by their Consuls for I have no other means of computing the exact Time Lord H. Steward Pray my Lord tell the Times as near as you can and use what Helps for your Memory you think best Lord Howard My Lords It was in that Year when Mr. Shute and Mr. Pilkington were Sheriffs for the City of London And at that Time it is well known how great Heats did arise upon the Contests that were in the City about Election of Officers for the Year ensuing Mr. Attorney General May it please your Grace My Lord Delamere seems to be faint with standing If your Grace please a Chair may be provided for my Lord to sit in Lord H. Steward Ay by all means Let a Chair be provided for my Lord to sit down Go on my Lord. Lord Howard My Lord I was saying that the Contests about the disputed Election of Sheriffs had occasioned such heats in the City of London and other Places that it was even beyond the common expressions of discontent I knew nothing of any particular Design there was in hand till about six weeks after when Captain Walcot came to me a Person I had known some time before and upon discourse acquainted me that he had found out that there were some persons engaged in a considerable Action that was near its execution and that in order to it he had had notice given him to make preparation and thereupon he had thought fit for that reason
convict you if you be guilty But my Lord if you are conscious to your self that you are guilty of this heinous Crime give Glory to God make amends to his Vicegerent the King by a plain and full discovery of your Guilt and do not by an obstinate persisting in the Denial of it provoke the just indignation of your Prince who has made it appear to the World that his Inclinations are rather to shew Mercy than inflict Punishments My Lord attend with patience and hear the Bill of Indictment that hath been found against you read Read the Bill of Indictment to my Lord. Cl. of Cr. Henry Baron of Delamere Hold up thy hand L. Delamere My Lord I humbly beg your Grace would please to answer me one Question whether a Peer of England be obliged by the Laws of this Land to hold up his hand at the Bar as a Commoner must do and I ask your Grace this question the rather because in my Lord Stafford's Case it was allowed to be the priviledge of the Peers not to hold up their hands L. H. Steward My Lords this being a matter of the priviledge of the Peerage it is not fit for me to determine it one way or th' other but I think I may acquaint your Lordships that in point of Law if you are satisfied this is the Person indicted the holding or not holding up of the hand is but a Formality which does not signifie much either way L. Delamere I humbly pray your Grace's direction in one thing farther whether I must address my self to your Grace when I would speak or to your Grace with the rest of these Noble Lords my Peers L. H. Steward You must direct what you have to say to me my Lord. L. Delamere I beg your Grace would please to satisfie me whether your Grace be one of my Judges in concurrence with the rest of the Lords L. H. Steward No my Lord I am Judge of the Court but I am none of your Tryers Go on Cl. of Cr. HEnry Baron of Delamere thou standest Indicted in the County Palatine of Chester by the name of Henry Baron of Delamere of Mere in the said County of Chester For that thou as a false Traytor against the most Illustrious and most Excellent Prince James the Second by the Grace of God of England Scotland France and Ireland King thy natural Lord not having the fear of God in thy Heart nor weighing the duty of thy Allegiance but being moved and seduced by the Instigation of the Devil the cordial Love and true due and natural Obedience which a true and faithful Subject of our said Lord the King towards him our said Lord the King should and of right to bear wholly withdrawing and contriving practising and with all thy might intending the Peace and common Tranquillity of this Kingdom of England to disquiet molest and disturb and War and Rebellion against our said Lord the King within this Kingdom of England to stirr up move and procure and the Government of our said Lord the King of this Kingdom of England to subvert change and alter and our said Lord the King from the Title Honour and Kingly Name of the Imperial Crown of his Kingdom of England to depose and deprive and our said Lord the King to Death and final Destruction to bring and put the fourteenth day of April in the first Year of the Reign of our said Lord James the Second now King of England c. and divers other days and times as well before as after at Mere in the County of Chester aforesaid falsely maliciously devilishly and traiterously with divers others false Traytors and Rebels to the Jurors unknown didst conspire compass imagine and intend our said Lord the King thy supreme true and natural Lord not only from the Kingly State Title Power and Government of his Kingdom of England to deprive and cast down but also the same our Lord the King to kill and to Death to bring and put and the antient Government of this Kingdom of England to change alter and wholly to subvert and a miserable slaughter among the Subjects of our said Lord the King throughout his whole Kingdom of England to cause and procure and Insurrection and Rebellion against our said Lord the King within this Kingdom of England to procure and assist and the same thy most wicked most impious and devilish Treasons and traiterous compassing Imaginations and purposes aforesaid to fulfil and bring to effect thou the said Henry Baron of Delamere as a false Traytor then and there to wit the said fourteenth day of April in the first year abovesaid and divers other days and times as well before as after at Mere aforesaid in the County aforesaid falsly unlawfully wickedly and traiterously with Charles Gerrard Esq and other false Traytors to the Jurors unknown didst assemble thy self gather together consult and agree to raise and procure divers great summs of Money and a great number of armed men War and Rebellion within this Kingdom of England to levy and make and the City of Chester in the County of the same City as also the Castle of our said Lord the King of Chester at Chester in the County of Chester aforesaid and all the Magazines in the same Castle then being to enter take seize and surprise and into thy possession and power to obtain and that thou the said Henry Baron of Delamere afterwards to wit the 27th day of May in the first Year abovesaid falsely unlawfully wickedly and traiterously didst take a Journey from the City of London unto Mere aforesaid in the County of Chester aforesaid thy traiterous purposes aforesaid to fulfil and perfect And that thou the said Henry Baron of Delamere afterwards to wit the fourth day of June in the first Year abovesaid at Mere aforesaid in the County of Chester aforesaid in further prosecution of thy unlawful most wicked and traiterous purposes aforesaid divers Liege People and Subjects of our said Lord the King to the Jurors unknown with thee the said Henry Baron of Delamere and the aforesaid other false Traytors to the Jurors unknown falsely unlawfully and traiterously in the War and Rebellion aforesaid and in thy traiterous purposes aforesaid to join and adhere didst excite animate and perswade against the duty of thy Allegiance against the Peace of our said Lord the King that now is his Crown and Dignity and against the form of the Statute in that case made and provided How say'st thou Henry Baron of Delamere art thou Guilty of this High Treason whereof thou standest Indicted and hast been now Arraigned or not Guilty L. Delamere My Lord I humbly beg the Indictment may be read again L. H. Steward Let it be read again Which was done L. Delamere May it please your Grace I humbly beg the favour to be heard a few words before I plead to this Indictment L. H. Steward My Lord Delamere I am very unwilling to give your Lordship any interruption but
gathered up agen and therefore unless the Case be very clear against me you I am sure will not hazard the shedding of my blood upon a doubtful Evidence God Almighty is a God of Mercy and Equity Our Law the Law of England is a Law of Equity and Mercy and both God and the Law require from your Lordships Tenderness in all Cases of Life and Death and if it should be indifferent or but doubtful to your Lordships which upon the Proofes that I have made I cannot believe it can be whether I am innocent or guilty both God and the Law require you to acquit me My Lords I leave my Self my Cause and all the Consequences of it with your Lordships And I pray the All-Wise the Almighty God direct you in your Determination Lord High Steward Have you any thing more to say My Lord Lord Delamere No My Lord. Lord High Steward Then Mr. Attorney and you that are of the Kings Counsel What have you to say more Mr. Soll. General May it please your Grace and you my Noble Lords the Peers of my Lord Delamere the Prisoner at the Barr. The Evidence that hath been given against this Noble Lord is of two Natures part of it is positive Proof and part is circumstantial and though it be allowed that there must be two Witnesses in Cases of Treason and that Circumstances tho never so strong and sufficient to fortify one positive Proof do not nor can make a second positive Witness Yet I crave leave to say that there may be Circumstances so strong and cogent so violent and necessary to fortify a positive Testimony that will in Law amount to make a second Witness such as the Law requires My Lords I do not say every Circumstance will do it but such as necessarily and violently tending to the same thing that was positively proved As for Example If a man comes and Swears against another that he said he will go immediately and kill the King and another man that did not hear those words comes and testifies his Lying in wait that circumstance of Lying in wait that was an action indifferent in it self yet when applyed to the positive Proof will be a second witness to satisfie the Law which requires two witnesses in Treason It must confess My Lords when we will make Circumstances to be a second Evidence they must be such as are necessarily tending to fortifie the positive Evidence that was given by the single Witness Now whether that be so in this Case I must as becomes me leave to your Lordships Consideration It is not my business to carry the Evidence further than it will go and I am sure it is not my duty to let it lose any of its weight and if it have not that force it ought to have I should be to blame as not having done what belongs to me to do I will therefore state the Fact to your Lordships plainly as it stands upon the Proof and submit the whole to your Lordships Determination My Lords Our positive Proof with which I crave leave to begin is but by one single Witness and that is Saxon and his Evidence is this That being in Cheshire where he lives he was sent for about the 3 d or 4 th of June last to my Lord Delamere's House at Mere and there he was brought into a Lower Room where he saw my Lord Delamere Sir Robert Cotton and Mr. Crew Offley That my Lord Delamere told him he had received a Message lately by one Jones that was sent from the Duke of Monmouth whereby he understood that the Duke would speedily be in England and that they must provide Men and Arms to assist him when he came That he was a Man recommended to them by my Lord Brandon and that upon his recommendation they had thought fit to intrust him in the matter and withal told him They were to raise 40000 l. and 10000 Men in that County He tells you likewise these Gentlemen gave him 11 Guineys and 5 l. in Silver to go of an Errand for them to the Duke of Monmouth which he undertook to do and hired a Horse to that purpose This My Lords is the positive Proof and this I must acknowledge standing-single and by it self will make but one Witness but whether the Circumstances that have been offered to your Lordships by the other Witnesses be such violent Circumstances as necessarily tend to fortifie and support that positive Evidence and so will supply the defect of a second Witness is the next question that I come to consider and I shall take them into consideration in the same order that the Evidence was delivered The first step My Lords that was made as to any Evidence that toucheth this Noble Lord at the Bar was what was testified by my Lord Gray for as to the other part of the Evidence that related to the Conspiracy in general I need not trouble your Lordships with the repetition of it that there was such an one is notoriously known but I say that part of the Evidence in his History of the Conspiracy which my Lord Gray brought home to my Lord Delamere was this That upon the first Meetings and Consultations it was resolved upon That the Duke of Monmouth should go into Cheshire to make an Interest there and among the Persons that he was directed to go to and to apply himself to for advice there as Persons fit to be trusted this Noble Lord was one That upon the Duke of Monmouth's Return out of Cheshire he did give his Confederates here in Town an Account how well he had been received and that he liked all things very well there This my Lords is the first Circumstance offered that has been to you to shew that he had a Confidence in my Lord Delamere as a Principal Support of his Designs at that very time The next thing that we offer is this Message of Jones's and for that our Evidence has fully and plainly made it out to your Lordships That Jones did go over into Holland and his Business there was an Errand from Disney and Major Wildman and the Confederates here The effect of his Message was That it was their Opinion That the Duke of Monmouth should go for Scotland and joyn with my Lord Argyle but upon the Receipt of the Message he being angry said It was too late for such a Message now and he would come into England for he was ready to Sail and thereupon he did send this same Jones back again into England upon a Message to inform the Lords and others of his Party among whom my Lord Delamere was one That he would have them betake themselves into their several Countries and not stay to be taken or clap'd up here for that he did understand was the design and this Message was delivered in Writing now that the Duke of Monmouth did write a Note and give it to Jones is verified by my Lord Gray's Testimony too and this was Sealed
according to the Methods of Law which must be observed in your Case as well as all others You must plead to the Indictment before you be heard to any thing else L. Delamere May it please your Grace I have something to offer to your Grace's and their Lordships consideration which is a matter of Law L. H. Steward I know not what matter of Law you have to offer If you have a mind to demur to the Indictment you may L. Delamere Will your Grace please to hear what I have to say and then I shall submit it to your Grace's Judgment L. H. Steward I would hear what you have to say my Lord with all my heart if I could But I must then pass by all the Forms and usual Methods of proceeding and that without any advantage to you too and that I suppose your Lordship will not desire of me Ask my Lord Whether he be guilty or not guilty Cl. of Cr. How sayst thou Henry Baron of Delamere Art thou guilty of this High Treason whereof thou hast been indicted or not guilty L. Delamere I beseech your Grace to hear me what I have to say I shall not detain your Grace very long but I beg your Grace to hear me L. H. Steward My Lord Delamere I must keep you to the known Rules and Methods of Law This is not your time to speak but to plead in your proper time you shall be fully heard whatsoever you have to say L. Delamere If your Grace please I have something to say which concerns all the Peers of England in point of Right L. H. Steward My Lord you must either plead or demur to this Indictment that is the usual Practice before any thing else can be done L. Delamere My Lord I have a Plea to offer to your Grace and my Lords and it is with reference to the Priviledg and Right of the Peers of England L. H. Steward If you have any Plea to offer it must be received my Lord. L. Delamere My Lord amidst the hardships I have lain under by my frequent Imprisonments and close Confinement L. H. Steward My Lord Delamere You must keep up to the Legal Method of Proceedings In Cases of this nature I would as far is possible for me to do indulge a Person of your Quality and in your condition but withal I must do right to the Court and not permit any Breach to be made upon the Legal Course of Proceedings You must plead or demurr to the Indictment before you are heard to say any thing L. Delamere Will your Grace be pleased to hear me tell you my Reasons why I offer you a Plea of this nature to the Indictment L. H. Steward My Lord if you have any Plea put it in L. Delamere Will your Grace be pleas'd to accept it as I have done it It may be it is not so formal because I have had no Councel allowed me to peruse and sign it But as it is I here offer it to your Grace's consideration L. H. Steward Ay put it in Then it was delivered to the Clerk L. H. Steward Read it Cl. of Cr. The humble Plea of Henry Lord Delamere to the Indictment of High Treason against him now to be tryed by the Lord High Steward and Peers here assembled THE said Lord Delamere saving to himself all benefit of Advantage of any further or other matter of exception to the Generality Incertainty or Insufficiency of the said Indictment and all matters and things which do or may concern the same for Plea hereunto saith That he was by his Majesty's Writ Summoned to this present Parliament which began the Nineteenth Day of May last and attended his Duty there as a Peer of this Realm That for High Treason supposed to be committed by him during the Sitting of the same Parliament he was the Twenty sixth Day of July last committed by Warrant of the Earl of Sunderland one of his Majesty's Principal Secretaries of State to the Tower of London That the Peers in Parliament assembled taking Notice by his Petition of the Ninth of November last of his being absent from his Attendance in Parliament sent a Message to his Majesty to know the reason why he the said Henry Lord Delamere a Peer of that House was absent from his Attendance there Upon the Tenth Day of November last the Lord Treasurer reported his Majesty's Answer to the said Message viz. That the said Lord Delamere was absent from his Attendance in Parliament because he stood committed for High Treason for levying War against the King this last Summer testifyed upon Oath and that his Majesty had given directions that he should be proceeded against with all speed according to Law The House of Peers not being satisfied with this Answer the Debate thereof was adjourn'd till the Monday morning following On which Day the Lords resuming the Debate concerning the Lord Delamere and the King's Message after some Debate the Lord Chancellour by his Majesty's Command gave the House an account what Proceedings had been against the Lord Delamere since his Majesty's Answer to their Address concerning his absence from the House which was to this Effect That the King had given Order for a speedy Prosecution of him That the Treason whereof he was accused was committed in Cheshire and that being a County Palatine the Prosecution ought to be there and not in the King's Bench as it might be if the Treason had been committed in another County and that therefore his Majesty had given Order for a Commission of Oyer and Terminer into Cheshire in order to the finding of an Indictment against him for the said Treason And that accordingly a Commission of Oyer and Terminer was already sealed and if the Indictment be not found before the end of the Term the said Lord Delamere's Prayer being entred in the Kings's Bench he should be Bailed All which Proceedings do more fully appear in the Journals of the said House of Peers to which the said Henry Lord Delamere doth refer himself Afterwards that is to say upon the 〈◊〉 Day of 〈◊〉 the said Parliament was Prorogued by his Majesty unto the Tenth Day of February next as by the said Journals it doth also appear Upon all which Matters the said Henry Lord Delamere doth humbly tender this his Plea to the Jurisdiction of your Lordships in this Cause and doth humbly conceive your Lordships ought not to proceed in the Tryal of him upon the Indictment of High Treason now before you And that for these following Reasons First Inasmuch as it appears by the said Petition of the said Henry Lord Delamere and the several Orders of the Lords and the King's Answers to the Message of the Lords thereupon That the said House are already possessed of his said Cause which is for the same supposed Treason for which he was at first committed and which is the same Treason for which he now stands indicted before your Lordships And for this Reason your Lordships as
he humbly conceives by the Law and Custom of Parliament which is part of the Law and Custom of the Land ought not to proceed against him upon the said Indictment but his said Cause ought wholly to be determined and adjudged in the said House of Peers and not elsewhere as in like Cases has been formerly done Secondly Whereas it is the Right and Privilege of the Peerage of this Realm That no Peer thereof ought to be tryed or proceeded against for High Treason during the continuance of the Parliament except in the said House of Peers and before the whole Body of the Peers there And whereas the aforesaid Parliament is now continuing by Prorogation until the tenth day of February next abovesaid the said Henry Lord Delamere humbly conceives that by the Law and Custom of Parliament hitherto used which is part of the Law and Custom of the Realm he ought not nor can be tryed before your Lordships for the said Treasons because the said Parliament is still continuing and not dissolved And lastly The said Henry Lord Delamere doth further say That he is the same Henry Lord Delamere mentioned in the Commitment Petitions Messages Answers and Indictment now read unto him and the said Treason for which he was committed is the same Treason mentioned in the Commitment Petition Messages Answers and Indictment as aforesaid To which said Indictment he humbly conceives he is not bound by Law to make any further or other Answer L. Delamere May it please your Grace and you my Noble Lords I do not offer this Plea out of any diffidence or distrust in my Cause nor out of any dislike I have to any of your Lordships that are here Summoned to be my Tryers I cannot hope to stand before any more just and Noble nor can I wish to stand before any others but your Grace and my Lords will pardon me if I insist upon it because I apprehend it a Right and Priviledge doe to all the Peerage of England which as it is against the Duty of every Peer to betray or forgoe so it is not in the power of any One or more to wave it or give it up without the consent of the whole Body of the Peers every one of them being equally interested This my Lord I humbly demand as my Right and Priviledge as a Peer of England and submit to the direction of your Grace and my Noble Lords L. H. Steward What say you to it Mr. Attorney Mr. Attor General May it please your Grace This Plea that is here offered by this Noble Lord is a Plea to the Jurisdiction but with submission it needs very little answer for it has very little in it The Force of the Plea is That he ought to be tryed by the whole Body of the House of Peers in Parliament because the Parliament is still continuing being under a Prorogation and not dissolved and because there was some agitation of the matter concerning this Prosecution upon his Petition in the House of Lords and therefore it concludes That he ought not to be tryed by your Grace and these Noble Lords upon this Commission but by all the Lords in Parliament With submission my Lord This is contrary to all the antient Precedents and against the known Rules of Law for the Law is If the King pleases to try a Peer in Parliament then the Record may be brought into the House and there they proceed as in other Cases and all the Peers are Judges Thus it is in the time of a Session of Parliament but if the Parliament be prorogued there are many instances and indeed none to the contrary that after a Prorogation the Proceedings are before the High Steward by Commission And as to the other part of the Case I have this to say to it That there is nothing at all depending in the House of Lords that can oust this Court of the Jurisdiction for there was not so much as any Indictment returned there no nor so much as found during the Session of Parliament All the agitation was only upon my Lords Petition and the King's Answer that he intended as speedy a Prosecution as could be Besides my Lord your Grace sees it is a Plea in paper and in English without any Councels hand and therefore I hope your Grace does not expect that I should formally demur to a Plea in this form and that contains no more of Substance in it But I must desire your Grace to over-rule it and that the Prisoner may plead in chief L. Delamere My Lord I humbly pray that I may have Councel assigned me to put my Plea into Form and to argue the matter of it L. H. Steward My Lord Delamere I am sure I ought and ever shall be as tender of the Priviledges of the Peers of England as any other Person whatsoever For I am concerned as well in interest as inclination so to be having the honour to be one my self But I know your Lordship will not think the Priviledge of the Peers is concerned in this matter nor will your Lordship I dare say insist upon matters that are purely dilatory if your Lordship be satisfied that they are so And therefore give me leave my Lord to mind you of a few things whereby your Lordship will easily see That the chief things on which you insist are grounded upon mistakes First You say The House of Peers was possessed of the Cause which could not be and I will tell you why Because there was no Indictment ever removed thither or lodged there Which plainly proves that the Lords were never possessed of the Cause Nor indeed was the Bill found upon which you are now arraigned till after the Prorogation of the Parliament So that they could never come to be possessed of this matter These are mistakes in Point of Fact and your Lordship cannot but well know them to be so And there is as great a mistake in the Law That during the continuance of a Parliament though it were prorogued yet if not dissolved a Peer cannot be tryed but by the House of Lords This certainly is a very strange Doctrine and is not only against the reason and methods of Law but contrary even to your Lordships own experience For your Lordship cannot but very well remember that during the continuance of the Parliament after a Prorogation the Lord Cornwallis was tryed before the High Steward and such a number of Peers as were then summoned upon such a Commission as I now sit here by But indeed during the Sitting of the Parliament then all the Peers are both Tryers and Judges as was in the Cases of my Lord Stafford and my Lord of Pembroke they being a Court of Judicature then actually sitting and therefore this Plea is grounded as upon mistake in Fact so upon a mistake in point of Law So that though as I said at first it is both my duty and interest to preserve the priviledges of the Peers yet I must take
care that no injury be done to the Law and truly I take this Plea to be altogether dilatory and I suppose your Lordship is satisfied of it and will not insist upon it L. Delamere If your Grace please It was alledged and agreed in the Case of my Lord of Bristol that the Cause of a Peer in time of Parliament properly belong'd only to the House of Lords And that which possessed the House of Lords of his Case was as I apprehend no more than is in my Case a petition upon the account of being absent and there the Lords claim the cognizance of the whole Cause and nothing was done but in the House of Lords And as to the Instances your Grace has mentioned of my Lord Cornwallis and there was another of them my Lord Morley this Question was never under Debate in those Cases therefore I suppose they cannot be admitted as Precedents L. H. Steward But my Lord it would have been an Errour in the whole Proceedings if this Court had not Jurisdiction And sure the Judges who are always called to assist in such Cases and who in matters of life even in the Cases of common persons are so tender and careful that there be no irregularity in the Proceedings would not have let things pass in that manner had they been erroneous L. Delamere My Lord I think no other Precedents are produced but those two and there the Question was never debated L. H. Steward I only put you in mind of those that were lately within memory but no question of it there are a great many more Instances to be given Mr. Attor Gen. I pray your Grace's Judgment to over-rule the Plea and that my Lord may plead in chief L. Delamere I hope your Grace will be pleased to assign me Councel to put my Plea in Form and that I may have time for it that they may be heard to make a solemn Argument in Law L. H. Steward My Lord if you insist upon it and think it worth the while to have Councel heard we will hear them L. Delamere I submit it to your Grace I only offer it that I may not be wanting to the support of the Peers Priviledges I assure your Grace I speak not to put off the Cause for I am willing to come to my Tryal and I have reason so to be for I question not but to make my innocence appear L. H. Steward My Lord I tell you what my opinion of the Plea is but if you insist upon it to have your Councel heard I will hear them L. Delamere I have no Councel here if your Grace please to give me time to send for them and that they may prepare to argue it Mr. Attor Gen. No my Lord If your Grace will hear Councel I for the King must pray that it may be done presently for a Plea to the Jurisdiction is never favoured nor is the party to be allowed time to maintain it but he must be ready at the time it is offered L. Delamere Pray My Lord how was it done in the Case of Fitz-Harris his Plea was a Plea to the Jurisdiction and he had four days allowed him to put his Plea in form and to instruct his Councel L. H. Steward I am not able at present to remember what was done in such or such a particular Case But according to the general method and course of Law the Plea to the Jurisdiction is not favoured nor time allowed to it but the party must be ready to maintain it presently Mr. Attorn Gen. But with Submission my Lord That Case of Fitz Harris is nothing to this Noble Lord's Case neither There was a formal Plea put in in Writing and drawn up in Latine and a formal Demurrer joined and thereupon I did take time to speak to it But with your Grace's favour by the Law the Prisoner must be always ready to make good his Plea if he will oust the Court of their Jurisdiction L. H. Steward Mr. Attorney If my Lord Delamere does insist upon having his Councel heard it is not fit for me to refuse hearing what they can say Mr. Attor Gen. But that must be presently then My Lord. L. Delamere It is my Duty my Lord to submit to what your Grace and my noble Lords shall determine I would insist upon nothing that should offend your Grace or them Mr. Att. Gen. If your Grace pleases You are the only Judge in this Case in Matters of Law For these Noble Lords the Peers are only Tryers of the Fact Therefore I appeal to your Grace's Judgment and pray for the King that this Plea may be over-ruled it being vitious and naught both in Form and Substance Lord H. Steward My Lord Delamere I must acquaint you That according to the Constitution of this Court Matters of Law are determined by Me as the sole Judge while I have the Honour to act under this Commission But if your Lordship insist upon it to have your Councel heard God forbid that I should deny it You. I will hear what your Councel will say and afterwards I will according to the best of my Understanding deliver my Judgment Lord Delamere My Lord I have never had any Councel assigned me Lord H. Steward My Lord If You have any Councel ready we will Hear them Lord Delamere If your Grace please to assign me Councel and give me Time to send for them and them Time to prepare I will obey your Grace's Directions but I could have none here ready because none were assigned me Lord H. Steward My Lord You cannot by the Course of Law have Councel allowed You in the Case of a Capital Crime till such time as the Court where You are called to Answer is apprized that there is some Matter of Law in your Case that may need Councel to be heard to Inform their Judgment and which they may think convenient to hear Councel to For if in case any Prisoner at the Barr shall before-hand be allowed to have Councel to start frivolous Objections such as this and we all know that there are some who will be easily prevailed with to endeavour to pick Holes where there are none and to offer Matters foreign from the things whereof the Party stands accused and upon the Prisoner's bare Request Councel must be heard to every trivial Point the Courts of Law would never be at an end in any Tryal but some dilatory Matter or other would be found to retard the Proceedings But it does not consist with the Grandeur of the Court nor your Lordship's Interest to let such a frivolous Plea interrupt your Lordship's Tryal However if your Lordship has Councel ready I will not refuse to hear them Lord Delamere My Lord I hope the Priviledge of the Peers of England is not frivolous I assure your Grace I do not offer this Matter as if I thought it more conducing to my Interest than my Tryal now No my Lord it is not for my self but for the
whole Body of Peers of which I have the Honour to be a Member And if my Lords here are satisfied it is not the Right and Priviledge of the Peers I acquiesce Lord H. Steward Pray good my Lord do not think that I should say any such thing that the Priviledge of the Peers is frivolous for you do not hear me say That this is one of their Priviledges As I would not willingly mistake You so I desire your Lordship would not misapprehend or misrepresent Me. I spoke not at all of the Peer's Priviledge but of your Plea I tell your Lordship I think your Plea is not a good Plea to Oust this Court of the Jurisdiction of your Cause But if your Lordship have a mind to have your Councel heard to it in God's Name let them come they shall be heard And when that is done to satisfie you the more I will advise with my Lords the Judges that are there to assist what they take to be the Law in the Case and upon the Whole I will deliver my Judgment as well as I can Lord Delamere I hope your Grace will be pleas'd to advise with my Lords the Peers here present it being upon a Point of Priviledge Lord H. Steward Good my Lord I hope You that are a Prisoner at the Barr are not to give Me direction who I should advise with or how I should demean my self here Lord Delamere I beg your Grace's Pardon I did not intend to give your Grace any Direction Lord H. Steward My Lord I shall take care to perform that Duty that is incumbent upon me and that with all Tenderness to your Lordship And I assure your Lordship I will have as much care that I do not injure You as I will that I do not wrong my own Conscience and I will endeavour to discharge my Duty to both with the utmost Fidelity Lord Delamere I humbly thank your Grace I question it not But if your Grace please Lord H. Steward My Lord You must pardon Me I can enter into no further Interlocutions with your Lordship If your Lordship have any mind to have any Councel heard and your Councel be ready we will hear them Lord Delamere If your Grace require of Me to produce Councel presently and they to argue it immediately I must acquaint your Grace I cannot do it For I have none here Lord H. Steward My Lord I cannot tell how to help it the Plea must then be over-ruled and rejected Clerk of the Crown Henry Baron of Delamere Art thou Guilty of the High-Treason whereof thou standest Indicted and hast been now Arraign'd or Not Guilty Lord Delamere Not Guilty Clerk of the Crown Culprit How wilt thou be Tryed Lord Delamere By God and my Peers Clerk of the Crown God send thee good Deliverance Sergeant at Arms Make Proclamation Sergeant at Law O Yes If any one will give Evidence on behalf of our Soveraign Lord the King against Henry Baron of Delamere the Prisoner at the Barr concerning the High-Treason whereof he stands Indicted let them come forth and they shall be Heard for now he stands at the Barr upon his Deliverance Then his Grace gave the Charge to the Peers Tryers in this manner Lord H. Steward My Lords I know You cannot but well remember what unjust and insolent Attempts were made upon the rightful and unalterable Succession to the Imperial Crown of these Realms under the pretence of That which has been so often found to be the Occasion of Rebellion I mean the specious Pretence of Religion by the fierce froward and Phanatical Zeal of some Members of the House of Commons in the last Parliaments under the late King CHARLES the Scond of ever Blessed Memory Which by the wonderful Providence of Almighty God not prevailing the Chief Contrivers of that horrid Villany consulted together how to gain that Advantage upon the Monarchy by open Force which they could not obtain by a pretended Course of Law And in order thereto it is but too well known how they had several Treasonable Meetings made bold and riotous Progresses into several Parts of the King's Dominions thereby endeavouring to debauch the Minds of the well-meaning though unwary and ignorant Part of the King's Subjects But these their evil Purposes it pleased God also to frustrate by bringing to Light that cursed Conspiracy against the Life of His Sacred Majesty King CHARLES the Second as also against That of our dread Soveraign that now is whom God long preserve These Hellish and damnable Plots one would have thought could not have survived the just Condemnation and Execution of some of the chief Contrivers of them especially considering that after it had pleased Almighty God to take to Himself our late Merciful and dread Soveraign no sooner was His Sacred Majesty that now is Seated in the Royal Throne of His Ancestors but He made it His utmost Endeavours not only to convince the World that He had quite forgot those impudent and abominable Indignities that had been put upon Him only for being the best of Subjects and the best of Brothers but did also give forth the most Benign Assurances imaginable to all his loving People that He would approve Himself to be the best of Kings And further to evince the Reality of these His Gracious and Heroick Resolutions He immediately called a Parliament and therein repeated and solemnly Confirmed His former Royal Declarations of having a particular Care of maintaining our Establish't Laws and Religion With which that Wise Great and Loyal Assembly were so fully and perfectly satisfied that they thought they could not make sufficient Returns of Gratitude for such Gracious and Princely Condescentions And yet my Lords while the King and the Parliament were thus as I may say endeavouring to out-do each other in Expressions of Kindness that wicked and unnatural Rebellion broke out and thereupon the Arch-Traytor Monmouth was by a Bill brought into the Lower-House and Pass'd by the general Consent of Both Houses and I could wish my Lords for the sake of that Noble Lord at the Barr that I could say It had Pass'd with the Consent of every particular Member of each House justly Attainted of High-Treason My Lords What share my Lord at the Barr had in those other Matters I must acquaint You is not within the Compass of this Indictment for which You are to Try him as his Peers For That is for a Treason alledged to have been Committed by him in His Majesty's Reign that now is Give me Leave my Lords to detain You but with a Word or two more on this Occasion and that is To let You know That as my Lord at the Barr may with great Safety and Security to himself rely upon your Lordship's Candor and Integrity that You will be tenderly careful and ready to acquit him of the Treason whereof he is accused if upon the Evidence that shall be given You You shall find him Innocent So I must tell You The King has
himself and Engage in such an Enterprize in Separation from those other Lords of whose Help there would be so much need He said he could not help it they had appointed this time and that but now when it came to the push they were not ready to do their parts but the People were now in such expectation of something to be done especially in London that it was impossible to restrain them and as impossible to get those Lords ready to joyn with them I told him I was altogether unacquainted with the proceedings in this Affair and that all of it was wholly new to me But pray My Lord said I give me leave to Act that part in this business that I think will most conduce to the Successful Issue of it which is to be a Mediator between You and let me desire you to let things rest as they are till I have endeavoured to Create a better Understanding between your Lordship and those Lords of whose Tergiversation you seem to complain Upon this my Lord was in a great heat and express'd himself with great warming but at last with much ado he gave me Permission to go to the Duke of Monmouth and assure him and the rest of the Lords that were concern'd and tell them from him That if they would be ready to take the Posts that were assign'd them according to their own former Agreement and immediately enter upon Action he would joyn with them but if not he was resolved to go on alone This was as I remember upon Tuesday the Second of October upon the Wednesday Morning I went to find out the Duke of Monmouth but coming to his Lodgings he was gone to Moor-Pank where when I came I found several Persons with him I but after a little time I separated him from the Company and whispering to him I gave him to understand how great a Disorder I found my Lord Shaftsbury in and how great a Complaint he made of his being deserted by him and the other Lords engaged with him and what Resolution he had taken to set upon the Work alone My Lord sayes he I think the Man is Mad his Fear makes him lose his Understanding I do not know why he hides himself from his Friends that no body can telll where he is but as to that which he speaks of oft our forsaking him and breach of Faith he is mistaken For 't is true indeed we are about doing the Thing that he is so eager for but we are not for doing it so hastily as his Fears precipitate him to do and he must excuse us if we Comply not with his Humour to hazard the whole Undertaking by a rash beginning Upon that I said to him My Lord I shall not discourse the Particularities of the business with your Grace but this is all that I at present Address to your Grace for to be a means if I can with your Grace as I have been with him to procure a Meeting between you that you may Settle it with one another Withal my heart sayes the Duke pray let it be so for though my Lord Shaftsbury is angry without a cause yet I would not have him lose himself in a temerarious Undertaking My Lord said I I will tell him what you say and will see if I can work him to a Complyance with the Proposal The next day being Thursday my Lord I went to my Lord Shaftsbury again and reported to him the Discourse I had with the Duke of Monmouth and what Answer he had given to his Complaint of their deserting him He Reply'd It was false they had positively ingaged to be ready by such a time and had appointed the very Day but now they were off and would not tell when they would be ready and withal he told me he greatly suspected the Duke of Monmouth to have a secret Correspondence with the King I then desired him That he would please to consent to the Treaty that was proposed and give the Duke of Monmouth and the Lords a Meeting he in great heat Replyed No he would come no more at them It is strange my Lord said I that you should have such an Opinion of these Men that they would go about to betray you they are not Men of that size but he persisted in it that they had dealt perfidiously with him For after a positive Agreement when the Thing was brought just to the Birth they withdrew their helping-hand but he was sure in London he could Raise a sufficient Force to do the Work and if he were but once set on Horse-back he would Head them himself But yet he was willing to put it off for a Fortnight or three weeks longer if they would be sure to keep pace with him With this Proposal I went the next day which was Friday to the Duke of Monmouth and had the same Answer from him that I had before but withal he bid me tell my Lord Shaftsbury That he did make it his earnest Request to him to give him and his other Friends a Meeting before he Engaged in this business For he found by his precipitation he was about to Destroy himself and all that adhered to him Thereupon I came to my Lord Shaftsbury again upon the Saturday and when I came there after a long and importunate urging all the Arguments I could think of I so far prevailed with him that he agreed to give them a Meeting upon condition that it should be the next day and because it should be so private that no notice might be taken of it he chose to have the Meeting at his own House where no body would suspect him to be and whither he would be conveyed under the Disguise of a Parson I went back with this Message to the Duke of Monmouth who did undertake that the other Lords should be there Lord H. Steward My Lord Howard not to interrupt you Did he name those other Lords If he did pray acquaint my Lords who they were Lord Howard My Lord Shaftsbury named my Lord Russel and my Lord Gray and a great many more that should bear their parts I went to the Duke of Monmouth and told him of it I say and he engaged that they should certainly be there But upon the Sunday Morning when I came to the Temple there I found a Message left for me That my Lord Shaftsbury had receiv'd an Alarum That there were some great Toryes lived near his House in Aldersgate-Street who were continually Spying about and so great a Company might make their more than ordinary Observation That this gave him such a Jealousy as would not permit him to Meet according to his Appointment Afterwards I came to a better understanding of the Reason of this and found there was some fineness in it which I could not comprehend before But after this time I never saw my Lord Shaftsbury for he removed then to other Lodgings So that what I now speak of him is only what I had by
a Duty incumbent upon me to pass Sentence on him if you convict him what will become of the Case then and how shall I be able to answer it as having done my duty when I pronounce a Judgment notoriously Erroneous and Illegall for so it will be if the Law prove to be against my adjourning This my Lords is a matter of great moment and worth the Consideration But in the other Case of a Trial in full Parliament the Lord that Sits where I do is only as the Chairman of the Court rather than Judge he gives a Vote in such proceedings and therefore my Lord the Prisoner did very well at the beginning to ask the Question whether I had any Vote in his Tryal as a Peer jointly with your Lordships If I sat in full Parliament I should without all question give my Vote as well as any other Peer but sitting here by immediate Commission from the King pro hac vice High Steward I acquaint you as I did him I have no authority to give any Vote My Business is to see the Law observed and fulfilled as Judge Certainly My Lords your Lordships and I and all mankind ought to be tender of committing any Errors in Cases of Life and Death and I would be loath I will assure you to be recorded for giving an Erroneous Judgment in a Case of Blood and as the first man that should bring in an illegal Precedent the Consequence of which may extend I know not how far M. Att. General Will your Grace give direction for my Lord to proceed L. H. Steward Yes he must proceed I think L. Delamere 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 afraid to speak in this place because I am not only certain and very well assured of my own Innocency no such thought having as yet entred into my heart but I am also well assured of your Lordships Wisdom and Justice which cannot be imposed upon or surprized by Insinuations and florid Harangues nor governed by any thing but the Justice of the Cause My Lords I can with a great deal of Comfort and Satisfaction say that these Crimes wherewith I am charged are not only Strangers to my Thoughts but also to what has been my constant Principle and Practice For I think that in matters relating to the Church and the things enjoyned therein few have conformed more in Practice then I have done and yet I do confess and am not ashamed to say it that I have always had a Tenderness for all those who could not keep pace with me and Charity for those that have outgone me and differed from me though never so far nay though of a different Religion For I always thought Religion lay more in Charity than Persecution While I had the Honour to be a Magistrate in my Country I did constantly duly and impartially execute the Laws and in every publick trust I was very 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 still been as Zealous and Careful to give the King his Prerogative as to preserve to the people their Properties 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 Inclinations but it was the Principle of my lather and the Lesson that he taught me I say of my Father who was so greatly Instrumental in snatching this Nation out of its Confusion and restoring it to its ancient Government by setling his late Majesty upon his Throne and consequently was the means of his present Majesty that now is his coming so peaceably to the Crown And this I may the more boldly speak because I speak it by good Authority because in the Patent that created my Father a Peer his late Majesty is pleased to say his rising was mainly instrumental in his Restoration I beg the Favour of your Grace and my Lords that I may read to you that Clause in the preamble of the Patent which I have here ready to produce Which was read and then my Lord proceeded as follows viz. My Lords I suppose most of your Lordships did know him and whosoever did so I dare say did believe him to be a good man For my part I did not know a better Copy to write after than his Example which I endeavoured always to imitate 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 My Lords it is now late and therefore I shall cut off a great deal of what I had intended to say to your Lordships that I may not take up too much of your time and come immediately to my Defence as to what I stand accused of And first my Lords I shall observe that here have been a great many Witnesses produced and a great deal of Swearing but little or nothing of Legal Evidence to affect me for there is but one man that saith any thing home and positively against me and whom I shall answer by and by all the rest are but Hear-says and such remote Circumstances as may be tacked 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 producing and 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 for if they had had other and greater matters your Lordships would have been sure to have heard of them With your Lordships leave I cannot but observe to your Lordships an excellent saying of that great man my Lord of Nottingham whose Name will ever be remembred with Honour in our English Nation when he sate in the same place that your Grace does now at the Tryal of my Lord Cornwallis which I will read to your Lordships Speaking to the Peers he has 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 Pity make any abatement for the Crime and too wise to suffer Rhetorick to make any Improvement of it This only will be necessary to be observed by all your Lordships that the fowler the Crime is the clearer and plainer ought the Proof of it to be there is no other 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
stop any where till he came to Middle-wich where the Countrey Militia were exercising and he just alighted off his Horse and spoke with Major Minshaw and some of the Officers but never so much as drunk by the way till he came to his own house L. H. Stew. What to his house in Staffordshire Kidd No but to Crew-Hall in Cheshire L. H. Stew. Does Mere lye in the Road between Sir Willoughby Aston's and Crew-Hall so that your Master might be there within that time Kidd No that he could not do L. H. Stew. Were you with Mr. Offley the whole Journey home Kidd Yes My Lord I was L. H. Stew. Were you no time from him Kidd No My Lord I was not L. H. Stew. What time did he come home Kidd He came to his own house about 4 or 5 a Clock at night L. H. Stew. And did not he go from thence that night Kidd No My Lord. L. Delamere Now My Lord I will prove as to my self that I was in London at the time as he speaks of And first I desire Sir James Langham may be heard to that He appeared but gave no Evidence L. Delamere Pray call Booth who appeared L. H. Stew. What is this Gentleman's name L. Delamere He is my Brother My Lord his Name is Booth L. H. Stew. What do you ask him L. Delamere Pray can you remember what time in June you saw me in Town here Mr. Booth My Lord I saw my Brother here in Town the 3 d 4 th 5 th 6 th and so on to the 10 th of June and the 10 th of June I went out of Town my self I saw him sometimes twice or thrice a day in that time for I did not lodge above half a score doors from him L. H. Stew. Where was that Mr. Booth In great Russel Street L. H. Stew. How come you to remember the time so particularly Mr. Booth It was that day Sennight before I went out of Town which was Wednesday the 10 th of June and had it not been for that particular circumstance I had not remark'd it so much as to be able particularly to remember it Mr. Att. Gen. Pray Mr. Booth did you know of your Brothers going out of Town the 27 th of May Mr. Booth I heard he was gone out of Town about that time L. H. Stew. Why then when came he hither to Town again Mr. Booth I cannot tell but I saw him upon the 3 d of June in the Evening Mr. Att. Gen. My Lord it is not possible for him so to do in that time if he rode Post L. H. Stew. He did make a great deal of haste backward and forward that is certain L. Delamere My Brother does not know when I went but as he heard he says L. H. Stew. But pray my Lord mind the Objection that has been made for it carries a great deal of weight in it It is plainly proved by two Witnesses that you went out of Town the 27 th of May at 9 of the Clock at night and rode to Hoddesdon and the next day came to Hitchin about Noon then they left you and return'd back again to London that Night and you told them you were going to see a sick Child of yours in Cheshire how came you to make such Post-haste back again that he should see you here in London the 3 d of June Mr. Booth My Lord I am certain I saw him that day in the Evening and so on to the 10 th L. H. Stew. Did my Lord then tell you how your Friends did in Cheshire Mr. Booth I cannot remember the particular discourse we had Mr. Att. Gen. Pray Sir when did he tell you he came to Town L. H. Stew. You say you used to see him every day once or twice a day Mr. Booth Yes I did so L. H. Stew. Pray where was he the 2 d of June Mr. Booth He was not come to Town L. H. Stew. How long time was it before that that you had not seen him Mr. Booth I had not seen him of several days before L. Delamere If it please your Grace here is another Brother of mine that saw me at the same time and tho' he be my Brother I hope he is a good Witness L. H. Stew. Ay God forbid else what is his name L. Delamare George Booth L. H. Stew. Well what say you Sir Mr. George Booth My Lord I saw my Brother Delamere here in Town the 4 th of June by this particular circumstance which I cannot err in that the next day as I take it I went down with him to the House of Lords to hear my Lord Macclesfield's Cause which was then there to be heard upon the Appeal of Mr. Fitton and my Brother was in the House of Lords at that time which was the 5 th of June L. H. Stew. My Lord Delamere I think it not amiss to put you in mind of one thing which it is fit your Lordship should give some answer to Does your Lordship deny that you went out of Town the 27 th of May L. Delamere No My Lord I do not I acknowledge I did so L. H. Stew. Then it will be fit for you to give an account where you were the 28 th of May and so all along till the 3 d of June L. Delamere If you Grace please I hope I shall give you full satisfaction in that by and by but I have one witness more to this point of my being in Town at such a time that I could not be in Cheshire when this Fellow says I was and that is my Lord Lovelace L. H. Stew. There is my Lord Lovelace what will you ask him L. Delamere Whether he did not see me at the Tryal of my Lord Macclesfield in the House of Lords L. Lovelace I vvas in the House of Lords that day that my Lord Macclesfield's Tryal was and I remember I did see my Lord Delamere there L. H. Stew. But we are as much at a loss now as ever we were for what day that Tryal was does not appear What day was my Lord Macclesfield's Tryal L. Delamere The Journal of the House of Lords proves that to be the 5 th of June L. Lovelace My Lord stood just by the Bar and if I am not mistaken took notes L. Delamere My Lord I hope now I have satisfied your Grace and the rest of my Lords that none of us three whom this fellow has mentioned were there at that time at Mere when he says we were For my own part I do positively affirm and I speak it as in the presence of Almighty God that I have not seen Sir Robert Cotton at my house that I know of these many years and I believe Mr. Ossley was never in my House since I was Master of it And I do likewise protest that to my knowledge I never saw the face of this Man till now that be is produced as a witness against me I am sure I never spoke with him
Stew. Where did you part with my Lord Delamere and when Edlin Upon Thursday the 28 th of May at Hitchin L. H. Stew. What time of the day was it when you parted Edlin It was about 10 of the Clock L. H. Stew. He went forward Post into Cheshire did he not Edlin He did not go Post I suppose for he went upon his own Horse L. H. Stew. Did he go upon his own Horse Edlin It was the same Horse he went to Hitchin upon L. H. Stew. Have you any more Witnesses my Lord L. Delamere No My Lord I hope I have given their Lordships satisfaction in all points and need to give no further Evidence L. H. Stew. Have you any thing more then to say My Lord L. Delamere My Lords I acknowledge I did go at that time privately a By-Road and by the name of Brown and as for Jones who it is said came from Holland that day I appeal to him himself and I call God to Witness I never saw the man before now in my life nay till after I was made a Prisoner upon this account I never so much as heard of his Name and your Lordships see by the Proofs that all that has been said against me except what this Fellow Saxon has testified is but hearsay nay indeed but hearsay upon hearsay at the third and fourth hand My Lords if People will make use of my name and say this and that and the other and among themselves talk of Messages sent to me can I or any man in the world help it at this rate who can be innocent If a man must be guilty because others intend to draw him into Treason For there is no more in the utmost that this proof can amount unto It is at the pleasure of any two men in the world to take away the Lives Honours and Estates of any of your Lordships if it be a proof sufficient to make you guilty of Treason for them to swear you were intended to be drawn into Treason And my Lords as to the truth of the thing it self that there was any Message or Correspondence between the late D. of Monmouth and me I call God to witness I have neither wrote nor sent Letter or Message to him or received Letter or Message from him this 3 years I cannot tell what expectation he might have concerning me or any body else It is very probable he might have expectation of assistance from some body and that without such expectations he would not have made the attempt he did But my Lords all that is nothing to me I had no correspondence either by Letters or Messages with him so that all that has been said upon that point of his expectation and what he declared I must give the same answer to that I gave to the Evidence about Jones's Message That admitting it to be true he did declare so yet no proof being made of an actual correspondence it is no more but only an intention in him to draw men into the Commission of Treason and if that be allow'd for proof of guilt I must repeat it again there 's no man can be innocent Upon the whole matter my Lord I must leave my Case to the consideration of your Lordships I am not Master of so much Law or Rhetorick as the Kings Counsel to plead in my own Cause and I have had but little time to recollect and apply my defence to my accusation but I hope what Evidence I have offered has given your Lordships full satisfaction that I am not guilty of what I stand charged with And after all that has been said my Lords I would beg your Lordships to consider this that if in case I were guilty of these things and were conscious to my self of having been ingaged in an Affair of this nature can any man imagine I could have been so hardy as to have surrendred my self upon the Kings Proclamation nay if I with those other two Gentlemen that he has named had had any transactions of this kind with such a Fellow as he has been made appear to be by his Neighbours that must needs be thought a man of no Faith because of no Reputation tho' he gives himself a great Character as a man of great Interest of wonderful dispatch and dexterity in the management of such matters so as at first sight to put this large confidence in him Can it be imagined I so little regarded my own Life and all that is dear to me as to have surrendred my self were it not that I was certain of my own innocence and integrity Life it self my Lords is to be preferred above all things but Honour and Innocence And Job saith Skin for skin and all that a man hath will he give for his life and why should I be presumed to have so little a value for it as voluntarily to deliver up my self to destruction had I been conscious that there was any one who could really testifie any thing that could hurt me Besides My Lords this very Fellow Saxon is but one Evidence and how far you will believe him I must submit it to you but surely one Witness will never be sufficient to convict a man of Treason tho' thousands of hear-says and such trival circumstances be tacked to it especially when they are tacked to an Evidence which I dare say your Lordships are far from thinking it deserves any Credit My Lords I desire your leave to ask this one Question Would not any of your Lordships think himself in a bad condition as to his Fortune if he could produce no better Evidence to prove his Title to his Estate than what has been produced against me this day to take away my Life and if such Evidence as this would not be sufficient to support a Title to an Estate certainly it can never be thought sufficient to deprive a man of Life Honour Estate and all My Lords I am not the only Man that has been or may be falsely accused God knows how soon the misfortune of a False Accusation may fall to the Lot of any of your Lordships I pray God it never may but since that may happen I question not but your Lordships will be very cautious how by an easy Credulity you give incouragement to such a wickedness For Knights of the Post will not end in my Tryal if they prosper in their Villany and perhaps it may come home to some of your Lordships if such practices be incouraged as I cannot but firmly believe they will not My Lords the Eyes of all the Nation are upon your Proceedings this day Nay I may say your Lordships are now Judging the cause of every man in England that shall happen to come under like Circumstances with my Self at any time hereafter For accordingly as you judge of me now just so will inferior Courts be directed to give their Judgments in like Cases in time to come Your Lordships very well know Blood once spilt can never be