their Arts in managing the Jury And first there was a great many persons for Jurors to which Mr. Attorney had no Stomach some challenged for Cause for that they were no Fee holders as John Kent Giles Shute Nathaniel Grantham and several others and the Challenge allowed to be a good Challenge by all the Court for tho' the Chief Justice spoke only yet all the Court assent to what one Judge says if they do not shew their dissent I do not take notice of this as complaining of it for I think it is good Cause of Challenge in Treason but then I cannot but wonder at the Assurance of the same King's Counsel who denied it to be a good Cause of Challenge in the Lord Russel's Tryal It is true that was a Tryal in the City but that matter had no consideration in the Judgment for after the Lord Russel's Counsel had been heard all the Judges delivered their Opinions That at Common Law No Freehold was no Challenge in Treason and that the 1st and 2d Philip and Mary had restored the Tryal in Treason to be what it was at Common Law of which number of Judges Sir Francis Pemberton and Sir Thomas Jones were two nay Sir Francis Pemberton asked Mr. Pollexfen Whether he found any Resolution at Common Law that no freehold was a Challenge in Treason And that Judgment is afterwards cited in Collonel Sidneys Tryal fol. 63. as the Opinion of all the Judges of England That no Freehold was no Challenge to a Juror in Treason at Common Law and Col. Sydney's Tryal was in a County at large But if it was not a Challenge at Common Law I would know how it came to be a Challenge in Fitzharris his Case There was no intervening Act of Parliment to alter the Law between the two Tryals that I know of Another art used was to Challenge for the King wihout Cause where no Cause could be shewn such Jurors as they did not like The Prisoner was troubled at this and appeals to the Court whether the Attorney General was not obliged to shew his Cause of Challenge but is answered by the Court that he need not till all the Pannel was gone through or the rest of the Jurors challenged which is true but had the Prisoner been advised to challenge the rest of the Jury as he would have been if he had had Counsel the Attorney must have waved his Challenge or put off the Tryal And since he was not allowed Counsel why should not the Court according to their Duty as they have said it is have advised him so to do I am sure in Count Coningsmark's Tryal when Sir Francis Winington challenged a Juror without Cause for the King the Court presently asked the Cause and such Answers was made by the Prosecutor's Counsel as was made to Fitzharris whereupon the Court told the Count that the way to make them shew their Cause of Challenge was to challenge all the rest of the Jury and thereupon the Challenge was waved They were different Practices tending to different Ends and accordingly it succeeded Fitzharris was Convicted and the Count Acquitted Upon the Tryal the Evidence was this Fitzharris was the 21st day of February 1681. with Everard gave him Heads by word of mouth to write the Pamphlet in the Indictment mentioned to scandalize the King raise Rebellion alienate the Hearts of the People and set them together by the Ears the Libel was to be presented to the French Ambassador's Confessor and he was to present it to the French Embassador and it was to set these people together by the Ears and keep them clashing and mistrusting one another whilst the French should gain Flanders and then they would make no bones of England For which Libel Everard was to have 40 Guineys and a monthly Pension which should be some 1000 of pounds Everard was to be brought into the Cabal where several Protestants and Parliament men came to give an account to the Embassador how things were transacted Everard asked what would be the use of the Libels Fitzharris said we shall disperse them we know how they were to be drawn in the Name of the Nonconformists and to be put and fathered upon them This was the sum of Everard's Evidence Mr. Smith proved Fitzharris his giving instructions to Everard and Sir William Waller and others proved the Libel and the Discourse about gaining Flanders and England other Witnesses were examined to prove Fitzharris's hand for the Prisoner Dr. Oates said Everard told him the Libel was to be printed and to be sent about by the Penny-Post to the Protesting Lords and Leading Men of the House of Commons who were to be taken up as soon as they had it and searched and to have it found about them He said the Court had an hand in it and the King had given Fitzharris Money for it already and would give him more if it had success Mr. Cornish said when he came from Newgate to the King to give him an account in what disposition he found the Prisoner to make a discovery the King said he had had him often before him and his Secretaries and could make nothing of what he did discover that he had for near three Months acquainted the King he was in pursuit of a Plot of a matter that related much to his Person and Government and that in as much as he made protestations of Zeal for his Service he did countenance and give him some Mony that the King said the came to him three Months before he appeared at the Council Table Collonel Mansel said that Sir William Waller gave him an account of the business in the presence of Mr. Hunt and several others and said that when he had acquainted the King with it the King said he had done him the greatest piece of service that ever he had done him in his life and gave him a great many thanks But he was no sooner gone but two Gentlemen told him the King said he had broken all his Measures and the King would have him taken off one way or another and said that the Design was against the Protestant Lords and Protestant Party Mr. Hunt confirmed the same thing and added that he said the design was to contrive those Papers into the hands of the people and make them Evidences of Rebellion and appealed to Sir William Waller who was present whether what he said was not true Mr. Bethel said Everard before he had seen Bethell or heard him speak a word put in an Information of Treason against him at the instigation of Bethel's mortal Enemy which Information was so groundless that tho' it was three years before yet he never heard a word of it till the Friday before Mrs. Wall said Fitzharris had 250 l. 200 l. or 150 l. for bringing the Lord Howard of Escrick she added that Fitzharris was looked upon to be a Roman Catholick and upon that account it was said to be dangerous to let him go near
business he was four or five times between Christman and March with the Earl and the Captain that the Captain told him he was to Command Fifty Men to be the Earls Guard at Oxon and would have had him to be One That if the King did not Consent to several Acts of Parliament and other things they were to Purge the Guards and Court of several Persons and tho' the Captain told him that first yet afterwards he heard the Earl say the same things particularly about a week or ten days before the Parliament sate at Oxon he gave some Intimation of this to Walter Banes and then Writ it down and sent it to the Counsel Sealed in a Cover Turbervile swore that the Lord Shaftsbury said about February there was but little good to be done with the King as long as his Guards were about him Smith testified a great deal of discourse between him and the Lord Shaftsbury of something said Reflecting on the King and that he should say that if the King should offer any violence to the Parliament at Oxford he would meet with a strong Opposition for that the Gentlemen who came out of the Country came well provided with Horse and Arms to Oppose and that they might Lawfully do it if he offered and Violence to them whilst they sate Haynes swore that the Earl said if the King did not give Haynes his Pardon he and others would raise the Kingdom against him that Haynes gave the Earl an exact Account of Transactions since King Charles the First 's coming to the Crown and that the Earl said the Duke of Buckingham had as much Right to the Crown as any Stewart in England John Macnamarra said the Earl said the King was Popishly Affected and took the same Methods his Father did which brought his Fathers Head to the Block and they would bring his thither and this was said in the presence of Ivey and he thought of his Brother and said the King deserved to be deposed as much as King Richard the Second Dennis Macnamarra likewise testified the last words and that it was the latter end of March or beginning of April Ivey said the Earl said if the King denyed Haynes a Pardon they would rise upon him and force him to give one and that they design'd to depose him and set up another in his stead Bernard Dennis said he had a great deal of discourse with the Earl who bid him speak to his Friends in Ireland for they intended to have England under a Commonwealth and Extirpate the King and his Family Then the Court told the Jury the Indictment was grounded on the Statute of King Charles the Second but they ought to consider of that Statute as also the 25th of Edward the Third The question is whether the Grand Jury ought to have found the Bill on this Evidence first it ought to be considered what the Duty of a Grand Jury is and I think it is not what the Chief Justice said to consider only whether there be probable ground for the King to call the Person Accused to an Account much less do I think that the reason of the finding of a Bill by the Grand Jury was for the Honour of the King or Decency of the Matter least Persons Accused should be called to an Account by the King where there is no kind of Suspition of the Crime Committed by them as the Court said which last Matter was never assigned as a Reason of finding a Bill by the Grand Jury before but I take the Reason of a Grand Jury to be this that no Man for a Capital Matter shall ever be questioned by the King unless a Grand Jury take it on their Oaths that they believe the Matter of the accusation is true I do put an Emphasis on the words questioned by the King. It is true it is generally said That the business of a Grand-Jury in capital Matters is in favorem vitae but that taken simply is not true for then what reason can be assigned why a Man shall be Arraigned on an Appeal of Murder Robbery or the like which touches his Life as much as an Indictment of those Crimes without having the Matter of the Appeal first found to be true by a Grand Jury but the true reason of a Grand Jury is the vast inequality of the Plaintiff and Defendant which in an Indictment is always between the King and his Subjects and that doth not hold in an Appeal which is always between Subject and Subject and therefore the Law in an Indictment hath given a Privilege to the Defendant which it hath done in no other Prosecution of purpose if it were possible to make them equal in the Prosecutions and Defence that equal Justice may be done between both It considers the Judges Witnesses and Jury are more likely to be influenc'd by the King than the Defendant the Judges as having been made by him and as it is in his Power to turn them out punish to prefer or reward them higher and though there are not just Causes for them to strain the Law yet they are such Causes which in all Ages have taken place and probably always will this was the reason of running Prerogative so high in their Judgment of High Treason before the Stat. of Ed. III. That no Man as that Statute says knew what was not High Treason This was the reason of expounding that Statute oftentimes between the making of it and the making the Statute of Queen Mary that People was at as great a Loss till the last Statute as they were before the making of the first and even since the Statute of Queen Mary the Exposition on the Statute of Ed. III. hath been so extravagant and various that People are at this day as much at a Loss to know what is not High Treason as they were before the Statue of Ed. 3. norwas it or is it possible that the great Power of enriching honouring rewarding and punishing lodged in the King but that it always had and yet must have an influence on the Witnesses and Jury and therefore it is that the Law hath ordered that at the King's Proscution no Man shall be criminally questioned unless a Grand Jury upon their own Knowledg or upon the Evidence given them shall give a Verdict that they really believe the Accusation is true Iown of late days They have said the Duty of the Grand Jury is to find whether the Accusation is probable but that saying is warranted by no positive Law or antient Authority and therefore the Duty of the Grand Jury must be founded in the Oath administred to them which is as strict as the Oath administred to the Petit Jury and to say Truth the Verdict of the Petit Jury takes credit from the Verdict of the Grand Jury which is not only the reason of the difference in the Names of the two Juries but is likewise the reason why an Attaint for a false Verdict doth not lye
or Statute-Law for it And I can with better assurance say than any person who hath practised these things that no Law in England warrants them and if not then consider the unreasonableness of these Methods There is yet one Objection to be answered which being a very great hardship upon the Prisoner gives somes colour or imposing other hardships upon him to wit That a Witness cannot be examined for the Prisoner on his Oath in a Tryal upon an Indictment of a Capital Matter It is not because the Matter is Capital for then no Witness ought to be examined upon Oath for the Appellee in a capital matter Neither is it because it is against the King for then no Witness ought to be examined on Oath for the Defendant in a Tryal upon an Indictment of any Criminal Matter yet in Indictments of all Criminal Matters not Capital 't is permitted to the Prisoner To say Truth never any reason was yet given for it or I think can be if you believe my Lord Coke 3d Instit fol 79 of which Opinion my Lord Hales is in his Pleas of the Crown that that Practice is not warranted by any Act of Parliament Book Case or antient Record and that there is not so much as scintilla Juris for is for he says when the fault is denied truth cannot appear without Witnesses As for what is pretended that it is swearing against the King and therefore it is not allowed of 't is a Cant Reason which put into sensible English a man will be ashamed to own And as slight is the Reason That it being a matter of so high moment as a man's Life the Prisoner will be the more violent and eager and the Witnesses may be more prevailed upon to swear falsly more than they would be in a matter of less moment The weakness of that reason hath been in part shewn and shall be further shown I think none will deny but the end of all Tryals in any matters Capital Criminal or Civil is the discovery of Truth Next 't is as necessary for the Prisoner to have Witnesses to prove his Innocence as it is for the King to have Witnesses to convict him of the Crime which Proposition is agreed by the Practice it being alwaies permitted that the Prisoner shall produce what Witnesses he can but they are not to be upon Oath In the last place since truth cannot appear but by the confession of the party or testimony of Witnesses of both sides it is necessary to put all the engagement as well on the Witnesses of part of the Prisoner as of part of the King to say the Truth the whole Truth and nothing but the Truth as the Nature of the matter will bear and as yet no better means hath been found out than an Oath Which if denyed to the Prisoner's Witnesses either he is allowed too great an advantage to acquit himself or he is not allowed enough If all that his Witnesses say without Oath shall have equal credit as if they swore it then he hath too much advantage for men may be found which will say falsly what they will not swear as is plain enough How often doth a Defendant say in a Plea at Law that a Deed is not his which yet in an Answer in Chancery he will confess to be his If his Witnesses shall not have Credit because not sworn to what purpose then is it permitted him to produce them If they shall have some Credit but not so much as if sworn I ask how much credit shall be given Is it two three or ten Witnesses without Oath shall be equivalent to One upon Oath And besides that that Question never was or can be answered what credit shall be given them There is an unreasanable disadvantage put on the Prisoner that a Witness produced of his part of equal credit with the Witness against him shall not have equal credit given him because he is not on his Oath whereas he is ready to deliver the same things on his Oath if the Court would administer it to him and yet that difference was taken in Fitzharris his Case as to the Credibility of Everard and Oates the first being upon his Oath the last not But I do not offer this as any Reflection upon the late Proceedings but as a reason why matters in Capital Proceedings ought not to have been carried further than heretofore they were against the Prisoner by example of so unreasonable a practice But to return to the Tryal of Colledge which came on in the Afternoon when the Attorney insisted that the King's Witnesses ought not to be examined out of the hearing of each other in which he was over-ruled but the Rule not observed nor was it material for the King's Counsel having the Prisoners Writings and by them observed how he intended to make the Witnesses against him contradict themselves they did not produce such Witnesses as were not instructed to concur in the Evidence of the same matter but produced only such as were instructed to give Evidence of distinct matters and therefore Dugdale was first produced who gave Evidence of villifying words spoke of the King at several times at Oxford and London by the Prisoner to himself alone that he shewed the Witness several scandalous Libels and Pictures and said he was the Author of them that he had a silk Armor a brace of Horse Pistols and a pocket Pistol and Sword that he said He had several stout men to stand by him and that he would make use of them for the defence of the Protestant Religion he said the King's Party was but an handful to his Party Stevens swore the finding of the Original of the Raree Show in the Prisoners Chambers John Smith swore his speaking scandalous words of the King and of his having Armor and that when he shewed it the Witness he said These are things that will destroy the pitiful Guards of Rowley that he said he expected the King would seize some of the Members of Parliament at Oxford which if done he would be one should seize the King that he said Fitz-Gerald at Oxon kad made his Nose bleed but before long he hoped to see a great deal more blood shed for the Cause that if any nay if Rowley himself came to disarm the City he would be the Death of him Haynes swore he said Unless the King would let the Parliament sit at Oxon they would seise him and bring him to the Block and that he said The City had One thousand five hundred Barrels of Powder and One hundred thousand men ready at an hours Warning Turbervile swore he said at Oxford That he wished the King would begin if he did not they would begin with him and seize him and said he came to Oxford for that prupose Mr. Masters swore That in discourse betwen him and the Prisoner he justified the Proceedings of the Parliament in 1640. at which the Witness wondred and said how could he justifie that
Parliament that raised the Rebellion and cut off the King's head To which the Prisoner replied That that Parliament had done nothing but what they had just cause for and that the Parliament which sate last at Westminster was of the same Opinion That he called the Prisoner Collonel in mockery who replyed Mock not I may be one in a little time Sir William Jennings swore as to the Fighting with Fitz-Gerald and the words about his bleeding For the Prisoner Hickman said he heard Haynes swear God damn him he cared not what he swore nor whom he swore against for it was his Trade to get Money by swearing Mrs. Oliver said Haynes writ a Letter in her Father's name unknown to her Father Mrs. Hall said she heard Haynes own that he was employed to put a Plot upon the Dissenting Protestants Mrs. Richards said she heard him say the same thing Whaley said Haynes stole a Silver Tankerd from him Lun said Haynes said the Parliament were a company of Rogues for not giving the King money but he would help the King to money enough out of the Phanaticks Estates Oates said Turbervile said a little before the Witnesses were sworn at the Old-baily that he was not a Witness against the Prisoner nor could give any Evidence against him And after he came from Oxford he sad he had been sworn before the Grand Jury against the Prisoner and said the Protestant Citizens had deserted him and God damn him he would not starve That John Smith said God damn him he would have Colledge's Blood. That he heard Dugdale say that he knew nothing against any Protestant in England and being taxt that he had gone against his Conscience in his Evidence he said it was long of Collonel Warcup for he could get no money else that he had given out that he had been poisoned whereas in truth it was a Clap. Blake said that Smith told him Haynes his Discovery was a Sham Plot a Meal-tub-Plot Bolron said Smith would have had him give Evidence against Sir John Brooks that Sir John should say there would be cutting of Throats at Oxford and that the Parliament-men went provided with four five six or ten men a-piece and that there was a Consult at Grantham wherein it was resolved that it was better to seize the King than to let him go whereas he knew of no such thing that he would have Balron to be a Witness against Colledge and told him what he should say lest they should disagree in their Evidence that he heard Haynes say he knew nothing of a Popish or Presbyterian Plot but if he were to be an Evidence he cared not what he swore but would swear any thing to get Money Mowbray said Smith tempted him to be a Witness against Colledge and was inquisitive to know what discourse passed between him the Lord Fairfax Sir John Hewly and Mr. Stern on the Road and said that if the Parliament would not give the King Money and stood on the Bill of Exclusion that was pretence enough to swear a design to seize the King at Oxford Everard said Smith told him he knew of no Presbyterian or Protestant Plot and said Justice Warcup would have perswaded him to swear against some Lords a Presbyterian Plot but he knew of none he said Haynes told him it was necessity and hard pay drove him to speak any thing against the Protestants and being questioned how his Testimony agreed with what he formerly said answered he would not say much to excuse himself his Wife was reduced to that Necessity that she begged at Rouse's door and meer necessity drove him to it and self preservation for the was brought in Guilty when he was taken up and was obliged to do something to save his Life and that it was a Judgment upon the King or People the Irish-mens swearing against them was justly fallen on them for outing the Irish of their Estates Parkhurst and Symons said they had seen at Colledge his House his Arms about the latter end of November Tates said Dugdale bespoke a Pistol of him for Colledge which he promised to give Colledge And upon Discourse sometimes after the Oxford Parliament Tates said Colledge was a very honest man and stood up for the good of the King and Government Tes said Dugdale I believe he does and I know nothing to the coutrary Deacon and Whitaker said they knew Colledge was bred a Protostant and went to Church and never to a Conventicle that they knew of and thought him an honest man. Neal Rimington Janner and Norris to the same purpose and Norris that Smith in company where was Speech that the Parliament-mens being agreed to go to Oxford said he hoped they would be well provided to go if they did go El. Hunt said a Porter in her Master's absence brought the Prints taken in Colledge's house eight weeks before and said Dugdale told her after her Master was in Prison he did not believe Colledge had any more hand in any Conspiracy against his Majesty than the Child unborn and he had as lieve have given an hundred pounds he had never spoke what he had and that he had nothing to say against her Master which would touch his Life Having summed up all the material part of the Evidence in the order it was given for or against the Prisoner let us see whether upon the whole an honest understanding Jury could with a good Conscience have given the Verdict the then Jury did or whether an upright Court could with a good Conscience have declared they were well satisfied in the Verdict given as all the four Judges in that case did though the Chief Justice North only spoke the works And though it is too late to Advantage the deceased yet it will do right to the Memory of the man to whose dexterous management on his Tryal many now alive owe the continuance of their lives to this Day it was not their Innocence protected the Lord Fairfax Sir John Brooks and many others before mentioined and many not named in the Tryal but Colledge's baffling that Crew of Witnesses and so plainly detecting their falsehood that the Kings Counsel never durst play them at any other person but the Earl of Shaftsbury as shall be shewn and failing there they were paid off and vanisht and never did more harm visibly what under-hand Practices they might be hereafter guilty of I know not Who could believe any one of those four Witnesses Dugdale Haynes Turbervile and Smith if it were for no other reason than the improbability of the thing that as Colledge said was it probable he should trust things of that nature with Papists who had broke their Faith with their own Party who could lay greater Obligations of secresie upon them than he was able to do That he a Protestant should trust people who had been employed to cut Protestants Throats And neither of them ever discovered any of the things they swore till after the Oxford Parliament though
a good Challenge and with him Sir John Fortescue seems to concur in his Exposition on the Statute of Henry the 5th he says if the Debts or Damages were under forty Marks the Jury-man shall have Land to a competent Value according to the Discretion of the Justices My Lord Coke saith in such case any Free-hold sufficeth now how can that be true if it were not necessary at Common Law to have some Free-hold for the Statute makes no Provision for Debt or Damages under forty Marks It must therefore be by Common Law that some Free-hold was necessary and that any Free-hold shall suffice And surely if in Civil Matters it was necessary for a Juror to have a Free-hold much more in captial Matters and mostly in Treason It is very plain that at Common Law no man was thought to be a sufficient man but a Free-holder and though now and for some time past the Value of Trade is equal to that of Land yet heretofore it was not so and by what was heretofore the Common Law is to be known The matter of Trade was heretofore so inconsiderable and the Traders themselves for that reason so vile that it was a Disparagement for a Free-holder to marry with a Trades-man as is to be seen by the Statute of Wharton and therefore meer Trades-men and not Free-holders were not to be trusted with the Concern of a Tryal in a civil Matter and much less in a Capital and least of all in a Tryal of High-Treason The Chief Justice Pemberton says that the reason of Free-holders was that no slight Persons should be put upon a Jury where the Life of a man or his Estate is in question it is plain therefore the Concern of the thing to be tryed is the measure of the substance of the Jury-man if that be true the Tryal in Treason is of the highest concern How then is it true as some of the Judges concluded that though Free-hold migh be requisite in some Cases at Common Law yet in Treason certainly not it is indeed a Paradox to me And the peremptory Challenge of thirty five allowed the Prisoner is no Reason against the Challenge of no Free-hold for that is only a Priviledge allowed the Prisoner in Favorem Vitae and it might as well be argued that no Challenge at all to the petty Jury shall be allowed the Prisoner because he had a Grand Jury past upon him before which is also in Favorem Vitae that no man at the Kings Suit shall be so much as questioned for his Life till above the number of twelve substantial men have on their Oaths said they think the Accusation true and after that he is allowed to challenge peremptorily thirty five and with cause without number to affirm therefore that no Free-hold is not a cause of Challenge because he may challenge peremptorily thirty five is a non sequitur and though Non-usage that is to say that this Challenge was never taken in Treason was then used as an Argument yet it is the weakest of Arguments which is to be found in Littleton though even that Fact was not true for the Challenge was taken and allowed before unless you will distinguish and say that in that case it was taken by the King and therefore good and in this by the Prisoner and therefore bad I 'm sure that Difference cannot be warranted either by Authority or Reason and what though Cook and the other Regicides and other Persons did not take that Challenge is it and Argument that they could not or that they thought they could not perhaps they had forgotten to do it as much as the Judges in this case had forgotten their Resolution in Fitz-Harris's Case or perhaps they could not take it their Jury being Free-holders or perhaps it was to no purpose they being tryed in Middlesex where a Jury of Free-holders would quickly be found Nor is it an Argument that no Case of this Challenge at Common Law is to be found in the Books for since the Statute of Henry the 5th to the time of Queen Marry it could never be a Case and from that time to this it could never be a Case in Felony and the Law being so very plain that if the Fact were with the Prisoner it was always allowed if against the Prisoner it was disallowed not as not good in point of Law but as not true in point of Fact therefore the Challenge perphaps was not taken notice of in the Books which only reports Difficulties It is true of late and it is but of late Practice the whole Transactions of a Tryal is published for the benefit of the Publisher rather than for the common Good and that indeed was the Motive of publishing Fitz-Harris's Tryal signed by Fra. Pemberton and of Colledges's Tryal signed by Fra. North and of my Lord Russel's signed by William Prichard Mayor and Col. Sidnie's Tryal signed by George Jefferies and Mr. Cornish's Tryal signed by Thomas Jones And that is the reason why since that Statute we find no Case of such a Challenge in capital Matters and before that Statute the Year-Books go but a little way It is enough that there was no Resolution that it was not a good Challenge for it will be of the Kings side to shew why that should not be a good Challenge in Treason which was in most if not in all other Cases It is pretty to observe what steps were made in over-ruling this Challenge some were of Opinion that it was no Chanllenge in any Case at Common Law so said the Attorny and Sollicitor General the Chief Baron Justice Windham and Baron Street The Chief Justice though it no Challenge at Common Law in Treason or Felony only but that the Statute of Henry the 5th made it a Challenge in Treason and Felonly but whether the Statute of Henry the 5th made it a Challenge in Treason the Chief Baron and Justice Windham doubted Justice Jones thought it no Challenge at Common Law in Treason Justice Levins would not determine whether it was a good Challenge in any Case at Common Law but he and Baron Street were clearly of Opinion it was not a good Challenge in London The Chief Justice thought it a Business of great consequence not only for the Prisoner but for all other Persons Baron Street thought the Judges had been very nice in the Matter which in the Phrase of the Law is giving themselves a great deal of trouble in a matter very clear or of no moment But though they differ'd in their Reasons yet all agreed in this and in this only that tryed he should be and that presently Then as for the Custom of the City of London to try without Free-holders how did it appear to the Judges that there was any such Custom Did they ever read of any such Custom in the City of London Nay were not the Statutes which were cited where no Free-hold was made no Challenge in London in particular Cases as so
Act. It hath been said if a Man be bound to his good behaviour and wears a Sword it is a breach of the good behaviour and perhaps heretofore vvhen Swords were not usually vvorn but by Souldiers it might be so because it struck a Terror in other People as much as a Blunder-buss or the like unusual Weapon or the going Armed in a Coat of Mail for any Person but a Souldier doth at this day but no Man will say that now Swords are usually vvorn by all sorts of People that it is a breach of the good behaviour and so that which heretofore vvas a Crime by custom now is become none It is therefore the unusualeness and the unaccountablness of the Circumstance makes it an Evidence which cannot be assigned as a reason in the Overt Act mentioned The last thing I take Notice of it that Coll Sydney refused to ask the Lord Howard any questions from whence was inferred that he assented to the truth of the Matter sworm but it is well known 't is no Prudence to ask a thorow paced Witness a question in Mr. Hampdens Tryal his Council refused so to do for that reason The next who fell a Sacrifice according to Colledge's Prophecy was James Holloway he was Out-lawed and taken beyond Sea and being induced with promised of Life to accuse himself of things whether he was Guilty or not enough to make good an Indictment of High-Treason against him It was indeed Generously offered him that his Out-lawry should be set aside and he should have the liberty to be Tryed and defend himself as well as he could but he knowing what since he was taken he had said which would be brought in Evidence against him refused his Tryal and because he would not Purchase his Pardon at the expence of Innocent Men's Blood by accusing others of what he did not know they were Guilty of if his dying Speech is to believed he was executed I should not mentioned this but for the sake of the next Persons Case which was Sir Thomas Armstrong who was Out-lawed for High Treason when he was beyond Sea he was taken and brough to the Kings-Bench-Bar REMARKS Upon the AWARD OF EXECUTION AGAINST Sir Tho. Armstrong AT Common Law if a Person was beyond Sea when an Out-lawry was pronounced against him it was an Error in Fact for which the Out-lawry was to be reversed and it is an Error in all Out-lawrys but for High-Treason to this day by the 6th of Edward the 6th that Error is taken away in High-Treason but there is a Proviso in that Statute that if the Person Out-lawed shall within a Year after the Out-lawry pronounced yeild himself to the Cheif-Justice of the King Bench and offer to traverse his Indictment and on his Tryal shall be acquitted he shall be discharged of the Out-lawry upon the construction of this Statute no Judgment was ever given that I know of and the reason is no Man Out-lawed was ever denyed a Tryal till this time if he was taken within a competent Time the reason of making that Stature was this Men would commit Treason and presently fly beyond Sea and stay there till the Witnesses who should prove the Treason were dead then return and reverse the Outlawry for the Error of their being beyond Sea and the Witnesses being dead they were safe and therefore this Statute takes away that Error in part tho not in the whole and doth in effect say that the Person Outlawed shall not have advantage of that Error unless he comes and takes his Tryal within a competent time which that Statute limits to be a Year after the Outlawry pronounced This being plainly the Sence of the Statute it was injustice to deny the Favour or â—ight of a Tryal to Sir Thomas Amstrong which vvas never denyed any Person before nor since where it was agreed that all the Witnesses against the Person accused vvas alive as in Sir Tho. Armstrong's Case they vvere barely upon the quibble of the Word render vvhich in no Case that ever I read vvas ever differenc'd from takes but in one Case vvhich is Smith and Ashes Case in Cro. Câ—r 42. In an Outlawry for Debt against Husband and Wife which vvill not extend to or vvarrant the Judgement in this Case and if there vvere but a doubt in the Case as it cannot be denyed but there vvas the Outlawry ought to have been vvaved or at least Council for the Prisoner heard as to the Point It vvas a vain and unjust reason and only tending to incenst the thing assigned by the Attorney That the Prisoner vvas on vvho actually engaged to go upon the King 's hasty coming to Town to destroy him by the vvay whenas the Prisoner offered to prove his innocence in that and other Matters of vvhich he vvas accused and even that object against him vvas an Invention of the Attorneys for any thing appears but then it was resolved to stop as nothing and â—…cess had made shem fearless Fitz-Harris and Colledge 't was owned had hard measure and that their Case might be forgotten their Quarters were buryed but Sir Thomas Armstrong's were exposed tho the Proceedings against him were equally as unjustifiable as in the other two Case REMARKS ON THE TRYAL OF C. Conningsmark I Think fit to remember in the same Reign tho before this time one Case to shew how the Courts of Justice were remiss or voilent according to the subject Matter All will agree that the Murther of Mr. Thynne was one of the most Barbarous and Impudent Murthers that ever was Committed and of that Murther Count Conningsmark tho he escaped Punishment was the most Guilty I do not complain that in that Tryal the Chief Justice directed the Prisoner the way to make the Kings Councel shew the cause of Challenge against the Persons called on the Jury and challenged for the King without Reason it was his Duty so to do and he ought to have directed Fitz-Harris the same Method which he did not but he was blameable that he did not ask the Lieutenant and Polander what they had to say for themselves which was always done before and since that time and ought to be asked of every Prisoner which was an injustice and therefore two of the Prisoners at the time of their Sentences said they were never Tryed tho I believe no great Injury to them because they had little or nothing to have said for themselves But if they had been askt they would have said as they did before their Tryals to the Justice of Peace who Committed them and as they did after their Condemnations that Count Conningsmark put them upon doing what they did which might have influenced the Jury to have found the Count Guilty which was contrary to the Design of the Court and it was for the same Reason the Chief Justice would permit the Justice of Peace to read the Examination of Sterne and Barosk I do agree that what they said before the Justice of
till the particular Articles were exhibited which is true for by the same Reason a Defendant cannot plead a Action depending against him for the same matter in a superiour Court unless the Plaintiff hath declared against him in the Superior Court which is not true It was not a Reason that all Records in inferior Courts must be pleaded particularly as Indictments and the like because such Records must be certain and particular or else they are erroneous and cannot be pleaded but an Impeachment may be general Where the matter of a Plea is nought no form can make it good tho' where the matter of a Plea is good an ill form may spoil it if therefore a general Indictment or Record is nought as in all the cases cited against the Plea it was no special averment to reduce it to a certainty or any form can make it a good Plea but a general Impeachment is good and therefore it may and must be pleaded generally and pleading it specially would make it false if there were no subsequent Articles as in this case there was not to ascertain it It is to no purpose to run thorow all the ramble of the Counsel or Court against the Plea when they all said the matter of the Plea was not in question but the Form and yet when so often asked in what of the Form it was defective they were not able to answer If it be agreed that the matter of a Plea is good but it is defective in Form they always shew how it ought or might have been mended which in this case was never done And as this case was new in several particulars so it is in this that in reading all the Arguments of this Plea no man knows by what was discoursed what was the point in question After the Arguments the Chief Justice in shew at least very favourably offers the Prisoners Counsel liberty to amend the Plea if they could which they apprehended as they had Reason for I think none can shew how it might have been mended rather a Catch than a Favour refused to do whereupon the Court took time to consider of it and on the 11th of May there being a great Auditory rather to hear how the Judges would bring themselves off than to know what the Law of the Plea was the Chief Justice without any Reasons delivered the Opinion of the Court upon Conference had with other Judges That his Brothers Jones Raymond and himself were of Opinion that the Plea was insufficient his Brother Dolbin not resolved but doubting concerning it and therefore awarded the Prisoner should plead to the Indictment which he did Not Guilty and his Tryal ordered to be the next Term. I think it would puzzle any person to shew that if ever a Court of Westminster Hall thought a matter of such difficulty as fit to be argued that they gave their Judgments afterwards without the Reasons 'T is true that the Courts of Civil Law allow Debates amongst the Judges to be private among themselves but the Proceedings at Common Law always were and ought to be in aperta curia Had this practice taken place heretofore as it hath of late but all since this President no man could have known what the Law of England was for the year Books and Reports are nothing but a Relation of what is said by the Counsel and Judges in giving Judgment and contain the Reasons of the Judgment which are rarely exprest in the Record of the Judgment and it is as much the duty of a Judge to give the Reasons why he doubts as it is of him who is satisfied in the Judgment Men sometimes will be ashamed to offer those Reasons in publick which they may pretend satisfies them if concealed besides we have a Maxim in Law undeniable and of great use That any person whatever may rectify or inform a Court or Judge publickly and privately as amicus curiae a Friend to the Court or a Friend to Justice But can that be done if the standers by know not the Reason upon which the Court pronounce their Judgment Had the three Judges who were clear in their Opinion given their Reasons of that Opinion perhaps some of the standers by might have shewed Reasons unthought of by them to have made them stagger in if not alter that Opinion or if Justice Dolbin had given the Reason of his doubt perhaps a stander by might have shewn him a Reason unthought of by him which would have made him positive that the Plea was or was not a good Plea. If a man Swears what is true not knowing it to be true tho' it be logically a Truth as it is distinguished yet it is morally a lye and if a Judge give Judgment according to Law not knowing it to be so as if he did not know the Reason of it at that time but bethought himself of a reason for it afterwards tho' the Judgment be legal yet the pronouncing of it is unjust Judges ought to be bound up by the Reasons given in publick and not satisfie or make good their Judgment by after thought of Reasons How very ill did it become the Chief Justice Popham a person of learning and parts in the attainting Sir Walter Rawleigh of which Tryal all since that time have complained when ha gave his Opinion that the Affidavit of the Lord Cobham taken in the absence of Sir Walter might be given in Evidence against him without producing the Lord Cobham face to face to Sir Walter which was desired by him although the Lord Cobham was then forth-coming When he summed up the Evidence he said Just then it came into his mind why the Accuser should not come face to face to the Prisoner because he might detract his Evidence and when he should see himself must dye he would think it best that his Fellow should live to commit the like Treason and so in some sort seek revenge Which besides that it is against the Common Law and Reason it is against the express Statute of E. 6. which takes care that in Treason the Witness shall be brought face to face of the person accused Did it become a just man to give his Opinion and bethink himself of a Reason afterwards And I am mistaken if it will not herein appear that many persons complained of have been guilty of the same weakness or injustice call it which you will so foolish are the best Lawyers and plausible Speakers when they resolve to carry a point whether just or not However they may deceive the Ignorant yet they talk and argue very absurdly to the apprehension of the majority of mankind And they had been sooner discovered but that the discoverers were quickly supprest and crushed as Scandalisers of the Justice of the Nation And I think this may be justly called the first mute Judgment given in Westminster-Hall But to return to Fitzharris his Tryal which came on the 9th of June and then the King's Counsel made use of