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city_n	great_a	king_n	people_n	9,166	5	4.4099	3	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A43106	Remarks upon the tryals of Edward Fitzharris, Stephen Colledge, Count Coningsmark, the Lord Russel, Collonel Sidney, Henry Cornish, and Charles Bateman as also on the Earl of Shaftsbury's grand jury, Wilmore's Homine replegiando, and the award of execution against Sir Thomas Armstrong / by John Hawles.	Hawles, John, Sir, 1645-1716.	1689 (1689)	Wing H1188; ESTC R10368	100,698	108

Libel as ever was writ yet I own if it had been writ and dispersed with that Design it had been High Treason within the Statute of E. 2. But the most natural Construction of the worst Design of it was to trepan the Parliament-men and make the Libels Evidences of a Rebellious Conspiracy this Everard confesses Fitzharris told him was the use to be made of them and Everard could not know the Design of them but by what Fitzharris told him And Oates well explains what Everard meant by the words in his Evidence put the Libel on the Nonconformists by what Everard told him But yet even that though in it self the highest Crime a Man can be guilty of next to putting it in Execution is but a Conspiracy which was mildly punished in Lane and Knox their Case though this exceeded that that being a design only against one Person this against many Yet tho' this was of no higher Crime by the Law as now established than a Misdemeanor it was fit for the Legislative Power to have punished it in manner it was punished which yet the Legislative Power ought to resent as an Injury for an inferior Court 's snatching the Exercise of that Power out of their hands which only belongs to the Supream Authority That this Crime upon construction of the Evidence taken in the best Sense is no Treason though the Libel should in all probability incite the Subject to leavy War which it was not likely to do or in Fact it had been the cause of a Rebellion yet if it was not designed by the Contriver to that purpose it was not Treason by the Statute of Edward the Third or Charles the Second for in the last Statute it is Designing to levy War and in the Statute of Edward the 3d. it is a strained Construction to make designing to leavy War Treason yet none ever pretended to strain the Sense of that Statute farther than designing to do it If the Ill Effects the Libel did or might produce made it Treason then Sir Samuel Astrey who read it in Court at the Tryal and the Printer that afterward printed and published it and Sir William Waller who read it to Mr. Hunt and others were guilty of Treason for the Libel carried no Venom or Charm with it the more for being framed by Fitzharris or Everard or for being published by either of them than if published by another person The difference is Astrey read it aloud as his Duty the Printer printed and published it for gain Sir William Waller published it as a Novelty and if Fitzharris contrived it to put it upon the Nonconformists or Parliament Men and not stir up a Rebellion tho' it tended to all the ill consequences mentioned in his Indictment yet it was not Treason But it will be urged how shall Fitzharris his intention be proved it was a question which made a mighty sputter in arguing the Plea how shall it be proved that the Impeachment was for the same Treason for which the Indictment was but in the Tryal of Fitzharris that question was fully cleared for it was proved there that the very Libel then produced in Court was the same Libel read in the House of Commons upon which the Impeachment was Voted And to say Truth nothing can be put in Issue but is capable of Tryal Quo animo a thing is done in all overt Acts of a design is one of the main questions or to speak in Law Phrase whether done proditoriè or not an Adverb of great use and sense tho' heretofore slighted and under which I believe a great many persons will be enforc'd to shelter themselves from being punished by the Law Established No Man will pretend that Libel did any man Mischief but the Contriver nor in probability could have done if not used to the purpose Everard said to Oates Yet other persons have been guilty of as illegal Acts of worse consequences in prospect and much worse in effect and it did not amount to Treason I dare say the Allegation that they disturbed the Kingdom by their Acts and War caused to be moved against the King is true of them and they are guilty of all the aggravations used in Indictments of Treason To instance in some of many Did it not make a mighty heart-burning in the City against the Government and raised great Jealousies between the King and People when the Sheriffs North and Rich were imposed on the City Did not the taking away the Cities right of Electing Sheriffs and the suspicions for what end it was done besides the Illegalities that followed If Sir Edward Herbert in his late Vindication fol. 16. be Law as it hath an Aspect as if it were that Grand Juries returned by such as are Sheriffs in fact but not in right are illegal and Convictions on their presentments are illegal and void give great disturbance and that Opinion seems to be countenanced by my Lord Coke's 3d. Instit fol. 32. in his Comment on the 11th of Henry the 4th and consequently the Lord Russel's and other Attainders void Did it not add to the heart-burning the punishing those Citizens as Rioters who were at Guildhall innocently contesting their right of Electing Was it not an increase of the mischief the bringing the Quo Warranto against the City whereby the Credit of the City was lost and many Orphans starved and more impoverished beyond the possibility of recovery And it was yet heightned by the Judgment given in the highest Case that ever came into Westminster-Hall by two Judges only and that without one word of Reason given at the pronouncing according to the pattern of Fitzharris his case and was the second mute Judgment Did it not fright all honest men from being on criminal Juries when Willmore was so illegally prosecuted for not giving a Verdict against his Conscience by an homine replegiando and Information And did not that make all Merchants who had Transactions beyond Sea afraid to send their Servants thither for fear they might be laid by the heels till they fetched them back again Did it not startle the Lords and the Leading Men of the House of Commons mentioned so often in Fitzharris his Tryal when the Earl of Essex Lord Russel Collonel Sidney Mr. Hampden and several others were clapt up close Prisoners in the Tower Did it not deter any honest man from appearing to witness the truth when Sir Patience Ward was convicted of Perjury Did it not provoke two great and noble Families when the Lord Russel and Collonel Sidney were so illegally and unhandsomely dealt withal as shall be hereaster declared Did it not provoke all the Nation except the Clergy and Soldiery when all the Charters of England were seized and not regranted but at excessive rates to the starving the poor who should have been fed with the Money which went to purchase the new Charters and reserving the disposition of all the places of profit and power within the new Corporations to the

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

REMARKS UPON THE TRYALS OF Edward Fitzharris Stephen Colledge Count Coningsmark The Lord Russel Collonel Sidney Henry Cornish and Charles Bateman As also on the Earl of SHAFTSBURY's Grand Jury WILMORE's Homine Replegiando And the AWARD of EXECUTION against Sir Thomas Armstrong By John Hawles Barrister of Lincolns-Inn Nec partis studiis agimur sed sumpsimus arma Consiliis inimica tuis ignavia fallax Selden of Tithes LONDON Printed for Jacob Tonson at the Judges Head in Chancery-Lane near Fleetstreet MDCLXXXIX THE CONTENTS REmarks on Fitzharris's Tryal pag. 3 Remarks on Colledge's Tryal p. 20 Remarks on the Earl of Shaftesbury's Grand Jury p. 45 Remarks on Wilmore's Homine Replegiando p. 52 Remarks on the Lord Russel's Tryal p. 56 Remarks on Collonel Sidney's Tryal p. 76 Remarks upon the Award of Execution against Sir Thomas Armstrong p. 83 Remarks on the Tryal of Count Coningsmark p. 85 Remarks on Mr. Cornish's Tral p. 89 Remarks on the Tryal of Charles Bateman p. 99 REMARKS UPON SEVERAL TRYALS THE strange Revolution which hath of late happened in our Nation naturally leads one into the considerations of the Cause of it The danger of subverting the Established Religion and invading Property alone could not be the Causes For if it be true that the same Causes have generally the same Effect It is plain that in the Reign of a precedent Monarch the Subversion of the Established Religion was as much designed or at least it was believed to be so as of late and it is not material whether what was suspected was true or not and Property was as much Invaded as of late by imposing Ship-money and other Taxes on the Nation but more especially Ship-money which at first was light and easie but in progress of time was encreased according as it was found the Nation would bear it And at length it was feared as there was just reason so to do that it would become as burthensom as what is now impos'd on the French Nation by the French King and yet when the War broke out if the History of those Times or the Persons who lived a bout those Times are to be believed the majority of the Nation took part with the King. There was therefore some other Reasons for the Disaffection of the Nation to the late Government and they may be ranked under these six Heads Exorbitant Fines Cruel and Illegal Prosecutions Outragious Damages Seising the Charters Dispensing with the Test and Penal Laws And Undue Prosecutions in Criminal but more especially in Capital Matters For the first I shall only observe That when the House of Commons in the Parliament 1680. took that matter into consideration and intended to impeach several Persons for the same the highest Fine at that time complained of was but 1000 l. and yet in few Years they were heightned to 10000 l. 20000 l. 30000 l. and 40000 l. For the second The punishment of Oates Dangerfield and Mr. Johnson and the close Imprisonment of Mr. Hampden Sir Samuel Bernardiston and of several other Persons as it was against Law so it was without Precedent For the Third Tho' the Damages given to Bolsworth was the first Outragious Damages given which were taken notice of and in truth were such yet in little time Damages for matters of like kind were quickly improved to 10000 l. 20000 l. 40000 l. nay 100000 l. The truth of which a great many living Witnesses to their Sorrow can testifie For the Fourth The seising the City and other Charters upon the pretences they were questioned was without Example For the Fifth The Dispensing with the Test and Penal Laws was as mischievous as it was Illegal it making persons capable which were incapacited by Law of being in Places and of exercising Offices for whom the persons who had Power to Confer of Bestow the same had more affection than for the persons who at that present enjoyed them the Consequence of which was quickly seen in turning out the present possessors to make room for others which was the thing which as a Scotch Bishop said of another matter set the Kiln a fire Of these five particulars something hereafter may be said at present this Treatise is only to consider how far the Proceedings in Capital Matters of late years have been Regular or Irregular And as to that I shall not at all consider how far the persons hereafter mention'd were Guilty of the Crimes of which they were accused but how far the Evidence against them was Convincing to prove them Guilty and what Crimes the Facts proved against them in Law were REMARKS ON Fitzharris's Tryal THE first Person I shall begin withal shall be Fitzharris and that it may not be wondred that the Tryal and Comdemnation of a Person who was confessedly an Irish Papist should be complained of and one whose Crimes were such that if the Law declared had not made Capital it had been just in respect of the Malefactor for the Legislative Power to have Enacted that he should suffer the severest Punishment usually inflicted for the Highest Crime yet in respect of the common good it had been just and fit to have pardoned him if he would have confessed who was his Conspirators and setters on for I am apt to think that if that matter had been thorowly lookt into some Persons afterwards Witnesses in the Lord Russel's Collonel Sydney's and Mr. Hampden's Tryals had either never been produced or have not been credited if produced nor would my Lord of Essex's Throat have been cut and my Lord Russel and Collonel Sydney might have worn their Heads on their Soulders to this day All will agree that there was a great struggle between the Whigs and Tories as they were then called for hanging or saving that man both agreed he deserved to be hanged the first thought it their advantage to save him if he would confess the last thought it was fit to hang him for fear he would cofess and to explain the matter it is fit to go a little higher It cannot be but remembred that before the breaking out of the Popish Plot Mr. Claypole was imprisoned in the Tower for designing to kill the King in such place and manner as Oates afterwards discover'd the Papists intended to do it In Trinity Term 1678. he had an Habeas Corpus to the King's-Bench and was brought thither in order to be Bailed and produced persons of worth to bail him but the penalty of the Bail set by the Court was so high and the Court so aggravated the Crime for which he was committed and the likelyhood of the Truth of it that the Bail refused to stand and Claypole was remanded to the Tower. But the Term after when the matter of which he was accused appeared bare faced to be the Design of other people he was let go for fear the Examination of it should go farther in proving the Popish Plot than any thing at that time discovered And if it were now discovered upon whose and what

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

off his Tryal and it was referred to the Judges he did not know whether he was committed for High-Treason against the then present or the former King and he had a material Witness an hundred an forty Miles off but was told by the Court they had no Power to put off his Tryal it is true they said the Lord Russel's Tryal was put off to the Afternoon which was not true but that was a Favour which could not be challenged by another person as a Right he complained he had not a Copy of the Pannel but was answered it was not his Right to have it then the Attorney said he had not deserved so well of the Government as to have his Tryal delayed and therefore he was presently tryed Rumsey swore that about the latter end of October or beginning of November the Earl of Shaftsbury desired him to go to Mr. Sheppard's House where was a Meeting of the Duke of Monmouth Lord Russel Lord Gray Sir Thomas Armstrong Mr. Ferguson and Mr. Sheppard he came late and they were just on going away he delivered his Message and they told him that Mr. Trenchard had disappointed them he had not been there above a quarter of an hour but Mr. Sheppard was called down and brought up Mr. Cornish and told them Mr. Cornish was come who came into the Room and excused his not coming sooner and that he could not stay for he was to meet about the Charter whereupon Mr. Ferguson opened his Bosom and under his Stomacher pulled out a Paper they told Mr. Cornish they had had it read and desired to read it to him Mr. Ferguson read it Mr. Sheppard held the Candle while it was reading and afterwards they asked Mr. Cornish how he liked it who said he liked it very well he remembred two Points in it very well the one was for Liberty of Conscience the other was that all who would assist in that Insurrection which had Church or Kings-Lands in the late War should have them restored to them he did not hear all the Paper and observed only these two Points it was a Declaration on a Rising and when the Rising was to have been it was to have been dispersed abroad there was a Rising intended at that time and Mr. Cornish said he lik'd the Declaration and what poor Interest he had he would joyn with it he had great Dealings with Mr. Cornish and Mr. Cornish was a very honest Man it was out of compassion he had not accused Mr. Cornish before Mr. Goodenough said there was a Design to rise in London and for that purpose to divide the City into twenty parts and to raise five hundred Men out of each part to take the Tower and to drive the Guards out of Town before that agreed on he being by chance at Mr. Cornsh's House said the Law will not defend us some other way was to be thought on Mr. Cornish said he wondred the City was so unready and the Country so ready Mr. Goodenough replyed there is something thought of to be done here but in the first place the Tower must be seized where the Magazine is Mr. Cornish paused a little and said I will do what good I can or what I can or to that purpose he said He afterwards met Mr. Cornish on the Exchange who asked him how Affairs went and this was in Easter Term 1683. He had some Matters with Mr. Cornish about managing the Riot which was brought against him Mr. Cornish and others he came to Mr. Cornish's House about the Business of the Riot and no Person was by at the Discourse Mr. Gospright testified for Mr. Cornish that he opposed Mr. Goodenough's being Under-Sheriff and said he would not trust an Hair of his Head with him he was an ill Man obnoxious to the Government and had done ill things and he would not trust his Estate and Reputation in the Hands of such an Under-Sheriff and he believed Mr. Goodenough and Mr. Cornish were never reconciled Mr. Love Mr. Jekil and Sir William Turner testified to the same purpose Mr. Lane spoke out of the Printed Tryal of my Lord Russel and said Rumsey in that Tryal said he did not hear the Declaration read for it was read before he came Dr. Calamy said Mr. Cornish did often come to Church and receive the Sacrament Mr. Sheppard said he was Subpaend d by the King and by Mr. Cornish the Night before and that Mr. Cornish his Son was with him the Afternoon of the day before who prest him to be at the Tryal the next day that there were Accounts depending between him and Mr. Cornish whereon there was about one or two hundred Pounds due to Mr. Cornish and Mr. Cornish's Subpena was served first upon him At one of those Meetings at his House Mr. Cornish came to speak a few words with the Duke of Monmouth or some other he could not be positive in that it was so many Years ago he did not stay above half a quarter of an hour in the House Sheppard came up Stairs and went out with Mr. Cornish and there was not one word read nor no Paper seen while Mr. Cornish was there he remembred there was a Declaration read Ferguson pulled it out of his Sho he could not tell whether Mr. Cornish was at his House the Night the Declaration was read but he was positive no Paper was read while Mr. Cornish was there for Mr. Cornish was not look'd on to be one of the Company he did not know who Mr. Cornish came to speak with when he came to Sheppard's House Mr. Cornish was but once at his House when the Duke of Monmouth was there he did not remember that Mr. Cornish was in the Company when Rumsey was there he said he had attended the Court from Eleven a Clock till half an hour past three This being the Sum of the Evidence given in the Tryal for and against the Prisoner Let us see whether those Inferences could be made from it as was made by the Court and Councel and whether on the whole and honest Jury tho but of little understanding could have found him Guilty of the Treason in the Indictment It is agreed of all Hands that a petty Jury may and must consider the credibility of a Witness tho in the Lord Shiftsbury's Case it was said a Grand Fury ought not so to do and if so surely Rumsey was not a credible tho he was not a disabled Witness no more than a Man who owns himself to be a Man of Falshood a profligate Wretch and perjured by his own Confession tho not Convicted of it he had notoriously confessed himself Guilty of High-Treason and of being in the Design of an intended barbarous Murther he had sworn in the Lord Russel's Tryal he had named all the Persons at the Meeting he spoke of of which Mr. Cornish was none and being taxt in this Tryal with it he excuses his Perjury with Compassion to the Prisoner which was mean