I DO appoint Dorman Newman to Print the Tryal of Henry Baron Delamere and order that no other Person presume to Print the same March 20. 1685 6 Jeffreys Canc. THE TRYAL OF HENRY Baron Delamere FOR HIGH-TREASON In WESTMINSTER-HALL the 14 th Day of January 1685. Before the Right Honourable George Lord Jeffreys Baron of Wemm Lord High Chancellour of England Constituted Lord High Steward on that Occasion On which Day after a full Hearing the Lord Delamere was Acquitted from all Matters laid to his Charge LONDON Printed for Dorman Newman at the Kings Arms in the Poultry MDCLXXXVI THE TRYAL OF HENRY Baron of Delamere Die Jovis xiv to Januarii 1685. Cl. of Cr. SErgeant at Arms Make Proclamation Serj. at Arm. O yes O yes O yes My Lord High Steward of England his Grace doth straightly charge and command all manner of persons to keep silence and to give ear to the King's Majesty's Commission to his Grace my Lord High Steward of England upon pain of Imprisonment Then the Commission was read his Grace and all the Peers standing up bare-headed Then the Staff being carried between Garter King at Arms and the Gentleman Usher of the Black Rod was with three reverences delivered upon the knee to his Grace and by him re-delivered to the Gentleman Usher of the Black Rod to hold during the Service Cl. of Cr. Serjeant at Arms Make Proclamation Serg. at Arm. O yes His Grace my Lord High Steward of England doth straightly charge and command all manner of persons here present except Peers Privy Councellors and the reverend Judges now assistant to be uncovered Cl. of Cr. Make Proclamation Serg. at Arms. O Yes My Lord High Steward of England his Grace straightly chargeth and commandeth all Justices Commissioners and all and every other person and persons to whom any Writ or Precept has been directed for the certifying of any Indictment or Record before his Grace my Lord High Steward of England That they do certifie and bring in the same forthwith according to the Tenor of the same Writ and Precept to them or any of them directed upon Pain and Peril shall fall thereon Then Sir Edward Lutwich one of his Majesty's Sergeants at Law and Chief Justice of Chester delivered in his Writ and Return at the Clerks Table The Writ of Certiorari and the Return thereof were read in haec verba L. H. Steward Call the Lieutenant of the Tower to return his Precept and bring his Prisoner to the Bar. Cl. of Cr. Make proclamation Serg. at Arms. Lieutenant of the Tower of London return thy Writ and Precept to thee directed together with the Body of Henry Baron of Delamere thy Prisoner forthwith upon Pain and Peril shall fall thereon The Prisoner was brought to the Bar by the Lieutenant of the Tower The Writ and Return thereof together with his Grace's Precept and the Return thereof were read in haec verba Cl. of Cr. Make proclamation Serg. at Arms. Sir Roger Harsnet Knight Sergeant at Arms to our Sovereign Lord the King return the Precept to thee directed together with the Names of all the Lords and Noblemen of this Realm of England Peers of Henry Baron of Delamere by thee summoned forthwith upon Pain and Peril shall fall thereon The Sergeant at Arms delivered in his Precept and Return at the Clerks Table L. H. Steward Read the Precept and the Return They were read in haec verba Cl. of Cr. Make an O Yes Serg. at Arms. O Yes All Dukes Earls Viscounts and Barons of this Realm of England Peers of Henry Baron of Delamere who by Commandment of my Lord High Steward of England His Grace were summoned to appear here this Day and are now present in Court answer to your Names upon Pain and Perii will fall thereon The Peers summoned were called over and those that appeared standing up uncovered answered to their Names each making a Reverence to the Lord High Steward Cl. of Cr. Laurence Earl of Rochester Lord High Treasurer of England L. H. Treas Here. Cl. of Cr. Robert Earl of Sunderland Lord President of his Majesty's Privy Council Lord Presid Here. Cl. of Cr. Henry Duke of Norfolk Earl Marshal of England D. of Norf. Here. Cl. of Cr. James Duke of Ormond Lord Steward of his Majesty's Houshold He did not appear Cl. of Cr. Charles Duke of Somerset D. of Som. Here. Cl. of Cr. Christopher Duke of Albermarle He did not appear Cl. of Cr. Henry Duke of Grafton D. of Graft Here. Cl. of the Cr. Henry Duke of Beaufort Lord President of Wales D. of Beauf. Here. Cl. of Cr. John Earl of Mulgrave Lord Chamberlain of his Majesty's Houshold E. of Mulg Here. Cl. of Cr. Aubery Earl of Oxford E. of Oxf. Here. Cl. of Cr. Charles Earl of Shrewsbury E. of Shrews Here. Cl. of Cr. Theophilus Earl of Huntingdon E. of Hunt Here. Cl. of Cr. Thomas Earl of Pembroke E. of Pemb. Here. Cl. of Cr. John Earl of Bridgwater E. of Bridgw Here. Cl. of Cr. Henry Earl of Peterborow E. of Peterb Here. Cl. of Cr. Robert Earl of Scarsdale E. of Scarsd Here. Cl. of Cr. William Earl of Craven E. of Craven Here. Cl. of Cr. Richard Earl of Burlington He did not appear Cl. of Cr. Louis Earl of Feversham E. of Feversh Here. Cl. of Cr. George Earl of Berkeley E. of Berk. Here. Cl. of Cr. Daniel Earl of Nottingham E. of Notting Here. Cl. of Cr. Thomas Earl of Plimouth E. of Plim Here. Cl. of Cr. Thomas Viscount Falconberge L. Falconberge Here. Cl. of Cr. Francis Viscount Newport Treasurer of his Majesty's Houshold L. Newport Here. Cl. of Cr. Robert Lord Ferrers L. Ferrers Here. Cl. of Cr. Vere Essex Lord Cromwell L. Cromwell Here. Cl. of Cr. William Lord Maynard Comptroller of his Majesty's Houshold L. Maynard Here. Cl. of Cr. George Lord Dartmouth Master General of his Majesty's Ordnance L. Dartmouth Here. Cl. of Cr. Sidney Lord Godolphin L. Godolphin Here. Cl. of Cr. John Lord Churchill L. Churchill Here. Then his Grace the Lord High Steward addressed himself to the Lord Delamere the Prisoner at the Bar in this Manner L. H. Steward My Lord Delamere the King being acquainted that you stand accused of High Treason not by common Report or Hearsay but by a Bill of Indictment found against you by Gentlemen of great Quality and known Integrity within the County Palatine of Chester the place of your Residence has thought it necessary in Tenderness to you as well as Justice to himself to order you a speedy Tryal My Lord if you know your self innocent in the name of God do not despond for you may be assured of a fair and patient hearing and in your proper time a free Liberty to make your full Defence and I am sure you cannot but be well convinced that my Noble Lords that are here your Peers to try you will be as desirous and ready to acquit you if you appear to be innocent as they will to
Circumstances if your Lordships be satisfied he went for that purpose do necessarily knit the positive Testimony of Saxon and amount to a second Witness That is if Saxon's positive Testimony be true then suppose all these Circumstances that gove the Jealousie do make up a strong presumption to joyn with the positive Evidence of Saxon then you have two witnesses as the Law requires especially if the answer given by the Prisoner to those Circumstances be not sufficient as the slender account he gives of his so frequent Journeys in so short a compass of time but that there still remains some Suspicion I could have wished indeed that matter might have been made somewhat more clear that no shadow of Suspicion might remain Your Lordships are Judges And if you do not believe the Testimony of Saxon whose Testimony hath been so positively contradicted by divers Witnesses of Quality the Prisoner ought to be acquitted of this Indictment If your Lordships please You may go together and consider of it Lords Ay withdraw withdray Then the Peers withdrew in their order according to their Precedency with the Serjeant at Arms before them Lord High Steward Lieutenant of the Tower take your Prisoner from the Barr The Prisoner was taken into the little Room appointed for him at the entrance into the Court. The Peers staid out about half an hour and then returned in the same Order that they went out in and Seated themselves in their places as before Cl. Crown Serjeant at Arms take the appearance of the Peers Lawrence Earl of Rochester Lord High Treasurer of England He stood up uncovered and answered Lord Treasurer Here. And so did all the rest Lord High Steward My Lords are you agreed of your Verdict Lords Yes The Lord High Steward took their Verdict Seriatim beginning with the puisue Peer in this manner Lord High Steward How say you my Lord Churchill is Henry Baron of Delamere guilty of the High Treason whereof he stands Indicted and hath been Arraigned or not guilty The Lord Churchill stood up uncovered and laying his hand on his Breast answered Lord Churchill Not guilty upon my Honour And so did all the rest of the Peers Lord High Steward Lieutenant of the Tower bring your Prisoner to the Barr. The Prisoner was brought again to the Barr. Lord High Steward My Lord Delamere I am to acquaint you that my Noble Lords your Peers having considered of the Evidence that hath been given both against you and for you after they were withdrawn have returned and agreed of their Verdict and by that Verdict have unanimously declared that you are not guilty of the High-Treason whereof you have been Indicted and this day Arraigned And therefore I must discharge you of it Lord Delamere May it please your Grace I shall pray to Almighty God that he will please to give me a Heart to be Thankful to him for his Mercy and my Lords for their Justice And I pray God deliver their Lordships and all honest men from Wicked and Malitious Lying and False Testimony I pray God bless His Majesty and Long may he Reign Lord High Steward And I pray God continue to him his Loyal Peers and all other his Loyal Subjects Cl. Crown Serjeant at Arms make Proclamation Serjeant at Arms. Oyes My Lord High Steward of England his Grace straightly willeth and commandeth all manner of Persons here present to depart hence in Gods Peace and the Kings for his Grace my Lord High Steward of England now dissolves his Commission GOD SAVE THE KING At which words his Grace taking the white Staff from the Vsher of the Black Rodd held it over his own Head and broke it in two Thereby dissolving the Court FINIS
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
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
an entire Confidence in your Resolution Fidelity and good Affections to Him that You will not by reason of the Prisoner's Quality and nearness to You as being a Peer of this Realm acquit him if he shall appear to be Guilty My Lords I have one thing further to mind your Lordship 's of That according to the usual Forms of Proceedings in these Cases if your Lordship's have any Questions to propound wherein You would be satisfied as to any Matter either of Fact or Law your Lordships will be pleased to put those Questions to Me and I shall take care to give your Lordships the best Satisfaction I can Lord Delamere My Lord High Steward I beg the Favour of your Grace I may have One to write for me Lord H. Steward Ay by all means Let my Lord have whom he pleases to write for him Then Sir Thomas Jenner One of His Majesty's Serjeants at Law and Recorder of the City of London opened the Indictment thus Mr. Recorder May it please your Grace my Lord High Steward of England and You my Noble Lords the Peers of the Prisoner at the Barr Henry Baron of Delamere the Prisoner at the Barr stands indicted for that He as a False Traytor against the most Illustrious and most Excellent Prince our-Soveraign Lord the King that now is not having the Fear of God in his Heart nor weighing the Duty of his Allegiance the Fourteenth Day of April last at Meer in the County of Chester did maliciously Conspire with other False Traytors to the Jurors unknown the Death and Deposing of the King And for the better and more effectual fulfilling of those his Treasons the said Fourteenth Day of April at Meer afore-said did Maliciously and Trayterously Assemble Consult and Agree with Charles Gerrard Esq and other False Traytors to Raise great Summs of Money and procure Numbers of Armed Men to make a Rebellion against the King and the City and Castle of Chester to seize with the Magazines there And that afterwards the Twenty-Seventh Day of May last he took a Journey from London to Meer aforesaid to accomplish his Treasonable Intentions And further That upon the Fourth Day of June in further Prosecution of his Trayterous Purposes at Meer aforesaid he did encite divers Subjects of our Lord the King to joyn with him and other false Traytors in his Treason And this is laid to be against the Duty of his Allegiance against the Peace of our Soveraign Lord the King his Crown and Dignity and against the Form of the Statute in that Case made and provided To this Indictment may it please your Grace and the rest of these Noble Lords my Lord Delamere the Prisoner at the Barr has Pleaded Not Guilty and for his Tryal has put himself upon his Peers We shall therefore call our Witnesses for the King and if We prove him Guilty We do not question but your Lordships will find him so Mr. Att. Gen. May it please your Grace my Lord High Steward of England and You my Noble Lords the Peers My Lord Delamere the Prisoner at the Barr stands Indicted for Conspiring the Death of His Majesty and in order thereunto to Raise a Rebellion in the Kingdom My Lords In proving this Charge upon him we crave Leave to give your Grace and your Lordships some short Account by Witnesses that we have here of a former Design that was previous to this Matter for which this Noble Lord stands here accused And We shall not trouble your Grace and your Lordships with any long Evidence because it has received many solemn and repeated Tryals and as to the Proof of it has been Confirmed by as many Verdicts But We do it rather to give some Account as an Introduction to a Material Evidence by shewing That Cheshire which was the Province of this Noble Lord was One of the Stages where that Rebellion was principally to be acted and that preparatory to it great Riotous Assemblies and Tumultuous Gatherings of the People were set on foot by the Conspirators We shall then shew my Lords That after the late Duke of Monmouth the Head of the Conspiracy went beyond Sea especially after the Death of the late King frequent Messages and Intercourse of Correspondency were sent and held between him and the rest of his Accomplices abroad and their Fellow Conspirators here at home And particularly We shall prove That a little before the Rebels came over last Summer into the West the Duke of Monmouth did dispatch one Jones who was one of the most considerable Agents in this Contrivance to come from Holland into England to let his Friends know that though he had intended to go into Scotland and begin his Work there yet now his Resolutions were for England where he hoped his Friends would be prepared for him And with this Message and Resolution of his Jones was to acquaint some Lords who they were the Witness will tell your Lordships but among others this Noble Lord the Prisoner was one And to acquaint them besides That he would immediately set sayl for England whither he would come so soon as he could get That he had a Design to have Landed in Cheshire where he expected to be most readily receiv'd but finding That inconvenient they should have notice Four or Five Days before-hand of the Place of his Landing which he intended should be in the West And among the Directions that Jones had to give to those Lords one was That they should immediately repair into Cheshire there to wait for the News These Instructions Jones had given him in Writing but Sealed up with an Injunction not to open them till he came to Sea and then he was to peruse that Writing and deliver his Message according to his Instructions And in that Writing was the Name of this Noble Lord as one that was principally relyed on to carry on the Rebellion in Cheshire And We shall give You an Account That the late Duke of Monmouth did look upon Cheshire as one of his main Supports and upon my Lord Delamere as a Principal Assistant There My Lords This Message was Jones to communicate to Captain Mathews and Captain Mathews was to transmit it to this Noble Lord and the other Persons that were concern'd with him Jones arrived with this Message here in England upon the Twenty-Seventh of May And I must beg your Lordships to observe the Time particularly But Captain Mathews to whom he was directed was not to be found nor Major Wildman to whom in the Absence of Captain Mathews he was to apply himself as You will hear more fully from the Witness 's own Mouth Thereupon he sends for one Disney a Name which your Lordships cannot but know he being since Executed for Treason and one Brand whom your Lordships will likewise hear of and they meet with this same Jones who communicates his Message to them and they undertake to deliver it to the Persons concern'd Captain Mathews being out of Town and Major Wildman
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
them that he had received a full account of my Lord Argyle's affairs and the preparations that had been made for it and accordingly he had ordered his own affairs to join with him he likewise sent Crag with a Message to the same purpose to other Friends in London and he dispatch'd away one Battescomb into the VVest to prepare things there When Crag returned back again to the Duke he gave him an account that Major VVildman had procured a Meeting with those Lords and Gentlemen that I mentioned before who were all of Opinion That the Duke of Monmouth should go for Scotland for they thought that his coming there would be the best Service he could do the interest at present and they should know the strength of the Enemy here by their sending Forces to suppess the Rebellion there There was likewise a particular Message from Major VVildman to the Duke of Monmouth That he desired he would bring over with him a Broad Seal to Seal Commissions with and to take upon him the Title of King the other particular branches of the Message I do not so well remember but only this he was particularly asked Whether the Prisoner at the Bar was there and he said he was Mr. Att. Gen. Pray my Lord Gray will you give an account what you know of Jones's coming over and what Errand he was sent of Lord Gray Jones came some time after Crag returned and he gave an account of other things conformable to what Crag had said and was sent back again to England by the Duke of Monmouth to give an account of his being ready to sail he gave him also a Letter the Contents whereof I did not see I had some short account of it but whether it were written to any particular Person I cannot tell the sum of his Message was That he would land by that time he could get thither Mr. Att. Gen. My Lord Gray you had frequent Discourse with the Duke of Monmouth and so I suppose can give an account who he kept Correspondence with and upon whose assistance he relyed Lord Gray I suppose few people will believe we were so weary of our Lives as to come and throw them away with Threescore or a very few more Men for it was but a very small number we began with except we had had expectation of good assistance This I am sure of by all my discourses with the Duke of Monmouth he did depend very much upon Cheshire and was resolved to have landed and begun there but afterwards he considered of it and thought better to send some sort of excuse for not landing in Cheshire That the persons that were to be applyed to there being men of great Quality and Interest in their Countrey and able to manage it without his assistance But in the VVest the Friends he relyed on were not of that considerable Quality and therefore he chose to land there Mr. Att. Gen. What Lords did he name that he depended upon Lord Gray I did name them my Lord Macclesfield my Lord Brandon and my Lord Delamere but I observed when the Duke of Monmouth spoke of his Friends in Cheshire he did name my Lord Macclesfield and my Lord Brandon as Persons E. of Nottingham My Lord Steward I humbly pray this Witness may be asked to whom that Letter was written that he saith the late Duke of Monmouth sent by Jones Lord H Stew. You hear my Lord's question who did Monmouth send that Letter by Jones to Lord Gray My Lord I never saw the Letter nor do I know any directions there were upon it I always looked upon it as a paper of Instructions given to him about the time when and the name of the place where the Duke was to land Mr. Att. Gen. We will give an account of that by Jones by and by My Lord. Now swear Nathaniel VVade Which was done Lord H. Stew. Well what do you ask this Witness Mr. Att. Gen. Wade That which I call you for is this to give an account what you know of any design of landing in Cheshire or elsewhere and of Jones's coming over and what Errand he was sent upon Mr. Wade My Ld. I shall give an account as far as I know after the death of the late King Captain Matthews came to Amsterdam and gave an account there that the Duke of Monmouth intended to be there shortly to meet and consult with my Lord Argyle who we understood then was preparing for an expedition into Scotland thereupon I was sent into Freezland to desire my Lord Argyle to come to Amsterdam which he did and there the Duke of Monmouth did consult with him and they did agree together that at the same time that my Lord Argyle made an Insurrection in Scotland the Duke of Monmouth should Invade England and to that end that he should send to those Friends he had in England to be ready to assist him when he came there and in order to it he did send Captain Matthews who amongst other things was to go to the Dukes Friends in Cheshire and amongst them my Lord Delamere was named to be one and the business was to desire them to be ready to assist him when he should land accordingly Captain Matthews went but a little after his going away I think one Crag came over and he came from Major Wildman and his business was to endeavour a good understanding between the Duke of Monmouth and my Lord Argyle who were then at some difference and to endeavour to make them act jointly by united Councils a little after he was sent back again into England to Major Wildman to desire him to assist them with some Money he went back again and returned but brought no Money thereupon he was sent again by the Duke of Monmouth because the first time he was not sent by him the Sum demanded was Six Thousand Pounds or Four Thousand Pounds and at last he sent for a Thousand Pound Crag returned with this Answer That they could not assist them with Money for they did not know to what end they should have Money but to buy Arms and for that the people were well provided enough already and there was no need of Money for that purpose The Duke of Monmouth a while after sent Mr. Crag and pawned all the Jewels he had to raise Money and fitted out Three Ships for this Service laden with Ammunition and because he had promised my Lord Argyle to make a diversion in England while he Invaded Scotland he resolved to go with that provision he had and desired by Mr. Crag that since those Lords and Gentlemen that were to assist them had sent no Money as was desired of them and expected from them they should now trouble themselves with no further needless consultations but should repair each man into his own Countrey where their interest was greatest to be ready when he should come and in order to this the Duke of Monmouth did set sail from Holland and
came to Lyme and landed there and did afterwards order his March so that he might most conveniently meet with his Cheshire Friends that is towards Gloucester and so to get Gloucester Bridg that thereby gaining the command of the River of Severn those of Cheshire if they did as was expected make an Insurrection at the same time they might easily join together In pursuance of this design we came to Keinsham Bridg and there a party of the Kings Horse set upon us and we took some Prisoners and thereupon thought it advisable not to let the Kings Army join together but to go back and engage those that were already come together and that was the reason we did not go over the Bridg. Mr. Att. Gen. Do you know any thing of Jones's coming into Holland and for what Mr. Wade My Lord I had forgot that a little before Crags going last away Jones came over and his business was to know why we staid so long for the Duke of Monmouth's Friends in England had expected him long before and he was dispatch'd away quickly to acquaint them the Duke was coming Mr. Att. Gen. Who was he sent to to acquaint with his coming VVade To Major Wildman he was directed to Major Wildman Mr. Att. Gen. Who else were to be acquainted with it Wade Among the rest my Lord Delamere my Lord Macclesfield and my Lord Brandon were to be acquainted that he was coming and expected that they should raise what Forces they could to assist him Lord H. Stew. Will my Lord Delamere ask him any Questions Lord Delamere No my Lord I never saw his Face before tat I know of Lord H. Stew. Who do you go to next Mr. Attorney Mr. Att. Gen. Next we call Richard Goodenough Swear him which was done That which I would know of you Mr. Goodenough is Whether Jones was sent of my Message and about what Goodenough My Lord I was beyond Sea with the Duke of Monmouth and Mr. Jones was sent among other persons to my Lord Delamere to give him notice that he should be ready against the time that the Duke should land and take care to secure himself that he might not be seized here in Town for we were apprehensive such a thing would be attempted Mr. Att. Gen. What directions were given him what Lords to go to Goodenough My Lord we were informed in Holland that my Lord Delamere was one of those Lords that had promised to draw his Sword in his behalf Mr. Att. Gen. Had you any discourse with the Duke of Monmouth about it at any time Goodenough Yes I have discoursed with the Duke of Monmouth several times Lord H. Steward Ay what did he say to you about it Goodenough My Lord he said among other things that he hoped my Lord Delamere would not break his promise with him Lord H. Stew. My Lord Delamere will you ask him any Questions Lord Delamere No my Lord I never saw his Face before that I know of I will assure you Lord H. Stew. That is pretty strange so famous an Under-Sheriff of London and Middlesex as he was Mr. Att. Gen. Then swear Jones which was done Pray will you give an account what Message you received from the Duke of Monmouth upon your going over into Holland and to whom you were to deliver it and what became of it Jones My Lord I went to Holland about the latter end of April last my going as I have acquainted his Majesty and the Council was not only about this Affair for I had other business that called me thither which I shall not now take up your time or trouble you with repeating of but having some knowledg from Mr. Disney that there were some intentions of doing something tho it was communicated to me but very darkly and therefore that little I did know made me the willinger to go for Holland so soon as I did but before I went I had a mind to understand something more of the design and therefore the night before I went I came to Mr. Disney and acquainted him with my intended Journey Mr. Disney did perswade me against it thinking that I had gone upon this account but I told him the occasion which he partly knew why I went but withal I told him I did intend to see the Duke of Monmouth and if he had any Message that he would have delivered to him I would deliver it very safely he told me all the Message I should deliver to the Duke of Monmouth if I saw him was to desire him to keep to the last Conclusion which he would find in a Letter that had been sent to him and that if he had not yet received the Letter it was to come by the Crop-hair'd Merchant or the Crop-ear'd Merchant I cannot say which but I think it was the Crop-hair'd I asked him what that Message was lest the Letter should miscarry for I told him if I should go to the Duke of Monmouth and refer him to a Letter wherein a Message was to be brought him which he was to keep to and that Letter should miscarry I should in effect bring no message at all to him my Lord thereupon he told me that I should acquaint the Duke of Monmouth that his Friends in England would not by any means have him come for England but that he should continue where he was or if he thought good to go for Scotland they approved of it this is the sum of what he said to me as near as I can remember When I came to Amsterdam there was one Mr 〈◊〉 that was kill'd at Philips Norton went with me to the Duke of Monmouth's and when I came to him I acquainted him as Mr. Disney appointed me to do that there was such a letter sent by such a person and that such a Message was included in it My Lord he was in a great passion I know not how to express it and seemed to be very much troubled and did reflect very much upon Major Wildman and said that was Wildman's work and he said as I think that was the word he used Wildman was a Villain or to that purpose but withal he said it was too late to send such a message now and that he was resolved to come for England and he would make VVildman hang with him or fight for it with him that Wildman did think by tying his own purse he should tye his hand but he should find it should not be so and some other words of the like nature he used but this is the substance of what he said he gave some account what preparations had been made he said Money was very short and he had been fain to pawn all he had to raise what Money was raised upon his own charge He asked me if I did think to return to England shortly I told him if he had any service to command me for England I had some little business to do at Rotterdam which I would dispatch and then I
would perform his Commands he told me he would be glad I did return as soon as I could for England and that this should be the Message I should carry to Wildman in answer to the Message he had sent him That he would come for England and he should either fight with him or hang with him and that was all he had to say to him I was coming away from him but he stopped me and told me he would not have me go out of Town till he had spoke with me again this was upon the Sunday accordingly I did go in the Evening to him and when I came he told me he would have me stay till Tuesday Morning for he was going out of Town and intended to be back again at that time but if not I should receive from my Lord Gray what he had to say to me He did not come upon the Tuesday but my Lord Gray did come and I think to the best of my remembrance Mr. Crag was with me he told me all he had to say was That the Duke intended to be in England within Nine days and that upon the Thursday seven-night after I came away the Duke would be in England and he bid me to remember to tell Brand that when he heard the Duke was landed he should acquaint Sir Robert Payton with it but not till he was landed for tho they did think that he would join with them when the thing was begun yet they ought to be careful who it was communicated to for fear it should be discovered and disappointed this was all that I had in command from my Lord Gray I came to Rotterdam and dispatch'd my business there and would have come away but it happened there were no Ships coming for England nor would there be any in a Fortnights time thereupon I returned to Amsterdam when I came back I went to see the Duke to give him an account how it happened that I was not gone for England the Duke told me he was glad I was not gone for now he had a further Message for me to carry and he would have me stay 2 or 3 days in Town for it I staid three days and came again to him but he told me he was not ready for me yet then I stayed two or three days longer till the 21 st of May to the best of my remembrance it was upon a Thursday that he gave me the Message that I was to bring into England I came to him in the Morning and he told me I should come to him upon the Evening of that day and when I came there was a Paper lay before him on the Table and he took the Paper and sealed it up I cannot say he wrote all that was in that Paper but the Paper that lay before him was not finished when I came in and that he did not write while I was there I am sure but he took it up and sealed it before me and when he had sealed the Paper he told me I must assoon as I came for London see for Captain Matthews Sir Thomas Armstrong's Son in Law who lodged at Mr. Blake's in Covent-Garden and desire him to acquaint my Lord Macclesfield my Lord Brandon and my Lord Delamere with his design of coming for England and that he was resolved to set out upon the Saturday Morning after I came away which was upon the Friday he told me Captain Matthews was to send one Post to that place that was named in the Note to receive Intelligence of his landing and that should be brought to his Friends here immediately he designed should be 24 Hours before the Court had notice of it in Town and those Lords were to be in readiness that as soon as they knew he was landed they might repair to their several Posts to assist him I told him that I would deliver what Message he gave me and asked him what I was to do with the Paper he put into my hands thereupon as near as I remember he used these expressions to me I do by you as Princes do by their Admirals when they send them out upon any considerable expedition which requires secrecy in the management of it they have their Commission delivered to them sealed up which they are not to break open till they are at Sea So here I deliver you your Instructions sealed up which you are not to open till you are at Sea and when you have opened them and read what is contained in them I would have you tear the Paper and throw it into the Sea or otherwise dispose of it lest you be surprized and searched at your landing and my Papers found about you My Lord I asked him because I would be as punctual in my Message as I could what those Lords were to do when they came out of Town whether they should come directly to him or no he told me no not that but they should go into the Countrey and secure their Interest for him there I asked him then if Captain Matthews be out of the way and I be disappointed of meeting with him shall I deliver this Message to the Lords my self he told me no by no means for those Lords were Persons of Quality and that that was not a thing to be done by me what shall I then do my Lord said I if Captain Matthews be out of the way you need not question that saith he but if you meet not with Matthews speak to Wildman My Lord with these instructions and this as near as I can remember is the Sum of all he said to me I came away and came to Sea when I was out at Sea I broke open the Letter that I had given me by the Duke and I will tell you as near as I can what were the Contents of it there was written in it to this Effect TAUNTON in Somersetshire is the place to which all are to resort the Persons to be acquainted with the time of landing are the Lord Macclesfield the Lord Brandon and the Lord Delamere the place to send the Coach to is to Taunton to Mr. Savages House at the Red Lyon the place where the Post was appointed to return was Captain Matthews Lodging at Mr. Blake 's and he was to receive the message or if he did not he was to appoint one that should receive it or if it were to return to any other place that was left to him to do as he thought fit And this was all as near as I can remember when I had seen this I came to London and being very weary and tired when I came home I went to Bed Mr. Att. Gen. Pray tell the Court as near as you can what day it was you came Jones I came out of Holland the 22 d of May I came home the 27 th and looking upon my Almanack I find that it was the Wednesday Fortnight before the Duke landed that I came when I was come home I sent for Mr. Disney and
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
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