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
pitch't on the one by a shameless Trick and the other by open Force were imposed on the City Having gained that point the Proceedings in the quo Warranto were much quicker then before and two Arguments only were permitted in it of each side the one in Hillary Term the other in Easter Term and so the Case was ripe for Judgment in Trinity Term following but must be and was ushered in with the Discovery of a pretended Plot which so amazed the Nation that tho' Judgment in the quo Warranto was given two days after the pretended Discovery no Body took any notice of it for several Months after it was given the Truth was no body durst mutter against it or question the Legality of it it was enough to have brought any Person into the Plot to have done it it would have been called flying in the Face of the Government questioning the Justice of the Nation and such like Cant. REMARKS ON THE Lord Russel's Tryal THE Plot being noised abroad the Persons before-hand resolved on were seized on and the Lord Russel and others were clapt up close Prisoners The Lord Russel having been for some sew Weeks a close Prisoner in the Tower was the 13th of July 1683. brought to the Old-Baily and arraigned for High-Treason in designing to raise a Rebellion c. and the same Morning was tryed he desired he might not be tryed that day for he had some Witnesses which would not be in Town till Night which being denied then he desired that the Tryal might be put off till the Afternoon which was likewise denied he asked whether he might not make used of any Papers he had which was allowed he desired he might have a Copy of hte Pannel of the Jury that was to pass on him he was told he had a Coppy delivered to his Servant some days before The Jury being called he challenged the Fore-man for being no Free-holder in London to argue which Councel were assigned him who presently came into Court and having excused their not speaking more to the Matter for want of time to consider of it argued that it was a good Challenge because at Common Law every Jury-man ought to be a Free-holder that the Stature of 2. Hen. 5. provides none shall be a Jury-man in capital Matters but a Free-holder of forty Shillings yearly that there is no difference between a City and County and a County at large at Common Law nor by that Statute 7. Hen. 7. which takes away the Challenge of no Free-hold in the Ward in London shews it was a good Challenge in London before that time the 4th of Henry the 8th which likewise takes away the Challenge of no Free-hold in London shews it was a good Challenge before that time and the same was inferred from the 23d of Henry the 8th but though of those Statutes extended to Treason yet if it was a good Challenge in Treason in London before those Statutes it was so still The Kings Council said at Common Law it was not necessary that a Jury-man in Treason should be a Free-holder and though Treason is within the 2d Henry the 5th yet be the Statute of Queen Mary the Statute of the 2d of Henry the 5th as to Treason was repealed that it was a Point they would not have lost to the City of London that if the Prisoner should peremptorily challenge thirty five as by Law he might there would scarce be found thirty five more Free-holders in the City the Inheritance of the City being mostly in the Nobility and Corporations and consequently Treasons may be committed in the City and there would not be enough to try it and in the Case of the City of Worcester in a Quo Warranto brought against them that Challenge was taken and over-ruled by the Kings-Bench by Advice of the Judges of the Common-Pleas that the Venire mentions no Free-hold But only Probos Legales Homines de Vicineto Then the Chief Justice asked Mr. Polexfen whether he did find in any Judgment in Treason at Common Law that no Free-hold was a Challenge who answered he did not whereupon the Chief Justice replied that then he did not speak ad idem for he took it in case of Treason and Felony at Common Law it was no Challenge and the Statute of Henry the 5th in that point was introductive of a new Law and that Statute as to Treason was repealed by that of Queen Mary and that a Case cannot be found of such a Challenge in Treason ‑ since the Statute of Queen Mary but it was a business of great Importance The Chief Baron was of the same Opinion for the same reason Justice Windham and Justice Jones were of the same Opinion the last added the rather because the Prisoner is allowed to challenge thirty five peremptorily and Justice Charlton was of the same Opinion and the rather because no President had been offered of such a Challenge before Justice Levins was of the same Opinion for the same Reasons Justice Street was of the same Opinion for the same Reasons and thought they had been very nice when the Life of the King lay at stake and all the Customs and Priviledges of the City of London seemed to be levelled at in that Point Justice Withins was of the same Opinion Then the Chief Justice told the Prisoner the Court over-ruled his Challenge but that he had no Hardship put upon him for the Reason of Law for Free-holders was that no slight Persons should be put upon the Jury but in his Case there were Persous of Quality and Substance put upon the Jury which was the same in substance with a Jury of Free-holders These being the Reasons of over-ruling that Challenge they may be ranked under these Heads there was no such Challenge at Common Law if there were yet not in Treason And if it were a Challenge in Treason where the Tryal is in a County at large yet not where it is in a City and County and if in a City and County yet not in London The assigning many Reasons for one and the same thing makes the Judgment justly suspected for if when two Witnesses to one Fact varying in the Circumstances of it are justly suspected in point of Truth several Reasons for the same Judgment makes the Knowledge or Integrity of the Judges justly suspected every Case in Law as my Lords Coke and Hales say standing upon its own particular Reason and therefore when many Reasons are given it looks as if the Judges were hunting about for Reasons to make good what beforehand they are resolved to vent for Law rather than that their Judgment is the Result of those Reasons But to consider them singly I do indeed think there is no express Resolution that at Common Law in any Case of any Capital Matter it was a good Challenge except the Case of Fitz-Harris already taken notice of but in Civil Matters my Lord Coke is express that at Common Law it was
till the particular Articles were exhibited which is true for by the same Reason a Defendant cannot plead a Action depending against him for the same matter in a superiour Court unless the Plaintiff hath declared against him in the Superior Court which is not true It was not a Reason that all Records in inferior Courts must be pleaded particularly as Indictments and the like because such Records must be certain and particular or else they are erroneous and cannot be pleaded but an Impeachment may be general Where the matter of a Plea is nought no form can make it good tho' where the matter of a Plea is good an ill form may spoil it if therefore a general Indictment or Record is nought as in all the cases cited against the Plea it was no special averment to reduce it to a certainty or any form can make it a good Plea but a general Impeachment is good and therefore it may and must be pleaded generally and pleading it specially would make it false if there were no subsequent Articles as in this case there was not to ascertain it It is to no purpose to run thorow all the ramble of the Counsel or Court against the Plea when they all said the matter of the Plea was not in question but the Form and yet when so often asked in what of the Form it was defective they were not able to answer If it be agreed that the matter of a Plea is good but it is defective in Form they always shew how it ought or might have been mended which in this case was never done And as this case was new in several particulars so it is in this that in reading all the Arguments of this Plea no man knows by what was discoursed what was the point in question After the Arguments the Chief Justice in shew at least very favourably offers the Prisoners Counsel liberty to amend the Plea if they could which they apprehended as they had Reason for I think none can shew how it might have been mended rather a Catch than a Favour refused to do whereupon the Court took time to consider of it and on the 11th of May there being a great Auditory rather to hear how the Judges would bring themselves off than to know what the Law of the Plea was the Chief Justice without any Reasons delivered the Opinion of the Court upon Conference had with other Judges That his Brothers Jones Raymond and himself were of Opinion that the Plea was insufficient his Brother Dolbin not resolved but doubting concerning it and therefore awarded the Prisoner should plead to the Indictment which he did Not Guilty and his Tryal ordered to be the next Term. I think it would puzzle any person to shew that if ever a Court of Westminster Hall thought a matter of such difficulty as fit to be argued that they gave their Judgments afterwards without the Reasons 'T is true that the Courts of Civil Law allow Debates amongst the Judges to be private among themselves but the Proceedings at Common Law always were and ought to be in aperta curia Had this practice taken place heretofore as it hath of late but all since this President no man could have known what the Law of England was for the year Books and Reports are nothing but a Relation of what is said by the Counsel and Judges in giving Judgment and contain the Reasons of the Judgment which are rarely exprest in the Record of the Judgment and it is as much the duty of a Judge to give the Reasons why he doubts as it is of him who is satisfied in the Judgment Men sometimes will be ashamed to offer those Reasons in publick which they may pretend satisfies them if concealed besides we have a Maxim in Law undeniable and of great use That any person whatever may rectify or inform a Court or Judge publickly and privately as amicus curiae a Friend to the Court or a Friend to Justice But can that be done if the standers by know not the Reason upon which the Court pronounce their Judgment Had the three Judges who were clear in their Opinion given their Reasons of that Opinion perhaps some of the standers by might have shewed Reasons unthought of by them to have made them stagger in if not alter that Opinion or if Justice Dolbin had given the Reason of his doubt perhaps a stander by might have shewn him a Reason unthought of by him which would have made him positive that the Plea was or was not a good Plea. If a man Swears what is true not knowing it to be true tho' it be logically a Truth as it is distinguished yet it is morally a lye and if a Judge give Judgment according to Law not knowing it to be so as if he did not know the Reason of it at that time but bethought himself of a reason for it afterwards tho' the Judgment be legal yet the pronouncing of it is unjust Judges ought to be bound up by the Reasons given in publick and not satisfie or make good their Judgment by after thought of Reasons How very ill did it become the Chief Justice Popham a person of learning and parts in the attainting Sir Walter Rawleigh of which Tryal all since that time have complained when ha gave his Opinion that the Affidavit of the Lord Cobham taken in the absence of Sir Walter might be given in Evidence against him without producing the Lord Cobham face to face to Sir Walter which was desired by him although the Lord Cobham was then forth-coming When he summed up the Evidence he said Just then it came into his mind why the Accuser should not come face to face to the Prisoner because he might detract his Evidence and when he should see himself must dye he would think it best that his Fellow should live to commit the like Treason and so in some sort seek revenge Which besides that it is against the Common Law and Reason it is against the express Statute of E. 6. which takes care that in Treason the Witness shall be brought face to face of the person accused Did it become a just man to give his Opinion and bethink himself of a Reason afterwards And I am mistaken if it will not herein appear that many persons complained of have been guilty of the same weakness or injustice call it which you will so foolish are the best Lawyers and plausible Speakers when they resolve to carry a point whether just or not However they may deceive the Ignorant yet they talk and argue very absurdly to the apprehension of the majority of mankind And they had been sooner discovered but that the discoverers were quickly supprest and crushed as Scandalisers of the Justice of the Nation And I think this may be justly called the first mute Judgment given in Westminster-Hall But to return to Fitzharris his Tryal which came on the 9th of June and then the King's Counsel made use of
their Arts in managing the Jury And first there was a great many persons for Jurors to which Mr. Attorney had no Stomach some challenged for Cause for that they were no Fee holders as John Kent Giles Shute Nathaniel Grantham and several others and the Challenge allowed to be a good Challenge by all the Court for tho' the Chief Justice spoke only yet all the Court assent to what one Judge says if they do not shew their dissent I do not take notice of this as complaining of it for I think it is good Cause of Challenge in Treason but then I cannot but wonder at the Assurance of the same King's Counsel who denied it to be a good Cause of Challenge in the Lord Russel's Tryal It is true that was a Tryal in the City but that matter had no consideration in the Judgment for after the Lord Russel's Counsel had been heard all the Judges delivered their Opinions That at Common Law No Freehold was no Challenge in Treason and that the 1st and 2d Philip and Mary had restored the Tryal in Treason to be what it was at Common Law of which number of Judges Sir Francis Pemberton and Sir Thomas Jones were two nay Sir Francis Pemberton asked Mr. Pollexfen Whether he found any Resolution at Common Law that no freehold was a Challenge in Treason And that Judgment is afterwards cited in Collonel Sidneys Tryal fol. 63. as the Opinion of all the Judges of England That no Freehold was no Challenge to a Juror in Treason at Common Law and Col. Sydney's Tryal was in a County at large But if it was not a Challenge at Common Law I would know how it came to be a Challenge in Fitzharris his Case There was no intervening Act of Parliment to alter the Law between the two Tryals that I know of Another art used was to Challenge for the King wihout Cause where no Cause could be shewn such Jurors as they did not like The Prisoner was troubled at this and appeals to the Court whether the Attorney General was not obliged to shew his Cause of Challenge but is answered by the Court that he need not till all the Pannel was gone through or the rest of the Jurors challenged which is true but had the Prisoner been advised to challenge the rest of the Jury as he would have been if he had had Counsel the Attorney must have waved his Challenge or put off the Tryal And since he was not allowed Counsel why should not the Court according to their Duty as they have said it is have advised him so to do I am sure in Count Coningsmark's Tryal when Sir Francis Winington challenged a Juror without Cause for the King the Court presently asked the Cause and such Answers was made by the Prosecutor's Counsel as was made to Fitzharris whereupon the Court told the Count that the way to make them shew their Cause of Challenge was to challenge all the rest of the Jury and thereupon the Challenge was waved They were different Practices tending to different Ends and accordingly it succeeded Fitzharris was Convicted and the Count Acquitted Upon the Tryal the Evidence was this Fitzharris was the 21st day of February 1681. with Everard gave him Heads by word of mouth to write the Pamphlet in the Indictment mentioned to scandalize the King raise Rebellion alienate the Hearts of the People and set them together by the Ears the Libel was to be presented to the French Ambassador's Confessor and he was to present it to the French Embassador and it was to set these people together by the Ears and keep them clashing and mistrusting one another whilst the French should gain Flanders and then they would make no bones of England For which Libel Everard was to have 40 Guineys and a monthly Pension which should be some 1000 of pounds Everard was to be brought into the Cabal where several Protestants and Parliament men came to give an account to the Embassador how things were transacted Everard asked what would be the use of the Libels Fitzharris said we shall disperse them we know how they were to be drawn in the Name of the Nonconformists and to be put and fathered upon them This was the sum of Everard's Evidence Mr. Smith proved Fitzharris his giving instructions to Everard and Sir William Waller and others proved the Libel and the Discourse about gaining Flanders and England other Witnesses were examined to prove Fitzharris's hand for the Prisoner Dr. Oates said Everard told him the Libel was to be printed and to be sent about by the Penny-Post to the Protesting Lords and Leading Men of the House of Commons who were to be taken up as soon as they had it and searched and to have it found about them He said the Court had an hand in it and the King had given Fitzharris Money for it already and would give him more if it had success Mr. Cornish said when he came from Newgate to the King to give him an account in what disposition he found the Prisoner to make a discovery the King said he had had him often before him and his Secretaries and could make nothing of what he did discover that he had for near three Months acquainted the King he was in pursuit of a Plot of a matter that related much to his Person and Government and that in as much as he made protestations of Zeal for his Service he did countenance and give him some Mony that the King said the came to him three Months before he appeared at the Council Table Collonel Mansel said that Sir William Waller gave him an account of the business in the presence of Mr. Hunt and several others and said that when he had acquainted the King with it the King said he had done him the greatest piece of service that ever he had done him in his life and gave him a great many thanks But he was no sooner gone but two Gentlemen told him the King said he had broken all his Measures and the King would have him taken off one way or another and said that the Design was against the Protestant Lords and Protestant Party Mr. Hunt confirmed the same thing and added that he said the design was to contrive those Papers into the hands of the people and make them Evidences of Rebellion and appealed to Sir William Waller who was present whether what he said was not true Mr. Bethel said Everard before he had seen Bethell or heard him speak a word put in an Information of Treason against him at the instigation of Bethel's mortal Enemy which Information was so groundless that tho' it was three years before yet he never heard a word of it till the Friday before Mrs. Wall said Fitzharris had 250 l. 200 l. or 150 l. for bringing the Lord Howard of Escrick she added that Fitzharris was looked upon to be a Roman Catholick and upon that account it was said to be dangerous to let him go near
the King that he never was admitted to the King. The Lord Cornway said that the King had declared in Council that Fitzharris had been employed by him in some trifling businesses and that he had got money of him but added as of his own Knowledge that the King never spoke with him till after he was taken which was the 28th of February last All the Evidence being over it was summed up by the Counsel That upon all the Circumstances of it Fitzharris was the Contriver and Directer of the Libel that it was a Treasonable Libel and a Jesuitical Design that the Excuse he made as if Everard drew him into it or trepanned him into it was vain nothing of that being proved That Everard could do nothing alone and therefore Sir William Waller must be in the contrivance but that was unlikely that the Prisoner would insinuate that the King hired him to do it because the King gave him Money but that was out of Charity and therefore concluded with a great many words that an English Protestant Jury of twelve substantial men could not but find the Prisoner guilty The Court added that tho' Doctor Oates said Everard said it was a design of the Court and was to be put on some Lords and into some Parliments Men's Pockets yet Everard was there upon Oath and testified no such thing in the world and for the Impeachment in the Lords House they were not to take notice of it After which the Jury informed the Court that they heard there was a Vote in the House of Commons that the Prisoner should not be tryed in any inferiour Court To which the Chief Justice said That that Vote could not alter the Law and that the Judges of that Court had Conference with all the other Judges concerning that matter and it was the Opinion of all the Judges of England that that Court had a Jurisdiction to try that man. After which Justice Jones was of Opinion that if he were acquitted on that Indictment in might be pleaded in Bar to the Impeachment And Justice Raymond delivered his Opinion to the same purpose It is strange that all the Judges should be of that Opinion yet before it was said Justice Dolbin doubted It is more strange that if Justice Dolbin was not of that Opinion he would hear it said he was and not contradict it It is most strange that if the Judges of that Court were of that Opinion they had not declared so in the arguing or giving Judgment on the Plea for that was the Matter of it being pleaded to the Jurisdiction of the Court that they had not power to try the Prisoner for that Crime so circumstanced If the Plea had been over-ruled as to the Matter none would have been so impertinent as to go about to maintain the Form of it Now to say truth in behalf of the publick and not on behalf of Fitzharris the Evidence was unfairly summed up for Fitzharris never pretended Everard drew him in or was to trepan him It is true he asked Everard what the design of the Pamphlet was and whether he was not put upon it to trepan others who answered he was not But afterwards being too nearly prest by the Attorney General he said Fitzharris told him the use of the Libels was to disperse them he knew how that they were to be drawn in the name of the Non-conformists and put upon them And Oates said Everard said the Libels were to be printed and sent abroad by the Penny-Post to the Protesting Lords and Leading Men of the House of Commons and the persons seised with them in their pockets which is all strong Evidence that the Libel was designed to trepan others and that was all along the import of Fitzharris his Questions though cunningly not answered by some of the Witnesses and as cunningly omitted in summing up the Evidence It is true the Chief Justice said Everard said no such thing as Oates had said but why was not Everard who was then present asked whether he said what Oates had given in Evidence There cannot be shewn any President where a Witness contradicts or says more or less than a Witness that went before him by the hearsay of that Witness but the first Witness is asked what he says to it Why was not Sir William Waller who was also present asked what he said to the Evidence of Mr. Mansell and Mr. Hunt and who it was that informed Sir William what the King said It was no way in proof nor pretended by Fitzharris that any person was concerned in that matter but Everard and Fitzharris though it was shrewdly suspected by the House of Commons and no man that reads the Tryal but believes there were many more concerned not yet discovered but the Counsel might have brought in any Judge of the Court by the head and shoulders to be a Confederate as well as Sir William Waller that was a Jack-a-lent of their own setting up in order to knock him down again It was not pretended by Fitzharris that the King gave him any money to frame that or any other Libel there was Evidence that he had got money of the King for some little matters he was imployed in perhaps for bringing Libels dispersed abroad or discovering Plots Upon the whole Evidence it was plain that Fitzharris was an Irish Papist it was plain he was the only visible Contriver of the Libel who were behind the Curtain is not plain and to know them was the Design of the Impeachment It was plain it was a Devilish Jesuitical Design as the Court and Counsel in summing up the Evidence agreed it to be it was plain that the Libel was such that if disperst with intention to stir up the King's Subjects against him it had been High Treason within the Statute of the 13th of the King but what the intention of the contriving the Libel was was not very certain and therefore consequently what the Crime of it was was uncertain To take the Evidence all the ways as to the Design of the contriving of the Libel it is capable of being interpreted the easiest construction is to say he framed a Libel with intention to pretend to the King that he had intercepted a Libel privately dispersed and to make it more likely it should be framed in the Nonconformists Names to make his Report the more credible for of Papists or Church-men it could not be believed to get more money of the King and that matter by all his Questions to the Witnesses he most drove at and that would at most be but a Cheat. A more Criminal but less credible construction is to believe he designed to disperse them to excite and prevail upon the Discontented to take up Arms. For what Effect had that Pamphlet when it was for it was afterwards dispersed upon the Minds of the People or what Effect could any Man of Sense think it could have for though it was a Virulent yet it was as Foolish a contriv'd
King but which indeed the Confederates shared amongst themselves Nay the very Election of Burgesses the freeness of which is the great fundamental of the Government was monopoliz'd and put into a few hands Did not the unreasonable Fines and cruel Punishments inflicted oppress many terrifie all and consequently make the Government odious to the Subject Did not the Cruelties acted in the West enrage above a third part of the Nation Did not the turning out many of the Soldiery and Clergy without any reason and for that purpose Erecting Arbitrary Courts and granting Dispensations to persons by Law disabled to enable them to have and enjoy the Places and Offices of such as were illegally turned out and of all who should be in like manner turned out And was it not seen what the Consequences of those things would be by all who did not wink their Eyes or who wore not blinded by the Profit they made of such illegal and cruel Acts Was not the King at last sensible that the Consequence of what before recited would be what afterwards happened And did he not in less than a Months time when too late throw down all that Babel of Confusion which had been so long a building and did all in his power and would have done more if he could to have set things as right as they were before the Parliament of Oxon for from thence the Extravagancies may be dated But Alas more mischief can be and was done by weak Brains than the best Wits can retrieve those that were dead could not be brought to life the Restitution of the Cities Charters was but in shew a relief how shall those defend themselves who have acted under all the illegal Sheriffs constituted and not Elected How shall those defend themselves who have acted under Officers appointed by the new Charters which by the Restitution are gone as if they never had been How shall Sheriffs Goalers and other Officers who have had or now have Custody of Prisoners and having not taken the Test trusting to the validity of a Dispence behave themselves Shall they continue to keep their Prisoners in Custody or let them go If the last they are Subject to Actions of Escape if the first they are liable to false Imprisonment These and a many more Mischiefs not yet seen are the natural results of these Illegal Actions I never reflect on these things but I remember Tully in his Offices lays down as a Rule That nothing is Profitable but what is Honest and gives many Reasons for it but nothing so convincing as the Examples he brings in Publick and Private matters and tho' the Empire was vast and he bore a great Figure in it and was very knowing and was well read in the Greek and Roman Histories yet he was not able to bring a 100th part of Examples to prove his Position as have been in this little Island in the space of eight years And the Persons by whose advice these things were transacted are the more inexcusable if it be true what a certain Nobleman who bore a considerable Character in the two late Kings Council once said to me was true He was complaining that the King was mis-led by the Advice of his Lawyers I asked him whether the King put his Judges and Counsel upon doing what was done without considering whether it was Legal as the common Vogue was he did or that his Lawyers first advised what to be done was Law He answered me on his Honour the King's Counsel at Law first advised the King might do by Law what he would have done before he commanded them to do it Yet I agree none of those matters tho' so inconvenient and grievous are Treason by the Statutes of E. 3. or C. 2. For Profit in some cases Revenge in others the endeavouring means to escape Punishment and a natural propensity to Cruelty in many were the true ends were driven at and not the bringing their Prince into the Hatred of his Subjects tho' that was a necessary consequent of all recited and of many more matters omitted And let Fitzharris his Crime and those recited be but Examined and his was but a Piccadilio to the least of those tho' this was acted by an Irish Papist and those by English Protestants Sons of the Church of England as by Law Established as they call themselves tho' I doubt not sincere Protestants as my Lord Russel said words which were matter of Laughter to those who brought him to the Block But tho' neither Fitzharris his Crime taken in the last Sense nor the above Crimes were High Treason by any Statute and the Judges have not Power to punish any other Treasons yet in all times the Parliaments have practised and it is necessarily incident to all Supream Powers in all Governments to Enact or Declare extravagant Crimes to be greater than by the Established Law they are declared to be not by vertue of the Clause in the Statute of Edward the 3d. whereby some have by mistake thought that a Power was reserved to the Parliament to declare other matters Treason than what is therein exprest for admit that Clause had been omitted there is none can doubt but in point of Power the Parliament could how far in justice they might is another Question have declared any other matter to be Treason and the words of that Clause are very improper expressions either to vest or reserve a Power in the Parliament for the words are only prohibitory to the Judges to adjudge any other Matters Treason than those exprest in the Act tho' they were somewhat like those express'd and therefore might be supposed Treasons and it is a sort of monition to Offenders that they should not presume to be guilty of Enormous Crimes upon presumption that they were not Treasons within that Act. For in the preamble 't is said because many other like Cases of Treason which in Sence-are Cases like Treason declared in that Act may happen in time to come which could not be thought of or declared at that present therefore if any such should happen before any Justice the Justice should tarry and not proceed to give Judgment of Treason on it till it should be judged in Parliament Treason or Felony How well the Judges in late days have observed this prohibitory Law let the world Judge and most certainly the Parliament might have declared in Fitzharris his Case as they may in those other that the Crimes were Treason Felony Misprision of Treason Trespass or what other Crime known in the Law and inflict what Punishment they thought fit and it is no injustice for the Supream Power to punish a Fact in a higher manner than by Law Establish'd if the Fact in its nature is a Crime and the Circumstances make it much more heynous than ordinarily such Crimes are It was not injustice in the Parliament of the second and third of Philip and Mary to Enact that Smith and others who were supposed to be guilty as
and altered it from what they at first designed it the King's Councel might have had a new Bill found but peradventure they could not prevail with that Grand Jury to have found a new Bill they remembred they had ill luck with the first Bill at London that I believe was the true reason but because I 'll do the Court no injury in imputing that to the cause of the adjournment which was not 't is true in the Printed Trial 't is pretended they adjourned in order to Dine yet those that knew that the adjournment was by the direction of the King's Councel and overheard their whispering with the Chief Justice which is both an undecent and an unjust thing and is neither better nor worse than a Plaintiff or Defendants whispering a Judge while his Case is before him Trying and I know that he Judges had Breakfasted but a little before and had no great stomach to their Dinners and therefore believe that that before assigned and not what pretended was the true cause They might better have put off their Dinner to their Supper than their Supper to their Breakfast as they did the Trial lasting till early next Morning But because all irregularities of Court and Councel in all these matters are shifted off and excused by two Sayings not understood generally the first whereof is That the Court is to act for the King and the Councel are for the King and no person must come near the Prisoner to the prejudice of the King as in Fitz-Harris his Case was often said a Witness was permitted to go on in an impertinent story on a Transaction between him and my Lord Shaftsbury in my Lord Russell's Trial of which the Prisoner complained that it was designed to incense the Jury and though the Chief Justice declared it was not Evidence yet he a great while afterward went on in a like manner nay the Councel in summing up the Evidence repeated the same matter which was permitted because it was for the King and yet when the Earl of Anglesey began to say what the lady Chaworth told him he was snub'd and cut short and Mr. Edward Howard was served the same sauce because it was against the King It is fit therefore to know what is meant in Law by those words No body doubts what the Courts or King's Councel of late days meant but in Law the are not so meant for though many things are said to be the King 's as the Protector of his people and more concerned in their welfare than any private persons yet they are so in preservation and not in property or interest The Highways are the King 's in preservation for the Passage of his Subjects and whoever obstructs them wrongs the King as he is hurt when his Subjects are hurt but in property the Soil generally belongs to private Persons the King is hurt when his Subjects are opprest by force because he has engaged to defend them and therefore the Offender is punished by the King to deterr the Offenders and others from committing the same offences which is for the benefit of the publick but as a Man may be opprest by open force so he may be opprest by private insinuations and false accusations and the King has engaged to defend his Subjects from such not that it is possible to prevent them but by consequence that is by punishing such as shall be found guilty of such Crimes which heretofore were punished with the highest Arbitrary Punishments we read of The consequence is That it is for the King to punish Offenders to acquit the false accused and to punish the false accusers that is to say In all Cases to do right according to Law and Truth Surely Queen Elizabeth gave the best explanation of the words when the Lord Burleigh seeing Sir Edward Coke the then Attorney General coming towards her he said Madam here is your Attorney General Qui pro domina Regina sequitur Nay says she I 'll have the words altered for it should be Qui pro Domina veritate sequitur For the King and for Truth then are sunonymous words for the King against the Truth is a contradiction and the Judges and King's Councel having taken an Oath to advise the King according to the best of their cunning which is according to Law and Truth if therefore the King's Councel use means and the Court permit them so to do to suppress Truth or to disable the Prisoner from making his innocence Appear as in Colledge his Case was done if they urge things as Evidence of the Crime whereof the Prisoner is accused which by Law are not Evidence as in this Case in the Lord Russell's Case Collonel Sydney's Case Mr. Hambden's Case Mr. Cornish's Case and in many more they did and has in some of them shall be hereafter shewn If they insinuate any fact as Evidence which is not proved as in my Lord Russell's Trial that my Lord of Essex killed himself if they wrest as Evidence of the fact which in sence is not so as in Collonel Sydney's Case the writing his Book for for any thing appeared it was writ before King Charles the Second came to the Crown they are Councel against the King being against Truth as well as against the Prisoner I think no Man will deny the truth of this proposition That it is as much the King's interest to have an innocent accused of Treason acquitted as it is to have a nocent accused of Treason convicted If that be true then let any one shew me a reason if he can for there is no Law against it why he may not have the same liberty of clearing his innocence as the prosecutor hath of convicting him I mean by free and private access of all persons to the Prisoner as is used in all other capital matters if it be said he may get some to corrupt the witnesses against him or subborn others for him the same may be said in all other matters but in Treason that is not a likely matter for generally the Prisoner never knows what he is accused of and consequently cannot know his Accuser nor know how to provide a counter-Evidence till he comes to be Arraigned and then it is too late for generally he is presently Tried after his Arraignment as was the Case of Colledge and my Lord Russel and Mr. Cornish and persons committed for Treason are so much the less able to corrupt or suborn Witnesses than any other Criminals that they generally according to the late practice have no Accuser brought face to face to them on their Commitment as all other Criminals have who always are committed upon an Accusation made upon Oath in their Hearing and their Defence heard before their Mittimus made and whatever the pretence may be yet in experience it is found more perjuries in prosecutions for Treason by the Accusers committed than by the Witnesses for the Prisoner One reason is a Witness in Treason is more difficultly convicted than
business he was four or five times between Christman and March with the Earl and the Captain that the Captain told him he was to Command Fifty Men to be the Earls Guard at Oxon and would have had him to be One That if the King did not Consent to several Acts of Parliament and other things they were to Purge the Guards and Court of several Persons and tho' the Captain told him that first yet afterwards he heard the Earl say the same things particularly about a week or ten days before the Parliament sate at Oxon he gave some Intimation of this to Walter Banes and then Writ it down and sent it to the Counsel Sealed in a Cover Turbervile swore that the Lord Shaftsbury said about February there was but little good to be done with the King as long as his Guards were about him Smith testified a great deal of discourse between him and the Lord Shaftsbury of something said Reflecting on the King and that he should say that if the King should offer any violence to the Parliament at Oxford he would meet with a strong Opposition for that the Gentlemen who came out of the Country came well provided with Horse and Arms to Oppose and that they might Lawfully do it if he offered and Violence to them whilst they sate Haynes swore that the Earl said if the King did not give Haynes his Pardon he and others would raise the Kingdom against him that Haynes gave the Earl an exact Account of Transactions since King Charles the First 's coming to the Crown and that the Earl said the Duke of Buckingham had as much Right to the Crown as any Stewart in England John Macnamarra said the Earl said the King was Popishly Affected and took the same Methods his Father did which brought his Fathers Head to the Block and they would bring his thither and this was said in the presence of Ivey and he thought of his Brother and said the King deserved to be deposed as much as King Richard the Second Dennis Macnamarra likewise testified the last words and that it was the latter end of March or beginning of April Ivey said the Earl said if the King denyed Haynes a Pardon they would rise upon him and force him to give one and that they design'd to depose him and set up another in his stead Bernard Dennis said he had a great deal of discourse with the Earl who bid him speak to his Friends in Ireland for they intended to have England under a Commonwealth and Extirpate the King and his Family Then the Court told the Jury the Indictment was grounded on the Statute of King Charles the Second but they ought to consider of that Statute as also the 25th of Edward the Third The question is whether the Grand Jury ought to have found the Bill on this Evidence first it ought to be considered what the Duty of a Grand Jury is and I think it is not what the Chief Justice said to consider only whether there be probable ground for the King to call the Person Accused to an Account much less do I think that the reason of the finding of a Bill by the Grand Jury was for the Honour of the King or Decency of the Matter least Persons Accused should be called to an Account by the King where there is no kind of Suspition of the Crime Committed by them as the Court said which last Matter was never assigned as a Reason of finding a Bill by the Grand Jury before but I take the Reason of a Grand Jury to be this that no Man for a Capital Matter shall ever be questioned by the King unless a Grand Jury take it on their Oaths that they believe the Matter of the accusation is true I do put an Emphasis on the words questioned by the King. It is true it is generally said That the business of a Grand-Jury in capital Matters is in favorem vitae but that taken simply is not true for then what reason can be assigned why a Man shall be Arraigned on an Appeal of Murder Robbery or the like which touches his Life as much as an Indictment of those Crimes without having the Matter of the Appeal first found to be true by a Grand Jury but the true reason of a Grand Jury is the vast inequality of the Plaintiff and Defendant which in an Indictment is always between the King and his Subjects and that doth not hold in an Appeal which is always between Subject and Subject and therefore the Law in an Indictment hath given a Privilege to the Defendant which it hath done in no other Prosecution of purpose if it were possible to make them equal in the Prosecutions and Defence that equal Justice may be done between both It considers the Judges Witnesses and Jury are more likely to be influenc'd by the King than the Defendant the Judges as having been made by him and as it is in his Power to turn them out punish to prefer or reward them higher and though there are not just Causes for them to strain the Law yet they are such Causes which in all Ages have taken place and probably always will this was the reason of running Prerogative so high in their Judgment of High Treason before the Stat. of Ed. III. That no Man as that Statute says knew what was not High Treason This was the reason of expounding that Statute oftentimes between the making of it and the making the Statute of Queen Mary that People was at as great a Loss till the last Statute as they were before the making of the first and even since the Statute of Queen Mary the Exposition on the Statute of Ed. III. hath been so extravagant and various that People are at this day as much at a Loss to know what is not High Treason as they were before the Statue of Ed. 3. norwas it or is it possible that the great Power of enriching honouring rewarding and punishing lodged in the King but that it always had and yet must have an influence on the Witnesses and Jury and therefore it is that the Law hath ordered that at the King's Proscution no Man shall be criminally questioned unless a Grand Jury upon their own Knowledg or upon the Evidence given them shall give a Verdict that they really believe the Accusation is true Iown of late days They have said the Duty of the Grand Jury is to find whether the Accusation is probable but that saying is warranted by no positive Law or antient Authority and therefore the Duty of the Grand Jury must be founded in the Oath administred to them which is as strict as the Oath administred to the Petit Jury and to say Truth the Verdict of the Petit Jury takes credit from the Verdict of the Grand Jury which is not only the reason of the difference in the Names of the two Juries but is likewise the reason why an Attaint for a false Verdict doth not lye
argument against such a Return that no president of it can be found 't is enough that no judgment can be produced against it and the reason of both may be that the Case never happened before that is to say that never any Person was so malitious before as to sue out an homine replegiaendo against a Master for a Servant sent by agreement beyond Sea and Returns must be varyed according to the Case perhaps no President can be found of a Return on that Writ that the Person sought for is dead yet all Persons will agree it is a good Return it is so in a Replevin of Cattle and even that Example falsifies the Doctrin of the Court that there is but two Returns on that Writ allowable by Law it is not an argument for disallowing the Return that the Person sent beyond Sea was a Child not capable of making such a contract though I believe if the Matter were look't into he was of Age so to do for nothing of that doth or can appear in the Writ or Return It stands therefore simply upon this whether the Sheriff may on an homine replegiando return that the Person supposed to be in custody being of full Age was by mutual agreement sent beyond Sea by the Person in whose oustody by the Writ he is supposed to be which I think is far from a doubt but notwithstanding all these hardships on Juries it was seen to be plainly impossible to procure any Bills of Indictment for High Treason much less any Persons to be convicted on the like Evidence except in London where are some of the best as well as the worst Men in the Nation and even there it was not to be done as long as the Juries were sensible and honest Men which would be as long as the Election of Sheriffs was in the Citizens and to the Honour of the City it was seen that they chose honest Men to be their Sheriffs and those chosen when they saw the Publick Safety depend on honest Officers though at other times they had rather pay a Fine than undergo the trouble and charges of that Office yet at that time no Man legally chosen refused to stand tho' at that time they were reproached and punished for it and if Mr. Box. refused it was because he would not joyn with North who was imposed on the City for which reason it was resolved to take from the City the right of choosing Sheriffs but by what means it was not presently resolved on That the City might forfeit their right of Electing there was no great doubt as if the Sheriffs were dead and new ones were not chosen in a convenient time so that there was a defect of Justice or the like they would have forfeited their right but nothing of that kind could be laid to their charge therefore a new unheard of Matter was thought on and set a Foot which was to make the City forfeit their being a Corporation and being annihilated the Grants made to them by the Crown as the right of Electing Sheriffs was would revert to the Crown again A quo Warranto was therefore brought against the City in Hillary Term 1681. to shew by what Warrant they pretended to be a Corporation and to have the Priviledges mentioned in the Writ to which the City pleaded and set forth their right and the King replyed and set forth several Matters done by them contrary to the duty of a Corporation upon which there was a Demurrer of which Judgment was not given till Trinity Term 1683. I will say nothing of the right of the Proceeding it having been largely and learnedly argued for the City but if the Matter were so clear a Case as the Kings Council and Court would have it to be how came it to pass that in Henry the Eight his time when the King was so earnestly bent to dissolve the religious Corporations in which the inclination of the Nation joyned with him the doing it by quo Warrantoes was not thought of it was very plain that those pretended Religious did not observe the Rules nor perform the Ends for which they were incorporated and certainly their Misdemeanours against the intent of their being incorporated were better Causes of forfeiture than was the Cities Petitioning for a Parliament c. yet that King took other methods he had formal Conveyances of their Lands from most of those Corporations and formal Surrenders of their Corporations signed by every individual of the Corporations and those afterwards confirmed by Act of Parliament and sure the Late King had as much right to bring a Quo Warranto against Maudling Colledge for refusing contrary to their duty to admit the President the King nominated if the King had a right to nominate the President as some Judges asserted he had as King Charles the Second had against the City and it was once in debate whether the Proceeding against that Colledge should be by quo Warranto or before the Ecclesiastical Commissioners the last was resolved on not as the more legal or effectual but as more expeditious In the one the Proceedings being de die in dieam in the other from Term to Term this only I will observe that when the Judgment against the City was given which was of the greatest concern to the Nation ever contested in any Court of Westminster Hall it was done by two Judges only and no reason of that Judgment rendred whereof Wythens who was one I think heard but one Argument in the Case it is true they asaid Raymond when alive was of the same Opinion and said Saunders who was then past his Sences was of the same Opinion tho' I was told by one who was persent when the two Justices came to ask his Opinion in the matter he had then only Sence enough to reproach them for troubling him about the Matter when they were sensible he had lost his memory and to say truth the delivering the Sence of an absent Judge tho' it hath been sometimes practiced is not allowable for sometimes they deliver another Opinion than what the absent Judge is of Judge Withens did so in several Cases when he delivered the Opinion of Sir Edward Herbert which Sir Edward Herbert afterwards in open Court disowned Judge Holloway served Judge Powell the same trick if the last said true The long depending of the quo Warranto had Alarum'd all the Nation who yet were quiet hoping that Judgment would be given for the City as some of the Judges and of the Kings Councel had given out it would but the contrary as resolved on and therefore the Nation at the time of the giving the Judgment must be amused with somewhat else and with nothing so proper as a Plot but there was difficulty in that also for if the pretended Plotters should be acquitted it would make the matter worse and nothing would secure that but imposing what Sheriffs they pleased on the City and accordingly North and Rich was
many express Resolutions that there was no such Custom in the City for if there had been such Custom what needed those Statutes to which the Judges never vouchsafed any Answer because in truth they could make no Answer But it was objected there was the Resolution in the City of Worcesters Case which I agree was of as good Authority and of no better than the Judgment in the principal Matter of the Quo Warranto and it was likewise objected there would be a Failure of Justice in Cities if the Challenge were good for want of Free-holders I ask would it have been a Failure of Justice at Common Law or by reason of somewhat which hath happened of late Times there is none who pretends to know any thing of the History of England that will say that heretofore the Cities were not inhabited mostly by the Gentry and especially the City of London partly for Luxury partly for their Security and then there was no want of Free-holders in the Cities but when matters became more quiet and Trade encreased and made Houses in the Cities more valuable then were Houses of equal Convenience and less Price scituate in the Suburbs or in the Country the Gentry by degrees parted with their Houses in the Cities to Trades-men for Profit and removed themselves to other Places And I believe it may be remembred that even the Strand in the momory Man could have furnished the County of Middlesex with a sufficient Number of Free-holders and yet now for the above Reasons you can hardly find a Jury of Free-holders there Besides It must be remembred that London heretofore had many of the Kings Palaces in it and the Countries did not then as now take up with Lodging but were Inhabitants of Houses and if the Failure of Justice happen by the above means I am sure it is against the Oath of the Judges to supply that Defect with their Resolution but it ought to have been supplied by an Act of the Legislative Power If the Necessity of the thing warrants the Judgment how unlearned were the Judges in Henry the 7th and Henry the 8ths Times that they did not supply the Defect in Law in the City of London and other Cities by their Resolutions How vain were the Parliaments in those Times who supplied those Defects in Law mentioned in the Acts cited by those Statutes which were Works of time and trouble if theyhad thought the Judges by their Resolutions had Power to do it for if they had Power to do it they could have done it Extempore as in this Case For the last Objection that the Writ mentions only Probos Legales Homines and speaks nothing of Free-holders Legales may very well be interpreted to imply men qualified by Law but I take it that Homines implies it for Homines de Comitatu is meant Free-holders of that County and all others in point of Trust are not considered in Law. My Lord Coke in his Comment upon the 28th of Eliz. 1. cap. 8. which gives the Election of Sheriffs to the People of the County where the Sheriffwick is not in Fee says People there means Free-holders of the County and the same is understood by Writs to the Countries to choose Coroners Verderors and the like tho' the Writ says per communitatem Comitatus de assenfu Comitatus And tho' the Writs of Venire in civil Matters of late Days mentions what Freehold each Juror shall have yet that is by the Statute of the 35 of Hen. 8. cap. 6. which expresly commands the Writ shall so express it in all Issues joyned in Westminster to be tryed between Party and Party before which time it is plain the Venire even in civil Matters did not express any Freehold and that Statute doth not extend to Issues joyned on Indictments Now if upon all which hath been said it is not plain that the challenge ought to have been allowed yet sure it was doubtful and if so and a matter of great consequence as the Chief Justice said it was why might not the Council for the Prisoner have had a little more time to have considered of the challenge before they had argued it or the Judges have taken a little time to consider the matter before they had given their Judgment I dare say none of them could remember any positive Resolutions one way or other nor upon a sudden was it expected they should and therefore for their own sakes if not for the Prisoners they might have taken the Morning if not the Day the Prisoner desired his Tryal to be put off for to have consider'd of it in that time perhaps some of them might have remembred or others might have put them in mind of their Resolutions in Fitz-Harris's Case they might have considered how to distinguish between that Case and this and not run away with it that that challenge was never made in Treason as all of the Judges affirmed but my Lord Russel was told by the Court that they always tryed the Prisoner in Treason the day he was Arraigned and could not put off the Tryal for a morning without the Attorney Generals Consent but surely that is not true Plunket and Fitz-Harris were tryed the Term after they were arraigned though the Attorney General opposed it It is true he submitted to the Rule as it was as much his Duty to do as the Prisoners but if there be a Difference between an Arraignment at Westminster and the Old-Baily as to the speeding the Tryal the Place will not vary the reason of the thing if there be not any Law for it as there is not but even at the Old Baily the Tryal in Treason hath been put of to another Sessions it was done in Whitebreads Case and in many other Cases if it be said that that was by the Attorney Generals Consent I say that makes no difference for the Judge is to be indifferent between the Attorney General and the Prisoner if the Court must order nothing but what the Attorney assent too why is not the Prisoner Tryed and Judged by the Attorney alone or what needs all the Formality of a Tryal if it be said that that Tryal was put of because the Kings Witnesses were no ready I say there is the same Reason to put of a Tryal because the Prisoners Witnesses are not ready and that was the pretended tho not the true Reason of putting of Fitz-Harris his Tryal to another Term and there is no Law to the contrary It is totally in the discretion of the Judges to put of a Tryal which discretion ought to be governed by Reason But indeed this was extraordinary and without any president it can never be shewn in the Case of the greatest or meanest Persons being accused of the greatest or least Crime that ever the delay of a day much less of a morning for his Tryal was denyed where he shewed but any Colour for what he said when the Sessions were to continue after the