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
Parliament that raised the Rebellion and cut off the King's head To which the Prisoner replied That that Parliament had done nothing but what they had just cause for and that the Parliament which sate last at Westminster was of the same Opinion That he called the Prisoner Collonel in mockery who replyed Mock not I may be one in a little time Sir William Jennings swore as to the Fighting with Fitz-Gerald and the words about his bleeding For the Prisoner Hickman said he heard Haynes swear God damn him he cared not what he swore nor whom he swore against for it was his Trade to get Money by swearing Mrs. Oliver said Haynes writ a Letter in her Father's name unknown to her Father Mrs. Hall said she heard Haynes own that he was employed to put a Plot upon the Dissenting Protestants Mrs. Richards said she heard him say the same thing Whaley said Haynes stole a Silver Tankerd from him Lun said Haynes said the Parliament were a company of Rogues for not giving the King money but he would help the King to money enough out of the Phanaticks Estates Oates said Turbervile said a little before the Witnesses were sworn at the Old-baily that he was not a Witness against the Prisoner nor could give any Evidence against him And after he came from Oxford he sad he had been sworn before the Grand Jury against the Prisoner and said the Protestant Citizens had deserted him and God damn him he would not starve That John Smith said God damn him he would have Colledge's Blood. That he heard Dugdale say that he knew nothing against any Protestant in England and being taxt that he had gone against his Conscience in his Evidence he said it was long of Collonel Warcup for he could get no money else that he had given out that he had been poisoned whereas in truth it was a Clap. Blake said that Smith told him Haynes his Discovery was a Sham Plot a Meal-tub-Plot Bolron said Smith would have had him give Evidence against Sir John Brooks that Sir John should say there would be cutting of Throats at Oxford and that the Parliament-men went provided with four five six or ten men a-piece and that there was a Consult at Grantham wherein it was resolved that it was better to seize the King than to let him go whereas he knew of no such thing that he would have Balron to be a Witness against Colledge and told him what he should say lest they should disagree in their Evidence that he heard Haynes say he knew nothing of a Popish or Presbyterian Plot but if he were to be an Evidence he cared not what he swore but would swear any thing to get Money Mowbray said Smith tempted him to be a Witness against Colledge and was inquisitive to know what discourse passed between him the Lord Fairfax Sir John Hewly and Mr. Stern on the Road and said that if the Parliament would not give the King Money and stood on the Bill of Exclusion that was pretence enough to swear a design to seize the King at Oxford Everard said Smith told him he knew of no Presbyterian or Protestant Plot and said Justice Warcup would have perswaded him to swear against some Lords a Presbyterian Plot but he knew of none he said Haynes told him it was necessity and hard pay drove him to speak any thing against the Protestants and being questioned how his Testimony agreed with what he formerly said answered he would not say much to excuse himself his Wife was reduced to that Necessity that she begged at Rouse's door and meer necessity drove him to it and self preservation for the was brought in Guilty when he was taken up and was obliged to do something to save his Life and that it was a Judgment upon the King or People the Irish-mens swearing against them was justly fallen on them for outing the Irish of their Estates Parkhurst and Symons said they had seen at Colledge his House his Arms about the latter end of November Tates said Dugdale bespoke a Pistol of him for Colledge which he promised to give Colledge And upon Discourse sometimes after the Oxford Parliament Tates said Colledge was a very honest man and stood up for the good of the King and Government Tes said Dugdale I believe he does and I know nothing to the coutrary Deacon and Whitaker said they knew Colledge was bred a Protostant and went to Church and never to a Conventicle that they knew of and thought him an honest man. Neal Rimington Janner and Norris to the same purpose and Norris that Smith in company where was Speech that the Parliament-mens being agreed to go to Oxford said he hoped they would be well provided to go if they did go El. Hunt said a Porter in her Master's absence brought the Prints taken in Colledge's house eight weeks before and said Dugdale told her after her Master was in Prison he did not believe Colledge had any more hand in any Conspiracy against his Majesty than the Child unborn and he had as lieve have given an hundred pounds he had never spoke what he had and that he had nothing to say against her Master which would touch his Life Having summed up all the material part of the Evidence in the order it was given for or against the Prisoner let us see whether upon the whole an honest understanding Jury could with a good Conscience have given the Verdict the then Jury did or whether an upright Court could with a good Conscience have declared they were well satisfied in the Verdict given as all the four Judges in that case did though the Chief Justice North only spoke the works And though it is too late to Advantage the deceased yet it will do right to the Memory of the man to whose dexterous management on his Tryal many now alive owe the continuance of their lives to this Day it was not their Innocence protected the Lord Fairfax Sir John Brooks and many others before mentioined and many not named in the Tryal but Colledge's baffling that Crew of Witnesses and so plainly detecting their falsehood that the Kings Counsel never durst play them at any other person but the Earl of Shaftsbury as shall be shewn and failing there they were paid off and vanisht and never did more harm visibly what under-hand Practices they might be hereafter guilty of I know not Who could believe any one of those four Witnesses Dugdale Haynes Turbervile and Smith if it were for no other reason than the improbability of the thing that as Colledge said was it probable he should trust things of that nature with Papists who had broke their Faith with their own Party who could lay greater Obligations of secresie upon them than he was able to do That he a Protestant should trust people who had been employed to cut Protestants Throats And neither of them ever discovered any of the things they swore till after the Oxford Parliament though
about August that the 30th of Sept. Walcot Dined with him told him that the Lord Shaftsbury was secreted and desired to speak with him Walcot brought him to the Lord Shaftsbury who complained of the Duke of Monmouth and the Lord Russel for deserting him but there was such preparation made in London that now he was able to do it of himself and intended to do it suddenly he had above 10000 brisk Boys ready to follow him when he held up his Finger they would possess themselves of the Gates and in twenty four hours they would multiply to five times the number and would be able to possess Whitehall by beating the Guards the Lord Howard went to the Duke of Monmouth told him the Lord Shaftsbury's complaint who said the Lord Russel and he told the Lord Shaftsbury from the beginning that there was nothing to be done by them in the Country at that time the Matter of the discourse between him and the Duke of Mounmouth him and the Lord Shaftsbury and him and Walcot is too tedious to relate and as little to the purpose if the Jury had understood Matter of Law which they did not in it he takes care to shew what Confidence my Lord Shaftsbury had in him more than in the Duke of Monmouth or the Lord Russel how very Cautious he was and how Precipitate the Lord Shaftsbury was and that what he told the Duke of Monmouth the Duke told the Lord Russel and he heard the Lord Russel had been with the Lord Shaftsbury and put off the intended rising at wich the Lord Russel interrupted him and said he thought he had very hard measure there was great deal of Evidence given by hear-say only whereupon the Chief Justice said it was nothing against the Prisoner he declared it to the Jury but the Attorney General bid the Lord Howard go on in the method of time and that it was nothing against the Prisoner but the Witness was coming to it if his Lordship would have Patience he assured him so the Lord Howard went on where he left off with a story between him and Walcot of an intended Rising and of some dark Sayings let fall by Walcot and the Lord Gray importing a Design upon the Kings Person but the Lord Howard was very careful to put al off but at last it was resolved to rese on the 17th of November but the Lord Howard fearing it had been discovered because he saw a Proclamation a little before for bidding Bonefires without the Lord Mayors leave that of the 17th of November was also disappointed and the Lord Shaftsbury went away and died but considering they had gone so far that it was not sase to retreat and considering that so great an Affair as that was consisting of such infinite Particulars to be managed with so much fineness they erected a Cabal of six Persons the Duke of Monmouth Lord of Essex Lord Russel Mr. Hampden Algernon Sidney and himself about the middle of Jannary last and about that time they met at Mr. Hampdens House where it was considered whether the Insurrection should be in London or in Place distant what Countries and Towns were fittest and most disposed to Action what Arms necessary to be provided how to raise twenty five or thirty thousand Pounds and how they might so order it as to draw Scotland into a Consent with them about ten days after they met at the Lord Russe's House and then resolved to send some Persons into Scotland to the Lord Argile to invite some Persons hither to give an account of that Kingdom the Persons to be invited were Sir Jo. Cockram Lord Melvil Sir Campbill that matter was referred to Col. Sidney who told him he had sent Aaron Smith they agreed not to meet again till the return of the Messenger the Messenger was gone about a month it was six weeks or more before he returned and then his Lordship was forced to go into Essex where he had a small Concern where he staid three weeks and when he returned he was informed Sir John Cockram was come to Town and afterwards he was forced to go to the Bath where he spent five weeks and from that time to this was five weeks all which time was a Parenthesis to him And that he and the five mentioned erected themselves by mutual Agreement into that Society Atterbury swore Campbell was in his Custody then Col. Rumsey was asked whether my Lord Russel heard him when he delivered his Message to the Company and in what place of the Room the Company were who answered that when he came in they were standing by the Fire-side but all came from thence to hear him and when my Lord Russel said Col. Rumsey was there when he came in Rumsey said no the Duke of Monmouth and Lord Russel went away together Then in behalf of my Lord Russel the Earl of Anglesey was examined who said that visiting the Earl of Bedford the Lord Howard came in and told the Earl of Bedford that his Son could not be in such a Plot or suspected of it and that he knew nothing against the Lord Russel or any body else of such a Barbarous Design and he was going on again with what the Lady Chaworth had told him but was interrupted by the Kings Council telling him as the Court would not permit them to give Hear-say in Evidence against the Prisoner so they must not permit his Lordship to give Hear-say in Evidence for the Prisoner Mr. Howard said that the Lord Howard took it upon his Honour and his Faith he knew nothing of any Person concerned in that Business and not only thought my Lord Russel unjustly suffered but he took God and Man to witness he thought my Lord Russel the worthiest man in the World. Dr. Burnet said the Lord Howard was with him and he did then as he had done before with Hands and Eyes lift up to Heaven declare he knew nothing of any Plot nor believed any and treated it with great Scorn and Contempt The Lord Cavendish testified as to the Life and Conversation of the Lord Russel and thence concluded it was not likely he should be guilty of any such matter and heard the Lord Russel speak of Rumsey as if he had an ill Opinion of him and therefore it was not likely he should trust him Dr. Tillotson spoke of his Conversation Dr. Burnet and Dr. Cox spoke of his Cenversation and of his Aversness to all Risings Dr. Cox testified that my Lord Russel said the Lord Howard was a man of luxuriant Parts but he had the luck not to be trusted by any Party The Duke of Somerset spoke of the Lord Russels Conversation The Lord Clifford Mr. Leveson Gore Mr. Spencer and Dr. Fitz-Williams spoke as to my Lord Russel's Conversation The Lord Howard being asked by the Jury what he said to the Earl of Anglesey's Evidence owned what the Earl said but he did it to out-face the matter and if he said untrue he ought
readily trust the Lord Howard with the Secret who was unconcerned in the management before as he says himself and yet secreted himself from the Duke of Monmouth and my Lord Russel who were equally Guilty if what was sworn was true I cannot but observe that in all the time of the Lord Shaftsbury the Lord Howard was no otherwise concerned in the pretended Design but in raising difficulties and being in great fear least there should be a Rising or an Attempt upon the Kings Person and if he said true he was he Man that put of the intended Risings and likewise the intended Designs on the Kings Person in so much that I think he was so far from standing in need of a Pardon for Treason that he deserved a considerable Reward if it were for nothing else than for his fearing the design was discover'd By the Proclamation against Bonefires which as he said put off the Rising intended to be the 17th of November and yet he and others being afraid the middle of January they erected themselves into a Cabal of Six Persons of which there is but one Person in all his Narrative he pretends to have spoken to about that Matter before which is the Duke of Monmouth and but one more he pretends even by hearsay to be concerned in it before which is my Lord Russel and how improbable therefore was it that those Six Persons should as it were on sight put themselves upon such a dangerous design especially considering the reason he gives for it which was their Fears that what had been transacted was or might be discovered this likewise is observable that from the 30th of September the time the Sheriffs entred upon their Office to the 17th of November following he is very exact as to the time of each Matter when there was no Person could contradict him for my Lord Shaftsbury was dead Walcot was convicted and the Duke of Monmouth was gone who are all the Persons mentioned to be concerned in that time yet when he comes to speak of the matter in which my Lord Russel was concerned then be says it was about the middle of January about ten days after about six weeksafter about three weeks and five weeks for had he been precise in the times he might have been disproved in the Meetings he gave Evidence of and it is much his Memory was so very good as to the former times to be so very precise in them as he was and so very defective in the latter times and yet those times do not make up the space between the middle of January and the time of the Tryal by many weeks unless you will give large allowances to the word about an Exception which was taken to Mowbray's Evidence tho' he rectifyed it by his account in his Almanac but it would not be admitted tho' Colledge very sensibly desired of the Court for Justice sake to look on the Almanac to see whether it was newly writ as if done for that purpose Besides the Improbability if such a thing was in hand as the Lord Howard pretended for him to run into the Country and then to the Bath when the matter was just come to a Crisis as it were shews him if swore true rather a Madman than a Traitor But the Usage of the King's Council and the Court toward the Prisoner was very unjust and unfair they permitted the Lord Howard to go on with a long story of him and my Lord Shaftsbury at which when my Lord Russel took Exceptions the Chief Justice it is true said it was no Evidence yet the Attorney General bidding him go on in the Method of time he went on where he left of intermixing Stories of Designs and of Attempts by other Persons upon the Kings Person to exasperate the Jury as my Lord Russel said rightly against him a thing which no Councel durst have done and no Court would have suffered in any other Case nor even in that would the Court or Councel suffer it for the Prisoner how was my Lord Anglesey checkt when he began to tell what my Lady Chaworth said and Mr. Edward Howard when he did not speak of his own knowledg how unjust was it for the King's Council to repeat all the Evidence the Lord Howard gave when they summ'd it up even that which the Court told them before was not Evidence how unjust was the insinuating of the Death of my Lord of Essex as Evidence against my Lord Russel and why did not the Court in Summing up the Evidence take notice of the Liberties the Witnesses and Council had taken and have told them what was not Exidence No other reason can be given than what Colledge said at his Tryal upon his Observation of Fitz. Harris's business and his own That the Matter was not to stop at him REMARKS ON Col. Sidney's TRYAL THE Lord Russel being Executed and the same day what was called his Speech being published then which nothing of Print was more eagerly accepted or sought after which shewed the Inclination of People there was some respite for quieting the minds of the People but it was not to stop there as Colledge said and therefore Col Sidney who was talk'd to Death under the Notion of a Common-wealths man was the 17th of November 1683. brought to Westminster to be arraigned on an Indictment of High-Treason the Indictment at the time he came to the Hall was so far from being found by the Grand Jury that it was not so much as presented to them but the Kings Council who had packt the Jury knew well enough that it would be accepted that is found upon sight by the Jury without any consideration which was accordingly done and Col. Sidney thereupon arraigned The Indictment was for designing to depose the King and to perswade the Kings Subjects to rebel and that he did write a certain Libel wherein it was contained that he meaning King Charles the Second is subject to the Law of God as he is a Man to the People who made him such as a King To which Indictment he would have put in some exceptions exprest in a Parchment in his Hand but was told by the Court he must either plead or demurr and upon no other Terms Exceptions could or ought to be admitted after which he pleaded not Guilty The 21th of November he was tryed at which time he insisted to have a Copy of his Indictment as he had done when he was arraigned but was both times denyed The first Witness against the Prisoner was Mr. West against whom Col. Sidney objected because he was not pardoned but it was answered by the Court that he was a good Witness in my Lord Russels Tryal and therefore should be in that then Col. Sidney desired Mr. West might speak nothing but what be knew of Col. Sidney but was answered by the Court he might give Evidence of a Plot in general though Col. Sidney not concerned in it and it was called Sir William Jones's Law