determine that Impeachment before you Here is the Method and Proceedings of Parliament before you and I hope you will proceed no further on the Indictment The Cheif Justice then said Here is nothing of the Commons Right to Impeach before us nor of the Lords Jurisdiction nor the Methods of Parliament in this Case the sole matter is whether this be a good Plea to oust the Court of its Jurisdiction in this matter To which Judge Jones added Here is nothing of any fact done in Parliament insisted on here this is for a thing done without Doors Mr Williams replyed 'T is a hard matter my Lord for the Bar to answer the Bench. Sr Francis Winnington then argued for the Prisoner thus The King's Attorney has demurred generally and if our Plea be well and formally pleaded I am sure all the matter of fact is confessed by the demurrer And upon the matter of fact so agreed the general Question is Whether an Impeachment by the Commons and still depending be sufficient to oust the Court to proceed upon an Indictment for the same offence The Lord Chief Justice said That cannot come in question in the Case Sr Francis Winnington replyed Why my Lord Chief Justice The Question is Whether you have pleaded sufficient matter to oust us of our Jurisdiction Sr Francis Winnington proceeded saying My meaning is the same It is agreed that there were no doubt to be made of the Plea if there had been a particular Impeachment The House of Lords is a Superiour Court to this and a Suit in a Superiour Court may be pleaded to stop the Proceedings of an Inferiour Court and if once the Suit be well commenced in the Superiour Court it cannot after go down to the Inferiour and what is begun in one Parliament may be determined in another So is the Case 4. Edw. 3. N. 16. of the Lord Berkley and those accused of the death of Edw. 2. It was there objected as 't is here that by this means there might be a stop of Justice by the dissolution of the Parliament yet the true answer is That it is presumed in Law that Parliaments will be called frequently according to the Statute 4 Edw. 3.14 36 Edw. 3.10 This Record is well pleaded and could not be otherwise unless Mr Attorney would have us plead what is false the Commons Impeached Fitz-Harris generally and We alledge in our Plea that 't was secundum legem consuetudinem Parliamenti and so 't is confessed by the Demurrer A general Impeachment is good by the Law and course of Parliament Coke 4 Inst 14 15 says What the Law and course of Parliament is the Judges will never intermeddle with We find 11 Rich. 2. Rot Parl part 2. and Rushworth part 1. in the Appendix 51. Tresilian and others were appealed against for Treason the Judges of the Common and Civil Law were called by the King to advise of the matter they all agreed that the Proceedings were neither agreeable to Common or Civil Law But the Lords said it belonged not to those Judges to guide them but they were to proceed according to the Course and Law of Parliaments and no Opinion of theirs should oust them of their Jurisdiction 31 H. 6. Rot. Parl. N. 26. The Judges were demanded whether the Speaker of the Commons during an Adjournment might be Arrested They excused themselves saying That in this great matter they ought not to interpose it being a matter of Parliament In the great Council 1st and 2d Jac. The Judges refused to give their Opinions upon questions put to them about the Vnion of both Kingdoms for that such things did not belong to them but were matters fit for Parliament only Hence I infer that since 't is Pleaded here to be according to Law of Parliaments and Mr Attorney hath acknowledged it that you are fore-closed from meddling further with this Case it being a matter whereof you cannot judge But 'T is objected That if the Impeachment be admitted to be according to the course of Parliament yet 't is so general the Court cannot judge upon it Answer The House of Commons would not Impeach a Man for no Crime The Prisoner's Plea avers that that it was for the same Treason in the Indictment this makes the matter as clear to the Court as if the Impeachment had mentioned the particular Treason 26 Assiz Pl. 15. Stamf. Pla. Cor. 105 A Man Indicted for the Murder of I. S. pleads a Record of Acquittal where he was Indicted for the Murder of I. N. but avers that I. S. in this Indictment is the same Person with I. N. in the other Indictment and it was adjudged a good Plea tho' the Averment seemed to contradict the Record This makes it clear that if an Averment may consist with the Record the Law will allow it Mr Attorney had his Election either to plead Nul Tiel Record Or he might have taken Issue upon our Averment that it was not for one and the same Offence but he has demurred and thereby confessed there is such a Record and confessed the Averment to he true that he was Impeached for the same Crime and that he is the same Person I shall now offer some Reasons in general 1st That when the Commons in Parliament in the name of all the Commons of England have lodged an Impeachment against any Man it seems against natural Justice that any Commoners should afterwards try or judge him for that Fact Magna Charta says That every Man shall be tryed by his Peers or by the Law of the Land This is a way of Tryal by the Law of the Land but not by his Peers for 't would be hard that any Man should come to Try or give Judgment upon a Person who hath been his Accuser before The Lords are here Judges in point of Fact as well as Law the Commoners may come in as Witnesses but not as Judges 2d Reason If an Appeal of Murder were depending before the Statute 3 H. 7.1 The King could not proceed upon an Indictment for the same Fact because the King only takes care that the Offender should not go unpunished but the preferrence was given to the Person more particularly concerned and the King's Indictment must stay till the year and day were out to see whether the Person immediately concerned would prosecute the Suit so says Lord Hales in his Pleas of the Crown Then a Minoriad Majus does the Law so regard the Interest of the Wife or Heir c in their Suit and has it no regard to the Suit of all the Commons of England for manifestly an Impeachment is the Suit of the People and not the King's Suit 3d Reason If this Man be tryed and acquitted here Can he plead this in Bar to the Impeachment it cannot bar that great Court by saying he was acquitted by a Jury in Westminster-Hall and if so contrary to a fundamental Rule of Law a Man shall be twice put in danger of his Life
The Second Part Of the DISPLAY OF Tyranny OR REMARKS UPON The Illegal and Arbitrary Proceedings in the Courts of Westminster and Guild-Hall London From the Year 1678. To the Abdication of the late King James in the Year 1688. In which time the Rule was Quod Principi placuis Lexesto Printed Anno Anglia Salutis Secundo 1690. Sold by Book-sellers in London and Westminster TO The Eminently Deserving and Highly Honoured Sr Samuel Barnardiston Baronet Sir YOu are no more able to deliver your self from the Persecution of a dedication than you were in your single Person to stem the dreadful deluge of Popery and Tyranny which very lately brought Old England within an Hair's breadth of that utter Ruin that was manifestly impending Indeed when I first took the resolution of inscribing your honoured Name to the first part of my Scriblings I purposed to have petitioned your Licence so to do but at the time when the thing was finished I was at such a great distance from you that I had not opportunity to do it and therefore being no nearer to you at this time I do implore your Pardon for my Presumption therein and for my repeating that Transgression and do hope that you will the more readily grant it when I have made this publick Acknowledgement to the World in case any thing I have said be deemed offensive which I hope there cannot that Sr Samuel Barnardiston was no way privy to the writing of the First or of this Second part of these Stories and that I can upon very good ground say that he doth not to this day know who is the Collector of them Sir He who is not allowed to use a Sword in his Countries quarrel may surely be indulged in crying out Murder Treason when he sees a Pistol at his Prince's head or a Dagger at his Heart and having with grief beheld that very same Toryism which murder'd the best of Men my good Lord Russell and many others of our best Patriots to be rampant and impudent and as irreconcilably bent against the true Government of England which the glorious and most miraculous providence of Heaven has lately devolved upon our undoubted rightful King and Queen as it was against our late blessed Martyrs for the English Liberties I could not withhold my self from attempting the service of my Generation according to my mean capacity in exposing those Principles and Practices which but t'other day had brought the Kingdom to the very brink of irreparable ruin especially when I see at this very day the Men who had suck'd in that Poison Designing and Plotting not to allure but to dragoon us into French Bondage The truth of it is Sr. I was much irritated to the prosecution of this Work by what I met with in my return from the late Tryal of Skill in Essex when those most worthy Gentlemen Colonel Mildmay and Sr. Fran. Masham were elected Knights for that County I have heard that it hath been an old Observation that tho' many Honourable Reverend and Worthy Persons have frequently voted against your self in Suffolk and against Colonel Mildmay in Essex yet that it hath been rarely seen that a Tory has voted for either of you And it is well remembred that at the time of the mighty strugling between Popery and Christianity in the Critical Year of 1681. the then Lord Chief Justice Scroggs sent for many of the Gentlemen of Essex and told them that whatever they did they must not chuse Mildmay But I have digressed what I was saying is Rigby was one of the Good and True Men whom the great Care of Sr. Dudley North had returned to pass upon my Lord Russel's Life and he stood in that Pannel within two of Oneby who was last sworn that one Mr. Rigby of Covent Garden I name him because he stands indicted in Essex for the Crime I am mentioning returning from voting at that Election upon the 11th of March last being to a high degree enraged that Colonel Mildmay and Sr. Francis Masham were chosen for you must know he was of t'other side said that 't was no matter who carried the day there But if the King would not do as they would have him innuendo himself he knows who besides But I am most certain my Lord of Oxford doth not They would make a King that should do as They would have him And this being upon the Eve of the Fast appointed by their Majesties Proclamation he proceeded adding We must keep a damn'd Fast to morrow This most Loyal Disciple of Sr. Roger's and designed Jury-man for my Lord Russel taking Pet because Colonel Mild may was chosen a Parliament Man must now by all means have a King of his own making and 't is six and twenty to one but if the Silly Woman had pledged him K. James's Health but the next Glass had bin to our Lord Lewis King Elect. but we will eat Roasted Beef and be Drunk He then put a glass of Wine into a very Civil Woman's hand saying Drink King James 's Health and upon her answering him No I deny that but I will drink the Wine he said Damn you for a Bitch would it might poison you where you stand and added A Bitch to deny a Gentleman such a Request She deserves to be Sacrificed Sr. I cannot upon this occasion of Health-drinking hinder my self from remembring the Case of Mr. Elias Best a substantial Citizen but one who had been an Ignoramus Jury-man a great Reproach and an unpardonable Crime in that day as you Sr. very feelingly know He was indicted for the Frolick of drinking to the Pious Memory of Honest Stephen Colledge and condemned to a Fine of 1000 l. to stand Three Times in the Pillory and to give Sureties for the Good Behaviour for Life Upon this Judgment he was imprisoned Three Years to the loss of good Trade and to the ruin of his Health and his Estate and when almost ready to expire he was graciously pardoned upon payment of 200 l. to the Empson and Dudley of the late Reign Graham and Burton 'T is well for Mr. Rigby that the accursed Practices of that day are not to be Presidents in the present benign and most merciful Reign Sr I have no sinister nor mercenary end in emitting these Papers to publick view I write not for reward for I gave away as many scores of the first part of this Tract as the Printer gave me and have not one for my self and I should be vaine to the highest degree to expect applause for so confused and ill digested a Work as this is But I have with a good will tho' in a very feeble manner brandished my Pen for the service of that good old Cause which I ever loved and must love should it cost me my life I mean the Liberties of England and it hath deeply wounded me to hear and know so many instances as I do of the unpunished nay of the uncheckt Seditious and
the same entertainment which King Charles the second ever gave to the Councils offered to him in favour of the Protestant Religion and of the true English Government however the honest zeal and undaunted Courage of these Noble Lords made deep impressions upon the Breasts of all true Lovers of the Laws and Liberty of their Country And the Citizens of London in Common-Hall assembled upon the 4th of February 1680. spoke their Approbation of their Loraship's Noble Enterprize in what follows which was agreed upon with a general and loud Acclamation of thousands of Citizens To the Worshipful Slingesby Bethel and Henry Cornish Esquires Sheriffs of London and Middlesex WE the Citizens of the said City in Common-Hall assembled having diligently perused the late Petition and Advice of several Noble Peers of this Realm to his Majesty whose Counsels We humbly conceive are in this unhappy juncture highly seasonable and greatly tending to the safety of these Kingdoms We do therefore make it our most hearty request that you in the Name of this Common-Hall will return to the Right Honourable the Earl of Essex and by him to the rest of the Noble Peers the grateful Acknowledgment of this Assembly By these means and indeed by the whole Course of this Noble Lord's Life which was a steady Course of Exemplary unshaken Vertue and shew'd an unalterable affection to the true Religion and detestation of Tyranny He became insupportable to those whose Study was Mischief and to whom no Person was acceptable but such as they found disposed to betray the Protestant Religion and the Rights of England to their Popish and Despotick Designs and therefore from this time they grew more assiduous to contrive his Destruction The Conspirators well knew that this Great Man had most deservedly acquired a mighty share in the hearts of the People And that as he knew very much of their Designs so that he was not by any arts or allurements to be Cozen'd or tempted to a Complyance therewith therefore as They told the brave Colonel Sidney he must dye that their Plot might live and to avoid the Reproach of bringing the Son to the Block by that very Prince for whom the Father had lost his Head and which is also very probable to prevent his discovery of what he could tell and others knew not They condemn him without a Tryal and in a most barbarous manner Murder him in the Tower But Heaven intending to bring this accursed Assassination of the brave Earl of Essex to light a report of very suspitious Circumstances in relation to that matter was instantly spread and reached the Ears of Mr Braddon a Gentleman of great Integrity and of no less Courage whose honest Zeal prompted him to look into that hellish Intrigue and to endeavour a full discovery of that horrid Villany but that Season not allowing it he and Mr Speke were run upon and with great fury prosecuted in the manner following They were brought to Tryal upon an Information charging them with Subornation and endeavouring to raise a belief that the Earl of Ess did not murder himself The Judges then in Court were The Lord Chief Justice Jeffryes Judge Withens and Judge Holloway The Jury Sr Hugh Middleton a Papist Thomas Harriot Thomas Earsby Joshua Galliard Richard Shoreditch Charles Good Samuel Rouse Hugh Squire Nehem. Arnold John Byfeild William Waite James Supple The King's Council were Attorney General Sawyer Solicitor General Finch Jenner Recorder of London Mr Dolben Mr North Mr Jones Council for the Defendants were Mr Wallop Mr Williams Mr Thompson Mr Freke Mr Dolben opened the Information to this effect That whereas the Earl of Essex upon the 10th of July last was committed to the Tower for Treason and did there Murder himself as was found by the Coroner's Inquisition yet the Defendants designing to bring the Government to hatred the 15th of August conspired to perswade the King's Subjects that the said Earl was Muedered by certain Persons unknown and to procure false Witnesses to prove that he was not felo de se but was Murdereds and that they did malitiously declare in writing that Mr Braddon was the Person that did prosecute the said Murder to the scandal of the Government c. Then the Attorney General brought in Evidence Sr Leoline Jenkins his Warrant for the Commitment of the Earl to the Tower and the Inquisition of Mr Farnham the Coroner taken by this Jury July 14th 1683. viz. Samuel Colwel William Fisher Thomas Godsell Thomas Hunt Natha Mountney Thomas Potter William How Robert Burgoyne Eleazar Wickens Thomas Hogsflesh Henry Cripps Richard Rudder William Knipes John Hudson John Kettlebeater Lancelot Coleson Morgan Cowarne Thomas Bryan William Thackston Richard Cliffe Zebediah Prichard William Baford and Theophilus Carter Which Jury had found that the Earl of Essex was Felo de se Then the Witnesses for the King being called Mr Evans was sworn and the Attorney General suggested that he and old Mr Edwards would prove that Mr Braddon went about and declared that the Earl of Essex was Murdered and that he was the Prosecutor of the Murder but neither of them answered expectation in that matter Mr Evans testified that Mr Edwards told it to him and others for News at the Custom-House that fore-noon of the day of the Earl of Essex his death that his Son said that he saw a Razour thrown out of the Earl's Window That upon the Munday after which was July the 16th Mr Braddon came with Mr Hatsel to his House where Mr Hatsel shewed him the Coroner's Inquisition in Print which having read Mr Evans told Mr Hatsel what he had heard from Mr Edwards at the Custom-House And he said that Mr B. did not concern himself or say any thing though he might hear Mr Evans his discourse with Mr Hatsel he being walking about the Room Mr Evans added that upon the 17th of July Mr Edwards and Mr Braddon found him in a Coffee-House and Mr Edwards then told him that Mr Braddon had been with him examining his Son about a Razour that was thrown out of the Earl of Essex his Window Mr Edwards testified that about ten of the Clock the day of the Earl's death he was informed by his Family and by his Son that same day at noon that his Son came from the Tower about ten of the Clock and said that he had seen the King and Duke and that the Earl of Essex had cut his own Throat and that the Boy saw an hand throw a Razour out of the Window and a Maid in a white Hood came out of the House and took it up and then go in again and that he heard a noise as of Murder cryed out Mr Edwards acknowledged that he told several at the Custom-House the same day what the Lad had declared and that Mr Bradden came not to make enquiry about it till Tuesday the 17th of July before which time he never knew Mr Braddon that he then told him what report the
That if any Judge Justice or Jury proceed upon him and he found guilty that you will declare them guilty of his Murder and Betrayers of the Rights of the Commons of England Hereupon the House came to these Resolves That it is the undoubted right of the Commons in Parliament assembled to impeach before the Lords in Parliament any Peer or Commoner for Treason or any other Crime or Misdemeanour and that the Refusal of the Lords to proceed in Parliament upon such Impeachment is a denyal of Justice and a violation of the Constitution of Parliaments That in the Case of E. Fitz-Harris who by the Commons has been impeached for High Treason before the Lords with a Declaration That in convenient time they would bring up the Articles against him For the Lords to resolve that the said Fitz-Harris should be proceeded with according to the course of the Common-Law and not by way of Impeachment in Parliament is a denyal of Justice and a Violation of the Constitution of Parliaments and an Obstruction to the further discovery of the Popish Plot and of great danger to his Majesties Person and the Protestant Religion That for any Inferiour Court to proceed against him or any other Person lying under an Impeachment in Parliament for the same Crimes for which he or they stand impeached is an high breach of the Priviledge of Parliament This matter thus agitated in the House of Commons was countenanced by a Protestation of many Temporal Lords which was to this effect That in all Ages it had been an undoubted Right of the Commons to impeach before the Lords any Subject for Treasons or any other Crime whatsoever That they could not reject such Impeachments because that Suit or Complaint can be determined no where else for an Impeachment is at the Suit of the People but an Indictment is at the Suit of the King As the King may Indict at his Suit for Murther and the Heir or the Wife of the Party Murthered may bring an †Which was always to be preferred and upon notice thereof all Prosecutions at the Kings Suit were to stop till the Prosecution at the Suit of the Party was determined Appeal And the King cannot Release that Appeal nor his Indictment prevent the Proceedings in it It is an absolute denial of Justice in regard it cannot be tryed any where else The House of Peers as to Impeachments proceed by vertue of their Judicial Power and not by their Legislative and as to that act as a Court of Record and can deny Suitors especially the Commons of England that bring legal Complaint before them no more than the Judges of Westminster can deny any suite regularly commenced before them Our Law saith in the Person of the King Nulli negabimus Justitiam We will deny Justice to no single Person yet here Justice is denyed to the whole Body of the People This may be interpreted an exercise of Arbitrary Power and have an influence upon the Constitution of the English Government and be an encouragement to all Inferiour Courts to exercise the same Arbitrary Power by denying the Presentments of Grand-Juries c for which at this time the Chief Justice stands impeached in the House of Peers These Proceedings may mis-represent the House of Peers to the King and People especially at this time and the more in the particular Case of Edward Fitz-Harris who is publickly known to be concerned in vile and horrid Treasons against his Majesty and a great Conspirator in the Popish plot to Murther the King and destroy and subvert the Protestant Religion Monmouth Kent Huntington Bedford Salisbury Clare Stamford Sunderland Essex Shaftesbury Macclesfield Mordant Wharton Paget Grey of Werke Herbert of Cherbury Cornwallis Lovelace Crew This Protest was no sooner made upon Munday the 28th of March 1681 but the Parliament was instantly dissolved Well The Parliament being dismissed Fitz-Harris must be Hang'd out of the way and the Term approaching Scroggs the Chief Justice who lay under an Impeachment for Treason in Parliament is removed with marks of Favour and Respect being allowed a Pension for Life and his Son Knighted and made one of his Majesty's Learned Council and Sr Francis Pemberton being advanced to the Seat of Lord Chief Justice the Business of Fitz-Harris is brought before him and Justice Jones Justice Dolben and Justice Raymond and proceeded upon in the manner following UPon the 27th of April 1681 an Indictment for high Treason was offered to the Grand-Jury for the Hundreds of Edmonton and Gore in Middlesex against Fitz-Harris whereupon Mr Michael Godfrey the Foreman in the name of the Grand-Jury desired the opinion of the Court whether it were lawful and safe for them to proceed upon it in regard Fitz-Harris was Impeached in the late Parliament at Oxford by the House of Commons in the name of all the Commons of England Mr Attorney General then said That Mr Godfrey and two more were against accepting the Bill but the body of the Jury carryed it to hear the Evidence and that thereupon himself and Mr Solicitor went on upon the * A new way of dealing with Grand-Juries to procure the finding Bills of Indictment Evidence and spent some time in opening it to the Jury and We thought they would have found the Bill but it seems They have prevailed to put these scruples in the others heads Then The Lord Chief Justice Pemberton said your scruple is this here was an Impeachment offered against Fitz-Harris to the Lords which was not received and thereupon there was a Vote of the House of Commons that he should not be Tryed by any other Inferiour Court We do tell you 't is our Opinion that If an Indictment be exhibited to you you are bound to enquire by vertue of your Oathes you cannot nor ought to take notice of any such Impeachment nor Votes and We ought to proceed according to Justice in Cases that are brought before us This We declare as the Opinion of all the Judges of England Then the Jury went away and afterwards found the Bill Upon Saturday the 30th of April Mr Fitz-Harris was brought to the King's Bench-Bar and Arraigned upon the Indictment whereupon he offered a Plea in writing to the Jurisdiction of the Court and the Chief Justice said We do not receive such Pleading as this without a Counsels hand to it Upon which the Prisoner desired the Court to assign Sr Francis Winnington Mr Williams Mr Pollexfen and Mr Wallop for his Council which was accordingly done Upon Monday the 2d of May the four Council moved the Court to have longer time for drawing the Plea and that they might have a sight of the Indictment as necessary to the drawing it but they were opposed therein by Mr Attorney and the Court denyed both Then Sr George Treby and Mr Smith were also assigned as Council for the Prisoner at his request Upon Wednesday the 4th of May Fitz-Harris being brought from the Tower to the King's Bench-Bar
Mr Wallop said That they had not had those Instructions that were fit to direct them in drawing the Prisoner's Plea not having prevailed for a sight of the Impeachment or Indictment and that he conceived that by the Law as that Case was upon a special Plea The Prisoner ought to have a Copy of the Indictment Then the Plea was read in these Words viz. Et predictus Edwardus Fitzharris in propria persona sua ven dic quod ipse ad Indictament predict respondere compelli non debet quia dic quod ante Indictament pred per Jur. pred in forma pred compert scil ad Parl. Dom. Reg. nunc inchoat tent apud Oxon. in Com. Oxon. vicesimo primo die Martii anno Regni dict Dom. Reg nunc tricesimo tertio ipse idem Edw. Fitz-harris per Miiites Cives Burgenses in eodem Parl. assemblat nomine ipsor omnium Com. Angliae secundum legem cons Parl. de alta proditione coram Magnat Procerib hujus Regni Angl. in eodem Parl. assemblat impetit fuit quae quidem impetitio in plenis fuis robore effect adhuc remanet existit prout per Record inde inter Recorda Parliamenti remanens plenius liquet apparet Et pred Edw. Fitzharris ulterius dic quod alta Proditio in Indictamento pred per Jur. pred in forma pred compert specificat mentionat alta Proditio unde ipse predict Edw. Fitzharris in Parl. pred modo ut prefert impetit fuit existit sunt una eadem alta Proditio non alia neque diversa quod ipse pred Edw. Fitzharris in Indictamento pred nominat pred Edw. Fitz-harris in Impetitione pred nominat est und eadem persona non alia neque diversa hoc parat est verificare c. Vnde ipse pred Edw. Fitzharris petit Judicium si Cur. Dom. Reg. hic super Indictamentum pred versus ipsum ulterius procedere vults c. The Attorney General then prayed Judgment upon the Plea saying 'T is an insufficient Plea nay 't is no Plea to to bar you of your Jurisdiction Whosoever will plead to the Jurisdiction if he have any Record to plead must produce it in Court and for this matter it will appear a plain frivolous Plea for there is no such matter depending as this Plea alledges Another thing is this They have pleaded no Record at all nor any Impeachment at all For they say he was impeached by the Commons de alta Proditione but that is nought The Plea ought to set forth for what Crime particularly this is no Plea to the Jurisdiction upon that point Vpon an Impeachment or Indictment the King hath his Election to proceed upon which he will This is not only apparently a false Plea but frivolous in it self being to the Jurisdiction For there was never any thing of a Crime so great but the Court of King's-Bench which hath a Soveraign Jurisdiction for Commoners especially could take Cognizance of it The Chief Justice then said Pray consider whether if it be an insufficient Plea and such that no Issue can be taken upon it whether you would not demur to it Consider whether you think fit to demur or to take Issue upon it or reply to it that it may come judicially for our Opinion The King's Council Mr Solicitor Serjeant Jeffryes Sr Francis Wythens and Mr Saunders spoke much to the effect with Mr Attorney and pressed to have the Plea rejected but after much contrasting about the matter the Attorney agreed to demur generally and the Prisoner's Council immediately joyned in Demurrer Then Mr Attorney moved thus I desire your Judgment that the Plea may stand over ruled for a plain fatal Error in is This is a particular Indictment for the framing a most pernicious scandalous Label against the King They to out the Court of this Jurisdiction plead that he was Impeached of high Treason in general Now Pleas to the Jurisdiction ought to be the most certain of any Pleas whatsoever Mr Solicitor added This Plea is neither good in matter nor forme he that pleads an Indictment or Impeachment in another Court must set it forth in the Plea which is not done in this Case and We take that to be fatal to it Mr Williams for the Prisoner then said We hope the Court in this Case will not tye us up presently to argue this matter Mr Attorney sayes he never found that any Plea to the Jurisdiction required a Demurer but was over-ruled or allowed by the Court presently The Precedent in Elliot's Case is full in it He was Indicted for Misdemeanors in the House of Commons he Pleaded this to the Jurisdiction of the Court the Attorney at that time insisted to have it rejected but the Court over-ruled him and put him to demur This is a Precedent Mr Attorney hath not seen The Court in that Case did not tye them up to argue the Plea presently but gave them till the next Term. Here is a Mans Life in question and the Priviledge of Parliament concerned in it We desire a reasonable time in the Case of Plunket you gave him till next Term which is as high a Treason as this I am sure of it Sr Francis Winnington spoke to the same purpose and said This is a Case well worth our taking care of and yours too We hope you will not deny us what time is reasonable Mr Wallop added That he had been an unprofitable Attendant in that Court near forty Years and never saw so swift a proceeding as this which is as swift as lightning That whereas they called it a frivolous Plea he believed the Plea to be of the greatest import that ever those Gentlemen came there about That de Morte Hominis nulla est Cunctatio longa That he humbly prayed a reasonable time to be allotted Then the Lord Chief Justice proposed to the Prisoner's Counsel that he should plead over Mr Pollexfen answered We cannot do it we have considered it and are of Opinion that if we should plead over it would destroy our Plea by doing it we give up the Jurisdiction It is as indifferent to me as any Body to be forced to argue it now but No Body can say they ever saw many Instances of the like nature Therefore pray my Lord let us not go on so hastily with it If you will not give us leave and time to be prepared to argue it you must take it as we are able since we can't have time to make our selves able The Attorney Solicitor General and Sr George Jeffryes vehemently opposed the allowing any time to argue the matter and pressed for present Judgment but after much tugging about it the Court allowed time till the Saturday following Then upon Saturday the 7th of May the Attorney General began saying This is a Plea to the Jurisdiction of the Court and some of our Exceptions are to the form and
time the Judges resolved it at the Council-Table that they could not be proceeded against upon those Indictments tho' the Parliament was dissolved That was a stronger Case than this of Fitz-Harris for there the Inferiour Court was first possessed of the Cause and yet the general Impeachment tyed up the Hands of the Court But here the Parliament was first possest of the Cause which the Inferiour Court cannot take out of their Hands An Impeachment differs also from an Indictment in that in an Indictment you cannot plead auter foitz Arraigned but must plead Auter foitz Convict or Acquit as in Sr William Wishople's Case But in an Impeachment They will acknowledge that after Articles exhibited They cannot proceed upon an Indictment for the same Offence although the Defendant be neither Convict or Acquit I shall say no more but observe how serupulous the Judges have been to touch upon a Case where they had the least suspition that the Parliament had or pretended a Jurisdiction or were possessed of the Cause I am sure I could never obtain any thing by any Labours of mine in those Cases But upon such Motions They being aware of the Consequence would alwayes worship afar off and never come near the Mount They ever retired when They came near the Brink of this Gulf. My Lord If you retain this Cause in consequence you charge your selves with this Mans Blood I leave it to your Wisdom to consider it Then Mr Pollexfen proceeded thus I shall not make any long Argument But I would fain come to the Question if I could for I cannot see what the other side make the Question Our Plea is objected against both for the matter and form But if for the matter it be admitted that an Impeachment for the same matter will out this Court of Jurisdiction I will say nothing of it for that is not then in Question The Chief Justice assented to this saying No not at all Then Mr Pollexfen added The matter then seems to be agreed and only the manner and form of the Plea are in question for the manner they say 't is not alledged there is any Impeachment upon Record I confess Form is a subtile matter in it self and 't is easie for one that reads other Mens Words to make what Construction he will of them even Nolumus to be Volumus To answer the Objection I think 't is as strongly and closely penn'd as can be He was Impeached Quae quidem Impetitio c. What can the Quae quidem signifie but the Impeachment just mentioned before The great Question now is whether this be not too general to alledge that he was Impeached in Parliament and not saying how or for what Crime tho' there be an Averment that 't is for the same Crime whether this Plea should therefore be naught 1st For this of the Averment be the Crimes never so particularly specified in the Record that is pleaded and in that upon which the party is brought in Judicature yet there must be an Averment which is so much the substantial part of the Plea that without it it would be naught and it must come to be tryed Per Pais whether the Offence be the same or not Then the Objection to the generallity is not to the substance but rather an Objection to the Form on their side because the plea alledges the substance that 't is for the same Treason which had not Mr Attorney demurred but taken Issue on must have been tryed Per Pais To speak to the general Allegation that he was Impeached for Treason and not saying particularly what the fact was If they admit the Law That an Impeachment suspends the Jurisdiction of this Court They admit a great part of the fact and then the Question will be what Impeachment will take away the Jurisdiction and there can be but two sorts the one at large where the Offence is specified the other in general words where the Commons Impeach such a one of Treason Now if such an Impeachment be good then have we the most plain Case pleaded that can be as plain as the Fact that this is an Impeachment in Parliament and then this Court is ousted of its Jurisdiction The Court and We are to take notice of the proceedings in other Courts as other Courts are to take notice of the proceedings of this generally the Writ or Declaration as 't is in Sparrye's Case does in all Civil Causes set forth the particularity of the thing in question yet in some Cases it doth not do so but the Course and Practice of some Courts admits general proceedings Now where that is so the party cannot mend himself by making their Course otherwise then it is for he must not say it is more particular then the Course of the Court does make it Therefore he hath no other way by the Law to bring his matter on and help himself but by an Averment that 't is the same The Law must be govern'd by its own proceedings and take notice of the nature of the things depending before the Court and if there is as much of certainty set forth as the Case will admit and is possible to be had We must permit the party to plead as he can and help himself by the Averment Then the Question is Whether an Impeachment generally be good or no If they say it is not then the bottom of the Plea is naught and all is quite gone But if they say it is then I have pleaded my matter as it is For I cannot say that that is particular or make that particular that is not and I have done all that is possible for me to do in my Case I have pleaded what is in the Record and as 't is in the Record from which my Plea must not vary and I have averred 't is for the same matter and you have confessed it by the demurrer I would not entangle the Question but I see not how they can extricate themselves out of this Dilemma if they admit a general Impeachment is good In December 1678. the Lords in the Tower were Indicted and after Decem. the 5th the Commons considering that it was intended to bring them to Tryal before the Peers They purposely to have the carriage and prosecution of this horrid Treason and to take off the Prosecution upon the Indictment Impeach the Lords and the Impeachment is just the same as this in our Plea of Treason but not of any particular Fact Now the Judges took so much notice of it that tho' the Parliament was dissolved before the particular Articles were carried up yet in February following some of the Judges are here and they will rectifie me if I am mistaken the Opinions of the Judges being asked about it at the Council-Board upon the Petition of the Lords to be either bailed or tryed They declared that the Impeachment tho' thus general was so depending in Parliament that they could not be tryed We have pleaded as our
about ten days after he saw the King again by the means of Fitz-H and that when the Parliament was ended he waited again upon the Dutchess and then requested her to represent Fitz-H his condition to the King His Lordship further acknowledged upon the Question put to him by F. H. that he came to him the night before my Lord Stafford was Condemned and told him the King desired his Lordship would go the next day and give his Vote for my Lord Stafford and that he thereupon answered him seeing there is so great an account put upon it If I had but breath enough to pronounce his Doom he shall die Here Dr Otes desired leave to go away saying the Crowd was so great he could not stand upon which Mr Attorney scoffingly said my Lord that may be part of the Popish Plot to keep Dr Otes here to kill him in the Crowd The Prisoner then demanded of the Dutchess of Portsmouth's Porter how long it was since he paid him the Money from my Lady Portsmouth but he said he could not tell it was so long The Earl of Arran was then called by the Prisoner and acknowledged upon his questions that he did shew him a Libel perhaps it was this the day he was taken and his Lordship told him he would do himself a mischief one time or other by meddling with such Papers and that they drank a Bottle or two of Wine and parted and that as soon as his Lordship came home he heard Fitz-H was taken My Lord Conway and Seoretary Jenkins denied that the King did own that he had employed Fitz-H but my Lord C. acknowledged that he had heard the King say he did formerly employ him in some * Making a Protestant Plot or so trifling things and that he had got Money of him and that his Lordship said was for my Lord Howard's Business He added that the King never spoke with him till after he was taken The Dutchess of Portsmouth then appeared and Fitz-H asked her Whether he was not employed to bring Papers to the King and amongst the rest the Impeachment against her Grace and he said that thereupon she told him that it was a great piece of service to bring those sort of Papers and that he told her he knew one Mr Everard who knew all the Intrigues and Clubs in the City and could tell all the designs of my Lord of Shaftesbury and all that Party and her Grace encouraged him to go on and by her means he came to speak with the King about it The Dutchess answered I have nothing to say to Mr Fitz-H nor was concerned in any sort of Business with him he desired me to give a Petition to the King to get his Estate in Ireland and I spoke three or four times to the King about it and he had the Money for Charity Hereupon Fitz-H said I am sorry your Grace is so much under Mrs Wall 's Influence and then addressing himself to the Court said I will tell you what I know since my Witnesses will not I shall rely upon the Consciences of the Jury for the Issue Tho' my Lady Portsmouth Mrs Wall and the rest say that I was not employed nor recieved Money for secret Services yet 't is very well known I did so As to Everard he told me he was well acquainted with my Lord Shaftesbury and my Lord Howard and he knew their Intrigues in several Clubs in the City I humoured him in his discourse and discoursed him to reduce the Paper he accuses me of under some heads And I no sooner had the Paper but I came to White-Hall with it and was advised to go to my Lord Clarendon or Mr Hide and shew'd it to a Gentleman who was to give it to my Lord Clarendon but before he could get to him I was taken What I did was with design to serve the King according as I was employed tho' both the Secretaries will not declare it These are great Persons that I have to do with and where great State matters are at the bottom 't is hard to make them tell any thing but what is for their Advantage and so I am left in a sad Condition If the Jury Convict me They overthrow the Law and Course of Parliaments Whereas if they bring me in Not Guilty my Impeachment stands good still and I am liable to answer it before the Parliament I hope you will consider the Persons I have had to deal with and that it cannot be made so plain as in matters wherein We deal with common Persons I desire notice may be taken that Sr William Waller declares that for this very thing I was Impeached by the House of Commons Then the Solicitor General and Sr George Jeffryes summed up the Evidence and the Chief Justice directed the Jury his Lordship and the three other Judges Jones Dolben and Raymond telling them that they were sworn to the Point whether Fitz H. were guilty of the Treason or not but that it lay not before the Jury whether the Court have Authority to try him that was a question proper for the Judges determination and they had determined it Thereupon the Jury found him Guilty Before the Sentence was passed upon him he said that he thought it would be prejudicial to the Kings Service that Sentence should pass before he had made an end of the Evidence he had given in against my Lord Howard but the Chief Justice said They could take no notice of any thing of that nature and he was Sentenced to dye as a Traytor which was Execnted the 1st of July 1681. An Abstract of the Examination of Edward Fitz-Harris relating to the Popish Plot taken the 10th of March 1680. by Sr Robert Clayton and Sr George Treby THe Examinant saith that he was born in Ireland and was bred and is a Roman Catholick That he had a Commission and Raised a Company of Foot in Ireland for the French King's Service and Conducted them into France That in 1672 going to take his leave of Father Gough an English Priest at Paris he told him within this two years you will see the Catholick Religion Established in England as it is in France the Examinant asking how that could be the King being a Protestant he answered If the King would not comply there was Order taken and things so laid that he should be taken off or killed That the Duke of York was a Catholick and in his Reign there would be no difficulty of doing it That the Father then told him that the Declaration of Indulgence was for the Introducing the Catholick Religion and that to the same end the War was made against Holland it being a Nest of Hereticks and that Madam came over to Dover upon this Design That the Examinant about February 1672 had a Lieutenants Commission in Captain Sidenham's Company in the Duke of Albermarl's Regiment in the Black-Heath Army and that he knew many ef the Officers to be Roman Catholicks and
House without Bishopsgate and that she there saw him with a Man that had but one Eye and was full of Pock-holes Burton's Wife then testified that Mrs Gaunt came to enquire where here Husband was and she told her he was at her Daughter 's and Mrs Gaunt told her That if she were willing her Husband should go away she would take care therein and Mrs Gaunt appointed them to meet without Bishopsgate The Lord Chief Justice Jones and Judge Wythens and also the King's Counsel viz. the Attorney the Solicitor General Mr North and Crispe the Common Serjeant rack'd their Inventions to draw Burton and his Wife to charge Mrs Gaunt with the knowledge of his being in a Plot or in the Proclamation but nothing of that could be made out Nor is here any sort of proof that Mrs Gaunt harboured this ungrateful Wretch or that she gave him either Meat or Drink as the Indictment charges her And it must be further noted that here is only the single Testimony of Burton of her giving him Money and sending him away The Evidence being short in this The Chief Justice fell upon the Prisoner with ensnaring Questions demanding of her What was the reason she would send Burton away whether she gave him Money Whether she heard that his Name was in the Proclamation c Here Captain Richardson officiously interposed saying She says she is not come here to tell your Lordships what she did The Chief Justice then sum'd up the Evidence thus Burton sayes this Woman was very solicitous to send him beyond Sea That her Husband being concerned in the Plot and she as Burton believes knowing that he could make some discovery concerning her Husband endeavoured to convey him away It is true there is not direct proof that there was any particular mention that Burton was in the Proclamation but he and his Wife say that they verily believe the Prisoner knew that he was in the Proclamation and she her self being examined says that she might hear that he was in the Proclamation and that his House was searched and he could not be found and yet she conceals him what could be the meaning of this but that she was very zealous to maintain the Conspiracy and was a great Assistant to all concerned in it She will not tell you any other cause why she should be concerned to convey this Man beyond Sea and therefore in all reason you ought to conceive it was for this The Jury being thus sent out and returning Mrs Gaunt desired to be heard declaring that she hoped they would not take any advantage against her and that she had some Witnesses to call But Wythens said It ought not to be done you ought to take the Verdict and so the Jury pronounced her Guilty and Jenner the Recorder passed this Sentence You are to be carried back to the place from whence you came from thence you are to be drawn upon a Hurdle to the place of Execution and there you are to be burnt to Death Mrs Gaunt only said I say this Woman did tell several Untruths of me I don't understand the Law The Sentence was executed upon this Excellent Woman upon Friday then following being the 23d of October 1685. When she left her Murderers the following Memorial Newgate 22d of October 1685. NOt knowing whether I should be suffered or able because of Weaknesses that are upon me through my hard and close Imprisonment to speak at the place of Execution I write these few Lines to signifie I am well reconciled to the way of my God towards me tho' it be in ways I looked not for and by terrible things yet in Righteousness for having given me Life he ought to have the disposing of it when and how he pleaseth to call for it and I desire to offer up my all to him it being but my reasonable service and also the first terms that Christ offers that he that will be his Disciple must forsake all and follow him and therefore let none think it hard or be discouraged at what hath happened unto me for he doth nothing without cause in all that he hath done unto us he being Holy in all his Ways and Righteous in all his Works and it is but my lot in common with poor desolate Sion at this day neither do I find in my heart the least regret of any thing that I have done in the service of my Lord and Master Jesus Christ in favouring and succouring any of his poor Sufferers that have shewed favour to his righteous Cause which Cause tho' it be now fallen and trampled on as if it had not been anointed yet it shall revive and God will plead it at another rate then yet he hath done with all its Opposers and malitious Haters and therefore let all that love and fear him not omit the least duty that comes to hand or lieth before them knowing that Christ hath need of them and expects that they should serve him and I desire to bless him that he hath made me useful in my Generation to the comfort and relief of many distressed Ones that the Blessing of those that have been ready to perish hath come upon me and I have been helped to make the Heart of the VVidow to sing and I bless his holy Name that in all this together with what I was changed with I can approve my Heart to him that I have done his Will tho' I have crossed man's Will and the Scripture that satisfied me in it is the 16th of Isa 3 4. Hide the Out-casts betray not him that wandreth let my Out-casts dwell with thee Obadiah 12.13 14. Thou shouldst not have given up him that escaped in the day of distress But Man saith You shall give them up or you shall dye for it Now whom to obey judge ye So that I have cause to rejoyce be exceeding glad in that I suffer for Righteousness sake and that I am accounted worthy to suffer for well-doing and that God hath accepted any Service from me that hath been done in Sincerity tho' mixed with manifold Weaknesses and Infirmities which he hath been pleased for Christ's sake to cover and forgive And now as concerning my Fact as it s called alas it is but a little one and might well become a Prince to forgive but He that sheweth no Mercy shall find none and I may say of it in the Language of Jonathan I did but taste a little Honey and lo I must dye for it I did but relieve a poor unworthy and distressed Family and lo I must dye for it I desire in the Lamb-like Will to forgive all that are concerned and to say Lord lay it not to their Charge but I fear and believe that when he comes to make Inquisition for Blood Mine will be found at the Door of the furious * * Wythens Judge who because I could not remember things through my dauntedness at Burton's Wife Daughter's witness and my Ignorance took
advantage thereat and would not hear me when I had called to mind that which I am sure would have invalidated their Evidence and tho' he granted some things of the same nature to another yet he granted it not to me my Blood will be also found at the Door of the Vnrighteous Jury who found me Guilty upon the single Oath of an Outlawed man for there was none but his Oath about the Money who is no legal Witness tho' he be pardoned his outlawry not being recalled and also the Law requires two Witnesses in point of Life and then about my going with him to the place mentioned it was by his own Words before he could be Outlawed for it was two Months after his absconding and tho' in a Proclamation yet not high Treason as I have heard so that I am clearly murdered by you and also bloody Mr Atterbury who so insatiately hunted after my Life and tho' it is no profit to him yet through the ill-will he bore me left no Stone unturned as I have ground to believe until he brought me to this and shewed favour to Burton who ought to have dyed for his own Fault and not to have bought his Life with mine And lastly Richardson who is cruel and severe to all under my Circumstances and did at that time without all Mercy or Pity hasten my Sentence and held up my Hand that it might be pronounced all which together with the great one of all * * King James the second by whose Power all these and multitudes of more Cruelties are done I do heartily and freely forgive as done against me But as it s done in an implacable mind against the Lord Christ his Righteous Cause and Followers I leave it to him who is the Avenger of all such Wrongs and hath said I have raised up one from the North and he shall come upon Princes as upon Morter and as the Potter treadeth Clay Isa 41.25 He shall cut off the Spirit of Princes and be terrible to the Kings of the Earth Psal 76.12 And know this also that though you are seemingly fixed and because of the Power in your Hands and a weighing out your Violence and dealing with despightful Hand because of the old and new hatred by impoverishing and by every way distressing those you have got under you yet unless you secure Jesus Christ and his holy Augels you shall never do your business nor your Hands accomplish your Enterprizes for he will come upon you er'e you are aware and therefore O that you will be wise instructed and learn is the desire of her that finds no Mercy from you Elizabeth Gaunt Postscript SVch as it is you have it from her who hath done as she could O is sorry she can do not better hopes you will pitty and cover weakness shortnese and any thing that is wanting and begs that none may be weakned or humbled at the lowness of my Spirit for God's design is to humble and â—baseus that he aloâ—â— may be exalted in this day and I hope he will appear in the needful time and it may be reserved the best Wine tall last as he hath done for some before me none goâ—â—â— to Warfare at his own charge and the Spirit bloweth not only where but when it listeth and it becomes me who have so often grieved quenched and resisted it to wait for and upon the motions of the Spirit and not to murmur but I may mourn because through want of it I honour not my God nor his blessed Cause which I have so long loved and delighted to love and repent of nothing about it but that I served him and it no better Remarks upon the Tryal of Mr Joseph Hayes at the King 's Beath upon an Indictment of high Treason for corresponding with Sr Thomas Armstrong MR Hayes was brought by Habeas Corpus upon the 3d of November 1684 from the Gatâ—â—house and was arraigned upon an Indictment to this effect viz. That he being a false Traytor against the King c the 31st of August in the 31th Year of the King knowing Sr Thomas Armstrong to have constired the death of the King and to have sted for the same did traytorously relieve comfort and maintain him and for his Relief and Maintenance did pay the sum of 150 l. against the duty of his Allegiance c. To this he pleaded Not Guilty Upon the 21st of November 1684 He was brought to Tryal before the Lord Chief Justice Jeffryes Judge Holloway Judge Wythens and Judge Walcot and the Jury being called he prudently challenged the following Persons which if he had not done it is more than probable that he had dyed as poor Colledge did at Oxford Sr Thomas Griffith Richard Ellis Thomas Langham Henry Whistler Nicholas Smyth Thomas Soper Tho. Passenger Henry Minchard Peter Jones William Crowch Peter Devet Henry Lodes William Pownes Charles Gregory William Peele Richard Weedon Thomas Pory Tho. Peircehouse Richard Burden John George John Steventon Robert Watkins George Twine Thomas Short Robert Townshend James Bush Walter Mastors Thomas Larkham Edward Cooke William Fashion John Flowerdew John Greens John Grice Charles Fowler and James Smyth In all 35. The Jury sworn were Samuel Sheppard Daniel Allen Rowland Platt Adam Bellamy Daniel Templeman William Dewart Edward Pigget Tho. Brailesford Edward Cheeke Edw. Vnderwood Robert Masters William Warren It is likely that he would have challenged one if not more of the last four but that he had challenged the number of 35. before these four were called and the Law allowed him not to challenge more Then the Indictment being read Mr Dolben as Counsel for the King opened it to the Jury Mr Attorney General then enforced the Charge thus After Sr Tho. Armstrong had fled the Prisoner relieved and aided him with Money and that after he was Indicted and sued to the Exigent besides a Proclamation followed upon his flight which was a sufficient notice to all the King's Subjects Sr Thomas went by the Name of Henry Laurence beyond Sea by that Name the Prisoner held a Correspondence with him and sent him a Letter dated the 21st of August and tells him he had sent him a Bill of Exchange for 165 l. drawn upon his Brother Israel Hayes who was acquainted with Sr Thomas If it were not for these receiving and nourishing of Traytors they would not lurk at Amsterdam as they do The Letter was taken about Sr Thomas and we shall prove it is the Prisoner's Hand-writing and that Sr Thomas received the Money I hope you will take care But like good Men they took all the care they could to stop the Fountain of Blood that to the scandal of the Nation had too long issued from the Old-Bayly by Convicting this Gentleman to stop the Fountain that issues so much supply to these Traytors that lurk abroad Mr Hayes then affirmed that he never knew Sr Thomas in his life Then the Indictment against Sr Thomas was read which was
found the 12th of July and Mr Glover proved a Copy of the King's Proclamation against Sr Thomas dated the 28th of June 1683. Then Ezekiel Everis was sworn and testified that in August 1683 he was at Cleve in Germany with the Lord Grey who went by the name of Thomas Holt and Sr Tho. A. came thither by the Name of Mr Henry Laurence and shew'd him a Bill of Exchange from England upon Mr Israel Hayes in Amsterdam for 160 l. odd Money and that it was for 150 Guineas paid in England and he told him it was drawn by Joseph Hayes and it was signed Joseph Hayes and the Bill was accepted and he saw Israel Hayes his Letter to Sr Thomas by the Name of Laurence which mentioned the sending the said sum to Cleve The Common Serjeant Crispe then delivered a parcel of Letters into the Court and swore that he received them of the Lord Godolphin and they had been ever since in his hands The Lord Godolphin then testified that he received three Letters produced in Court from Mr Constable Mr Chudley's Secretary who told him they were taken about Sr Thomas that one of them without any Name mentioned 150 Guineas returned to Henry Laurence Constable testified that he was present when the Scout of Leyden apprehended Sr Tho. A. and that the Letters were taken out of his Pocket and he himself delivered them to Mr Chudley who sealed them up and sent them by him to the Lord Godolphin Charles Davis testified that taking Boat from Amsterdam to Rotterdam he met Israel Hayes and Sr Tho. A. coming to take Boat and Sr Thomas went with him in the Boat and he told him his Name was Henry Laurence Davis added that he lodged a Month in one Briscowe's House at Amsherdam where there was a Club every Thursday There were Mr Israel Hayes Mr Henry Ireton one Wilmore Emerton Dare and some other English Merchants and he heard them several times abuse the King at the Table The Attorney General then shewed Mr Hayes a Letter saying It may be he will save us the labour of proving it but Mr Hayes disowning it Mr Walpoole was called and Mr Hayes said he was my Servant and went away after a rate that possibly would not be allowed Walpoole testified that he served Mr Hayes almost four Years and three quarters and did believe the Letter to be Mr Hayes his hand Mr Hayes said My Lord in matters of Treason I hope you will not admit of comparison of hands and belief for Evidence The Chief Justice answered Yes no doubt of it Mr Hayes replyed It has not been so in other Cases that have not been Capital as particularly in the Lady Carr's Case The Chief Justice said that is a mistake you take it from Algernon Sidney but without all doubt it is good Evidence Judge Wythens said Comparison of Hands was allowed for good Evidence in Colman's Case Mr Hayes answered That with submission vastly differs Those Letters were found in his own Custody This was not found in my possession but in another Man's and in another Nation Sr John Trevor Counsel for the King said This Gentleman was a Trader with the East-India-Company and made Contracts with them which are entred in their Books We will compare them with the Writing in this Letter The Common Serjeant then called Harman and Brittle and demanded of them where the Books were and they produced them Harman testified that he knew Mr Hayes and that he made several Contracts in 1683 and that he saw him in September 1683 subscribe his Hand to a Book of the Companies shewn to him Brittle testified that he is Porter in the Street to the East-India-Company and that he saw Mr Hayes write his Hand to a Book shown to him Capt. Piercehouse produced a Note Query if not the same Peircehouse in the Pannel of the Jury which he said was Mr H. his and that he supposed it to be his hand and compared it with the hand in the Book and said that he delivered the Goods upon it and Walpoole then said he believed it to be Mr Hayes his hand Then Mr Sturdivant was called and they shew'd him the Letter and he said Here is Joseph Hayes writ but I do not know it to be his Hand The Common Serjeant warmly said that Mr Sturdivant swore he did know Mr H. his hand before the Grand Jury but Mr Sturdivant affirmed the Common Serjeant was under a mistake Then Sr John Trevor called for Mr Hardresse but the * The Common Serjeant as hath been elsewhere observed upon the discovery of Keeling's Plot in 1683 boasted what work that Plot would make when it came into the City We now have him pulling it into the City by Head and Shoulders and find him in this Case appearing and exerting himself in a three or four sold capacity viz. the Manager if not Contriver of this prosecution and a Counsel Solicitor and Witness against the worthy Citizen now designed to destruction Common Sejeant answered That he was out of Town before he could be served with a Subpena Then the Letter was read it was subscribed Joseph Hayes and dated the 31st of August 1683. directed to Mr Henry Laurence senior at Amsterdam and began thus Sir at your desire I have sent you a Bill c. The Letter and the East-India-Books were then shewn to the Jury and to the Prisoner Mr Hayes denyed the Letter to be his Writing and said 'T is very strange I should not know my own hand May not Counsel be admitted to plead Whether comparison of hands and belief are any evidence in Criminal Causer I have been informed it hath been denyed to be evidence The Ch. Justice told him he was under a mistake some body has put it into your Head and pussed you up with a vain Story there is no such thing 'T is a Fiction a meer Whim only said by Mr Sidney and no ground in the World for it Mr Hayes replyed Was it not so in the Case of my Lady Carr there is a Record of that I suppose The Chief Justice affirmed it was not so and said Don't talk of it * It was in Trinity Term 1669. Anno 21 Car. 2. there was no such thing at all Comparison of hands was allowed for good proof in Sidney's Case We must not alter the Law for any Body Mr attorney General said Besides this comparison of hands We shall give an account of the Correspondence of the Prisoner's Brother and that he received the Money of him and then said Mr Common Serjeant Where had you this Papery The Common Serjeant to show his care and zeal in this matter said Pray have a care of the Papers and then gave evidence that he had them from my Zord Godolphin and said This is an Account of the Receipt and Disbursement of the Money Shew it Mr Constable Constable said This is one of the Papers was taken out of Sr T. A's Pocket It being shewn
to the Jury one of them demanded whether any one proved the hand that was in that Note The Attorney answer'd No but Everis swears that Sr T. A. shew'd him a Bill subscribed Joseph Hayes for so many hundred Guilders The Common Serjeant said He says it was 160 odd Pounds now the sum of this Note is 161 l. 5 s. which is the change of 150 Guineas Mr North concluded saying We have done at present Mr Hayes then said Here is no body proves this Letter to be my hand positively They only prove it by similitude and comparison and belief I conceive there is but one Witness that that Letter was found in Sr T. A's hands Everis says he saw a Bill had my Name to it Sir you did not know me nor ever saw my hand Everis answered No never in my Life Mr Hayes then said 'T is only an evidence of Reputation he heard it was my Bill you saw no Money paid upon it did you Everis No but I saw a Letter from Mr Israel Hayes that gave some account of it Mr Hayes said All this is but Similitude and Circumstance and I thought in case of Treason there ought to be two Witnesses and hope you will let it be so here here is no evidence but the Letter and that is not two Witnesses There is no body has proved the knowingly in the Indictment that runs that I knew Sr T. A. and his Treason that ought to be proved but I am sure 't is not your Lordship says that the Indictment and the Proclamation are sufficient notice that he was a Traytor that may admit of Counsel to debate it There ought to be Witnesses that could shew me to be concerned with him which no Body in the World can prove or that I ever saw him and that Witness that says he saw the Bill or this Letter does not know that I wrote it There are them that say they heard of Money paid upon this Bill but there is not one of them says he saw any Money paid and these are several Witnesses every one to a several thing Here is no proof but by the East-India Porters and those who say they believe this Eetter to be my hand No body says he saw me write this Letter or had any Correspondence with Sr T. A. If they pretend there was Money paid beyond Sea Is this Indictment well laid for it is laid to be paid in London The payment of Money beyond Sea can be no evidence of the Fact upon this Indictment for the Jury of London are to enquire of matters arising in London only If I am to be tryed for payment of Money boyond Sea the fact should have been laid there and the Tryal were to proceed upon the Statute of 35 H. 8. cap. 2. The Indictment should be taken by Special Commission from the King and the Tryal be in the County that the King should chuse I desire Counsel upon this point Lord Chief Justice No 't is an idle Whim and I would fain know the Counsel that put that foolish Notion into your head Mr Hayes If you will allow me Counsel you shall hear who they are I have been informed the Law is so Chief Justice We are of another opinion If any whimsical Notions are put into you by some Enthusiastick Counsel the Court is not to take notice of their Crochets Mr Hayes proceeded and said The Witnesses are Strangers to me There is is one that has been sworn to whom I have paid several thousands of pounds that says he does not believe it to be my hand then he called Mr Sturdivant who looking upon the Letter said I do not believe it to be his hand I have had dealings with him and he hath given me many Receipts Mr Hayes then said There have been a great many Forgeries and this Letter is forged there have been Forgeries so like that the Persons themselves have not known their own hands Chief Justice Every body knows that a hand may be counterfeited very like in Mr Sidney's Case Mr Wharton a young Gentleman not above one or two and twenty said he could undertake to counterfeit any Man's hand whatsoever Mr Hayes then told the Jury that he was not a Man of that Quality to give Sr T. A. 150 Guineas Chief Justice We all know you have been a very †The resolution in that day was to enslave the City the Nation and every one who was found to withstand it was treated with this sort of Language and then made a Traytor if they found an opportuniry unless by chance as in this case a Jury failed them active Man a busie Fellow about the City as forward a Spark as any I know of a great while I don't know what you talk of your Quality but We know your qualifications you have always been factious and turbulent against the King and the Government Mr Hayes then affirmed that he neither gave nor lent nor returned any sum of Money to this Person and then called Mr Langley who testified that a Letter was Counterfeited and a Bill of Exchange for 450 l. and so exactly like that if he had not known of it before he saw it he must have owned it for his hand and the party that paid the Money paid it in his own wrong for he never drew any such Bill Mr Hayes added Mr Common Serjeant had my Books several dayes in his hands where there is an Account of 20000 l. between my Brother and me and if I would set my hand to such a Letter and Bill and write my Name at length is it not as reasonable that I should put the Name of Laurence in my Books and if it were there it would appear Indeed here is an Account produced of divers parcels of Money disbursed in little sums but I appeal to the Merchants whether ever any Bill of Exchange was ever paid in such parcels No foreign Bill was ever paid by 3 l. or 5 l. or 20 l. at a time it must be paid at the day or it will be protested here is a computation of a sum like to the sum in the Bill but these are Suppositions and not proof Then Mr Hayes called Alderman Jeffryes to speak to his Reputation and Conversation who said that he had known him many Years and never knew any hurt by him The Chief Justice demanded of the Alderman whether he had been at any of the Elections at Guild-hall for Mayors or Sheriffs when Mr Bethel and Mr Cornish and them People were chosen and whether he had seen Mr Hayes there and how he did behave himself * It is true that he was upon every occasion active in the maintenance of the City-Rights and his Lordship and the Common Serjeant had ever been as forward Sparks on the other side that made them so intent upon the destruction of every well deserving worthy Citizen whom they could draw under an Accusation A very forward active Man I will warrant you
to do Justice and therefore I cheerfully leave the matter with you I am sure that if God help me and deliver me in this Exigency that it is he and you under him that preserve my Life Gentlemen The great Incertainties Improbabilities and Consequences in this case I hope will be weighed by you and make you the better to consider the proof which is made by none but such as are Strangers to me since then they know me not I hope you will weigh it before you give it against me We must all dye and I am sure it wil be no grief to you to acquit a Man that is innocent I leave it with you The Lord direct you Then Jenner the Recorder to aggravate the matter spoke thus The Treason charged on the Prisoner is of that sort that if he be guilty he will be a just example to terrifie others from doing the like for if Traytors had not persons to supply them with Money abroad it may be they would not have so much Courage to run away We have satisfied you that Sr T. A. was indicted that an Exigent was gone against him upon that account here was a Proclamation and Sr T. A. named in it and so at his rate of talking the Recorder repeated the Evidence of the Witnesses and concluded Gentlemen We think that his defence has been so little and our proof so strong that you have good ground to find him Guilty The Chief Justice then summed up the matter to the Jury in a Speech of of a vast length which was in substance this Gentlemen of the Jury This is an Indictment of high Treason against the Prisoner at the Bar and you are to try it according to your evidence The Prisoner's affirmation of his innocence is not to weigh with you Nay I must tell you I cannot but upon this occasion make a little Reflection upon several of the horrid Conspirators that did not only with as much solemnity imprecate Vengeance upon themselves if they were guilty of any Treason but thought they did God Almighty good service in that hellish Conspiracy It is not unknown one of the Persons proscribed in this Proclamation did declare they should be so far from being esteemed Traytors That they should have Trophies set up for them and all this under the pretence and enamel of Religion Nay I can cite to you an instance of another of the Conspirators that after a full and evident proof and plain Conviction of having an hand in it when he comes upon the Brink of Death and was to answer for that horrid fact before the great God he blessed Almighty God that he dyed by the hand of the Executioner with the Ax and did not dye by the Fiery Tryal He blessed God at the place of Execution that he dyed a Traytor against the King and Government rather than dyed a Martyr for his Religion I think it necessary to make some Reflection upon it when Men under the pretence of Religion are wound up to that heigth to foment Differences to disturb and distract the Government to destroy the Foundations of it to murder his sacred Majesty and his Royal Brother and to subvert our Religion and Liberty and Property and all this carried on upon pretence of doing God good service You are to go according to evidence as the Blood of a Man is precious so the Government also is a precious thing the Life of the King is a precious thing The preservation of our Religion is a precious thing and therefore due regard must be had to all of them I must tell you in this horrid Conspiracy there were several Persons that bore several parts Some that were to head and to consult there was a Council to consider Others were designed to to have a hand in the perpetrating of that horrid Villany that was intended upon the Persons of his Sacred Majesty and his Royal Brother and with them upon the Persons of all his Majesties Loyal Subjects that acted with duty as they ought to do There were others that were to be aiding and assisting as in the case of the Prisoner if you find him guilty aiding abetting assisting by Money or otherwise or harbouring any of those Persons that were concerned therein Then he recounted the Evidence given against the Prisoner and made such Remarks upon the same as he thought fit The Jury withdrew and spent two hours in consideration of the matter and then returning gave their Verdict to the disappointment and vexation of the Chief Justice Common Serjeant and others that the Prisoner was Not Guilty Mr Attorney General thereupon said My Lord tho' they have acquitted him yet the Evidence was so strong that I hope your Lorship and the Court will think fit to bind him to his good behaviour during his Life The Chief Justice answer'd Mr Attorney that is not a proper Motion at this time So the Prisoner was discharged after he had been imprisoned five Months Tho' Mr Hayes to the eternal Honour of some good Men who were upon his Jury came off with his Life he was by this Prosecution beaten out of as good and valuable a Trade as most Linnen Drapers in London had and was by consequence highly impaired in his Estate About the same time Mr Roswell a very worthy Divine was tryed for Treasonable Words in his Pulpit upon the Accusation of very vile and lewd Informers and a Surry Jury found him Guilty of high Treason upon the the most villanous and improbable evidence that had been ever given notwithstanding Sr John Talbot no Countenancer of Dissenters had appeared with great generosity and honour and testified that the most material Witness was as scandalous and infamous a Wretch as lived It was at that time given out by those who thirsted for Blood that Mr Roswel and Mr Hayes should dye together and it was upon good ground believed that the happy deliver ance of Mr Hayes did much contribute to the preservation of Mr Roswel tho' it is very probable that he had not escaped had not Sr John Talbot's worthy and most honourable detestation of that accursed Villany prompted him to repair from the Court of King's Bench to King Charles the second and to make a faithful representation of the Case to him whereby when inhumane bloody Jeffreyes came a little after in a transport of Joy to make his Report of the eminent service he and the Surry Jury had done in finding Mr Roswel guilty the King to his disappointment appeared under some reluctancy and declared that Mr Roswell should not dye And so he was most happily delivered and being by this remarkable Providence of God still alive he would at least in my opinion do a very useful and seasonable piece of service to this Age and to those which are to succeed in publishing a full Account of the whole Proceedings against him Remarks upon the Tryal of Mr Charles Bateman at the Old-Bayly Upon the 9th day of December 1685
before the Lord Chief Justice Herbert c. IT was very well known that Mr Bateman as a good Citizen true Englishman had constantly asserted and stood up for his native Rights Priviledges and by consequence he became obnoxious to those who had conspired and resolved the ruin thereof and of the Protestant Religion with them It is an undoubted truth that this worthy Citizen's seasonable and necessary endeavour with many others of eminent desert to withstand the fatal Usurpation of Sr. John Moore in imposing Sr Dudly North and Sr Peter Rich upon the City for Sheriffs in the year 1682 did expose him to the implacable rage of the Conspirators Our Parliaments and Courts of Justice had been for some years most strenuously attempting to extirpate the hellish Popish Plot and accursed Popery but there were then found Miscreants who set themselves to run the Kingdom upon a wrong scent and they never wanted a Protestant Plot when it might cover and secret their own and all wise men saw them ready to start one when Sr John Moore had constituted proper Sheriffs At that time the Earl of Shaftesbury well knowing that his Innocence would not be able to guard him against hired and suborned Rascals and pack'd Juries and he remembring what base and villanous Arts had been used to destroy him his Sagacity prompted him to put himself out of the reach of that implacable rage which had so long pursued him and in order to it he concealed himself for some time in Mr Bateman's House and afterwards till he retired into Holland in the house of that worthy upright English-man Captain Tracy in Goodman's Fields whose Life was therefore threatned and eminently endangered but the divine Providence delivered him after he had suffered a long and close Imprisonment in Irons in Newgate under the Tyranny of Richardson Mr Bateman was also the Refuge of that eminent and well-deserving Citizen Sr. Patience Ward whose innocence could not defend him against those wrathful Enemies with his undaunted appearance against Popery had stirred up against him He retired to Mr Bateman's House and was by him concealed until discovered by that Blood-hound Atterbury About that time viz. in June 1683 the Conspirators had brought Keeling's Plot upon the Stage and thereupon Mr. Bateman was taken up by Atterbury and carried before King Charles the second and there accused by * He swore many of his Neighbours into Prisons and Irons tho' till now Rouse excepted no man was ever tryed upon his Evidence Lee the Dyer The King had declared of that infamous Varlet that if he were not checkt he would swear all mankind into the Plot Nevertheless the King demanded of Mr Bateman whether the Earl of Shaftesbury and Sr Patience Ward did lodge at his House which Mr. Bateman acknowledging he was committed Prisoner to the Marshalseas and there kept eighteen Weeks and then there being no Prosecution he was discharged upon Bail At the time of the Duke of Monmouth's Landing not only the Prisons about London but the Halls of many of the City Companies were filled by the then Lieutenancy with the best Citizens under the imputation of being Trayterously affected or Enemies to the Government without any manner of accusation and amongst them Mr Bateman was imprisoned in Cloth-workers-Hall but being discharged from thence in a short time afterwards Atterbury who in that day took up whom he pleased fetched him from his House at Highgate and kept him some time Prisoner in his own House which he made a Goal as long as Men would feed his Avarice and then delivered him over to Richardson by whom he was kept in a close Room with the Windows boarded up sixteen or seventeen Weeks before he was brought to Tryal That Mr Bateman was a Person of very good sense and understanding will not be denyed by any Man to whom he was known but by the rigour severity and inhumane usage wherewith he was treated during his long Imprisonment he was found at the time of his Tryal to be very much shattered in his understanding and very uncapable of making a defence and that defence which he made was by the assistance of his Son a very young Man of about twenty years of age The Jury returned and sworn to pass upon him were Richard Aley Richard Williams John Cannum Patrick Barret John Palmer James Raynor Edward Rhedish George Lilburne Daniel Fowles Peter Floyer Laurence Cole John Cooper Mr Phips opened the Indictment to this effect viz. That the Prisoner the 30th of May 1683 trayterously with other Rebels conspired to depose and kill the King and to change and subvert the Government and did promise and undertake to be assisting and aiding in the apprehending the King and in taking and seizing the City of London and the Tower the Savoy and Whitehall Then Serjeant Selby and Mr Moloy aggravated the charge in the Indictment And Josia Keeling witnessed that Rumbold * Note all this is hear-say and no manner of Evidence against the Prisoner Keeling had heard it discoursed but for ought appears it might be by Secretary Jenkins for he named no Body said he had a House very convenient to plant Men in to seize the King and that he had heard it discoursed that Mr Bateman was lookt upon as a Person fitting to manage one Division in order to an Insurrection to seize the Tower c. Tho. Lee the Dyer testified that he being acquainted by Goodenough This Lee at the same time that he swore against Mr Bateman also offered to swear Treason against a Person with whom to my certain knowledge he never exchanged one word in his Life and who never was in company with him nor otherwise seem by Lee than at a considerable distance in a Coffee-house how the City was to be divided into twenty parts and managed he the said Lee nominated Mr Bateman as a fit Man to manage one part and thereupon he was desired by Goodenough to speak with him about it and that when he discoursed him he plainly apprehended Mr Bateman was no stranger to it nor boggled to give his consent That he went with Mr Bateman to the Duke of Monmouth's House and after he had had some discourse with one of the Duke's Servants he came to him and told him the Duke was willing to engage in the business and had Horses kept in the Country to be in readiness when matters should come to extremity That he the said Lee and Mr B. went to the Devil-Tavern and there Mr B. proposed the seizing the City Tower Savoy and Whitehall and the King's Person And that Mr B. told him at the Half-Moon-Tavern in Aldersgate-street that if he could but see a Cloud as big as a Mans hand he would not be wanting to employ his Interest That Mr Bateman had told him Just as likely a story as that of Colledge's Plot in his single person to seize the King at Oxford that he intended to take an House near
of Vices and is a prophane lewd debauchee This Keeling is brought in as the first Witness against Mr Bateman tho' his Evidence touch'd him no more in Law than it did every of the Jury-men and it is remarkable Page 1. c. of the true Account c. that in the four Informations which he at several times gave in to Jenkins Mr Bateman is not so much as once named and yet we here find Keeling a witness against him The fore-mentioned bitter and malitious History doth likewise present us at large Page 34. of the true Account c. as it did Keeling's with the Information of Lee the dyer against Mr Bateman therein Lee swears that he told Mr B. a story he had from Goodenough of our Rights and Priviledges being invaded and that some Gentlemen had taken into consideration how to retrive them c. That Mr Bateman thereupon told him he must have a care and speak at a great distance that he was willing to assist if he could see but a Cloud as big as a Man's hand And that Mr B. told him that the Duke of Monmouth told him the said Mr B. that he was glad that he came acquainted with those Protestant Lords and that Mr B. assured Lee that the Duke was very right for the Protestant Interest and that we need not mistrust him And Lee added in that Information That Goodenough told him that they must seize the Tower and take the City and secure the Savoy and Whitehall and the King and the Duke The Case as to poor Mr Bateman was much altered between the time of Lee's giving the foregoing Information and this Tryal for at first the managers were for hanging Goodenough of whom the Author of the True Account pag. 55. saith that he with monstrous Impiety maintained and recommended the Murder of the King and the Duke as a pious design and a keeping of one of the ten Commandments and the best way to prevent shedding Christian Blood rather than Bateman and to that end Lee's main force was then bent against Goodenough but now it being found that Goodenough and the City Juries of that day could hang Alderman Cornish and Bateman and also Sr. Robert Peyton could they have catcht him the story of a Cloud as big as a man's Hand is expatiated and breaks in a dreadful storm upon Mr B. That of the Duke of Monmouth's being right for the Protestant Interest is now mightily improved and Bateman made to have said The Duke would engage in the business and had Honses in readiness c. And that he the said Bateman would take an House near the Tower in order to surprize it c. As matters were at first concerted the Evidence ran thus Goodenough told Lee that they must seize and secure the Tower the City the Savoy Whitehall the King and the Duke Now Lee swears and Goodenough backs him in it that all this discourse of seizing and securing c. proceeded from Mr Bateman To conclude the whole was a hellish Contrivance to destroy the most valuable men of the Age and with them the Protestant Religion and the wicked History I have mentioned is a lying most malitious Libel upon the great and noble Names and Families of the D. of Monmouth the Earls of Bedford Leicester Essex Shaftesbury Argyle and others and also upon the present learn'd Bishop of Salisbury and therefore seeing that Author doth not unwrite it 't is pitty that 't is not condemned to be burnt by the hands of the Common-Hangman And should it receive that deserved Sentence the Executioner is hereby advertised that he may find the Book in Custody unless escaped since the Prince of Orange's Landing and also in Irons it being affixed very fairly bound with a Chain not far from Newgate at Sadlers Hall with an Inscription on the Title Page The Gift of Mr Nott of the Pall Mall Remarks upon the Tryal of the Right Honourable Henry Lord. Delamere upon the 14th Day of January 1685. Before the Lord Jeffryes Lord High Steward on that occasion SOon after the defeat of the Duke of Monmouth in the Year 1685 a Proclamation was issued requiring my Lord Delamere to render himself which his Lordship accordingly did and upon the 26th of July 1685 the Earl of Sunderland Secretary of State committed him to the Tower for high Treason The Parliament sitting in November following the House of Lords began to enquire into his Lordship's case but were quickly after prorogued to the 10th of February following and never sate more The County Palatine of Chester did at that time furnish the Conspirators with as good Juries as could be pack'd in the City of London by Sr John Moore 's Sheriffs as is well known to the right honourable the Earl of Macclesfield my Lord Delamere Sr Robert Cotton and many other eminently deserving Patriots of Cheshire Thither was a Commission of Oyer and Terminer speeded and an Indictment was preferred against his Lordship before Sr Edward Lutwich Chief Justice of Chester and the Bill was readily found against him by a well prepared and instructed Grand-Jury Thereupon his Lordship was brought to Tryal before the Lord Jeffryes High Steward and the following Peers viz. Laurence Earl of Rochester Lord high Treastrer of England Robert Earl of Sunderland Lord President of the Council Henry Duke of Norfolk Earl Marshal of England James Duke of Ormond Lord Steward of the Houshold Charles Duke of Somerset Christopher Duke of Albemarle Henry Duke of Grafton Henry Duke of Beaufort Lord President of VVales John Earl of Mulgrave Lord Chamberlain of the Houshold Aubery Earl of Oxford Charles Earl of Shrewsbury Theophilus E. of Huntington Thomas E. of Pembrooke John E. of Bridgewater Henry E. of Peterborow Robert E. of Scarsdale William E. of Craven Richard E. of Burlington Lovis E. of Feversham George E. of Berkley Daniel E. of Nottingham Thomas E. of Plymouth Thomas Viscount Fanconberg Francis Viscount Newport Treasurer of the Houshold Robert Lord Ferrers Vere Essex Lord Cromwell William Lord Maynard Comptroller of the Houshold George Lord Dartmouth Master General of the Ordnance Sidney Lord Godolphin John Lord Churchill Who being called over and appearing the High Steward began thus My Lord Delamere you stand indicted of High Treason by a Bill found against you by Gentlemen of Great Quality and known Integrity within the County Palatine of Chester the place of your residence and the King has thought it necessary to order you a speedy Tryal My Lord if you know your self innocent do not despond A Complement which Jeffryes never put upon any Man before For you may be assured of a fair and patient hearing and a free liberty to make your full defence He then ordered the Indictment to be read which was to this effect viz. That my Lord D. as a Traytor against King James the second the 14th of April last conspired with other Traytors the deposing and death of the King and did
Pique against him but against the Cause he was engaged in His Wife did go several times to the Lord H. and by her he believes he sent him thanks He knows no solid effects of his kindness if there were he desires the Lord H. to tell him in what He believes no part of the 6000 l was given to the Lord H. He never heard any thing of the D. of Monmouth's Confession of the Plot till after the Paper was signed by the Duke and sent to him He has heard it as common talk that the Duke had confessed a Plot and that Mr Waller told him so indefinitely he could not tell whether he meant before the signing the Paper or no He saith what the Duke did at that time was all of a piece whether speaking or writing he is sure that it was with the utmost reluctancy that the Duke signed the Paper He remembers no more in the Cabinet Council but the Lord Radnor besides those he has already named but believes there were three or four more He was bailed the 28th of November 1683. and Colonel Sidney he thinks was Executed the 5th of December following The Duke of Monmouth appeared very firm to him and engaged to do his utmost to save Colonel Sidney He saith he came out of the Tower some days before Colonel Sidney was Executed he had an intention to have visited him but his Friends thought it useless and dangerous to them and that he might write any thing he had to say Accordingly he wrote to him that he would come to him if he desired it but Col. Sidney charged him not to come but to write if he thought any inconveniency would come of it The Messenger which brought him the Message before-mentioned was Dr Hall now Bishop of Oxford who applyed to the Dutchess of Portsmouth for his Release but her answer to him afterwards was That she had tryed and could do nothing for they would rather have him rot in Prison than have the 40000 l. Dame Katharine Armstrong being examined deposed that she demanded a Writ of Error of the Cursitor of London for Sr Thomas Armstrong and told him she was ready to pay all due Fees but he told her she must go to the Attorney General and she demanded it publickly in Court of the Lord Keeper North but he said it was not in him to give but the King Mrs Jane Mathews being examined said that her Father was sent to Prison and could have no Council admitted to him nor any Friends speak with him but in the presence of his Keeper he had one Chain on him and was kept close Prisoner she saith she questions not but to prove the Lord Howard perjured for Sr Thomas could have proved by ten Gentlemen and the Servants of the House those base Reflections the Lord Howard made on him to be falshoods She saith her Father demanded his Tryal and also Counsel in the Court but was denied both the Chief Justice Jefferies telling him they had nothing but the Outlawry to go on Withens Holloway and VValcot were other three of the Judges And she thinks he was brought from aboard the Yatch by the Lord Godolphin's Warrant She saith Mr Richardson beat her Sister while she was asking her Father Blessing She saith that her Father was at Sparrow's at Dinner that day that the Lord Howard swore he was not and she saith that when her Father in Court said My Blood be upon you The Lord Chief Justice Jeffryes said let it let it I am Clamour proof Mrs Katherine Armstrong being examined saith That Captain Richardson used her Father ill and made him lie in a Chain on one Leg and would not let her see him alone and was rude to her and struck her in such manner that she had so fore a Breast that she could not put on Bodies in three quarters of a year She saith she went with her Mother to the Cursitor of London to demand a Writ of Error but he refused it She went also on the same Errand to the Lord Keeper North Mr Attorney and the Lord Chief Justice but had none Mr Richard Wynne declared That he was Solicitor to Colonel Sidney That the Colonel excepted against several of the Judy to some as not being Freeholders and others as being in the King's Service and receiving Wages from his Majesty That presently after the Tryal the Lord Chief Justice sent him Prisoner to the King's Bench Mr Wynne said this to Angier the Foreman of that murdering Jury and to Glisby another of the three Carpenters which were upon that Jury and to another of their Brethren near the King's Bench Court whereupon they went to lay hold upon Mr. Wynne at which instant Mr Forth the King's Joyner coming interposed upon which Angier said Mr Forth will you assist this Man he says Colonel Sidney's Jury was a Loggerheaded Jury To which Mr Forth answer'd I have nothing to do with the Jury but Glisby knows that I know he it a Loggerhead Of this They complained to Jeffryes who committed Mr Wynne and Mr Forth to the King's Bench It cost Mr Forth about 50 l. whereof Burton had 24 l. and he being a Protestant Joyner he ' scap'd well out of their Hands as times then went especially with that Trade for saying the Jury were a Loggerheaded Jury that They had not Evidence sufficient to find such a Verdict or found a Verdict contrary to Evidence Mr Serjeant Rotherham being examined declared That he was of Counsel for Colonel Sidney and drew a Plea for him which the Colonel desired to have read and threw it into the Court It was to distinguish the Treasons laid in the Indictment and quoted the three Acts of Treason But the Court told him if the Plea had any slip in it he must have Judgment of Death pass on him immediately After this he pleaded Not Guilty That he demanded a Copy of the Indictment as his due but the Court refused it him That Col. Sidney told him that they proved the Paper they accused him of to be his Hand-writing by a Banker who only had his hand upon a Bill Col. Sidney quoted the Lady Carr's Case in the King 's Benels Trinity Term 1669 Anno 21. Car. 2. wherein it was adjudged that in a Criminal Case 't is not sufficient for a Witness to swear he believes it to be the hand but that he saw the party write it The words in the Case are That it must be proved that she actually writ it and not her hand â—ut credit Note Colonel Sidney demanded the Copy of the Indictment upon the Statute 46 Edw. 3. which allows it to all Men in all Cases That Colonel Sidney ask'd him with the rest of the Council whether all the Book should be read at his Tryal The Council said it ought The Book was by way of Questions and meerly polemical discourse of Government in general as far as Serjeant Rotherham could find after reading in it several hours He
believes it consisted of seven or eight hundred Sheets Mr Joseph Ducas upon his Examination informed the Lords in substance as follows That Colonel Sidney was taken up by a Messenger before there could be any pretence of proof against him for the Lord Howard the only Witness was not seized till fourteen dayes after That when Sr Philip Floyd seized and carried away Colonel Sidney's Papers he promised him that the Trunk and Pillowbeere in which they were sealed up should not be opened but in the Colonel's presence but that promise was not performed That they seized the Colonel's Goods and Money in the City and Country five or six Months before any Indictment was found against him That the Colonel was brought to Westminster the 7th of November by an * A most clear demonstration that the Prosecutors of this great Man had good Intelligence with the Grand Jury Influence upon them Habeas Corpus sent the day before to be arraigned upon an Indictment tho' no Indictment was then found against him and they kept him in a Tavern in the Palace-yard an hour till they had got the Grand Jury to find the Indictment That the Colonel being carried to the Court of King's Bench and the Indictment read he demanded a Copy thereof but the Court refused it That the Colonel offered a Special Plea engrossed in Parchment and desired it might be read but the Chief Justice said that if the Attorney General demurred and the Plea were over-ruled Judgment of Death should pass upon him and Wythens said if your Plea be over-ruled your Life is gone and so he was forced to Plead Not Guilty That he challenged several of the Jury as being the King's Servants and others as not being Freeholders but was over-ruled therein Some Gentlemen and very worthy Persons were for Fashion sake put into the Pannel and called but did not appear and it may be reasonably thought they were never summoned That Colonel Sidney was informed that when the Jury was withdrawn the Chief Justice under pretence of going to drink a Glass of Sack went to the Jury when they were consulting about their Verdict That when it was demanded of the Colonel what he had to say why Judgment should not pass he urged several points of Law but was over-ruled in every thing To this effect was the Information of Mr Ducas a very valuable French Protestant Gentleman and Colonel Sidney's true Friend To which I shall here subjoyn a few words uttered by that great Man at the time of his Condemnation I was brought to VVestminster the 7th of this Month by * This leads me to correct an Error committed in the first part of this History pag. 185. where I said as I then understood it that Colonel Sidney brought the Habeas Corpus but it appears that it was brought at the instance of his Prosecutors And upon this occasion I shall confess another mistake therein all with which I have been charged in the first part that I said Robert Masters one of Sr S. Barnardiston's Jury was a principal Witness against Colledge But I must acknowledge that Richard was the Witness Robert the Jury man was his Brother and only suck'd the same Milk with him Habeas Corpus granted the day before to be arraigned when yet no Bill was exhibited against me and my Prosecutors could not know it would be found unless they had a Correspondence with the Grand Jury That the Jury was not summoned by the Bailiff but agreed upon by the Vnder-Sheriff and Graham and Burton Upon the Sentence he expressed himself in that excellent manner which the Reader may turn to in the first part of the Display of Tyranny Page 200. Whereupon the Chief Justice foaming at the Mouth told him he was mad To which Colonel Sidney with great composure and gallantry of mind stretching out his hand said My Lord feel my Pulse and see if I am disordered I bless my God I never was in better Temper than I now am Dr. Chamberlaine being examined deposed That meeting the Lord Hallifax in the Gallery at White-hall he asked his Lordship whether the Aldermen were to blame that defended the City Charter and he believes he did not blame them but said the King must or will have the Charter he rather thinks it was must have it he believes he might tell this to the Duke of Monmouth my Lord Russell and others That it was for Sr John Laurence's sake he asked the Lord Hallifax and to him he gave advice to take care in what he did he being one of the Committee to defend the Charter A Memorial of the Numbers of Charters Dispensations and Pardons passed between October 1682 and the time of the late King's Abdication THe Marquess of Hallifax was Lord Privy Seal from October 1682. to February 1684. In which time 166 Charters were granted whereof one passed immediatè No Dispensations passed in that time In that time 47. Pardons with Non-Obstante's and Clauses with Dispensations were granted whereof three passed immediatè The Earl of Clarendon was Lord Privy Seal from February 1684 to December 1685. in which time 94. Charters were granted whereof 17 passed immediate No Dispensations passed in that time In that time 10 Pardon with Non-Obstante's and Clauses with Dispensations were granted whereof two passed immediatè The Lord Tiveot and others were Commissioners of the Privy Seal from December 1685. to March 1686 7. in which time 26 Charters were granted which passed in the usual manner Dispensations with the Penal Laws in that time were Six whereof one was immediatè In that time 70. Pardons with Non-Obstante's were passed whereof one of them immediatè The Lord Arundel of Wardour was Lord Privy Seal from March 1686 7. to 4 Jacobi 2. in which time 56 Charers were granted whereof 41. passed immediatè Dispensations in that time were 35. whereof 3 passed immediate In that time were 47 Pardons with Non-Obstante's passed whereof 25 passed immediate These are the heads of the Earl of Stamford's Report which being read in the House of Lords the same was by Order sent down to the House of Commons for their Information in these Affairs Copies of some Papers mentioned in or relating to the forgoing Informations Copy of the Advertisment in the Gazette Number 1880. November 26. 1683. relating to the Duke of Monmouth mentioned in the Examinations of Mr Row and Mr Yard WHite-hall November 25. His Majesty having this afternoon called an Extraordinary Council was pleased to acquaint them that the Duke of Monmouth did the last night surrender himself to Mr Secretary Jenkins having before writ a very submissive Letter to his Majesty entirely resigning himself to his Majesty's disposal That his Majesty his Royal Highness went down to Mr Secretary's Office where the Duke of Monmouth was who shewed himself very sensible of his crime in the late Conspiracy making a full Declaration of it And that having shewed an extraordinary penitence for the same and
made a particular submission to his Royal Highness for his misbehaviour towards him His Majesty and his Royal Highness received so much satisfaction that upon his Royal Highnesse's desire and entreaty His Majesty was pleased to Pardon the said Duke and thereupon did order Mr Attorney General to stop further proceedings against him but ordered he should proceed notwithstanding against all the rest of the Conspirators Copy of the Paper mentioned in the preceding Informations was wrote by King Charles the seconds's own hand who imposed upon the Duke of Monmouth to transcribe and sign it I have heard of some reports of me as if I should have lessened the late Plot and gone about to discredit the evidence given against those who have dyed by Justice your Majesty and the Duke know how ingeniously I have owned the late Conspiracy and tho' I was not conscious of any design against your Majestys Life yet I lament the having had so great a share in the other part of the said Conspiracy Sr I have taken the Liberty to put this in writing for my own vindication and I beseech you to look forward and endeavour to forget the faults you have forgiven me I will take care never to commit any more against you or come within the danger of being again misled from my duty but make it the business of my Life to deserve the Pardon your Majesty hath granted to your dutiful Moumouth Copy of a Paper delivered to the Lord Keeper North the Lord Chief Justice Jeffryes and the Attorney General by the Lady Armstrong on behalf of her Husband Sr Thomas Armstrong I am informed that by the Common Law of England any Man that was outlawed in Felony or Treason might bring a Writ of Error to reverse the Outlawry which was to be granted ex debito Justitiae tho' it may be the sueing forth such a Writ of Error to the King might be by way of Petition As in a Petition or Monstrans de droit for Lands And so it was resolved in Ninian Melvin's Case Co. 4. Just 215. Next by the Common Law if any Man were in England at the time of the Exigent awarded and went out of the Realm after that and before the Outlawry pronounced he could never assign that for Error that he was beyond Sea at the time of pronouncing the Outlawry And the reason is because he was here at the awarding of the Exigent and might reasonably have notice of it On the other side if any Man were out of England during the whole Process and pronuntiation of the Outlawry it was never yet a doubt but that was Error and might be assigned for Error either by the party or by his Heir at the Common Law and so continues to this Day and was not long since adjudged in O. Kerney's Case the Jrish man But that Case differed greatly from this O. Kerney being a Friend of Holy Church who came in two Years after the Outlawry Then comes the Statute of 5. 6. Edw. 6. Cap. 11. and enlarges the Law for the benefit of the outlawed person and gives him liberty to assign for Error that he was beyond Sea at the time of the Outlawry pronounced which he could not do by the Common Law if he went away after the Exigent For if he went before the Exigent that was Error by the Common Law before the Statute and so continues Then comes the Proviso and saith That he must come in within a Year and render himself to be entituled to the benefit of that Act which was to assign for Error that he was beyond Sea at the time of the Outlawry ponounced So that upon this State of the Law and my Husbands case he being beyond Sea at the time of the Process and at the time of the Outlawry pronounced It is conceived he is well entitled to assign this for Error at the Common Law without any aid of the Statute tho' the Proviso in that â—tatuâ—e should be ruled against him which with submission it is the opinion of many learned Persons in the Law that he is within the intent and meaning of that Proviso for many Reasons too long to trouble your Lordship with now Therefore I do hope that this Case of my Husband 's being the first Case that ever any Man was executed upon an Outlawry that did not desire it may have that weight with your Lordship which it deserves Holloway a little before being in the same condition refused a Tryal and so was executed upon the Outlawry And do hope that your Lordship will so advise the King in matter of Law whose Counsel you are that my Husband may have a Writ of Error granted him and Counsel assigned him to argue these points as by Law hath been allowed to Criminals in Capital Cases with whatever else shall appear upon the Record of Outlawry produced which as yet my Husband nor any for him ever saw Colonel Sidney's Plea drawn by Mr Serjeant Rotherham PRedict Algernon Sidney dicit quod per Statut in Parliamento inchoat tent apud Westm octavo die Maij Anno regni domini Regis nunc decimo tertio ibi continuat usque tricesimum diem Julij tunc prox sequen ab eodem tricesimo die Julij Adjornatum usque vicesimum diem Novembris tunc prox sequen Intitulatum An Act for Safety and Preservation of his Majesty's Person and Government against Treasonable and Seditions Practices and Attempts inter alia Ordinat inactitat fuit per Autoritatem Parliamenti predicti quod null Persona sive Personae virtute Actus predicti incurreret aliquas penalita tes in Actu predicto mentionat Nisi Ipse vel Ipsi prosecut esset vel essent infra sex Menses prox offens commiss indictat esset superinde infra tres Menses post talem prosecutionem aliquo in Statuto predict content in contrarium non obstante Et predictus Algernon ulterius dicit quod ipse proseeut fuit commissus Prisonoe Turris de London pro Offens in Indictamento predict mentionat vicesimo sexto die Junij ultimo preterito non anta ibidem continuat Prisonar huousque Et quod ipse predict Algernon non fuit indictat pro aliquo vel aliquibus Offens in Indictimento predict mentionat in fra tres Menses prox post prosecutionem predict Et hoc predict Algernon parat est verificare unde petit judicium si ipse predict Algernon quoad aliquod Crimen sive Offens in Indictamento predict mentionat quod Crimen vel Offens non fuit Alta Proditio ante confectionem Statuti predict respondere debeat et quoad omnes Proditiones Crimina Offens in Indictimento predict mentionata quae non fuere vel fuit alta proditio ante confectionem Statuti predict idem Algernon dicit quod per Statutum in Parliamento tento apud Westm in Com Middlesex in Festo sancti Hillarij Anno regni Domini Edwardi nuper Regis Angliae tertij
towards them because they laboured under many Difficulties as the Tide then ran He therefore desired Sr Robert to call Mr B. by the Name of Johnson That they did hope to bring the Earl's Murder upon the Stage before they could any of those in the Tower to a Tryal That Sr H. Capel had told Mr B. that it was a thing too great for him That Mr B. had been at great trouble and charge about it and that as times went he knew few would have undertaken it besides himself Mr Lewis of Marlborough being called by Mr Braddon witnessed That upon the day of the Earl's Death riding within three or four Miles of Andover fifty two Miles from London between three and five in the Afternoon a man told him for news that he heard the Earl of Essex had cut his Throat and that at his going home to Marlborough the next day he told his Neighbours what he had heard the day before and that they thereupon said It was done but yesterday how could you hear it so soon Mr Feilder of Andover witnessed That upon the Wednesday and Thursday of the Week in which the Earl of Essex dyed it was the common talk of the Town of Andover †Note in like manner it was proved in the Tayal of the Lord Stafford that it was reported at a great distance that Sr Edmundbury Godfrey had murdered himself before it was known at London what was become of him that he had cut his Throat that the Women talked of it as they came in out of the Town and that on the Saturday night in that Week the certain news of it came Mrs Edwards the Boys Mother testified that the Boy came from the Tower and told her that he had seen the King c. and that the Earl of Essex had cut his Throat and then wept and further said That he saw a Razour thrown out at the Window and was going to take it up but a short fat Woman came and took it and went in again that he told her all this weeping and crying and never denyed it till after Mr Braddon had been there and then denyed it upon this occasion when Mr B. came his enquiry put them all into a great damp and after he was gone the Boy being then at School her Husband said to her Daughter Sarah Don't you say any thing to your Brother and when he comes in we will talk to him that her Daughter was grievously affrighted thereat and so amazed that so soon as the Boy came in She told him that there had been a Gentleman to enquire about what he had said and that he thereupon said to her Why Sister will any thing of harm come and upon her answering him That She did not know but it might be her Father and the Family might be ruined he then denyed what he had said but at the same time he came to his Mother and cryed he should be hanged this was also acknowledged by the Daughter Sarah Edwards the Boy 's Sister testified what the Boy had declared of seeing the Razour c. And that She told him upon Tuesday the 17th of July that a Gentleman had been there to enquire about it and that the Boy did thereupon ask her whether any harm would come of it and that upon her answering him that She could not tell he did deny what he had declared That Mr B. came again soon after upon the same day and found them all daunted upon their hearing the Boy deny it and Mr Brad. ask'd him about it bad him speak the Truth telling him * Indeed Jovian Hicks many others of our passively Obedient and Non-Resisting Gentlemen of the Cassock have handled many Texts of Scripture at a very unwarrantable rate to decoy Mankind to the foolish Exchange of their glorious title to Freedom for that of Slavery But we have here the first instance of a Man's preaching up the lawfulness of Perjury from the dreadful Judgment of Heaven upon Ananias Sapphira It was a dreadful thing to be a Lyar and bad him read the 5th of the Acts where he would find that two were struck dead for telling a Lye She further testified that Mr Braddon came the next day the Wednesday about noon and that then her Brother probably having read the 5th of Acts did again own that what he had declared ahout the Razour c. was true that Mr Braddon wrote down what he acknowledged and she further confessed that she told the Boy that his Father would be in danger of loseing his Place The matter pinching at this time the Chief Justice to perplex the Cause and divert from the Evidence fell to hectoring Mr Wallop Counsel for the Defendants a Person of great Integrity and Master of more Law than all the Judges then upon the Bench telling him in a most scurrilous manner that he was zealous for Faction and Sedition as every Man was deemed to be at that Conuncture who was so hardy as to stand up in any honest Cause in that Court and impetuous in the worst of Causes and that his Lordship could see nothing in all this Cause but villany and baseness which in truth to an high degree was most evident in the carriage of the Court and Prosecutors of this Cause and that Mr Wallop should not have liberty to broach his Seditious Tenets there Such the asserting the native Rights of English-men were in that day esteemed by the Bene placito Judges of that Court Mrs Burt then produced by Mr Braddon testified That She was present when Mr Braddon came to speak with the Boy and that he said to him if it be true that you have spoken own it for 't is a dreadful thing to be found in a Lye and that Mr Braddon advised him to read the 5th of Acts and that the Boy then said Sir it is true and what I said I will speak before any Justice of Peace in the World and he then told Mr Braddon the whole Story Jane Lodeman a Girl 13. years old called by Mr Braddon declared that she did not know young Edwards and testified that she saw an hand throw a bloody Razour out of the Earl of Essex's Window and presently after heard two Shriekes or two Groans and saw a Woman come out in a White-Hood but did not see her take up the Razour and she added that she presently told all this to her Aunt Here Mr Solicitor was pleased to sport himself with the Girl by way of Dialogue thus Solicitor Was the Razour bloody Girl Yes Solicitor Very bloody Girl Yes Solicitor Are you sure 't was a Razour or a Knife Girl I am sure 't was a Razour Solicitor Was it open or shut Girl It was open Solicitor What colour was the handle Girl Sir I cannot tell I see it but as it flew out Solitior Was it all over bloody Girl No. Solicitor All but a little speck Girl It was very bloody Then Jeffryes finding the
Girl to be more than a Match for her first Assailant falls in to his aid and first bellows out a terrifying Exclamation Blessed God! What an Age do We live in That the King 's Learned Council with all their Cunning cannot confound these innocent honest Infant Witnesses and then taking up the same Dialoguing Cudgel falls roundly upon the Girl thus Chief Justice Girl you say you did not know that 't was the Earl of Essex's Window Girl No but as they told me Chief Justice Nor you did not see any body take up the Razour Girl No. Chief Justice But are you sure you did not Girl I am sure I did not Chief Justice But Child recollect thy self sure thou didst see some body take it up Girl No I did not The Goliah thus miscarrying Mr Braddon proceeded in his Evidence and called the Girl 's Aunt Mrs Smyth who witnessed that the Girl coming from the Tower upon the 13th of July told her that she saw a Razour thrown out of a Window and that Mr Braddon hearing of it came as a Stranger to enquire about it and ever encouraged the Girl to speak the truth and bad her speak nothing but what was truth and that he never offered her or the Girl any thing Mr William Glasbrooke testified That upon the 13th of July he heard the Girl very loud with her Aunt saying the Earl of Essex has cut his Throat in the Tower and that her Aunt chiding her she said she was sure it was true for she saw a bloody Razour thrown out of the Window and that he the said Witness was present when Mr Braddon first discoursed the Girl having never seen him before and he heard her tell Mr Braddon that the Earl of Essex cut his Throat and that she saw a bloody Razour thrown out of the Window and that she heard two Groans or two Shriekes Then Mr Smyth being called by Mr Braddon testified that he went with Mr Braddon to the Girl and heard her tell him that she saw an hand toss a Razour out at the Earl of Essex's Lodgings and that she heard two Shriekes and saw a Woman come out with White head-Cloathes but did not see any one take up the Razour Mrs Meux was then produced by Mr Braddon to testifie that she went from London to Berk-shire the day before the Lord Russell's Tryal and that a Gentlewoman in the Coach with her then told her that one of the Lords in the Tower had cut his Throat At this the quondam City Mouth storm'd and huff'd at his wonted rate refusing to hear the Evidence and demanding why they brought not the Woman which told this to Mrs Meux and was answered that she was so big with Child that she could not come Mr Burgesse of Marlborough then testified that he being at Froome in Dorset-shire upon the day of the Earl of Essex's death he heard there a Report that his Lordship had murdered himself Then the King's Council produced the Coroner's well instructed Witnesses to prove that this Noble Peer was Felo de se who were Bomency his Lordship's Servant now in France and a professed Papist Hawley and Russell the Warder and Lloyd the Centinel Now because the Depositions of these Fellows will appear in their most true and best light in the Abstract of some of the proofs made about this most barbarous Assassination which with the leave of the candid and ingennons Abstracter thereof I purpose to subjoyn I shall not here enlarge upon them The Evidence on both sides being given in the last place comes Jeffryes to descant and remark upon it which he did in an harangue which makes six leafs in Folio half as many as the Acts of all the Parliaments in the Reign of Charles the Martyr do fill in our Statute Book He tells the Jury That there is scarce in nature a greater crime than this before them It carries all the Venome and Baseness the greatest Inveteracy against the Government that ever any Case did That the Earl of Essex rather than he would abide his Tryal he being conscious the great Guilt he had contracted made him destroy himself immediately after my Lord Russell one of the Conspirators was carried to Tryal and it cannot be thought but it was to prevent the methods of Justice in his own Case there was digitus dei in it and 't is enough to sati fie all the World of the Conspiracy 'T is beyond all peradventure true that my Lord of Essex did minder himself Then the Jury by their Verdict brought in Mr Braddon Guilty of the whole matter charged upon him in the Information and Mr Speke Guilty of all but conspiring to procure false Witnesses The Court adjudged Mr Braddon to pay 2000 l. Fine to find Sureties for good behaviour for Life and to be committed till performed Mr Speke to pay 1000 l. Fine to find Sureties for good behaviour for Life and to be committed till performed An Abstract of some material Proofs which have been made in Relation to the Death of the Earl of Essex First for disproof of the Earl's Self-Murder THE Right Honourable Arthur late Earl of Essex was Committed to the Tower upon Tuesday the 10th of July 1683 and there were two Warders placed over him viz Monday and Russell and one Servant viz. Paul Bomeney was permitted to attend upon him The very next Friday Morning about nine of the Clock his Lordship was found dead in his Closet with his Throat cut through both Jugular Arteries to the Neck-bone Now seeing our Law presumes every Man destroyed by violent Hands is murdered by others unless such Evidence appears as gives satisfaction in the contrary and proves him a Self-Murder This Lord had been found to be barbarously murdered had not Bomeney Monday and Russell appeared to prove the contrary and they endeavoured to prove it thus My Lord of Essex they say called for a Pen-Knife to pare his Nails which Pen-knife not being ready he required a Razour which was accordingly delivered him with which his Lordship having pared his Nails he retired into his Closet and looks himself in and there he cut his Throat and the Razour before delivered to pare his Nails lying by the Body But that this Relation is forged and that there was First No Razour delivered to my Lord to pare his Nails nor had his Lordship pared his Nails with any Secondly Neither the Body locked into the Closet Nor Thirdly The Razour lying locked in by the Body when my Lord was first known to be dead is evident from what follows which clearly detects this Forgery For the first of these that there was no Razour delivered to my Lord. This appears by the Contradictions of Bomeney Russel and Monday as to the time of the delivering this Razour for Bomeney first swears he delivered this Razour to my Lord to pare his Nails on Friday Morning at eight of the Clock within two hours positively swears in the deposition himself writ that he
Whitehall insomuch that he who had the Power of Life and Death positively declared that he should dye and to prevent his further discovery which he had promised to make he is instantly removed and kept most closely in the Tower where he was most rigorously handled to make him retract his Confession The Conspirators being thus defeated of this hopeful Fanatick Plot calculated for the entertainment of the Oxford Parliament and well knowing that Fitz-H and his Wife could make it out who set them to work and that he was paid 250 l. at White-hall for this Service They came to a resolution that the Parliament must not pry into this mistery of Iniquity however The Parliament being met the House of Commons fell upon it and on Friday the 25th of March 1681. Upon the reading Sr Robert Clayton's and Sr George Treby's Examination of Fitz-Harris Sr John Hotham moved that it might be printed to show the World the devilish Conspiracies of the Papists which motion was seconded by Sr William Jones who said that People had been prevailed upon to believe the Plot not true and that that Examination confirmed the Informations of Otes and Bedloe Sr Francis Winnington added that the Treasonable Paper of Fitz-Harris was to have been sent to many Gentlemen and they to have been seized thereupon as Traytors in a Conspiracy against the King That all was at stake therefore let not our Courage lessen Let us go to the bottom of this business of Fitz-Harris I move he may be impeached of High-Treason and it may be he will relent and tell you all Sr Robert Clayton then said That when F. Harris his Examination was taken at Newgate he told him that he thought he had not dealt ingenuously unless he would tell what Council he had for drawing the Paper and that he had him be ingenuous in the whole matter and he would come and take his further Examination and that F. Harris having promised this he was removed out of their reach into the Tower Wherepon an Impeachment was ordered Sr L. Jenkins commanded to carry it to the Lords and Col. Birch said That we ought all to give God thanks for this discovery of Fitz-Harris next to the first discovery of the Plot. Upon Saturday the 26th of March 1681 the House of Commons being informed that the House of Lords had refused to proceed upon the Impeachment Sr Thomas Lee said That he saw by the Lords refusing the Impeachment no further use of Parliaments That they would be a Court or not a Court to serve a present purpose Then Sr William Jones spoke to this effect Indictments were brought against the Lords in the Tower and yet that was no impediment to their Impeachment in the Lords House but here is no Indictment or Prosecution brought against Fitz-Harris We have an instance fresh in memory Scroggs a Commoner and not indicted at Common-Law yet the Lords without scruple accepted his Impeachment We find the Lords have determined a great point The Lords Spiritual as well as Temporal have voted the refusal of the Impeachment of Fitz-Harris which we own not in this Judicature nor I hope never shall and We are denyed Justice by the Lords Spiritual who have no right to Vote This is a double act of Injustice Let us then Vote That the Commons have a Right to impeach in capital Cases and that the Lords have denyed us Justice in refusing the Impeachment in a Parliamentary way At a Conferrence show how unwarrantable the Lords Actions have been and if the dissolution of the Parl. follows it s the fault of those Men who will not hear our Reasons Sr Francis Winnington backt this Motion and said This Impeachment is not an ordinary Accusation but it relates to our Religion and Property and how the Bishops come to stifle this let God and the World judge If the Lords will vote that the Commons shall not impeach him They may as well vote they shall not be Prosecutors This is a new Plot against the Protestants of which F. Harris is accused and We must not Impeach him In this the Lords say we must not hear it I desire you would come to some Vote you are willing to discover the Plot if you could If our time be short as I believe it is pray come to some Resolution to assert your Right A little while ago when the Duke was presented for a Papist the Grand-Jury was dismissed by the Chief Justice This seems as if the Lords would justifie the Judges Proceedings by their own If no Man doubts our Right pray vote it Sr Robert Howard then spoke to this effect This of Fitz-Harris seems to me to be a more dangerous breath then usual a breath fit to be stifled There is something in this more then ordinary If there be so sacred a respect to common Tryals in Inferiour Courts 't is strange that the House of Commons should be below a Common-Jury It seems the Lords value Fitz-Harris to keep him from us If Dangerfield would speak what he knew nothing of Mercy was too big for him but they hurry Fitz-Harris away to the Tower when he began to confess in Newgate Are you so lost that you have no Mercy left for the Protestant Religion We hear that the French Ambassador had a hand in this Plot which a Jury will not enquire into I must confess that by the carriage of this I have enlarged my suspition for I cannot but suspect unusual ways Something depends upon this Man Sure We must not lay down all Prosecution of the Plot and say that the Protestant Religion shall have no Mercy Fitz-Harris may merit Mercy by Confession and if his breath be stoped by the Lords I am sorry that People will say If it were not for the Lds. F. H. might have discovered all the Conspiracy and the Protestant Religion might have been saved Mr Serjeant Maynard then added We all know what Arts and Crafts have been used to hide the Plot it began with Murder Perjury and Subornation This of Fitz-Harris is a second part of it The Lords deny to receive our Impeachment In effect they make this no Parliament if We are the Prosecutors and they will not hear our Accusation T is strange when their own lives as well as ours are concerned in the Plot When all is at stake We must not prosecute If this be so Holland and Flanders must submit to the French and they run over all This is a strange breach of Priviledge and tends to the danger of the Kings Person and destruction of the Protestant Religion Sr Thomas Player then said This of Fitz-Harris is a considerable confirmation of the former Plot I call it the Old Plot but t is still new upon us when he inclined to discover what he knew he was fetched to White-Hall and sent to the Tower and so We were deprived of all further hopes of discovery and now they stop his Mouth I move therefore That you will declare
removed and there they remain to this day nay further to those Impeachments they have pleaded to Issue which is ready for Tryal but in the Case at the Bar there is only an accusation without any further proceedings thereupon I take not this to be such a dangerous Case as the Gentlemen of the other side do pretend for you to determine For I am sure it will be better for the Court to answer if ever they shall be required That they have performed their Duty and done Justice according to their Consciences Oathes than ever to be afraid of any Threats or Bugbeares from the Bar. For would not they by this manner of Pleading put upon your Lordships a difficulty to judge without any thing contained in the Impeachment to guide your Judgment whether the Prisoner be Impeached for the same thing for which he is Indicted May not the Treason intended in this Impeachment be Cliping or Coyning We rely upon the informality and uncertainty of the Pleading only and meddle not with the Question whether an Impeachment in the House of Lords supersedes an Indictment in the King's Bench For We say they have not Pleaded it so substantially as to enable the Court to Judge upon the Question and therefore We pray your Judgment that the Plea may be over-ruled Sr Francis Wythens added I say that this Plea cannot be good to oust this Court of Jurisdiction The Prisoner shall by no means be admitted to averr the intention of the House of Commons before they have declared it themselves and therefore I conceive the Plea to be naught for that reason also for another because the Court in this Case by any thing expressed in the Plea cannot discern or takenotice whether it be the same Treason or not Treason generally alledged in the Impeachment is the Genus and the particular Treason in the Indictment is only a Species And the Averment in the Plea is That the Genus and the Species is the same which is absurd and if allowed tends to hood-wink and blind the Court instead of making the matter plain for their Judgment The Arguments being ended The Chief Justice said We never intended when We assigned four Council to Fitz-Harris that they all should make formal Arguments in one day 't is the first time that ever it was done but because 't is in a Case of Blood We were willing to hear all you could say But I must tell you you have-started a great many things that are not in the Case at all We have nothing to do here whether the Commons at this day can Impeach a Commoner in the House of Lords nor what the Jurisdiction of the Lords is nor whether an Impeachment when the Lords are possessed fully of it does bar the bringing any Suit or hinder the Proceeding in an Inferiour Court but here We have a Case that rises upon the Pleadings Whether your Plea be sufficient to take away the Jurisdiction of the Court as you have pleaded it And you have heard what Exceptions have been made to the form and to the matter of your Pleading We ask you again whether you are able to mend your Pleading in any thing for the Court will not catch you if you can amend it either in matter or form But if you abide by this Plea then We think 't is not reasonable nor will be expected of us in a matter of this Consequence to give our Judgment concerning this Plea presently All the Cases cited concerning Facts done in Parliament and where they have ender voured to have them examined here are nothing to the purpose for We call none to question here for Words spoken or Facts done in the Commons House or in the Lords which takes off the Instances you have given but our Question is barely upon the Pleading of such an Impeachment whether it be sufficient to fore-close the Hands of the Court And we will not precipitate in such a Case but deliberate well upon it before we give our Judgment Take back your Prisoner Upon Wednesday May 11th Fitz-Harris was again brought to the Bar and the Attorney moved for Judgment on the Plea and The Chief Justice thus delivered the Opinion of the Court Why Mr Fitz-Harris you have pleaded to the Jurisdiction of the Court that there was an Impeachment against you by the Commons before the Lords and you do say that that Impeachment is yet in force and by way of Averment that this Treason whereof you are Indicted and that whereof you are Impeached are one and the same Treason And upon this the Attorney for the King hath demurred and you have joyned in demurrer And we have heard the Arguments of your Counsel and have considered of your Case among our selves and upon full consideration and deliberation concerning it and all thath hath been said by your Counsel And upon conference with some other of the Judges We are three of us of Opinion that your Plea is not sufficient to bar this Court of its Jurisdiction my Brother Jones my Brother Raymond and my self are of Opinion your Plea is insufficient My Brother Dol-been not being resolved but doubting concerning it And therefore the Court does order and award that you shall answer over to this Treason Thereupon he pleaded Not guilty and the Court appointed his Tryal to be upon the first Thursday in the next Term. Upon Thursday the 9th of June 1681. Fitz-Harris being brought to the King's Bench Bar the Court ordered the Jury to be called and Major Wildman being returned upon the Jury and appearing The Attorney General demanded whether he were a Freeholder in Middle sere He answered I was a Parliament Man and one that voted the Impeachment against this Person and dare not serve upon this Jury and he was set aside as not being a Freeholder John Kent being called said that he was no Freeholder and the Chief Justice declared that then he could not be sworn of the Jury Then Gites Shute Nathaniel Grantham Benjamine Dennis Abraham Graves Henry Jones and Isaac Heath were set aside as not being Freeholders And the Jury sworn were Tho. Johnson Lucy Knightley Edward Wilford Alexander Hosey Martin James John Vyner William Withers William Clenve Tho. Goffe Ralph Far Samuel Freebody John Lockyer Then the Indictment was read comprising several Treasonable passages in a Libel called The true English-man speaking plain English Then Mr Heath as Counsel for the King opened the Indictment and the Attorney General enlarged upon it and called the Witnesses Mr Everard testified that he and Fitz-Harris became acquainted in the French King's Service and F. Harris invited him to frame a Pamphlet to reflect upon the King and gave him Heads and Instructions tending to it and told him that he should have forty Guineas and a Monthly Pension which should be some thousand Crowns Fitz-Harris then demanded of Everard Whether he was not put upon this to trapan others which Everard answered with this question Can you mention any
Alderman Jeffryes answer'd I suppose I may have seen him there but I cannot say any thing to his behaviour Then Mr Hayes called Mr Pollet Mr Lloyd Mr Withers senior Mr Withers junior and Mr Hugh White who gave a fair account of his dealing and Conversation He then said that he would trouble the Court with no more Witnesses Mr Attorney General then said that he would call one Witness more against him and ordered Atterbury the Messenger to be sworn and the Letter was shewed to him Atterbury said that he apprehended Mr Hayes and brought him before the King and was present when the Letter was shew'd to him and the King and Lord Keeper North press'd him to own whether it was his hand or no and he said he should say nothing to it if they could prove it upon him well and good Mr Hayes contradicted this Mischievous and Bloody Man saying his Majesty was not there Atterbury answered As I remember the King was there but by and by said he did only imagine the King was there The Chief Justice then back't Atterbury's Evidence saying I was there what he says is true you said I am not bound to accuse my self 't is true you did deny that you knew Laurence or Armstrong and 't is as true you would not absolutely deny the Letter but said you were not bound to accuse your self Mr Hayes then said My Lord I did hope that in point of Law my Counsel should have been heard to those things I mentioned and I wish you would favour me in it But that being denyed him he addressed himself to the Jury saying Nothing has more troubled me since my Confinement than the imputation of high Treason a thing I alwayes detested I never knew any the least thing of the Conspiracy but by the Tryals or other printed Papers not one of the Conspirators who have come in or been taken have charged me in the least nor did he himself accuse me with whom I am charged to have this Correspondence Gentlemen I desire you to consider that 't is my Life is concerned I beg you would consider what these Witnesses have testified They are not positive in any respect nay there are not two to any one thing that is charge Constable says the Letter was found amongst Sr T. A's Papers he says no more and here are not two Witnesses to that Everis tells you he saw this Bill but did not know my hand There is No body tells you I wrote this Letter but it is found in another Man's dustody in another Nation Gentlemen 't is very hard that by comparison of hands a man's Life should be in danger when in lesser Crimes it has been denyed to be good evidence and none of you can escape the same danger if this be allowed to be evidence for your hands may be counterfeited as well as mine If there had been any probability of my knowing him it had been something but there is not one that testifies that ever I knew him nor indeed did I There is a great deal of Circumstance made use of upon the account of his acquaintance with my Brother in Holland but 't is strange there should not be some evidence of a further Correspondence between him and me if there were that intimacy that such a Letter as this doth import I must with Reverence to the divine Majesty say and I call God Angels and Men to witness the truth of it as I shall answer it to him before whom for ought I know I am quickly to appear that I never in my Life spoke with Sr T. Armstrong nor was ever in his Company nor ever wrote to him by the Name of Laurence or any other Name And I do solemnly say in the presence of God that I never gave sent lent paid or ordered to be paid any Money directly or indirectly to Sr T. A. or H. Laurence or to him by any other Name or to his use I speak it without any counterfeiting or equivocation Gentlemen There have been Overtures if I would say some things that my Life might be saved and 't is not to be believed that I would run the Risque of my Life if by speaking the Truth I could save it The Chief Justice did here appear enraged and interrupted him saying What do you mean by this Mr Hayes I say Chief Justice Ay but you must say those things that are decent and fit for us to hear you must not insinuate as if the Government would make any such Compacts as you talk of Mr Hayes I say that Mr Foster told me Chief Justice If you offer that I can tell you a Story that perhaps you will be very unwilling to hear on my word 't will be very unpleasant to hear it you had better let those things alone for you will but draw a load upon you Mr Hayes I beseech your Lordship to hear me Chief Justice Yes I will hear you provided you keep within due bounds but we must not suffer these things Mr Hayes I say nothing but this It has been told me the way to save my Life is to confess Chief Justice As you represent it 't is a reflection upon the Government you talk of Overtures having been made you don't make me say what I have no mind to say Mr Hayes I say Mr Foster by Name told me there was no way for me to escape but by Confession Chief Justice You had best call Mr Foster to know how he came to tell you so If you do I will tell you of another thing of * The Story of the 4 or 5000 l. was this an eminent Papist very acceptable to King Charles the second undertook to some of the Friends of Mr Hayes that a Pardon should be had for 4000 Guineas to the King 1000 to himself but he afterwards declared that the King had refused him therein and told him that he was advised that he had better give that Popish Friend 4000 l. out of the Exchequer than pardon Hayes but that he gave his Royal Word that the Overture should not hurt Mr Hayes nevertheless the murdering Adviser of that King doth here publish it to insinuate the Prisoner's guilt 4 or 5000 l. that was offered for your escape you had better forbear or else I shall put you in mind of a Brother of some Body that is at the Bar. Mr Hayes My Lord I was told that was the way Gentlemen of the Jury I have declared to you the whole truth with all the solemnity that becomes ani nnocent Man not an ill Man Besides that you have heard in all this evidence is nothing but Circumstance and Hear-say and shall a Man's Life be taken away for I believe and I think or I have heard Gentlemen I know you are my Fellow Citizens and Fellow Christians and of the same Reformed Religion that I am and I hope you are sworn into this service without any prejudice against me but with an impartial Resolution
the Tower to place Men in in order to surprize it Mr Bateman objected to this evidence that if he had been guilty of such discourse he had been fit for Bedlam and if Lee had heard him speak such words he wondered he had not sooner accused him Richard Goodenough then witnessed that in discourse with Mr B. at the King's Head-Tavern in Swithens Alley about the intended Insurrection M. B. promised to use his interest in raising Men and to be assisting in surprizing the City Savoy c. and in driving the Guards out of Town Mr Bateman having subpenaed Sr William Turner to give an Account of an Information given in upon Oath before him by one Barker above two Years before that Lee would have suborned him against the Prisoner Sr William would testifie nothing thereof but said that it being above two Years since he could not charge his memory with any of the particulars contained therein Mr Tomkins Sr William Turner's Clerk being askt about Baker's Information said there was such an Examination taken Anno 1683 but to the best of his remembrance it was returned before the King and Council and he could not give any account of the particulars Baker being called declared That being in Lee's company in the year 1683 Lee would have perswaded him to insinuate himself into Mr Bateman's company and he demanding of Lee to what end he should do it and about what he should discourse Lee told him he might talk about State matters Lee by these horrid practices made himself a great Man being put into the place of a Messenger which he enjoyed till of late tho some time before he became a Witness he borrowed Money to buy Bread for his Family and by that means he would find a way to make him a great Man and Baker testifi'd he was examin'd about this before Sr William T. The Court upon this Evidence declared that what Baker said A wicked but customary practice of that day to abet and justifie Suborners and Trapans was nothing to the purpose but that Lee had a design therein to make a discovery of the Conspiracy if he could have procured a Witness to corroborate his Evidence The Jury being sent out without Hesitation brought Mr Bateman in guilty of the Treason tho' 't is certain King Charles laught at Lee's evidence It being demanded of Mr B. what he had to say why Judgment should not be pronounced He desired to know whether Mr Goodenough was fully pardoned and he was answered that as for the Outlawry he was pardoned and for any thing else he was not prosecuted and then he was condemned and was executed upon the 18th of December 1685. That the matter relating to Sr William Turner may appear in it its true Light I shall subjoyn the following accompt thereof Mr Bateman's Son having as he thought very providentially heard that Baker had about two Years before given an Information upon Oath to Sr William Turner of the Villain Lee's tampering with him to ensnare and accuse Mr Bateman The Son was advised by Counsel to apply himself to Sr William and in several attendances upon him when he was engaged in other matters and his Books of Entries lay upon his Table he turning over the Leaves found the Entry of Baker's Information about Lee's attempting to suborn him against Mr Bateman The Son thereupon in the first place applied to Tomkins Sr William's Clerk to get a Copy of that Information and did once think him inclined to let him have it but at last he told him he must ask Sr William Thereupon he applied himself to Sr William for it who demanded of him Whether it were against the King and young Mr Bateman answered him No it may save the Life of one of his Subjects whereupon Sr William said You shall not have it The only Refuge then was to subpena Sr William Turner and his Clerk which was done and Sr William being examined saying he could not charge his Memory with any of the particulars in the Information of Baker young Mr Bateman said Let the Book be sent for it is in such a Book and such a Page Whereupon Herbert the Chief Justice in a passion commanded young Mr Bateman to be removed out of the Court as he was If the truth of what is here related in reference to Sr William Turner be any way doubted it will evidently and beyond controul appear by the Proceedings before the House of Lords where it hath been very lately made out by Mr Bateman's Son and also by another Witness who was privy to the whole transaction thereof with Sr William Turner Mr Bateman being thus condemned to Death by the foregoing wicked Practices expressed himself thus to his Son Richard Your Father needs not to dye if he will accuse others but he dyes because he will not be a Rogue And 't was most undoubtedly true as 't is that a greater Rogue lives not than this Lee Mr Bateman's first Accuser who having miscarried in his cursed Attempt to suborn Baker is now seconded by Goodenough who was brought with a Halter in effect about his Neck to swear this good Man out of his Life In relation to the Witnesses and their Evidence some things deserve to be further remarked The late King James had no sooner possessed himself of the Throne but by his order and special recommendation a most malitious Tract was emitted to the World under the Title of Atrue Account and Declaration of the horrid Conspiracy against the late King his present Majesty and the Government The temporizing Pen-man who ever he was shewed more Art than Honesty in compiling that History and omitted nothing therein which might serve the turn of Popery but most wickedly magnified the Evidence of the Conspiracy he treated of His loose and virulent Pen runs thus as to Keeling one of the Witnesses in the case before us Josia Keeling a most perverse Fanatick was the Man whom God chose to make the first discoverer It pleased the divine Goodness so to touch his Soul that he could not rest till after much conflict in his mind he had fully determined to discharge his Conscience of the Hellish Secret Now the truth of it is Keeling was found about that time to be under some Conflict but it was with Satan and his Instruments who quickly vanquished and made him a Witness as hath been lately made out beyond contradiction by the Testimony of many unblemished Persons before the House of Lords of which more in it is proper place he had indeed before that time frequented an Assembly of Christians who dissented from the Church of England but being thrown out as a perverse Fanatick he made his way by a Profligate Fellow like himself one Peckham to Sr Leoline Jenkins the Secretary of State who listed him of his Church and the first in his Roll of Witnesses and since he became so 't is notoriously known that he hath given up himself to all manner
the Lords in Tryal and Judgment taken away by an Inferiour Court This being said in general I come to the particular Exceptions made by Mr Attorney to the form of the Plea He insists that this Plea doth not set forth any Record of an Impeachment nor the particular matter of it and compares it to the Case of a Plea of Auter foitz acquit If a Man has been Indicted and Acquitted he may plead it in another Court that hath Jurisdiction of the Cause if again Indicted for the same matter I say I take this to be a very good Plea and that according to the pleading of Auter foitz acquit In pleading a General Act of Parliament We need not set forth the whole Act but refer to the Record In the Case of auter foitz acquit there is an Indictment Proceeding of the Cour upon the Plea a Tryal and an Acquittal and a Record of all this matter and if the party be again Indicted he hath a Record to plead which will shew the whole matter and if he does not plead it 't is his own default But in this Case here is no such Record to plead and there is Mr Attorney's mistake you must in this Case be governed by the Rules and Methods of Parliament which is this the Commons Impeach a Man and bring up the Impeachment to the Lords in general and have Liberty to present Articles after due consideration It is said in this Plea that it is secundum legem consuetudinem Parliamenti you are to take notice of the Law of Parliaments and Customs of Parliaments The second Exception is That it is not said in the body of the Plea that Fitz-Harris is Impeached for this Treason but it comes in only in the Averment As to that we must pursue the Impeachment as it is in the Lords Journal 't is for Treason generally there and 't is said to be secundum Legem consuetudinem Parliamenti which goes to all and there is a Record of it among the Records of Parliament and Mr Attorney hath confessed it by the demurrer And this is the same Treason we do aver in fact which also is confessed by the demurrer Mr Attorney hath fancied an exception of Grammar an Adjective for a Substantive but I take it to be as well as any Man can plead in this case The Prisoner says the Commons Impeached him which Impeachment is still in force before the Lords It is as plain as can be if they did Impeach him then there was an Impeachment it can bear no other sence Another Exception and which was strongly urged is That the King may chuse his Court 'T is no doubt the King may chuse his Court for his own Action but the Impeachment is the Suit of the Commons and that is to be tryed in Parliament and no where else I have offered these Reasons as to the form of the Plea to maintain it As to the Precedents There was the Bishop of Winchester's Case 3 Edw. 3. In Coke's 2 Inst fol. 15 the Record is recited de verbo in verbum It was not an Indictment my Lord Coke says it was a Declaration the Record sets forth that the Bishop was attached to answer the King for that whereas it was ordained Per Ipsum Regem Ne Quis ad domum Parliament summonitus ab eodem recederet sine Licentia Regis And that the Bishop in contempt of the King recessit without his leave The Bishop comes and says Si Quis deliquerit ergâ— dominum Regem in Parliamento aliquo ie Parliamento debet corrigi emendari non alibi in minori Curia Quam in Parliamento c. We find no Judgment given upon this Plea nor would they venture to do it My Lord Coke says It looks as if there was a design to weaken the Parliaments by bringing their Proceedings into Westminster-Hall but they would not do it Then there is the Case of Mr Plowden and others 1st and 2d Phi. and Mar. the Information is this That they were summoned to Parliament and departed without leave of the King and Queen the' they had prohibited that any should depart Mr Plowden pleads a Plea a hundred times as faulty as ours if ours be faulty and yet this Case continued all the time of that Queen and it appearing upon the face of the Information that the Case concerned the Commons the Court would not give Judgment for or against the Commons There is also Elliot's Case 5 Car. There was an Information against my Lord Hollis Sr John Elliot and many more They plead to the Jurisdiction of the Court their Pleae is in a manner as faulty as Plowden's but the Court goes not upon the insufficiency of the Plea but gives Judgment generally that this Court had a Jurisdiction The assault happen'd in Parliament the Words were spoken there and upon the demurrer they gave Judgment upon the whose matter This Judgment was reversed 19 Car. 2. The Judgment was given against these Gentlemen of the House of Commons Their Plea was a Plea in Abatement They thought it a very hard Judgment and were obstinate and would not plead over and Judgment was given for want of a Plea they were fined severely and continued in Execution for the Fines were delivered by the Parliament 16 Car. 1. in the second Impression of Croke's Car. it is said That the House of Commons 19 Car. 2. voted That the Judgment was illegal and against the freedom and liberty of Speech and that the Lords concurred in that Vote And upon the Resolution of both Houses the Judgment was reversed by Writ of Error If in our Case you should give Judgment against the Prisoner's Plea and he should prove obstinate and not plead over and you give Judgment of Death upon him It may come to be a very hard Case if your Judgment should be reversed by Writ of Error in Parliament when the party is dead * Sr Francis Winnington in his Argument added to this that it was agreed by the Lords unanimously that the Judgment was erroneous and that the Parties should be restored to all that they had lost but if this Man should lose his Life by your Judgment what help would there be upon a Writ of Error 20 Rich. 2. Ro. Parl. 12. Rushworth 47.48 A Person presented a Petition to the Commons and something suggested therein amounted to Treason He was Indicted out of Parliaement and found guilty But though he was pardoned because the Commons would not lie under that Precedent of an Invasion of their Priviledge tho' he was a Person without Doors and no more hurt done to him but the prosecution the Judgment was voided Mr Williams then concluded his Argument thus My Lord I have done with my Reasons for the matter and for the form Here is the Life of a Man before you here is the right of the Commons to Impeach in Parliament before you Here is the Judicature of the Lords to