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
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
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
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
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
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
one is to the matter To the Form 1st The general Allegation that he was impeached de alta Proditione is uncertain it ought to have been particularly set out that the Court might judge Whether it be the same Crime and it is not helped by the Averrment 2dly Here is no Impeachment alledged to be upon Record They make a general Allegation that F. Harris was Impeached Impetitus fuit by the Commons before the Lords Quae quidem Impetitio in pleno robore existit prout per Recordum inde c. Now there is no Impeachment mentioned before And quae quidem Impetitio is a relative Clause and no Impeachment being mentioned before in the Plea there is nothing averred upon the Record to be continued or discontinued for Impetitio does not actively signifie the Impeaching or passively the Person Impeached but it signifies the Impeachment the Accusation which is to be upon Record Therefore when they say he was impeached and afterwards alledge Quae quidem Impetitio remains upon Record that cannot be good for the Relative there is only Illusive For the matter of the Plea 't is a Plea to the Jurisdiction of the Court There the point will be Whether a Suite depending even in a Superior Court can take away the Jurisdiction of an Inferiour Court which had an Original Jurisdiction of the Cause and of the Person at the time of the Fact committed I insist upon these Exceptions Mr Williams for the Prisoner then said I take these things to be admitted Mr Attorney having demurred generally 1. That the Prisoner stands Impeached 2. That the Impeachment is now in being 3. That this was done secundum Legem Consuetudiem Parliamenti and being so remains in plenis suis robore effectu And more particularly the Plea refers to the Record for the parts and Circumstances of the Impeachment prout patet per Record So that it refers the Impeachment to the Record and tells you 't is amongst the Records of that Parliament 4. Moreover That the Treason in the Impeachment and the Treason in the Indictment are one and the same and that this Person Fitz-Harris indicted and F. H. impeached are one and the same Person And withal it appears upon the Record that this Impeachment was depending before the Indictment found for the Parliament was the 21st of March and it appears this is an Indictment of this Term And further it appears not by any thing to the contrary in the Record but that this Parliament is still in being and then it must be admitted so to be Whether your Lordship now will think fit in this Court to proceed upon that Indictment is the substance of the Case I think it will not be denyed but that the Commons may Impeach any Commoner before the Lords That was the Case of Tresilian and Belknap in the time of Richard the second Vpon that Impeachment one of them was Executed and the other Banished in Parliament Mr Attorney allows the Parliament to be a Superior Court but says yet the Inferiour Court having Original Jurisdiction of the Person and Cause may proceed notwithstanding an Impeachment in Parliament I will shew how manifestly an Indictment and an Impeachment differ The Case of an Appeal is like the Case of an Impeachment An Appeal of Murder is at the suite of the Party and in this case 't is at the suite of the Commons t is not in the Name of the King but of all the Commons of England So that 't is like an Appeal and not like an Indictment an Indictment is for the King an Impeachment for the People It is not safe to alter the old ways of Parliament 't is out of the road of Comparisons when they will compare an Indictment and an Impeachment together It becomes not the Justice of this Court to weaken the Methods of Proceedings in Parliament Your proceeding upon this Indictment is to subject the Method of their Proceedings there to the Proceedings of this Court It is not fit that the Justice of the Kingdom and the High Court of Parliament should be crampt by the Methods of an Inferiour Court and a Jury The Parliament is the supreame Court and this Court every way inferiour to it and 't will be very strange that the Supreame Court should be hindred here For the highest Court is always supposed to be the wisest and the Commons in Parliament a greater and wiser Body than a Grand Jury of any one County And the Judges in that Court the Peers to be the Wisest Judges Will the Law of England suffer an Examination Impeachment and Prosecution for Treason to be taken out of the Hands of the greatest and wisest Inquest in England And will it suffer the Judicature to be taken out of the hands of the wisest Judges It stands not with the Wisdom of the Law or of the Constitution of the Government Another thing is this the common Argument in an extraordinary Case there is no Precedent for this way of Proceeding 'T is my Lord Cok's Argument 〈◊〉 Coke's Littleton fol. 108. and in the â—th Instit fol. 17. in the Case of the indictment against the Bishop of Winchester and of that against Mr Plowden He says 't is a dangerous attempt for Inferiour Courts to alter or meddle with the Law of Parliaments So in this case in regard it never was done from the beginning of the World till now it being without President there is no Law for it Another mischief which follows upon this is If you take this Case out of the power of the Parliament and bring it into this Court where the Offence may be pardoned you change the method of proceedings which make the Offence without consent of the Prosecutors not pardonable by Law This may be of dangerous consequence to the Publick by giving this Court a Jurisdiction and possessing it of these Causes expose them to the will of the Prince This way of proceeding inverts the Law in another thing 'T is a Principle that no man's Life is to be put twice in danger for the same thing If you proceed upon this Indictment and he be acquitted will that acquittal bind the Lords in Parliament If they may proceed upon the Impeachment then you invade every English-man's right and his Life may be brought in question twice upon the same account I take it to be a Critical thing now at this time to make such attempts as these are There are Lords now that lie under Impeachments of Treason if you goon in this do you not open a Gap that may be a ground to deliver them By the same Justice the Lords may be tryed by another Court This proceeding will have this effect it will stir up a Question between the Jurisdiction of this Court and the Parliament for in probability if this Person be acquirted the Commons and the Lords too will look into it If he be found guilty here is the Power of the Commons in Impeaching and the Jurisdiction of
Fact is an Impeachment of Treason what would They have had us to do or wherein is our fault What would They have had us said We were Impeached of Treason so and so particularizing how can that be There is no such thing Then they would have us said Nul tiel Record and We must have been condemned for failing in our Record then indeed we had been where They would have had us but having done according to our Fact if that Fact will oust this Court of Jurisdiction I see not how we should plead otherwise or what answer they will give to it This must needs be agreed to me If this Impeachment be in the nature of an Appeal surely an Appeal does suspend the Proceedings upon an Indictment for that Fact and so 't is expresly in my Lord Dyer fol. 296. Stanley was indicted and convicted of Murder and before Judgment the Wife brought her Appeal and They moved for Judgment No said the Court here is an Appeal brought They could not go to Judgment till the Appeal was determined So the Stat. 3. H. 7. Cap. 1. and Vaux's Case 4 Rep. 39. If this then be of the nature of an Appeal this Suit ought to have its Course and Determination before you proceed on this Indictment Inferiour Courts have never taken upon them to meddle with the Actions of Superiour Courts but leave them to proceed according to their Laws and if that be done in any Case there will be as much regard had in this great Cause to the Court of Parliament as in others In the Earl of Northumberland's Case Cotton's Records 5 H. 4. fol. 426. He confesses himself guilty of an Offence against his Allegiance the King would have the Justices to consider of it No said the Parliament 't is matter of Parliament and the Judges have nothing to do with it The Lords make a Protestation to this purpose and went on themselves and adjudged it to be no Treason There is that Record more Rot. Parl. 11 R. 2. Pars 1. N. 6. I only offer these things with what my Lord Coke sayes Hath been formerly thought Prudence in the Judges to do So I hope That if the matter be good the form is as good as the matter can be put into and therefore we hope you will allow us the benefit of it The Attorney General argued thus for the King Notwithstanding what hath been said I take it this is a Naughty Plea and there is no matter disclosed therein that we can take Issue upon The great substance of the Arguments of the Prisoners Counsel is against him for 't is least he should escape but he pleads this Plea that he might escape For the Cautions given you what a difficult thing it is for two Jurisdictions to interfeir Fitz-Harris is much concerned in that matter who hath forfeited his Life to the Law yet he would fain live a little longer and is concerned that the Judicature of Parliament should be preserved I observe 't is an unusual Plea It concludes Si Curia procedere vult I wonder they did not put in aut debeat you have no Will but the Law and if you cannot give Judgment you ought not to be pressed in it but it being according to Law that Malefactors be brought to condign punishment We must press it whatsoever the Consequences are It is the Interest of all the Kingdom as well as of the King that so notorious a Malefactor should not escape or the Truth be stifled but brought into Examination in the face of the Sun but They say if it be not Law you will not proceed it ties up your Hands But they give not one Instance to make good what they say Put the Case it had been a good Impeachment he had been arraigned upon it and acquitted and had afterwards come to be Indicted in this Court and would not plead this in Bar but to the Jurisdiction it would not have been a good Plea Then certainly an Impeachment depending singly cannot be a good Plea to the Jurisdiction This Court hath a full Jurisdiction of this Case and of this Person and this you had at the time of the Fact committed What then is it that must oust this Court of Jurisdiction For all the Cases that have been put about matters not originally examinable in this Court make not to the matter in question where the Fact is done out of the Jurisdiction of the Court that may be pleaded to the Jurisdiction but where the Court may originally take Cognizance of it I would know what can oust that Jurisdiction less than an Act of Parliament I will be bold to say the King by his Great Seal cannot do it To say the Proceedings in Parliament ought to be a Bar that is another Case the Party may plead it in Abatement or Bar as the Case requires For the Cases they put the Reasons are that the Court had no Original Jurisdiction There is not one of the Cases cited but where it was out out of the Jurisdiction of the Court originally As for the Case of the five Lords in the Tower I observe the House of Lords removed the Indictments into their House fore-seeing that the King might have proceeded upon them if not removed thither But our Case is quite another thing for those Lords were not fully within your Jurisdiction The Case of 11. R. 2. will be nothing to our purpose at all that was in the Case of the Lords Appellants a proceeding contrary to Magna Charta contrary to the Statute of Edw. 3. and the known Priviledges of the Subject Those proceedings had a Countenance in Parliament and they would be controuled by none nor be advised by the Judges but proceed to the trying of Peers and Commoners according to their own Will and Pleasure And between the time of 11 R. 2. and 1 H. 4. see what Havock they made by those illegal proceedings and in 1 H. 4. these very Lords were sentenced and it was resolved by Act of Parliament That no more Appeals should be any more in Parliament The other great point is this There is nothing at all certainly disclosed to you by this Plea therefore there is nothing confessed by us only the Fact that is well pleaded They say They have pleaded it to be secundum Legem Consuetudinem Parliamenti but I say They must disclose to you what is the Law and Custom of Parliament in such Case or you must take it upon you upon your own knowledge or you cannot give Judgment There are three things to be considered of the Parliament the Legislative part the matters of Priviledge and the Judicial part For the two first both Houses proceed only Secundum Legem Consuetudinem Parliamenti But for the Judicial part they have in all times been guided by the Statutes and Laws of the Land and have been ousted of a Jurisdiction in several Cases as by the Statute of 4 Edw. 3. 1 H. 4. And the Lords
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
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
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