about August that the 30th of Sept. Walcot Dined with him told him that the Lord Shaftsbury was secreted and desired to speak with him Walcot brought him to the Lord Shaftsbury who complained of the Duke of Monmouth and the Lord Russel for deserting him but there was such preparation made in London that now he was able to do it of himself and intended to do it suddenly he had above 10000 brisk Boys ready to follow him when he held up his Finger they would possess themselves of the Gates and in twenty four hours they would multiply to five times the number and would be able to possess Whitehall by beating the Guards the Lord Howard went to the Duke of Monmouth told him the Lord Shaftsbury's complaint who said the Lord Russel and he told the Lord Shaftsbury from the beginning that there was nothing to be done by them in the Country at that time the Matter of the discourse between him and the Duke of Mounmouth him and the Lord Shaftsbury and him and Walcot is too tedious to relate and as little to the purpose if the Jury had understood Matter of Law which they did not in it he takes care to shew what Confidence my Lord Shaftsbury had in him more than in the Duke of Monmouth or the Lord Russel how very Cautious he was and how Precipitate the Lord Shaftsbury was and that what he told the Duke of Monmouth the Duke told the Lord Russel and he heard the Lord Russel had been with the Lord Shaftsbury and put off the intended rising at wich the Lord Russel interrupted him and said he thought he had very hard measure there was great deal of Evidence given by hear-say only whereupon the Chief Justice said it was nothing against the Prisoner he declared it to the Jury but the Attorney General bid the Lord Howard go on in the method of time and that it was nothing against the Prisoner but the Witness was coming to it if his Lordship would have Patience he assured him so the Lord Howard went on where he left off with a story between him and Walcot of an intended Rising and of some dark Sayings let fall by Walcot and the Lord Gray importing a Design upon the Kings Person but the Lord Howard was very careful to put al off but at last it was resolved to rese on the 17th of November but the Lord Howard fearing it had been discovered because he saw a Proclamation a little before for bidding Bonefires without the Lord Mayors leave that of the 17th of November was also disappointed and the Lord Shaftsbury went away and died but considering they had gone so far that it was not sase to retreat and considering that so great an Affair as that was consisting of such infinite Particulars to be managed with so much fineness they erected a Cabal of six Persons the Duke of Monmouth Lord of Essex Lord Russel Mr. Hampden Algernon Sidney and himself about the middle of Jannary last and about that time they met at Mr. Hampdens House where it was considered whether the Insurrection should be in London or in Place distant what Countries and Towns were fittest and most disposed to Action what Arms necessary to be provided how to raise twenty five or thirty thousand Pounds and how they might so order it as to draw Scotland into a Consent with them about ten days after they met at the Lord Russe's House and then resolved to send some Persons into Scotland to the Lord Argile to invite some Persons hither to give an account of that Kingdom the Persons to be invited were Sir Jo. Cockram Lord Melvil Sir Campbill that matter was referred to Col. Sidney who told him he had sent Aaron Smith they agreed not to meet again till the return of the Messenger the Messenger was gone about a month it was six weeks or more before he returned and then his Lordship was forced to go into Essex where he had a small Concern where he staid three weeks and when he returned he was informed Sir John Cockram was come to Town and afterwards he was forced to go to the Bath where he spent five weeks and from that time to this was five weeks all which time was a Parenthesis to him And that he and the five mentioned erected themselves by mutual Agreement into that Society Atterbury swore Campbell was in his Custody then Col. Rumsey was asked whether my Lord Russel heard him when he delivered his Message to the Company and in what place of the Room the Company were who answered that when he came in they were standing by the Fire-side but all came from thence to hear him and when my Lord Russel said Col. Rumsey was there when he came in Rumsey said no the Duke of Monmouth and Lord Russel went away together Then in behalf of my Lord Russel the Earl of Anglesey was examined who said that visiting the Earl of Bedford the Lord Howard came in and told the Earl of Bedford that his Son could not be in such a Plot or suspected of it and that he knew nothing against the Lord Russel or any body else of such a Barbarous Design and he was going on again with what the Lady Chaworth had told him but was interrupted by the Kings Council telling him as the Court would not permit them to give Hear-say in Evidence against the Prisoner so they must not permit his Lordship to give Hear-say in Evidence for the Prisoner Mr. Howard said that the Lord Howard took it upon his Honour and his Faith he knew nothing of any Person concerned in that Business and not only thought my Lord Russel unjustly suffered but he took God and Man to witness he thought my Lord Russel the worthiest man in the World. Dr. Burnet said the Lord Howard was with him and he did then as he had done before with Hands and Eyes lift up to Heaven declare he knew nothing of any Plot nor believed any and treated it with great Scorn and Contempt The Lord Cavendish testified as to the Life and Conversation of the Lord Russel and thence concluded it was not likely he should be guilty of any such matter and heard the Lord Russel speak of Rumsey as if he had an ill Opinion of him and therefore it was not likely he should trust him Dr. Tillotson spoke of his Conversation Dr. Burnet and Dr. Cox spoke of his Cenversation and of his Aversness to all Risings Dr. Cox testified that my Lord Russel said the Lord Howard was a man of luxuriant Parts but he had the luck not to be trusted by any Party The Duke of Somerset spoke of the Lord Russels Conversation The Lord Clifford Mr. Leveson Gore Mr. Spencer and Dr. Fitz-Williams spoke as to my Lord Russel's Conversation The Lord Howard being asked by the Jury what he said to the Earl of Anglesey's Evidence owned what the Earl said but he did it to out-face the matter and if he said untrue he ought
the King that he never was admitted to the King. The Lord Cornway said that the King had declared in Council that Fitzharris had been employed by him in some trifling businesses and that he had got money of him but added as of his own Knowledge that the King never spoke with him till after he was taken which was the 28th of February last All the Evidence being over it was summed up by the Counsel That upon all the Circumstances of it Fitzharris was the Contriver and Directer of the Libel that it was a Treasonable Libel and a Jesuitical Design that the Excuse he made as if Everard drew him into it or trepanned him into it was vain nothing of that being proved That Everard could do nothing alone and therefore Sir William Waller must be in the contrivance but that was unlikely that the Prisoner would insinuate that the King hired him to do it because the King gave him Money but that was out of Charity and therefore concluded with a great many words that an English Protestant Jury of twelve substantial men could not but find the Prisoner guilty The Court added that tho' Doctor Oates said Everard said it was a design of the Court and was to be put on some Lords and into some Parliments Men's Pockets yet Everard was there upon Oath and testified no such thing in the world and for the Impeachment in the Lords House they were not to take notice of it After which the Jury informed the Court that they heard there was a Vote in the House of Commons that the Prisoner should not be tryed in any inferiour Court To which the Chief Justice said That that Vote could not alter the Law and that the Judges of that Court had Conference with all the other Judges concerning that matter and it was the Opinion of all the Judges of England that that Court had a Jurisdiction to try that man. After which Justice Jones was of Opinion that if he were acquitted on that Indictment in might be pleaded in Bar to the Impeachment And Justice Raymond delivered his Opinion to the same purpose It is strange that all the Judges should be of that Opinion yet before it was said Justice Dolbin doubted It is more strange that if Justice Dolbin was not of that Opinion he would hear it said he was and not contradict it It is most strange that if the Judges of that Court were of that Opinion they had not declared so in the arguing or giving Judgment on the Plea for that was the Matter of it being pleaded to the Jurisdiction of the Court that they had not power to try the Prisoner for that Crime so circumstanced If the Plea had been over-ruled as to the Matter none would have been so impertinent as to go about to maintain the Form of it Now to say truth in behalf of the publick and not on behalf of Fitzharris the Evidence was unfairly summed up for Fitzharris never pretended Everard drew him in or was to trepan him It is true he asked Everard what the design of the Pamphlet was and whether he was not put upon it to trepan others who answered he was not But afterwards being too nearly prest by the Attorney General he said Fitzharris told him the use of the Libels was to disperse them he knew how that they were to be drawn in the name of the Non-conformists and put upon them And Oates said Everard said the Libels were to be printed and sent abroad by the Penny-Post to the Protesting Lords and Leading Men of the House of Commons and the persons seised with them in their pockets which is all strong Evidence that the Libel was designed to trepan others and that was all along the import of Fitzharris his Questions though cunningly not answered by some of the Witnesses and as cunningly omitted in summing up the Evidence It is true the Chief Justice said Everard said no such thing as Oates had said but why was not Everard who was then present asked whether he said what Oates had given in Evidence There cannot be shewn any President where a Witness contradicts or says more or less than a Witness that went before him by the hearsay of that Witness but the first Witness is asked what he says to it Why was not Sir William Waller who was also present asked what he said to the Evidence of Mr. Mansell and Mr. Hunt and who it was that informed Sir William what the King said It was no way in proof nor pretended by Fitzharris that any person was concerned in that matter but Everard and Fitzharris though it was shrewdly suspected by the House of Commons and no man that reads the Tryal but believes there were many more concerned not yet discovered but the Counsel might have brought in any Judge of the Court by the head and shoulders to be a Confederate as well as Sir William Waller that was a Jack-a-lent of their own setting up in order to knock him down again It was not pretended by Fitzharris that the King gave him any money to frame that or any other Libel there was Evidence that he had got money of the King for some little matters he was imployed in perhaps for bringing Libels dispersed abroad or discovering Plots Upon the whole Evidence it was plain that Fitzharris was an Irish Papist it was plain he was the only visible Contriver of the Libel who were behind the Curtain is not plain and to know them was the Design of the Impeachment It was plain it was a Devilish Jesuitical Design as the Court and Counsel in summing up the Evidence agreed it to be it was plain that the Libel was such that if disperst with intention to stir up the King's Subjects against him it had been High Treason within the Statute of the 13th of the King but what the intention of the contriving the Libel was was not very certain and therefore consequently what the Crime of it was was uncertain To take the Evidence all the ways as to the Design of the contriving of the Libel it is capable of being interpreted the easiest construction is to say he framed a Libel with intention to pretend to the King that he had intercepted a Libel privately dispersed and to make it more likely it should be framed in the Nonconformists Names to make his Report the more credible for of Papists or Church-men it could not be believed to get more money of the King and that matter by all his Questions to the Witnesses he most drove at and that would at most be but a Cheat. A more Criminal but less credible construction is to believe he designed to disperse them to excite and prevail upon the Discontented to take up Arms. For what Effect had that Pamphlet when it was for it was afterwards dispersed upon the Minds of the People or what Effect could any Man of Sense think it could have for though it was a Virulent yet it was as Foolish a contriv'd
and altered it from what they at first designed it the King's Councel might have had a new Bill found but peradventure they could not prevail with that Grand Jury to have found a new Bill they remembred they had ill luck with the first Bill at London that I believe was the true reason but because I 'll do the Court no injury in imputing that to the cause of the adjournment which was not 't is true in the Printed Trial 't is pretended they adjourned in order to Dine yet those that knew that the adjournment was by the direction of the King's Councel and overheard their whispering with the Chief Justice which is both an undecent and an unjust thing and is neither better nor worse than a Plaintiff or Defendants whispering a Judge while his Case is before him Trying and I know that he Judges had Breakfasted but a little before and had no great stomach to their Dinners and therefore believe that that before assigned and not what pretended was the true cause They might better have put off their Dinner to their Supper than their Supper to their Breakfast as they did the Trial lasting till early next Morning But because all irregularities of Court and Councel in all these matters are shifted off and excused by two Sayings not understood generally the first whereof is That the Court is to act for the King and the Councel are for the King and no person must come near the Prisoner to the prejudice of the King as in Fitz-Harris his Case was often said a Witness was permitted to go on in an impertinent story on a Transaction between him and my Lord Shaftsbury in my Lord Russell's Trial of which the Prisoner complained that it was designed to incense the Jury and though the Chief Justice declared it was not Evidence yet he a great while afterward went on in a like manner nay the Councel in summing up the Evidence repeated the same matter which was permitted because it was for the King and yet when the Earl of Anglesey began to say what the lady Chaworth told him he was snub'd and cut short and Mr. Edward Howard was served the same sauce because it was against the King It is fit therefore to know what is meant in Law by those words No body doubts what the Courts or King's Councel of late days meant but in Law the are not so meant for though many things are said to be the King 's as the Protector of his people and more concerned in their welfare than any private persons yet they are so in preservation and not in property or interest The Highways are the King 's in preservation for the Passage of his Subjects and whoever obstructs them wrongs the King as he is hurt when his Subjects are hurt but in property the Soil generally belongs to private Persons the King is hurt when his Subjects are opprest by force because he has engaged to defend them and therefore the Offender is punished by the King to deterr the Offenders and others from committing the same offences which is for the benefit of the publick but as a Man may be opprest by open force so he may be opprest by private insinuations and false accusations and the King has engaged to defend his Subjects from such not that it is possible to prevent them but by consequence that is by punishing such as shall be found guilty of such Crimes which heretofore were punished with the highest Arbitrary Punishments we read of The consequence is That it is for the King to punish Offenders to acquit the false accused and to punish the false accusers that is to say In all Cases to do right according to Law and Truth Surely Queen Elizabeth gave the best explanation of the words when the Lord Burleigh seeing Sir Edward Coke the then Attorney General coming towards her he said Madam here is your Attorney General Qui pro domina Regina sequitur Nay says she I 'll have the words altered for it should be Qui pro Domina veritate sequitur For the King and for Truth then are sunonymous words for the King against the Truth is a contradiction and the Judges and King's Councel having taken an Oath to advise the King according to the best of their cunning which is according to Law and Truth if therefore the King's Councel use means and the Court permit them so to do to suppress Truth or to disable the Prisoner from making his innocence Appear as in Colledge his Case was done if they urge things as Evidence of the Crime whereof the Prisoner is accused which by Law are not Evidence as in this Case in the Lord Russell's Case Collonel Sydney's Case Mr. Hambden's Case Mr. Cornish's Case and in many more they did and has in some of them shall be hereafter shewn If they insinuate any fact as Evidence which is not proved as in my Lord Russell's Trial that my Lord of Essex killed himself if they wrest as Evidence of the fact which in sence is not so as in Collonel Sydney's Case the writing his Book for for any thing appeared it was writ before King Charles the Second came to the Crown they are Councel against the King being against Truth as well as against the Prisoner I think no Man will deny the truth of this proposition That it is as much the King's interest to have an innocent accused of Treason acquitted as it is to have a nocent accused of Treason convicted If that be true then let any one shew me a reason if he can for there is no Law against it why he may not have the same liberty of clearing his innocence as the prosecutor hath of convicting him I mean by free and private access of all persons to the Prisoner as is used in all other capital matters if it be said he may get some to corrupt the witnesses against him or subborn others for him the same may be said in all other matters but in Treason that is not a likely matter for generally the Prisoner never knows what he is accused of and consequently cannot know his Accuser nor know how to provide a counter-Evidence till he comes to be Arraigned and then it is too late for generally he is presently Tried after his Arraignment as was the Case of Colledge and my Lord Russel and Mr. Cornish and persons committed for Treason are so much the less able to corrupt or suborn Witnesses than any other Criminals that they generally according to the late practice have no Accuser brought face to face to them on their Commitment as all other Criminals have who always are committed upon an Accusation made upon Oath in their Hearing and their Defence heard before their Mittimus made and whatever the pretence may be yet in experience it is found more perjuries in prosecutions for Treason by the Accusers committed than by the Witnesses for the Prisoner One reason is a Witness in Treason is more difficultly convicted than
in any other Crime for Treason is an Ignis fatuus 't is here and there as Colledge was first in London then in Oxford it is not confined to place or time as all others Crimes are in all other Crimes as Murther Robbery or the like it must be proved to be within the County where laid it must be of the person named in the Indictment which are Evidences of Fact which in some sort prove themselves And there was but one that I remember for Oates I do not count one was ever justly convicted of Perjury in Treason and that too was for want of cunning for he foolishly Swore to time as well as place which a Witness in Mr. Hambden's Trial would never be brought to do Besides Malice and Revenge which in prosecutors and Accusers in Treason are generally the Motives go farther than Money or Kindness which if used in any Case are the Motives of false Witnesses for the Prisoner Now as for the King and for the Truth are the same so for the King and for the Law are the same The Laws are the King 's as he is to see the Execution and Preservation of them so for the King against the Law is a contradiction Therefore to Try a Prisoner upon a vitious Indictment as was done in Colledge's and Collonel Sydney's Cases is against the King as it is against Law for by that means he is in danger to be Hang'd if Convicted or Tryed twice if acquitted which is against Law. It is no Salve of the matter what the Judges said in Colledge's Case that the Evidence of Misdemeanour is no Evidence of Treason for the same may be said in an Indictment of Murder and Robbery nor that the Judges would take care to inform the Jury which was Evidence of Treason which of Misdemeanour which they promised to do but were not as good as their words as shall be shewn for the Court may forget so to do and the Jury may forget what the Court said to them of that matter But notwithstanding all this if the Prisoner was innocent there could be no harm done to him for his Innocence would defend him this was a saying and as mortal it was to Fitz-harris to Colledge to Colonel Sydney to Mr. Cornish and several others as was the Letter Θ amongst the Greeks It is true my Lord Coke used the Expression but in another sence than what of late practised I would fain know what they mean by the Expression is it That no man will or ever did swear falsely against a Prisoner in Treason if that be true how came the same Persons to be so violent agianst Oates for what he swore against Ireland or do they mean that let an accuser swear never so violently and circumstantially against a Prisoner yet if he be innocent it will do him no harm if that be true I would fain know how the Prisoner shall escape is it that his Innocence shall appear in his Forehead or shall an Angel come from Heaven and disprove the Accuser neither of which we have observed though all have said and I believe that some Persons have been very innocently Executed Or shall the Accuser be detected by the bare Questions of the Prisoner that I think will not be neither and therfore to instance in the only person who hath of late escap'd in a Trial of Treason where there was a design against his Life which was my Lord Delumere if he had not had Witnesses to have proved the persons mentioned to have been with him at the place and time sworn against him to be in othe places it was not his denial had served his turn but he would have run the same fate with my Lord Brandon Nay I am apt to think had he been Tried by a Jury of Commoners packed as at that time they usually were he had not escaped The truth is when I consider the practice of late times and the manner of usage of the Prisoners it is so very much like or rather worse than the practice of the Inquisition as I have read it that I sometimes think that it was in order to introduce Popery and make the Inquisition which is the most terrible thing in that Religion and which all Nations dread seem easie in respect of it I will therefore recount some undeniable Circumstances of the late practice A man is by a Messenger without any Indictment precedent which by the Common Law ought to precede or any Accuser or Accusation that he knows of clapt up in close Prison and neither Friend or Relation must come to him he must have neither Pen Ink or Paper or know of what or by whom he is accused he must divine all and provide himself of a Counter-evidence without knowing what the Evidence is against him If any Person advise or sollicite for him unless assigned by the Court by which he is Tried they are punishable he is Tried as soon as he comes into the Court and therefore of a Sollicitor there is no occasion or use if the Prisoner desires Councel upon a Point of Law as was done in my Lord Russell's Trial the Councel named must be ready to argue presently and the Court deliver their Judgment presently without any consideration The Prisoner indeed hath liberty to except to Thirty-five of the Jury peremptorily and as many more as he hath cause to except to but he must not know before hand who the Jury are but te King's Councel must have a Copy of them he must hear all the Witnesses produc'd to prove him Guilty together without answering each as he comes for that is breaking in upon the King's Evidence as it is called Though it hold many hours as it happened in most of the Trials he must not have any person to mind him what hath been sworn against him and forgotten by him to answer for if that were allowed the Prisoner perhaps may escape Hanging and that is against the King there is a Proclamation to call in all Persons to swear against him none is permitted to swear for him all the impertinent Evidence that can be given is permitted against him none for him as many Councel as can be hired is allowed to be against him none for him Let any person consider truly these Circumstances and it is a wonder how any person escapes it is downright tying a man's hands behind him and baiting him to death as in truth was practised in all these Cases The Trial of Ordeal of walking between hot Iron Barrs blindford which was abolished for the unreasonableness of it thought it had its saying for it too That God would lead the blind so as not to be burnt if he were innocent was a much more advantageous Trial for the suspected than what of late was practised where it was ten to one that the accused did not escape if any of these things have been legally practised I have nothing to say against it but I have never read any thing of Common
Parliament that raised the Rebellion and cut off the King's head To which the Prisoner replied That that Parliament had done nothing but what they had just cause for and that the Parliament which sate last at Westminster was of the same Opinion That he called the Prisoner Collonel in mockery who replyed Mock not I may be one in a little time Sir William Jennings swore as to the Fighting with Fitz-Gerald and the words about his bleeding For the Prisoner Hickman said he heard Haynes swear God damn him he cared not what he swore nor whom he swore against for it was his Trade to get Money by swearing Mrs. Oliver said Haynes writ a Letter in her Father's name unknown to her Father Mrs. Hall said she heard Haynes own that he was employed to put a Plot upon the Dissenting Protestants Mrs. Richards said she heard him say the same thing Whaley said Haynes stole a Silver Tankerd from him Lun said Haynes said the Parliament were a company of Rogues for not giving the King money but he would help the King to money enough out of the Phanaticks Estates Oates said Turbervile said a little before the Witnesses were sworn at the Old-baily that he was not a Witness against the Prisoner nor could give any Evidence against him And after he came from Oxford he sad he had been sworn before the Grand Jury against the Prisoner and said the Protestant Citizens had deserted him and God damn him he would not starve That John Smith said God damn him he would have Colledge's Blood. That he heard Dugdale say that he knew nothing against any Protestant in England and being taxt that he had gone against his Conscience in his Evidence he said it was long of Collonel Warcup for he could get no money else that he had given out that he had been poisoned whereas in truth it was a Clap. Blake said that Smith told him Haynes his Discovery was a Sham Plot a Meal-tub-Plot Bolron said Smith would have had him give Evidence against Sir John Brooks that Sir John should say there would be cutting of Throats at Oxford and that the Parliament-men went provided with four five six or ten men a-piece and that there was a Consult at Grantham wherein it was resolved that it was better to seize the King than to let him go whereas he knew of no such thing that he would have Balron to be a Witness against Colledge and told him what he should say lest they should disagree in their Evidence that he heard Haynes say he knew nothing of a Popish or Presbyterian Plot but if he were to be an Evidence he cared not what he swore but would swear any thing to get Money Mowbray said Smith tempted him to be a Witness against Colledge and was inquisitive to know what discourse passed between him the Lord Fairfax Sir John Hewly and Mr. Stern on the Road and said that if the Parliament would not give the King Money and stood on the Bill of Exclusion that was pretence enough to swear a design to seize the King at Oxford Everard said Smith told him he knew of no Presbyterian or Protestant Plot and said Justice Warcup would have perswaded him to swear against some Lords a Presbyterian Plot but he knew of none he said Haynes told him it was necessity and hard pay drove him to speak any thing against the Protestants and being questioned how his Testimony agreed with what he formerly said answered he would not say much to excuse himself his Wife was reduced to that Necessity that she begged at Rouse's door and meer necessity drove him to it and self preservation for the was brought in Guilty when he was taken up and was obliged to do something to save his Life and that it was a Judgment upon the King or People the Irish-mens swearing against them was justly fallen on them for outing the Irish of their Estates Parkhurst and Symons said they had seen at Colledge his House his Arms about the latter end of November Tates said Dugdale bespoke a Pistol of him for Colledge which he promised to give Colledge And upon Discourse sometimes after the Oxford Parliament Tates said Colledge was a very honest man and stood up for the good of the King and Government Tes said Dugdale I believe he does and I know nothing to the coutrary Deacon and Whitaker said they knew Colledge was bred a Protostant and went to Church and never to a Conventicle that they knew of and thought him an honest man. Neal Rimington Janner and Norris to the same purpose and Norris that Smith in company where was Speech that the Parliament-mens being agreed to go to Oxford said he hoped they would be well provided to go if they did go El. Hunt said a Porter in her Master's absence brought the Prints taken in Colledge's house eight weeks before and said Dugdale told her after her Master was in Prison he did not believe Colledge had any more hand in any Conspiracy against his Majesty than the Child unborn and he had as lieve have given an hundred pounds he had never spoke what he had and that he had nothing to say against her Master which would touch his Life Having summed up all the material part of the Evidence in the order it was given for or against the Prisoner let us see whether upon the whole an honest understanding Jury could with a good Conscience have given the Verdict the then Jury did or whether an upright Court could with a good Conscience have declared they were well satisfied in the Verdict given as all the four Judges in that case did though the Chief Justice North only spoke the works And though it is too late to Advantage the deceased yet it will do right to the Memory of the man to whose dexterous management on his Tryal many now alive owe the continuance of their lives to this Day it was not their Innocence protected the Lord Fairfax Sir John Brooks and many others before mentioined and many not named in the Tryal but Colledge's baffling that Crew of Witnesses and so plainly detecting their falsehood that the Kings Counsel never durst play them at any other person but the Earl of Shaftsbury as shall be shewn and failing there they were paid off and vanisht and never did more harm visibly what under-hand Practices they might be hereafter guilty of I know not Who could believe any one of those four Witnesses Dugdale Haynes Turbervile and Smith if it were for no other reason than the improbability of the thing that as Colledge said was it probable he should trust things of that nature with Papists who had broke their Faith with their own Party who could lay greater Obligations of secresie upon them than he was able to do That he a Protestant should trust people who had been employed to cut Protestants Throats And neither of them ever discovered any of the things they swore till after the Oxford Parliament though
most of them were pretended to be transacted and spoken before Who could believe Dugdale in any part of his Evidence against the Prisoner when Oates testified against him that he said he knew nothing against any Protestant in England And being taxt by Oates that he had gone against his Conscience in his Evidence against Colledge to the Grand Jury at London he said it was long of Collonel Warcup for he could get no Money else which was a plain Consession he had sworn wrong and Confession of the Cause for which he did it and of the person by whom he was induced to do it That he had given out that he was poisoned whereas his disease was a Clap which was an ill thing in him as it implyed a charge of poisoning him on other persons And when Elizabeth Hunt testified against him that he said after Colledge was in Prison that he did not believe Colledge had any more hand in any Conspiracy against the King than the Child unborn and that he had as lieve have given an 100 l. he had never spoken what he had and that he had nothing to say against Colledge which could touch his Life And when Yates testified him that when Yates said Colledge was an honest man and stood up for the good of the King and Government yes said Dugdale I believe he does and I know nothing to the contrary Who could believe Haynes in any part of his Evidence against the Prisoner when Mrs. Hall and Mrs. Richards said he owned he was employed to put a Plot upon the Dissenting Protestants when Whaley testified against him that he was a Thief and had stole Whaley Tankerd when Lun testified that Haynes said the Parliament were a Company of Rogues for not giving the King money but he would help the King to Money enough out of the Phanaticks Estates when Hickman testified against him he heard him say God damn him he cared not what he swore nor against whom he swore for 't was his Trade to get Money by swearing when Mrs. Oliver said that he had writ a Letter in her Fathers name without her Fathers knowledge When Balron testified against him that he said he knew nothing of a Popish or a Presbyterian Plot but if he were to be an Evidence he cared not what he swore but would swear any thing to get Money when Everard testified against him that he said Necessity and hard Pay drove him to say any thing against the Protestants and being taxt that his Evidence against Colledge agreed not with what he had formerly said he said he could not excuse it but his poverty and solf preservation drove him to it which was a plain Consession of the falshood of his Evidence and of the reason of it and added it was a Judgment upon the King or People the Irish-mens swearing against them for outing the Irish of their Estates which can have no other sence than he Irish-mens forswearing themselves against the English was a Judgment c. How could Turbervile be believed in any part of his Evidence against Colledge when Oates testified against him that he said a little before the Witnesses were sworn against Colledge at the Old-bayly that he was not a Witness against him nor could give any Evidence against him and yet asterwards at Oxon Turbervile told him he had sworn against Colledge to the Grand Jury and said the Protestant Citizens had deserted him and God damn him he would not starve which words I think need no explanation And lastly how could Smith be believed in any part of his Evidence against the Prisoner when it was testified against him by Blake that he said Haynes his discovery was a Sham-Plot a Meal-Tub-Plot The meaning of the words I think are well known That he would have had Bolron swear against Sir John Brooks the Lord Shaftesbury and Colledge things of which he knew nothing and told him what he should swear lest they should disagree in their Evidence Whe it was testified against him by Oates that he said God damn him he would have Colledge's Blood when it was testified against him by sMowbray that he tempted Mowbray to be a Witness against Colledge and Sir John Brooks and was very inquisitive to know what discourse he had with the Lord Fairfax Sir John Hewly and Mr. Stern on the Road to Oxon and said if the Parliament did not give the King Money and stood on the Bill of Exclusion that was pretence enough to swear a design to secure the King at Oxon when Everard and many others testified he said he knew of no Presbyterian or Protestant Plot Now if Colledge his Witnesses were credited it was impossible the King's Witnesses could be credited that was agreed by the Court to be true upon the Tryal the answer on the Tryal was that the King's Witnesses were on their Oaths the Prisoners were not which was a Reason but in words and not in sence And surely what Colledge said on that matter without any knowledge in the Law cannot be answered It is not fair dealing said he with a man for his life because the Witnesses against him upon their Oaths deny the things the Witnesses for him prove therefore the Witnesses against him must be believed and the Witnesses for him disbelieved when yet the Witnesses for him were ready on their Oaths to maintain what they said for him Nor is the Law so for taking the Law to be that a Witness for the Prisoner shall not be sworn which is only made good by practice the same Law that is to say practice is that a Witness without Oath for the Prisoner is of equal Credit with the Witness against him upon Oath and none can shew the contrary till of late days To give one Example of many where it was necessary for the Prisoner to produce a Witness to prove his Innocency and where the Witness for him was as much believed as the Witness against him There was a person whose name I do not remember was arraigned at the same time an Indictment of High Treason was endeavoured to be found against the Lord Shaftesbury for robbing another of Money and of an hired Horse of which likewise the person was robbed the robbing of the Money and an Horse was proved by himself and several others but that the Prisoner was the person that committed the Robbery none positively swore but the person robbed who likewise swore that the Horse on which the Prisoner was taken was the Horse taken from him against which the Prisoner proved by the person of whom the Horse was agreed to be hired that the Horse the Prisoner was taken upon was not the Horse he let to hire to the person robbed whereupon the Prisoner was acquitted and yet the Prisoner's Witness was not on his Oath and the person robbed was on his Oath which besides that it proves the Matter for which it is brought shews the Folly as well as injustice of the practice of imprisoning men without
letting them know for what and without confronting them with the Witnesses against them upon the Commitment For how could this man have known what Witnesses to produce unless he had known what in particular he was Indicted for and how could he have sent to such Witnesses unless he had had the liberty of sending to the persons who were to be Witnesses for him and it shews the folly of those sayings that a mans Innocence must defend him and that the Evidence against the Prisoner must be as clear as the Sun at noon day All will agree that the Prisoner in this case was innocent and yet that alone without producing a Witness to prove his innocence would have stood him but in little stead and how could he have known what sort of Evidence to have ready unless he knew what he was accused of I do not mean what Crime he was accused of as Treason Murder Robbery Thest or any other Crime but unless he knew the Person robbed when where and other Circumstances which say some is not to be permitted in Prosecutions of High Treason for if so then no man shall be hanged for High Treason unless there was as strong proof against him as is required in an Indictment of any other Capital Matter and that they say is not to be expected in Treason for no man will call two Witnesses to be Evidences of his Words or Actions being Overt Acts of his Design of High Treason The Objection is too foolish to be answered For it is neither better nor worse than that if a man shall not be hanged for Treason without Evidence he shall never be hanged for Treason for no Evidence and Evidence which the Law rejects is the same in Sense tho' different in words and as the intent of the mind is difficult to prove on part of the King so is the Prisoner's part of producing counter Evidence much more difficult and therefore the Law hath taken care by the Statute of Edward the 3 d. that the Intent shall be proved by an Overt Act and by the Statute of Edward the 6th that that Overt Act shall be proved by two Witnesses And therefore since the Law hath taken care that there shall be a stricter proof in High Treason than in any other Crime for the Judges to say a less proof may be admitted to convict one of High Treason than of any other Crime is very ridiculous unless they will at the same time say that the Parliament who made those Statutes were men of little understanding and not to be regarded And certainly it was a good Counter-Evidence which was given in behalf of the Prisoner by some Witnesses though slighted by the Court and not permitted by the Court to be given by others that there were great endeavours to set up Sham-Plots and charge the Protestants with them For let any one shew me a Reason why the Evidence of Sham-plots though they do not immediately concern the Prisoner is not as good Evidence for him as the Evidence of a Real Plot in which he was not concerned is against him The last was permitted to be given in Evidence against my Lord Russel Collonel Sidney and others tho the first was not permitted to many Witnesses in this Tryal and it was a material Objection which Colledge made That there was no proof of any Persons being concerned with him in the Design of seizing the King. It was an unadvised answer the Court gave that he alone might be so vain as to design it alone for if from thence an inference is made as was insinuated by the Court to the Jury that therefore he did alone design it it was an Evidence of his being a Mad-man not a Traytor had the Evidence been of the mischiefing the King by means which a single person is capable of using as Stabbing Shooting and the like the matter is not impossible but it being by means which it was impossible for a single person to execute it carries such disbelief with it that it is impossible to find a man in his Sences at the same time guilty of it And a man that is non compos mentis if my Lords Coke and Hales are to be believed cannot be guilty of High Treason within that Branch of the Statute Compassing and imagining c. It is true a mad man may be guilty of Treason in atempting the King's Person but for that he is no more said to be punished than Beasts of prey are when killed which are more properly said to be destroyed than punished for the publick good But if so good a Counter-proof in Colledge's Case was not made as ought to have been some allowances ought to be made for the Prisoner's ignorance of what he was accused of his usage and strict Imprisonment before his Tryal the ruffling him just before his Tryal in the manner before declared the depriving him of his Notes the giving an Evidence of many hours long against him before he was permitted to answer any part of it And the use of Pen Ink and paper was but of little advantage to him for a man that hath not been used to do it cannot take notes of any use And in truth he complained he had not taken notes of half said but relyed on the Court to do him Justice in summing up the Evidences which they promised to do but broke their words It must likewise be considered that the concern a man hath upon him when he is upon Tryal for his Life it is so far from fortifying that it weakens his Memory Besides the foul practice without any remorse put upon him and his Witnesses some of them imprisoned that he could not have them at the Tryal others so threatned that they durst not appear for him and the cry of the auditory against him and his Witnesses were mighty discouragements All these things being considered how could any understanding Jury take it on their Oaths That the Evidence against the Prisoner of a Design to feize the King c. was as clear as the Sun at noon days As for the Evidence which Mr. Masters gave if it were true it was no Evidence of Treason an Erroneous Opinion may make an Heretick but not a Traytor it is a very distant Consequence that because he affirmed that the Parliament in 40 had done nothing but what was just in respect of King Charles the First therefore the Prisoner was guilty of a Design against King Charles the Second besides that in all pronbability tho' Mr. Masters might inveigh against the Parliament Colledge might only justifie them by throwing the ill things done in that time upon the Papists as Colledge in his Defence says and Mr. Masters after much pumping recollected himself and said he thought the Prisoner said the Papists had a hand in those things which proved the truth of Colledge's Assertion As for the Evidence of Colledge's saying he might be a Collonel in time if he hoped for what he said it was no
Crime or proof of a Crime 't is no more than what every private Soldier hopes for and he himself had been one As for the Evidence of Atterbury Sawel and Stevens of their seising the Pictures admit they swore true it did not amount to the proof of the Treason in the Indictment or of any sort of Treason And yet if Colledge's Maid said true it looks as if the finders or some other person sent them to Colledge's House in order to find them there Of all sorts of Evidences the finding Papers in a persons possession is the weakest because no person can secure himself against designs upon him in that kind And after Dangerfield's Design upon Collonel Mansell and the Evidence in Fitzharris his Tryal that the Design of that Pamphlet was to convey Copies of it to some Members of Parliament's pockets and then seize them that piece of Evidence ought to have been spared till those and other practices of like kind had been forgotten The last Witness was Sir William Jennings of Colledge's saying he had lost the first blood in the Cause but it would not belong before more would be lost what was that more than that he thought more would be lost in the Cause which he interpreted the Protestant Cause Suppose he thought so without reason and was mistaken where was the Crime But if he thought so upon good reason and good reason he had to think so there was no pretence of a Crime in it I believe most men thought as Colledge did from the time of the business of Fitzharris and what imputation was it to him Why were not all the expressions he used in his Tryal as good Evidence against him as that saying For he then said it was an horrid Conspiracy to take away his Life and would not stop at him for it was against all the Protestants of England and the like which was his Opinion and after times shewed him a true Prophet One thing was very dishonestly insinuated that the Prisoner was a Papist which was only to incense the Jury against him and it had its effect whereas it was very plain that he was a Protestant tho' perhaps a Dissenter and therefore had not lately come to the publick Church and under that notion the Papists and some Protestants were contented that Dissenters should be punished as Papists yet if they could have proved him a Papist no doubt of it they would have done it for the destruction of the man was the design of the Prosecution and it mattered not for what Treason he was convicted so he was convicted and he himself gave a pretty sort of Evidence against himself if they could have proved him a Papist He proved and confessed he was Educated a Protestant and if they could have proved him reconciled to the Popish Religion which was Treason he helpt them a great deal in their proofs It was therefore very disingenious in the Chief Justice to reproach him at his Condemnation that he had not made that proof of his Religion as it was expected when his Religion was not the matter of which he was Indicted that was slily insinuated to exasperate and no proof pretended to be made of his being a Papist But he had more reason to complain of the injustice of the Court in summing up the Evidence who did it in such a manner that if they had been Counsel for the Prisoner as they pretended they would have been justly suspected to have taken a Fee of the other side to betray their Clyent For as Colledge readily said if the Chief Justice had looked on his Notes he would have found more Evidence against Turbervile and Dugdale than he had repeated And it was a lame excuse for the Chief Justice to say he referred it to the memory of the Jury for he could not remember more whenas I dare say after about thirteen hours Evidence the Jury remembred no more than that they were to find him Guilty The truth is upon hte whole what Colledge said was true they took away all helps from him for defending himself and therefore they had as good have condemned him without a Tryal Notwithstanding all which the courage of the Man never fainted but after he was condemned boldly asked when he was to be Executed To which the Lord Chief Justice replied it depended on the King's Pleasure but smoothly said in those Cases of High Treason they did not use to precipitate the Execution it should not be so sudden but that he should have notice to prepare himself And in truth he had from the eighteenth on which he was condemned to prepare himself to the one and thirtieth of August 1681. on which he was Executed a much longer time than was allowed may Lord Russel or Mr. Cornish and many others And the true reason of so long a Reprieve was to see how the Nation would digest the matter and to see whether the man by the terror of Death could be prevailed upon to become a Tool for to destroy other Innocents but when it was found that the people were quiet and that the Prisoner could not be prevailed upon to do an ill thing to save his life his Execution was ordered yet as a shew of mercy his Quarters were permitted to be buried a favour he slighted with saying that he cared not whether he was eaten up with Flyes or Worms The same favour was likewise shewed Fitzharris but the true reason of both was that they had a mind that the Tryals and pretended Crimes for which Fitzharris and Colledge were condemned should be forgotten which would not be so soon done if their Quarters were alwaies exposed to view But tho' all people were quiet yet there was great grumbling and most honest men were afraid and the constancy of Colledge at his Execution was such that it made the most violent against him relent REMARKS ON THE Earl of Shaftsbury's GRAND-JURY THE next Person questioned was the Earl of Shaftsbury against whom a Bill of High-Treason was preferred to the Grant Jury at the Sessions House on the 24th Day of November 1681 The Evidence was publickly given in Court and was this Mr. Blathwaite swore he found the Papers then produced in a Velvet Bag in the great Trunk which was taken by Mr. Gwnnye in the Lord Shaftsbury's House Mr. Gwynne swore All the Papers in the Velvet Bag when he delivered them to Mr. Blathwaite were taken by him in the Lord Shaftsbury's House Sir Leoline Jenkins swore the Paper produced was the Paper delivered him by Mr. Blathwaite and it was unaltered then the Paper was read the Effect of which was a project of an Association signed by no Person and whose Hand Writing it was none knew John Booth swore that he was engaged to Captain Wilkinson who pretended to have a Commission from the Lord Shaftsbury and several others to go for Carolina he was about that time introduced into the Earls acquaintance by the Captain where was a discourse about Carolina
pitch't on the one by a shameless Trick and the other by open Force were imposed on the City Having gained that point the Proceedings in the quo Warranto were much quicker then before and two Arguments only were permitted in it of each side the one in Hillary Term the other in Easter Term and so the Case was ripe for Judgment in Trinity Term following but must be and was ushered in with the Discovery of a pretended Plot which so amazed the Nation that tho' Judgment in the quo Warranto was given two days after the pretended Discovery no Body took any notice of it for several Months after it was given the Truth was no body durst mutter against it or question the Legality of it it was enough to have brought any Person into the Plot to have done it it would have been called flying in the Face of the Government questioning the Justice of the Nation and such like Cant. REMARKS ON THE Lord Russel's Tryal THE Plot being noised abroad the Persons before-hand resolved on were seized on and the Lord Russel and others were clapt up close Prisoners The Lord Russel having been for some sew Weeks a close Prisoner in the Tower was the 13th of July 1683. brought to the Old-Baily and arraigned for High-Treason in designing to raise a Rebellion c. and the same Morning was tryed he desired he might not be tryed that day for he had some Witnesses which would not be in Town till Night which being denied then he desired that the Tryal might be put off till the Afternoon which was likewise denied he asked whether he might not make used of any Papers he had which was allowed he desired he might have a Copy of hte Pannel of the Jury that was to pass on him he was told he had a Coppy delivered to his Servant some days before The Jury being called he challenged the Fore-man for being no Free-holder in London to argue which Councel were assigned him who presently came into Court and having excused their not speaking more to the Matter for want of time to consider of it argued that it was a good Challenge because at Common Law every Jury-man ought to be a Free-holder that the Stature of 2. Hen. 5. provides none shall be a Jury-man in capital Matters but a Free-holder of forty Shillings yearly that there is no difference between a City and County and a County at large at Common Law nor by that Statute 7. Hen. 7. which takes away the Challenge of no Free-hold in the Ward in London shews it was a good Challenge in London before that time the 4th of Henry the 8th which likewise takes away the Challenge of no Free-hold in London shews it was a good Challenge before that time and the same was inferred from the 23d of Henry the 8th but though of those Statutes extended to Treason yet if it was a good Challenge in Treason in London before those Statutes it was so still The Kings Council said at Common Law it was not necessary that a Jury-man in Treason should be a Free-holder and though Treason is within the 2d Henry the 5th yet be the Statute of Queen Mary the Statute of the 2d of Henry the 5th as to Treason was repealed that it was a Point they would not have lost to the City of London that if the Prisoner should peremptorily challenge thirty five as by Law he might there would scarce be found thirty five more Free-holders in the City the Inheritance of the City being mostly in the Nobility and Corporations and consequently Treasons may be committed in the City and there would not be enough to try it and in the Case of the City of Worcester in a Quo Warranto brought against them that Challenge was taken and over-ruled by the Kings-Bench by Advice of the Judges of the Common-Pleas that the Venire mentions no Free-hold But only Probos Legales Homines de Vicineto Then the Chief Justice asked Mr. Polexfen whether he did find in any Judgment in Treason at Common Law that no Free-hold was a Challenge who answered he did not whereupon the Chief Justice replied that then he did not speak ad idem for he took it in case of Treason and Felony at Common Law it was no Challenge and the Statute of Henry the 5th in that point was introductive of a new Law and that Statute as to Treason was repealed by that of Queen Mary and that a Case cannot be found of such a Challenge in Treason ‑ since the Statute of Queen Mary but it was a business of great Importance The Chief Baron was of the same Opinion for the same reason Justice Windham and Justice Jones were of the same Opinion the last added the rather because the Prisoner is allowed to challenge thirty five peremptorily and Justice Charlton was of the same Opinion and the rather because no President had been offered of such a Challenge before Justice Levins was of the same Opinion for the same Reasons Justice Street was of the same Opinion for the same Reasons and thought they had been very nice when the Life of the King lay at stake and all the Customs and Priviledges of the City of London seemed to be levelled at in that Point Justice Withins was of the same Opinion Then the Chief Justice told the Prisoner the Court over-ruled his Challenge but that he had no Hardship put upon him for the Reason of Law for Free-holders was that no slight Persons should be put upon the Jury but in his Case there were Persous of Quality and Substance put upon the Jury which was the same in substance with a Jury of Free-holders These being the Reasons of over-ruling that Challenge they may be ranked under these Heads there was no such Challenge at Common Law if there were yet not in Treason And if it were a Challenge in Treason where the Tryal is in a County at large yet not where it is in a City and County and if in a City and County yet not in London The assigning many Reasons for one and the same thing makes the Judgment justly suspected for if when two Witnesses to one Fact varying in the Circumstances of it are justly suspected in point of Truth several Reasons for the same Judgment makes the Knowledge or Integrity of the Judges justly suspected every Case in Law as my Lords Coke and Hales say standing upon its own particular Reason and therefore when many Reasons are given it looks as if the Judges were hunting about for Reasons to make good what beforehand they are resolved to vent for Law rather than that their Judgment is the Result of those Reasons But to consider them singly I do indeed think there is no express Resolution that at Common Law in any Case of any Capital Matter it was a good Challenge except the Case of Fitz-Harris already taken notice of but in Civil Matters my Lord Coke is express that at Common Law it was
time he desired as in this Case it did Fitz-Harris said his Witnesses were in Holland and tho he named no Persons yet his Tryal was put off to the next Term my Lord Russel said his Witnesses could not be in Town till that Night yet the respite till next day was denyed all Persons agreed that there was some extraordinary Reason for it and before the Tryal was over the Riddle was out My Lord of Essex was killed or to be killed that Morning as to this Matter it is not material whether by his own or anothers Hand they were sensible the Evidence against my Lord Russel was very defective and that accident was to help it out but that would not avail unless it were a surprising Matter upon the Jury should the Jury have had a days or but a Mornings time to consider of it People might have been talking with the Jury it was very material to ask what influence that accident would have on my Lord Russels Trial whether it was any Evidence against him they might have been told what was true that no Person killed was in Law supposed to have killed himself till a Coroners Enquest had sate upon the view of his Body and found it so and if it had been so found yet even that had been no Evidence against another because the Coroners Enquest never found the reason why a Man killed himself and if they should find the reason yet even that was no Evidence against another because that other was never called before the Coroners Enquest to make his defence they might have been told a great many Circumstances of the Improbability of the killing himself they might have observed that the Kings Councel was so far sensible that it was no Evidence against my Lord Russel that they never attempted to prove the Earl of Essex was dead or killed himself it was only slyly insinuated together with the reason of it which had its Effect if the report be true of some of the Jurymen's saying it went farther with them than all the Evidence of the Witnesses produced and if that be true there was a reason tho not a just one for speeding that Tryal beyond the ordinary Methods of Trials at the Old Baily But tho my Lord Russel had seemingly less favour in that Matter than any other Person even than Colledge who had the respite of two or three hours between his Arraignment and Trial tho that was not in Favour to Colledge but only to examine his Papers which they took from him and instruct their Witnesses accordingly yet in other things he had more favour or justice done him his Papers were not taken from him it was agreed to be his Right to use them without questioning from whom he had them what they were or the like as in Colledge's Case was done he had a Copy of the Pannel of the Jury even before his Arraignment given him and the Chief Justice said it was never denyed in case of Life that he knew of which was denyed Col ledge before he pleaded because as then was pretended there was no Issue joyned till Plea pleaded after which the Venire is awarded tho' all Mén know That the Sheriff summons the Jury before the Arraignment and even after Issue joyned Colledge was denyed a Copy of the Pannel only he was told he should look every Jury-man in the Face before he was sworn and as far as the Looks of a Man betrays him he should be satisfyed whether he was honest or not which is an ill way of judging for I think the Person that gave that Rule would have deceived any Man by his Countenance who had known his Practices But say the Attorney General in my Lord Russel's Case it was matter of Favour and not of Right therefore no Injustice to Colledge I confess of all Men which ever came to the Bar he hath laid down the most Rules which depend totally upon the Authority of his own Saying In Colledge's Case he affirmed that the King's Witnesses ought not to be kept out of the hearing of each other when they gave their Evidence a method used in Civil Matters the reason of which is well known and none can shew any Law or Reason why it should not be used in capital Matters with as much Reason and Authority as what now said First I do affirm there is no Authority in Law which says a Prisoner shall not Have a Copy of the Pannel In the next place I do affirm that after a Jury struck in a civil Matter each Party ought to have a Copy of the Pannel in order to provide himself of a challenge if there be any cause In the last Place I do affirm that by Law more Favour is allowed a Defendant in a Capital Matter to defend himself then in a civil and if these propositions be true let any Person if he can make out the Law or Reason of the above assertions Of a like stamp were the sayings when my Lord desired a Copy of the Matter of Fact laid against him the Attorney said he had notice of it for questions were put to him about it and he was with his Lordship himself and examined him upon those questions which was a Favour to him that he might know what the Matter was he was accused of I do not affirm that ever it was practised to give the Prisoner a Note of the Fact to be given in Evidence against him proving Treason or that it was ever densed till then nor do I know of any Law pro or con in the Case but if one would judge by reason or practise in paralel Cases I think it ought not to be denyed I know not at present of more than two Sorts of general Indictments and those are of Treason and Barretry the last is a general Indictment for stirring up Suits without reason and without mentioning any Suit in particular and therefore if by the Rule of Court the Defendant was no helpt which obliges the Prosecutor to give the Defendant some reasonable time before the Tryal a Note of what Suits he intends to give in Evidence against him it was impossible for the Defendant to escape if it had been his misfortune to have had five or six Suits For I never yet saw a Witness produced against the Indicted but he would swear the indicted brought an Action against him without reason and yet I have often seen that the Indicted having had notice that that was one of the Suits he was intended to be charged with hath been able to prove that he had good or at least probable Cause of Suit which he could ' not have done if he had not notice and in Treasons for designing to kill the King there having been so many Interpretations of Facts tending that way that it is almost impossible for an Innocent to defend himself unless he had notice of the Fact intended to be insisted on at the Tryal There are yet some expressions which mightily puzle
me the Kings Council said in the argument of the challenge that they would not have the point of being a Jury-man tho not a Free-holder lost to the City of London and one of the Judge said 't was the Priviledges of the City were struck at in that point if by those expressions it is meant that it is for the benefit of the publick that there should be no failure of Justice I argree to it but if it be meant that it is for the benefit of the Citizens to be Jurymen I deny it and I think nothing shews it plainer than that it is a Priviledge that a Citizen shall not be drawn out of the City to be a Jury-man that a Nobleman shall not be on a Jury that it is a Matter of Prerogative in the King and favour to a particular Person to grant him a Charter of exemption from being on a Jury so that if I consider the Law I know what is meant by those expressions if I consider allowed Practice it is true a Jury-man may earn his Eight Pence for a Tryal but that is too inconsiderable pay for Persons of substance as the Jury-men in this case were said to be fond of the employ or to account it a Priviledge but even that was but in civil Mattres in criminal Matters not Capital the Jury were heretofore paid if they acquitted the Defendant but not if they found him Guilty though of late it hath been Practised to give them more and treat them higher if they Convicted the Defendant than if they acquitted him but in Capital Matters as the Case in question was it was never allowed or at least owned to pay the Jury be the Verdict which way it would having spoken to the Preliminaries I proceed to the Tryal wherein Coll. Rumsey was first produced he said he was sent by my Lord Shaftsbury about the end of October or beginning of November who told him he should meet at one Sheppards the Duke of Monmouth Lord Russel Lord Gray Sir Tho. Armstrong and Mr. Ferguson to know of them what resolution they were come to about the Rising of Taunton Sheppard carryed him where they were and Answer was made Mr. Trenchard had failed them and there would be no more done in the Matter at that time thereupon the Lord Shaftsbury took a Resolution to be gone Mr. Ferguson spoken most of the Message and he thought the Lord Gray spoke something to the same purpose he did not know how often he had been at that House he was there more than once or else he heard Mr. Ferguson make a Report of another Meeting to the Lord Shaftsbury my Lord Russel was in the room and that was all they said at that time that he remembred he was not there above a quarter of an hour there was some Discourse about seeing in what posture the Guards at the Mews and Savoy were in by all the company to know how to surprise them if the Rising had gone on Sir Tho. Armstrong and Mr. Ferguson began all debated it he thought the Duke of Monmouth the Lord Gray and Sir Tho. Armstrong were sent to view them the Rising was appointed to be the 19th of November he was spoke to by the Lord Shafsbury to go to Bristol if the Rising had gon on but in what quality was not determined the Lord Russel agreed to the Debate being asked if my Lord Russel said any thing there and what He answered my Lord Russel spoke about the Rising at Taunton being asked what my Lord Russel said he answered my Lord Russel discoursed of the Rising being asked if my Lord gave his Consent to the Rising he said he did The next witness was Mr. Sheppard who said in October last Mr. Ferguson came to him in the Duke Monmouth's Name and desired the Conveniency of his House for himself and some Persons of Quality which he granted In the Evening the Duke of Monmouth Lord Gray Lord Russel Sir Thomas Armstrong Coll. Rumsey and Mr. Ferguson came not altogether but the one after the other Sir Thomas Armstrong desired that none of his Servants might come up and that they might be private so what they wanted he went down for a Bottle of Wine or so the substance of the discourse was to surprize the Kigns Guards and in order to to it th Duke of Monmouth the Lord Gray and Sir Thomas Armstrong went one Night as ke remembred to the Mewes or thereabouts to see the Guards and the next time they came to his House he heard Sir Thomas Armstrong say the Guards were very remiss in their places and not like Souldiers and the thing was feasible if they had but strength to do it he remembred but two Meetings there they came in the Evening he heard nor saw any Coaches at his Door when they came in as he remembred the Lord Russel was both times there he had no business with the Lord Russel nor the Lord Russel with him at that time but since he had he did not remember Coll. Rumsey discourst the Lord Russel about any private business nor remembred any farther Discourse he remembred no Writings nor Papers read at that time upon Recollection he remembred one Paper read by Mr. Ferguson in the nature of a Declaration setting forth the Greivances of the Nation the Particulars he could not tell It was a pretty large Paper it was shewed for Approbation as he supposed when to be set out was no discoursed 't was shewed to Sir Thomas Armstrong and as he remembred the Duke of Monmouth was present and he thought Coll. Rumsey was present Coll. Rumsey said he was not present it was done before he came Mr. Sheppard went on and said the design of the Paper was in order to a rising as he supposed by the Purpose of it he would not say the Lord Russel was there when that Paper was read but he was there when the talk was about seising the Guards he could not be positive as to the times of those Meetings but it was when the Lord Shaftsbury was absent from his House he absented about Michaelmas Day he could not be positive that my Lord Russel was at both Meetings he thought he was at both he was sure he was at one the last Witness was the Lord Howard he said he brought Captain Walcot acquainted with the Lord Shaftsbury and upon his account Captain Walcot soon gained a confidence with the Lord Shaftsbury Walcot told him the People were sensible all their Interest was going to be lost by the violence offered to the City in the Election of Sheriffs and that they were resolved to take some Course to put a stop to it that there was several meetings about it and some Persons begun to prepare to Act that some had good Horses and kept them in private Stables and he resolved to be one in it he having an Estate in Ireland he dispatch't his Son thither and ordered his Son to turn his Stock into Mony the Son went
say they made preparations for a thing they had laid aside before and it is plain Sheppard speaks of the same time for both agree Rumsey was at that Meeting tho they do not agree how soon he came besides how could Sheppard speak positively of the discourses or of the Design of it when he owns he did not hear all their discourse and gives a very good reason for it for he said he went several times down to fetch Wine Sugar and Nutmeg and did not know what was said in his absence he said he heard nothing about a Rising nor heard any further discourse but on recollection he heard something about a Declaration of Grievances in order to a Rising as he supposed the Particulars he could not tell now what sort of Evidence was that in all Civil Matters a Witness shall not be permitted to give Evidence of the content of a Deed or Writing without producing the Deed or Writing if self or a true Copy of it and upon very good reason for he may make an untrue Construction of it I remember a Witness who swore to the content of a Deed of Intail and being asked whether he knew a Deed of Intail and by what he knew the Deed he spoke of to be a Deed of Intail answered he knew a tailed Deed very well and he knew the Deed he spoke of to be a tailed Deed because it had a Tail half as long as his Arm meaning the Label of the Deed and if this be the Practice and the Reason of the Practice in Civil Matters shew me any Authority or Reason any thing should be permitted to be given in Evidence in Treason which is not permitted to be given in Evidence in the Tryal of any Civil Matter If you say as Justice Levins said in a like Case in Colledge's Trial that it would be the difficultest thing in the World to prove Treason against a Man if the Law were not so and the King would in no sort be safe of the other Hand I say as Colledge there said if the Law should be so no private Person is safe and if there be mischiefs of either Hand the Law is and must be Judge which hath taken care tho to no purpose because it hath not been observed that there shall be a stricter Proof in Treason than in any Civil Matter or in any other Crime and how the Judges come to permit that loose Evidence in Treason to be given which of late Years they have done no just or honest Account can be given The last material Witness against my Lord Russel was my Lord Howard as for Atterbury's Evidence it ought not to have been permitted to be given as shall be shewn nor was it material to no part of whose Evidence any Credit ought to be given even by his own Confession he was surely in the right when he said that the Religion of an Oath is not tyed to a place and I 'le add nor to a Form but receives its Obligation from the Appeal is therein made to God and therefore if he said tho I own he was not bound to say it to the Earl of Bedford Mr. Howard and Dr. Burnet what was testified against him he ought not to be believed in any part of his Evidence did he say to my Lord Bedford when unsent for and unasked for ought appears after my Lord Russel was clapt into the Tower he said his Son could never be in any such Plot as that or suspect for it and that he knew nothing against him or any body ehe of such a barbarous Design and yet he knew if he swore true that my Lord Russel was Guilty of such a barbarous Design that nothing but the Lord Howard's Duty to God the King and the Country could prevail with him to give it in Evidence against a Person for whom be had so great an Affection as he had for my Lord Russel how was it consistent with the truth of his Evidence what he said to Mr. Howard that he knew nothing of any Mans being concerned in that business and particularly of my Lord Russel whom he highly Commended and said be thought the Lord Russel unjustly Suffered or with what he said to Dr. Burner with Hands and Eyes lift up to Heaven which is as much an Appeal to God as may be that he knew nothing of any Plot nor believed any it was an idle Evasion to say when he spoke of my Lord Russel he meant my Lord Russel was not Guilty of the Design of Murthering the King for which that Man as he said was Committed meaning Walcot the Lord Russel or any other Person for he is still at liberty to explain himself and I am apt to think they were all Committed by Warrants of the same Form. I know not how dextrous he is at paring an Apple but he must be an Excellent Logician that can reconcile the truth of his Evidence and Sayings the Truth is that a Man that hath those Niceties in his Head ought to have no Credit for no Man knows whether he understands what he says aright and I am apt to think that his Lordship can shew that he did not intend what he said at my Lord Russels Tryal in the Sence it was understood by the Court or Jury to say that he was to outface the thing for himself and his Party was as vain for besides that I think he was of no Party because as my Lord Russel said he had the luck to be trusted by none where was the Sence of making those Protestations to Persons who could do him no good and would do him no harm both which my Lord Pemherton could and therefore 't was not alike It is true the Attorney General Commends the Lord Howard as a Person of great Credit amongst the Party and insinuates the Lord Gray was left out of the Cabal for his Immorality and the Lord Howarch was taken in his place but to pass from the General of his Evidence to the Particulars of it for about two Leaves in the Print of it 5 it is a discourse between my Lord Shaftsbury and him wherein he makes my Lord Shaftsbury have a wondrous Confidence in him and discovers all the Design to him and what number of Men he had at Command but who they were or what they were was never yet discovered and yet the Lord Howard had not at that time been concerned in the Matter nor did then assent he very prudently was resolved to see whether it was likely to take Effect or not before he would enter on it it was indeed a Matter of great wonder to those who knew my Lord Shaftsbury and knew what Opinion he had of the Lord Howard from the time the Lord Shaftsbury discovered that the Lord Howard frequented the Dutchess of Portsmouth which was before Fitz-Harri his Tryal tho after that Tryal the Matter was publickly owned which was before suspected by most known to the Lord Shastsbury that he should so
readily trust the Lord Howard with the Secret who was unconcerned in the management before as he says himself and yet secreted himself from the Duke of Monmouth and my Lord Russel who were equally Guilty if what was sworn was true I cannot but observe that in all the time of the Lord Shaftsbury the Lord Howard was no otherwise concerned in the pretended Design but in raising difficulties and being in great fear least there should be a Rising or an Attempt upon the Kings Person and if he said true he was he Man that put of the intended Risings and likewise the intended Designs on the Kings Person in so much that I think he was so far from standing in need of a Pardon for Treason that he deserved a considerable Reward if it were for nothing else than for his fearing the design was discover'd By the Proclamation against Bonefires which as he said put off the Rising intended to be the 17th of November and yet he and others being afraid the middle of January they erected themselves into a Cabal of Six Persons of which there is but one Person in all his Narrative he pretends to have spoken to about that Matter before which is the Duke of Monmouth and but one more he pretends even by hearsay to be concerned in it before which is my Lord Russel and how improbable therefore was it that those Six Persons should as it were on sight put themselves upon such a dangerous design especially considering the reason he gives for it which was their Fears that what had been transacted was or might be discovered this likewise is observable that from the 30th of September the time the Sheriffs entred upon their Office to the 17th of November following he is very exact as to the time of each Matter when there was no Person could contradict him for my Lord Shaftsbury was dead Walcot was convicted and the Duke of Monmouth was gone who are all the Persons mentioned to be concerned in that time yet when he comes to speak of the matter in which my Lord Russel was concerned then be says it was about the middle of January about ten days after about six weeksafter about three weeks and five weeks for had he been precise in the times he might have been disproved in the Meetings he gave Evidence of and it is much his Memory was so very good as to the former times to be so very precise in them as he was and so very defective in the latter times and yet those times do not make up the space between the middle of January and the time of the Tryal by many weeks unless you will give large allowances to the word about an Exception which was taken to Mowbray's Evidence tho' he rectifyed it by his account in his Almanac but it would not be admitted tho' Colledge very sensibly desired of the Court for Justice sake to look on the Almanac to see whether it was newly writ as if done for that purpose Besides the Improbability if such a thing was in hand as the Lord Howard pretended for him to run into the Country and then to the Bath when the matter was just come to a Crisis as it were shews him if swore true rather a Madman than a Traitor But the Usage of the King's Council and the Court toward the Prisoner was very unjust and unfair they permitted the Lord Howard to go on with a long story of him and my Lord Shaftsbury at which when my Lord Russel took Exceptions the Chief Justice it is true said it was no Evidence yet the Attorney General bidding him go on in the Method of time he went on where he left of intermixing Stories of Designs and of Attempts by other Persons upon the Kings Person to exasperate the Jury as my Lord Russel said rightly against him a thing which no Councel durst have done and no Court would have suffered in any other Case nor even in that would the Court or Councel suffer it for the Prisoner how was my Lord Anglesey checkt when he began to tell what my Lady Chaworth said and Mr. Edward Howard when he did not speak of his own knowledg how unjust was it for the King's Council to repeat all the Evidence the Lord Howard gave when they summ'd it up even that which the Court told them before was not Evidence how unjust was the insinuating of the Death of my Lord of Essex as Evidence against my Lord Russel and why did not the Court in Summing up the Evidence take notice of the Liberties the Witnesses and Council had taken and have told them what was not Exidence No other reason can be given than what Colledge said at his Tryal upon his Observation of Fitz. Harris's business and his own That the Matter was not to stop at him REMARKS ON Col. Sidney's TRYAL THE Lord Russel being Executed and the same day what was called his Speech being published then which nothing of Print was more eagerly accepted or sought after which shewed the Inclination of People there was some respite for quieting the minds of the People but it was not to stop there as Colledge said and therefore Col Sidney who was talk'd to Death under the Notion of a Common-wealths man was the 17th of November 1683. brought to Westminster to be arraigned on an Indictment of High-Treason the Indictment at the time he came to the Hall was so far from being found by the Grand Jury that it was not so much as presented to them but the Kings Council who had packt the Jury knew well enough that it would be accepted that is found upon sight by the Jury without any consideration which was accordingly done and Col. Sidney thereupon arraigned The Indictment was for designing to depose the King and to perswade the Kings Subjects to rebel and that he did write a certain Libel wherein it was contained that he meaning King Charles the Second is subject to the Law of God as he is a Man to the People who made him such as a King To which Indictment he would have put in some exceptions exprest in a Parchment in his Hand but was told by the Court he must either plead or demurr and upon no other Terms Exceptions could or ought to be admitted after which he pleaded not Guilty The 21th of November he was tryed at which time he insisted to have a Copy of his Indictment as he had done when he was arraigned but was both times denyed The first Witness against the Prisoner was Mr. West against whom Col. Sidney objected because he was not pardoned but it was answered by the Court that he was a good Witness in my Lord Russels Tryal and therefore should be in that then Col. Sidney desired Mr. West might speak nothing but what be knew of Col. Sidney but was answered by the Court he might give Evidence of a Plot in general though Col. Sidney not concerned in it and it was called Sir William Jones's Law
then Mr. West went on and gave Evidence of what Col. Rumsey Mr. Nelthorp and Mr. Ferguson told him of Col. Sidney but of his own Knowledge he could not say any thing of the Prisoner Rumsey gave a like Evidence he had done in my Lord Russel's Tryal with an Addition of what Mr. West and Mr. Goodenough told him Keeling gave evidence of what Goodenough told him all which the Court agreed was no Evidence against the Prisoner Then the Lord Howard gave the like Evidence from the niddle of January to that time as he had done in the Lord Russel's Tryal saving that the said the Earl of Salisbury was brought into the Cabal who was not mentioned before and save that be said the meeting at my Lord Russel's was about a Fortnight or three Weeks after the meeting at Mr. Hampdens whereas in my Lord Russel's Tryal he says it was about ten days after the meeting at Mr. Hampden's House and here he makes two notable Speeches for Mr. Hampden at the opening of the Consult both which he had forgotten at my Lord Russel's Tryal nor could remember at Mr. Hampden's Tryal though in the last he was lead by a great many Questions to put him in mind of them After his Evidence given Col. Sidney was asked whether he would ask the Witness any Questions who answered he had no Questions to ask him whereupon the Attorney General said silence You know the Proverb The Record of the Lord Russel's Conviction and Attainder was given in Evidence Sir Andrem Foster swore Sir John Cockrant and the two Campbells came to London Sir Phillip Floyd proved the seizing of some Papers in the Prisoners House and he did believe the Papers shewn in Court to be some of them Sheppard Cary and Cook swore the Writing produced was like the Prisoners Hand writing the Attorney General desired some part of the Writing should be read the Prisoner desired all of it might be read but was answered by the Court that the Attorney must have what Part of it he would to be read and afterwards the Prisoner should have what Part of it he would should be read but he persisted to desire all of it should be read then the Writing was read which wad plainly an Answer to a Book but what Book was not mentioned in which the Right of the People was asserted The Earl of Anglesey gave the same Evidence for the Prisoner of the Lord Howard's speaking of my Lord Russel and the Plot as he had done in my Lord Russel's Tryal The Earl of Clare said that the Lord Howard after Col. Sidney's Imprisonment said if he was questioned again he would never plead the quickest Dispatch was the best he was sure they would have his Life and speaking of the Primate of Armah's Perphesie said the Prosecution was begun and he believed it would be very sharp but hoped it would be short and said he thought Col. Sidney as innocent as any man breathing gave him great Encomiums and bemoaned his Misfortune and as for Col. Sidney's Papers he said he was sure they could make nothing of them Mr. Phillip Howard said the Lord Howard said it was a Sham-Plot Dr. Burnet gave the same Evidence as he did in my Lord Russel's Tryal Mr. Ducon gave Evidence that the Lord Howard said he knew nothing of Col. Sidney's being in any Plot. The Lord Paget gave Evidence to the same purpose Mr. Edward Howard gave Evidence to the same purpose Tracy and Penwick gave Evidence to the same purpose Mr. Blake testified that the Lord Howard said he had not his Pardon and could not ascribe it to any other reason than that he must not have his Pardon till the Drudgery of Swearing was over Now to review that hath been said it is strange to see what a Progress was made in the Resolutions of Points of Law to take away a mans Life to say in Col. Sidney's Words as if the Court and Council thought it their Duty to take away a mans Life any how Mr. West and several others are admitted to give Evidence by Hear-say against the Prisoner and their Evidence summed up and urged as Evidence to the Jury and the Reason given for it was that he was admitted a good Witness of a like matter in the Lord Russels Tryal which besides that it was not true for he was rejected in that Tryal as it appears in the Print yet if he had been admitted it was of no Authority as Col. Sidney said because perhaps he was not excepted to of a like Stamp is the Evidence of the Conviction of the Lord Russel though I agree the Lord Russel's Conviction was as good Evidence against Col. Sidney as the Earl of Essex's Murther was against my Lord Russel and no better the same may be said of Rumsey Keeling Foster and Atterbury's Evidence Against the Lord Howard's Evidence there was the same Objections as in the Lord Russel's Tryal with the Addition of several other Persons testifying that he said he knew not or believed any thing of the matter and that he could not have his Pardon till he swore others out of their Lives which in truth was the Sense of his Expressions The Kings Council indeed had thought of something since the Tryal of my Lord Russul to palliate the matter of the Lord Howard's Sayings for they lean'd hard upon his Reputation and lookt as if he would perjure himself at the expence of some Persons Lives as his Words are in the Lord Russels Tryal would you say they have had him confest the matter to those Persons to whom he had denyed it I think there is a difference between confessing and denying who asked him the Question What did it avail him to deny it to the Persons testifying against him and therefore when he voluntarily said a thing untrue unasked not provoked or compelled to do it and which could do him no good it was good Evidence of his untruth and that no Credit ought to be given to what he swore As for the last part of the Evidence which was about the Writing both the Indictment and the Evidence was defective As for the Evidence if the Subject Matter of the Writing had been Evidence of Treason the Indictment ought to have exprest that he published it which the Indictment in this Case did not and upon good reason which was that the Jury might be put in mind that the Publishing of it was necessary to make it known whereas they very well knew that the Evidence would not nor did come up to it This was the first Indictment of High-Treason upon which any man lost his Life for writing any thing without publishing it for in Fitz-Harris's Indictment he was charged with publishing his Libel and so in all other Indictments for Writing and upon good reason for this being made an overt Act of Treason it must be an Evidence of a Design to kill or depose the King or the like and as the Consequence of what in the
off his Tryal and it was referred to the Judges he did not know whether he was committed for High-Treason against the then present or the former King and he had a material Witness an hundred an forty Miles off but was told by the Court they had no Power to put off his Tryal it is true they said the Lord Russel's Tryal was put off to the Afternoon which was not true but that was a Favour which could not be challenged by another person as a Right he complained he had not a Copy of the Pannel but was answered it was not his Right to have it then the Attorney said he had not deserved so well of the Government as to have his Tryal delayed and therefore he was presently tryed Rumsey swore that about the latter end of October or beginning of November the Earl of Shaftsbury desired him to go to Mr. Sheppard's House where was a Meeting of the Duke of Monmouth Lord Russel Lord Gray Sir Thomas Armstrong Mr. Ferguson and Mr. Sheppard he came late and they were just on going away he delivered his Message and they told him that Mr. Trenchard had disappointed them he had not been there above a quarter of an hour but Mr. Sheppard was called down and brought up Mr. Cornish and told them Mr. Cornish was come who came into the Room and excused his not coming sooner and that he could not stay for he was to meet about the Charter whereupon Mr. Ferguson opened his Bosom and under his Stomacher pulled out a Paper they told Mr. Cornish they had had it read and desired to read it to him Mr. Ferguson read it Mr. Sheppard held the Candle while it was reading and afterwards they asked Mr. Cornish how he liked it who said he liked it very well he remembred two Points in it very well the one was for Liberty of Conscience the other was that all who would assist in that Insurrection which had Church or Kings-Lands in the late War should have them restored to them he did not hear all the Paper and observed only these two Points it was a Declaration on a Rising and when the Rising was to have been it was to have been dispersed abroad there was a Rising intended at that time and Mr. Cornish said he lik'd the Declaration and what poor Interest he had he would joyn with it he had great Dealings with Mr. Cornish and Mr. Cornish was a very honest Man it was out of compassion he had not accused Mr. Cornish before Mr. Goodenough said there was a Design to rise in London and for that purpose to divide the City into twenty parts and to raise five hundred Men out of each part to take the Tower and to drive the Guards out of Town before that agreed on he being by chance at Mr. Cornsh's House said the Law will not defend us some other way was to be thought on Mr. Cornish said he wondred the City was so unready and the Country so ready Mr. Goodenough replyed there is something thought of to be done here but in the first place the Tower must be seized where the Magazine is Mr. Cornish paused a little and said I will do what good I can or what I can or to that purpose he said He afterwards met Mr. Cornish on the Exchange who asked him how Affairs went and this was in Easter Term 1683. He had some Matters with Mr. Cornish about managing the Riot which was brought against him Mr. Cornish and others he came to Mr. Cornish's House about the Business of the Riot and no Person was by at the Discourse Mr. Gospright testified for Mr. Cornish that he opposed Mr. Goodenough's being Under-Sheriff and said he would not trust an Hair of his Head with him he was an ill Man obnoxious to the Government and had done ill things and he would not trust his Estate and Reputation in the Hands of such an Under-Sheriff and he believed Mr. Goodenough and Mr. Cornish were never reconciled Mr. Love Mr. Jekil and Sir William Turner testified to the same purpose Mr. Lane spoke out of the Printed Tryal of my Lord Russel and said Rumsey in that Tryal said he did not hear the Declaration read for it was read before he came Dr. Calamy said Mr. Cornish did often come to Church and receive the Sacrament Mr. Sheppard said he was Subpaend d by the King and by Mr. Cornish the Night before and that Mr. Cornish his Son was with him the Afternoon of the day before who prest him to be at the Tryal the next day that there were Accounts depending between him and Mr. Cornish whereon there was about one or two hundred Pounds due to Mr. Cornish and Mr. Cornish's Subpena was served first upon him At one of those Meetings at his House Mr. Cornish came to speak a few words with the Duke of Monmouth or some other he could not be positive in that it was so many Years ago he did not stay above half a quarter of an hour in the House Sheppard came up Stairs and went out with Mr. Cornish and there was not one word read nor no Paper seen while Mr. Cornish was there he remembred there was a Declaration read Ferguson pulled it out of his Sho he could not tell whether Mr. Cornish was at his House the Night the Declaration was read but he was positive no Paper was read while Mr. Cornish was there for Mr. Cornish was not look'd on to be one of the Company he did not know who Mr. Cornish came to speak with when he came to Sheppard's House Mr. Cornish was but once at his House when the Duke of Monmouth was there he did not remember that Mr. Cornish was in the Company when Rumsey was there he said he had attended the Court from Eleven a Clock till half an hour past three This being the Sum of the Evidence given in the Tryal for and against the Prisoner Let us see whether those Inferences could be made from it as was made by the Court and Councel and whether on the whole and honest Jury tho but of little understanding could have found him Guilty of the Treason in the Indictment It is agreed of all Hands that a petty Jury may and must consider the credibility of a Witness tho in the Lord Shiftsbury's Case it was said a Grand Fury ought not so to do and if so surely Rumsey was not a credible tho he was not a disabled Witness no more than a Man who owns himself to be a Man of Falshood a profligate Wretch and perjured by his own Confession tho not Convicted of it he had notoriously confessed himself Guilty of High-Treason and of being in the Design of an intended barbarous Murther he had sworn in the Lord Russel's Tryal he had named all the Persons at the Meeting he spoke of of which Mr. Cornish was none and being taxt in this Tryal with it he excuses his Perjury with Compassion to the Prisoner which was mean
But admitting Rumsey had never perjured himself but was of equal credit with Sheppard yet when they contradicted each other in a point which carryed no probability or improbability with it in a Capital matter the Jury ought to believe in favorem vita for it makes the matter at least doubtful and therefore the Jury ought to have acquitted the Prisoner for a reason the Law and which was given in Coll. Sydneys Tryal tho shewishly by the Court viz. that it is better that 20 Nocents should escape than one Innocent sufferer But to pass from the credibility of the witness to the matter of his Evidence this was the second time that this sort of Evidence in any Case Criminal or Civil was permitted to be given in Evidence and there is the same exceptions to it as are above assigned to the Evidence of Sheppard as to the Declaration in my Lord Russel's Tryal if a true Copy of part of a Deed or Writing was never yet permitted to be given in Evidence much less hath or ought the purport of part of a writing be given in Evidence especially when such a reason is given why the vvitness remembred but part of it as is given by Sheppard in my Lord Russel's Tryal and Rumsey in this Tryal they did not hear all the Paper read And surely Goodenough could no way fortifie Rumsey's Evidence being clearly of another matter and that so very uncertain that no heed ought to have been given to it when Goodenough told Mr. Cornish something ought to be done in the City but in the first place the Tower ought to be seized to which he ansvvered he would do what he could or vvhat good he could may as vvell relate to Goodenoughs precedent discourse vvhere he complains that the Law vvould not defend them though Innocent as vvell as to the seizing the Tovver and if they should refer to the last yet they may well enough be interpreted that he vvould do what he could or what good he could to prevent the seizing the Tower and if they are capable of two Sences they ought to be interpreted in the best for the Prisoner Besides the words are spoken not as a thing designed but as a matter vvithout vvhich all other matters vvere in vain and might be meer matter of discourse as was that between Blague and Mate Lee about taking the Tower and if there was such a Design a Foot it doth not appear that Mr. Cornish was ever acquainted with it the same may be said as to what he asked Goodenough when he asked how Matters went may not those words well enough be applied to the business of the Riot Goodenough managed for Mr. Cornish and others and if what Goodenough said was Evidence of a Design of Seizing the Tower that as well as the Treason against the Guards were Treasons by the Act of the late King and not by the 25th of Edward the Third if it be true Doctrine which was laid down in the Charge to the Earl of Shaftsbury's Grand Jury and if so it ought to have been Prosecuted for it within six Months and Indicted within three Months if the Doctrine in Colledge's Tryal be true and yet this Design if true was in Easter Term 1683. and the Prosecution not till October 1685. There was yet one peice of Evidence urged against him that by his own Witness Sheppard who positively testified for him as to the main yet in a Circumstance seemed to testifie against him which was Mr. Cornish's being as his House when the Duke of Monmouth and the rest were there when the Declaration was read and upon that peice of Evidence as if it had contradicted what Mr. Cornish said before there was mighty Triumph whereas the most that could have been made of it was that M. Cornish in part of his defence was Guilty of an Untruth and even that was not so in Fact for being charged to have been at Sheppard's the Night the Declaration was read he answered he was never at a Consult in his Life he never vvas at Sheppard's in any Consult he never vvas there vvith my Lord Russel as he remembred he had been at Sheppard's several times but never liked Ferguson for his Morals and therefore never liked to be in his company and he did not knovv but that he might enquire for the Duke of Monmouth in other Places and this is all Mr. Cornish says of that matter Sheppard says Mr. Cornish came into his House at one of the Meetings to speak with the Duke of Monmouth or some other he could not be positive in that it was so many Years ago and did not stay half a quarter of an hour he could not say it was the night the Declaration was read he did not know whether Mr. Cornish came to speak with the Duke of Monmouth or not he could not remember whether Mr. Cornish was there in company when Rumsey was there there were not above three Persons there when Mr. Cornish came which was the Duke of Monmouth Mr. Eerguson and he could not tell whether the other was the Lord Russel or the Lord Gray Now it would be hard to find out the contradiction between Mr. Cornish's Sayings and Sheppard's Evidence both agree that Mr. Cornish hath been often at Sheppards House and neither denies or affirms that he was or was not there the Night the Declaration was read for a good Reason which was that Mr. Cornish knew nothing of it and Sheppard knew not which of the Nights he was there Mr. Cornish said he was not there with my Lord Russel as he remembred and Sheppard doth not affirm he was there with the Lord Russel Sheppard says he was there when the Duke of Monmouth was there and Mr. Cornish doth not say that he was not there with the Duke of Monmouth Sheppard said he spoke to the Duke of Monmouth or some other Person but he thought it was the Duke of Monmouth which is no direct Affirmation that he spoke to the Duke and Mr. Cornish doth not say he did not speak to the Duke of Monmouth so that if the Account of the Tryal set out by the Authority of and signed by Tho Johnes be true I cannot see any manner of contradiction between Mr. Cornish and Sheppard And therefore as the Court and the King's Council did infer that Sheppard's Evidence who positively denyes the Truth of Rumsey's Evidence was so far from invalidating that it corroborated Rumsey's Evidence and cleared the thing which was before somewhat dark beyond all manner of contradiction is a piece of effrontery but admitting Sheppard had said Mr. Cornish vvas at his house the night the Declaration vvas read and had contradicted Mr. Cornish is it a necessary consequence that he heard the Declaration read and promised his assistance to it vvhich must be the inference if it must support Rumsey's Evidence If it be not a necessary Consequent but a probable one that ought not to weigh with a Jury to
convict a Person of a capital Crime especially not of Treason the Statute of Edw. the 3d. says probably Convict that is says my Lord Coke convicted upon direct and manifest Proof not upon probable Conjectural Presumptions or Inferences or Strains of Witâ— And to say truth when Verdicts have been given on such Evidence they have been often faulty To give some Instances of many it is remembred in our time where Persons were convicted of the Murther of a Person absent but not dead barely by Inferences upon the Evidence of foolish Words and Actions but the Judge before whom it was tryed was so unsatisfied in the Matter because the Body of the Person supposed to be murthered was not to be found that he reprieved the Persons condemned yet in a Circuit afterwards a certain unwary Judge without inquiring into the Reasons of the Reprieve ordered Execution and the Persons to be hanged in Chains which was done accordingly and afterwards to his Reprach the Persons supposed to be murthered appeared alive My Lord Coke relates a like Story in his Time of an Uncle who beat his Neice which had an Estate which on her Death would descend to him the Girl was heard to cry good Uncle do not kill me after which she ran a way and concealed her self some few miles from London the Girl being missing and the Neighbours remembring the Cry of the Girl and tacking it to the Probability that the Uncle might be induced for his Advantage to murther his Neice apprehends him and he was indicted for it at the Sessions and the Judges being unsatisfied in the Evidence by reason the Body of the supposed murthered Girl did not appear the Uncle saying that she was run away they gave him time to the next Sessions to find her out which he being not able to do thought to defend himself by producing another Girl very like his own Neice which he did accordingly and being detected it increased the Suspition and by Inferences from all those Circumstances he was convicted and afterwards executed Some years after which the Girl appeared and claimed her Estate and therefore it is a most dangerous and unwarrantable thing for a Jury in capital Matters especially in Treason to convict a Person upon the Evidence of Probabilities As the Evidence in this Case against the Prisoner was weaker than in any of the precedent Cases so the Usage of the Prisoner was more rigorous than in any of them in all the other Case the Prisoners had more Weeks allowed them to prepare for their Tryals than this Person had Days all the other Persons after Notice of Tryal were permitted to have Friends nay Council freely to come to them and confer with them in private without the Presence of a Goaler which was denied this Person all the others except Col. Sidney had soft Words given them on their Tryals but this Person was rudely handled How often was he snubb'd and bid hold his Tongue How often did he beg the Patience of the Court to hear him and his Witnesses and when he was heard how was all he said ridicul'd and if he said he was innocent he was bid remember my Lord Russel said so to his Death when he said he was as innocent as any Person in the Court he was told for all his Confidence few believed him If he said the Matter sworn against him was improbable which hath been taken for a pretty good Topick for the Dis-belief of a Matter testified how is it ridicul'd by Improbability Improbability Improbability If he go to prove he is an honest Man he is told that is all Appearance If he says he employed Goodenough about the Riot he is told that is a Branch of the Plot. If he call Mr. Gospright as a Witness for him the Witness is reproached with having helpt the Prisoner in packing Juries if he call one to prove he received the Sacrament he is told that was in order to qualifie himself to be a Sheriff and as such his Usage before and at the Tryal such was it afterwards to order him to be tyed when he was senten'sd was an Indignity not used to Persons of his Quality a thing indeed permitted not commanded to be used on boistrous Criminals who may be suspected to do a sudden Mischief if their Arms were at liberty Of like kind was the Reproaching him with the Chearfulness of his Countenance at his Condemnation and that it might be all of a Strain his Quarters were exposed a Severity us'd to none abovementioned but Sir Thomas Armstrong and in all these Tryals Colledge made the best Defence and perhaps Circumstances considered the best Defence ever made upon an Indictment of a Capital Matter and Mr. Cornish's was the weakest though it signified nothing for I believe that none who reads his Tryal but will plainly see he was so beset that the Defence he or any for him could make would have availed him nothing and no Account can be given for the Proceedings against Mr. Cornish in the above manner but that some of the judges whereof three of them were then on the Bench had been newly come out of the West where they had been so flusht and hardned that nothing seemed to them Rigorous or Cruel and the rest seemed to vie with them in the Practice REMARKS ON Mr. Bateman's TRYAL THE last Person which concluded the Tragedy was one Charles Bat man a Chyrurgeon his demerits were that he had been or at least was reputed to have been Chyrurgeon to the Earl of Shafesbury and one whom his Lordship had a kindness for and therefore according to the Cant of the Time he was called a Factious Fellow and he had reviv'd the Memory of his demerits by attending when Oates came from his Whipping and Letting him Blood whether either of those Circumstances were true or not I know not but they were believed And therefore the 9th of December 1685. he was Indicted and Try'd for High Treason On his Tryal he seemed to be Distracted and therefore out of abundance of Charity the Court appointed his Son to make his Defence for him The Witnesses against him were Keeling who only spoke of a Design in general without mentioning Bateman to be concern'd in it Thomas Lee and Richard Goodenough swore at several times and places his discourse to them severally of seising the Tower City and Savoy Baker for the Prisoner said Lee in the Year 1683. would have had him insinuated himself into the Prisoners company and discourse about State affairs and by that he would find a way to make Baker a great Man upon the Evidence the Prisoner was found guilty Against Goodenough's Evidence there is only this to be said that he was pardon'd but so far only as to qualifie him to be a Witness though not a very credible one not only the Guilt sticking to him but even the Punishment of what he had then lately done hanging over his head and what was said for some time of all