REMARKS UPON THE TRYALS OF Edward Fitzharris Stephen Colledge Count Coningsmark The Lord Russel Collonel Sidney Henry Cornish and Charles Bateman As also on the Earl of SHAFTSBURY's Grand Jury WILMORE's Homine Replegiando And the AWARD of EXECUTION against Sir Thomas Armstrong By John Hawles Barrister of Lincolns-Inn Nec partis studiis agimur sed sumpsimus arma Consiliis inimica tuis ignavia fallax Selden of Tithes LONDON Printed for Jacob Tonson at the Judges Head in Chancery-Lane near Fleetstreet MDCLXXXIX THE CONTENTS REmarks on Fitzharris's Tryal pag. 3 Remarks on Colledge's Tryal p. 20 Remarks on the Earl of Shaftesbury's Grand Jury p. 45 Remarks on Wilmore's Homine Replegiando p. 52 Remarks on the Lord Russel's Tryal p. 56 Remarks on Collonel Sidney's Tryal p. 76 Remarks upon the Award of Execution against Sir Thomas Armstrong p. 83 Remarks on the Tryal of Count Coningsmark p. 85 Remarks on Mr. Cornish's Tral p. 89 Remarks on the Tryal of Charles Bateman p. 99 REMARKS UPON SEVERAL TRYALS THE strange Revolution which hath of late happened in our Nation naturally leads one into the considerations of the Cause of it The danger of subverting the Established Religion and invading Property alone could not be the Causes For if it be true that the same Causes have generally the same Effect It is plain that in the Reign of a precedent Monarch the Subversion of the Established Religion was as much designed or at least it was believed to be so as of late and it is not material whether what was suspected was true or not and Property was as much Invaded as of late by imposing Ship-money and other Taxes on the Nation but more especially Ship-money which at first was light and easie but in progress of time was encreased according as it was found the Nation would bear it And at length it was feared as there was just reason so to do that it would become as burthensom as what is now impos'd on the French Nation by the French King and yet when the War broke out if the History of those Times or the Persons who lived a bout those Times are to be believed the majority of the Nation took part with the King. There was therefore some other Reasons for the Disaffection of the Nation to the late Government and they may be ranked under these six Heads Exorbitant Fines Cruel and Illegal Prosecutions Outragious Damages Seising the Charters Dispensing with the Test and Penal Laws And Undue Prosecutions in Criminal but more especially in Capital Matters For the first I shall only observe That when the House of Commons in the Parliament 1680. took that matter into consideration and intended to impeach several Persons for the same the highest Fine at that time complained of was but 1000 l. and yet in few Years they were heightned to 10000 l. 20000 l. 30000 l. and 40000 l. For the second The punishment of Oates Dangerfield and Mr. Johnson and the close Imprisonment of Mr. Hampden Sir Samuel Bernardiston and of several other Persons as it was against Law so it was without Precedent For the Third Tho' the Damages given to Bolsworth was the first Outragious Damages given which were taken notice of and in truth were such yet in little time Damages for matters of like kind were quickly improved to 10000 l. 20000 l. 40000 l. nay 100000 l. The truth of which a great many living Witnesses to their Sorrow can testifie For the Fourth The seising the City and other Charters upon the pretences they were questioned was without Example For the Fifth The Dispensing with the Test and Penal Laws was as mischievous as it was Illegal it making persons capable which were incapacited by Law of being in Places and of exercising Offices for whom the persons who had Power to Confer of Bestow the same had more affection than for the persons who at that present enjoyed them the Consequence of which was quickly seen in turning out the present possessors to make room for others which was the thing which as a Scotch Bishop said of another matter set the Kiln a fire Of these five particulars something hereafter may be said at present this Treatise is only to consider how far the Proceedings in Capital Matters of late years have been Regular or Irregular And as to that I shall not at all consider how far the persons hereafter mention'd were Guilty of the Crimes of which they were accused but how far the Evidence against them was Convincing to prove them Guilty and what Crimes the Facts proved against them in Law were REMARKS ON Fitzharris's Tryal THE first Person I shall begin withal shall be Fitzharris and that it may not be wondred that the Tryal and Comdemnation of a Person who was confessedly an Irish Papist should be complained of and one whose Crimes were such that if the Law declared had not made Capital it had been just in respect of the Malefactor for the Legislative Power to have Enacted that he should suffer the severest Punishment usually inflicted for the Highest Crime yet in respect of the common good it had been just and fit to have pardoned him if he would have confessed who was his Conspirators and setters on for I am apt to think that if that matter had been thorowly lookt into some Persons afterwards Witnesses in the Lord Russel's Collonel Sydney's and Mr. Hampden's Tryals had either never been produced or have not been credited if produced nor would my Lord of Essex's Throat have been cut and my Lord Russel and Collonel Sydney might have worn their Heads on their Soulders to this day All will agree that there was a great struggle between the Whigs and Tories as they were then called for hanging or saving that man both agreed he deserved to be hanged the first thought it their advantage to save him if he would confess the last thought it was fit to hang him for fear he would cofess and to explain the matter it is fit to go a little higher It cannot be but remembred that before the breaking out of the Popish Plot Mr. Claypole was imprisoned in the Tower for designing to kill the King in such place and manner as Oates afterwards discover'd the Papists intended to do it In Trinity Term 1678. he had an Habeas Corpus to the King's-Bench and was brought thither in order to be Bailed and produced persons of worth to bail him but the penalty of the Bail set by the Court was so high and the Court so aggravated the Crime for which he was committed and the likelyhood of the Truth of it that the Bail refused to stand and Claypole was remanded to the Tower. But the Term after when the matter of which he was accused appeared bare faced to be the Design of other people he was let go for fear the Examination of it should go farther in proving the Popish Plot than any thing at that time discovered And if it were now discovered upon whose and what
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
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
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
till the particular Articles were exhibited which is true for by the same Reason a Defendant cannot plead a Action depending against him for the same matter in a superiour Court unless the Plaintiff hath declared against him in the Superior Court which is not true It was not a Reason that all Records in inferior Courts must be pleaded particularly as Indictments and the like because such Records must be certain and particular or else they are erroneous and cannot be pleaded but an Impeachment may be general Where the matter of a Plea is nought no form can make it good tho' where the matter of a Plea is good an ill form may spoil it if therefore a general Indictment or Record is nought as in all the cases cited against the Plea it was no special averment to reduce it to a certainty or any form can make it a good Plea but a general Impeachment is good and therefore it may and must be pleaded generally and pleading it specially would make it false if there were no subsequent Articles as in this case there was not to ascertain it It is to no purpose to run thorow all the ramble of the Counsel or Court against the Plea when they all said the matter of the Plea was not in question but the Form and yet when so often asked in what of the Form it was defective they were not able to answer If it be agreed that the matter of a Plea is good but it is defective in Form they always shew how it ought or might have been mended which in this case was never done And as this case was new in several particulars so it is in this that in reading all the Arguments of this Plea no man knows by what was discoursed what was the point in question After the Arguments the Chief Justice in shew at least very favourably offers the Prisoners Counsel liberty to amend the Plea if they could which they apprehended as they had Reason for I think none can shew how it might have been mended rather a Catch than a Favour refused to do whereupon the Court took time to consider of it and on the 11th of May there being a great Auditory rather to hear how the Judges would bring themselves off than to know what the Law of the Plea was the Chief Justice without any Reasons delivered the Opinion of the Court upon Conference had with other Judges That his Brothers Jones Raymond and himself were of Opinion that the Plea was insufficient his Brother Dolbin not resolved but doubting concerning it and therefore awarded the Prisoner should plead to the Indictment which he did Not Guilty and his Tryal ordered to be the next Term. I think it would puzzle any person to shew that if ever a Court of Westminster Hall thought a matter of such difficulty as fit to be argued that they gave their Judgments afterwards without the Reasons 'T is true that the Courts of Civil Law allow Debates amongst the Judges to be private among themselves but the Proceedings at Common Law always were and ought to be in aperta curia Had this practice taken place heretofore as it hath of late but all since this President no man could have known what the Law of England was for the year Books and Reports are nothing but a Relation of what is said by the Counsel and Judges in giving Judgment and contain the Reasons of the Judgment which are rarely exprest in the Record of the Judgment and it is as much the duty of a Judge to give the Reasons why he doubts as it is of him who is satisfied in the Judgment Men sometimes will be ashamed to offer those Reasons in publick which they may pretend satisfies them if concealed besides we have a Maxim in Law undeniable and of great use That any person whatever may rectify or inform a Court or Judge publickly and privately as amicus curiae a Friend to the Court or a Friend to Justice But can that be done if the standers by know not the Reason upon which the Court pronounce their Judgment Had the three Judges who were clear in their Opinion given their Reasons of that Opinion perhaps some of the standers by might have shewed Reasons unthought of by them to have made them stagger in if not alter that Opinion or if Justice Dolbin had given the Reason of his doubt perhaps a stander by might have shewn him a Reason unthought of by him which would have made him positive that the Plea was or was not a good Plea. If a man Swears what is true not knowing it to be true tho' it be logically a Truth as it is distinguished yet it is morally a lye and if a Judge give Judgment according to Law not knowing it to be so as if he did not know the Reason of it at that time but bethought himself of a reason for it afterwards tho' the Judgment be legal yet the pronouncing of it is unjust Judges ought to be bound up by the Reasons given in publick and not satisfie or make good their Judgment by after thought of Reasons How very ill did it become the Chief Justice Popham a person of learning and parts in the attainting Sir Walter Rawleigh of which Tryal all since that time have complained when ha gave his Opinion that the Affidavit of the Lord Cobham taken in the absence of Sir Walter might be given in Evidence against him without producing the Lord Cobham face to face to Sir Walter which was desired by him although the Lord Cobham was then forth-coming When he summed up the Evidence he said Just then it came into his mind why the Accuser should not come face to face to the Prisoner because he might detract his Evidence and when he should see himself must dye he would think it best that his Fellow should live to commit the like Treason and so in some sort seek revenge Which besides that it is against the Common Law and Reason it is against the express Statute of E. 6. which takes care that in Treason the Witness shall be brought face to face of the person accused Did it become a just man to give his Opinion and bethink himself of a Reason afterwards And I am mistaken if it will not herein appear that many persons complained of have been guilty of the same weakness or injustice call it which you will so foolish are the best Lawyers and plausible Speakers when they resolve to carry a point whether just or not However they may deceive the Ignorant yet they talk and argue very absurdly to the apprehension of the majority of mankind And they had been sooner discovered but that the discoverers were quickly supprest and crushed as Scandalisers of the Justice of the Nation And I think this may be justly called the first mute Judgment given in Westminster-Hall But to return to Fitzharris his Tryal which came on the 9th of June and then the King's Counsel made use of
their Arts in managing the Jury And first there was a great many persons for Jurors to which Mr. Attorney had no Stomach some challenged for Cause for that they were no Fee holders as John Kent Giles Shute Nathaniel Grantham and several others and the Challenge allowed to be a good Challenge by all the Court for tho' the Chief Justice spoke only yet all the Court assent to what one Judge says if they do not shew their dissent I do not take notice of this as complaining of it for I think it is good Cause of Challenge in Treason but then I cannot but wonder at the Assurance of the same King's Counsel who denied it to be a good Cause of Challenge in the Lord Russel's Tryal It is true that was a Tryal in the City but that matter had no consideration in the Judgment for after the Lord Russel's Counsel had been heard all the Judges delivered their Opinions That at Common Law No Freehold was no Challenge in Treason and that the 1st and 2d Philip and Mary had restored the Tryal in Treason to be what it was at Common Law of which number of Judges Sir Francis Pemberton and Sir Thomas Jones were two nay Sir Francis Pemberton asked Mr. Pollexfen Whether he found any Resolution at Common Law that no freehold was a Challenge in Treason And that Judgment is afterwards cited in Collonel Sidneys Tryal fol. 63. as the Opinion of all the Judges of England That no Freehold was no Challenge to a Juror in Treason at Common Law and Col. Sydney's Tryal was in a County at large But if it was not a Challenge at Common Law I would know how it came to be a Challenge in Fitzharris his Case There was no intervening Act of Parliment to alter the Law between the two Tryals that I know of Another art used was to Challenge for the King wihout Cause where no Cause could be shewn such Jurors as they did not like The Prisoner was troubled at this and appeals to the Court whether the Attorney General was not obliged to shew his Cause of Challenge but is answered by the Court that he need not till all the Pannel was gone through or the rest of the Jurors challenged which is true but had the Prisoner been advised to challenge the rest of the Jury as he would have been if he had had Counsel the Attorney must have waved his Challenge or put off the Tryal And since he was not allowed Counsel why should not the Court according to their Duty as they have said it is have advised him so to do I am sure in Count Coningsmark's Tryal when Sir Francis Winington challenged a Juror without Cause for the King the Court presently asked the Cause and such Answers was made by the Prosecutor's Counsel as was made to Fitzharris whereupon the Court told the Count that the way to make them shew their Cause of Challenge was to challenge all the rest of the Jury and thereupon the Challenge was waved They were different Practices tending to different Ends and accordingly it succeeded Fitzharris was Convicted and the Count Acquitted Upon the Tryal the Evidence was this Fitzharris was the 21st day of February 1681. with Everard gave him Heads by word of mouth to write the Pamphlet in the Indictment mentioned to scandalize the King raise Rebellion alienate the Hearts of the People and set them together by the Ears the Libel was to be presented to the French Ambassador's Confessor and he was to present it to the French Embassador and it was to set these people together by the Ears and keep them clashing and mistrusting one another whilst the French should gain Flanders and then they would make no bones of England For which Libel Everard was to have 40 Guineys and a monthly Pension which should be some 1000 of pounds Everard was to be brought into the Cabal where several Protestants and Parliament men came to give an account to the Embassador how things were transacted Everard asked what would be the use of the Libels Fitzharris said we shall disperse them we know how they were to be drawn in the Name of the Nonconformists and to be put and fathered upon them This was the sum of Everard's Evidence Mr. Smith proved Fitzharris his giving instructions to Everard and Sir William Waller and others proved the Libel and the Discourse about gaining Flanders and England other Witnesses were examined to prove Fitzharris's hand for the Prisoner Dr. Oates said Everard told him the Libel was to be printed and to be sent about by the Penny-Post to the Protesting Lords and Leading Men of the House of Commons who were to be taken up as soon as they had it and searched and to have it found about them He said the Court had an hand in it and the King had given Fitzharris Money for it already and would give him more if it had success Mr. Cornish said when he came from Newgate to the King to give him an account in what disposition he found the Prisoner to make a discovery the King said he had had him often before him and his Secretaries and could make nothing of what he did discover that he had for near three Months acquainted the King he was in pursuit of a Plot of a matter that related much to his Person and Government and that in as much as he made protestations of Zeal for his Service he did countenance and give him some Mony that the King said the came to him three Months before he appeared at the Council Table Collonel Mansel said that Sir William Waller gave him an account of the business in the presence of Mr. Hunt and several others and said that when he had acquainted the King with it the King said he had done him the greatest piece of service that ever he had done him in his life and gave him a great many thanks But he was no sooner gone but two Gentlemen told him the King said he had broken all his Measures and the King would have him taken off one way or another and said that the Design was against the Protestant Lords and Protestant Party Mr. Hunt confirmed the same thing and added that he said the design was to contrive those Papers into the hands of the people and make them Evidences of Rebellion and appealed to Sir William Waller who was present whether what he said was not true Mr. Bethel said Everard before he had seen Bethell or heard him speak a word put in an Information of Treason against him at the instigation of Bethel's mortal Enemy which Information was so groundless that tho' it was three years before yet he never heard a word of it till the Friday before Mrs. Wall said Fitzharris had 250 l. 200 l. or 150 l. for bringing the Lord Howard of Escrick she added that Fitzharris was looked upon to be a Roman Catholick and upon that account it was said to be dangerous to let him go near
Libel as ever was writ yet I own if it had been writ and dispersed with that Design it had been High Treason within the Statute of E. 2. But the most natural Construction of the worst Design of it was to trepan the Parliament-men and make the Libels Evidences of a Rebellious Conspiracy this Everard confesses Fitzharris told him was the use to be made of them and Everard could not know the Design of them but by what Fitzharris told him And Oates well explains what Everard meant by the words in his Evidence put the Libel on the Nonconformists by what Everard told him But yet even that though in it self the highest Crime a Man can be guilty of next to putting it in Execution is but a Conspiracy which was mildly punished in Lane and Knox their Case though this exceeded that that being a design only against one Person this against many Yet tho' this was of no higher Crime by the Law as now established than a Misdemeanor it was fit for the Legislative Power to have punished it in manner it was punished which yet the Legislative Power ought to resent as an Injury for an inferior Court 's snatching the Exercise of that Power out of their hands which only belongs to the Supream Authority That this Crime upon construction of the Evidence taken in the best Sense is no Treason though the Libel should in all probability incite the Subject to leavy War which it was not likely to do or in Fact it had been the cause of a Rebellion yet if it was not designed by the Contriver to that purpose it was not Treason by the Statute of Edward the Third or Charles the Second for in the last Statute it is Designing to levy War and in the Statute of Edward the 3d. it is a strained Construction to make designing to leavy War Treason yet none ever pretended to strain the Sense of that Statute farther than designing to do it If the Ill Effects the Libel did or might produce made it Treason then Sir Samuel Astrey who read it in Court at the Tryal and the Printer that afterward printed and published it and Sir William Waller who read it to Mr. Hunt and others were guilty of Treason for the Libel carried no Venom or Charm with it the more for being framed by Fitzharris or Everard or for being published by either of them than if published by another person The difference is Astrey read it aloud as his Duty the Printer printed and published it for gain Sir William Waller published it as a Novelty and if Fitzharris contrived it to put it upon the Nonconformists or Parliament Men and not stir up a Rebellion tho' it tended to all the ill consequences mentioned in his Indictment yet it was not Treason But it will be urged how shall Fitzharris his intention be proved it was a question which made a mighty sputter in arguing the Plea how shall it be proved that the Impeachment was for the same Treason for which the Indictment was but in the Tryal of Fitzharris that question was fully cleared for it was proved there that the very Libel then produced in Court was the same Libel read in the House of Commons upon which the Impeachment was Voted And to say Truth nothing can be put in Issue but is capable of Tryal Quo animo a thing is done in all overt Acts of a design is one of the main questions or to speak in Law Phrase whether done proditoriè or not an Adverb of great use and sense tho' heretofore slighted and under which I believe a great many persons will be enforc'd to shelter themselves from being punished by the Law Established No Man will pretend that Libel did any man Mischief but the Contriver nor in probability could have done if not used to the purpose Everard said to Oates Yet other persons have been guilty of as illegal Acts of worse consequences in prospect and much worse in effect and it did not amount to Treason I dare say the Allegation that they disturbed the Kingdom by their Acts and War caused to be moved against the King is true of them and they are guilty of all the aggravations used in Indictments of Treason To instance in some of many Did it not make a mighty heart-burning in the City against the Government and raised great Jealousies between the King and People when the Sheriffs North and Rich were imposed on the City Did not the taking away the Cities right of Electing Sheriffs and the suspicions for what end it was done besides the Illegalities that followed If Sir Edward Herbert in his late Vindication fol. 16. be Law as it hath an Aspect as if it were that Grand Juries returned by such as are Sheriffs in fact but not in right are illegal and Convictions on their presentments are illegal and void give great disturbance and that Opinion seems to be countenanced by my Lord Coke's 3d. Instit fol. 32. in his Comment on the 11th of Henry the 4th and consequently the Lord Russel's and other Attainders void Did it not add to the heart-burning the punishing those Citizens as Rioters who were at Guildhall innocently contesting their right of Electing Was it not an increase of the mischief the bringing the Quo Warranto against the City whereby the Credit of the City was lost and many Orphans starved and more impoverished beyond the possibility of recovery And it was yet heightned by the Judgment given in the highest Case that ever came into Westminster-Hall by two Judges only and that without one word of Reason given at the pronouncing according to the pattern of Fitzharris his case and was the second mute Judgment Did it not fright all honest men from being on criminal Juries when Willmore was so illegally prosecuted for not giving a Verdict against his Conscience by an homine replegiando and Information And did not that make all Merchants who had Transactions beyond Sea afraid to send their Servants thither for fear they might be laid by the heels till they fetched them back again Did it not startle the Lords and the Leading Men of the House of Commons mentioned so often in Fitzharris his Tryal when the Earl of Essex Lord Russel Collonel Sidney Mr. Hampden and several others were clapt up close Prisoners in the Tower Did it not deter any honest man from appearing to witness the truth when Sir Patience Ward was convicted of Perjury Did it not provoke two great and noble Families when the Lord Russel and Collonel Sidney were so illegally and unhandsomely dealt withal as shall be hereaster declared Did it not provoke all the Nation except the Clergy and Soldiery when all the Charters of England were seized and not regranted but at excessive rates to the starving the poor who should have been fed with the Money which went to purchase the new Charters and reserving the disposition of all the places of profit and power within the new Corporations to the
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
of the Indictment material which was the time when that Treason was committed because by that Statute the Prosecutions of Treasons on that Statute ought to be within fix Months after it is committed and the Indictment ought to be within three months after the Prosecution and he being imprisoned in July and the Bill suggested that the supposed Treason was committed the 18th of March before and divers other times both before and after which might be interpreted to have been after the Prisoners Commitment had the Jury found the Bill as laid they had found the Treason to have been committed not only within the time the Prosecution by that Statute ought to be but also within the time the Indictment ought to have been preferred whereas in truth the Earl had been Imprison'd above three months before the Indictment preferred and there was no Evidence of any Treason committed by him after his imprisonment and therefore the finding the Bill as laid had been injurious to bring a Man in question for his Life on that Statute whereas by Law he ought not to have been For it was resolved in Colledge's Case that the Prosecution for Treason on that Statute ought to be within Six Months and the Indictment to be within three Months tho the Court was of another Opinion in the Lord Russel's Tryal And that this Indictment was on that Statute was expresly said to the Grand Jury and upon good reason for the Court in their Charge said that the Intention of levying War or designing to Imprison the King was not Treason till the Statute of Charles the Second tho' in the Lord Russel's Tryal it was held to be Treason by the Statute of E. 3. and therefore the Time of the Treason committed was material to be found by the Jury As for the Writing found in the Earls Study it was no manner of Evidence of Treason admitting what the Witnesses swore as to the finding it to be true because it was not proved that it was Prosecuted or Composed by the Earl of Shaftsbury or by his Order and that Peice of Evidence was in that Particular a meer Original In Fitz-Harris his Case it was proved the Libel was Composed by his direction Coll. Sydney's Book was proved to be like his Hand it was pretended that Colledge said he was the Author of the Raree-show and no example of this Evidence was ever made use of before Neither was it evidence of Treason as to the Matter for there was not one word against the present King but his Successor if it should be such a Person It is true one of the Kings Counsel said that one passage in it was that they would join to destroy the Mercenary Forces about London and thence inferred it was down right levying War against the King and his Guards whereas there is not any such word or thing in the Paper as he pretended to cite and if they had been in the Paper they would have been but Evidence of a Treason within the Statute of the late King and then the time of Writing them ought to have appeared and if that had been cleared yet for the above Reasons it was no Evidence and the Grand Jury tho' some of them afterwards smarted for it upon other pretences did like honest understanding Gentlemen and had they done otherwise to avoid the Ignominy of being called tho' in truth it was an honour to be an Ignoramus Jury they had justly deserved the reproach which since have lighted on other Juries such as Mr. Cornish's and the like and having spoken of this Ignoramus Jury for which two of them if not more were afterwards upon other pretences severely handled I think fit to say something of the Sufferings of one for being in a preceding Ignoramus Jury because it was a meer Novelty and that was Mr. Wilmore REMARKS ON Mr. Wilmore's HOMINE REPLEGIANDO HIS Prosecution tho it was but Criminal and not Capital did as much mischeif as it struck a terror into all Grand Juries as any the before mentioned Matters and it was by the homine replegiando issued out against him As for the Information against him I shall say nothing because the injustice of both will appear in the discourse of the first Mr. Wilmore had sent a Boy beyond Sea by agreement as Mr. Wilmore said whether true or not as to this Matter is not material a homine replegiando is granted against Mr. Wilmore for this at whose Prosecution is not material for any Person upon suggestion back'd by an Affidavit may have it granted the Sheriff would have returned on the Writ that the Boy was sent by his own agreement and consent with Mr. Wilmore which return was not allowed and the Sheriffs were told that they must either return they had replevied the Boy and they must have him in Court or else they would be laid by the heels or else they must return that Mr. Wilmore had Esloigned him which is carrying him away where the Sheriff could not find him and then a Withernam would issue against Mr. Wilmore upon which he would be taken and kept in Prison till he produced the Boy and no other return should be allowed then one of those two and if they did not make one of those two Returns they should be Committed and if the Law be so the Court were innocent but the Law ought then to be reformed in that Particular but if the Law was not so as I think it is not I think Mr. Wilmore and the Nation had great injustice done them for it was quickly seen what the mischeif of that Judgment was and therefore it was endeavoured to be reformed by an Act of King and Counsel afterwards first I say it is lawful for a Master to Covenant with a Servant to serve him beyond Sea in the next place it is lawful for a Master to send his Servant beyond Sea according to such agreement and if both those Propositions be true as I think no Man will say they are not it is a natural consequence to say that the Law hath provided a Return upon a Writ of homine replegiando if it should be such out against such Master for a Servant so sent beyond Sea which may indempnify the Master in so doing and that Return can be no other then the special Matter which in this Case was refused to be accepted 't is no argument that no such Return is ever read of in any Book For the Law hath determined that some Returns are good and others are bad yet it hath not said what are all the good Returns which may be made on an homine replegiando and the Sheriff is no more confined to Returns than a Man is in the Pleading of his Case which my Lord Coke says may very according to the Nature of his Case and yet the Law hath said what is a good Plea and what a bad one but hath not exprest all the good or bad Pleas and therefore it is no
a good Challenge and with him Sir John Fortescue seems to concur in his Exposition on the Statute of Henry the 5th he says if the Debts or Damages were under forty Marks the Jury-man shall have Land to a competent Value according to the Discretion of the Justices My Lord Coke saith in such case any Free-hold sufficeth now how can that be true if it were not necessary at Common Law to have some Free-hold for the Statute makes no Provision for Debt or Damages under forty Marks It must therefore be by Common Law that some Free-hold was necessary and that any Free-hold shall suffice And surely if in Civil Matters it was necessary for a Juror to have a Free-hold much more in captial Matters and mostly in Treason It is very plain that at Common Law no man was thought to be a sufficient man but a Free-holder and though now and for some time past the Value of Trade is equal to that of Land yet heretofore it was not so and by what was heretofore the Common Law is to be known The matter of Trade was heretofore so inconsiderable and the Traders themselves for that reason so vile that it was a Disparagement for a Free-holder to marry with a Trades-man as is to be seen by the Statute of Wharton and therefore meer Trades-men and not Free-holders were not to be trusted with the Concern of a Tryal in a civil Matter and much less in a Capital and least of all in a Tryal of High-Treason The Chief Justice Pemberton says that the reason of Free-holders was that no slight Persons should be put upon a Jury where the Life of a man or his Estate is in question it is plain therefore the Concern of the thing to be tryed is the measure of the substance of the Jury-man if that be true the Tryal in Treason is of the highest concern How then is it true as some of the Judges concluded that though Free-hold migh be requisite in some Cases at Common Law yet in Treason certainly not it is indeed a Paradox to me And the peremptory Challenge of thirty five allowed the Prisoner is no Reason against the Challenge of no Free-hold for that is only a Priviledge allowed the Prisoner in Favorem Vitae and it might as well be argued that no Challenge at all to the petty Jury shall be allowed the Prisoner because he had a Grand Jury past upon him before which is also in Favorem Vitae that no man at the Kings Suit shall be so much as questioned for his Life till above the number of twelve substantial men have on their Oaths said they think the Accusation true and after that he is allowed to challenge peremptorily thirty five and with cause without number to affirm therefore that no Free-hold is not a cause of Challenge because he may challenge peremptorily thirty five is a non sequitur and though Non-usage that is to say that this Challenge was never taken in Treason was then used as an Argument yet it is the weakest of Arguments which is to be found in Littleton though even that Fact was not true for the Challenge was taken and allowed before unless you will distinguish and say that in that case it was taken by the King and therefore good and in this by the Prisoner and therefore bad I 'm sure that Difference cannot be warranted either by Authority or Reason and what though Cook and the other Regicides and other Persons did not take that Challenge is it and Argument that they could not or that they thought they could not perhaps they had forgotten to do it as much as the Judges in this case had forgotten their Resolution in Fitz-Harris's Case or perhaps they could not take it their Jury being Free-holders or perhaps it was to no purpose they being tryed in Middlesex where a Jury of Free-holders would quickly be found Nor is it an Argument that no Case of this Challenge at Common Law is to be found in the Books for since the Statute of Henry the 5th to the time of Queen Marry it could never be a Case and from that time to this it could never be a Case in Felony and the Law being so very plain that if the Fact were with the Prisoner it was always allowed if against the Prisoner it was disallowed not as not good in point of Law but as not true in point of Fact therefore the Challenge perphaps was not taken notice of in the Books which only reports Difficulties It is true of late and it is but of late Practice the whole Transactions of a Tryal is published for the benefit of the Publisher rather than for the common Good and that indeed was the Motive of publishing Fitz-Harris's Tryal signed by Fra. Pemberton and of Colledges's Tryal signed by Fra. North and of my Lord Russel's signed by William Prichard Mayor and Col. Sidnie's Tryal signed by George Jefferies and Mr. Cornish's Tryal signed by Thomas Jones And that is the reason why since that Statute we find no Case of such a Challenge in capital Matters and before that Statute the Year-Books go but a little way It is enough that there was no Resolution that it was not a good Challenge for it will be of the Kings side to shew why that should not be a good Challenge in Treason which was in most if not in all other Cases It is pretty to observe what steps were made in over-ruling this Challenge some were of Opinion that it was no Chanllenge in any Case at Common Law so said the Attorny and Sollicitor General the Chief Baron Justice Windham and Baron Street The Chief Justice though it no Challenge at Common Law in Treason or Felony only but that the Statute of Henry the 5th made it a Challenge in Treason and Felonly but whether the Statute of Henry the 5th made it a Challenge in Treason the Chief Baron and Justice Windham doubted Justice Jones thought it no Challenge at Common Law in Treason Justice Levins would not determine whether it was a good Challenge in any Case at Common Law but he and Baron Street were clearly of Opinion it was not a good Challenge in London The Chief Justice thought it a Business of great consequence not only for the Prisoner but for all other Persons Baron Street thought the Judges had been very nice in the Matter which in the Phrase of the Law is giving themselves a great deal of trouble in a matter very clear or of no moment But though they differ'd in their Reasons yet all agreed in this and in this only that tryed he should be and that presently Then as for the Custom of the City of London to try without Free-holders how did it appear to the Judges that there was any such Custom Did they ever read of any such Custom in the City of London Nay were not the Statutes which were cited where no Free-hold was made no Challenge in London in particular Cases as so
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
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
not to be believed on his Oath and insinuated that he meant what he said to be meant of a Design of Murthering the King which he did not believe the Duke of Monmouth or the Lord Russel guilty of This being the sum of the Evidence given against or for my Lord Russel let us consider how far it will justify the Verdict given against him first consider the improbability of Rumsey's Evidence if my Lord Cavendish said true that he should trust Rumsey to hear the debate about seizing the Guards when the Lord Russel had an ill Opinion of Rumsey as for Rumsey's delivering the Message there was no great Matter in that it is impossible to hinder Peoples speaking and it is not Treason to conceal what 's said besides it was well known it was Rumsey's way to talk extravagantly in order to accuse those that heard him if they did not discover it but besides the improbability of the Evidence in respect of the Person the manner of delivering the Evidence and the Evidence if self was such as carryed no Colour of Truth with it he said he delivered his Message and had an answer to it and being asked what the Company said further answered that was all that was said at that time that he remembred and gives a very good reason for it for he stayed not above a quarter of an hour and added that he was not certain whether he then heard something of a Declaration there or whether Mr. Ferguson reported it to my Lord Shastsbury that they had debated it and yet when Sheppard said Rumsey was there when the Declaration was read he denyed it and said it was read before he came in being asked to what the Declaration tended he answered to another Matter viz. that there was some discourse about seeing in what Posture the Guards were in and said that all the company debated it and being drawn on by questions said it was in order to seize the Guards if the Rising had gone on now how doth that Part of the Evidence agree with what he said before that there was nothing more said then the delivering his Message and the answer to it and how doth it agree with the time he said he staid which was not above a quarter of an hour whereas that debate if all the Persons present being six debated it as he said they did it would certainly have taken up a larger time how does the first and last part of his Evidence agree when he said my Lord Russel agreed to the answer of his Message and being askedd whether and what he spoke to it said he spoke about the Rising at Taunton but doth not say what and yet in thefirst part of his Evidence he said when asked who sent the Message back Mr. Ferguson delivered the answer the Duke of Monmouth and the Lord Russel were present and he thought the Lord Gray said something to the same purpose but what credit could be given to any part of a Mans Evidence whose memory was so shallow that he could not remember whether he was at two Meetings or whether Mr. Ferguson related one of them to the Lord Shaftsbury yet both were supposed to be within the compass of a Year whereas a Man of Sence is supposed to remember all his own Acts for seven Years past which it the reason why the Chancery obliges a Man to answer as to his own Acts possitively for seven Years without saying as he believeth or as he remembreth or the like what credit is to be given to a witness who testifieth what was said in company and by whom when his memory doth not serve to answer possitively whether he was in the company or whether another told him what was there said he might as well have said he was there or dreamt he was there or that he heard the discourse or dreamt of it had carryed equal credit with it It was plain the Man was not of sane memory enough to make a Will much less to be a witness in the Tryal of a Man's Life and nothing can be said for him but that he was a witness for the King that is to say a mad Man may be a witness to take away a Man's Life which is as good law as a great deal of other Cant vented as a part of the Prerogative It is true one of the Kings Councel recommends Rumsey to the Jury as a very credible witness under the notion of an unwilling witness but had the same Person been a Councel for the Prisoner he would have called Rumsey a dancing witness for he said backwards and forwards and an amazed winess for being asked one thing he answered another being asked as to the Declaration he answered to the seizing of the Guards being asked whether my Lord Russel assented to the answer of the Message he replied yes because he talked of the Rising c. which might be as well against as for it Sheppard's Evidence was to the Design of seizing the Guards and as to the Declaration he remembred but two Meetings at both which he said a he remembred my Lord Russel was present but he could not be positive in that and the times of the Meetings he did not remember he said the substance of the Discourse was how to surprise the Kings Guards and that the Duke of Monmouth the Lord Gray and Sir Tho Armstrong went to see the Guards as he remembred and the next time they came to the House Sir Tho. Armstrong said the Guards were very remiss c. Taking this Evidence by it self without tacking Rumsey's Evidence to it it was so far from being Evidence of Treason that it was no Crime for he doth not say it was intended to be put in practice notwithstanding all said by him both the Discourses and the Persons viewing the Guards which last was not Evidence not ought to have been given in Evidence might be a Matter to try each others Judgments as well as an Evidence of a thing designed and if it be capable of two Interpretations the Law hath said it shall be taken in mitiore sensu in favour of Life that distinction was taken by the Chief Justice in Blagues Case the day after this Tryal where the Evidence against him was a discourse about taking the Tower as High a Crime as seizing the Guards and upon that Blague was acquitied it is true Rumsey said it was in order to be put in Practice when the Rising should be in the Country but that he did not say at first but was afterwards lead to it by question nor doth he speak it as a thing at that or at any other time determined but as his own surmise or guess because he knew of an intended Rising yet how foolishly did he contradict himself for says Rumsey it was to have been put in Practice if the intended Rising had gone on and yet at the same Meeting he had said before the Rising was put off how contradictory therefore is it to
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
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