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
business he was four or five times between Christman and March with the Earl and the Captain that the Captain told him he was to Command Fifty Men to be the Earls Guard at Oxon and would have had him to be One That if the King did not Consent to several Acts of Parliament and other things they were to Purge the Guards and Court of several Persons and tho' the Captain told him that first yet afterwards he heard the Earl say the same things particularly about a week or ten days before the Parliament sate at Oxon he gave some Intimation of this to Walter Banes and then Writ it down and sent it to the Counsel Sealed in a Cover Turbervile swore that the Lord Shaftsbury said about February there was but little good to be done with the King as long as his Guards were about him Smith testified a great deal of discourse between him and the Lord Shaftsbury of something said Reflecting on the King and that he should say that if the King should offer any violence to the Parliament at Oxford he would meet with a strong Opposition for that the Gentlemen who came out of the Country came well provided with Horse and Arms to Oppose and that they might Lawfully do it if he offered and Violence to them whilst they sate Haynes swore that the Earl said if the King did not give Haynes his Pardon he and others would raise the Kingdom against him that Haynes gave the Earl an exact Account of Transactions since King Charles the First 's coming to the Crown and that the Earl said the Duke of Buckingham had as much Right to the Crown as any Stewart in England John Macnamarra said the Earl said the King was Popishly Affected and took the same Methods his Father did which brought his Fathers Head to the Block and they would bring his thither and this was said in the presence of Ivey and he thought of his Brother and said the King deserved to be deposed as much as King Richard the Second Dennis Macnamarra likewise testified the last words and that it was the latter end of March or beginning of April Ivey said the Earl said if the King denyed Haynes a Pardon they would rise upon him and force him to give one and that they design'd to depose him and set up another in his stead Bernard Dennis said he had a great deal of discourse with the Earl who bid him speak to his Friends in Ireland for they intended to have England under a Commonwealth and Extirpate the King and his Family Then the Court told the Jury the Indictment was grounded on the Statute of King Charles the Second but they ought to consider of that Statute as also the 25th of Edward the Third The question is whether the Grand Jury ought to have found the Bill on this Evidence first it ought to be considered what the Duty of a Grand Jury is and I think it is not what the Chief Justice said to consider only whether there be probable ground for the King to call the Person Accused to an Account much less do I think that the reason of the finding of a Bill by the Grand Jury was for the Honour of the King or Decency of the Matter least Persons Accused should be called to an Account by the King where there is no kind of Suspition of the Crime Committed by them as the Court said which last Matter was never assigned as a Reason of finding a Bill by the Grand Jury before but I take the Reason of a Grand Jury to be this that no Man for a Capital Matter shall ever be questioned by the King unless a Grand Jury take it on their Oaths that they believe the Matter of the accusation is true I do put an Emphasis on the words questioned by the King. It is true it is generally said That the business of a Grand-Jury in capital Matters is in favorem vitae but that taken simply is not true for then what reason can be assigned why a Man shall be Arraigned on an Appeal of Murder Robbery or the like which touches his Life as much as an Indictment of those Crimes without having the Matter of the Appeal first found to be true by a Grand Jury but the true reason of a Grand Jury is the vast inequality of the Plaintiff and Defendant which in an Indictment is always between the King and his Subjects and that doth not hold in an Appeal which is always between Subject and Subject and therefore the Law in an Indictment hath given a Privilege to the Defendant which it hath done in no other Prosecution of purpose if it were possible to make them equal in the Prosecutions and Defence that equal Justice may be done between both It considers the Judges Witnesses and Jury are more likely to be influenc'd by the King than the Defendant the Judges as having been made by him and as it is in his Power to turn them out punish to prefer or reward them higher and though there are not just Causes for them to strain the Law yet they are such Causes which in all Ages have taken place and probably always will this was the reason of running Prerogative so high in their Judgment of High Treason before the Stat. of Ed. III. That no Man as that Statute says knew what was not High Treason This was the reason of expounding that Statute oftentimes between the making of it and the making the Statute of Queen Mary that People was at as great a Loss till the last Statute as they were before the making of the first and even since the Statute of Queen Mary the Exposition on the Statute of Ed. III. hath been so extravagant and various that People are at this day as much at a Loss to know what is not High Treason as they were before the Statue of Ed. 3. norwas it or is it possible that the great Power of enriching honouring rewarding and punishing lodged in the King but that it always had and yet must have an influence on the Witnesses and Jury and therefore it is that the Law hath ordered that at the King's Proscution no Man shall be criminally questioned unless a Grand Jury upon their own Knowledg or upon the Evidence given them shall give a Verdict that they really believe the Accusation is true Iown of late days They have said the Duty of the Grand Jury is to find whether the Accusation is probable but that saying is warranted by no positive Law or antient Authority and therefore the Duty of the Grand Jury must be founded in the Oath administred to them which is as strict as the Oath administred to the Petit Jury and to say Truth the Verdict of the Petit Jury takes credit from the Verdict of the Grand Jury which is not only the reason of the difference in the Names of the two Juries but is likewise the reason why an Attaint for a false Verdict doth not lye
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
say they made preparations for a thing they had laid aside before and it is plain Sheppard speaks of the same time for both agree Rumsey was at that Meeting tho they do not agree how soon he came besides how could Sheppard speak positively of the discourses or of the Design of it when he owns he did not hear all their discourse and gives a very good reason for it for he said he went several times down to fetch Wine Sugar and Nutmeg and did not know what was said in his absence he said he heard nothing about a Rising nor heard any further discourse but on recollection he heard something about a Declaration of Grievances in order to a Rising as he supposed the Particulars he could not tell now what sort of Evidence was that in all Civil Matters a Witness shall not be permitted to give Evidence of the content of a Deed or Writing without producing the Deed or Writing if self or a true Copy of it and upon very good reason for he may make an untrue Construction of it I remember a Witness who swore to the content of a Deed of Intail and being asked whether he knew a Deed of Intail and by what he knew the Deed he spoke of to be a Deed of Intail answered he knew a tailed Deed very well and he knew the Deed he spoke of to be a tailed Deed because it had a Tail half as long as his Arm meaning the Label of the Deed and if this be the Practice and the Reason of the Practice in Civil Matters shew me any Authority or Reason any thing should be permitted to be given in Evidence in Treason which is not permitted to be given in Evidence in the Tryal of any Civil Matter If you say as Justice Levins said in a like Case in Colledge's Trial that it would be the difficultest thing in the World to prove Treason against a Man if the Law were not so and the King would in no sort be safe of the other Hand I say as Colledge there said if the Law should be so no private Person is safe and if there be mischiefs of either Hand the Law is and must be Judge which hath taken care tho to no purpose because it hath not been observed that there shall be a stricter Proof in Treason than in any Civil Matter or in any other Crime and how the Judges come to permit that loose Evidence in Treason to be given which of late Years they have done no just or honest Account can be given The last material Witness against my Lord Russel was my Lord Howard as for Atterbury's Evidence it ought not to have been permitted to be given as shall be shewn nor was it material to no part of whose Evidence any Credit ought to be given even by his own Confession he was surely in the right when he said that the Religion of an Oath is not tyed to a place and I 'le add nor to a Form but receives its Obligation from the Appeal is therein made to God and therefore if he said tho I own he was not bound to say it to the Earl of Bedford Mr. Howard and Dr. Burnet what was testified against him he ought not to be believed in any part of his Evidence did he say to my Lord Bedford when unsent for and unasked for ought appears after my Lord Russel was clapt into the Tower he said his Son could never be in any such Plot as that or suspect for it and that he knew nothing against him or any body ehe of such a barbarous Design and yet he knew if he swore true that my Lord Russel was Guilty of such a barbarous Design that nothing but the Lord Howard's Duty to God the King and the Country could prevail with him to give it in Evidence against a Person for whom be had so great an Affection as he had for my Lord Russel how was it consistent with the truth of his Evidence what he said to Mr. Howard that he knew nothing of any Mans being concerned in that business and particularly of my Lord Russel whom he highly Commended and said be thought the Lord Russel unjustly Suffered or with what he said to Dr. Burner with Hands and Eyes lift up to Heaven which is as much an Appeal to God as may be that he knew nothing of any Plot nor believed any it was an idle Evasion to say when he spoke of my Lord Russel he meant my Lord Russel was not Guilty of the Design of Murthering the King for which that Man as he said was Committed meaning Walcot the Lord Russel or any other Person for he is still at liberty to explain himself and I am apt to think they were all Committed by Warrants of the same Form. I know not how dextrous he is at paring an Apple but he must be an Excellent Logician that can reconcile the truth of his Evidence and Sayings the Truth is that a Man that hath those Niceties in his Head ought to have no Credit for no Man knows whether he understands what he says aright and I am apt to think that his Lordship can shew that he did not intend what he said at my Lord Russels Tryal in the Sence it was understood by the Court or Jury to say that he was to outface the thing for himself and his Party was as vain for besides that I think he was of no Party because as my Lord Russel said he had the luck to be trusted by none where was the Sence of making those Protestations to Persons who could do him no good and would do him no harm both which my Lord Pemherton could and therefore 't was not alike It is true the Attorney General Commends the Lord Howard as a Person of great Credit amongst the Party and insinuates the Lord Gray was left out of the Cabal for his Immorality and the Lord Howarch was taken in his place but to pass from the General of his Evidence to the Particulars of it for about two Leaves in the Print of it 5 it is a discourse between my Lord Shaftsbury and him wherein he makes my Lord Shaftsbury have a wondrous Confidence in him and discovers all the Design to him and what number of Men he had at Command but who they were or what they were was never yet discovered and yet the Lord Howard had not at that time been concerned in the Matter nor did then assent he very prudently was resolved to see whether it was likely to take Effect or not before he would enter on it it was indeed a Matter of great wonder to those who knew my Lord Shaftsbury and knew what Opinion he had of the Lord Howard from the time the Lord Shaftsbury discovered that the Lord Howard frequented the Dutchess of Portsmouth which was before Fitz-Harri his Tryal tho after that Tryal the Matter was publickly owned which was before suspected by most known to the Lord Shastsbury that he should so
then Mr. West went on and gave Evidence of what Col. Rumsey Mr. Nelthorp and Mr. Ferguson told him of Col. Sidney but of his own Knowledge he could not say any thing of the Prisoner Rumsey gave a like Evidence he had done in my Lord Russel's Tryal with an Addition of what Mr. West and Mr. Goodenough told him Keeling gave evidence of what Goodenough told him all which the Court agreed was no Evidence against the Prisoner Then the Lord Howard gave the like Evidence from the niddle of January to that time as he had done in the Lord Russel's Tryal saving that the said the Earl of Salisbury was brought into the Cabal who was not mentioned before and save that be said the meeting at my Lord Russel's was about a Fortnight or three Weeks after the meeting at Mr. Hampdens whereas in my Lord Russel's Tryal he says it was about ten days after the meeting at Mr. Hampden's House and here he makes two notable Speeches for Mr. Hampden at the opening of the Consult both which he had forgotten at my Lord Russel's Tryal nor could remember at Mr. Hampden's Tryal though in the last he was lead by a great many Questions to put him in mind of them After his Evidence given Col. Sidney was asked whether he would ask the Witness any Questions who answered he had no Questions to ask him whereupon the Attorney General said silence You know the Proverb The Record of the Lord Russel's Conviction and Attainder was given in Evidence Sir Andrem Foster swore Sir John Cockrant and the two Campbells came to London Sir Phillip Floyd proved the seizing of some Papers in the Prisoners House and he did believe the Papers shewn in Court to be some of them Sheppard Cary and Cook swore the Writing produced was like the Prisoners Hand writing the Attorney General desired some part of the Writing should be read the Prisoner desired all of it might be read but was answered by the Court that the Attorney must have what Part of it he would to be read and afterwards the Prisoner should have what Part of it he would should be read but he persisted to desire all of it should be read then the Writing was read which wad plainly an Answer to a Book but what Book was not mentioned in which the Right of the People was asserted The Earl of Anglesey gave the same Evidence for the Prisoner of the Lord Howard's speaking of my Lord Russel and the Plot as he had done in my Lord Russel's Tryal The Earl of Clare said that the Lord Howard after Col. Sidney's Imprisonment said if he was questioned again he would never plead the quickest Dispatch was the best he was sure they would have his Life and speaking of the Primate of Armah's Perphesie said the Prosecution was begun and he believed it would be very sharp but hoped it would be short and said he thought Col. Sidney as innocent as any man breathing gave him great Encomiums and bemoaned his Misfortune and as for Col. Sidney's Papers he said he was sure they could make nothing of them Mr. Phillip Howard said the Lord Howard said it was a Sham-Plot Dr. Burnet gave the same Evidence as he did in my Lord Russel's Tryal Mr. Ducon gave Evidence that the Lord Howard said he knew nothing of Col. Sidney's being in any Plot. The Lord Paget gave Evidence to the same purpose Mr. Edward Howard gave Evidence to the same purpose Tracy and Penwick gave Evidence to the same purpose Mr. Blake testified that the Lord Howard said he had not his Pardon and could not ascribe it to any other reason than that he must not have his Pardon till the Drudgery of Swearing was over Now to review that hath been said it is strange to see what a Progress was made in the Resolutions of Points of Law to take away a mans Life to say in Col. Sidney's Words as if the Court and Council thought it their Duty to take away a mans Life any how Mr. West and several others are admitted to give Evidence by Hear-say against the Prisoner and their Evidence summed up and urged as Evidence to the Jury and the Reason given for it was that he was admitted a good Witness of a like matter in the Lord Russels Tryal which besides that it was not true for he was rejected in that Tryal as it appears in the Print yet if he had been admitted it was of no Authority as Col. Sidney said because perhaps he was not excepted to of a like Stamp is the Evidence of the Conviction of the Lord Russel though I agree the Lord Russel's Conviction was as good Evidence against Col. Sidney as the Earl of Essex's Murther was against my Lord Russel and no better the same may be said of Rumsey Keeling Foster and Atterbury's Evidence Against the Lord Howard's Evidence there was the same Objections as in the Lord Russel's Tryal with the Addition of several other Persons testifying that he said he knew not or believed any thing of the matter and that he could not have his Pardon till he swore others out of their Lives which in truth was the Sense of his Expressions The Kings Council indeed had thought of something since the Tryal of my Lord Russul to palliate the matter of the Lord Howard's Sayings for they lean'd hard upon his Reputation and lookt as if he would perjure himself at the expence of some Persons Lives as his Words are in the Lord Russels Tryal would you say they have had him confest the matter to those Persons to whom he had denyed it I think there is a difference between confessing and denying who asked him the Question What did it avail him to deny it to the Persons testifying against him and therefore when he voluntarily said a thing untrue unasked not provoked or compelled to do it and which could do him no good it was good Evidence of his untruth and that no Credit ought to be given to what he swore As for the last part of the Evidence which was about the Writing both the Indictment and the Evidence was defective As for the Evidence if the Subject Matter of the Writing had been Evidence of Treason the Indictment ought to have exprest that he published it which the Indictment in this Case did not and upon good reason which was that the Jury might be put in mind that the Publishing of it was necessary to make it known whereas they very well knew that the Evidence would not nor did come up to it This was the first Indictment of High-Treason upon which any man lost his Life for writing any thing without publishing it for in Fitz-Harris's Indictment he was charged with publishing his Libel and so in all other Indictments for Writing and upon good reason for this being made an overt Act of Treason it must be an Evidence of a Design to kill or depose the King or the like and as the Consequence of what in the
off his Tryal and it was referred to the Judges he did not know whether he was committed for High-Treason against the then present or the former King and he had a material Witness an hundred an forty Miles off but was told by the Court they had no Power to put off his Tryal it is true they said the Lord Russel's Tryal was put off to the Afternoon which was not true but that was a Favour which could not be challenged by another person as a Right he complained he had not a Copy of the Pannel but was answered it was not his Right to have it then the Attorney said he had not deserved so well of the Government as to have his Tryal delayed and therefore he was presently tryed Rumsey swore that about the latter end of October or beginning of November the Earl of Shaftsbury desired him to go to Mr. Sheppard's House where was a Meeting of the Duke of Monmouth Lord Russel Lord Gray Sir Thomas Armstrong Mr. Ferguson and Mr. Sheppard he came late and they were just on going away he delivered his Message and they told him that Mr. Trenchard had disappointed them he had not been there above a quarter of an hour but Mr. Sheppard was called down and brought up Mr. Cornish and told them Mr. Cornish was come who came into the Room and excused his not coming sooner and that he could not stay for he was to meet about the Charter whereupon Mr. Ferguson opened his Bosom and under his Stomacher pulled out a Paper they told Mr. Cornish they had had it read and desired to read it to him Mr. Ferguson read it Mr. Sheppard held the Candle while it was reading and afterwards they asked Mr. Cornish how he liked it who said he liked it very well he remembred two Points in it very well the one was for Liberty of Conscience the other was that all who would assist in that Insurrection which had Church or Kings-Lands in the late War should have them restored to them he did not hear all the Paper and observed only these two Points it was a Declaration on a Rising and when the Rising was to have been it was to have been dispersed abroad there was a Rising intended at that time and Mr. Cornish said he lik'd the Declaration and what poor Interest he had he would joyn with it he had great Dealings with Mr. Cornish and Mr. Cornish was a very honest Man it was out of compassion he had not accused Mr. Cornish before Mr. Goodenough said there was a Design to rise in London and for that purpose to divide the City into twenty parts and to raise five hundred Men out of each part to take the Tower and to drive the Guards out of Town before that agreed on he being by chance at Mr. Cornsh's House said the Law will not defend us some other way was to be thought on Mr. Cornish said he wondred the City was so unready and the Country so ready Mr. Goodenough replyed there is something thought of to be done here but in the first place the Tower must be seized where the Magazine is Mr. Cornish paused a little and said I will do what good I can or what I can or to that purpose he said He afterwards met Mr. Cornish on the Exchange who asked him how Affairs went and this was in Easter Term 1683. He had some Matters with Mr. Cornish about managing the Riot which was brought against him Mr. Cornish and others he came to Mr. Cornish's House about the Business of the Riot and no Person was by at the Discourse Mr. Gospright testified for Mr. Cornish that he opposed Mr. Goodenough's being Under-Sheriff and said he would not trust an Hair of his Head with him he was an ill Man obnoxious to the Government and had done ill things and he would not trust his Estate and Reputation in the Hands of such an Under-Sheriff and he believed Mr. Goodenough and Mr. Cornish were never reconciled Mr. Love Mr. Jekil and Sir William Turner testified to the same purpose Mr. Lane spoke out of the Printed Tryal of my Lord Russel and said Rumsey in that Tryal said he did not hear the Declaration read for it was read before he came Dr. Calamy said Mr. Cornish did often come to Church and receive the Sacrament Mr. Sheppard said he was Subpaend d by the King and by Mr. Cornish the Night before and that Mr. Cornish his Son was with him the Afternoon of the day before who prest him to be at the Tryal the next day that there were Accounts depending between him and Mr. Cornish whereon there was about one or two hundred Pounds due to Mr. Cornish and Mr. Cornish's Subpena was served first upon him At one of those Meetings at his House Mr. Cornish came to speak a few words with the Duke of Monmouth or some other he could not be positive in that it was so many Years ago he did not stay above half a quarter of an hour in the House Sheppard came up Stairs and went out with Mr. Cornish and there was not one word read nor no Paper seen while Mr. Cornish was there he remembred there was a Declaration read Ferguson pulled it out of his Sho he could not tell whether Mr. Cornish was at his House the Night the Declaration was read but he was positive no Paper was read while Mr. Cornish was there for Mr. Cornish was not look'd on to be one of the Company he did not know who Mr. Cornish came to speak with when he came to Sheppard's House Mr. Cornish was but once at his House when the Duke of Monmouth was there he did not remember that Mr. Cornish was in the Company when Rumsey was there he said he had attended the Court from Eleven a Clock till half an hour past three This being the Sum of the Evidence given in the Tryal for and against the Prisoner Let us see whether those Inferences could be made from it as was made by the Court and Councel and whether on the whole and honest Jury tho but of little understanding could have found him Guilty of the Treason in the Indictment It is agreed of all Hands that a petty Jury may and must consider the credibility of a Witness tho in the Lord Shiftsbury's Case it was said a Grand Fury ought not so to do and if so surely Rumsey was not a credible tho he was not a disabled Witness no more than a Man who owns himself to be a Man of Falshood a profligate Wretch and perjured by his own Confession tho not Convicted of it he had notoriously confessed himself Guilty of High-Treason and of being in the Design of an intended barbarous Murther he had sworn in the Lord Russel's Tryal he had named all the Persons at the Meeting he spoke of of which Mr. Cornish was none and being taxt in this Tryal with it he excuses his Perjury with Compassion to the Prisoner which was mean
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
so much as hearing the Prisoner's Counsel for the maintaining it the pretences were That the Prisoner on his Plea ought to have produced the Record of his Impeachment and that the Plea of the Impeachment for High Treason in general was nought without specifying what the High Treason was for which he was impeached For an Impeachment or an Indictment of High Treason in general was nought that the King had power to proceed on an Impeachment or Indictment for the same thing at his election That the allegation that Fitz Harris was impeached which Impeachment stood in full force not having mentioned an Impeachment before was nought But afterwards the Attorney General demurred and the Prisoner joined in the Demurrer And then day was given to argue the Plea till Saturday the 7th of May at which time the Attorney added to the Exceptions he took to the Plea Whether a Suit in a Superior Court can take away the Jurisdiction of another inferior Court who had an Original Jurisdiction of the Cause of the Person and of the Fact at the time of the Fact committed To maintain the Plea the Counsel for the Prisoner alledged That an Impeachment differed from an Indictment the first was at the suit of the Commons of England and was like an Appeal or rather an Appeal assembled an Impeachment that the proceedings were different in the Tryals in the first the Tryal is by the House of Lords in the last of a Commoner by a Jury of Commons In the last but little time was allowed for giving or considering of the Evidence in the first a much longer time that this matter was never practised before that the King may pardon a Criminal prosecuted by an Indictment but not by an Impeachment no more than if prosecuted by an Appeal If he should be acquitted on the Indictment it might be a question whether that may be pleaded in Bar to the Impeachment and if not the Prisoner should be brought twice in jeopardy of his life for the same Crime contrary to the Rule of Law. To the Objection That the Plea was not certain it being pleaded as an Impeachment of High Treason not setting forth the High Treason in particular it was answered That an Impeachment differed from an Indictment for by the Custom of Parliament which is the Law of the Land such a general Impeachment is good but by the Law a general Indictment of High Treason without specifying what when where or how is not good and therefore the Plea of an Indictment and an Impeachment variant As to the Objection That there was no Impeachment mentioned before the averrment of quae quidem impetitio was frivolous for it was before mentioned that he was impeached and then by a necessary consequence there was an Impeachment As to the Objection That the King might in which Court he would prosecute for High Treason was little to the purpose for the Case did not come up to it the Impeachment being the Suit of the Commons and not of the King and that the Courts of Westminster-Hall had refused to meddle with Matters relating to the Parliament That tho' the Impeachment was general yet it was made certain by the averment that it was for the same Crime for which the Indictment was That the Attorney General might have taken Issue that there was no such Impeachment as was pleaded or else he might have said that the Impeachment was not for the same Treason for which he was indicted but having demurred he had confessed both to be true that at Common Law if an Appeal of Murder had been brought the King could not proceed on the Indictment till the Appeal was determined That the Judges whereof some were then in Court had given their Opinions to the King and Council concerning the five Popish Lords that they could not be tryed upon Indictments so long as general Impeachments were depending for the same Treason and yet their Cases and this differed there the Indictments were found before the Impeachments preferred and here after the Impeachment In the reply to vitiate the Plea it was insisted That it did not conclude si curia procedere debeat as well as vult as was usual for Pleas of that Nature to do that perhaps this matter if the Prisoner had been acquitted upon the Impeachment might have been pleaded in Bar to the Indictment but it was not pleadable to the jurisdicton of the Court that in the Case of the five Lords the Indictments were removed into the House of Lords that Appeals in Treason are taken away by the first of Henry the 4th that in the Plea it ought to be averred what Lex consuetudo Parl. are that till Articles carried up no man impeach'd is obliged to answer that in all cases of Appeals a man is put twice in jeopardy of his Life if he be tryed upon an Indictment within a Year To take a short review of what hath been recited it was thought the King's Counsel run the Court upon a Rock and it was hard for them to get off The Court had advised them to take time to consider what course they would take but the Kings Counsel were hasty as they always were when they were resolved to carry a matter right or wrong and having three bad ways they chose the worst If they had taken issue on the Record or the Averment that the Impeachment and Indictment were not for the same Treason they might have pretended that the Journal of the House of Lords was not a Record or that the Debates in the House of Commons were not good Evidence or if they had replyed the Order of the House of Lords for Trying the Prisoner in the King's-Bench to the Plea they might have insisted on the power of the House so to do but having demurred they confessed the Truth of all the matter of the Plea and waved the Benefit of that Order and stood upon Points of Law either conceded by the Court or resolved by the Judges before or such necessary inferences from them as was impossible to be denyed It could not be denyed but that a general Impeachment of High Treason by the Custom of Parliament was good it could not be denied but by the Resolution of the Judges in case of the Lords in the Tower a general Impeachment of High Treason stopt proceedings upon an Indictment for the same matter It did not differ the case that the Indictments in the King's-Bench against the Lords were removed into the House of Lords for every one knows new Indictments might have been preferred against them for the same Crimes And if that had been the Reason of the Judges Resolution why did not the Judges then in Court all or most part of which were Judges at the giving that Opinion deny the Opinion or the Reason alledged which they did not It was not a Reason to disallow the Plea because particular Articles use to follow general Impeachments and the impeacht are not bound to answer
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
the King that he never was admitted to the King. The Lord Cornway said that the King had declared in Council that Fitzharris had been employed by him in some trifling businesses and that he had got money of him but added as of his own Knowledge that the King never spoke with him till after he was taken which was the 28th of February last All the Evidence being over it was summed up by the Counsel That upon all the Circumstances of it Fitzharris was the Contriver and Directer of the Libel that it was a Treasonable Libel and a Jesuitical Design that the Excuse he made as if Everard drew him into it or trepanned him into it was vain nothing of that being proved That Everard could do nothing alone and therefore Sir William Waller must be in the contrivance but that was unlikely that the Prisoner would insinuate that the King hired him to do it because the King gave him Money but that was out of Charity and therefore concluded with a great many words that an English Protestant Jury of twelve substantial men could not but find the Prisoner guilty The Court added that tho' Doctor Oates said Everard said it was a design of the Court and was to be put on some Lords and into some Parliments Men's Pockets yet Everard was there upon Oath and testified no such thing in the world and for the Impeachment in the Lords House they were not to take notice of it After which the Jury informed the Court that they heard there was a Vote in the House of Commons that the Prisoner should not be tryed in any inferiour Court To which the Chief Justice said That that Vote could not alter the Law and that the Judges of that Court had Conference with all the other Judges concerning that matter and it was the Opinion of all the Judges of England that that Court had a Jurisdiction to try that man. After which Justice Jones was of Opinion that if he were acquitted on that Indictment in might be pleaded in Bar to the Impeachment And Justice Raymond delivered his Opinion to the same purpose It is strange that all the Judges should be of that Opinion yet before it was said Justice Dolbin doubted It is more strange that if Justice Dolbin was not of that Opinion he would hear it said he was and not contradict it It is most strange that if the Judges of that Court were of that Opinion they had not declared so in the arguing or giving Judgment on the Plea for that was the Matter of it being pleaded to the Jurisdiction of the Court that they had not power to try the Prisoner for that Crime so circumstanced If the Plea had been over-ruled as to the Matter none would have been so impertinent as to go about to maintain the Form of it Now to say truth in behalf of the publick and not on behalf of Fitzharris the Evidence was unfairly summed up for Fitzharris never pretended Everard drew him in or was to trepan him It is true he asked Everard what the design of the Pamphlet was and whether he was not put upon it to trepan others who answered he was not But afterwards being too nearly prest by the Attorney General he said Fitzharris told him the use of the Libels was to disperse them he knew how that they were to be drawn in the name of the Non-conformists and put upon them And Oates said Everard said the Libels were to be printed and sent abroad by the Penny-Post to the Protesting Lords and Leading Men of the House of Commons and the persons seised with them in their pockets which is all strong Evidence that the Libel was designed to trepan others and that was all along the import of Fitzharris his Questions though cunningly not answered by some of the Witnesses and as cunningly omitted in summing up the Evidence It is true the Chief Justice said Everard said no such thing as Oates had said but why was not Everard who was then present asked whether he said what Oates had given in Evidence There cannot be shewn any President where a Witness contradicts or says more or less than a Witness that went before him by the hearsay of that Witness but the first Witness is asked what he says to it Why was not Sir William Waller who was also present asked what he said to the Evidence of Mr. Mansell and Mr. Hunt and who it was that informed Sir William what the King said It was no way in proof nor pretended by Fitzharris that any person was concerned in that matter but Everard and Fitzharris though it was shrewdly suspected by the House of Commons and no man that reads the Tryal but believes there were many more concerned not yet discovered but the Counsel might have brought in any Judge of the Court by the head and shoulders to be a Confederate as well as Sir William Waller that was a Jack-a-lent of their own setting up in order to knock him down again It was not pretended by Fitzharris that the King gave him any money to frame that or any other Libel there was Evidence that he had got money of the King for some little matters he was imployed in perhaps for bringing Libels dispersed abroad or discovering Plots Upon the whole Evidence it was plain that Fitzharris was an Irish Papist it was plain he was the only visible Contriver of the Libel who were behind the Curtain is not plain and to know them was the Design of the Impeachment It was plain it was a Devilish Jesuitical Design as the Court and Counsel in summing up the Evidence agreed it to be it was plain that the Libel was such that if disperst with intention to stir up the King's Subjects against him it had been High Treason within the Statute of the 13th of the King but what the intention of the contriving the Libel was was not very certain and therefore consequently what the Crime of it was was uncertain To take the Evidence all the ways as to the Design of the contriving of the Libel it is capable of being interpreted the easiest construction is to say he framed a Libel with intention to pretend to the King that he had intercepted a Libel privately dispersed and to make it more likely it should be framed in the Nonconformists Names to make his Report the more credible for of Papists or Church-men it could not be believed to get more money of the King and that matter by all his Questions to the Witnesses he most drove at and that would at most be but a Cheat. A more Criminal but less credible construction is to believe he designed to disperse them to excite and prevail upon the Discontented to take up Arms. For what Effect had that Pamphlet when it was for it was afterwards dispersed upon the Minds of the People or what Effect could any Man of Sense think it could have for though it was a Virulent yet it was as Foolish a contriv'd
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
letting them know for what and without confronting them with the Witnesses against them upon the Commitment For how could this man have known what Witnesses to produce unless he had known what in particular he was Indicted for and how could he have sent to such Witnesses unless he had had the liberty of sending to the persons who were to be Witnesses for him and it shews the folly of those sayings that a mans Innocence must defend him and that the Evidence against the Prisoner must be as clear as the Sun at noon day All will agree that the Prisoner in this case was innocent and yet that alone without producing a Witness to prove his innocence would have stood him but in little stead and how could he have known what sort of Evidence to have ready unless he knew what he was accused of I do not mean what Crime he was accused of as Treason Murder Robbery Thest or any other Crime but unless he knew the Person robbed when where and other Circumstances which say some is not to be permitted in Prosecutions of High Treason for if so then no man shall be hanged for High Treason unless there was as strong proof against him as is required in an Indictment of any other Capital Matter and that they say is not to be expected in Treason for no man will call two Witnesses to be Evidences of his Words or Actions being Overt Acts of his Design of High Treason The Objection is too foolish to be answered For it is neither better nor worse than that if a man shall not be hanged for Treason without Evidence he shall never be hanged for Treason for no Evidence and Evidence which the Law rejects is the same in Sense tho' different in words and as the intent of the mind is difficult to prove on part of the King so is the Prisoner's part of producing counter Evidence much more difficult and therefore the Law hath taken care by the Statute of Edward the 3 d. that the Intent shall be proved by an Overt Act and by the Statute of Edward the 6th that that Overt Act shall be proved by two Witnesses And therefore since the Law hath taken care that there shall be a stricter proof in High Treason than in any other Crime for the Judges to say a less proof may be admitted to convict one of High Treason than of any other Crime is very ridiculous unless they will at the same time say that the Parliament who made those Statutes were men of little understanding and not to be regarded And certainly it was a good Counter-Evidence which was given in behalf of the Prisoner by some Witnesses though slighted by the Court and not permitted by the Court to be given by others that there were great endeavours to set up Sham-Plots and charge the Protestants with them For let any one shew me a Reason why the Evidence of Sham-plots though they do not immediately concern the Prisoner is not as good Evidence for him as the Evidence of a Real Plot in which he was not concerned is against him The last was permitted to be given in Evidence against my Lord Russel Collonel Sidney and others tho the first was not permitted to many Witnesses in this Tryal and it was a material Objection which Colledge made That there was no proof of any Persons being concerned with him in the Design of seizing the King. It was an unadvised answer the Court gave that he alone might be so vain as to design it alone for if from thence an inference is made as was insinuated by the Court to the Jury that therefore he did alone design it it was an Evidence of his being a Mad-man not a Traytor had the Evidence been of the mischiefing the King by means which a single person is capable of using as Stabbing Shooting and the like the matter is not impossible but it being by means which it was impossible for a single person to execute it carries such disbelief with it that it is impossible to find a man in his Sences at the same time guilty of it And a man that is non compos mentis if my Lords Coke and Hales are to be believed cannot be guilty of High Treason within that Branch of the Statute Compassing and imagining c. It is true a mad man may be guilty of Treason in atempting the King's Person but for that he is no more said to be punished than Beasts of prey are when killed which are more properly said to be destroyed than punished for the publick good But if so good a Counter-proof in Colledge's Case was not made as ought to have been some allowances ought to be made for the Prisoner's ignorance of what he was accused of his usage and strict Imprisonment before his Tryal the ruffling him just before his Tryal in the manner before declared the depriving him of his Notes the giving an Evidence of many hours long against him before he was permitted to answer any part of it And the use of Pen Ink and paper was but of little advantage to him for a man that hath not been used to do it cannot take notes of any use And in truth he complained he had not taken notes of half said but relyed on the Court to do him Justice in summing up the Evidences which they promised to do but broke their words It must likewise be considered that the concern a man hath upon him when he is upon Tryal for his Life it is so far from fortifying that it weakens his Memory Besides the foul practice without any remorse put upon him and his Witnesses some of them imprisoned that he could not have them at the Tryal others so threatned that they durst not appear for him and the cry of the auditory against him and his Witnesses were mighty discouragements All these things being considered how could any understanding Jury take it on their Oaths That the Evidence against the Prisoner of a Design to feize the King c. was as clear as the Sun at noon days As for the Evidence which Mr. Masters gave if it were true it was no Evidence of Treason an Erroneous Opinion may make an Heretick but not a Traytor it is a very distant Consequence that because he affirmed that the Parliament in 40 had done nothing but what was just in respect of King Charles the First therefore the Prisoner was guilty of a Design against King Charles the Second besides that in all pronbability tho' Mr. Masters might inveigh against the Parliament Colledge might only justifie them by throwing the ill things done in that time upon the Papists as Colledge in his Defence says and Mr. Masters after much pumping recollected himself and said he thought the Prisoner said the Papists had a hand in those things which proved the truth of Colledge's Assertion As for the Evidence of Colledge's saying he might be a Collonel in time if he hoped for what he said it was no
Crime or proof of a Crime 't is no more than what every private Soldier hopes for and he himself had been one As for the Evidence of Atterbury Sawel and Stevens of their seising the Pictures admit they swore true it did not amount to the proof of the Treason in the Indictment or of any sort of Treason And yet if Colledge's Maid said true it looks as if the finders or some other person sent them to Colledge's House in order to find them there Of all sorts of Evidences the finding Papers in a persons possession is the weakest because no person can secure himself against designs upon him in that kind And after Dangerfield's Design upon Collonel Mansell and the Evidence in Fitzharris his Tryal that the Design of that Pamphlet was to convey Copies of it to some Members of Parliament's pockets and then seize them that piece of Evidence ought to have been spared till those and other practices of like kind had been forgotten The last Witness was Sir William Jennings of Colledge's saying he had lost the first blood in the Cause but it would not belong before more would be lost what was that more than that he thought more would be lost in the Cause which he interpreted the Protestant Cause Suppose he thought so without reason and was mistaken where was the Crime But if he thought so upon good reason and good reason he had to think so there was no pretence of a Crime in it I believe most men thought as Colledge did from the time of the business of Fitzharris and what imputation was it to him Why were not all the expressions he used in his Tryal as good Evidence against him as that saying For he then said it was an horrid Conspiracy to take away his Life and would not stop at him for it was against all the Protestants of England and the like which was his Opinion and after times shewed him a true Prophet One thing was very dishonestly insinuated that the Prisoner was a Papist which was only to incense the Jury against him and it had its effect whereas it was very plain that he was a Protestant tho' perhaps a Dissenter and therefore had not lately come to the publick Church and under that notion the Papists and some Protestants were contented that Dissenters should be punished as Papists yet if they could have proved him a Papist no doubt of it they would have done it for the destruction of the man was the design of the Prosecution and it mattered not for what Treason he was convicted so he was convicted and he himself gave a pretty sort of Evidence against himself if they could have proved him a Papist He proved and confessed he was Educated a Protestant and if they could have proved him reconciled to the Popish Religion which was Treason he helpt them a great deal in their proofs It was therefore very disingenious in the Chief Justice to reproach him at his Condemnation that he had not made that proof of his Religion as it was expected when his Religion was not the matter of which he was Indicted that was slily insinuated to exasperate and no proof pretended to be made of his being a Papist But he had more reason to complain of the injustice of the Court in summing up the Evidence who did it in such a manner that if they had been Counsel for the Prisoner as they pretended they would have been justly suspected to have taken a Fee of the other side to betray their Clyent For as Colledge readily said if the Chief Justice had looked on his Notes he would have found more Evidence against Turbervile and Dugdale than he had repeated And it was a lame excuse for the Chief Justice to say he referred it to the memory of the Jury for he could not remember more whenas I dare say after about thirteen hours Evidence the Jury remembred no more than that they were to find him Guilty The truth is upon hte whole what Colledge said was true they took away all helps from him for defending himself and therefore they had as good have condemned him without a Tryal Notwithstanding all which the courage of the Man never fainted but after he was condemned boldly asked when he was to be Executed To which the Lord Chief Justice replied it depended on the King's Pleasure but smoothly said in those Cases of High Treason they did not use to precipitate the Execution it should not be so sudden but that he should have notice to prepare himself And in truth he had from the eighteenth on which he was condemned to prepare himself to the one and thirtieth of August 1681. on which he was Executed a much longer time than was allowed may Lord Russel or Mr. Cornish and many others And the true reason of so long a Reprieve was to see how the Nation would digest the matter and to see whether the man by the terror of Death could be prevailed upon to become a Tool for to destroy other Innocents but when it was found that the people were quiet and that the Prisoner could not be prevailed upon to do an ill thing to save his life his Execution was ordered yet as a shew of mercy his Quarters were permitted to be buried a favour he slighted with saying that he cared not whether he was eaten up with Flyes or Worms The same favour was likewise shewed Fitzharris but the true reason of both was that they had a mind that the Tryals and pretended Crimes for which Fitzharris and Colledge were condemned should be forgotten which would not be so soon done if their Quarters were alwaies exposed to view But tho' all people were quiet yet there was great grumbling and most honest men were afraid and the constancy of Colledge at his Execution was such that it made the most violent against him relent REMARKS ON THE Earl of Shaftsbury's GRAND-JURY THE next Person questioned was the Earl of Shaftsbury against whom a Bill of High-Treason was preferred to the Grant Jury at the Sessions House on the 24th Day of November 1681 The Evidence was publickly given in Court and was this Mr. Blathwaite swore he found the Papers then produced in a Velvet Bag in the great Trunk which was taken by Mr. Gwnnye in the Lord Shaftsbury's House Mr. Gwynne swore All the Papers in the Velvet Bag when he delivered them to Mr. Blathwaite were taken by him in the Lord Shaftsbury's House Sir Leoline Jenkins swore the Paper produced was the Paper delivered him by Mr. Blathwaite and it was unaltered then the Paper was read the Effect of which was a project of an Association signed by no Person and whose Hand Writing it was none knew John Booth swore that he was engaged to Captain Wilkinson who pretended to have a Commission from the Lord Shaftsbury and several others to go for Carolina he was about that time introduced into the Earls acquaintance by the Captain where was a discourse about Carolina
against a Petit Jury The Oath of the Grand Jury is To present the Truth the whole Truth and nothing but the Truth The Oath of the Petit Jury is Well and truly to try and true Deliverance make between the King and the Prisoner at the Bar c. which signifies the same thing as to present the Truth c. it is true some reasons have been offered which if considered are Word without Sence As thatthe Presentment of the Grand Jury is but in order to bring the Prisoner to his Tryal and he is not before the Grand Jury to make his Defence himself but that can be no reason why Probabilities should satisfy the Jury because it doth not answer the design of the Law which will have a Man convicted by the positive Oaths of Two Juries consisting of more than twenty four in all Endictments Next why is a Grand Jury composed of more substantial and understanding Men than a Petit Jury if their business be mere Formality or a Matter of less weight than the business of a Petit Jury In the last Place why is less Evidence requir'd to convict a Man in his absence than is requir'd to convict him if present it seems to me so far from an Argument that less Evidence is requir'd to convict one if absent than if present that it seems to me that more Evidence should be required to do it Men may and often do make very fair Stories in the absence of a Person accused that when present he easily answers and there being no positive Law for the Direction of a Grand Jury in that Matter a Grand Juryman is excusable nay it is his Duty to give a Verdict according to the plain Understanding of the Words of his Oath which is to present the Truth as far as he is convict of it and that Truth must be found according to his knowledg or as it is represented to him by Witnesses And as for the Witnesses they must be Persons of credit and all Persons are supposed to be so unless the Grant Jury know the contrary or have been so credibly informed 't is true a Grand Jury ought not to believe Coffee house Stories or light Stories but common Fame by credible Persons which is vox Populi ought to prejudice them against a Witness so as to disbelieve him and it is no Answer to say as the Chief Justice in this Case said That the credibility of the Witness is not to be considered by the Grand Jury because the King is not present to defend the credit of his Witness tho the Fact in that Case was not true for the Kings Attorney Sollicitor and Counsel were present and I think the King is no otherwise present at any Criminal Prosecution and the Jury knew by Colledge's Tryal and by Wilkinson's Deposition before the King that the Evidence of all the Witnesses produced except what were to the Paper was questioned but even that was afterwards quitted by the Court when it would not be swallowed by the Grand Jury for afterwards the Court told them that if they of their own Knowledg knew any thing against the Witnesses they might consider of it but not of what they were credibly informed of by others and besides the credibility of the Witnesses the Possibility or Probability of the thing sworn is to be consider'd by the Grand Jury an impossible thing they ought not to believe tho' sworn by never so many credible Witnesses and a very improbable thing they cannot positively on their Oaths swear they believe And not only the Fact but what the Crime of the Fact alledged in the Bill of Endictment the Grand Jury as far as they are capable of judging Matter of Law ought to consider so they were told in the charge given them it is true if they were Ignorant in the Law and the Court in their directions misled them as if the Court should tell them stealing an Horse is High Treason and the Grand Jury find it accordingly it is excusable in the Grand Jury though punishable in the Court but wrong directions by the Court in the finding a Fact where there is no Evidence doth not excuse the Jury Now to examine the Matter in hand by these Rules could any Person who knew my Lord Shaftsbury or that had heard of or believed his Character to be what it was believe that it was possible for him to discourse with the Witnesses at the rate they swore to some of them to discourse of Matters of pollicy with Booth at one time and afterwards with Haynes and afterwards with Macnamarra Fellows of so little Sence that he would have been ashamed to have entertained them in the meanest Office about him and yet as they pretended makes them his Privadoes in the secret of not so much what he would have had them but of what he intended himself to do Who could believe any thing Turbervile Smith or Haines should say where there was so much of their falshoods and of their designs to swear falsly proved against them in Colledge's Trial or of Ivey and the three Macnamarra's after that Tryal who tho' they were not produced at it because the Kings Conncil by Colledge's Notes saw he was able to falsify them yet some Witnesses in that Tryal proved their design of swearing falsly Who could believe Booth's story of Listing so many Men under Wilkinson to be at my Lord Shaftsbury's dispose at Oxon after Colledge's Tryal and after what Wilkinson had testified to the King and Council though not then proved to the Grand Jury A Judg indeed cannot take notice of any thing not proved though he may and ought to be a Witness if he knew any thing material of the Matter tryed before him and others but a Grand Jury may take notice of any thing they know or believe The Passages at Colledge's Tryal were pretty notorious being authentically published by Fra North and the Examination of Wilkinson by as authentic a Paper It was unaccountable that the Witnesses conceal'd what they heard the Earl speak so long of which none of them pretended to give any reason nor was it any excuse to those who signed a Petition to the City in which they suggested they were tempted to swear against their Consciences to say they knew not what was in the Petition he that sets his hand to a thing as if he aslented to it but doth not is a Man of Falshood Suppose one sets his hand to a Bond said to be sealed and delivered not having seen it Seal'd and deliver'd is not he guilty of little less than Forgery but admitting those Witnesses had sworn Truth yet the Jury ought not to have found the Bill for they ought to find the Bill true according to all the material Circumstances of it as well as the Substance of it which was High Treason one material Circumstance of it was that it was said to be High Treason within the Statute of Car. II. and that made another Circumstance
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
time he desired as in this Case it did Fitz-Harris said his Witnesses were in Holland and tho he named no Persons yet his Tryal was put off to the next Term my Lord Russel said his Witnesses could not be in Town till that Night yet the respite till next day was denyed all Persons agreed that there was some extraordinary Reason for it and before the Tryal was over the Riddle was out My Lord of Essex was killed or to be killed that Morning as to this Matter it is not material whether by his own or anothers Hand they were sensible the Evidence against my Lord Russel was very defective and that accident was to help it out but that would not avail unless it were a surprising Matter upon the Jury should the Jury have had a days or but a Mornings time to consider of it People might have been talking with the Jury it was very material to ask what influence that accident would have on my Lord Russels Trial whether it was any Evidence against him they might have been told what was true that no Person killed was in Law supposed to have killed himself till a Coroners Enquest had sate upon the view of his Body and found it so and if it had been so found yet even that had been no Evidence against another because the Coroners Enquest never found the reason why a Man killed himself and if they should find the reason yet even that was no Evidence against another because that other was never called before the Coroners Enquest to make his defence they might have been told a great many Circumstances of the Improbability of the killing himself they might have observed that the Kings Councel was so far sensible that it was no Evidence against my Lord Russel that they never attempted to prove the Earl of Essex was dead or killed himself it was only slyly insinuated together with the reason of it which had its Effect if the report be true of some of the Jurymen's saying it went farther with them than all the Evidence of the Witnesses produced and if that be true there was a reason tho not a just one for speeding that Tryal beyond the ordinary Methods of Trials at the Old Baily But tho my Lord Russel had seemingly less favour in that Matter than any other Person even than Colledge who had the respite of two or three hours between his Arraignment and Trial tho that was not in Favour to Colledge but only to examine his Papers which they took from him and instruct their Witnesses accordingly yet in other things he had more favour or justice done him his Papers were not taken from him it was agreed to be his Right to use them without questioning from whom he had them what they were or the like as in Colledge's Case was done he had a Copy of the Pannel of the Jury even before his Arraignment given him and the Chief Justice said it was never denyed in case of Life that he knew of which was denyed Col ledge before he pleaded because as then was pretended there was no Issue joyned till Plea pleaded after which the Venire is awarded tho' all Mén know That the Sheriff summons the Jury before the Arraignment and even after Issue joyned Colledge was denyed a Copy of the Pannel only he was told he should look every Jury-man in the Face before he was sworn and as far as the Looks of a Man betrays him he should be satisfyed whether he was honest or not which is an ill way of judging for I think the Person that gave that Rule would have deceived any Man by his Countenance who had known his Practices But say the Attorney General in my Lord Russel's Case it was matter of Favour and not of Right therefore no Injustice to Colledge I confess of all Men which ever came to the Bar he hath laid down the most Rules which depend totally upon the Authority of his own Saying In Colledge's Case he affirmed that the King's Witnesses ought not to be kept out of the hearing of each other when they gave their Evidence a method used in Civil Matters the reason of which is well known and none can shew any Law or Reason why it should not be used in capital Matters with as much Reason and Authority as what now said First I do affirm there is no Authority in Law which says a Prisoner shall not Have a Copy of the Pannel In the next place I do affirm that after a Jury struck in a civil Matter each Party ought to have a Copy of the Pannel in order to provide himself of a challenge if there be any cause In the last Place I do affirm that by Law more Favour is allowed a Defendant in a Capital Matter to defend himself then in a civil and if these propositions be true let any Person if he can make out the Law or Reason of the above assertions Of a like stamp were the sayings when my Lord desired a Copy of the Matter of Fact laid against him the Attorney said he had notice of it for questions were put to him about it and he was with his Lordship himself and examined him upon those questions which was a Favour to him that he might know what the Matter was he was accused of I do not affirm that ever it was practised to give the Prisoner a Note of the Fact to be given in Evidence against him proving Treason or that it was ever densed till then nor do I know of any Law pro or con in the Case but if one would judge by reason or practise in paralel Cases I think it ought not to be denyed I know not at present of more than two Sorts of general Indictments and those are of Treason and Barretry the last is a general Indictment for stirring up Suits without reason and without mentioning any Suit in particular and therefore if by the Rule of Court the Defendant was no helpt which obliges the Prosecutor to give the Defendant some reasonable time before the Tryal a Note of what Suits he intends to give in Evidence against him it was impossible for the Defendant to escape if it had been his misfortune to have had five or six Suits For I never yet saw a Witness produced against the Indicted but he would swear the indicted brought an Action against him without reason and yet I have often seen that the Indicted having had notice that that was one of the Suits he was intended to be charged with hath been able to prove that he had good or at least probable Cause of Suit which he could ' not have done if he had not notice and in Treasons for designing to kill the King there having been so many Interpretations of Facts tending that way that it is almost impossible for an Innocent to defend himself unless he had notice of the Fact intended to be insisted on at the Tryal There are yet some expressions which mightily puzle
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
readily trust the Lord Howard with the Secret who was unconcerned in the management before as he says himself and yet secreted himself from the Duke of Monmouth and my Lord Russel who were equally Guilty if what was sworn was true I cannot but observe that in all the time of the Lord Shaftsbury the Lord Howard was no otherwise concerned in the pretended Design but in raising difficulties and being in great fear least there should be a Rising or an Attempt upon the Kings Person and if he said true he was he Man that put of the intended Risings and likewise the intended Designs on the Kings Person in so much that I think he was so far from standing in need of a Pardon for Treason that he deserved a considerable Reward if it were for nothing else than for his fearing the design was discover'd By the Proclamation against Bonefires which as he said put off the Rising intended to be the 17th of November and yet he and others being afraid the middle of January they erected themselves into a Cabal of Six Persons of which there is but one Person in all his Narrative he pretends to have spoken to about that Matter before which is the Duke of Monmouth and but one more he pretends even by hearsay to be concerned in it before which is my Lord Russel and how improbable therefore was it that those Six Persons should as it were on sight put themselves upon such a dangerous design especially considering the reason he gives for it which was their Fears that what had been transacted was or might be discovered this likewise is observable that from the 30th of September the time the Sheriffs entred upon their Office to the 17th of November following he is very exact as to the time of each Matter when there was no Person could contradict him for my Lord Shaftsbury was dead Walcot was convicted and the Duke of Monmouth was gone who are all the Persons mentioned to be concerned in that time yet when he comes to speak of the matter in which my Lord Russel was concerned then be says it was about the middle of January about ten days after about six weeksafter about three weeks and five weeks for had he been precise in the times he might have been disproved in the Meetings he gave Evidence of and it is much his Memory was so very good as to the former times to be so very precise in them as he was and so very defective in the latter times and yet those times do not make up the space between the middle of January and the time of the Tryal by many weeks unless you will give large allowances to the word about an Exception which was taken to Mowbray's Evidence tho' he rectifyed it by his account in his Almanac but it would not be admitted tho' Colledge very sensibly desired of the Court for Justice sake to look on the Almanac to see whether it was newly writ as if done for that purpose Besides the Improbability if such a thing was in hand as the Lord Howard pretended for him to run into the Country and then to the Bath when the matter was just come to a Crisis as it were shews him if swore true rather a Madman than a Traitor But the Usage of the King's Council and the Court toward the Prisoner was very unjust and unfair they permitted the Lord Howard to go on with a long story of him and my Lord Shaftsbury at which when my Lord Russel took Exceptions the Chief Justice it is true said it was no Evidence yet the Attorney General bidding him go on in the Method of time he went on where he left of intermixing Stories of Designs and of Attempts by other Persons upon the Kings Person to exasperate the Jury as my Lord Russel said rightly against him a thing which no Councel durst have done and no Court would have suffered in any other Case nor even in that would the Court or Councel suffer it for the Prisoner how was my Lord Anglesey checkt when he began to tell what my Lady Chaworth said and Mr. Edward Howard when he did not speak of his own knowledg how unjust was it for the King's Council to repeat all the Evidence the Lord Howard gave when they summ'd it up even that which the Court told them before was not Evidence how unjust was the insinuating of the Death of my Lord of Essex as Evidence against my Lord Russel and why did not the Court in Summing up the Evidence take notice of the Liberties the Witnesses and Council had taken and have told them what was not Exidence No other reason can be given than what Colledge said at his Tryal upon his Observation of Fitz. Harris's business and his own That the Matter was not to stop at him REMARKS ON Col. Sidney's TRYAL THE Lord Russel being Executed and the same day what was called his Speech being published then which nothing of Print was more eagerly accepted or sought after which shewed the Inclination of People there was some respite for quieting the minds of the People but it was not to stop there as Colledge said and therefore Col Sidney who was talk'd to Death under the Notion of a Common-wealths man was the 17th of November 1683. brought to Westminster to be arraigned on an Indictment of High-Treason the Indictment at the time he came to the Hall was so far from being found by the Grand Jury that it was not so much as presented to them but the Kings Council who had packt the Jury knew well enough that it would be accepted that is found upon sight by the Jury without any consideration which was accordingly done and Col. Sidney thereupon arraigned The Indictment was for designing to depose the King and to perswade the Kings Subjects to rebel and that he did write a certain Libel wherein it was contained that he meaning King Charles the Second is subject to the Law of God as he is a Man to the People who made him such as a King To which Indictment he would have put in some exceptions exprest in a Parchment in his Hand but was told by the Court he must either plead or demurr and upon no other Terms Exceptions could or ought to be admitted after which he pleaded not Guilty The 21th of November he was tryed at which time he insisted to have a Copy of his Indictment as he had done when he was arraigned but was both times denyed The first Witness against the Prisoner was Mr. West against whom Col. Sidney objected because he was not pardoned but it was answered by the Court that he was a good Witness in my Lord Russels Tryal and therefore should be in that then Col. Sidney desired Mr. West might speak nothing but what be knew of Col. Sidney but was answered by the Court he might give Evidence of a Plot in general though Col. Sidney not concerned in it and it was called Sir William Jones's Law
foolish and contradictory he Perjured himself to save the Prisoner and then swore Truth to Hang him he had not presence of mind enough to excuse himself in the manner a Witness in the Lord Russel's Tryal did that his God his King and his Countrey put him unwillingly to Act that Part besides that in the Lord Russel's Tryal Rumsey swore he was not at the reading the Declaration and contradicted Sheppard who swore he thought he was there But that passage was proved only by a Witness who had read it in the Tryal which I confess in strictness of Law is not Evidence 〈◊〉 if the Witness had said he heard Rumsey swear so at the 〈◊〉 Russels Tryal even that had not been Evidence unless a Record of that Tryal had been produced in Court which was not done but all those things being but meer circumstances shew the injustice of Speeding his Tryal and denying him Councel Would not any Councel have told him that in strictness of Law a Passage in a Printed Tryal was not Evidence and was it not easie for him to have got a Witness to have said that he had heard Rumsey swear so at that Tryal were not all the Judges which sate upon him and all the Kings Councel which were against him present at the Lord Russels Tryal and perfectly remembred what Rumsey then swore as to the Pretended Declaration and might he not have Subpaena'd them to have testifyed that Matter Nay was it not their Duty to have done it even without a Subpaena To say it was against the King and therefore they could not do it or they were in the Commission to try him and therefore they could not do it is neither Law nor Reason every Man knows that a Judge in a Civil Matter Tryed before him and a Councel even against his Client hath been enfore't to give Evidence provided it be not of a Secret communicated to him by his Client for in that particular a Judge ceases to be a Judge and is a Witness of whose Evidence the Jury are the Judges tho he after re-assume his Authority and is afterwards a Judge of the Juries Verdict A Judge may Sue and must be Sued in his Court but in that Case he ceases to be a Judge and is a Suitor though he re-assumes his Authority in all other matters and if it be so in Civil matters let any Man shew me a reason why the Law is not so in Criminal matters there is no express Law against it and it will be absurd in reason to say the Law is not so for at that rate the King may put any witness he knows the Prisoner intends to produce for himself into the Commission for Trying him and so deprive the Prisoner of the benefit of his Evidence as in this Case Sheppard whose Evidence ought to have been of great as it shall be shewn tho it was not of any Avail to the Prisoner might have been put into the Commission to have Tryed Mr. Cornish for he was as much qualified for it as Sir James Smith then Lord Mayor or any Judge upon the Bench and if they might have been witnesses for the Prisoner if Subpaena'd they might have been witnesses for him even without asking and it was a duty incumbent on them though not as Judges yet as Christian Men so to be Humanity commands the Discovery of Truths which prevent the shedding Innocent Blood and Christianity commands a Man to do as he would be done by I think the question need not be asked what they would have had done if it had been their Case The reason that all matters of Law are or ought to be Transacted publickly is that any Person unconcerned as well as concerned may as amicus curiae inform the Court better if he thinks they are in an error that Justice may be done and the reason that all Tryals are publick is that any Person may inform in point of Fact though not Subpaena'd that Truth may be discovered in Civil as well as Criminal matters There is an invitation to all Persons who can inform the Court concerning the matter to be tryed to come into Court and they shall be heard It is true if the Judges or any Person had testifyed what Rumsey had said at my Lord Russel's Tryal it had not been Evidence without the record of the Tryal and it is as true that neither the Record nor a true Copy of it could have been procured between Mr. Cornish's Commitment if it were on Friday as I have heard it was though the Court said it was on Tuesday much less between the notice of his Tryal which was Saturday-noon and the time of his Tryal which was Monday-morning But then what Justice was there in speeding his Tryal so as to deprive him of the Circumstances of his defence for that was but a Circumstance and not an essential matter and what account can be given why the Court when they were well satisfied that it was in the Prisoners Power to procure such a witness and such a record did not stay till he did it or if it would be too long in doing why should they not have put off the Tryal for that time and give the Prisoner a convenient time to do it The first in Civil matters hath been frequently done when a Deed or Witness hath been wanting if it could be done in a convenient time and the putting off a Tryal before it came on though after it came on they have not done it because there is no great mischeif in that for either Party hath Power to bring it about again but not so in Capital matters and therefore Jurys in Capital matters have been frequently discharged after sworn where the Evidence hath been defective It is true my Lord Coke saith that a Jury once charged with a Prisoner cannot be discharged but must give their Verdict but it is as true that he says so in Favour of the Prisoner that when the Evidence against him appears defective he shall not be continued a Prisoner till more Evidence can be found or procured against him though the Practice of late days hath been quite contrary viz. to discharge the Jury where the Evidence against the Prisoner hath been defective but enforce them to give a Verdict where the Prisoner's defence hath been defective though to their knowledge if he had longer time to do it he had been able to produce the witnesses who could clear him but by what Law or reason I am to seek yet I confess if Rumsey's owning his Perjury in the Lord Russels Tryal in the very point sworn against the Prisoner and so frivelously excusing it would not discredit him I know not that any Record Witness or Evidence would have availed Mr. Cornish And add to Rumsey's contradicting himself that Sheppard who never contradicted himself and had been a witness in both Tryals agrees that what Rumsey had sworn in my Lord Russels Tryal as to Mr. Cornish's not being there was true