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
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
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
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
a good Challenge and with him Sir John Fortescue seems to concur in his Exposition on the Statute of Henry the 5th he says if the Debts or Damages were under forty Marks the Jury-man shall have Land to a competent Value according to the Discretion of the Justices My Lord Coke saith in such case any Free-hold sufficeth now how can that be true if it were not necessary at Common Law to have some Free-hold for the Statute makes no Provision for Debt or Damages under forty Marks It must therefore be by Common Law that some Free-hold was necessary and that any Free-hold shall suffice And surely if in Civil Matters it was necessary for a Juror to have a Free-hold much more in captial Matters and mostly in Treason It is very plain that at Common Law no man was thought to be a sufficient man but a Free-holder and though now and for some time past the Value of Trade is equal to that of Land yet heretofore it was not so and by what was heretofore the Common Law is to be known The matter of Trade was heretofore so inconsiderable and the Traders themselves for that reason so vile that it was a Disparagement for a Free-holder to marry with a Trades-man as is to be seen by the Statute of Wharton and therefore meer Trades-men and not Free-holders were not to be trusted with the Concern of a Tryal in a civil Matter and much less in a Capital and least of all in a Tryal of High-Treason The Chief Justice Pemberton says that the reason of Free-holders was that no slight Persons should be put upon a Jury where the Life of a man or his Estate is in question it is plain therefore the Concern of the thing to be tryed is the measure of the substance of the Jury-man if that be true the Tryal in Treason is of the highest concern How then is it true as some of the Judges concluded that though Free-hold migh be requisite in some Cases at Common Law yet in Treason certainly not it is indeed a Paradox to me And the peremptory Challenge of thirty five allowed the Prisoner is no Reason against the Challenge of no Free-hold for that is only a Priviledge allowed the Prisoner in Favorem Vitae and it might as well be argued that no Challenge at all to the petty Jury shall be allowed the Prisoner because he had a Grand Jury past upon him before which is also in Favorem Vitae that no man at the Kings Suit shall be so much as questioned for his Life till above the number of twelve substantial men have on their Oaths said they think the Accusation true and after that he is allowed to challenge peremptorily thirty five and with cause without number to affirm therefore that no Free-hold is not a cause of Challenge because he may challenge peremptorily thirty five is a non sequitur and though Non-usage that is to say that this Challenge was never taken in Treason was then used as an Argument yet it is the weakest of Arguments which is to be found in Littleton though even that Fact was not true for the Challenge was taken and allowed before unless you will distinguish and say that in that case it was taken by the King and therefore good and in this by the Prisoner and therefore bad I 'm sure that Difference cannot be warranted either by Authority or Reason and what though Cook and the other Regicides and other Persons did not take that Challenge is it and Argument that they could not or that they thought they could not perhaps they had forgotten to do it as much as the Judges in this case had forgotten their Resolution in Fitz-Harris's Case or perhaps they could not take it their Jury being Free-holders or perhaps it was to no purpose they being tryed in Middlesex where a Jury of Free-holders would quickly be found Nor is it an Argument that no Case of this Challenge at Common Law is to be found in the Books for since the Statute of Henry the 5th to the time of Queen Marry it could never be a Case and from that time to this it could never be a Case in Felony and the Law being so very plain that if the Fact were with the Prisoner it was always allowed if against the Prisoner it was disallowed not as not good in point of Law but as not true in point of Fact therefore the Challenge perphaps was not taken notice of in the Books which only reports Difficulties It is true of late and it is but of late Practice the whole Transactions of a Tryal is published for the benefit of the Publisher rather than for the common Good and that indeed was the Motive of publishing Fitz-Harris's Tryal signed by Fra. Pemberton and of Colledges's Tryal signed by Fra. North and of my Lord Russel's signed by William Prichard Mayor and Col. Sidnie's Tryal signed by George Jefferies and Mr. Cornish's Tryal signed by Thomas Jones And that is the reason why since that Statute we find no Case of such a Challenge in capital Matters and before that Statute the Year-Books go but a little way It is enough that there was no Resolution that it was not a good Challenge for it will be of the Kings side to shew why that should not be a good Challenge in Treason which was in most if not in all other Cases It is pretty to observe what steps were made in over-ruling this Challenge some were of Opinion that it was no Chanllenge in any Case at Common Law so said the Attorny and Sollicitor General the Chief Baron Justice Windham and Baron Street The Chief Justice though it no Challenge at Common Law in Treason or Felony only but that the Statute of Henry the 5th made it a Challenge in Treason and Felonly but whether the Statute of Henry the 5th made it a Challenge in Treason the Chief Baron and Justice Windham doubted Justice Jones thought it no Challenge at Common Law in Treason Justice Levins would not determine whether it was a good Challenge in any Case at Common Law but he and Baron Street were clearly of Opinion it was not a good Challenge in London The Chief Justice thought it a Business of great consequence not only for the Prisoner but for all other Persons Baron Street thought the Judges had been very nice in the Matter which in the Phrase of the Law is giving themselves a great deal of trouble in a matter very clear or of no moment But though they differ'd in their Reasons yet all agreed in this and in this only that tryed he should be and that presently Then as for the Custom of the City of London to try without Free-holders how did it appear to the Judges that there was any such Custom Did they ever read of any such Custom in the City of London Nay were not the Statutes which were cited where no Free-hold was made no Challenge in London in particular Cases as so
me the Kings Council said in the argument of the challenge that they would not have the point of being a Jury-man tho not a Free-holder lost to the City of London and one of the Judge said 't was the Priviledges of the City were struck at in that point if by those expressions it is meant that it is for the benefit of the publick that there should be no failure of Justice I argree to it but if it be meant that it is for the benefit of the Citizens to be Jurymen I deny it and I think nothing shews it plainer than that it is a Priviledge that a Citizen shall not be drawn out of the City to be a Jury-man that a Nobleman shall not be on a Jury that it is a Matter of Prerogative in the King and favour to a particular Person to grant him a Charter of exemption from being on a Jury so that if I consider the Law I know what is meant by those expressions if I consider allowed Practice it is true a Jury-man may earn his Eight Pence for a Tryal but that is too inconsiderable pay for Persons of substance as the Jury-men in this case were said to be fond of the employ or to account it a Priviledge but even that was but in civil Mattres in criminal Matters not Capital the Jury were heretofore paid if they acquitted the Defendant but not if they found him Guilty though of late it hath been Practised to give them more and treat them higher if they Convicted the Defendant than if they acquitted him but in Capital Matters as the Case in question was it was never allowed or at least owned to pay the Jury be the Verdict which way it would having spoken to the Preliminaries I proceed to the Tryal wherein Coll. Rumsey was first produced he said he was sent by my Lord Shaftsbury about the end of October or beginning of November who told him he should meet at one Sheppards the Duke of Monmouth Lord Russel Lord Gray Sir Tho. Armstrong and Mr. Ferguson to know of them what resolution they were come to about the Rising of Taunton Sheppard carryed him where they were and Answer was made Mr. Trenchard had failed them and there would be no more done in the Matter at that time thereupon the Lord Shaftsbury took a Resolution to be gone Mr. Ferguson spoken most of the Message and he thought the Lord Gray spoke something to the same purpose he did not know how often he had been at that House he was there more than once or else he heard Mr. Ferguson make a Report of another Meeting to the Lord Shaftsbury my Lord Russel was in the room and that was all they said at that time that he remembred he was not there above a quarter of an hour there was some Discourse about seeing in what posture the Guards at the Mews and Savoy were in by all the company to know how to surprise them if the Rising had gone on Sir Tho. Armstrong and Mr. Ferguson began all debated it he thought the Duke of Monmouth the Lord Gray and Sir Tho. Armstrong were sent to view them the Rising was appointed to be the 19th of November he was spoke to by the Lord Shafsbury to go to Bristol if the Rising had gon on but in what quality was not determined the Lord Russel agreed to the Debate being asked if my Lord Russel said any thing there and what He answered my Lord Russel spoke about the Rising at Taunton being asked what my Lord Russel said he answered my Lord Russel discoursed of the Rising being asked if my Lord gave his Consent to the Rising he said he did The next witness was Mr. Sheppard who said in October last Mr. Ferguson came to him in the Duke Monmouth's Name and desired the Conveniency of his House for himself and some Persons of Quality which he granted In the Evening the Duke of Monmouth Lord Gray Lord Russel Sir Thomas Armstrong Coll. Rumsey and Mr. Ferguson came not altogether but the one after the other Sir Thomas Armstrong desired that none of his Servants might come up and that they might be private so what they wanted he went down for a Bottle of Wine or so the substance of the discourse was to surprize the Kigns Guards and in order to to it th Duke of Monmouth the Lord Gray and Sir Thomas Armstrong went one Night as ke remembred to the Mewes or thereabouts to see the Guards and the next time they came to his House he heard Sir Thomas Armstrong say the Guards were very remiss in their places and not like Souldiers and the thing was feasible if they had but strength to do it he remembred but two Meetings there they came in the Evening he heard nor saw any Coaches at his Door when they came in as he remembred the Lord Russel was both times there he had no business with the Lord Russel nor the Lord Russel with him at that time but since he had he did not remember Coll. Rumsey discourst the Lord Russel about any private business nor remembred any farther Discourse he remembred no Writings nor Papers read at that time upon Recollection he remembred one Paper read by Mr. Ferguson in the nature of a Declaration setting forth the Greivances of the Nation the Particulars he could not tell It was a pretty large Paper it was shewed for Approbation as he supposed when to be set out was no discoursed 't was shewed to Sir Thomas Armstrong and as he remembred the Duke of Monmouth was present and he thought Coll. Rumsey was present Coll. Rumsey said he was not present it was done before he came Mr. Sheppard went on and said the design of the Paper was in order to a rising as he supposed by the Purpose of it he would not say the Lord Russel was there when that Paper was read but he was there when the talk was about seising the Guards he could not be positive as to the times of those Meetings but it was when the Lord Shaftsbury was absent from his House he absented about Michaelmas Day he could not be positive that my Lord Russel was at both Meetings he thought he was at both he was sure he was at one the last Witness was the Lord Howard he said he brought Captain Walcot acquainted with the Lord Shaftsbury and upon his account Captain Walcot soon gained a confidence with the Lord Shaftsbury Walcot told him the People were sensible all their Interest was going to be lost by the violence offered to the City in the Election of Sheriffs and that they were resolved to take some Course to put a stop to it that there was several meetings about it and some Persons begun to prepare to Act that some had good Horses and kept them in private Stables and he resolved to be one in it he having an Estate in Ireland he dispatch't his Son thither and ordered his Son to turn his Stock into Mony the Son went
about August that the 30th of Sept. Walcot Dined with him told him that the Lord Shaftsbury was secreted and desired to speak with him Walcot brought him to the Lord Shaftsbury who complained of the Duke of Monmouth and the Lord Russel for deserting him but there was such preparation made in London that now he was able to do it of himself and intended to do it suddenly he had above 10000 brisk Boys ready to follow him when he held up his Finger they would possess themselves of the Gates and in twenty four hours they would multiply to five times the number and would be able to possess Whitehall by beating the Guards the Lord Howard went to the Duke of Monmouth told him the Lord Shaftsbury's complaint who said the Lord Russel and he told the Lord Shaftsbury from the beginning that there was nothing to be done by them in the Country at that time the Matter of the discourse between him and the Duke of Mounmouth him and the Lord Shaftsbury and him and Walcot is too tedious to relate and as little to the purpose if the Jury had understood Matter of Law which they did not in it he takes care to shew what Confidence my Lord Shaftsbury had in him more than in the Duke of Monmouth or the Lord Russel how very Cautious he was and how Precipitate the Lord Shaftsbury was and that what he told the Duke of Monmouth the Duke told the Lord Russel and he heard the Lord Russel had been with the Lord Shaftsbury and put off the intended rising at wich the Lord Russel interrupted him and said he thought he had very hard measure there was great deal of Evidence given by hear-say only whereupon the Chief Justice said it was nothing against the Prisoner he declared it to the Jury but the Attorney General bid the Lord Howard go on in the method of time and that it was nothing against the Prisoner but the Witness was coming to it if his Lordship would have Patience he assured him so the Lord Howard went on where he left off with a story between him and Walcot of an intended Rising and of some dark Sayings let fall by Walcot and the Lord Gray importing a Design upon the Kings Person but the Lord Howard was very careful to put al off but at last it was resolved to rese on the 17th of November but the Lord Howard fearing it had been discovered because he saw a Proclamation a little before for bidding Bonefires without the Lord Mayors leave that of the 17th of November was also disappointed and the Lord Shaftsbury went away and died but considering they had gone so far that it was not sase to retreat and considering that so great an Affair as that was consisting of such infinite Particulars to be managed with so much fineness they erected a Cabal of six Persons the Duke of Monmouth Lord of Essex Lord Russel Mr. Hampden Algernon Sidney and himself about the middle of Jannary last and about that time they met at Mr. Hampdens House where it was considered whether the Insurrection should be in London or in Place distant what Countries and Towns were fittest and most disposed to Action what Arms necessary to be provided how to raise twenty five or thirty thousand Pounds and how they might so order it as to draw Scotland into a Consent with them about ten days after they met at the Lord Russe's House and then resolved to send some Persons into Scotland to the Lord Argile to invite some Persons hither to give an account of that Kingdom the Persons to be invited were Sir Jo. Cockram Lord Melvil Sir Campbill that matter was referred to Col. Sidney who told him he had sent Aaron Smith they agreed not to meet again till the return of the Messenger the Messenger was gone about a month it was six weeks or more before he returned and then his Lordship was forced to go into Essex where he had a small Concern where he staid three weeks and when he returned he was informed Sir John Cockram was come to Town and afterwards he was forced to go to the Bath where he spent five weeks and from that time to this was five weeks all which time was a Parenthesis to him And that he and the five mentioned erected themselves by mutual Agreement into that Society Atterbury swore Campbell was in his Custody then Col. Rumsey was asked whether my Lord Russel heard him when he delivered his Message to the Company and in what place of the Room the Company were who answered that when he came in they were standing by the Fire-side but all came from thence to hear him and when my Lord Russel said Col. Rumsey was there when he came in Rumsey said no the Duke of Monmouth and Lord Russel went away together Then in behalf of my Lord Russel the Earl of Anglesey was examined who said that visiting the Earl of Bedford the Lord Howard came in and told the Earl of Bedford that his Son could not be in such a Plot or suspected of it and that he knew nothing against the Lord Russel or any body else of such a Barbarous Design and he was going on again with what the Lady Chaworth had told him but was interrupted by the Kings Council telling him as the Court would not permit them to give Hear-say in Evidence against the Prisoner so they must not permit his Lordship to give Hear-say in Evidence for the Prisoner Mr. Howard said that the Lord Howard took it upon his Honour and his Faith he knew nothing of any Person concerned in that Business and not only thought my Lord Russel unjustly suffered but he took God and Man to witness he thought my Lord Russel the worthiest man in the World. Dr. Burnet said the Lord Howard was with him and he did then as he had done before with Hands and Eyes lift up to Heaven declare he knew nothing of any Plot nor believed any and treated it with great Scorn and Contempt The Lord Cavendish testified as to the Life and Conversation of the Lord Russel and thence concluded it was not likely he should be guilty of any such matter and heard the Lord Russel speak of Rumsey as if he had an ill Opinion of him and therefore it was not likely he should trust him Dr. Tillotson spoke of his Conversation Dr. Burnet and Dr. Cox spoke of his Cenversation and of his Aversness to all Risings Dr. Cox testified that my Lord Russel said the Lord Howard was a man of luxuriant Parts but he had the luck not to be trusted by any Party The Duke of Somerset spoke of the Lord Russels Conversation The Lord Clifford Mr. Leveson Gore Mr. Spencer and Dr. Fitz-Williams spoke as to my Lord Russel's Conversation The Lord Howard being asked by the Jury what he said to the Earl of Anglesey's Evidence owned what the Earl said but he did it to out-face the matter and if he said untrue he ought
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