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
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
readily trust the Lord Howard with the Secret who was unconcerned in the management before as he says himself and yet secreted himself from the Duke of Monmouth and my Lord Russel who were equally Guilty if what was sworn was true I cannot but observe that in all the time of the Lord Shaftsbury the Lord Howard was no otherwise concerned in the pretended Design but in raising difficulties and being in great fear least there should be a Rising or an Attempt upon the Kings Person and if he said true he was he Man that put of the intended Risings and likewise the intended Designs on the Kings Person in so much that I think he was so far from standing in need of a Pardon for Treason that he deserved a considerable Reward if it were for nothing else than for his fearing the design was discover'd By the Proclamation against Bonefires which as he said put off the Rising intended to be the 17th of November and yet he and others being afraid the middle of January they erected themselves into a Cabal of Six Persons of which there is but one Person in all his Narrative he pretends to have spoken to about that Matter before which is the Duke of Monmouth and but one more he pretends even by hearsay to be concerned in it before which is my Lord Russel and how improbable therefore was it that those Six Persons should as it were on sight put themselves upon such a dangerous design especially considering the reason he gives for it which was their Fears that what had been transacted was or might be discovered this likewise is observable that from the 30th of September the time the Sheriffs entred upon their Office to the 17th of November following he is very exact as to the time of each Matter when there was no Person could contradict him for my Lord Shaftsbury was dead Walcot was convicted and the Duke of Monmouth was gone who are all the Persons mentioned to be concerned in that time yet when he comes to speak of the matter in which my Lord Russel was concerned then be says it was about the middle of January about ten days after about six weeksafter about three weeks and five weeks for had he been precise in the times he might have been disproved in the Meetings he gave Evidence of and it is much his Memory was so very good as to the former times to be so very precise in them as he was and so very defective in the latter times and yet those times do not make up the space between the middle of January and the time of the Tryal by many weeks unless you will give large allowances to the word about an Exception which was taken to Mowbray's Evidence tho' he rectifyed it by his account in his Almanac but it would not be admitted tho' Colledge very sensibly desired of the Court for Justice sake to look on the Almanac to see whether it was newly writ as if done for that purpose Besides the Improbability if such a thing was in hand as the Lord Howard pretended for him to run into the Country and then to the Bath when the matter was just come to a Crisis as it were shews him if swore true rather a Madman than a Traitor But the Usage of the King's Council and the Court toward the Prisoner was very unjust and unfair they permitted the Lord Howard to go on with a long story of him and my Lord Shaftsbury at which when my Lord Russel took Exceptions the Chief Justice it is true said it was no Evidence yet the Attorney General bidding him go on in the Method of time he went on where he left of intermixing Stories of Designs and of Attempts by other Persons upon the Kings Person to exasperate the Jury as my Lord Russel said rightly against him a thing which no Councel durst have done and no Court would have suffered in any other Case nor even in that would the Court or Councel suffer it for the Prisoner how was my Lord Anglesey checkt when he began to tell what my Lady Chaworth said and Mr. Edward Howard when he did not speak of his own knowledg how unjust was it for the King's Council to repeat all the Evidence the Lord Howard gave when they summ'd it up even that which the Court told them before was not Evidence how unjust was the insinuating of the Death of my Lord of Essex as Evidence against my Lord Russel and why did not the Court in Summing up the Evidence take notice of the Liberties the Witnesses and Council had taken and have told them what was not Exidence No other reason can be given than what Colledge said at his Tryal upon his Observation of Fitz. Harris's business and his own That the Matter was not to stop at him REMARKS ON Col. Sidney's TRYAL THE Lord Russel being Executed and the same day what was called his Speech being published then which nothing of Print was more eagerly accepted or sought after which shewed the Inclination of People there was some respite for quieting the minds of the People but it was not to stop there as Colledge said and therefore Col Sidney who was talk'd to Death under the Notion of a Common-wealths man was the 17th of November 1683. brought to Westminster to be arraigned on an Indictment of High-Treason the Indictment at the time he came to the Hall was so far from being found by the Grand Jury that it was not so much as presented to them but the Kings Council who had packt the Jury knew well enough that it would be accepted that is found upon sight by the Jury without any consideration which was accordingly done and Col. Sidney thereupon arraigned The Indictment was for designing to depose the King and to perswade the Kings Subjects to rebel and that he did write a certain Libel wherein it was contained that he meaning King Charles the Second is subject to the Law of God as he is a Man to the People who made him such as a King To which Indictment he would have put in some exceptions exprest in a Parchment in his Hand but was told by the Court he must either plead or demurr and upon no other Terms Exceptions could or ought to be admitted after which he pleaded not Guilty The 21th of November he was tryed at which time he insisted to have a Copy of his Indictment as he had done when he was arraigned but was both times denyed The first Witness against the Prisoner was Mr. West against whom Col. Sidney objected because he was not pardoned but it was answered by the Court that he was a good Witness in my Lord Russels Tryal and therefore should be in that then Col. Sidney desired Mr. West might speak nothing but what be knew of Col. Sidney but was answered by the Court he might give Evidence of a Plot in general though Col. Sidney not concerned in it and it was called Sir William Jones's Law
then Mr. West went on and gave Evidence of what Col. Rumsey Mr. Nelthorp and Mr. Ferguson told him of Col. Sidney but of his own Knowledge he could not say any thing of the Prisoner Rumsey gave a like Evidence he had done in my Lord Russel's Tryal with an Addition of what Mr. West and Mr. Goodenough told him Keeling gave evidence of what Goodenough told him all which the Court agreed was no Evidence against the Prisoner Then the Lord Howard gave the like Evidence from the niddle of January to that time as he had done in the Lord Russel's Tryal saving that the said the Earl of Salisbury was brought into the Cabal who was not mentioned before and save that be said the meeting at my Lord Russel's was about a Fortnight or three Weeks after the meeting at Mr. Hampdens whereas in my Lord Russel's Tryal he says it was about ten days after the meeting at Mr. Hampden's House and here he makes two notable Speeches for Mr. Hampden at the opening of the Consult both which he had forgotten at my Lord Russel's Tryal nor could remember at Mr. Hampden's Tryal though in the last he was lead by a great many Questions to put him in mind of them After his Evidence given Col. Sidney was asked whether he would ask the Witness any Questions who answered he had no Questions to ask him whereupon the Attorney General said silence You know the Proverb The Record of the Lord Russel's Conviction and Attainder was given in Evidence Sir Andrem Foster swore Sir John Cockrant and the two Campbells came to London Sir Phillip Floyd proved the seizing of some Papers in the Prisoners House and he did believe the Papers shewn in Court to be some of them Sheppard Cary and Cook swore the Writing produced was like the Prisoners Hand writing the Attorney General desired some part of the Writing should be read the Prisoner desired all of it might be read but was answered by the Court that the Attorney must have what Part of it he would to be read and afterwards the Prisoner should have what Part of it he would should be read but he persisted to desire all of it should be read then the Writing was read which wad plainly an Answer to a Book but what Book was not mentioned in which the Right of the People was asserted The Earl of Anglesey gave the same Evidence for the Prisoner of the Lord Howard's speaking of my Lord Russel and the Plot as he had done in my Lord Russel's Tryal The Earl of Clare said that the Lord Howard after Col. Sidney's Imprisonment said if he was questioned again he would never plead the quickest Dispatch was the best he was sure they would have his Life and speaking of the Primate of Armah's Perphesie said the Prosecution was begun and he believed it would be very sharp but hoped it would be short and said he thought Col. Sidney as innocent as any man breathing gave him great Encomiums and bemoaned his Misfortune and as for Col. Sidney's Papers he said he was sure they could make nothing of them Mr. Phillip Howard said the Lord Howard said it was a Sham-Plot Dr. Burnet gave the same Evidence as he did in my Lord Russel's Tryal Mr. Ducon gave Evidence that the Lord Howard said he knew nothing of Col. Sidney's being in any Plot. The Lord Paget gave Evidence to the same purpose Mr. Edward Howard gave Evidence to the same purpose Tracy and Penwick gave Evidence to the same purpose Mr. Blake testified that the Lord Howard said he had not his Pardon and could not ascribe it to any other reason than that he must not have his Pardon till the Drudgery of Swearing was over Now to review that hath been said it is strange to see what a Progress was made in the Resolutions of Points of Law to take away a mans Life to say in Col. Sidney's Words as if the Court and Council thought it their Duty to take away a mans Life any how Mr. West and several others are admitted to give Evidence by Hear-say against the Prisoner and their Evidence summed up and urged as Evidence to the Jury and the Reason given for it was that he was admitted a good Witness of a like matter in the Lord Russels Tryal which besides that it was not true for he was rejected in that Tryal as it appears in the Print yet if he had been admitted it was of no Authority as Col. Sidney said because perhaps he was not excepted to of a like Stamp is the Evidence of the Conviction of the Lord Russel though I agree the Lord Russel's Conviction was as good Evidence against Col. Sidney as the Earl of Essex's Murther was against my Lord Russel and no better the same may be said of Rumsey Keeling Foster and Atterbury's Evidence Against the Lord Howard's Evidence there was the same Objections as in the Lord Russel's Tryal with the Addition of several other Persons testifying that he said he knew not or believed any thing of the matter and that he could not have his Pardon till he swore others out of their Lives which in truth was the Sense of his Expressions The Kings Council indeed had thought of something since the Tryal of my Lord Russul to palliate the matter of the Lord Howard's Sayings for they lean'd hard upon his Reputation and lookt as if he would perjure himself at the expence of some Persons Lives as his Words are in the Lord Russels Tryal would you say they have had him confest the matter to those Persons to whom he had denyed it I think there is a difference between confessing and denying who asked him the Question What did it avail him to deny it to the Persons testifying against him and therefore when he voluntarily said a thing untrue unasked not provoked or compelled to do it and which could do him no good it was good Evidence of his untruth and that no Credit ought to be given to what he swore As for the last part of the Evidence which was about the Writing both the Indictment and the Evidence was defective As for the Evidence if the Subject Matter of the Writing had been Evidence of Treason the Indictment ought to have exprest that he published it which the Indictment in this Case did not and upon good reason which was that the Jury might be put in mind that the Publishing of it was necessary to make it known whereas they very well knew that the Evidence would not nor did come up to it This was the first Indictment of High-Treason upon which any man lost his Life for writing any thing without publishing it for in Fitz-Harris's Indictment he was charged with publishing his Libel and so in all other Indictments for Writing and upon good reason for this being made an overt Act of Treason it must be an Evidence of a Design to kill or depose the King or the like and as the Consequence of what in the
off his Tryal and it was referred to the Judges he did not know whether he was committed for High-Treason against the then present or the former King and he had a material Witness an hundred an forty Miles off but was told by the Court they had no Power to put off his Tryal it is true they said the Lord Russel's Tryal was put off to the Afternoon which was not true but that was a Favour which could not be challenged by another person as a Right he complained he had not a Copy of the Pannel but was answered it was not his Right to have it then the Attorney said he had not deserved so well of the Government as to have his Tryal delayed and therefore he was presently tryed Rumsey swore that about the latter end of October or beginning of November the Earl of Shaftsbury desired him to go to Mr. Sheppard's House where was a Meeting of the Duke of Monmouth Lord Russel Lord Gray Sir Thomas Armstrong Mr. Ferguson and Mr. Sheppard he came late and they were just on going away he delivered his Message and they told him that Mr. Trenchard had disappointed them he had not been there above a quarter of an hour but Mr. Sheppard was called down and brought up Mr. Cornish and told them Mr. Cornish was come who came into the Room and excused his not coming sooner and that he could not stay for he was to meet about the Charter whereupon Mr. Ferguson opened his Bosom and under his Stomacher pulled out a Paper they told Mr. Cornish they had had it read and desired to read it to him Mr. Ferguson read it Mr. Sheppard held the Candle while it was reading and afterwards they asked Mr. Cornish how he liked it who said he liked it very well he remembred two Points in it very well the one was for Liberty of Conscience the other was that all who would assist in that Insurrection which had Church or Kings-Lands in the late War should have them restored to them he did not hear all the Paper and observed only these two Points it was a Declaration on a Rising and when the Rising was to have been it was to have been dispersed abroad there was a Rising intended at that time and Mr. Cornish said he lik'd the Declaration and what poor Interest he had he would joyn with it he had great Dealings with Mr. Cornish and Mr. Cornish was a very honest Man it was out of compassion he had not accused Mr. Cornish before Mr. Goodenough said there was a Design to rise in London and for that purpose to divide the City into twenty parts and to raise five hundred Men out of each part to take the Tower and to drive the Guards out of Town before that agreed on he being by chance at Mr. Cornsh's House said the Law will not defend us some other way was to be thought on Mr. Cornish said he wondred the City was so unready and the Country so ready Mr. Goodenough replyed there is something thought of to be done here but in the first place the Tower must be seized where the Magazine is Mr. Cornish paused a little and said I will do what good I can or what I can or to that purpose he said He afterwards met Mr. Cornish on the Exchange who asked him how Affairs went and this was in Easter Term 1683. He had some Matters with Mr. Cornish about managing the Riot which was brought against him Mr. Cornish and others he came to Mr. Cornish's House about the Business of the Riot and no Person was by at the Discourse Mr. Gospright testified for Mr. Cornish that he opposed Mr. Goodenough's being Under-Sheriff and said he would not trust an Hair of his Head with him he was an ill Man obnoxious to the Government and had done ill things and he would not trust his Estate and Reputation in the Hands of such an Under-Sheriff and he believed Mr. Goodenough and Mr. Cornish were never reconciled Mr. Love Mr. Jekil and Sir William Turner testified to the same purpose Mr. Lane spoke out of the Printed Tryal of my Lord Russel and said Rumsey in that Tryal said he did not hear the Declaration read for it was read before he came Dr. Calamy said Mr. Cornish did often come to Church and receive the Sacrament Mr. Sheppard said he was Subpaend d by the King and by Mr. Cornish the Night before and that Mr. Cornish his Son was with him the Afternoon of the day before who prest him to be at the Tryal the next day that there were Accounts depending between him and Mr. Cornish whereon there was about one or two hundred Pounds due to Mr. Cornish and Mr. Cornish's Subpena was served first upon him At one of those Meetings at his House Mr. Cornish came to speak a few words with the Duke of Monmouth or some other he could not be positive in that it was so many Years ago he did not stay above half a quarter of an hour in the House Sheppard came up Stairs and went out with Mr. Cornish and there was not one word read nor no Paper seen while Mr. Cornish was there he remembred there was a Declaration read Ferguson pulled it out of his Sho he could not tell whether Mr. Cornish was at his House the Night the Declaration was read but he was positive no Paper was read while Mr. Cornish was there for Mr. Cornish was not look'd on to be one of the Company he did not know who Mr. Cornish came to speak with when he came to Sheppard's House Mr. Cornish was but once at his House when the Duke of Monmouth was there he did not remember that Mr. Cornish was in the Company when Rumsey was there he said he had attended the Court from Eleven a Clock till half an hour past three This being the Sum of the Evidence given in the Tryal for and against the Prisoner Let us see whether those Inferences could be made from it as was made by the Court and Councel and whether on the whole and honest Jury tho but of little understanding could have found him Guilty of the Treason in the Indictment It is agreed of all Hands that a petty Jury may and must consider the credibility of a Witness tho in the Lord Shiftsbury's Case it was said a Grand Fury ought not so to do and if so surely Rumsey was not a credible tho he was not a disabled Witness no more than a Man who owns himself to be a Man of Falshood a profligate Wretch and perjured by his own Confession tho not Convicted of it he had notoriously confessed himself Guilty of High-Treason and of being in the Design of an intended barbarous Murther he had sworn in the Lord Russel's Tryal he had named all the Persons at the Meeting he spoke of of which Mr. Cornish was none and being taxt in this Tryal with it he excuses his Perjury with Compassion to the Prisoner which was mean