convict you if you be guilty But my Lord if you are conscious to your self that you are guilty of this heinous Crime give Glory to God make amends to his Vicegerent the King by a plain and full discovery of your Guilt and do not by an obstinate persisting in the Denial of it provoke the just indignation of your Prince who has made it appear to the World that his Inclinations are rather to shew Mercy than inflict Punishments My Lord attend with patience and hear the Bill of Indictment that hath been found against you read Read the Bill of Indictment to my Lord. Cl. of Cr. Henry Baron of Delamere Hold up thy hand L. Delamere My Lord I humbly beg your Grace would please to answer me one Question whether a Peer of England be obliged by the Laws of this Land to hold up his hand at the Bar as a Commoner must do and I ask your Grace this question the rather because in my Lord Stafford's Case it was allowed to be the priviledge of the Peers not to hold up their hands L. H. Steward My Lords this being a matter of the priviledge of the Peerage it is not fit for me to determine it one way or th' other but I think I may acquaint your Lordships that in point of Law if you are satisfied this is the Person indicted the holding or not holding up of the hand is but a Formality which does not signifie much either way L. Delamere I humbly pray your Grace's direction in one thing farther whether I must address my self to your Grace when I would speak or to your Grace with the rest of these Noble Lords my Peers L. H. Steward You must direct what you have to say to me my Lord. L. Delamere I beg your Grace would please to satisfie me whether your Grace be one of my Judges in concurrence with the rest of the Lords L. H. Steward No my Lord I am Judge of the Court but I am none of your Tryers Go on Cl. of Cr. HEnry Baron of Delamere thou standest Indicted in the County Palatine of Chester by the name of Henry Baron of Delamere of Mere in the said County of Chester For that thou as a false Traytor against the most Illustrious and most Excellent Prince James the Second by the Grace of God of England Scotland France and Ireland King thy natural Lord not having the fear of God in thy Heart nor weighing the duty of thy Allegiance but being moved and seduced by the Instigation of the Devil the cordial Love and true due and natural Obedience which a true and faithful Subject of our said Lord the King towards him our said Lord the King should and of right to bear wholly withdrawing and contriving practising and with all thy might intending the Peace and common Tranquillity of this Kingdom of England to disquiet molest and disturb and War and Rebellion against our said Lord the King within this Kingdom of England to stirr up move and procure and the Government of our said Lord the King of this Kingdom of England to subvert change and alter and our said Lord the King from the Title Honour and Kingly Name of the Imperial Crown of his Kingdom of England to depose and deprive and our said Lord the King to Death and final Destruction to bring and put the fourteenth day of April in the first Year of the Reign of our said Lord James the Second now King of England c. and divers other days and times as well before as after at Mere in the County of Chester aforesaid falsely maliciously devilishly and traiterously with divers others false Traytors and Rebels to the Jurors unknown didst conspire compass imagine and intend our said Lord the King thy supreme true and natural Lord not only from the Kingly State Title Power and Government of his Kingdom of England to deprive and cast down but also the same our Lord the King to kill and to Death to bring and put and the antient Government of this Kingdom of England to change alter and wholly to subvert and a miserable slaughter among the Subjects of our said Lord the King throughout his whole Kingdom of England to cause and procure and Insurrection and Rebellion against our said Lord the King within this Kingdom of England to procure and assist and the same thy most wicked most impious and devilish Treasons and traiterous compassing Imaginations and purposes aforesaid to fulfil and bring to effect thou the said Henry Baron of Delamere as a false Traytor then and there to wit the said fourteenth day of April in the first year abovesaid and divers other days and times as well before as after at Mere aforesaid in the County aforesaid falsly unlawfully wickedly and traiterously with Charles Gerrard Esq and other false Traytors to the Jurors unknown didst assemble thy self gather together consult and agree to raise and procure divers great summs of Money and a great number of armed men War and Rebellion within this Kingdom of England to levy and make and the City of Chester in the County of the same City as also the Castle of our said Lord the King of Chester at Chester in the County of Chester aforesaid and all the Magazines in the same Castle then being to enter take seize and surprise and into thy possession and power to obtain and that thou the said Henry Baron of Delamere afterwards to wit the 27th day of May in the first Year abovesaid falsely unlawfully wickedly and traiterously didst take a Journey from the City of London unto Mere aforesaid in the County of Chester aforesaid thy traiterous purposes aforesaid to fulfil and perfect And that thou the said Henry Baron of Delamere afterwards to wit the fourth day of June in the first Year abovesaid at Mere aforesaid in the County of Chester aforesaid in further prosecution of thy unlawful most wicked and traiterous purposes aforesaid divers Liege People and Subjects of our said Lord the King to the Jurors unknown with thee the said Henry Baron of Delamere and the aforesaid other false Traytors to the Jurors unknown falsely unlawfully and traiterously in the War and Rebellion aforesaid and in thy traiterous purposes aforesaid to join and adhere didst excite animate and perswade against the duty of thy Allegiance against the Peace of our said Lord the King that now is his Crown and Dignity and against the form of the Statute in that case made and provided How say'st thou Henry Baron of Delamere art thou Guilty of this High Treason whereof thou standest Indicted and hast been now Arraigned or not Guilty L. Delamere My Lord I humbly beg the Indictment may be read again L. H. Steward Let it be read again Which was done L. Delamere May it please your Grace I humbly beg the favour to be heard a few words before I plead to this Indictment L. H. Steward My Lord Delamere I am very unwilling to give your Lordship any interruption but
according to the Methods of Law which must be observed in your Case as well as all others You must plead to the Indictment before you be heard to any thing else L. Delamere May it please your Grace I have something to offer to your Grace's and their Lordships consideration which is a matter of Law L. H. Steward I know not what matter of Law you have to offer If you have a mind to demur to the Indictment you may L. Delamere Will your Grace please to hear what I have to say and then I shall submit it to your Grace's Judgment L. H. Steward I would hear what you have to say my Lord with all my heart if I could But I must then pass by all the Forms and usual Methods of proceeding and that without any advantage to you too and that I suppose your Lordship will not desire of me Ask my Lord Whether he be guilty or not guilty Cl. of Cr. How sayst thou Henry Baron of Delamere Art thou guilty of this High Treason whereof thou hast been indicted or not guilty L. Delamere I beseech your Grace to hear me what I have to say I shall not detain your Grace very long but I beg your Grace to hear me L. H. Steward My Lord Delamere I must keep you to the known Rules and Methods of Law This is not your time to speak but to plead in your proper time you shall be fully heard whatsoever you have to say L. Delamere If your Grace please I have something to say which concerns all the Peers of England in point of Right L. H. Steward My Lord you must either plead or demur to this Indictment that is the usual Practice before any thing else can be done L. Delamere My Lord I have a Plea to offer to your Grace and my Lords and it is with reference to the Priviledg and Right of the Peers of England L. H. Steward If you have any Plea to offer it must be received my Lord. L. Delamere My Lord amidst the hardships I have lain under by my frequent Imprisonments and close Confinement L. H. Steward My Lord Delamere You must keep up to the Legal Method of Proceedings In Cases of this nature I would as far is possible for me to do indulge a Person of your Quality and in your condition but withal I must do right to the Court and not permit any Breach to be made upon the Legal Course of Proceedings You must plead or demurr to the Indictment before you are heard to say any thing L. Delamere Will your Grace be pleased to hear me tell you my Reasons why I offer you a Plea of this nature to the Indictment L. H. Steward My Lord if you have any Plea put it in L. Delamere Will your Grace be pleas'd to accept it as I have done it It may be it is not so formal because I have had no Councel allowed me to peruse and sign it But as it is I here offer it to your Grace's consideration L. H. Steward Ay put it in Then it was delivered to the Clerk L. H. Steward Read it Cl. of Cr. The humble Plea of Henry Lord Delamere to the Indictment of High Treason against him now to be tryed by the Lord High Steward and Peers here assembled THE said Lord Delamere saving to himself all benefit of Advantage of any further or other matter of exception to the Generality Incertainty or Insufficiency of the said Indictment and all matters and things which do or may concern the same for Plea hereunto saith That he was by his Majesty's Writ Summoned to this present Parliament which began the Nineteenth Day of May last and attended his Duty there as a Peer of this Realm That for High Treason supposed to be committed by him during the Sitting of the same Parliament he was the Twenty sixth Day of July last committed by Warrant of the Earl of Sunderland one of his Majesty's Principal Secretaries of State to the Tower of London That the Peers in Parliament assembled taking Notice by his Petition of the Ninth of November last of his being absent from his Attendance in Parliament sent a Message to his Majesty to know the reason why he the said Henry Lord Delamere a Peer of that House was absent from his Attendance there Upon the Tenth Day of November last the Lord Treasurer reported his Majesty's Answer to the said Message viz. That the said Lord Delamere was absent from his Attendance in Parliament because he stood committed for High Treason for levying War against the King this last Summer testifyed upon Oath and that his Majesty had given directions that he should be proceeded against with all speed according to Law The House of Peers not being satisfied with this Answer the Debate thereof was adjourn'd till the Monday morning following On which Day the Lords resuming the Debate concerning the Lord Delamere and the King's Message after some Debate the Lord Chancellour by his Majesty's Command gave the House an account what Proceedings had been against the Lord Delamere since his Majesty's Answer to their Address concerning his absence from the House which was to this Effect That the King had given Order for a speedy Prosecution of him That the Treason whereof he was accused was committed in Cheshire and that being a County Palatine the Prosecution ought to be there and not in the King's Bench as it might be if the Treason had been committed in another County and that therefore his Majesty had given Order for a Commission of Oyer and Terminer into Cheshire in order to the finding of an Indictment against him for the said Treason And that accordingly a Commission of Oyer and Terminer was already sealed and if the Indictment be not found before the end of the Term the said Lord Delamere's Prayer being entred in the Kings's Bench he should be Bailed All which Proceedings do more fully appear in the Journals of the said House of Peers to which the said Henry Lord Delamere doth refer himself Afterwards that is to say upon the 〈◊〉 Day of 〈◊〉 the said Parliament was Prorogued by his Majesty unto the Tenth Day of February next as by the said Journals it doth also appear Upon all which Matters the said Henry Lord Delamere doth humbly tender this his Plea to the Jurisdiction of your Lordships in this Cause and doth humbly conceive your Lordships ought not to proceed in the Tryal of him upon the Indictment of High Treason now before you And that for these following Reasons First Inasmuch as it appears by the said Petition of the said Henry Lord Delamere and the several Orders of the Lords and the King's Answers to the Message of the Lords thereupon That the said House are already possessed of his said Cause which is for the same supposed Treason for which he was at first committed and which is the same Treason for which he now stands indicted before your Lordships And for this Reason your Lordships as
whole Body of Peers of which I have the Honour to be a Member And if my Lords here are satisfied it is not the Right and Priviledge of the Peers I acquiesce Lord H. Steward Pray good my Lord do not think that I should say any such thing that the Priviledge of the Peers is frivolous for you do not hear me say That this is one of their Priviledges As I would not willingly mistake You so I desire your Lordship would not misapprehend or misrepresent Me. I spoke not at all of the Peer's Priviledge but of your Plea I tell your Lordship I think your Plea is not a good Plea to Oust this Court of the Jurisdiction of your Cause But if your Lordship have a mind to have your Councel heard to it in God's Name let them come they shall be heard And when that is done to satisfie you the more I will advise with my Lords the Judges that are there to assist what they take to be the Law in the Case and upon the Whole I will deliver my Judgment as well as I can Lord Delamere I hope your Grace will be pleas'd to advise with my Lords the Peers here present it being upon a Point of Priviledge Lord H. Steward Good my Lord I hope You that are a Prisoner at the Barr are not to give Me direction who I should advise with or how I should demean my self here Lord Delamere I beg your Grace's Pardon I did not intend to give your Grace any Direction Lord H. Steward My Lord I shall take care to perform that Duty that is incumbent upon me and that with all Tenderness to your Lordship And I assure your Lordship I will have as much care that I do not injure You as I will that I do not wrong my own Conscience and I will endeavour to discharge my Duty to both with the utmost Fidelity Lord Delamere I humbly thank your Grace I question it not But if your Grace please Lord H. Steward My Lord You must pardon Me I can enter into no further Interlocutions with your Lordship If your Lordship have any mind to have any Councel heard and your Councel be ready we will hear them Lord Delamere If your Grace require of Me to produce Councel presently and they to argue it immediately I must acquaint your Grace I cannot do it For I have none here Lord H. Steward My Lord I cannot tell how to help it the Plea must then be over-ruled and rejected Clerk of the Crown Henry Baron of Delamere Art thou Guilty of the High-Treason whereof thou standest Indicted and hast been now Arraign'd or Not Guilty Lord Delamere Not Guilty Clerk of the Crown Culprit How wilt thou be Tryed Lord Delamere By God and my Peers Clerk of the Crown God send thee good Deliverance Sergeant at Arms Make Proclamation Sergeant at Law O Yes If any one will give Evidence on behalf of our Soveraign Lord the King against Henry Baron of Delamere the Prisoner at the Barr concerning the High-Treason whereof he stands Indicted let them come forth and they shall be Heard for now he stands at the Barr upon his Deliverance Then his Grace gave the Charge to the Peers Tryers in this manner Lord H. Steward My Lords I know You cannot but well remember what unjust and insolent Attempts were made upon the rightful and unalterable Succession to the Imperial Crown of these Realms under the pretence of That which has been so often found to be the Occasion of Rebellion I mean the specious Pretence of Religion by the fierce froward and Phanatical Zeal of some Members of the House of Commons in the last Parliaments under the late King CHARLES the Scond of ever Blessed Memory Which by the wonderful Providence of Almighty God not prevailing the Chief Contrivers of that horrid Villany consulted together how to gain that Advantage upon the Monarchy by open Force which they could not obtain by a pretended Course of Law And in order thereto it is but too well known how they had several Treasonable Meetings made bold and riotous Progresses into several Parts of the King's Dominions thereby endeavouring to debauch the Minds of the well-meaning though unwary and ignorant Part of the King's Subjects But these their evil Purposes it pleased God also to frustrate by bringing to Light that cursed Conspiracy against the Life of His Sacred Majesty King CHARLES the Second as also against That of our dread Soveraign that now is whom God long preserve These Hellish and damnable Plots one would have thought could not have survived the just Condemnation and Execution of some of the chief Contrivers of them especially considering that after it had pleased Almighty God to take to Himself our late Merciful and dread Soveraign no sooner was His Sacred Majesty that now is Seated in the Royal Throne of His Ancestors but He made it His utmost Endeavours not only to convince the World that He had quite forgot those impudent and abominable Indignities that had been put upon Him only for being the best of Subjects and the best of Brothers but did also give forth the most Benign Assurances imaginable to all his loving People that He would approve Himself to be the best of Kings And further to evince the Reality of these His Gracious and Heroick Resolutions He immediately called a Parliament and therein repeated and solemnly Confirmed His former Royal Declarations of having a particular Care of maintaining our Establish't Laws and Religion With which that Wise Great and Loyal Assembly were so fully and perfectly satisfied that they thought they could not make sufficient Returns of Gratitude for such Gracious and Princely Condescentions And yet my Lords while the King and the Parliament were thus as I may say endeavouring to out-do each other in Expressions of Kindness that wicked and unnatural Rebellion broke out and thereupon the Arch-Traytor Monmouth was by a Bill brought into the Lower-House and Pass'd by the general Consent of Both Houses and I could wish my Lords for the sake of that Noble Lord at the Barr that I could say It had Pass'd with the Consent of every particular Member of each House justly Attainted of High-Treason My Lords What share my Lord at the Barr had in those other Matters I must acquaint You is not within the Compass of this Indictment for which You are to Try him as his Peers For That is for a Treason alledged to have been Committed by him in His Majesty's Reign that now is Give me Leave my Lords to detain You but with a Word or two more on this Occasion and that is To let You know That as my Lord at the Barr may with great Safety and Security to himself rely upon your Lordship's Candor and Integrity that You will be tenderly careful and ready to acquit him of the Treason whereof he is accused if upon the Evidence that shall be given You You shall find him Innocent So I must tell You The King has
an entire Confidence in your Resolution Fidelity and good Affections to Him that You will not by reason of the Prisoner's Quality and nearness to You as being a Peer of this Realm acquit him if he shall appear to be Guilty My Lords I have one thing further to mind your Lordship 's of That according to the usual Forms of Proceedings in these Cases if your Lordship's have any Questions to propound wherein You would be satisfied as to any Matter either of Fact or Law your Lordships will be pleased to put those Questions to Me and I shall take care to give your Lordships the best Satisfaction I can Lord Delamere My Lord High Steward I beg the Favour of your Grace I may have One to write for me Lord H. Steward Ay by all means Let my Lord have whom he pleases to write for him Then Sir Thomas Jenner One of His Majesty's Serjeants at Law and Recorder of the City of London opened the Indictment thus Mr. Recorder May it please your Grace my Lord High Steward of England and You my Noble Lords the Peers of the Prisoner at the Barr Henry Baron of Delamere the Prisoner at the Barr stands indicted for that He as a False Traytor against the most Illustrious and most Excellent Prince our-Soveraign Lord the King that now is not having the Fear of God in his Heart nor weighing the Duty of his Allegiance the Fourteenth Day of April last at Meer in the County of Chester did maliciously Conspire with other False Traytors to the Jurors unknown the Death and Deposing of the King And for the better and more effectual fulfilling of those his Treasons the said Fourteenth Day of April at Meer afore-said did Maliciously and Trayterously Assemble Consult and Agree with Charles Gerrard Esq and other False Traytors to Raise great Summs of Money and procure Numbers of Armed Men to make a Rebellion against the King and the City and Castle of Chester to seize with the Magazines there And that afterwards the Twenty-Seventh Day of May last he took a Journey from London to Meer aforesaid to accomplish his Treasonable Intentions And further That upon the Fourth Day of June in further Prosecution of his Trayterous Purposes at Meer aforesaid he did encite divers Subjects of our Lord the King to joyn with him and other false Traytors in his Treason And this is laid to be against the Duty of his Allegiance against the Peace of our Soveraign Lord the King his Crown and Dignity and against the Form of the Statute in that Case made and provided To this Indictment may it please your Grace and the rest of these Noble Lords my Lord Delamere the Prisoner at the Barr has Pleaded Not Guilty and for his Tryal has put himself upon his Peers We shall therefore call our Witnesses for the King and if We prove him Guilty We do not question but your Lordships will find him so Mr. Att. Gen. May it please your Grace my Lord High Steward of England and You my Noble Lords the Peers My Lord Delamere the Prisoner at the Barr stands Indicted for Conspiring the Death of His Majesty and in order thereunto to Raise a Rebellion in the Kingdom My Lords In proving this Charge upon him we crave Leave to give your Grace and your Lordships some short Account by Witnesses that we have here of a former Design that was previous to this Matter for which this Noble Lord stands here accused And We shall not trouble your Grace and your Lordships with any long Evidence because it has received many solemn and repeated Tryals and as to the Proof of it has been Confirmed by as many Verdicts But We do it rather to give some Account as an Introduction to a Material Evidence by shewing That Cheshire which was the Province of this Noble Lord was One of the Stages where that Rebellion was principally to be acted and that preparatory to it great Riotous Assemblies and Tumultuous Gatherings of the People were set on foot by the Conspirators We shall then shew my Lords That after the late Duke of Monmouth the Head of the Conspiracy went beyond Sea especially after the Death of the late King frequent Messages and Intercourse of Correspondency were sent and held between him and the rest of his Accomplices abroad and their Fellow Conspirators here at home And particularly We shall prove That a little before the Rebels came over last Summer into the West the Duke of Monmouth did dispatch one Jones who was one of the most considerable Agents in this Contrivance to come from Holland into England to let his Friends know that though he had intended to go into Scotland and begin his Work there yet now his Resolutions were for England where he hoped his Friends would be prepared for him And with this Message and Resolution of his Jones was to acquaint some Lords who they were the Witness will tell your Lordships but among others this Noble Lord the Prisoner was one And to acquaint them besides That he would immediately set sayl for England whither he would come so soon as he could get That he had a Design to have Landed in Cheshire where he expected to be most readily receiv'd but finding That inconvenient they should have notice Four or Five Days before-hand of the Place of his Landing which he intended should be in the West And among the Directions that Jones had to give to those Lords one was That they should immediately repair into Cheshire there to wait for the News These Instructions Jones had given him in Writing but Sealed up with an Injunction not to open them till he came to Sea and then he was to peruse that Writing and deliver his Message according to his Instructions And in that Writing was the Name of this Noble Lord as one that was principally relyed on to carry on the Rebellion in Cheshire And We shall give You an Account That the late Duke of Monmouth did look upon Cheshire as one of his main Supports and upon my Lord Delamere as a Principal Assistant There My Lords This Message was Jones to communicate to Captain Mathews and Captain Mathews was to transmit it to this Noble Lord and the other Persons that were concern'd with him Jones arrived with this Message here in England upon the Twenty-Seventh of May And I must beg your Lordships to observe the Time particularly But Captain Mathews to whom he was directed was not to be found nor Major Wildman to whom in the Absence of Captain Mathews he was to apply himself as You will hear more fully from the Witness 's own Mouth Thereupon he sends for one Disney a Name which your Lordships cannot but know he being since Executed for Treason and one Brand whom your Lordships will likewise hear of and they meet with this same Jones who communicates his Message to them and they undertake to deliver it to the Persons concern'd Captain Mathews being out of Town and Major Wildman
I DO appoint Dorman Newman to Print the Tryal of Henry Baron Delamere and order that no other Person presume to Print the same March 20. 1685 6 Jeffreys Canc. THE TRYAL OF HENRY Baron Delamere FOR HIGH-TREASON In WESTMINSTER-HALL the 14 th Day of January 1685. Before the Right Honourable George Lord Jeffreys Baron of Wemm Lord High Chancellour of England Constituted Lord High Steward on that Occasion On which Day after a full Hearing the Lord Delamere was Acquitted from all Matters laid to his Charge LONDON Printed for Dorman Newman at the Kings Arms in the Poultry MDCLXXXVI THE TRYAL OF HENRY Baron of Delamere Die Jovis xiv to Januarii 1685. Cl. of Cr. SErgeant at Arms Make Proclamation Serj. at Arm. O yes O yes O yes My Lord High Steward of England his Grace doth straightly charge and command all manner of persons to keep silence and to give ear to the King's Majesty's Commission to his Grace my Lord High Steward of England upon pain of Imprisonment Then the Commission was read his Grace and all the Peers standing up bare-headed Then the Staff being carried between Garter King at Arms and the Gentleman Usher of the Black Rod was with three reverences delivered upon the knee to his Grace and by him re-delivered to the Gentleman Usher of the Black Rod to hold during the Service Cl. of Cr. Serjeant at Arms Make Proclamation Serg. at Arm. O yes His Grace my Lord High Steward of England doth straightly charge and command all manner of persons here present except Peers Privy Councellors and the reverend Judges now assistant to be uncovered Cl. of Cr. Make Proclamation Serg. at Arms. O Yes My Lord High Steward of England his Grace straightly chargeth and commandeth all Justices Commissioners and all and every other person and persons to whom any Writ or Precept has been directed for the certifying of any Indictment or Record before his Grace my Lord High Steward of England That they do certifie and bring in the same forthwith according to the Tenor of the same Writ and Precept to them or any of them directed upon Pain and Peril shall fall thereon Then Sir Edward Lutwich one of his Majesty's Sergeants at Law and Chief Justice of Chester delivered in his Writ and Return at the Clerks Table The Writ of Certiorari and the Return thereof were read in haec verba L. H. Steward Call the Lieutenant of the Tower to return his Precept and bring his Prisoner to the Bar. Cl. of Cr. Make proclamation Serg. at Arms. Lieutenant of the Tower of London return thy Writ and Precept to thee directed together with the Body of Henry Baron of Delamere thy Prisoner forthwith upon Pain and Peril shall fall thereon The Prisoner was brought to the Bar by the Lieutenant of the Tower The Writ and Return thereof together with his Grace's Precept and the Return thereof were read in haec verba Cl. of Cr. Make proclamation Serg. at Arms. Sir Roger Harsnet Knight Sergeant at Arms to our Sovereign Lord the King return the Precept to thee directed together with the Names of all the Lords and Noblemen of this Realm of England Peers of Henry Baron of Delamere by thee summoned forthwith upon Pain and Peril shall fall thereon The Sergeant at Arms delivered in his Precept and Return at the Clerks Table L. H. Steward Read the Precept and the Return They were read in haec verba Cl. of Cr. Make an O Yes Serg. at Arms. O Yes All Dukes Earls Viscounts and Barons of this Realm of England Peers of Henry Baron of Delamere who by Commandment of my Lord High Steward of England His Grace were summoned to appear here this Day and are now present in Court answer to your Names upon Pain and Perii will fall thereon The Peers summoned were called over and those that appeared standing up uncovered answered to their Names each making a Reverence to the Lord High Steward Cl. of Cr. Laurence Earl of Rochester Lord High Treasurer of England L. H. Treas Here. Cl. of Cr. Robert Earl of Sunderland Lord President of his Majesty's Privy Council Lord Presid Here. Cl. of Cr. Henry Duke of Norfolk Earl Marshal of England D. of Norf. Here. Cl. of Cr. James Duke of Ormond Lord Steward of his Majesty's Houshold He did not appear Cl. of Cr. Charles Duke of Somerset D. of Som. Here. Cl. of Cr. Christopher Duke of Albermarle He did not appear Cl. of Cr. Henry Duke of Grafton D. of Graft Here. Cl. of the Cr. Henry Duke of Beaufort Lord President of Wales D. of Beauf. Here. Cl. of Cr. John Earl of Mulgrave Lord Chamberlain of his Majesty's Houshold E. of Mulg Here. Cl. of Cr. Aubery Earl of Oxford E. of Oxf. Here. Cl. of Cr. Charles Earl of Shrewsbury E. of Shrews Here. Cl. of Cr. Theophilus Earl of Huntingdon E. of Hunt Here. Cl. of Cr. Thomas Earl of Pembroke E. of Pemb. Here. Cl. of Cr. John Earl of Bridgwater E. of Bridgw Here. Cl. of Cr. Henry Earl of Peterborow E. of Peterb Here. Cl. of Cr. Robert Earl of Scarsdale E. of Scarsd Here. Cl. of Cr. William Earl of Craven E. of Craven Here. Cl. of Cr. Richard Earl of Burlington He did not appear Cl. of Cr. Louis Earl of Feversham E. of Feversh Here. Cl. of Cr. George Earl of Berkeley E. of Berk. Here. Cl. of Cr. Daniel Earl of Nottingham E. of Notting Here. Cl. of Cr. Thomas Earl of Plimouth E. of Plim Here. Cl. of Cr. Thomas Viscount Falconberge L. Falconberge Here. Cl. of Cr. Francis Viscount Newport Treasurer of his Majesty's Houshold L. Newport Here. Cl. of Cr. Robert Lord Ferrers L. Ferrers Here. Cl. of Cr. Vere Essex Lord Cromwell L. Cromwell Here. Cl. of Cr. William Lord Maynard Comptroller of his Majesty's Houshold L. Maynard Here. Cl. of Cr. George Lord Dartmouth Master General of his Majesty's Ordnance L. Dartmouth Here. Cl. of Cr. Sidney Lord Godolphin L. Godolphin Here. Cl. of Cr. John Lord Churchill L. Churchill Here. Then his Grace the Lord High Steward addressed himself to the Lord Delamere the Prisoner at the Bar in this Manner L. H. Steward My Lord Delamere the King being acquainted that you stand accused of High Treason not by common Report or Hearsay but by a Bill of Indictment found against you by Gentlemen of great Quality and known Integrity within the County Palatine of Chester the place of your Residence has thought it necessary in Tenderness to you as well as Justice to himself to order you a speedy Tryal My Lord if you know your self innocent in the name of God do not despond for you may be assured of a fair and patient hearing and in your proper time a free Liberty to make your full Defence and I am sure you cannot but be well convinced that my Noble Lords that are here your Peers to try you will be as desirous and ready to acquit you if you appear to be innocent as they will to
he humbly conceives by the Law and Custom of Parliament which is part of the Law and Custom of the Land ought not to proceed against him upon the said Indictment but his said Cause ought wholly to be determined and adjudged in the said House of Peers and not elsewhere as in like Cases has been formerly done Secondly Whereas it is the Right and Privilege of the Peerage of this Realm That no Peer thereof ought to be tryed or proceeded against for High Treason during the continuance of the Parliament except in the said House of Peers and before the whole Body of the Peers there And whereas the aforesaid Parliament is now continuing by Prorogation until the tenth day of February next abovesaid the said Henry Lord Delamere humbly conceives that by the Law and Custom of Parliament hitherto used which is part of the Law and Custom of the Realm he ought not nor can be tryed before your Lordships for the said Treasons because the said Parliament is still continuing and not dissolved And lastly The said Henry Lord Delamere doth further say That he is the same Henry Lord Delamere mentioned in the Commitment Petitions Messages Answers and Indictment now read unto him and the said Treason for which he was committed is the same Treason mentioned in the Commitment Petition Messages Answers and Indictment as aforesaid To which said Indictment he humbly conceives he is not bound by Law to make any further or other Answer L. Delamere May it please your Grace and you my Noble Lords I do not offer this Plea out of any diffidence or distrust in my Cause nor out of any dislike I have to any of your Lordships that are here Summoned to be my Tryers I cannot hope to stand before any more just and Noble nor can I wish to stand before any others but your Grace and my Lords will pardon me if I insist upon it because I apprehend it a Right and Priviledge doe to all the Peerage of England which as it is against the Duty of every Peer to betray or forgoe so it is not in the power of any One or more to wave it or give it up without the consent of the whole Body of the Peers every one of them being equally interested This my Lord I humbly demand as my Right and Priviledge as a Peer of England and submit to the direction of your Grace and my Noble Lords L. H. Steward What say you to it Mr. Attorney Mr. Attor General May it please your Grace This Plea that is here offered by this Noble Lord is a Plea to the Jurisdiction but with submission it needs very little answer for it has very little in it The Force of the Plea is That he ought to be tryed by the whole Body of the House of Peers in Parliament because the Parliament is still continuing being under a Prorogation and not dissolved and because there was some agitation of the matter concerning this Prosecution upon his Petition in the House of Lords and therefore it concludes That he ought not to be tryed by your Grace and these Noble Lords upon this Commission but by all the Lords in Parliament With submission my Lord This is contrary to all the antient Precedents and against the known Rules of Law for the Law is If the King pleases to try a Peer in Parliament then the Record may be brought into the House and there they proceed as in other Cases and all the Peers are Judges Thus it is in the time of a Session of Parliament but if the Parliament be prorogued there are many instances and indeed none to the contrary that after a Prorogation the Proceedings are before the High Steward by Commission And as to the other part of the Case I have this to say to it That there is nothing at all depending in the House of Lords that can oust this Court of the Jurisdiction for there was not so much as any Indictment returned there no nor so much as found during the Session of Parliament All the agitation was only upon my Lords Petition and the King's Answer that he intended as speedy a Prosecution as could be Besides my Lord your Grace sees it is a Plea in paper and in English without any Councels hand and therefore I hope your Grace does not expect that I should formally demur to a Plea in this form and that contains no more of Substance in it But I must desire your Grace to over-rule it and that the Prisoner may plead in chief L. Delamere My Lord I humbly pray that I may have Councel assigned me to put my Plea into Form and to argue the matter of it L. H. Steward My Lord Delamere I am sure I ought and ever shall be as tender of the Priviledges of the Peers of England as any other Person whatsoever For I am concerned as well in interest as inclination so to be having the honour to be one my self But I know your Lordship will not think the Priviledge of the Peers is concerned in this matter nor will your Lordship I dare say insist upon matters that are purely dilatory if your Lordship be satisfied that they are so And therefore give me leave my Lord to mind you of a few things whereby your Lordship will easily see That the chief things on which you insist are grounded upon mistakes First You say The House of Peers was possessed of the Cause which could not be and I will tell you why Because there was no Indictment ever removed thither or lodged there Which plainly proves that the Lords were never possessed of the Cause Nor indeed was the Bill found upon which you are now arraigned till after the Prorogation of the Parliament So that they could never come to be possessed of this matter These are mistakes in Point of Fact and your Lordship cannot but well know them to be so And there is as great a mistake in the Law That during the continuance of a Parliament though it were prorogued yet if not dissolved a Peer cannot be tryed but by the House of Lords This certainly is a very strange Doctrine and is not only against the reason and methods of Law but contrary even to your Lordships own experience For your Lordship cannot but very well remember that during the continuance of the Parliament after a Prorogation the Lord Cornwallis was tryed before the High Steward and such a number of Peers as were then summoned upon such a Commission as I now sit here by But indeed during the Sitting of the Parliament then all the Peers are both Tryers and Judges as was in the Cases of my Lord Stafford and my Lord of Pembroke they being a Court of Judicature then actually sitting and therefore this Plea is grounded as upon mistake in Fact so upon a mistake in point of Law So that though as I said at first it is both my duty and interest to preserve the priviledges of the Peers yet I must take
care that no injury be done to the Law and truly I take this Plea to be altogether dilatory and I suppose your Lordship is satisfied of it and will not insist upon it L. Delamere If your Grace please It was alledged and agreed in the Case of my Lord of Bristol that the Cause of a Peer in time of Parliament properly belong'd only to the House of Lords And that which possessed the House of Lords of his Case was as I apprehend no more than is in my Case a petition upon the account of being absent and there the Lords claim the cognizance of the whole Cause and nothing was done but in the House of Lords And as to the Instances your Grace has mentioned of my Lord Cornwallis and there was another of them my Lord Morley this Question was never under Debate in those Cases therefore I suppose they cannot be admitted as Precedents L. H. Steward But my Lord it would have been an Errour in the whole Proceedings if this Court had not Jurisdiction And sure the Judges who are always called to assist in such Cases and who in matters of life even in the Cases of common persons are so tender and careful that there be no irregularity in the Proceedings would not have let things pass in that manner had they been erroneous L. Delamere My Lord I think no other Precedents are produced but those two and there the Question was never debated L. H. Steward I only put you in mind of those that were lately within memory but no question of it there are a great many more Instances to be given Mr. Attor Gen. I pray your Grace's Judgment to over-rule the Plea and that my Lord may plead in chief L. Delamere I hope your Grace will be pleased to assign me Councel to put my Plea in Form and that I may have time for it that they may be heard to make a solemn Argument in Law L. H. Steward My Lord if you insist upon it and think it worth the while to have Councel heard we will hear them L. Delamere I submit it to your Grace I only offer it that I may not be wanting to the support of the Peers Priviledges I assure your Grace I speak not to put off the Cause for I am willing to come to my Tryal and I have reason so to be for I question not but to make my innocence appear L. H. Steward My Lord I tell you what my opinion of the Plea is but if you insist upon it to have your Councel heard I will hear them L. Delamere I have no Councel here if your Grace please to give me time to send for them and that they may prepare to argue it Mr. Attor Gen. No my Lord If your Grace will hear Councel I for the King must pray that it may be done presently for a Plea to the Jurisdiction is never favoured nor is the party to be allowed time to maintain it but he must be ready at the time it is offered L. Delamere Pray My Lord how was it done in the Case of Fitz-Harris his Plea was a Plea to the Jurisdiction and he had four days allowed him to put his Plea in form and to instruct his Councel L. H. Steward I am not able at present to remember what was done in such or such a particular Case But according to the general method and course of Law the Plea to the Jurisdiction is not favoured nor time allowed to it but the party must be ready to maintain it presently Mr. Attorn Gen. But with Submission my Lord That Case of Fitz Harris is nothing to this Noble Lord's Case neither There was a formal Plea put in in Writing and drawn up in Latine and a formal Demurrer joined and thereupon I did take time to speak to it But with your Grace's favour by the Law the Prisoner must be always ready to make good his Plea if he will oust the Court of their Jurisdiction L. H. Steward Mr. Attorney If my Lord Delamere does insist upon having his Councel heard it is not fit for me to refuse hearing what they can say Mr. Attor Gen. But that must be presently then My Lord. L. Delamere It is my Duty my Lord to submit to what your Grace and my noble Lords shall determine I would insist upon nothing that should offend your Grace or them Mr. Att. Gen. If your Grace pleases You are the only Judge in this Case in Matters of Law For these Noble Lords the Peers are only Tryers of the Fact Therefore I appeal to your Grace's Judgment and pray for the King that this Plea may be over-ruled it being vitious and naught both in Form and Substance Lord H. Steward My Lord Delamere I must acquaint you That according to the Constitution of this Court Matters of Law are determined by Me as the sole Judge while I have the Honour to act under this Commission But if your Lordship insist upon it to have your Councel heard God forbid that I should deny it You. I will hear what your Councel will say and afterwards I will according to the best of my Understanding deliver my Judgment Lord Delamere My Lord I have never had any Councel assigned me Lord H. Steward My Lord If You have any Councel ready we will Hear them Lord Delamere If your Grace please to assign me Councel and give me Time to send for them and them Time to prepare I will obey your Grace's Directions but I could have none here ready because none were assigned me Lord H. Steward My Lord You cannot by the Course of Law have Councel allowed You in the Case of a Capital Crime till such time as the Court where You are called to Answer is apprized that there is some Matter of Law in your Case that may need Councel to be heard to Inform their Judgment and which they may think convenient to hear Councel to For if in case any Prisoner at the Barr shall before-hand be allowed to have Councel to start frivolous Objections such as this and we all know that there are some who will be easily prevailed with to endeavour to pick Holes where there are none and to offer Matters foreign from the things whereof the Party stands accused and upon the Prisoner's bare Request Councel must be heard to every trivial Point the Courts of Law would never be at an end in any Tryal but some dilatory Matter or other would be found to retard the Proceedings But it does not consist with the Grandeur of the Court nor your Lordship's Interest to let such a frivolous Plea interrupt your Lordship's Tryal However if your Lordship has Councel ready I will not refuse to hear them Lord Delamere My Lord I hope the Priviledge of the Peers of England is not frivolous I assure your Grace I do not offer this Matter as if I thought it more conducing to my Interest than my Tryal now No my Lord it is not for my self but for the
not to be found That very Night my Lords this same Brand and Disney they meet this Noble Lord my Lord Delamere at the Coffee-House and give him an Account of the Messages And as soon as ever he had received the Message upon that Twenty-Seventh of May at Ten of the Clock at Night does my Lord Delamere dispatch out of Town with only one Servant to attend him and Two other Friends that he had pick't up or appointed to meet him and go with him With all these Badges of Plot and Design does my Lord Delamere set out that Night It was the same Night that Jones came to Town It was late at Night He changed his Name and went by the Name of Brown He chose to go all the By-roads and would not keep the High-common-road and went with great speed as We cannot but presume according to the Message delivered by Jones on purpose to repair into Cheshire And if your Lordships please to observe You will find several remarkable Instances of Plot and Contrivance in the matter First That a Nobleman and one of 10 considerable a Character in his Country as my Lord Delamere should make such haste out of Town with 10 small an Equipage as but one Servant Then That he should go so late at Night Again That he should change his Name and That should prove to be a Name not casually taken up as the first Name he could think of next his own but a Name of distinction that he was known by among all his own Party For all the Communications between the Confederates and Him were managed as to Him under the Name of Brown By that Name several of the late Duke of Monmouth's Trayterous Declarations were sent for which were to be sent to him or by him into Cheshire And that alone with Submission my Lords would be a shrewd Circumstance of Suspicion that a Noble Lord such an one as my Lord Delamere should assume the Name of a Commoner and post out of Town so ill accompanied in a Disguise at that time of Night especially the Parliament being then Sitting as really it was But besides all this Circumstantial Evidence We shall prove by Positive Testimony what the hasty Business was that made my Lord undertake this Journey in this manner For having notice of the Duke of Monmouth's Intention to Land speedily in England when he comes into Cheshire he actually sets about the Work to put that County in a forwardness to assist in the Rebellion endeavours to stir up the People to joyn with him and acquaints One that he imployed in that Affair with the whole Design that he was engaged to raise so many Thousand Men and so much Money to be ready by such a Day Nor does my Lord rest here But after the Duke of Monmouth was Landed in the West to corrupt the Minds of the People We shall prove what Discourses he had and these will testifie his Inclinations to the Cause concerning the great Victories he had obtained over the King's Forces and how he applauded his Conquests My Lords We shall plainly shew You all this that I have opened in plain Proof And then We shall submit it to your Lordships Judgments Whether this Noble Peer be Not Guilty as he has Pleaded to his Indictment Lord H. Steward Call your Witnesses Mr. Attorney Who do You begin with Mr. Att. Gen. My Lord Howard of Escrick We desire he may be first sworn Which was done Lord H. Steward Well What do You ask my Lord Howard Mr. Att. Gen. My Lord I call You to give an Account what You know of a Design of an Insurrection that was to have been and in what Parts and what share Cheshire was to have had in it in the late King's Time Lord H. Steward You hear the Question What say You to it my Lord Lord Howard My Lord I am to direct my self to speak to what was done in the late King's Time For as to that Noble Lord at the Barr I have nothing to say against him Lord H. Steward My Lord Howard If I apprehend Mr. Attorney aright You are not called as a particular Witness against my Lord Delamere but only to give an Account what was agreed upon in any Consultations where You were present in the late KING's Time about a Conspiracy for an Insurrection Lord Howard If so my Lord then I am called not to be an Evidence against my Lord Delamere but against my Self that is to repeat what I have often delivered at several Tryals in the Courts of Justice and which I must always repeat with Shame and Confusion for my Guilt as I cannot but always reflect upon it with Sorrow and Horror But if it be for the Service of His Majesty and this Honourable Court for me so to do I shall endeavour to comply with it and repeat it as well as I can by the Assistance of a broken Memory it being an Account of Things done several Years past and from a Memory interrupted by such Accidents as are very well known and as have disabled me to make a more distinct and particular Relation before so great an Auditory My Lords I suppose it will be expected I should begin my Account with the Occasion and Ground and the Time when those Things happened Lord H. Steward Take your own Method my Lord. Lord Howard Truly my Lord I am not able to fix the particular Time unless You will give me leave to reckon the Years by the Sheriffs of London as the Romans used to do theirs by their Consuls for I have no other means of computing the exact Time Lord H. Steward Pray my Lord tell the Times as near as you can and use what Helps for your Memory you think best Lord Howard My Lords It was in that Year when Mr. Shute and Mr. Pilkington were Sheriffs for the City of London And at that Time it is well known how great Heats did arise upon the Contests that were in the City about Election of Officers for the Year ensuing Mr. Attorney General May it please your Grace My Lord Delamere seems to be faint with standing If your Grace please a Chair may be provided for my Lord to sit in Lord H. Steward Ay by all means Let a Chair be provided for my Lord to sit down Go on my Lord. Lord Howard My Lord I was saying that the Contests about the disputed Election of Sheriffs had occasioned such heats in the City of London and other Places that it was even beyond the common expressions of discontent I knew nothing of any particular Design there was in hand till about six weeks after when Captain Walcot came to me a Person I had known some time before and upon discourse acquainted me that he had found out that there were some persons engaged in a considerable Action that was near its execution and that in order to it he had had notice given him to make preparation and thereupon he had thought fit for that reason
himself and Engage in such an Enterprize in Separation from those other Lords of whose Help there would be so much need He said he could not help it they had appointed this time and that but now when it came to the push they were not ready to do their parts but the People were now in such expectation of something to be done especially in London that it was impossible to restrain them and as impossible to get those Lords ready to joyn with them I told him I was altogether unacquainted with the proceedings in this Affair and that all of it was wholly new to me But pray My Lord said I give me leave to Act that part in this business that I think will most conduce to the Successful Issue of it which is to be a Mediator between You and let me desire you to let things rest as they are till I have endeavoured to Create a better Understanding between your Lordship and those Lords of whose Tergiversation you seem to complain Upon this my Lord was in a great heat and express'd himself with great warming but at last with much ado he gave me Permission to go to the Duke of Monmouth and assure him and the rest of the Lords that were concern'd and tell them from him That if they would be ready to take the Posts that were assign'd them according to their own former Agreement and immediately enter upon Action he would joyn with them but if not he was resolved to go on alone This was as I remember upon Tuesday the Second of October upon the Wednesday Morning I went to find out the Duke of Monmouth but coming to his Lodgings he was gone to Moor-Pank where when I came I found several Persons with him I but after a little time I separated him from the Company and whispering to him I gave him to understand how great a Disorder I found my Lord Shaftsbury in and how great a Complaint he made of his being deserted by him and the other Lords engaged with him and what Resolution he had taken to set upon the Work alone My Lord sayes he I think the Man is Mad his Fear makes him lose his Understanding I do not know why he hides himself from his Friends that no body can telll where he is but as to that which he speaks of oft our forsaking him and breach of Faith he is mistaken For 't is true indeed we are about doing the Thing that he is so eager for but we are not for doing it so hastily as his Fears precipitate him to do and he must excuse us if we Comply not with his Humour to hazard the whole Undertaking by a rash beginning Upon that I said to him My Lord I shall not discourse the Particularities of the business with your Grace but this is all that I at present Address to your Grace for to be a means if I can with your Grace as I have been with him to procure a Meeting between you that you may Settle it with one another Withal my heart sayes the Duke pray let it be so for though my Lord Shaftsbury is angry without a cause yet I would not have him lose himself in a temerarious Undertaking My Lord said I I will tell him what you say and will see if I can work him to a Complyance with the Proposal The next day being Thursday my Lord I went to my Lord Shaftsbury again and reported to him the Discourse I had with the Duke of Monmouth and what Answer he had given to his Complaint of their deserting him He Reply'd It was false they had positively ingaged to be ready by such a time and had appointed the very Day but now they were off and would not tell when they would be ready and withal he told me he greatly suspected the Duke of Monmouth to have a secret Correspondence with the King I then desired him That he would please to consent to the Treaty that was proposed and give the Duke of Monmouth and the Lords a Meeting he in great heat Replyed No he would come no more at them It is strange my Lord said I that you should have such an Opinion of these Men that they would go about to betray you they are not Men of that size but he persisted in it that they had dealt perfidiously with him For after a positive Agreement when the Thing was brought just to the Birth they withdrew their helping-hand but he was sure in London he could Raise a sufficient Force to do the Work and if he were but once set on Horse-back he would Head them himself But yet he was willing to put it off for a Fortnight or three weeks longer if they would be sure to keep pace with him With this Proposal I went the next day which was Friday to the Duke of Monmouth and had the same Answer from him that I had before but withal he bid me tell my Lord Shaftsbury That he did make it his earnest Request to him to give him and his other Friends a Meeting before he Engaged in this business For he found by his precipitation he was about to Destroy himself and all that adhered to him Thereupon I came to my Lord Shaftsbury again upon the Saturday and when I came there after a long and importunate urging all the Arguments I could think of I so far prevailed with him that he agreed to give them a Meeting upon condition that it should be the next day and because it should be so private that no notice might be taken of it he chose to have the Meeting at his own House where no body would suspect him to be and whither he would be conveyed under the Disguise of a Parson I went back with this Message to the Duke of Monmouth who did undertake that the other Lords should be there Lord H. Steward My Lord Howard not to interrupt you Did he name those other Lords If he did pray acquaint my Lords who they were Lord Howard My Lord Shaftsbury named my Lord Russel and my Lord Gray and a great many more that should bear their parts I went to the Duke of Monmouth and told him of it I say and he engaged that they should certainly be there But upon the Sunday Morning when I came to the Temple there I found a Message left for me That my Lord Shaftsbury had receiv'd an Alarum That there were some great Toryes lived near his House in Aldersgate-Street who were continually Spying about and so great a Company might make their more than ordinary Observation That this gave him such a Jealousy as would not permit him to Meet according to his Appointment Afterwards I came to a better understanding of the Reason of this and found there was some fineness in it which I could not comprehend before But after this time I never saw my Lord Shaftsbury for he removed then to other Lodgings So that what I now speak of him is only what I had by
hear-say from others For I had no knowledge of what pass'd as to him but what I had from Capt. Walcot who told me That after that there were several dayes of Meeting appointed but still from time to time put off but upon what reason I cannot particularly remember This is all I know of my Lord Shaftsbury and the latter Part is wholly by Hear-say from Walcot But by reason of this Agitation we continued under Expectation till such time as my Lord Shaftsbury went into Holland where he shortly after died And truly I thought at that time much of the Design was quashed and laid aside But soon after Ferguson came over who when he came Here began to revive and quicken the Business and push it on to Execution I spoke with him at the One Bell in the Strand and there he gave me an Account of all the Steps that had been taken He told me what Preparations had been made in the City in general what to seize the Gates of the City what to Possess themselves of the Tower what to attacque the Guards and several other Things which I can't now so well remember the Impressions of them being worn out of my Memory by length of Time and other Accidents This in general is all that I can say as to what was previous to the particular Engagement wherein I was concern'd For at last after many Discourses the Troubles and Difficulties of the Times increasing and the Dangers that threatned us as we thought growing higher and higher this gave an Occasion for our uniting Councels and entring into a kind of Juncto which I suppose is Foreign to this Affair before your Lordships and therefore I suppose would be likewise impertinent for me to trouble your Lordships with L. H. Steward Mr. Attorney Do you desire my Lord Howard should give an Account of those other Meetings and Consultations at which he was present Mr. Att. Gen. My Lord I think there will be no need of it and I am unwilling to take up your Grace's Time to no purpose Lord Howard As for that Noble Lord at the Barr I know nothing concerning him Lord H. Steward Then Gentlemen Will You have him asked any more Questions Mr. Att. Gen. No my Lord. Lord H. Steward My Lord Delamere Will You ask him any Questions Lord Delamere No my Lord. Mr. Att. Gen. Before my Lord Howard goes I would ask him one Question in general Whether he knew of any Design of a Rising in Cheshire Lord Howard No my Lord I knew of none at all Mr. Att. Gen. Then We desire my Lord Gray may be sworn Which was done Mr. Att. Gen. Pray Will You give his Grace and my Lords an Account what You know of any Designs of an Insurrection or Rebellion when You were beyond Sea or before and who were engaged in it Lord Gray My Lord I am Subpoena'd hither on behalf of the King and I am also Subpoena'd on behalf of my Lord the Prisoner at the Barr I do not know any thing that I can speak of my own Knowledge against the Prisoner nor have I any thing to say that I know of that will be for his Advantage But I am here ready to Answer such Questions as shall be asked of me either of One side or the Other Mr. Att. Gen. My Lord the Question I ask You is What do You know of any Design of a Rising in Cheshire and when Lord Gray About the Time of Election of Sheriffs for the City of London I mean that memorable Time of the Contested Election which furnished the World with so much Discourse and was the occasion of such Heats and Animosities About that Time the Duke of Monmouth and my Lord of Shaftsbury began to discourse about making use of That as an Opportunity to accomplish their Design For they thought the Ferment was so high that Men would easily be disposed to an Insurrection And after many Discourses to that purpose they came to this Resolution That they would apply themselves to make what Interest they could to procure a Rising in Three several Parts of the Kingdom at once One in Cheshire whither the Duke of Monmouth was to betake himself and there be advised by my Lord Macclesfield my Lord Brandon my Lord Delamere that then was and the Prisoner at the Barr what Gentlemen were proper to apply to for joyning in the Design The Second was in London which was assigned to be the Province of my Lord of Shaftsbury And the Third was in the West which was committed to the Care of my Lord Russel The Duke of Monmouth did accordingly go his Progress into Cheshire as is very well known and upon his Return was taken into Custody by the Serjeant at Arms Upon which Sir Thomas Armstrong was sent Post to Town and get an Habeas Corpus and withal to deliver a Message to Me to be Communicated with my Lord Russel and my Lord Shaftsbury Which Message as near as I remember was to this Effect That he had been kindly received by the Gentlemen of the Country and had discours'd the Matter with them and found them all inclined very much to his Satisfaction That upon his being Arrested he had been advised to make his Escape into Cheshire and Rise immediately but that he would not do a Matter of that great Importance without the Approbation of his Friends This is all that I know of any thing that was designed in Cheshire Mr. Att. Gen. Pray my Lord what do you know of any Messages that Capt. Matthews or Jones brought over from Holland and to whom and from whom L. Gray Sir I will give the best Account I can upon the sudden for I am not prepared to give a particular distinct account in regard I did not know it would be expected from me nor indeed that it would affect the Prisoner at the Bar. L. H. Stew. Pray my Lord give my Lords the Peers as succinct and particular an account as you can L. Gray My Lord soon after the late Kings Death the Duke of Monmouth was at Amsterdam with my Lord Argyle where there was an account given of the Design that was in hand of an Insurrection in Scotland and the preparations that had been made in order to it and at that time there came over to Holland Mr. Crag that came as I was inform'd from Major VVildman and his Errand was to promote and recommend a Reconciliation between the Duke of Monmouth and my Lord Argyle who till that time had acted in separate Interests and Crag then gave an account that Means and Money were prepared he had no particular Message to the Duke because he did not know of meeting him there at that time The Duke of Monmouth upon this Encouragement did send Captain Matthews into England with a Message to Major VVildman wherein he did desire him that he would procure a Meeting with my Lord Macclesfield My Lord Brandon my Lord Delamere and I think Mr. Charleton and acquaint
them that he had received a full account of my Lord Argyle's affairs and the preparations that had been made for it and accordingly he had ordered his own affairs to join with him he likewise sent Crag with a Message to the same purpose to other Friends in London and he dispatch'd away one Battescomb into the VVest to prepare things there When Crag returned back again to the Duke he gave him an account that Major VVildman had procured a Meeting with those Lords and Gentlemen that I mentioned before who were all of Opinion That the Duke of Monmouth should go for Scotland for they thought that his coming there would be the best Service he could do the interest at present and they should know the strength of the Enemy here by their sending Forces to suppess the Rebellion there There was likewise a particular Message from Major VVildman to the Duke of Monmouth That he desired he would bring over with him a Broad Seal to Seal Commissions with and to take upon him the Title of King the other particular branches of the Message I do not so well remember but only this he was particularly asked Whether the Prisoner at the Bar was there and he said he was Mr. Att. Gen. Pray my Lord Gray will you give an account what you know of Jones's coming over and what Errand he was sent of Lord Gray Jones came some time after Crag returned and he gave an account of other things conformable to what Crag had said and was sent back again to England by the Duke of Monmouth to give an account of his being ready to sail he gave him also a Letter the Contents whereof I did not see I had some short account of it but whether it were written to any particular Person I cannot tell the sum of his Message was That he would land by that time he could get thither Mr. Att. Gen. My Lord Gray you had frequent Discourse with the Duke of Monmouth and so I suppose can give an account who he kept Correspondence with and upon whose assistance he relyed Lord Gray I suppose few people will believe we were so weary of our Lives as to come and throw them away with Threescore or a very few more Men for it was but a very small number we began with except we had had expectation of good assistance This I am sure of by all my discourses with the Duke of Monmouth he did depend very much upon Cheshire and was resolved to have landed and begun there but afterwards he considered of it and thought better to send some sort of excuse for not landing in Cheshire That the persons that were to be applyed to there being men of great Quality and Interest in their Countrey and able to manage it without his assistance But in the VVest the Friends he relyed on were not of that considerable Quality and therefore he chose to land there Mr. Att. Gen. What Lords did he name that he depended upon Lord Gray I did name them my Lord Macclesfield my Lord Brandon and my Lord Delamere but I observed when the Duke of Monmouth spoke of his Friends in Cheshire he did name my Lord Macclesfield and my Lord Brandon as Persons E. of Nottingham My Lord Steward I humbly pray this Witness may be asked to whom that Letter was written that he saith the late Duke of Monmouth sent by Jones Lord H Stew. You hear my Lord's question who did Monmouth send that Letter by Jones to Lord Gray My Lord I never saw the Letter nor do I know any directions there were upon it I always looked upon it as a paper of Instructions given to him about the time when and the name of the place where the Duke was to land Mr. Att. Gen. We will give an account of that by Jones by and by My Lord. Now swear Nathaniel VVade Which was done Lord H. Stew. Well what do you ask this Witness Mr. Att. Gen. Wade That which I call you for is this to give an account what you know of any design of landing in Cheshire or elsewhere and of Jones's coming over and what Errand he was sent upon Mr. Wade My Ld. I shall give an account as far as I know after the death of the late King Captain Matthews came to Amsterdam and gave an account there that the Duke of Monmouth intended to be there shortly to meet and consult with my Lord Argyle who we understood then was preparing for an expedition into Scotland thereupon I was sent into Freezland to desire my Lord Argyle to come to Amsterdam which he did and there the Duke of Monmouth did consult with him and they did agree together that at the same time that my Lord Argyle made an Insurrection in Scotland the Duke of Monmouth should Invade England and to that end that he should send to those Friends he had in England to be ready to assist him when he came there and in order to it he did send Captain Matthews who amongst other things was to go to the Dukes Friends in Cheshire and amongst them my Lord Delamere was named to be one and the business was to desire them to be ready to assist him when he should land accordingly Captain Matthews went but a little after his going away I think one Crag came over and he came from Major Wildman and his business was to endeavour a good understanding between the Duke of Monmouth and my Lord Argyle who were then at some difference and to endeavour to make them act jointly by united Councils a little after he was sent back again into England to Major Wildman to desire him to assist them with some Money he went back again and returned but brought no Money thereupon he was sent again by the Duke of Monmouth because the first time he was not sent by him the Sum demanded was Six Thousand Pounds or Four Thousand Pounds and at last he sent for a Thousand Pound Crag returned with this Answer That they could not assist them with Money for they did not know to what end they should have Money but to buy Arms and for that the people were well provided enough already and there was no need of Money for that purpose The Duke of Monmouth a while after sent Mr. Crag and pawned all the Jewels he had to raise Money and fitted out Three Ships for this Service laden with Ammunition and because he had promised my Lord Argyle to make a diversion in England while he Invaded Scotland he resolved to go with that provision he had and desired by Mr. Crag that since those Lords and Gentlemen that were to assist them had sent no Money as was desired of them and expected from them they should now trouble themselves with no further needless consultations but should repair each man into his own Countrey where their interest was greatest to be ready when he should come and in order to this the Duke of Monmouth did set sail from Holland and
came to Lyme and landed there and did afterwards order his March so that he might most conveniently meet with his Cheshire Friends that is towards Gloucester and so to get Gloucester Bridg that thereby gaining the command of the River of Severn those of Cheshire if they did as was expected make an Insurrection at the same time they might easily join together In pursuance of this design we came to Keinsham Bridg and there a party of the Kings Horse set upon us and we took some Prisoners and thereupon thought it advisable not to let the Kings Army join together but to go back and engage those that were already come together and that was the reason we did not go over the Bridg. Mr. Att. Gen. Do you know any thing of Jones's coming into Holland and for what Mr. Wade My Lord I had forgot that a little before Crags going last away Jones came over and his business was to know why we staid so long for the Duke of Monmouth's Friends in England had expected him long before and he was dispatch'd away quickly to acquaint them the Duke was coming Mr. Att. Gen. Who was he sent to to acquaint with his coming VVade To Major Wildman he was directed to Major Wildman Mr. Att. Gen. Who else were to be acquainted with it Wade Among the rest my Lord Delamere my Lord Macclesfield and my Lord Brandon were to be acquainted that he was coming and expected that they should raise what Forces they could to assist him Lord H. Stew. Will my Lord Delamere ask him any Questions Lord Delamere No my Lord I never saw his Face before tat I know of Lord H. Stew. Who do you go to next Mr. Attorney Mr. Att. Gen. Next we call Richard Goodenough Swear him which was done That which I would know of you Mr. Goodenough is Whether Jones was sent of my Message and about what Goodenough My Lord I was beyond Sea with the Duke of Monmouth and Mr. Jones was sent among other persons to my Lord Delamere to give him notice that he should be ready against the time that the Duke should land and take care to secure himself that he might not be seized here in Town for we were apprehensive such a thing would be attempted Mr. Att. Gen. What directions were given him what Lords to go to Goodenough My Lord we were informed in Holland that my Lord Delamere was one of those Lords that had promised to draw his Sword in his behalf Mr. Att. Gen. Had you any discourse with the Duke of Monmouth about it at any time Goodenough Yes I have discoursed with the Duke of Monmouth several times Lord H. Steward Ay what did he say to you about it Goodenough My Lord he said among other things that he hoped my Lord Delamere would not break his promise with him Lord H. Stew. My Lord Delamere will you ask him any Questions Lord Delamere No my Lord I never saw his Face before that I know of I will assure you Lord H. Stew. That is pretty strange so famous an Under-Sheriff of London and Middlesex as he was Mr. Att. Gen. Then swear Jones which was done Pray will you give an account what Message you received from the Duke of Monmouth upon your going over into Holland and to whom you were to deliver it and what became of it Jones My Lord I went to Holland about the latter end of April last my going as I have acquainted his Majesty and the Council was not only about this Affair for I had other business that called me thither which I shall not now take up your time or trouble you with repeating of but having some knowledg from Mr. Disney that there were some intentions of doing something tho it was communicated to me but very darkly and therefore that little I did know made me the willinger to go for Holland so soon as I did but before I went I had a mind to understand something more of the design and therefore the night before I went I came to Mr. Disney and acquainted him with my intended Journey Mr. Disney did perswade me against it thinking that I had gone upon this account but I told him the occasion which he partly knew why I went but withal I told him I did intend to see the Duke of Monmouth and if he had any Message that he would have delivered to him I would deliver it very safely he told me all the Message I should deliver to the Duke of Monmouth if I saw him was to desire him to keep to the last Conclusion which he would find in a Letter that had been sent to him and that if he had not yet received the Letter it was to come by the Crop-hair'd Merchant or the Crop-ear'd Merchant I cannot say which but I think it was the Crop-hair'd I asked him what that Message was lest the Letter should miscarry for I told him if I should go to the Duke of Monmouth and refer him to a Letter wherein a Message was to be brought him which he was to keep to and that Letter should miscarry I should in effect bring no message at all to him my Lord thereupon he told me that I should acquaint the Duke of Monmouth that his Friends in England would not by any means have him come for England but that he should continue where he was or if he thought good to go for Scotland they approved of it this is the sum of what he said to me as near as I can remember When I came to Amsterdam there was one Mr 〈◊〉 that was kill'd at Philips Norton went with me to the Duke of Monmouth's and when I came to him I acquainted him as Mr. Disney appointed me to do that there was such a letter sent by such a person and that such a Message was included in it My Lord he was in a great passion I know not how to express it and seemed to be very much troubled and did reflect very much upon Major Wildman and said that was Wildman's work and he said as I think that was the word he used Wildman was a Villain or to that purpose but withal he said it was too late to send such a message now and that he was resolved to come for England and he would make VVildman hang with him or fight for it with him that Wildman did think by tying his own purse he should tye his hand but he should find it should not be so and some other words of the like nature he used but this is the substance of what he said he gave some account what preparations had been made he said Money was very short and he had been fain to pawn all he had to raise what Money was raised upon his own charge He asked me if I did think to return to England shortly I told him if he had any service to command me for England I had some little business to do at Rotterdam which I would dispatch and then I
one day to another for that is clear you may and has been practised for that is the Case of the Earl of Somerset and his Wife But the Question is Whether after the Prisoner is upon his Tryall and the Evidence for the King is given the Lords being as we may term it Charged with the Prisoner the Peers Tryers may separate for a time which is the consequent of an Adjournment to another day And my Lord the Judges presume to acquaint your Grace that this is a matter wholly new to them and that they know not upon recollection of all that they can remember to have read that either this matter was done or questioned whether it might or might not be done in any Case My Lord If the matter had been formerly done or been brought into question in any Case where it had received a determination and reported in any of our Books of Law then it would have been our duty to contribute all our Reading and Experience for the satisfaction of this great Court But being as it is a new question and a question that not only concerns the particular Case of this Noble Lord at the Barr but is to be a president in all Cases of the like nature for the future All we can do is to acquaint your Grace and my Noble Lords what the Law is in the inferiour Courts in Cases of the like nature and the Reason of the Law in those points and then leave the Jurisdiction of this Court to its proper Judgment My Lord in the first place where the Tryal is by a Jury there the Law is clear the Jury once charged can never be discharged till they have given their Verdict this is clear and the reason of that is for fear of Corruption and tampering with the Jury an Officer is sworn to keep the Jury together without permitting them to separate or any one to converse with them for no man knows what may happen for though the Law requires honest men should be returned upon Juryes and without a known Objection are presumed to be probi legales homines yet they are weak men and perhaps may be wrought upon by undue Applications This My Lord it is said fails in this Case because the Lords that are to try a Peer are Persons of that great Integrity and Honour that there is not the least presumption of their being to be prevailed upon in any such way and for that reason because of the confidence which the Law reposes and justly in Persons of their Quality they are not sworn as common ordinary Jurors are but are charged and deliver their Verdict upon Honour My Lord in the Case of a Tryal of a Peer in Parliament as your Grace was pleased to observe and as is very well known by late Experience there the matter has been Adjourned till another day and for divers days the Evidence being given in several Parcells and yet there the danger is as great if any were to be supposed of tampering But whether the Lords being Judges in that Case and in this Case only in the nature of a Jury makes the difference though in both Cases it is but like a Verdict for they give their Opinions Seriatim whether the Peer tryed be Guilty or not Guilty that they submit to your Graces consideration Upon the whole matter My Lord whether their being Judges in the one and not in the other instance alters the Case or whether the Reason of Law in inferiour Courts why the Jury are not permitted to seperate till they have discharged themselves by their Verdict may have any influence upon this Case where that reason seems to fail the Prisoner being to be tryed by his Peers that are men of unquestionable unsuspected Integrity and Honour we can't presume so far as to make any Determination in a point that is both new to us and of great Consequence in it self but think it the properest way for us having laid matters as we conceive them before your Grace and my Lords to submit the Jurisdiction of your own Court to your own determination L. H. Steward My Lords I confess I would always be very tender of the Priviledge of the Peers wherever I find them concerned but truly I apprehend according to the best of my understanding that this Court is held before me It is my Warrant that convenes the Prisoner to this Barr. It is my Summons that brings the Peers together to try him and so I take my self to be Judge of the Court. My Lords 't is true may withdraw and they may call the Judges to them to assist them which shews they have an extraordinary Priviledge in some Cases more before the High Steward than Juries have in inferior Courts in Cases of common Persons For if it be in a common Case no Jury can call either Counsell or Judges to assist them in the absence of the Prisoner but if they will have advice it must be asked in open Court in the presence of the party accused But now My Lords if you have a mind to consult with me in private as I now sit by Virtue of this Commission which is his Majesties Warrant for me to hold this Court I could not withdraw with you but you must ask all your questions of me in the presence of the Prisoner in open Court whereas if it were in full Parliament as were the Cases of my Lord Stafford and my Lord of Pembroke then he that were the High Steward might go along with you when you withdrew and consult with you and give his Opinion which I cannot do in this Case for I am bound to sit in Court while you withdraw to consider of the Evidence and am not to hear any thing said to me but what is said in open Court in the presence of the Prisoner except it be when you deliver your Verdict This I confess my Lords has a great weight with me and I know your Lordships will be very tender of proceeding in such a Case any way but according to Law For though you are Judges of your own Priviledges yet with Submission you are not Judges of the Law of this Court for that I take to be my Province Why then Suppose my Lords I should take upon me to do as my Lord Delamere desires and adjourn the Court and suppose the Law should fall out to be that indeed I ought not so to have done would it be any advantage to this Noble Peer if he should be acquitted by your Lorships after such an Adjournment might not the evil consequence of that be that he might be Indicted for the same crime and tryed again For all the Proceedings after that would be Void and lyable to be reversed And if on the other side your Lordships should think fit upon the Evidence you have now heard and what he shall say for himself to convict him after I have adjourned as is desired and I pass Judgment upon him as it will be
a Duty incumbent upon me to pass Sentence on him if you convict him what will become of the Case then and how shall I be able to answer it as having done my duty when I pronounce a Judgment notoriously Erroneous and Illegall for so it will be if the Law prove to be against my adjourning This my Lords is a matter of great moment and worth the Consideration But in the other Case of a Trial in full Parliament the Lord that Sits where I do is only as the Chairman of the Court rather than Judge he gives a Vote in such proceedings and therefore my Lord the Prisoner did very well at the beginning to ask the Question whether I had any Vote in his Tryal as a Peer jointly with your Lordships If I sat in full Parliament I should without all question give my Vote as well as any other Peer but sitting here by immediate Commission from the King pro hac vice High Steward I acquaint you as I did him I have no authority to give any Vote My Business is to see the Law observed and fulfilled as Judge Certainly My Lords your Lordships and I and all mankind ought to be tender of committing any Errors in Cases of Life and Death and I would be loath I will assure you to be recorded for giving an Erroneous Judgment in a Case of Blood and as the first man that should bring in an illegal Precedent the Consequence of which may extend I know not how far M. Att. General Will your Grace give direction for my Lord to proceed L. H. Steward Yes he must proceed I think L. Delamere May it please your Grace and you my Lords it is an offence of a very high Nature for which I am this day to answer before your Lordships yet I thank God I am not afraid to speak in this place because I am not only certain and very well assured of my own Innocency no such thought having as yet entred into my heart but I am also well assured of your Lordships Wisdom and Justice which cannot be imposed upon or surprized by Insinuations and florid Harangues nor governed by any thing but the Justice of the Cause My Lords I can with a great deal of Comfort and Satisfaction say that these Crimes wherewith I am charged are not only Strangers to my Thoughts but also to what has been my constant Principle and Practice For I think that in matters relating to the Church and the things enjoyned therein few have conformed more in Practice then I have done and yet I do confess and am not ashamed to say it that I have always had a Tenderness for all those who could not keep pace with me and Charity for those that have outgone me and differed from me though never so far nay though of a different Religion For I always thought Religion lay more in Charity than Persecution While I had the Honour to be a Magistrate in my Country I did constantly duly and impartially execute the Laws and in every publick trust I was very faithful in the Discharge of it for I never voted nor spoke in any manner but as my Conscience and Judgment did dictate to me I have always made the Laws the measure of my Loyalty and have still been as Zealous and Careful to give the King his Prerogative as to preserve to the people their Properties and have endeavoured as far as in me lay to live peaceably with all men This My Lords was not only the Dictates of my own Inclinations but it was the Principle of my lather and the Lesson that he taught me I say of my Father who was so greatly Instrumental in snatching this Nation out of its Confusion and restoring it to its ancient Government by setling his late Majesty upon his Throne and consequently was the means of his present Majesty that now is his coming so peaceably to the Crown And this I may the more boldly speak because I speak it by good Authority because in the Patent that created my Father a Peer his late Majesty is pleased to say his rising was mainly instrumental in his Restoration I beg the Favour of your Grace and my Lords that I may read to you that Clause in the preamble of the Patent which I have here ready to produce Which was read and then my Lord proceeded as follows viz. My Lords I suppose most of your Lordships did know him and whosoever did so I dare say did believe him to be a good man For my part I did not know a better Copy to write after than his Example which I endeavoured always to imitate and that I hope will go very far to vindicate me from the Imputation of being inclined to any such Crime as I stand charged with My Lords it is now late and therefore I shall cut off a great deal of what I had intended to say to your Lordships that I may not take up too much of your time and come immediately to my Defence as to what I stand accused of And first my Lords I shall observe that here have been a great many Witnesses produced and a great deal of Swearing but little or nothing of Legal Evidence to affect me for there is but one man that saith any thing home and positively against me and whom I shall answer by and by all the rest are but Hear-says and such remote Circumstances as may be tacked to any Evidence against any other person but are urged against me for want of greater matters to charge me with and therefore I hope the producing and pressing of these things against me is rather a strong Argument that I am Innocent and that there have been mischievous and ill designs of some against me than that I am guilty for if they had had other and greater matters your Lordships would have been sure to have heard of them With your Lordships leave I cannot but observe to your Lordships an excellent saying of that great man my Lord of Nottingham whose Name will ever be remembred with Honour in our English Nation when he sate in the same place that your Grace does now at the Tryal of my Lord Cornwallis which I will read to your Lordships Speaking to the Peers he has this passage I know your Lordships will weigh the Fact with all its circumstances from which it is to receive its true and its proper Doom Your Lordships are too just to let Pity make any abatement for the Crime and too wise to suffer Rhetorick to make any Improvement of it This only will be necessary to be observed by all your Lordships that the fowler the Crime is the clearer and plainer ought the Proof of it to be there is no other good Reason can be given why the Law refuseth to allow the Prisoner at the Bar Counsel in matter of Fact when Life is concerned but only this because the Evidence by which he is condemned ought to be so very evident and so plain that
all the Council in the world should not be able to answer it My Lords I think the Evidence that has been given against me this day does not come up to this And I hope your Lordships will regard this saying of my Lord Nottinghams as more worthy of your consideration than the fine Flourishings and Insinuations of the Kings Council which tend if it be not so designed rather to misguide your Lordships than to lead you to find out the Truth My Lords I shall now tell you the method that I shall proceed in in making my Defence and I begin with Saxon for he I perceive is the great Goliah whose Evidence is to maintain this Accusation and if I cut him down I suppose I shall be thought to have done my own business therefore to that I shall apply my self first and do it if I can and I will in the first place examine several persons that are his Neighbours and have conversed with him what they have heard and know of him and first I desire Richard Hall may be called L. H. Steward My Lord Delamere if you begin that way to call Witnesses against Saxon it is fit he should be here to know what is said against him L. Delamere Ay with all my heart My Lord. L. H. Steward Then call Saxon agen Then Saxon and Hall came both in L. Delamere Pray Mr. Hall tell my Lords here what you know of Thomas Saxon. L. H. Steward What is it you ask of this Witness L. Delamere My Lord I desire him to give an account what he knows of a Letter that was forged by Saxon in the name of one Hildage Hall About the nineteenth of December in the year 1683 I received a Letter by Thomas Saxon from Richard Hildage wherein he desired me to send him the sum of six pounds odd money which I owed him I received the Letter and paid the money and to the best of my knowledge some little time after I met with the said Hildage at Newcastle who asked me to pay him the money I owed him I replyed I had paid the money according to his Note but he said he never gave any such Note and threatned to sue me thereupon I sent one Lord to Hildage that is here now in the Court and desired Hildage his forbearance for a while till I could get the money from Saxon back again and afterwards he sent again for his money and I sent to Saxon for it but still the money did not come L. H. Steward Did you ever speak with Saxon himself Hall No but with his wife who came to me about it but he acknowledged he wrote the Letter before John Lord. Saxon. Did not my wife tell you that Richard Hildage lent me the money L. H. Steward Nay you must not Dialogue with one another but if you have any questions you must propound them to the Court My Lord Delamere have you any more questions to ask him L. Delamere No my Lord. L. H. Steward Then what is it you would have him asked Saxon Saxon. I desire you would please to ask him whether or no he did not lend me the money L. H. Steward He who do you mean Saxon. Richard Hildage did L. H. Steward What say you did Richard Hildage lend him the money Hall No my Lord. L. H. Steward Look you my Lord Delamere the Objection carries a great deal of weight in it to prove him a very ill man if it be fully made out L. Delamere My Lord if your Grace please I can prove that he owned the writing of the Letter to another man L. H. Steward My Lord he does own here that he wrote the Letter and that he wrote it in Hildage's name but he saith the Letter he so wrote in Hildage's Name was by Hildage's direction and if so that takes off the Objection made against him L. Delamere I must submit that to your Grace whether what he says in that matter be Evidence L. H. Steward What Hildage did or did not is the main turn of the question in this Case for he might lend him the money and yet afterwards might say when he thought he might lose it that he did not send any such Letter and all this be true and Saxon in no fault I must confess if Hildage were here himself and should deny the lending of the money or the giving him Directions to receive it you would have fixed a shrewd Objection upon him but otherwise Hear-says and discourses at second hand are not to take off the Credit of any mans Testimony L. Delamere But Hall says Hildage denyed the receipt of the money or any Order for receiving of it L. H. Steward That signifies nothing being but by second hand Saxon. If it please your Grace here is my Brother in Court will give you an account of it L. H. Steward Well well Hold your tongue will your Lordship please to go on L. Delamere The next Witness my Lord that I shall call shall be Francis Ling who came in L. H. Steward What do you ask this Witness L. Delamere Mr. Ling pray will you tell his Grace and my Lords what you know concerning Saxon's receiving any Money in the name of Mrs. Wilbraham without her Order Ling. He called at this same Hildage's at Newcastle and received twenty five Shillings and said it was for Mrs. Wilbraham in her name but she never received a penny of the Money nor knew of his having received it till he came to pay another Quarter L. H. Steward Where is that Mrs. Wilbraham is she here Ling. No my Lord she is a Neighbour of ours an Ancient Woman fourscore years of Age and cannot come so far L. H. Steward This is the same Case with the other you can never think to take off the Credibility of Witnesses by such Testimony for this is only a Tale out of an Old Woman's Mouth What if that Old Woman told him a false Story Ling. She said L. H. Steward I care not what she said this is no Evidence at all L. Delamere Then 'pray call Richard Shaw who came in L. H. Steward Well what says this Witness L. Delamere Shaw can you tell any thing of Thomas Saxon's writing a Letter and sending it in the Name of one Paugston a Bayliff Shaw He writ a Letter as I understand concerning some money that I owed him for I owed him a little money and being I did not pay it he does forge a Letter and puts William Paugston's name to it so I got up the other Morning L. H. Steward Where is Paugston Is he here Shaw No my Lord he is not but he told me he did not write the Letter L. H. Steward Why this is just the same again and we all know how easie a thing it is to hear a Bayliff tell a Lye Shaw I cannot tell but I called L. H. Steward All that is nothing It is a difficulter matter to hear such Fellows speak truth than any thing else I
gathered up agen and therefore unless the Case be very clear against me you I am sure will not hazard the shedding of my blood upon a doubtful Evidence God Almighty is a God of Mercy and Equity Our Law the Law of England is a Law of Equity and Mercy and both God and the Law require from your Lordships Tenderness in all Cases of Life and Death and if it should be indifferent or but doubtful to your Lordships which upon the Proofes that I have made I cannot believe it can be whether I am innocent or guilty both God and the Law require you to acquit me My Lords I leave my Self my Cause and all the Consequences of it with your Lordships And I pray the All-Wise the Almighty God direct you in your Determination Lord High Steward Have you any thing more to say My Lord Lord Delamere No My Lord. Lord High Steward Then Mr. Attorney and you that are of the Kings Counsel What have you to say more Mr. Soll. General May it please your Grace and you my Noble Lords the Peers of my Lord Delamere the Prisoner at the Barr. The Evidence that hath been given against this Noble Lord is of two Natures part of it is positive Proof and part is circumstantial and though it be allowed that there must be two Witnesses in Cases of Treason and that Circumstances tho never so strong and sufficient to fortify one positive Proof do not nor can make a second positive Witness Yet I crave leave to say that there may be Circumstances so strong and cogent so violent and necessary to fortify a positive Testimony that will in Law amount to make a second Witness such as the Law requires My Lords I do not say every Circumstance will do it but such as necessarily and violently tending to the same thing that was positively proved As for Example If a man comes and Swears against another that he said he will go immediately and kill the King and another man that did not hear those words comes and testifies his Lying in wait that circumstance of Lying in wait that was an action indifferent in it self yet when applyed to the positive Proof will be a second witness to satisfie the Law which requires two witnesses in Treason It must confess My Lords when we will make Circumstances to be a second Evidence they must be such as are necessarily tending to fortifie the positive Evidence that was given by the single Witness Now whether that be so in this Case I must as becomes me leave to your Lordships Consideration It is not my business to carry the Evidence further than it will go and I am sure it is not my duty to let it lose any of its weight and if it have not that force it ought to have I should be to blame as not having done what belongs to me to do I will therefore state the Fact to your Lordships plainly as it stands upon the Proof and submit the whole to your Lordships Determination My Lords Our positive Proof with which I crave leave to begin is but by one single Witness and that is Saxon and his Evidence is this That being in Cheshire where he lives he was sent for about the 3 d or 4 th of June last to my Lord Delamere's House at Mere and there he was brought into a Lower Room where he saw my Lord Delamere Sir Robert Cotton and Mr. Crew Offley That my Lord Delamere told him he had received a Message lately by one Jones that was sent from the Duke of Monmouth whereby he understood that the Duke would speedily be in England and that they must provide Men and Arms to assist him when he came That he was a Man recommended to them by my Lord Brandon and that upon his recommendation they had thought fit to intrust him in the matter and withal told him They were to raise 40000 l. and 10000 Men in that County He tells you likewise these Gentlemen gave him 11 Guineys and 5 l. in Silver to go of an Errand for them to the Duke of Monmouth which he undertook to do and hired a Horse to that purpose This My Lords is the positive Proof and this I must acknowledge standing-single and by it self will make but one Witness but whether the Circumstances that have been offered to your Lordships by the other Witnesses be such violent Circumstances as necessarily tend to fortifie and support that positive Evidence and so will supply the defect of a second Witness is the next question that I come to consider and I shall take them into consideration in the same order that the Evidence was delivered The first step My Lords that was made as to any Evidence that toucheth this Noble Lord at the Bar was what was testified by my Lord Gray for as to the other part of the Evidence that related to the Conspiracy in general I need not trouble your Lordships with the repetition of it that there was such an one is notoriously known but I say that part of the Evidence in his History of the Conspiracy which my Lord Gray brought home to my Lord Delamere was this That upon the first Meetings and Consultations it was resolved upon That the Duke of Monmouth should go into Cheshire to make an Interest there and among the Persons that he was directed to go to and to apply himself to for advice there as Persons fit to be trusted this Noble Lord was one That upon the Duke of Monmouth's Return out of Cheshire he did give his Confederates here in Town an Account how well he had been received and that he liked all things very well there This my Lords is the first Circumstance offered that has been to you to shew that he had a Confidence in my Lord Delamere as a Principal Support of his Designs at that very time The next thing that we offer is this Message of Jones's and for that our Evidence has fully and plainly made it out to your Lordships That Jones did go over into Holland and his Business there was an Errand from Disney and Major Wildman and the Confederates here The effect of his Message was That it was their Opinion That the Duke of Monmouth should go for Scotland and joyn with my Lord Argyle but upon the Receipt of the Message he being angry said It was too late for such a Message now and he would come into England for he was ready to Sail and thereupon he did send this same Jones back again into England upon a Message to inform the Lords and others of his Party among whom my Lord Delamere was one That he would have them betake themselves into their several Countries and not stay to be taken or clap'd up here for that he did understand was the design and this Message was delivered in Writing now that the Duke of Monmouth did write a Note and give it to Jones is verified by my Lord Gray's Testimony too and this was Sealed
at such a time and that he was sent for and entertain'd as a Person recommended by my Lord Brandon as fit to be intrusted with the Secret and capable of being imployed to stir up the Country in order to the prosecution of a Design they had on foot to raise a Rebellion and he does Charge Sir Robert Cotton and Mr. Crew Offley to have been there at the same time The Evidence My Lords that has been produced to falsifie this positive Witness in the point of Sir Robert Cotton's being there has been by Five or Six Witnesses who testifie Sir Robert Cotton's being in Town and not elsewhere from the 10th of April to the latter end of July and I do not see what we have to say in answer to their Testimony I must agree the Proof to be full in that Point and if the Evidence they give be true I cannot say that Saxon's Evividence can be true in that Point Likewise as to Mr. Offley Sir Willoughby Aston and others have testified that he was not at my Lord Delamere's at the time Saxon speaks of For he gives you an account where he was every day from the 26th of May to the 4th of June and his own Servants bring him to his own House upon the 4th of June in the Evening which is quite another way than from Sir Willoughby Aston's to my Lord Delamere's If this likewise be true what Saxons says cannot be true I must agree it There is another thing that is offered on my Lord Delamere's part That he was himself in Town at that time that Saxon sayes he was at Mere But here indeed the matter seems to be a little more strange and dubious that my Lord should make so much hast down as to go out late at Night and so cautiously as to go by a wrong Name and yet to ride to Town again the Post-way to be here just the 3d of June when Saxon swears he was in Cheshire I must confess there is the Proof of his two Brothers that say They saw him in Town the 3 d and 4 th of June There is likewise some account given of his going out of Town that it was upon a Message received from his Mother that his Child in the Countrey was sick and indeed he did go a By-way and change his name for fear of a Warrant in a Messengers hands that was out against him to apprehend him Now My Lords I do not hear any thing that has been offered that there was any such Warrant or any discourse to ground that apprehension upon My Lord had the first and only apprehension of a Warrant but upon what Reasons he himself best knows This apprehension made him go out of Town so privately he sayes because he would not be prevented of seeing his sick Child But how comes it to pass that my Lord makes such a speedy Return By the Proofs it appears he did not get there till Sunday Night and upon the Tuesday Morning comes Post for London The account that he gives of that is this His hast was to see another Child that was here sick in Town For he had received an express from his Wife upon the Monday to acquaint him that the Coast was clear and there was no Warrant out against him but if he intended to see his Child alive he must make hast up to Town and accordingly upon the Tuesday morning early he sets out and upon the Wednesday in the Evening is here in Town again But with submission My Lords there is no good Account given by this noble Lord what reason there was for so many Post-Journeys backward and forward as had been testified he to have made within a very little compass of time for besides this of his return Post upon the 2 d of June there is only an Answer given to one of the rest which is That of the 5 th of May when he saith he went to take possession of the Land that he held by a Lease then renewed to him by the Bishop which being of some Value and Consideration to his Lordship and the Bishop being sick he thought it necessary to go down Post himself and would not be content to receive Livery by Attornment This is the only answer that is given to all those times of his riding Post that have been given in Evidence These are matters of Suspicion that are offered to your Lordships but I confess matters of Suspicion only unless clear positive probable Proof be joyned with them will not weigh with your Lordships to convict a man of High-Treason where two Witnesses are required But whether these matters of Suspicion be such violent and necessary Presumptions as tend to fortifie the positive Testimony I must leave that to the Consideration of your Lordships Lord High Steward You do not call any more Witnesses then I perceive Mr. Soll. General No My Lord. Lord High Steward My Lords it has not been usual of late for those who have sate in the place where I now am upon those Occasions to give you Lordships any trouble in repeating or observing upon the Evidence In this Case the Evidence that hath been given has been very long and it would be too great a Presumption in me should I have any manner of doubt in the least that either your Lordships have not well observed it or the Learned Counsel for the King have been defective in collecting or remarking upon it so as to need my Assistance But my Lords I confess there is something I cannot omit taking notice of not for your Lordships sakes but for the sake of this numerous and great Auditory that one mistake in point of Law might not go unrectified which seemed to be urged with some earnestness by the Noble Lord at the Barr That there is a necessity in point of Law that there should be two Positive Witnesses to convict a man of Treason He seemed to lay a great stress upon that but certainly his Lordship is under a great mistake as to the Law in that Point for without all doubt what was urged in answer to this Objection by that Learned Gentleman that concluded for the King is true There may be such other substantial Circumstances joyned to one Positive Testimony that by the Opinion of all the Judges of England several times has been adjudged and held to be a sufficient Proof As for the purpose in this Case suppose your Lordships upon the Evidence that has been given here this day should believe Saxon swears true who is a Positive Witness and shall then likewise believe that there was that Circumstance of Jones's coming over from Holland with such a Message upon the 27 th of May which is directly sworn in Evidence you are the Judges of that Evidence and what the other Witnesses have sworn likewise and is not denied by my Lord the Prisoner at the Barr that he went out of Town that Night changed his Name and went an indirect By-Road certainly these
Circumstances if your Lordships be satisfied he went for that purpose do necessarily knit the positive Testimony of Saxon and amount to a second Witness That is if Saxon's positive Testimony be true then suppose all these Circumstances that gove the Jealousie do make up a strong presumption to joyn with the positive Evidence of Saxon then you have two witnesses as the Law requires especially if the answer given by the Prisoner to those Circumstances be not sufficient as the slender account he gives of his so frequent Journeys in so short a compass of time but that there still remains some Suspicion I could have wished indeed that matter might have been made somewhat more clear that no shadow of Suspicion might remain Your Lordships are Judges And if you do not believe the Testimony of Saxon whose Testimony hath been so positively contradicted by divers Witnesses of Quality the Prisoner ought to be acquitted of this Indictment If your Lordships please You may go together and consider of it Lords Ay withdraw withdray Then the Peers withdrew in their order according to their Precedency with the Serjeant at Arms before them Lord High Steward Lieutenant of the Tower take your Prisoner from the Barr The Prisoner was taken into the little Room appointed for him at the entrance into the Court. The Peers staid out about half an hour and then returned in the same Order that they went out in and Seated themselves in their places as before Cl. Crown Serjeant at Arms take the appearance of the Peers Lawrence Earl of Rochester Lord High Treasurer of England He stood up uncovered and answered Lord Treasurer Here. And so did all the rest Lord High Steward My Lords are you agreed of your Verdict Lords Yes The Lord High Steward took their Verdict Seriatim beginning with the puisue Peer in this manner Lord High Steward How say you my Lord Churchill is Henry Baron of Delamere guilty of the High Treason whereof he stands Indicted and hath been Arraigned or not guilty The Lord Churchill stood up uncovered and laying his hand on his Breast answered Lord Churchill Not guilty upon my Honour And so did all the rest of the Peers Lord High Steward Lieutenant of the Tower bring your Prisoner to the Barr. The Prisoner was brought again to the Barr. Lord High Steward My Lord Delamere I am to acquaint you that my Noble Lords your Peers having considered of the Evidence that hath been given both against you and for you after they were withdrawn have returned and agreed of their Verdict and by that Verdict have unanimously declared that you are not guilty of the High-Treason whereof you have been Indicted and this day Arraigned And therefore I must discharge you of it Lord Delamere May it please your Grace I shall pray to Almighty God that he will please to give me a Heart to be Thankful to him for his Mercy and my Lords for their Justice And I pray God deliver their Lordships and all honest men from Wicked and Malitious Lying and False Testimony I pray God bless His Majesty and Long may he Reign Lord High Steward And I pray God continue to him his Loyal Peers and all other his Loyal Subjects Cl. Crown Serjeant at Arms make Proclamation Serjeant at Arms. Oyes My Lord High Steward of England his Grace straightly willeth and commandeth all manner of Persons here present to depart hence in Gods Peace and the Kings for his Grace my Lord High Steward of England now dissolves his Commission GOD SAVE THE KING At which words his Grace taking the white Staff from the Vsher of the Black Rodd held it over his own Head and broke it in two Thereby dissolving the Court FINIS