business he was four or five times between Christman and March with the Earl and the Captain that the Captain told him he was to Command Fifty Men to be the Earls Guard at Oxon and would have had him to be One That if the King did not Consent to several Acts of Parliament and other things they were to Purge the Guards and Court of several Persons and tho' the Captain told him that first yet afterwards he heard the Earl say the same things particularly about a week or ten days before the Parliament sate at Oxon he gave some Intimation of this to Walter Banes and then Writ it down and sent it to the Counsel Sealed in a Cover Turbervile swore that the Lord Shaftsbury said about February there was but little good to be done with the King as long as his Guards were about him Smith testified a great deal of discourse between him and the Lord Shaftsbury of something said Reflecting on the King and that he should say that if the King should offer any violence to the Parliament at Oxford he would meet with a strong Opposition for that the Gentlemen who came out of the Country came well provided with Horse and Arms to Oppose and that they might Lawfully do it if he offered and Violence to them whilst they sate Haynes swore that the Earl said if the King did not give Haynes his Pardon he and others would raise the Kingdom against him that Haynes gave the Earl an exact Account of Transactions since King Charles the First 's coming to the Crown and that the Earl said the Duke of Buckingham had as much Right to the Crown as any Stewart in England John Macnamarra said the Earl said the King was Popishly Affected and took the same Methods his Father did which brought his Fathers Head to the Block and they would bring his thither and this was said in the presence of Ivey and he thought of his Brother and said the King deserved to be deposed as much as King Richard the Second Dennis Macnamarra likewise testified the last words and that it was the latter end of March or beginning of April Ivey said the Earl said if the King denyed Haynes a Pardon they would rise upon him and force him to give one and that they design'd to depose him and set up another in his stead Bernard Dennis said he had a great deal of discourse with the Earl who bid him speak to his Friends in Ireland for they intended to have England under a Commonwealth and Extirpate the King and his Family Then the Court told the Jury the Indictment was grounded on the Statute of King Charles the Second but they ought to consider of that Statute as also the 25th of Edward the Third The question is whether the Grand Jury ought to have found the Bill on this Evidence first it ought to be considered what the Duty of a Grand Jury is and I think it is not what the Chief Justice said to consider only whether there be probable ground for the King to call the Person Accused to an Account much less do I think that the reason of the finding of a Bill by the Grand Jury was for the Honour of the King or Decency of the Matter least Persons Accused should be called to an Account by the King where there is no kind of Suspition of the Crime Committed by them as the Court said which last Matter was never assigned as a Reason of finding a Bill by the Grand Jury before but I take the Reason of a Grand Jury to be this that no Man for a Capital Matter shall ever be questioned by the King unless a Grand Jury take it on their Oaths that they believe the Matter of the accusation is true I do put an Emphasis on the words questioned by the King. It is true it is generally said That the business of a Grand-Jury in capital Matters is in favorem vitae but that taken simply is not true for then what reason can be assigned why a Man shall be Arraigned on an Appeal of Murder Robbery or the like which touches his Life as much as an Indictment of those Crimes without having the Matter of the Appeal first found to be true by a Grand Jury but the true reason of a Grand Jury is the vast inequality of the Plaintiff and Defendant which in an Indictment is always between the King and his Subjects and that doth not hold in an Appeal which is always between Subject and Subject and therefore the Law in an Indictment hath given a Privilege to the Defendant which it hath done in no other Prosecution of purpose if it were possible to make them equal in the Prosecutions and Defence that equal Justice may be done between both It considers the Judges Witnesses and Jury are more likely to be influenc'd by the King than the Defendant the Judges as having been made by him and as it is in his Power to turn them out punish to prefer or reward them higher and though there are not just Causes for them to strain the Law yet they are such Causes which in all Ages have taken place and probably always will this was the reason of running Prerogative so high in their Judgment of High Treason before the Stat. of Ed. III. That no Man as that Statute says knew what was not High Treason This was the reason of expounding that Statute oftentimes between the making of it and the making the Statute of Queen Mary that People was at as great a Loss till the last Statute as they were before the making of the first and even since the Statute of Queen Mary the Exposition on the Statute of Ed. III. hath been so extravagant and various that People are at this day as much at a Loss to know what is not High Treason as they were before the Statue of Ed. 3. norwas it or is it possible that the great Power of enriching honouring rewarding and punishing lodged in the King but that it always had and yet must have an influence on the Witnesses and Jury and therefore it is that the Law hath ordered that at the King's Proscution no Man shall be criminally questioned unless a Grand Jury upon their own Knowledg or upon the Evidence given them shall give a Verdict that they really believe the Accusation is true Iown of late days They have said the Duty of the Grand Jury is to find whether the Accusation is probable but that saying is warranted by no positive Law or antient Authority and therefore the Duty of the Grand Jury must be founded in the Oath administred to them which is as strict as the Oath administred to the Petit Jury and to say Truth the Verdict of the Petit Jury takes credit from the Verdict of the Grand Jury which is not only the reason of the difference in the Names of the two Juries but is likewise the reason why an Attaint for a false Verdict doth not lye
Evidence he was committed it would go a great way in discovering the Truth of many Matters as yet in the dark but that Design miscarried because the Intreague was discovered before it took effect and yet a like design was still carried on and many of the Clergy of the Church of England had been prevailed with to cry the Popish up as a Fanatick Plot. The Papists and the Clergy of the Church of England being in the Late Times equally Sufferers and opprest by the Fanaticks they naturally grew to have a Kindness for each other and both joined in hating the Fanaticks and therefore pretended at least that they did not believe any thing of the Popish Plot but that that Report was given out by the Fanaticks whilst they themselves were designing something against the Church of England The Papists having so great a party of the Clergy of the Church of England ready to believe any thing of a Fanatick Plot which they should forge and observing that that which gave Credit to the Popish Plot was Writings concurring with Oral Testimony which it did for very little of the Truth of the Popish Plot depended on the Credit of Oates Bedloe or any other person most of the Facts of that Design when discovered proving themselves To instance in one Oates discovered Coleman had Intelligence with Le Chase of a Design on England and that Coleman had papers testifying as much when those papers were seized and owned by Coleman and the purport of them was what Oates said they were it was not material whether Oates was a man of Truth or not the Papers without Oates his further Evidence sufficiently proved the Design I say the Papists having observed what the Evidence was which gave Credit to that Plot resolved to pursue the same steps and therefore Dangerfield was made use of to leave papers in Collonel Mansel his Lodging who was an Acquaintance of my Lord Shaftesbury's importing a Plot but that was so foolishly carried on and the then Attorney General who had the Examination of that Matter not being qualified with the Assurance his Successor had to carry on a thing that had neither Sence nor Honesty in it made such a scurvy Report of the matter to the King and Council that they were enforc'd to vote Mansel innocent Dangerfield guilty and that it was a Design of the Papists to lay a Plot to the Dissenters charge and a further proof of the Popish Plot. But that Attorney General being removed to a place of more Honour tho' of less Profit and another put in his place the Papists resolved to carry on the same Design and no Person a fitter Instrument than Fitzharris in respect of his Religion and his Acquaintance but before his Design came to perfection it was discovered He was first Imprisoned in Newgate where some persons amongst whom Mr. Cornish as I remember then Sheriff was believed to be one and it was not the least of his Crimes that he endeavoured to look into that arcanum went to examine him as to the particulars of that Design which was quickly taken notice of and the Prisoner in breach of the Habeas Corpus Act removed from thence to the Tower where he was kept close Prisoner The Parliament at Oxford meeting soon after Fitzharris his Apprehension and the House of Commons being informed of as much of his Design as was them discovered they thought themselves highly concerned to examine him but how to do it they knew not only they resolved upon a Report which one of their Members made them of one Hubert who confessed himself guilty of Firing the City of London upon which it was resolved to examine him in the House of Commons the next Morning but before the House sate Hubert was hang'd that Fitzharris should not be hanged without their knowledge and consent and to effect it they remembred a design to try the five Popish Lords in the Tower upon Indictments whereupon if they should be acquitted it was throught that those acquaittals might be pleadable to Impeachments to prevent which the House had exhibited general Impeachments of High Treason against them in the House of Lords which had such success that the Lords were never and the Judges gave their Opinion that they could not be tryed on the Indictments as long as the Impeachments were in beign for which Reason the House of Commons exhibited a general Impeachment of High Treason in the House of Lords against Fitzharris which was received after which the House of Lords made an Order that Fitzharris might or should be tryed in the King's-Bench for the same Treason suddenly after which that Parliament was dissolved Whether Fitzharris his Business was the break-neck of that Parliament I know not but it was shrewdly suspected it was There was at that time a Chief Justice in the King's-Bench who was himself under an Impeachment of High Treason and had not for that reason sate in Court for some Terms preceeding and the Tryal of Fitzharris being generally looked upon to be as illegal as it was odious it was thought convenient to carry it on by a person of better Credit whereupon one who had been a puisny Judge of that Court and had behaved himself very plausibly and had gained Credit by being turned out was thought to be the fittest person to undertake it and accordingly the then present Chief Justice was removed and the other was preferred to this place It being resolved that Fitzharris should be tryed the business was how to get Witnesses to give Evidence to a Jury and how to get Juries to find the Bill and to Convict the Prisoner which were difficult preliminaries A person who had been one of the House of Commons which had exhibited the Impeachment was a principal Witness but if he should give Evidence on the Indictment he knew not how far he might be hereafter questionable and punishable for it when a Parliament should sit again but at last that person was prevailed upon to give Evidence but by what means is best known to himself And as for the Juries Grand and Petty they were satisfied with the direction of the Court that they not only might but ought to find the Bill and Verdict according to their Evidence And I think the Court was so far in the right That matter being adjusted a Bill of High Treason was found against the Prisoner whereupon he was presently arraigned and after much contest and Declaration of the Court that they could hear nothing till he had pleaded in chief which if he had done the Plea he afterwards pleaded which was to the Jurisdiction of the Court had come too late he had leave given him to plead the special matter of the Impeachment and accordingly Counsel were assigned him to draw up and argue his Plea put in to the jurisdiction of the Court which was That he was impeached in a Superior Court for the same Treason Great endeavours were used to have the Plea over-ruled without
till the particular Articles were exhibited which is true for by the same Reason a Defendant cannot plead a Action depending against him for the same matter in a superiour Court unless the Plaintiff hath declared against him in the Superior Court which is not true It was not a Reason that all Records in inferior Courts must be pleaded particularly as Indictments and the like because such Records must be certain and particular or else they are erroneous and cannot be pleaded but an Impeachment may be general Where the matter of a Plea is nought no form can make it good tho' where the matter of a Plea is good an ill form may spoil it if therefore a general Indictment or Record is nought as in all the cases cited against the Plea it was no special averment to reduce it to a certainty or any form can make it a good Plea but a general Impeachment is good and therefore it may and must be pleaded generally and pleading it specially would make it false if there were no subsequent Articles as in this case there was not to ascertain it It is to no purpose to run thorow all the ramble of the Counsel or Court against the Plea when they all said the matter of the Plea was not in question but the Form and yet when so often asked in what of the Form it was defective they were not able to answer If it be agreed that the matter of a Plea is good but it is defective in Form they always shew how it ought or might have been mended which in this case was never done And as this case was new in several particulars so it is in this that in reading all the Arguments of this Plea no man knows by what was discoursed what was the point in question After the Arguments the Chief Justice in shew at least very favourably offers the Prisoners Counsel liberty to amend the Plea if they could which they apprehended as they had Reason for I think none can shew how it might have been mended rather a Catch than a Favour refused to do whereupon the Court took time to consider of it and on the 11th of May there being a great Auditory rather to hear how the Judges would bring themselves off than to know what the Law of the Plea was the Chief Justice without any Reasons delivered the Opinion of the Court upon Conference had with other Judges That his Brothers Jones Raymond and himself were of Opinion that the Plea was insufficient his Brother Dolbin not resolved but doubting concerning it and therefore awarded the Prisoner should plead to the Indictment which he did Not Guilty and his Tryal ordered to be the next Term. I think it would puzzle any person to shew that if ever a Court of Westminster Hall thought a matter of such difficulty as fit to be argued that they gave their Judgments afterwards without the Reasons 'T is true that the Courts of Civil Law allow Debates amongst the Judges to be private among themselves but the Proceedings at Common Law always were and ought to be in aperta curia Had this practice taken place heretofore as it hath of late but all since this President no man could have known what the Law of England was for the year Books and Reports are nothing but a Relation of what is said by the Counsel and Judges in giving Judgment and contain the Reasons of the Judgment which are rarely exprest in the Record of the Judgment and it is as much the duty of a Judge to give the Reasons why he doubts as it is of him who is satisfied in the Judgment Men sometimes will be ashamed to offer those Reasons in publick which they may pretend satisfies them if concealed besides we have a Maxim in Law undeniable and of great use That any person whatever may rectify or inform a Court or Judge publickly and privately as amicus curiae a Friend to the Court or a Friend to Justice But can that be done if the standers by know not the Reason upon which the Court pronounce their Judgment Had the three Judges who were clear in their Opinion given their Reasons of that Opinion perhaps some of the standers by might have shewed Reasons unthought of by them to have made them stagger in if not alter that Opinion or if Justice Dolbin had given the Reason of his doubt perhaps a stander by might have shewn him a Reason unthought of by him which would have made him positive that the Plea was or was not a good Plea. If a man Swears what is true not knowing it to be true tho' it be logically a Truth as it is distinguished yet it is morally a lye and if a Judge give Judgment according to Law not knowing it to be so as if he did not know the Reason of it at that time but bethought himself of a reason for it afterwards tho' the Judgment be legal yet the pronouncing of it is unjust Judges ought to be bound up by the Reasons given in publick and not satisfie or make good their Judgment by after thought of Reasons How very ill did it become the Chief Justice Popham a person of learning and parts in the attainting Sir Walter Rawleigh of which Tryal all since that time have complained when ha gave his Opinion that the Affidavit of the Lord Cobham taken in the absence of Sir Walter might be given in Evidence against him without producing the Lord Cobham face to face to Sir Walter which was desired by him although the Lord Cobham was then forth-coming When he summed up the Evidence he said Just then it came into his mind why the Accuser should not come face to face to the Prisoner because he might detract his Evidence and when he should see himself must dye he would think it best that his Fellow should live to commit the like Treason and so in some sort seek revenge Which besides that it is against the Common Law and Reason it is against the express Statute of E. 6. which takes care that in Treason the Witness shall be brought face to face of the person accused Did it become a just man to give his Opinion and bethink himself of a Reason afterwards And I am mistaken if it will not herein appear that many persons complained of have been guilty of the same weakness or injustice call it which you will so foolish are the best Lawyers and plausible Speakers when they resolve to carry a point whether just or not However they may deceive the Ignorant yet they talk and argue very absurdly to the apprehension of the majority of mankind And they had been sooner discovered but that the discoverers were quickly supprest and crushed as Scandalisers of the Justice of the Nation And I think this may be justly called the first mute Judgment given in Westminster-Hall But to return to Fitzharris his Tryal which came on the 9th of June and then the King's Counsel made use of
the King that he never was admitted to the King. The Lord Cornway said that the King had declared in Council that Fitzharris had been employed by him in some trifling businesses and that he had got money of him but added as of his own Knowledge that the King never spoke with him till after he was taken which was the 28th of February last All the Evidence being over it was summed up by the Counsel That upon all the Circumstances of it Fitzharris was the Contriver and Directer of the Libel that it was a Treasonable Libel and a Jesuitical Design that the Excuse he made as if Everard drew him into it or trepanned him into it was vain nothing of that being proved That Everard could do nothing alone and therefore Sir William Waller must be in the contrivance but that was unlikely that the Prisoner would insinuate that the King hired him to do it because the King gave him Money but that was out of Charity and therefore concluded with a great many words that an English Protestant Jury of twelve substantial men could not but find the Prisoner guilty The Court added that tho' Doctor Oates said Everard said it was a design of the Court and was to be put on some Lords and into some Parliments Men's Pockets yet Everard was there upon Oath and testified no such thing in the world and for the Impeachment in the Lords House they were not to take notice of it After which the Jury informed the Court that they heard there was a Vote in the House of Commons that the Prisoner should not be tryed in any inferiour Court To which the Chief Justice said That that Vote could not alter the Law and that the Judges of that Court had Conference with all the other Judges concerning that matter and it was the Opinion of all the Judges of England that that Court had a Jurisdiction to try that man. After which Justice Jones was of Opinion that if he were acquitted on that Indictment in might be pleaded in Bar to the Impeachment And Justice Raymond delivered his Opinion to the same purpose It is strange that all the Judges should be of that Opinion yet before it was said Justice Dolbin doubted It is more strange that if Justice Dolbin was not of that Opinion he would hear it said he was and not contradict it It is most strange that if the Judges of that Court were of that Opinion they had not declared so in the arguing or giving Judgment on the Plea for that was the Matter of it being pleaded to the Jurisdiction of the Court that they had not power to try the Prisoner for that Crime so circumstanced If the Plea had been over-ruled as to the Matter none would have been so impertinent as to go about to maintain the Form of it Now to say truth in behalf of the publick and not on behalf of Fitzharris the Evidence was unfairly summed up for Fitzharris never pretended Everard drew him in or was to trepan him It is true he asked Everard what the design of the Pamphlet was and whether he was not put upon it to trepan others who answered he was not But afterwards being too nearly prest by the Attorney General he said Fitzharris told him the use of the Libels was to disperse them he knew how that they were to be drawn in the name of the Non-conformists and put upon them And Oates said Everard said the Libels were to be printed and sent abroad by the Penny-Post to the Protesting Lords and Leading Men of the House of Commons and the persons seised with them in their pockets which is all strong Evidence that the Libel was designed to trepan others and that was all along the import of Fitzharris his Questions though cunningly not answered by some of the Witnesses and as cunningly omitted in summing up the Evidence It is true the Chief Justice said Everard said no such thing as Oates had said but why was not Everard who was then present asked whether he said what Oates had given in Evidence There cannot be shewn any President where a Witness contradicts or says more or less than a Witness that went before him by the hearsay of that Witness but the first Witness is asked what he says to it Why was not Sir William Waller who was also present asked what he said to the Evidence of Mr. Mansell and Mr. Hunt and who it was that informed Sir William what the King said It was no way in proof nor pretended by Fitzharris that any person was concerned in that matter but Everard and Fitzharris though it was shrewdly suspected by the House of Commons and no man that reads the Tryal but believes there were many more concerned not yet discovered but the Counsel might have brought in any Judge of the Court by the head and shoulders to be a Confederate as well as Sir William Waller that was a Jack-a-lent of their own setting up in order to knock him down again It was not pretended by Fitzharris that the King gave him any money to frame that or any other Libel there was Evidence that he had got money of the King for some little matters he was imployed in perhaps for bringing Libels dispersed abroad or discovering Plots Upon the whole Evidence it was plain that Fitzharris was an Irish Papist it was plain he was the only visible Contriver of the Libel who were behind the Curtain is not plain and to know them was the Design of the Impeachment It was plain it was a Devilish Jesuitical Design as the Court and Counsel in summing up the Evidence agreed it to be it was plain that the Libel was such that if disperst with intention to stir up the King's Subjects against him it had been High Treason within the Statute of the 13th of the King but what the intention of the contriving the Libel was was not very certain and therefore consequently what the Crime of it was was uncertain To take the Evidence all the ways as to the Design of the contriving of the Libel it is capable of being interpreted the easiest construction is to say he framed a Libel with intention to pretend to the King that he had intercepted a Libel privately dispersed and to make it more likely it should be framed in the Nonconformists Names to make his Report the more credible for of Papists or Church-men it could not be believed to get more money of the King and that matter by all his Questions to the Witnesses he most drove at and that would at most be but a Cheat. A more Criminal but less credible construction is to believe he designed to disperse them to excite and prevail upon the Discontented to take up Arms. For what Effect had that Pamphlet when it was for it was afterwards dispersed upon the Minds of the People or what Effect could any Man of Sense think it could have for though it was a Virulent yet it was as Foolish a contriv'd
King but which indeed the Confederates shared amongst themselves Nay the very Election of Burgesses the freeness of which is the great fundamental of the Government was monopoliz'd and put into a few hands Did not the unreasonable Fines and cruel Punishments inflicted oppress many terrifie all and consequently make the Government odious to the Subject Did not the Cruelties acted in the West enrage above a third part of the Nation Did not the turning out many of the Soldiery and Clergy without any reason and for that purpose Erecting Arbitrary Courts and granting Dispensations to persons by Law disabled to enable them to have and enjoy the Places and Offices of such as were illegally turned out and of all who should be in like manner turned out And was it not seen what the Consequences of those things would be by all who did not wink their Eyes or who wore not blinded by the Profit they made of such illegal and cruel Acts Was not the King at last sensible that the Consequence of what before recited would be what afterwards happened And did he not in less than a Months time when too late throw down all that Babel of Confusion which had been so long a building and did all in his power and would have done more if he could to have set things as right as they were before the Parliament of Oxon for from thence the Extravagancies may be dated But Alas more mischief can be and was done by weak Brains than the best Wits can retrieve those that were dead could not be brought to life the Restitution of the Cities Charters was but in shew a relief how shall those defend themselves who have acted under all the illegal Sheriffs constituted and not Elected How shall those defend themselves who have acted under Officers appointed by the new Charters which by the Restitution are gone as if they never had been How shall Sheriffs Goalers and other Officers who have had or now have Custody of Prisoners and having not taken the Test trusting to the validity of a Dispence behave themselves Shall they continue to keep their Prisoners in Custody or let them go If the last they are Subject to Actions of Escape if the first they are liable to false Imprisonment These and a many more Mischiefs not yet seen are the natural results of these Illegal Actions I never reflect on these things but I remember Tully in his Offices lays down as a Rule That nothing is Profitable but what is Honest and gives many Reasons for it but nothing so convincing as the Examples he brings in Publick and Private matters and tho' the Empire was vast and he bore a great Figure in it and was very knowing and was well read in the Greek and Roman Histories yet he was not able to bring a 100th part of Examples to prove his Position as have been in this little Island in the space of eight years And the Persons by whose advice these things were transacted are the more inexcusable if it be true what a certain Nobleman who bore a considerable Character in the two late Kings Council once said to me was true He was complaining that the King was mis-led by the Advice of his Lawyers I asked him whether the King put his Judges and Counsel upon doing what was done without considering whether it was Legal as the common Vogue was he did or that his Lawyers first advised what to be done was Law He answered me on his Honour the King's Counsel at Law first advised the King might do by Law what he would have done before he commanded them to do it Yet I agree none of those matters tho' so inconvenient and grievous are Treason by the Statutes of E. 3. or C. 2. For Profit in some cases Revenge in others the endeavouring means to escape Punishment and a natural propensity to Cruelty in many were the true ends were driven at and not the bringing their Prince into the Hatred of his Subjects tho' that was a necessary consequent of all recited and of many more matters omitted And let Fitzharris his Crime and those recited be but Examined and his was but a Piccadilio to the least of those tho' this was acted by an Irish Papist and those by English Protestants Sons of the Church of England as by Law Established as they call themselves tho' I doubt not sincere Protestants as my Lord Russel said words which were matter of Laughter to those who brought him to the Block But tho' neither Fitzharris his Crime taken in the last Sense nor the above Crimes were High Treason by any Statute and the Judges have not Power to punish any other Treasons yet in all times the Parliaments have practised and it is necessarily incident to all Supream Powers in all Governments to Enact or Declare extravagant Crimes to be greater than by the Established Law they are declared to be not by vertue of the Clause in the Statute of Edward the 3d. whereby some have by mistake thought that a Power was reserved to the Parliament to declare other matters Treason than what is therein exprest for admit that Clause had been omitted there is none can doubt but in point of Power the Parliament could how far in justice they might is another Question have declared any other matter to be Treason and the words of that Clause are very improper expressions either to vest or reserve a Power in the Parliament for the words are only prohibitory to the Judges to adjudge any other Matters Treason than those exprest in the Act tho' they were somewhat like those express'd and therefore might be supposed Treasons and it is a sort of monition to Offenders that they should not presume to be guilty of Enormous Crimes upon presumption that they were not Treasons within that Act. For in the preamble 't is said because many other like Cases of Treason which in Sence-are Cases like Treason declared in that Act may happen in time to come which could not be thought of or declared at that present therefore if any such should happen before any Justice the Justice should tarry and not proceed to give Judgment of Treason on it till it should be judged in Parliament Treason or Felony How well the Judges in late days have observed this prohibitory Law let the world Judge and most certainly the Parliament might have declared in Fitzharris his Case as they may in those other that the Crimes were Treason Felony Misprision of Treason Trespass or what other Crime known in the Law and inflict what Punishment they thought fit and it is no injustice for the Supream Power to punish a Fact in a higher manner than by Law Establish'd if the Fact in its nature is a Crime and the Circumstances make it much more heynous than ordinarily such Crimes are It was not injustice in the Parliament of the second and third of Philip and Mary to Enact that Smith and others who were supposed to be guilty as
Parliament that raised the Rebellion and cut off the King's head To which the Prisoner replied That that Parliament had done nothing but what they had just cause for and that the Parliament which sate last at Westminster was of the same Opinion That he called the Prisoner Collonel in mockery who replyed Mock not I may be one in a little time Sir William Jennings swore as to the Fighting with Fitz-Gerald and the words about his bleeding For the Prisoner Hickman said he heard Haynes swear God damn him he cared not what he swore nor whom he swore against for it was his Trade to get Money by swearing Mrs. Oliver said Haynes writ a Letter in her Father's name unknown to her Father Mrs. Hall said she heard Haynes own that he was employed to put a Plot upon the Dissenting Protestants Mrs. Richards said she heard him say the same thing Whaley said Haynes stole a Silver Tankerd from him Lun said Haynes said the Parliament were a company of Rogues for not giving the King money but he would help the King to money enough out of the Phanaticks Estates Oates said Turbervile said a little before the Witnesses were sworn at the Old-baily that he was not a Witness against the Prisoner nor could give any Evidence against him And after he came from Oxford he sad he had been sworn before the Grand Jury against the Prisoner and said the Protestant Citizens had deserted him and God damn him he would not starve That John Smith said God damn him he would have Colledge's Blood. That he heard Dugdale say that he knew nothing against any Protestant in England and being taxt that he had gone against his Conscience in his Evidence he said it was long of Collonel Warcup for he could get no money else that he had given out that he had been poisoned whereas in truth it was a Clap. Blake said that Smith told him Haynes his Discovery was a Sham Plot a Meal-tub-Plot Bolron said Smith would have had him give Evidence against Sir John Brooks that Sir John should say there would be cutting of Throats at Oxford and that the Parliament-men went provided with four five six or ten men a-piece and that there was a Consult at Grantham wherein it was resolved that it was better to seize the King than to let him go whereas he knew of no such thing that he would have Balron to be a Witness against Colledge and told him what he should say lest they should disagree in their Evidence that he heard Haynes say he knew nothing of a Popish or Presbyterian Plot but if he were to be an Evidence he cared not what he swore but would swear any thing to get Money Mowbray said Smith tempted him to be a Witness against Colledge and was inquisitive to know what discourse passed between him the Lord Fairfax Sir John Hewly and Mr. Stern on the Road and said that if the Parliament would not give the King Money and stood on the Bill of Exclusion that was pretence enough to swear a design to seize the King at Oxford Everard said Smith told him he knew of no Presbyterian or Protestant Plot and said Justice Warcup would have perswaded him to swear against some Lords a Presbyterian Plot but he knew of none he said Haynes told him it was necessity and hard pay drove him to speak any thing against the Protestants and being questioned how his Testimony agreed with what he formerly said answered he would not say much to excuse himself his Wife was reduced to that Necessity that she begged at Rouse's door and meer necessity drove him to it and self preservation for the was brought in Guilty when he was taken up and was obliged to do something to save his Life and that it was a Judgment upon the King or People the Irish-mens swearing against them was justly fallen on them for outing the Irish of their Estates Parkhurst and Symons said they had seen at Colledge his House his Arms about the latter end of November Tates said Dugdale bespoke a Pistol of him for Colledge which he promised to give Colledge And upon Discourse sometimes after the Oxford Parliament Tates said Colledge was a very honest man and stood up for the good of the King and Government Tes said Dugdale I believe he does and I know nothing to the coutrary Deacon and Whitaker said they knew Colledge was bred a Protostant and went to Church and never to a Conventicle that they knew of and thought him an honest man. Neal Rimington Janner and Norris to the same purpose and Norris that Smith in company where was Speech that the Parliament-mens being agreed to go to Oxford said he hoped they would be well provided to go if they did go El. Hunt said a Porter in her Master's absence brought the Prints taken in Colledge's house eight weeks before and said Dugdale told her after her Master was in Prison he did not believe Colledge had any more hand in any Conspiracy against his Majesty than the Child unborn and he had as lieve have given an hundred pounds he had never spoke what he had and that he had nothing to say against her Master which would touch his Life Having summed up all the material part of the Evidence in the order it was given for or against the Prisoner let us see whether upon the whole an honest understanding Jury could with a good Conscience have given the Verdict the then Jury did or whether an upright Court could with a good Conscience have declared they were well satisfied in the Verdict given as all the four Judges in that case did though the Chief Justice North only spoke the works And though it is too late to Advantage the deceased yet it will do right to the Memory of the man to whose dexterous management on his Tryal many now alive owe the continuance of their lives to this Day it was not their Innocence protected the Lord Fairfax Sir John Brooks and many others before mentioined and many not named in the Tryal but Colledge's baffling that Crew of Witnesses and so plainly detecting their falsehood that the Kings Counsel never durst play them at any other person but the Earl of Shaftsbury as shall be shewn and failing there they were paid off and vanisht and never did more harm visibly what under-hand Practices they might be hereafter guilty of I know not Who could believe any one of those four Witnesses Dugdale Haynes Turbervile and Smith if it were for no other reason than the improbability of the thing that as Colledge said was it probable he should trust things of that nature with Papists who had broke their Faith with their own Party who could lay greater Obligations of secresie upon them than he was able to do That he a Protestant should trust people who had been employed to cut Protestants Throats And neither of them ever discovered any of the things they swore till after the Oxford Parliament though
pitch't on the one by a shameless Trick and the other by open Force were imposed on the City Having gained that point the Proceedings in the quo Warranto were much quicker then before and two Arguments only were permitted in it of each side the one in Hillary Term the other in Easter Term and so the Case was ripe for Judgment in Trinity Term following but must be and was ushered in with the Discovery of a pretended Plot which so amazed the Nation that tho' Judgment in the quo Warranto was given two days after the pretended Discovery no Body took any notice of it for several Months after it was given the Truth was no body durst mutter against it or question the Legality of it it was enough to have brought any Person into the Plot to have done it it would have been called flying in the Face of the Government questioning the Justice of the Nation and such like Cant. REMARKS ON THE Lord Russel's Tryal THE Plot being noised abroad the Persons before-hand resolved on were seized on and the Lord Russel and others were clapt up close Prisoners The Lord Russel having been for some sew Weeks a close Prisoner in the Tower was the 13th of July 1683. brought to the Old-Baily and arraigned for High-Treason in designing to raise a Rebellion c. and the same Morning was tryed he desired he might not be tryed that day for he had some Witnesses which would not be in Town till Night which being denied then he desired that the Tryal might be put off till the Afternoon which was likewise denied he asked whether he might not make used of any Papers he had which was allowed he desired he might have a Copy of hte Pannel of the Jury that was to pass on him he was told he had a Coppy delivered to his Servant some days before The Jury being called he challenged the Fore-man for being no Free-holder in London to argue which Councel were assigned him who presently came into Court and having excused their not speaking more to the Matter for want of time to consider of it argued that it was a good Challenge because at Common Law every Jury-man ought to be a Free-holder that the Stature of 2. Hen. 5. provides none shall be a Jury-man in capital Matters but a Free-holder of forty Shillings yearly that there is no difference between a City and County and a County at large at Common Law nor by that Statute 7. Hen. 7. which takes away the Challenge of no Free-hold in the Ward in London shews it was a good Challenge in London before that time the 4th of Henry the 8th which likewise takes away the Challenge of no Free-hold in London shews it was a good Challenge before that time and the same was inferred from the 23d of Henry the 8th but though of those Statutes extended to Treason yet if it was a good Challenge in Treason in London before those Statutes it was so still The Kings Council said at Common Law it was not necessary that a Jury-man in Treason should be a Free-holder and though Treason is within the 2d Henry the 5th yet be the Statute of Queen Mary the Statute of the 2d of Henry the 5th as to Treason was repealed that it was a Point they would not have lost to the City of London that if the Prisoner should peremptorily challenge thirty five as by Law he might there would scarce be found thirty five more Free-holders in the City the Inheritance of the City being mostly in the Nobility and Corporations and consequently Treasons may be committed in the City and there would not be enough to try it and in the Case of the City of Worcester in a Quo Warranto brought against them that Challenge was taken and over-ruled by the Kings-Bench by Advice of the Judges of the Common-Pleas that the Venire mentions no Free-hold But only Probos Legales Homines de Vicineto Then the Chief Justice asked Mr. Polexfen whether he did find in any Judgment in Treason at Common Law that no Free-hold was a Challenge who answered he did not whereupon the Chief Justice replied that then he did not speak ad idem for he took it in case of Treason and Felony at Common Law it was no Challenge and the Statute of Henry the 5th in that point was introductive of a new Law and that Statute as to Treason was repealed by that of Queen Mary and that a Case cannot be found of such a Challenge in Treason ‑ since the Statute of Queen Mary but it was a business of great Importance The Chief Baron was of the same Opinion for the same reason Justice Windham and Justice Jones were of the same Opinion the last added the rather because the Prisoner is allowed to challenge thirty five peremptorily and Justice Charlton was of the same Opinion and the rather because no President had been offered of such a Challenge before Justice Levins was of the same Opinion for the same Reasons Justice Street was of the same Opinion for the same Reasons and thought they had been very nice when the Life of the King lay at stake and all the Customs and Priviledges of the City of London seemed to be levelled at in that Point Justice Withins was of the same Opinion Then the Chief Justice told the Prisoner the Court over-ruled his Challenge but that he had no Hardship put upon him for the Reason of Law for Free-holders was that no slight Persons should be put upon the Jury but in his Case there were Persous of Quality and Substance put upon the Jury which was the same in substance with a Jury of Free-holders These being the Reasons of over-ruling that Challenge they may be ranked under these Heads there was no such Challenge at Common Law if there were yet not in Treason And if it were a Challenge in Treason where the Tryal is in a County at large yet not where it is in a City and County and if in a City and County yet not in London The assigning many Reasons for one and the same thing makes the Judgment justly suspected for if when two Witnesses to one Fact varying in the Circumstances of it are justly suspected in point of Truth several Reasons for the same Judgment makes the Knowledge or Integrity of the Judges justly suspected every Case in Law as my Lords Coke and Hales say standing upon its own particular Reason and therefore when many Reasons are given it looks as if the Judges were hunting about for Reasons to make good what beforehand they are resolved to vent for Law rather than that their Judgment is the Result of those Reasons But to consider them singly I do indeed think there is no express Resolution that at Common Law in any Case of any Capital Matter it was a good Challenge except the Case of Fitz-Harris already taken notice of but in Civil Matters my Lord Coke is express that at Common Law it was
many express Resolutions that there was no such Custom in the City for if there had been such Custom what needed those Statutes to which the Judges never vouchsafed any Answer because in truth they could make no Answer But it was objected there was the Resolution in the City of Worcesters Case which I agree was of as good Authority and of no better than the Judgment in the principal Matter of the Quo Warranto and it was likewise objected there would be a Failure of Justice in Cities if the Challenge were good for want of Free-holders I ask would it have been a Failure of Justice at Common Law or by reason of somewhat which hath happened of late Times there is none who pretends to know any thing of the History of England that will say that heretofore the Cities were not inhabited mostly by the Gentry and especially the City of London partly for Luxury partly for their Security and then there was no want of Free-holders in the Cities but when matters became more quiet and Trade encreased and made Houses in the Cities more valuable then were Houses of equal Convenience and less Price scituate in the Suburbs or in the Country the Gentry by degrees parted with their Houses in the Cities to Trades-men for Profit and removed themselves to other Places And I believe it may be remembred that even the Strand in the momory Man could have furnished the County of Middlesex with a sufficient Number of Free-holders and yet now for the above Reasons you can hardly find a Jury of Free-holders there Besides It must be remembred that London heretofore had many of the Kings Palaces in it and the Countries did not then as now take up with Lodging but were Inhabitants of Houses and if the Failure of Justice happen by the above means I am sure it is against the Oath of the Judges to supply that Defect with their Resolution but it ought to have been supplied by an Act of the Legislative Power If the Necessity of the thing warrants the Judgment how unlearned were the Judges in Henry the 7th and Henry the 8ths Times that they did not supply the Defect in Law in the City of London and other Cities by their Resolutions How vain were the Parliaments in those Times who supplied those Defects in Law mentioned in the Acts cited by those Statutes which were Works of time and trouble if theyhad thought the Judges by their Resolutions had Power to do it for if they had Power to do it they could have done it Extempore as in this Case For the last Objection that the Writ mentions only Probos Legales Homines and speaks nothing of Free-holders Legales may very well be interpreted to imply men qualified by Law but I take it that Homines implies it for Homines de Comitatu is meant Free-holders of that County and all others in point of Trust are not considered in Law. My Lord Coke in his Comment upon the 28th of Eliz. 1. cap. 8. which gives the Election of Sheriffs to the People of the County where the Sheriffwick is not in Fee says People there means Free-holders of the County and the same is understood by Writs to the Countries to choose Coroners Verderors and the like tho' the Writ says per communitatem Comitatus de assenfu Comitatus And tho' the Writs of Venire in civil Matters of late Days mentions what Freehold each Juror shall have yet that is by the Statute of the 35 of Hen. 8. cap. 6. which expresly commands the Writ shall so express it in all Issues joyned in Westminster to be tryed between Party and Party before which time it is plain the Venire even in civil Matters did not express any Freehold and that Statute doth not extend to Issues joyned on Indictments Now if upon all which hath been said it is not plain that the challenge ought to have been allowed yet sure it was doubtful and if so and a matter of great consequence as the Chief Justice said it was why might not the Council for the Prisoner have had a little more time to have considered of the challenge before they had argued it or the Judges have taken a little time to consider the matter before they had given their Judgment I dare say none of them could remember any positive Resolutions one way or other nor upon a sudden was it expected they should and therefore for their own sakes if not for the Prisoners they might have taken the Morning if not the Day the Prisoner desired his Tryal to be put off for to have consider'd of it in that time perhaps some of them might have remembred or others might have put them in mind of their Resolutions in Fitz-Harris's Case they might have considered how to distinguish between that Case and this and not run away with it that that challenge was never made in Treason as all of the Judges affirmed but my Lord Russel was told by the Court that they always tryed the Prisoner in Treason the day he was Arraigned and could not put off the Tryal for a morning without the Attorney Generals Consent but surely that is not true Plunket and Fitz-Harris were tryed the Term after they were arraigned though the Attorney General opposed it It is true he submitted to the Rule as it was as much his Duty to do as the Prisoners but if there be a Difference between an Arraignment at Westminster and the Old-Baily as to the speeding the Tryal the Place will not vary the reason of the thing if there be not any Law for it as there is not but even at the Old Baily the Tryal in Treason hath been put of to another Sessions it was done in Whitebreads Case and in many other Cases if it be said that that was by the Attorney Generals Consent I say that makes no difference for the Judge is to be indifferent between the Attorney General and the Prisoner if the Court must order nothing but what the Attorney assent too why is not the Prisoner Tryed and Judged by the Attorney alone or what needs all the Formality of a Tryal if it be said that that Tryal was put of because the Kings Witnesses were no ready I say there is the same Reason to put of a Tryal because the Prisoners Witnesses are not ready and that was the pretended tho not the true Reason of putting of Fitz-Harris his Tryal to another Term and there is no Law to the contrary It is totally in the discretion of the Judges to put of a Tryal which discretion ought to be governed by Reason But indeed this was extraordinary and without any president it can never be shewn in the Case of the greatest or meanest Persons being accused of the greatest or least Crime that ever the delay of a day much less of a morning for his Tryal was denyed where he shewed but any Colour for what he said when the Sessions were to continue after the
me the Kings Council said in the argument of the challenge that they would not have the point of being a Jury-man tho not a Free-holder lost to the City of London and one of the Judge said 't was the Priviledges of the City were struck at in that point if by those expressions it is meant that it is for the benefit of the publick that there should be no failure of Justice I argree to it but if it be meant that it is for the benefit of the Citizens to be Jurymen I deny it and I think nothing shews it plainer than that it is a Priviledge that a Citizen shall not be drawn out of the City to be a Jury-man that a Nobleman shall not be on a Jury that it is a Matter of Prerogative in the King and favour to a particular Person to grant him a Charter of exemption from being on a Jury so that if I consider the Law I know what is meant by those expressions if I consider allowed Practice it is true a Jury-man may earn his Eight Pence for a Tryal but that is too inconsiderable pay for Persons of substance as the Jury-men in this case were said to be fond of the employ or to account it a Priviledge but even that was but in civil Mattres in criminal Matters not Capital the Jury were heretofore paid if they acquitted the Defendant but not if they found him Guilty though of late it hath been Practised to give them more and treat them higher if they Convicted the Defendant than if they acquitted him but in Capital Matters as the Case in question was it was never allowed or at least owned to pay the Jury be the Verdict which way it would having spoken to the Preliminaries I proceed to the Tryal wherein Coll. Rumsey was first produced he said he was sent by my Lord Shaftsbury about the end of October or beginning of November who told him he should meet at one Sheppards the Duke of Monmouth Lord Russel Lord Gray Sir Tho. Armstrong and Mr. Ferguson to know of them what resolution they were come to about the Rising of Taunton Sheppard carryed him where they were and Answer was made Mr. Trenchard had failed them and there would be no more done in the Matter at that time thereupon the Lord Shaftsbury took a Resolution to be gone Mr. Ferguson spoken most of the Message and he thought the Lord Gray spoke something to the same purpose he did not know how often he had been at that House he was there more than once or else he heard Mr. Ferguson make a Report of another Meeting to the Lord Shaftsbury my Lord Russel was in the room and that was all they said at that time that he remembred he was not there above a quarter of an hour there was some Discourse about seeing in what posture the Guards at the Mews and Savoy were in by all the company to know how to surprise them if the Rising had gone on Sir Tho. Armstrong and Mr. Ferguson began all debated it he thought the Duke of Monmouth the Lord Gray and Sir Tho. Armstrong were sent to view them the Rising was appointed to be the 19th of November he was spoke to by the Lord Shafsbury to go to Bristol if the Rising had gon on but in what quality was not determined the Lord Russel agreed to the Debate being asked if my Lord Russel said any thing there and what He answered my Lord Russel spoke about the Rising at Taunton being asked what my Lord Russel said he answered my Lord Russel discoursed of the Rising being asked if my Lord gave his Consent to the Rising he said he did The next witness was Mr. Sheppard who said in October last Mr. Ferguson came to him in the Duke Monmouth's Name and desired the Conveniency of his House for himself and some Persons of Quality which he granted In the Evening the Duke of Monmouth Lord Gray Lord Russel Sir Thomas Armstrong Coll. Rumsey and Mr. Ferguson came not altogether but the one after the other Sir Thomas Armstrong desired that none of his Servants might come up and that they might be private so what they wanted he went down for a Bottle of Wine or so the substance of the discourse was to surprize the Kigns Guards and in order to to it th Duke of Monmouth the Lord Gray and Sir Thomas Armstrong went one Night as ke remembred to the Mewes or thereabouts to see the Guards and the next time they came to his House he heard Sir Thomas Armstrong say the Guards were very remiss in their places and not like Souldiers and the thing was feasible if they had but strength to do it he remembred but two Meetings there they came in the Evening he heard nor saw any Coaches at his Door when they came in as he remembred the Lord Russel was both times there he had no business with the Lord Russel nor the Lord Russel with him at that time but since he had he did not remember Coll. Rumsey discourst the Lord Russel about any private business nor remembred any farther Discourse he remembred no Writings nor Papers read at that time upon Recollection he remembred one Paper read by Mr. Ferguson in the nature of a Declaration setting forth the Greivances of the Nation the Particulars he could not tell It was a pretty large Paper it was shewed for Approbation as he supposed when to be set out was no discoursed 't was shewed to Sir Thomas Armstrong and as he remembred the Duke of Monmouth was present and he thought Coll. Rumsey was present Coll. Rumsey said he was not present it was done before he came Mr. Sheppard went on and said the design of the Paper was in order to a rising as he supposed by the Purpose of it he would not say the Lord Russel was there when that Paper was read but he was there when the talk was about seising the Guards he could not be positive as to the times of those Meetings but it was when the Lord Shaftsbury was absent from his House he absented about Michaelmas Day he could not be positive that my Lord Russel was at both Meetings he thought he was at both he was sure he was at one the last Witness was the Lord Howard he said he brought Captain Walcot acquainted with the Lord Shaftsbury and upon his account Captain Walcot soon gained a confidence with the Lord Shaftsbury Walcot told him the People were sensible all their Interest was going to be lost by the violence offered to the City in the Election of Sheriffs and that they were resolved to take some Course to put a stop to it that there was several meetings about it and some Persons begun to prepare to Act that some had good Horses and kept them in private Stables and he resolved to be one in it he having an Estate in Ireland he dispatch't his Son thither and ordered his Son to turn his Stock into Mony the Son went
foolish and contradictory he Perjured himself to save the Prisoner and then swore Truth to Hang him he had not presence of mind enough to excuse himself in the manner a Witness in the Lord Russel's Tryal did that his God his King and his Countrey put him unwillingly to Act that Part besides that in the Lord Russel's Tryal Rumsey swore he was not at the reading the Declaration and contradicted Sheppard who swore he thought he was there But that passage was proved only by a Witness who had read it in the Tryal which I confess in strictness of Law is not Evidence 〈◊〉 if the Witness had said he heard Rumsey swear so at the 〈◊〉 Russels Tryal even that had not been Evidence unless a Record of that Tryal had been produced in Court which was not done but all those things being but meer circumstances shew the injustice of Speeding his Tryal and denying him Councel Would not any Councel have told him that in strictness of Law a Passage in a Printed Tryal was not Evidence and was it not easie for him to have got a Witness to have said that he had heard Rumsey swear so at that Tryal were not all the Judges which sate upon him and all the Kings Councel which were against him present at the Lord Russels Tryal and perfectly remembred what Rumsey then swore as to the Pretended Declaration and might he not have Subpaena'd them to have testifyed that Matter Nay was it not their Duty to have done it even without a Subpaena To say it was against the King and therefore they could not do it or they were in the Commission to try him and therefore they could not do it is neither Law nor Reason every Man knows that a Judge in a Civil Matter Tryed before him and a Councel even against his Client hath been enfore't to give Evidence provided it be not of a Secret communicated to him by his Client for in that particular a Judge ceases to be a Judge and is a Witness of whose Evidence the Jury are the Judges tho he after re-assume his Authority and is afterwards a Judge of the Juries Verdict A Judge may Sue and must be Sued in his Court but in that Case he ceases to be a Judge and is a Suitor though he re-assumes his Authority in all other matters and if it be so in Civil matters let any Man shew me a reason why the Law is not so in Criminal matters there is no express Law against it and it will be absurd in reason to say the Law is not so for at that rate the King may put any witness he knows the Prisoner intends to produce for himself into the Commission for Trying him and so deprive the Prisoner of the benefit of his Evidence as in this Case Sheppard whose Evidence ought to have been of great as it shall be shewn tho it was not of any Avail to the Prisoner might have been put into the Commission to have Tryed Mr. Cornish for he was as much qualified for it as Sir James Smith then Lord Mayor or any Judge upon the Bench and if they might have been witnesses for the Prisoner if Subpaena'd they might have been witnesses for him even without asking and it was a duty incumbent on them though not as Judges yet as Christian Men so to be Humanity commands the Discovery of Truths which prevent the shedding Innocent Blood and Christianity commands a Man to do as he would be done by I think the question need not be asked what they would have had done if it had been their Case The reason that all matters of Law are or ought to be Transacted publickly is that any Person unconcerned as well as concerned may as amicus curiae inform the Court better if he thinks they are in an error that Justice may be done and the reason that all Tryals are publick is that any Person may inform in point of Fact though not Subpaena'd that Truth may be discovered in Civil as well as Criminal matters There is an invitation to all Persons who can inform the Court concerning the matter to be tryed to come into Court and they shall be heard It is true if the Judges or any Person had testifyed what Rumsey had said at my Lord Russel's Tryal it had not been Evidence without the record of the Tryal and it is as true that neither the Record nor a true Copy of it could have been procured between Mr. Cornish's Commitment if it were on Friday as I have heard it was though the Court said it was on Tuesday much less between the notice of his Tryal which was Saturday-noon and the time of his Tryal which was Monday-morning But then what Justice was there in speeding his Tryal so as to deprive him of the Circumstances of his defence for that was but a Circumstance and not an essential matter and what account can be given why the Court when they were well satisfied that it was in the Prisoners Power to procure such a witness and such a record did not stay till he did it or if it would be too long in doing why should they not have put off the Tryal for that time and give the Prisoner a convenient time to do it The first in Civil matters hath been frequently done when a Deed or Witness hath been wanting if it could be done in a convenient time and the putting off a Tryal before it came on though after it came on they have not done it because there is no great mischeif in that for either Party hath Power to bring it about again but not so in Capital matters and therefore Jurys in Capital matters have been frequently discharged after sworn where the Evidence hath been defective It is true my Lord Coke saith that a Jury once charged with a Prisoner cannot be discharged but must give their Verdict but it is as true that he says so in Favour of the Prisoner that when the Evidence against him appears defective he shall not be continued a Prisoner till more Evidence can be found or procured against him though the Practice of late days hath been quite contrary viz. to discharge the Jury where the Evidence against the Prisoner hath been defective but enforce them to give a Verdict where the Prisoner's defence hath been defective though to their knowledge if he had longer time to do it he had been able to produce the witnesses who could clear him but by what Law or reason I am to seek yet I confess if Rumsey's owning his Perjury in the Lord Russels Tryal in the very point sworn against the Prisoner and so frivelously excusing it would not discredit him I know not that any Record Witness or Evidence would have availed Mr. Cornish And add to Rumsey's contradicting himself that Sheppard who never contradicted himself and had been a witness in both Tryals agrees that what Rumsey had sworn in my Lord Russels Tryal as to Mr. Cornish's not being there was true