BY Vertue of an Order to me granted by the Lords Spiritual and Temporal in Parliament Assembled dated on Thursday the 28th of Octob. 1680 I do appoint Randal Taylor near Stationers Hall to Print this Trial of Roger Earl of Castlemaine and that no other Person or Persons print the same JO. COMBE London Januar. 12. 1680-1 THE TRYAL OF ROGER EARL OF CASTLEMAINE FOR High Treason In Conspiring the Death of the KING The Subversion of the Government and Introducing of Popery and Arbitrary Power BEFORE The Lord Chief Justice SCROGGS c. At the KING's BENCH Bar at Westminster the 23th June 1680 Where he was Acquitted LONDON Printed for S. G and N. E. and are to be sold by Randal Taylor near Stationers-Hall 1681. THE TRYAL OF ROGER EARL of CASTLEMAINE ROGER PALMER Esque Earl of Castlemaine in the Kingdom of Ireland having been Arraigned at the Kings Bench Bar the Sixteenth of June 1680 for High Treason To which he Pleaded Not Guilty c. On Wednesday the 23th of June 1680 being appointed for his Trial the Court being sate and the usual Formalities perform'd the Lieutenant of the Tower delivered him into Court and then the said Court proceeded as followeth Clerk of the Crown Cryar Make Proclamation Proclamation for silence Cryer O yes Our Soveraign Lord the King doth strictly charge and command all manner of Persons to keep silence upon pain of Imprisonment O yes If any one can inform our Soveraign Lord the King the Kings Serjeant at Law the Kings Attourney General or this Inquest now to be taken of the High Treason whereof Roger Palmer Esq Earl of Castlemain in the Kingdom of Ireland stands Indicted let them come forth and they shall be heard for the Prisoner stands at the Bar upon his deliverance Clerk of the Crown Cryer Make an O yes Cryer O yes You good Men that are empannelled to enquire between our Soveraign Lord the King and Roger Palmer Esq Earl of Castlemain within the Kingdom of Ireland answer to your Names Clerk of the Crown Roger Palmer Esq Earl of Castlemain in the Kingdom of Ireland hold up thy hand These good Men that were lately called and now here appear are to pass between our Soveraign Lord the King and you upon your Life or Death if you challenge any of them you must speak as they come to the Book to be Sworn and before they are Sworn JURY Sir John Cutler Knight and Baronet Sir Reginald Foster Baronet Henry Herriott Esq Richard Cheney Esq Thomas Johnson Esq John Robert's Esq Francis Dorrington Esq Hugh Squire Esq Charles Good Esq John Pulford Esq Edward Claxton Esq Francis Mayhew Gent. Cryer O Yes Our Soveraign Lord the King doth strictly charge and command all manner of Persons to keep silence upon pain of Imprisonment C. of the Crown Roger Palmer Esq Earl of Castlemain in the Kingdom of Ireland hold up your hand You Gentlemen of the Jury that are now Sworn look upon the Prisoner and hearken to his charge You shall understand that he stands Indicted by the Name of Roger Palmer Esq Earl of Castlemain in the Kingdom of Ireland for that he as a false Traytor against our most Illustrious and Excellent Prince and Lord Charles the Second by the Grace of God of England Scotland France and Ireland King Defender of the Faith c. and his Natural Lord not having the Fear of God before his Eyes nor weighing the Duty of his Allegiance but being moved and seduced by the Instigation of the Devil his Cordial Love true due and Natural Obedience which true and Faithful Subjects of our said Soveraign Lord the King ought to bear towards him altogether withdrawing and contriving and with all his might intending to disturb the Peace and common Tranquility of this Kingdom and to bring and put our Soveraign Lord the King to Death and final Destruction and alter the true Worship of God within this Kingdom established to the Superstition of the Romish Church and to stir up and move War against our said Soveraign Lord the King within this Realm of England and to subvert the Government thereof the Twentieth day of June in the Thirtieth Year of the Reign of our said Soveraign Lord Charles the Second of England Scotland France and Ireland King Defender of the Faith c. at the parish of St. Giles in the Fields in the County of Midd. with divers other false Traitors to the Jurors unknown did traiterously imagine and intend the killing death and final destruction of our said Lord the King and to change and alter and utterly subvert the Ancient Government of this Kingdom and to depose and wholly to deprive our said Lord the King of his Crown and Government of this Realm of England and to extirpate the true Protestant Religion And to accomplish and fulfil the same most wicked Treasons and Traiterous Imaginations and Purposes aforesaid the said Roger Palmer Esq Earl of Castlemain in the Kingdom of Ireland and other false Traitors to the Jurors unknown the same Twentieth day of June in the Thirtieth Year aforesaid with force and Arms in the Parish of St. Giles in the Fields aforesaid in the County aforesaid Advisedly Devilishly Maliciously and Traiterously did assemble unite and gather themselves together and then and there Advisedly Devilishly Maliciously Subtily and Traiterously did consult and agree to bring our said Soveraign Lord the King to Death and Final Destruction and to deprive him of his Crown and Government of England and to Introduce and Establish the Religion of the Church of Rome in this Kingdom and the sooner to fulfil and accomplish the same most wicked Treasons and Traiterous imaginations and purposes aforesaid he then and there did Falsly Maliciously and Trayterously promise divers great Rewards and did pay divers Sums of Money to several Persons unknown and then and there falsly and traiter ously did write divers Notes to incite several other Persons to accomplish the Treasons aforesaid against the Life of our Soveraign Lord the King his Crown and Dignity and contrary to the form of the Statute in such Case made and provided Clerk of the Crown Upon this Indictment he hath been Arraigned and hath pleaded thereunto Not Guilty and for his Tryal he puts himself upon God and his Countrey which Countrey you are Your charge is to inquire Whether he be Guilty of the High Treason whereof he stands Indicted or not Guilty If you find him guilty you are to inquire What Goods and Chattles Lands and Tenements he had at the time when the High Treason was committed or at any time since If you find him not Guilty you are to say so and no more and hear your Evidence Cryer O yes If any one will give Evidence on the behalf of our Soveraign Lord the King against Roger Palmer Esq Earl of Castlemain in the Kingdom of Ireland let him come forth and he shall be heard for the Prisoner now stands at the Bar upon his deliverance M. Bonithon May
a Pardon for Felonies and Out-lawries of Felony in general Mr. Darnal If the Persons and their Offences are severally and sufficiently pardoned then my Lord I will proceed unto the other Point J. Jones The whole is good D. Darnal Then my Lord I conceive notwithstanding this Pardon Mr. Dangerfield ought not to be Sworn and that no Person attainted of Felony though Pardon'd can be a Witness My Lord it hath been Adjudged in 11 Henry the 4th Quadragessimo primo that a Man Attainted of Felony as Mr. Dangerfield is though he be afterwards Pardoned cannot be Sworn of a Jury My Lord the same question hath been resolved since In Nono Jacobi It is reported in Mr. Brownlow's and Goldsborough's Reports Folio Tricessimo Quarto And my Lord Cook in Mr. Bulstrode's Second Reports 154. In Brown and Crashaw's Case is of the same Opinion He says A Man Attainted and Pardon'd cannot serve upon any Inquest and that by the same reason the Testimony of such a man for a Witness is in all Cases to be rejected L. C. J. Who says so Mr. Darnal My Lord Cook L. C. J. Men do not slight my Lord Cook Where do you say that is Mr. Darnal It is in Mr. Bulstrode's Second Reports in Brown and Crashaw's Case Fo. 154. J. Jones But you should have brought these Books hither Mr. Darnal I suppose Sir they may be had in the Hall My Lord Cook gives this Reason for it in that Case He saith That notwithstanding his Pardon he is not Probus legalis homo J. Jones That Pardon was before any Judgment it was a Pardon of Felony before any Tryal or Judgement but here is a Conviction Mr. Darnal My Lord Cook puts the case there of a Man Attainted And my Lord Induodecime Jacobi It is reported in Brownlow's Reports Folio 47. J. Raymond Which of his Reports Mr. Darnal I know but of one set out in his Name alone the other which is call'd the First Part is sett out in his and Goldsborough's Name I have Mr. Brownlow's Reports here and if your Lordship please you may see it L. C. J. What is the Page Mr. Darnal Forty Seven my Lord The case there reported is The King Pardon'd a Man Attaint for giving a false Verdict yet he shall not be at another time Empannell'd upon any Jury and the reason given there is that though the Punishment was Pardon'd yet the Guilt remain'd J. Jones That is a very short Note and not so much in the Book as you have mentioned Mr. Darnal I writ it word for word out of the Book Sir and I am sure there is so much in my Book My Lord in Mr. Justice Crooke's Elizabeth Fol. 686. in Shelborn's Case it is held that though the King may Pardon Simony yet he cannot enable a Simoniack to retain a Living L. C. J. The Act doth make him not capable Mr. Darnal I conceive Sir it is upon the same reason because the Pardon cannot take away the Guilt though it may the Punishment of the Offence J. Raymond He can't dispense with Simony he can't give a dispensation to take a Living Mr. Darnal My Lord upon these Resolutions and the reason of them I humbly submit it to your Lordship whether Mr. Dangerfield having been Attainted of Felony though he be since Pardon'd can be a Witness Att. General My Lord with your Lordships Favour this is quite contrary to the constant and general Opinion and contrary to the constant Practice For my Lord with your Lordships Favour when a Man is Pardon'd for any Crime if a Man can't say he is a Felon or he is Perjured then he can't be reckoned so to any intent or purpose whatsoever L. C. J. I told you before it is consonant to all the Reason and Law in the World that a Pardon should stop Mens Mouths from reviling speeches that signifie nothing but it is one thing to say men shall not go reviling that can have no consequent good but which tends to the Breach of the Peace and another thing to say he shall be Liber Att. General My Lord when the King gives him a Pardon it is as if he had never committed the Offence L. C. J. He may be outlawed notwithstanding the Kings Pardon and then it is not as if he had never committed the Offence J. Jones It restores him to wage battle and it makes him Liber legalis homo for if a man may wage battle he is Liber legalis homo Att. General Then my Lord if he be so he shall be a Witness For my Lord in the Point of Perjury a man that after a Conviction of Perjury had a Pardon hath been admitted several times L. C. J. Was the Exception taken Mr. Atturney Att. General Yes my Lord and he rejected before he had a Pardon J. Raymond How many Men have been Witnesses that have been convicted of Felonies after the Kings have Pardon'd them Recorder I will not adventure to say that there hath been a particular Objection made and so that the Court hath had the Debate of it but I will undertake to give your Lordship several instances of Men that have been Convicted and the Judges sitting there knew them to be so Convicted and did not take notice of it J. Raymond I speak of Witheringon particularly Recorder He was a Witness though every man did know that Witherington was Convicted I begg your Lordships leaves to speak it that the Judges themselves did know that he was Convicted and had received Sentence of Death Sir F. W. The constant Practices of the Judges is a mighty Conclusion L. C. J. What think you Mr. Atturney if a Man be Convicted of Felony and afterwards hath a General Pardon is he a Witness Att. General Yes truly my Lord it signifies the same thing my Lord as to be a Freeman again J. Jones He cannot be of a Jury if he be Attainted of Felony and the reason is because he is not Probus legalis homo and why he should not as well be of a Jury as a Witness I cannot understand Att. General There is a great deal of difference my Lord a great many Men may be admitted to be Witnesses that cannot be admitted to be Jury men J. Jones Shew me any man that is excluded from a Jury and admitted to be a Witness except in the case of Kindred Att. General An hundred L. C. J. Shew me any Man who being of a Jury was excluded and yet made a Witness Att. General A Villian was not admitted to be a Jury man but a Villain was always to be a Witness and that was a point of Infamy L. C. J. What Infamy was contain'd in being a Villain Att. General He was a Criminal he was not Liber homo L. C. J. But though he be not a Freeman he may be an honest man Recorder My Lord Hobart says A Pardon takes away the Guilt L. C. J. It takes away Guilt so far as he shall never be questioned but
it does not set a Man as if he had neuer Offended It cannot in reason be said a Man guilty of Perjury is as Innocent as if he had never been Perjured Att. General I say if a Man be Pardoned he is as if he were not Guilty L. C. J. If I were in my Lord Castlemain's Case I would submit it but when he hath given his Testimony my Lord shall have liberty to give in the Records against him of what Crimes he hath committed J. Jones I do confess indeed that my Lord Hales in his little Book of the Pleas of the Crown saith That a Man that hath had the benefit of his Clergy is restored to his Credit J. Raymond If that case be allowed it is a plain case for there is no Man can wage Battle but he that is Liber legalis homo Recorder A Man broke Prison and therefore he could not wage Battle he replies the King hath Pardoned me that Felony and thereupon he is admitted to wage Battle J. Jones Where there is no Judgment given in the Case and the King doth Pardon a Man that doth make a very great difference Recorder In the Case of Witherington my Lord Chief Justice did look upon the Records and afterwards said he was a good Witness and was Admitted Prisoner If you have Law by you I must consent L. C. J. Then you must consent Recorder There are several Persons who have had Pardons after Robberies and we are forced to make use of some of these Fellows L. C. J. Before Conviction Recorder No after Conviction my Lord I have known a Prisoner at the Bar when my Lords the Judges have been there to be a Witness And if the Court had made any doubt it would have been a Question before this time of day Att. General My Lord if you please Mr. Dangerfield may be Sworn If your Lordship pleases L. C. J. My Lord shall have the benefit of excepting against his credibility Then Mr. Justice Raymond went down to the Court of Common Pleas to know their Opinion J. Jones Have you any other Witness in the mean time Att. General No my Lord he is a principal Witness Sir F. W. Besides the common Practice here is a Book that says he shall wage Battle J. Jones That is when there is a Pardon before Conviction Sol. General But here my Lord he says the Reatum is taken away and then it takes away his disabilities too The difference can be nothing here before Conviction and after because before Conviction there is a disability before Conviction he is disabled from waging Battle So that that makes no difference before Conviction and other Cases after Conviction and the disability is taken away by the Pardon and he is restored to be a Freeman L. C. J. There is a disability upon Presumption tho not upon Conviction Sol. General There is the same legal impediment in the one as in the other but his Credit is left to the Breast of the Jury Recorder When a Pardon comes it takes away not only Poenam but Reatum and the Reason my Lord Hobart gives L. C. J. Nay give your Reason Recorder For Felony is Contra Coronam Dignitatem is a Fault against the King and when the King Pardons it it ceases and in another place it is said It Pardons all disabilities incident to him J. Jones That is before Conviction still L. C. J. Don't my Lord Cook tell you expresly That the taking a Pardon doth not prove any Offence You take a Pardon it ought not to be concluded that you are Guilty but the proper conclusion of a Wise Man is that you would be safe It can't be thought that every Man that hath a Pardon in England is guilty of all those Offences that are there Pardoned J. Jones There is a difference between a General Pardon and a particular Pardon when a Man doth accept of a special Pardon it must be intended that he hath some Consciousness of Guilt or else he would not take it but he that is Included in a general Pardon may be clear because all Men are Included in it unless some Persons particularly excepted and the difference is taken in that very point from accepting a General and a Special Pardon L. C. J. That the Acceptance of a General Pardon doth not barely of it self intend Men to be Guilty of the Crimes is plain and the reason is most apparent for besides that Men be safe so there be times that give a Reason why Men should have a Pardon because no man knows when he is safe Perjury so abounds that no man can say he is safe and that is a Reason why Men should be very willing to accept of Pardons Clerk of the Crown Here 's my Lord Hales's Book about the Pleas of the Crown Recorder He says when the King hath discharged and pardoned him he hath cleared the Person of the Crime and Infamy J. Jones It is so no doubt Sir F. W. May we pass upon these Authorities J. Jones Sir Francis We are not willing to go about it till it be concluded for that purpose we have desired my Brother Raymond to know the Judges Opinions of the Common Pleas. Recorder He doth expresly say it hath restored him to his Credit and in Witherington's Case he did call for the very Records Att. General If it restore him to his Credit I hope it shall not blemish him so much when he is Sworn that he shall not be believed L. C. J. We won't have any prepossession in that Case his Crimes shall be all taken notice of Is it fit to have Men Guilty of all sorts of Villanies and not to observe it J. Jones In that very Case my Lord Hobart says A Man may say of a Pardoned Man he was a Felon though he cannot say now he is a Felon and now what can be objected to this Case Recorder Things may be objected against a Person and his Credit left to the Jury but the Question now is Whether he shall be a Witness or no L. C. J. We have Men grown so Insolent they behave themselves with that vile Insolence that now they take upon them to speak against whole Societies of Men as if so be there were any thing in them that should render them better then their former Lives or Natures Humility becomes penitents and no wicked Man is supposed to be penitent that hath not that but these carry it with that Insolency as if they were not concern'd themselves when God knows the best of them discover what they do by being but parties themselves Mr. Justice Raymond return'd from the Court of Common Pleas. L. C. J. I will tell you what my Brethrens Opinions are he hath put it to them on both Accounts That he was convicted of Felony and Burnt in the Hand for it that he was outlawed for Felony and hath a General Pardon They say they are of Opinion That a General Pardon would not restore him to
be a Witness after an Outlawry for Felony because of the Interest that the Kings Subjects have in him But they say further That where a Man comes to be Burnt in the hand there they look upon that as a kind of more General Discharge then the Pardon alone would amount to if he had not been burnt in the hand They say If he had been Convicted of Felony and not Burnt in the hand the Pardon would not have set him upright but being Convicted and Burnt in the hand they suppose he is a Witness Sir F. W. Swear Mr. Dangerfield L. C. J. The very Attainder is taken away and so all is gone Att. General Come Mr. Dangerfield are you Sworn Mr. Dangerfield Yes Sir Att. General Pray tell what you know of my Lord Castlemain L. C. J. I perceive my Brethrens Opinion is That if a Man were convicted of Perjury if there be no Burning in the Hand in the Case that a Pardon could not set him upright because of the Interest of the People in the King Att. General Come Mr. Dangerfield are you sworn Mr. Dangerfield Yes Sir Att. General Then pray say what you know of my Lord Castlemain Mr. Dangerfield About this time Twelve Month my Lady Powis sent me with a Letter for the Prisoner at the Bar my Lord Castlemain L. C. J. Don't you know him Mr. Dangerfield Yes my Lord this is the Person And my Lord the Contents of that Letter I know not but his Lordship made me stay till he wrote an Answer and the Contents of the Answer my Lord were to this effect For I return'd with the Answer to the Lady Powis and she opened and read it while I was present L. C. J. Aloud Mr. Dangerfield Aloud my Lord. L. C. J. To you Mr. Dangerfield To me L. C. J. Who was there Mr. Dangerfield Mrs. Cellier was there besides And the Contents of this Letter were This Person I like well and though he be no Scholar he will serve to Instruct the Youths as he shall be directed By the Youths were meant the St. Omers Witnesses L. C. J. How do you know Mr. Dangerfield Because I know my Lord was employed for that purpose I know his Lordship did use to Instruct the Youths and it was a common saying among them when one of them was out of his part they used to say I must go to my Lord Castlemain L. C. J. What part Mr. Dangerfield That which they were to say and one of them did say I am out of my Lesson I must go to my Lord Castlemain L. C. J. When did he say so Mr. Dangerfield Before the Tryal my Lord and my Lord Castlemain went along with them to the Tryal and his Lordship complained of some ill usage that the Witnesses received there His Lordship was one of the Persons that imployed me to get Lane out of the Gate-house my Lord and his Lordship sent me to a Sollicitor of his whose Name was Mr. Lawson the Person is now in Court to take an account how far he had proceeded in this Affair I did take an Account and I proceeded in it afterwards and got him discharged L. C. J. How came you into my Lords acquaintance Mr. Dangerfield That was the first time when my Lady Powis sent me with that Letter my Lord. A pretty while after this in the Month of July I went to wait upon his Lordship at his House in Charing-Cross the same place where I found his Lordship before and I was to take his Advice a bout some Letters that came from one Nevil alias Paine Those Letters and List of Names I shewed his Lordship and he gave his Approbation of them and desired good store of Copies might be writ for it was of consequence and ought not to be neglected And ask'd me Are there working Persons employ'd in that business And said he Encourage them and I will pay my part So my Lord after there were a great number of Copies writ of these Letters I writ a Letter to my Lord Castlemain to let his Lordship know that the People had finish'd their work and that there was something more to be done as a Gratuity and then his Lordship in Answer to this Messenger who is here also in Court with a Letter his Lordship sent Forty Shillings for his part And Mrs. Cellier told me she received Forty Shillings and disposed of it to the use intended now my Lord the Contents of these Letters were to the same effect with those Letters and loose Papers which I conveyed into Collonel Mansell's Chamber and these all tended to the promoting the Sham-plot my Lord. L. C. J. Pray tell me what was the Subject of these Letters what was the substance of them Mr. Dangerfield To the promoting the Sham-plot my Lord. L. C. J. That is a General no Body knows what to make of Mr. Dangerfield I will give your Lordship an Account in particular The contents of many of them were to this purpose L. C. J. Were they not all alike Mr. Dangerfield The Copies were the same and there were so many Originals to draw Copies from L. C. J. Were not the Originals all to the same purpose Mr. Dangerfield Agreeable in Point of sense L. C. J. Pray tell us the purpose of them Mr. Dangerfield The purpose was That so many Letters should be conveyed into the Houses of several Persons of Quality in this Kingdom that were called Presbyterians for that was the Notion that all Persons that were not for the immediate promoting of the Catholick Interest lay under because they looked upon that Notion to be most obnoxious L. C. J. Who and where Mr. Dangerfield In general my Lord. L. C. J. In general where Mr. Dangerfield By my Lady Powis and the Lords in the Tower L. C. J. Were you by when the Lords in the Tower did agree to it Mr. Dangerfield When my Lord Peter and my Lord Arundel did L. C. J. What did they agree to Mr. Dangerfield My Lord the thing is this after they received an Account from one Mr. Paine I brought a Billet from that Paine wherein was contain'd a Ground or Scheme of the Presbyterian Plot so from thence it derived its First Name my Lord so that when I came to Discourse with the Lords in the Tower about it they called it the Presbyterian Plot and Mrs. Cellier and the Lady Powis said This is a Notion that will do the business as it is most obnoxious and as best to our purpose J. Jones How far was my Lord Castlemain concern'd in this Mr. Dangerfield I have not heard his Lordship speak of it under that Notion L. C. J. Pray let us hear what you can say against my Lord Castlemain Mr. Dangerfield Now my Lord some considerable time after I had gotten Lane out of Prison I was imployed by several other persons his Lordship was one and he sent me to his Lordships Sollicitor that is now in Court A pretty while after this and the