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
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
a good Challenge and with him Sir John Fortescue seems to concur in his Exposition on the Statute of Henry the 5th he says if the Debts or Damages were under forty Marks the Jury-man shall have Land to a competent Value according to the Discretion of the Justices My Lord Coke saith in such case any Free-hold sufficeth now how can that be true if it were not necessary at Common Law to have some Free-hold for the Statute makes no Provision for Debt or Damages under forty Marks It must therefore be by Common Law that some Free-hold was necessary and that any Free-hold shall suffice And surely if in Civil Matters it was necessary for a Juror to have a Free-hold much more in captial Matters and mostly in Treason It is very plain that at Common Law no man was thought to be a sufficient man but a Free-holder and though now and for some time past the Value of Trade is equal to that of Land yet heretofore it was not so and by what was heretofore the Common Law is to be known The matter of Trade was heretofore so inconsiderable and the Traders themselves for that reason so vile that it was a Disparagement for a Free-holder to marry with a Trades-man as is to be seen by the Statute of Wharton and therefore meer Trades-men and not Free-holders were not to be trusted with the Concern of a Tryal in a civil Matter and much less in a Capital and least of all in a Tryal of High-Treason The Chief Justice Pemberton says that the reason of Free-holders was that no slight Persons should be put upon a Jury where the Life of a man or his Estate is in question it is plain therefore the Concern of the thing to be tryed is the measure of the substance of the Jury-man if that be true the Tryal in Treason is of the highest concern How then is it true as some of the Judges concluded that though Free-hold migh be requisite in some Cases at Common Law yet in Treason certainly not it is indeed a Paradox to me And the peremptory Challenge of thirty five allowed the Prisoner is no Reason against the Challenge of no Free-hold for that is only a Priviledge allowed the Prisoner in Favorem Vitae and it might as well be argued that no Challenge at all to the petty Jury shall be allowed the Prisoner because he had a Grand Jury past upon him before which is also in Favorem Vitae that no man at the Kings Suit shall be so much as questioned for his Life till above the number of twelve substantial men have on their Oaths said they think the Accusation true and after that he is allowed to challenge peremptorily thirty five and with cause without number to affirm therefore that no Free-hold is not a cause of Challenge because he may challenge peremptorily thirty five is a non sequitur and though Non-usage that is to say that this Challenge was never taken in Treason was then used as an Argument yet it is the weakest of Arguments which is to be found in Littleton though even that Fact was not true for the Challenge was taken and allowed before unless you will distinguish and say that in that case it was taken by the King and therefore good and in this by the Prisoner and therefore bad I 'm sure that Difference cannot be warranted either by Authority or Reason and what though Cook and the other Regicides and other Persons did not take that Challenge is it and Argument that they could not or that they thought they could not perhaps they had forgotten to do it as much as the Judges in this case had forgotten their Resolution in Fitz-Harris's Case or perhaps they could not take it their Jury being Free-holders or perhaps it was to no purpose they being tryed in Middlesex where a Jury of Free-holders would quickly be found Nor is it an Argument that no Case of this Challenge at Common Law is to be found in the Books for since the Statute of Henry the 5th to the time of Queen Marry it could never be a Case and from that time to this it could never be a Case in Felony and the Law being so very plain that if the Fact were with the Prisoner it was always allowed if against the Prisoner it was disallowed not as not good in point of Law but as not true in point of Fact therefore the Challenge perphaps was not taken notice of in the Books which only reports Difficulties It is true of late and it is but of late Practice the whole Transactions of a Tryal is published for the benefit of the Publisher rather than for the common Good and that indeed was the Motive of publishing Fitz-Harris's Tryal signed by Fra. Pemberton and of Colledges's Tryal signed by Fra. North and of my Lord Russel's signed by William Prichard Mayor and Col. Sidnie's Tryal signed by George Jefferies and Mr. Cornish's Tryal signed by Thomas Jones And that is the reason why since that Statute we find no Case of such a Challenge in capital Matters and before that Statute the Year-Books go but a little way It is enough that there was no Resolution that it was not a good Challenge for it will be of the Kings side to shew why that should not be a good Challenge in Treason which was in most if not in all other Cases It is pretty to observe what steps were made in over-ruling this Challenge some were of Opinion that it was no Chanllenge in any Case at Common Law so said the Attorny and Sollicitor General the Chief Baron Justice Windham and Baron Street The Chief Justice though it no Challenge at Common Law in Treason or Felony only but that the Statute of Henry the 5th made it a Challenge in Treason and Felonly but whether the Statute of Henry the 5th made it a Challenge in Treason the Chief Baron and Justice Windham doubted Justice Jones thought it no Challenge at Common Law in Treason Justice Levins would not determine whether it was a good Challenge in any Case at Common Law but he and Baron Street were clearly of Opinion it was not a good Challenge in London The Chief Justice thought it a Business of great consequence not only for the Prisoner but for all other Persons Baron Street thought the Judges had been very nice in the Matter which in the Phrase of the Law is giving themselves a great deal of trouble in a matter very clear or of no moment But though they differ'd in their Reasons yet all agreed in this and in this only that tryed he should be and that presently Then as for the Custom of the City of London to try without Free-holders how did it appear to the Judges that there was any such Custom Did they ever read of any such Custom in the City of London Nay were not the Statutes which were cited where no Free-hold was made no Challenge in London in particular Cases as so
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
REMARKS UPON THE TRYALS OF Edward Fitzharris Stephen Colledge Count Coningsmark The Lord Russel Collonel Sidney Henry Cornish and Charles Bateman As also on the Earl of SHAFTSBURY's Grand Jury WILMORE's Homine Replegiando And the AWARD of EXECUTION against Sir Thomas Armstrong By John Hawles Barrister of Lincolns-Inn Nec partis studiis agimur sed sumpsimus arma Consiliis inimica tuis ignavia fallax Selden of Tithes LONDON Printed for Jacob Tonson at the Judges Head in Chancery-Lane near Fleetstreet MDCLXXXIX THE CONTENTS REmarks on Fitzharris's Tryal pag. 3 Remarks on Colledge's Tryal p. 20 Remarks on the Earl of Shaftesbury's Grand Jury p. 45 Remarks on Wilmore's Homine Replegiando p. 52 Remarks on the Lord Russel's Tryal p. 56 Remarks on Collonel Sidney's Tryal p. 76 Remarks upon the Award of Execution against Sir Thomas Armstrong p. 83 Remarks on the Tryal of Count Coningsmark p. 85 Remarks on Mr. Cornish's Tral p. 89 Remarks on the Tryal of Charles Bateman p. 99 REMARKS UPON SEVERAL TRYALS THE strange Revolution which hath of late happened in our Nation naturally leads one into the considerations of the Cause of it The danger of subverting the Established Religion and invading Property alone could not be the Causes For if it be true that the same Causes have generally the same Effect It is plain that in the Reign of a precedent Monarch the Subversion of the Established Religion was as much designed or at least it was believed to be so as of late and it is not material whether what was suspected was true or not and Property was as much Invaded as of late by imposing Ship-money and other Taxes on the Nation but more especially Ship-money which at first was light and easie but in progress of time was encreased according as it was found the Nation would bear it And at length it was feared as there was just reason so to do that it would become as burthensom as what is now impos'd on the French Nation by the French King and yet when the War broke out if the History of those Times or the Persons who lived a bout those Times are to be believed the majority of the Nation took part with the King. There was therefore some other Reasons for the Disaffection of the Nation to the late Government and they may be ranked under these six Heads Exorbitant Fines Cruel and Illegal Prosecutions Outragious Damages Seising the Charters Dispensing with the Test and Penal Laws And Undue Prosecutions in Criminal but more especially in Capital Matters For the first I shall only observe That when the House of Commons in the Parliament 1680. took that matter into consideration and intended to impeach several Persons for the same the highest Fine at that time complained of was but 1000 l. and yet in few Years they were heightned to 10000 l. 20000 l. 30000 l. and 40000 l. For the second The punishment of Oates Dangerfield and Mr. Johnson and the close Imprisonment of Mr. Hampden Sir Samuel Bernardiston and of several other Persons as it was against Law so it was without Precedent For the Third Tho' the Damages given to Bolsworth was the first Outragious Damages given which were taken notice of and in truth were such yet in little time Damages for matters of like kind were quickly improved to 10000 l. 20000 l. 40000 l. nay 100000 l. The truth of which a great many living Witnesses to their Sorrow can testifie For the Fourth The seising the City and other Charters upon the pretences they were questioned was without Example For the Fifth The Dispensing with the Test and Penal Laws was as mischievous as it was Illegal it making persons capable which were incapacited by Law of being in Places and of exercising Offices for whom the persons who had Power to Confer of Bestow the same had more affection than for the persons who at that present enjoyed them the Consequence of which was quickly seen in turning out the present possessors to make room for others which was the thing which as a Scotch Bishop said of another matter set the Kiln a fire Of these five particulars something hereafter may be said at present this Treatise is only to consider how far the Proceedings in Capital Matters of late years have been Regular or Irregular And as to that I shall not at all consider how far the persons hereafter mention'd were Guilty of the Crimes of which they were accused but how far the Evidence against them was Convincing to prove them Guilty and what Crimes the Facts proved against them in Law were REMARKS ON Fitzharris's Tryal THE first Person I shall begin withal shall be Fitzharris and that it may not be wondred that the Tryal and Comdemnation of a Person who was confessedly an Irish Papist should be complained of and one whose Crimes were such that if the Law declared had not made Capital it had been just in respect of the Malefactor for the Legislative Power to have Enacted that he should suffer the severest Punishment usually inflicted for the Highest Crime yet in respect of the common good it had been just and fit to have pardoned him if he would have confessed who was his Conspirators and setters on for I am apt to think that if that matter had been thorowly lookt into some Persons afterwards Witnesses in the Lord Russel's Collonel Sydney's and Mr. Hampden's Tryals had either never been produced or have not been credited if produced nor would my Lord of Essex's Throat have been cut and my Lord Russel and Collonel Sydney might have worn their Heads on their Soulders to this day All will agree that there was a great struggle between the Whigs and Tories as they were then called for hanging or saving that man both agreed he deserved to be hanged the first thought it their advantage to save him if he would confess the last thought it was fit to hang him for fear he would cofess and to explain the matter it is fit to go a little higher It cannot be but remembred that before the breaking out of the Popish Plot Mr. Claypole was imprisoned in the Tower for designing to kill the King in such place and manner as Oates afterwards discover'd the Papists intended to do it In Trinity Term 1678. he had an Habeas Corpus to the King's-Bench and was brought thither in order to be Bailed and produced persons of worth to bail him but the penalty of the Bail set by the Court was so high and the Court so aggravated the Crime for which he was committed and the likelyhood of the Truth of it that the Bail refused to stand and Claypole was remanded to the Tower. But the Term after when the matter of which he was accused appeared bare faced to be the Design of other people he was let go for fear the Examination of it should go farther in proving the Popish Plot than any thing at that time discovered And if it were now discovered upon whose and what
so much as hearing the Prisoner's Counsel for the maintaining it the pretences were That the Prisoner on his Plea ought to have produced the Record of his Impeachment and that the Plea of the Impeachment for High Treason in general was nought without specifying what the High Treason was for which he was impeached For an Impeachment or an Indictment of High Treason in general was nought that the King had power to proceed on an Impeachment or Indictment for the same thing at his election That the allegation that Fitz Harris was impeached which Impeachment stood in full force not having mentioned an Impeachment before was nought But afterwards the Attorney General demurred and the Prisoner joined in the Demurrer And then day was given to argue the Plea till Saturday the 7th of May at which time the Attorney added to the Exceptions he took to the Plea Whether a Suit in a Superior Court can take away the Jurisdiction of another inferior Court who had an Original Jurisdiction of the Cause of the Person and of the Fact at the time of the Fact committed To maintain the Plea the Counsel for the Prisoner alledged That an Impeachment differed from an Indictment the first was at the suit of the Commons of England and was like an Appeal or rather an Appeal assembled an Impeachment that the proceedings were different in the Tryals in the first the Tryal is by the House of Lords in the last of a Commoner by a Jury of Commons In the last but little time was allowed for giving or considering of the Evidence in the first a much longer time that this matter was never practised before that the King may pardon a Criminal prosecuted by an Indictment but not by an Impeachment no more than if prosecuted by an Appeal If he should be acquitted on the Indictment it might be a question whether that may be pleaded in Bar to the Impeachment and if not the Prisoner should be brought twice in jeopardy of his life for the same Crime contrary to the Rule of Law. To the Objection That the Plea was not certain it being pleaded as an Impeachment of High Treason not setting forth the High Treason in particular it was answered That an Impeachment differed from an Indictment for by the Custom of Parliament which is the Law of the Land such a general Impeachment is good but by the Law a general Indictment of High Treason without specifying what when where or how is not good and therefore the Plea of an Indictment and an Impeachment variant As to the Objection That there was no Impeachment mentioned before the averrment of quae quidem impetitio was frivolous for it was before mentioned that he was impeached and then by a necessary consequence there was an Impeachment As to the Objection That the King might in which Court he would prosecute for High Treason was little to the purpose for the Case did not come up to it the Impeachment being the Suit of the Commons and not of the King and that the Courts of Westminster-Hall had refused to meddle with Matters relating to the Parliament That tho' the Impeachment was general yet it was made certain by the averment that it was for the same Crime for which the Indictment was That the Attorney General might have taken Issue that there was no such Impeachment as was pleaded or else he might have said that the Impeachment was not for the same Treason for which he was indicted but having demurred he had confessed both to be true that at Common Law if an Appeal of Murder had been brought the King could not proceed on the Indictment till the Appeal was determined That the Judges whereof some were then in Court had given their Opinions to the King and Council concerning the five Popish Lords that they could not be tryed upon Indictments so long as general Impeachments were depending for the same Treason and yet their Cases and this differed there the Indictments were found before the Impeachments preferred and here after the Impeachment In the reply to vitiate the Plea it was insisted That it did not conclude si curia procedere debeat as well as vult as was usual for Pleas of that Nature to do that perhaps this matter if the Prisoner had been acquitted upon the Impeachment might have been pleaded in Bar to the Indictment but it was not pleadable to the jurisdicton of the Court that in the Case of the five Lords the Indictments were removed into the House of Lords that Appeals in Treason are taken away by the first of Henry the 4th that in the Plea it ought to be averred what Lex consuetudo Parl. are that till Articles carried up no man impeach'd is obliged to answer that in all cases of Appeals a man is put twice in jeopardy of his Life if he be tryed upon an Indictment within a Year To take a short review of what hath been recited it was thought the King's Counsel run the Court upon a Rock and it was hard for them to get off The Court had advised them to take time to consider what course they would take but the Kings Counsel were hasty as they always were when they were resolved to carry a matter right or wrong and having three bad ways they chose the worst If they had taken issue on the Record or the Averment that the Impeachment and Indictment were not for the same Treason they might have pretended that the Journal of the House of Lords was not a Record or that the Debates in the House of Commons were not good Evidence or if they had replyed the Order of the House of Lords for Trying the Prisoner in the King's-Bench to the Plea they might have insisted on the power of the House so to do but having demurred they confessed the Truth of all the matter of the Plea and waved the Benefit of that Order and stood upon Points of Law either conceded by the Court or resolved by the Judges before or such necessary inferences from them as was impossible to be denyed It could not be denyed but that a general Impeachment of High Treason by the Custom of Parliament was good it could not be denied but by the Resolution of the Judges in case of the Lords in the Tower a general Impeachment of High Treason stopt proceedings upon an Indictment for the same matter It did not differ the case that the Indictments in the King's-Bench against the Lords were removed into the House of Lords for every one knows new Indictments might have been preferred against them for the same Crimes And if that had been the Reason of the Judges Resolution why did not the Judges then in Court all or most part of which were Judges at the giving that Opinion deny the Opinion or the Reason alledged which they did not It was not a Reason to disallow the Plea because particular Articles use to follow general Impeachments and the impeacht are not bound to answer
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
their Arts in managing the Jury And first there was a great many persons for Jurors to which Mr. Attorney had no Stomach some challenged for Cause for that they were no Fee holders as John Kent Giles Shute Nathaniel Grantham and several others and the Challenge allowed to be a good Challenge by all the Court for tho' the Chief Justice spoke only yet all the Court assent to what one Judge says if they do not shew their dissent I do not take notice of this as complaining of it for I think it is good Cause of Challenge in Treason but then I cannot but wonder at the Assurance of the same King's Counsel who denied it to be a good Cause of Challenge in the Lord Russel's Tryal It is true that was a Tryal in the City but that matter had no consideration in the Judgment for after the Lord Russel's Counsel had been heard all the Judges delivered their Opinions That at Common Law No Freehold was no Challenge in Treason and that the 1st and 2d Philip and Mary had restored the Tryal in Treason to be what it was at Common Law of which number of Judges Sir Francis Pemberton and Sir Thomas Jones were two nay Sir Francis Pemberton asked Mr. Pollexfen Whether he found any Resolution at Common Law that no freehold was a Challenge in Treason And that Judgment is afterwards cited in Collonel Sidneys Tryal fol. 63. as the Opinion of all the Judges of England That no Freehold was no Challenge to a Juror in Treason at Common Law and Col. Sydney's Tryal was in a County at large But if it was not a Challenge at Common Law I would know how it came to be a Challenge in Fitzharris his Case There was no intervening Act of Parliment to alter the Law between the two Tryals that I know of Another art used was to Challenge for the King wihout Cause where no Cause could be shewn such Jurors as they did not like The Prisoner was troubled at this and appeals to the Court whether the Attorney General was not obliged to shew his Cause of Challenge but is answered by the Court that he need not till all the Pannel was gone through or the rest of the Jurors challenged which is true but had the Prisoner been advised to challenge the rest of the Jury as he would have been if he had had Counsel the Attorney must have waved his Challenge or put off the Tryal And since he was not allowed Counsel why should not the Court according to their Duty as they have said it is have advised him so to do I am sure in Count Coningsmark's Tryal when Sir Francis Winington challenged a Juror without Cause for the King the Court presently asked the Cause and such Answers was made by the Prosecutor's Counsel as was made to Fitzharris whereupon the Court told the Count that the way to make them shew their Cause of Challenge was to challenge all the rest of the Jury and thereupon the Challenge was waved They were different Practices tending to different Ends and accordingly it succeeded Fitzharris was Convicted and the Count Acquitted Upon the Tryal the Evidence was this Fitzharris was the 21st day of February 1681. with Everard gave him Heads by word of mouth to write the Pamphlet in the Indictment mentioned to scandalize the King raise Rebellion alienate the Hearts of the People and set them together by the Ears the Libel was to be presented to the French Ambassador's Confessor and he was to present it to the French Embassador and it was to set these people together by the Ears and keep them clashing and mistrusting one another whilst the French should gain Flanders and then they would make no bones of England For which Libel Everard was to have 40 Guineys and a monthly Pension which should be some 1000 of pounds Everard was to be brought into the Cabal where several Protestants and Parliament men came to give an account to the Embassador how things were transacted Everard asked what would be the use of the Libels Fitzharris said we shall disperse them we know how they were to be drawn in the Name of the Nonconformists and to be put and fathered upon them This was the sum of Everard's Evidence Mr. Smith proved Fitzharris his giving instructions to Everard and Sir William Waller and others proved the Libel and the Discourse about gaining Flanders and England other Witnesses were examined to prove Fitzharris's hand for the Prisoner Dr. Oates said Everard told him the Libel was to be printed and to be sent about by the Penny-Post to the Protesting Lords and Leading Men of the House of Commons who were to be taken up as soon as they had it and searched and to have it found about them He said the Court had an hand in it and the King had given Fitzharris Money for it already and would give him more if it had success Mr. Cornish said when he came from Newgate to the King to give him an account in what disposition he found the Prisoner to make a discovery the King said he had had him often before him and his Secretaries and could make nothing of what he did discover that he had for near three Months acquainted the King he was in pursuit of a Plot of a matter that related much to his Person and Government and that in as much as he made protestations of Zeal for his Service he did countenance and give him some Mony that the King said the came to him three Months before he appeared at the Council Table Collonel Mansel said that Sir William Waller gave him an account of the business in the presence of Mr. Hunt and several others and said that when he had acquainted the King with it the King said he had done him the greatest piece of service that ever he had done him in his life and gave him a great many thanks But he was no sooner gone but two Gentlemen told him the King said he had broken all his Measures and the King would have him taken off one way or another and said that the Design was against the Protestant Lords and Protestant Party Mr. Hunt confirmed the same thing and added that he said the design was to contrive those Papers into the hands of the people and make them Evidences of Rebellion and appealed to Sir William Waller who was present whether what he said was not true Mr. Bethel said Everard before he had seen Bethell or heard him speak a word put in an Information of Treason against him at the instigation of Bethel's mortal Enemy which Information was so groundless that tho' it was three years before yet he never heard a word of it till the Friday before Mrs. Wall said Fitzharris had 250 l. 200 l. or 150 l. for bringing the Lord Howard of Escrick she added that Fitzharris was looked upon to be a Roman Catholick and upon that account it was said to be dangerous to let him go near
Libel as ever was writ yet I own if it had been writ and dispersed with that Design it had been High Treason within the Statute of E. 2. But the most natural Construction of the worst Design of it was to trepan the Parliament-men and make the Libels Evidences of a Rebellious Conspiracy this Everard confesses Fitzharris told him was the use to be made of them and Everard could not know the Design of them but by what Fitzharris told him And Oates well explains what Everard meant by the words in his Evidence put the Libel on the Nonconformists by what Everard told him But yet even that though in it self the highest Crime a Man can be guilty of next to putting it in Execution is but a Conspiracy which was mildly punished in Lane and Knox their Case though this exceeded that that being a design only against one Person this against many Yet tho' this was of no higher Crime by the Law as now established than a Misdemeanor it was fit for the Legislative Power to have punished it in manner it was punished which yet the Legislative Power ought to resent as an Injury for an inferior Court 's snatching the Exercise of that Power out of their hands which only belongs to the Supream Authority That this Crime upon construction of the Evidence taken in the best Sense is no Treason though the Libel should in all probability incite the Subject to leavy War which it was not likely to do or in Fact it had been the cause of a Rebellion yet if it was not designed by the Contriver to that purpose it was not Treason by the Statute of Edward the Third or Charles the Second for in the last Statute it is Designing to levy War and in the Statute of Edward the 3d. it is a strained Construction to make designing to leavy War Treason yet none ever pretended to strain the Sense of that Statute farther than designing to do it If the Ill Effects the Libel did or might produce made it Treason then Sir Samuel Astrey who read it in Court at the Tryal and the Printer that afterward printed and published it and Sir William Waller who read it to Mr. Hunt and others were guilty of Treason for the Libel carried no Venom or Charm with it the more for being framed by Fitzharris or Everard or for being published by either of them than if published by another person The difference is Astrey read it aloud as his Duty the Printer printed and published it for gain Sir William Waller published it as a Novelty and if Fitzharris contrived it to put it upon the Nonconformists or Parliament Men and not stir up a Rebellion tho' it tended to all the ill consequences mentioned in his Indictment yet it was not Treason But it will be urged how shall Fitzharris his intention be proved it was a question which made a mighty sputter in arguing the Plea how shall it be proved that the Impeachment was for the same Treason for which the Indictment was but in the Tryal of Fitzharris that question was fully cleared for it was proved there that the very Libel then produced in Court was the same Libel read in the House of Commons upon which the Impeachment was Voted And to say Truth nothing can be put in Issue but is capable of Tryal Quo animo a thing is done in all overt Acts of a design is one of the main questions or to speak in Law Phrase whether done proditoriè or not an Adverb of great use and sense tho' heretofore slighted and under which I believe a great many persons will be enforc'd to shelter themselves from being punished by the Law Established No Man will pretend that Libel did any man Mischief but the Contriver nor in probability could have done if not used to the purpose Everard said to Oates Yet other persons have been guilty of as illegal Acts of worse consequences in prospect and much worse in effect and it did not amount to Treason I dare say the Allegation that they disturbed the Kingdom by their Acts and War caused to be moved against the King is true of them and they are guilty of all the aggravations used in Indictments of Treason To instance in some of many Did it not make a mighty heart-burning in the City against the Government and raised great Jealousies between the King and People when the Sheriffs North and Rich were imposed on the City Did not the taking away the Cities right of Electing Sheriffs and the suspicions for what end it was done besides the Illegalities that followed If Sir Edward Herbert in his late Vindication fol. 16. be Law as it hath an Aspect as if it were that Grand Juries returned by such as are Sheriffs in fact but not in right are illegal and Convictions on their presentments are illegal and void give great disturbance and that Opinion seems to be countenanced by my Lord Coke's 3d. Instit fol. 32. in his Comment on the 11th of Henry the 4th and consequently the Lord Russel's and other Attainders void Did it not add to the heart-burning the punishing those Citizens as Rioters who were at Guildhall innocently contesting their right of Electing Was it not an increase of the mischief the bringing the Quo Warranto against the City whereby the Credit of the City was lost and many Orphans starved and more impoverished beyond the possibility of recovery And it was yet heightned by the Judgment given in the highest Case that ever came into Westminster-Hall by two Judges only and that without one word of Reason given at the pronouncing according to the pattern of Fitzharris his case and was the second mute Judgment Did it not fright all honest men from being on criminal Juries when Willmore was so illegally prosecuted for not giving a Verdict against his Conscience by an homine replegiando and Information And did not that make all Merchants who had Transactions beyond Sea afraid to send their Servants thither for fear they might be laid by the heels till they fetched them back again Did it not startle the Lords and the Leading Men of the House of Commons mentioned so often in Fitzharris his Tryal when the Earl of Essex Lord Russel Collonel Sidney Mr. Hampden and several others were clapt up close Prisoners in the Tower Did it not deter any honest man from appearing to witness the truth when Sir Patience Ward was convicted of Perjury Did it not provoke two great and noble Families when the Lord Russel and Collonel Sidney were so illegally and unhandsomely dealt withal as shall be hereaster declared Did it not provoke all the Nation except the Clergy and Soldiery when all the Charters of England were seized and not regranted but at excessive rates to the starving the poor who should have been fed with the Money which went to purchase the new Charters and reserving the disposition of all the places of profit and power within the new Corporations to the
his Lordship the Court said they knew not what Papers he meant and knew nothing of it he said the Indictment mentioned something of Misdemeanor as well as Treason but he know not how to make his Exceptions without his Papers I have thought fit to mention all these things because this Trial was the inlet to all that followed and gave encouragement to spill nobler Blood the injustice of the violence used to the Prisoner must be measured from the Reasons given for it That the Papers were instructions from Councel and Sollicitors and none in Law was allowed in Treason 'T is true no Counsel are allowed for the Prisoner in a Trial upon an Indictment of any capital matter but in an appeal for capital matters Councel are allowed even on the Tryal The reason given that the Indictment is the Suit of the King and no Councel or Witness is allowable in a capital matter against the King is foolish as shall be hereafter shown and as vain is the reason that the Judges are Councel for the Prisoner which they ought to be but I doubt it will be suspected that in this case and many others they did not make the best of their Clients Case nay generally have betrayed their poor Client to please as they apprehended their better Client the King for so they say They are to be Counsel likewise for the King in Indictments that is to say They are to be indifferent and upright between both so certainly they are to be in Appeals therefore that is not the reason why no Councel is allowed the Prisoner in the Indictment but the true reason in probability is that the Prisoners in Indictments are generally so very poor that they could not be at the charge of having Councel and so non-usage gave colour of a Law. The other reason my Lord Coke gives for it is That much of truth may be discerned by the Prisoners Behaviour or Answers which would be concealed if he spoke by another is not satisfactory for the same is to be said in an Appeal As to the publick it is not material whether a man is prosecuted and punisht by an Indictment or an Appeal and that Appeals are less frequent than Indictments is only that the first is more chargeable than the last for tho we hear not of late of any Appeals but in Murder yet they lie in Robbery Burglary Felony and in all Crimes at Common Law punishable by loss of Life or Member but tho the rule in Indictments is That no Councel is allowed yet it is confined to the Trial no Law Common or Statute nor any Usage says A Prisoner shall not have Councel to advise him before or after the Trial and in Murther and all other Crimes it is always admitted and why not in Treason In Treason says some 't is Criminal for one to advise or sollicite for the Prisoner and the Kings Councel said He had known one Indicted for being a Sollicitor for one in High Treason and says the Court It is Criminal for one to be Sollicitor or Councel in Cases of High Treason unless assigned by the Court and whether it be so or not is worth enquiry First No Law Book as to this matter makes any difference between Treason and other Crimes and advising and solliciting is spoken of in general terms which being reduced to Particulars will shew the absurdity of it Suppose I observing the Indictment on which the Prisoner was arraigned was erroneous and should therefore advise him to move and quash it for that error for say I If you should be tried on this Indictment and found guilty unless you move in Arrest of Judgment you will be attainted and then you can take no advantage of that error and if you be acquitted you may be Indicted again and Tried again because the first Indictment was Erroneous If this be Law as none can deny it is it not lawful to advise him and is it not fit for the Court to quash the Indictment if faulty notwithstanding all the Cant of Dilatories Subterfuges and defending himself by plain matter of fact Or suppose I advise in fact that I hear that such a witness is to come against him I know he is hired to do the Jobb and I will prove it on him if called Or suppose I tell him I know such a witness is convict of Perjury and if he will call me I will produce the Records of his Conviction can any Lawyer say these things are Criminal but if I should advise a Prisoner to escape out of Prison shewing him the way of doing it it is Criminal In all Cases comforting a Traitor is Treason but it is meant where you do it to keep him from Justice for else feeding a Traitor in Prison is Treason which none will affirm So that reducing general words to particular facts clears the Sophistry of them nor is it Criminal to be a Sollicitor in Treason for where there is no positive Law as in this case there is not natural reason must take place and better reason cannot be given than what the Prisoner in this Case gave If a man be coup'd up and not suffered to go about his business himself and no friend must be employed to do it for him how is it possible for him to make his defence I know it is said his Innocence must defend him but the folly of that saying shall be shewn in another place but say they The Court shall assign him a Councel and Sollicitor but when and for what only for a Point of Law. May not a Prisoner want a Sollicitor for a matter of Fact Suppose he had Occasion for a Witness which he could not readily find or occasion for a Copy of Record for want of which Mr. Cornish suffered was it not reasonable for him to have a Sollicitor And when shall the Court assign him a Sollicitor only when the Prisoner comes upon his Trial and then it is too late to have any use of him as Colledge was Arraigned at Twelve and Tryed at Two a Clock the same day and as was Mr. Cornish's Case But say the King's Council They had known one Indicted for High Treason for being a Sollicitor in such a Case though I do not believe it yet that Authority goes no farther to prove the matter than an Indictment I knew against a Person once for stealing an Acre of Land and against another for wickedly and devillishly breaking an Award whereby two injust Arbitrators directed the Prisoner to convey his Land to a certain Lord without any Satisfaction or Recompence proved those Matters to be Felonies But though a Prisoner may be advised yet that Advice must not be reduced to Writing Then suppose one Mans Memory be good and can bear all the Advice given him and another Mans Memory bad and cannot do it Is not the last Hanged for having a bad Memory rather than for his Crime But though it may be reduced to Writing yet it must be his own
in any other Crime for Treason is an Ignis fatuus 't is here and there as Colledge was first in London then in Oxford it is not confined to place or time as all others Crimes are in all other Crimes as Murther Robbery or the like it must be proved to be within the County where laid it must be of the person named in the Indictment which are Evidences of Fact which in some sort prove themselves And there was but one that I remember for Oates I do not count one was ever justly convicted of Perjury in Treason and that too was for want of cunning for he foolishly Swore to time as well as place which a Witness in Mr. Hambden's Trial would never be brought to do Besides Malice and Revenge which in prosecutors and Accusers in Treason are generally the Motives go farther than Money or Kindness which if used in any Case are the Motives of false Witnesses for the Prisoner Now as for the King and for the Truth are the same so for the King and for the Law are the same The Laws are the King 's as he is to see the Execution and Preservation of them so for the King against the Law is a contradiction Therefore to Try a Prisoner upon a vitious Indictment as was done in Colledge's and Collonel Sydney's Cases is against the King as it is against Law for by that means he is in danger to be Hang'd if Convicted or Tryed twice if acquitted which is against Law. It is no Salve of the matter what the Judges said in Colledge's Case that the Evidence of Misdemeanour is no Evidence of Treason for the same may be said in an Indictment of Murder and Robbery nor that the Judges would take care to inform the Jury which was Evidence of Treason which of Misdemeanour which they promised to do but were not as good as their words as shall be shewn for the Court may forget so to do and the Jury may forget what the Court said to them of that matter But notwithstanding all this if the Prisoner was innocent there could be no harm done to him for his Innocence would defend him this was a saying and as mortal it was to Fitz-harris to Colledge to Colonel Sydney to Mr. Cornish and several others as was the Letter Θ amongst the Greeks It is true my Lord Coke used the Expression but in another sence than what of late practised I would fain know what they mean by the Expression is it That no man will or ever did swear falsely against a Prisoner in Treason if that be true how came the same Persons to be so violent agianst Oates for what he swore against Ireland or do they mean that let an accuser swear never so violently and circumstantially against a Prisoner yet if he be innocent it will do him no harm if that be true I would fain know how the Prisoner shall escape is it that his Innocence shall appear in his Forehead or shall an Angel come from Heaven and disprove the Accuser neither of which we have observed though all have said and I believe that some Persons have been very innocently Executed Or shall the Accuser be detected by the bare Questions of the Prisoner that I think will not be neither and therfore to instance in the only person who hath of late escap'd in a Trial of Treason where there was a design against his Life which was my Lord Delumere if he had not had Witnesses to have proved the persons mentioned to have been with him at the place and time sworn against him to be in othe places it was not his denial had served his turn but he would have run the same fate with my Lord Brandon Nay I am apt to think had he been Tried by a Jury of Commoners packed as at that time they usually were he had not escaped The truth is when I consider the practice of late times and the manner of usage of the Prisoners it is so very much like or rather worse than the practice of the Inquisition as I have read it that I sometimes think that it was in order to introduce Popery and make the Inquisition which is the most terrible thing in that Religion and which all Nations dread seem easie in respect of it I will therefore recount some undeniable Circumstances of the late practice A man is by a Messenger without any Indictment precedent which by the Common Law ought to precede or any Accuser or Accusation that he knows of clapt up in close Prison and neither Friend or Relation must come to him he must have neither Pen Ink or Paper or know of what or by whom he is accused he must divine all and provide himself of a Counter-evidence without knowing what the Evidence is against him If any Person advise or sollicite for him unless assigned by the Court by which he is Tried they are punishable he is Tried as soon as he comes into the Court and therefore of a Sollicitor there is no occasion or use if the Prisoner desires Councel upon a Point of Law as was done in my Lord Russell's Trial the Councel named must be ready to argue presently and the Court deliver their Judgment presently without any consideration The Prisoner indeed hath liberty to except to Thirty-five of the Jury peremptorily and as many more as he hath cause to except to but he must not know before hand who the Jury are but te King's Councel must have a Copy of them he must hear all the Witnesses produc'd to prove him Guilty together without answering each as he comes for that is breaking in upon the King's Evidence as it is called Though it hold many hours as it happened in most of the Trials he must not have any person to mind him what hath been sworn against him and forgotten by him to answer for if that were allowed the Prisoner perhaps may escape Hanging and that is against the King there is a Proclamation to call in all Persons to swear against him none is permitted to swear for him all the impertinent Evidence that can be given is permitted against him none for him as many Councel as can be hired is allowed to be against him none for him Let any person consider truly these Circumstances and it is a wonder how any person escapes it is downright tying a man's hands behind him and baiting him to death as in truth was practised in all these Cases The Trial of Ordeal of walking between hot Iron Barrs blindford which was abolished for the unreasonableness of it thought it had its saying for it too That God would lead the blind so as not to be burnt if he were innocent was a much more advantageous Trial for the suspected than what of late was practised where it was ten to one that the accused did not escape if any of these things have been legally practised I have nothing to say against it but I have never read any thing of Common
Act. It hath been said if a Man be bound to his good behaviour and wears a Sword it is a breach of the good behaviour and perhaps heretofore vvhen Swords were not usually vvorn but by Souldiers it might be so because it struck a Terror in other People as much as a Blunder-buss or the like unusual Weapon or the going Armed in a Coat of Mail for any Person but a Souldier doth at this day but no Man will say that now Swords are usually vvorn by all sorts of People that it is a breach of the good behaviour and so that which heretofore vvas a Crime by custom now is become none It is therefore the unusualeness and the unaccountablness of the Circumstance makes it an Evidence which cannot be assigned as a reason in the Overt Act mentioned The last thing I take Notice of it that Coll Sydney refused to ask the Lord Howard any questions from whence was inferred that he assented to the truth of the Matter sworm but it is well known 't is no Prudence to ask a thorow paced Witness a question in Mr. Hampdens Tryal his Council refused so to do for that reason The next who fell a Sacrifice according to Colledge's Prophecy was James Holloway he was Out-lawed and taken beyond Sea and being induced with promised of Life to accuse himself of things whether he was Guilty or not enough to make good an Indictment of High-Treason against him It was indeed Generously offered him that his Out-lawry should be set aside and he should have the liberty to be Tryed and defend himself as well as he could but he knowing what since he was taken he had said which would be brought in Evidence against him refused his Tryal and because he would not Purchase his Pardon at the expence of Innocent Men's Blood by accusing others of what he did not know they were Guilty of if his dying Speech is to believed he was executed I should not mentioned this but for the sake of the next Persons Case which was Sir Thomas Armstrong who was Out-lawed for High Treason when he was beyond Sea he was taken and brough to the Kings-Bench-Bar REMARKS Upon the AWARD OF EXECUTION AGAINST Sir Tho. Armstrong AT Common Law if a Person was beyond Sea when an Out-lawry was pronounced against him it was an Error in Fact for which the Out-lawry was to be reversed and it is an Error in all Out-lawrys but for High-Treason to this day by the 6th of Edward the 6th that Error is taken away in High-Treason but there is a Proviso in that Statute that if the Person Out-lawed shall within a Year after the Out-lawry pronounced yeild himself to the Cheif-Justice of the King Bench and offer to traverse his Indictment and on his Tryal shall be acquitted he shall be discharged of the Out-lawry upon the construction of this Statute no Judgment was ever given that I know of and the reason is no Man Out-lawed was ever denyed a Tryal till this time if he was taken within a competent Time the reason of making that Stature was this Men would commit Treason and presently fly beyond Sea and stay there till the Witnesses who should prove the Treason were dead then return and reverse the Outlawry for the Error of their being beyond Sea and the Witnesses being dead they were safe and therefore this Statute takes away that Error in part tho not in the whole and doth in effect say that the Person Outlawed shall not have advantage of that Error unless he comes and takes his Tryal within a competent time which that Statute limits to be a Year after the Outlawry pronounced This being plainly the Sence of the Statute it was injustice to deny the Favour or â—ight of a Tryal to Sir Thomas Amstrong which vvas never denyed any Person before nor since where it was agreed that all the Witnesses against the Person accused vvas alive as in Sir Tho. Armstrong's Case they vvere barely upon the quibble of the Word render vvhich in no Case that ever I read vvas ever differenc'd from takes but in one Case vvhich is Smith and Ashes Case in Cro. Câ—r 42. In an Outlawry for Debt against Husband and Wife which vvill not extend to or vvarrant the Judgement in this Case and if there vvere but a doubt in the Case as it cannot be denyed but there vvas the Outlawry ought to have been vvaved or at least Council for the Prisoner heard as to the Point It vvas a vain and unjust reason and only tending to incenst the thing assigned by the Attorney That the Prisoner vvas on vvho actually engaged to go upon the King 's hasty coming to Town to destroy him by the vvay whenas the Prisoner offered to prove his innocence in that and other Matters of vvhich he vvas accused and even that object against him vvas an Invention of the Attorneys for any thing appears but then it was resolved to stop as nothing and â—…cess had made shem fearless Fitz-Harris and Colledge 't was owned had hard measure and that their Case might be forgotten their Quarters were buryed but Sir Thomas Armstrong's were exposed tho the Proceedings against him were equally as unjustifiable as in the other two Case REMARKS ON THE TRYAL OF C. Conningsmark I Think fit to remember in the same Reign tho before this time one Case to shew how the Courts of Justice were remiss or voilent according to the subject Matter All will agree that the Murther of Mr. Thynne was one of the most Barbarous and Impudent Murthers that ever was Committed and of that Murther Count Conningsmark tho he escaped Punishment was the most Guilty I do not complain that in that Tryal the Chief Justice directed the Prisoner the way to make the Kings Councel shew the cause of Challenge against the Persons called on the Jury and challenged for the King without Reason it was his Duty so to do and he ought to have directed Fitz-Harris the same Method which he did not but he was blameable that he did not ask the Lieutenant and Polander what they had to say for themselves which was always done before and since that time and ought to be asked of every Prisoner which was an injustice and therefore two of the Prisoners at the time of their Sentences said they were never Tryed tho I believe no great Injury to them because they had little or nothing to have said for themselves But if they had been askt they would have said as they did before their Tryals to the Justice of Peace who Committed them and as they did after their Condemnations that Count Conningsmark put them upon doing what they did which might have influenced the Jury to have found the Count Guilty which was contrary to the Design of the Court and it was for the same Reason the Chief Justice would permit the Justice of Peace to read the Examination of Sterne and Barosk I do agree that what they said before the Justice of
or statute-Statute-Law for it And I can with better assurance say than any person who hath practised these things that no Law in England warrants them and if not then consider the unreasonableness of these Methods There is yet one Objection to be answered which being a very great hardship upon the Prisoner gives somes colour or imposing other hardships upon him to wit That a Witness cannot be examined for the Prisoner on his Oath in a Tryal upon an Indictment of a Capital Matter It is not because the Matter is Capital for then no Witness ought to be examined upon Oath for the Appellee in a capital matter Neither is it because it is against the King for then no Witness ought to be examined on Oath for the Defendant in a Tryal upon an Indictment of any Criminal Matter yet in Indictments of all Criminal Matters not Capital 't is permitted to the Prisoner To say Truth never any reason was yet given for it or I think can be if you believe my Lord Coke 3d Instit fol 79 of which Opinion my Lord Hales is in his Pleas of the Crown that that Practice is not warranted by any Act of Parliament Book Case or antient Record and that there is not so much as scintilla Juris for is for he says when the fault is denied truth cannot appear without Witnesses As for what is pretended that it is swearing against the King and therefore it is not allowed of 't is a Cant Reason which put into sensible English a man will be ashamed to own And as slight is the Reason That it being a matter of so high moment as a man's Life the Prisoner will be the more violent and eager and the Witnesses may be more prevailed upon to swear falsly more than they would be in a matter of less moment The weakness of that reason hath been in part shewn and shall be further shown I think none will deny but the end of all Tryals in any matters Capital Criminal or Civil is the discovery of Truth Next 't is as necessary for the Prisoner to have Witnesses to prove his Innocence as it is for the King to have Witnesses to convict him of the Crime which Proposition is agreed by the Practice it being alwaies permitted that the Prisoner shall produce what Witnesses he can but they are not to be upon Oath In the last place since truth cannot appear but by the confession of the party or testimony of Witnesses of both sides it is necessary to put all the engagement as well on the Witnesses of part of the Prisoner as of part of the King to say the Truth the whole Truth and nothing but the Truth as the Nature of the matter will bear and as yet no better means hath been found out than an Oath Which if denyed to the Prisoner's Witnesses either he is allowed too great an advantage to acquit himself or he is not allowed enough If all that his Witnesses say without Oath shall have equal credit as if they swore it then he hath too much advantage for men may be found which will say falsly what they will not swear as is plain enough How often doth a Defendant say in a Plea at Law that a Deed is not his which yet in an Answer in Chancery he will confess to be his If his Witnesses shall not have Credit because not sworn to what purpose then is it permitted him to produce them If they shall have some Credit but not so much as if sworn I ask how much credit shall be given Is it two three or ten Witnesses without Oath shall be equivalent to One upon Oath And besides that that Question never was or can be answered what credit shall be given them There is an unreasanable disadvantage put on the Prisoner that a Witness produced of his part of equal credit with the Witness against him shall not have equal credit given him because he is not on his Oath whereas he is ready to deliver the same things on his Oath if the Court would administer it to him and yet that difference was taken in Fitzharris his Case as to the Credibility of Everard and Oates the first being upon his Oath the last not But I do not offer this as any Reflection upon the late Proceedings but as a reason why matters in Capital Proceedings ought not to have been carried further than heretofore they were against the Prisoner by example of so unreasonable a practice But to return to the Tryal of Colledge which came on in the Afternoon when the Attorney insisted that the King's Witnesses ought not to be examined out of the hearing of each other in which he was over-ruled but the Rule not observed nor was it material for the King's Counsel having the Prisoners Writings and by them observed how he intended to make the Witnesses against him contradict themselves they did not produce such Witnesses as were not instructed to concur in the Evidence of the same matter but produced only such as were instructed to give Evidence of distinct matters and therefore Dugdale was first produced who gave Evidence of villifying words spoke of the King at several times at Oxford and London by the Prisoner to himself alone that he shewed the Witness several scandalous Libels and Pictures and said he was the Author of them that he had a silk Armor a brace of Horse Pistols and a pocket Pistol and Sword that he said He had several stout men to stand by him and that he would make use of them for the defence of the Protestant Religion he said the King's Party was but an handful to his Party Stevens swore the finding of the Original of the Raree Show in the Prisoners Chambers John Smith swore his speaking scandalous words of the King and of his having Armor and that when he shewed it the Witness he said These are things that will destroy the pitiful Guards of Rowley that he said he expected the King would seize some of the Members of Parliament at Oxford which if done he would be one should seize the King that he said Fitz-Gerald at Oxon kad made his Nose bleed but before long he hoped to see a great deal more blood shed for the Cause that if any nay if Rowley himself came to disarm the City he would be the Death of him Haynes swore he said Unless the King would let the Parliament sit at Oxon they would seise him and bring him to the Block and that he said The City had One thousand five hundred Barrels of Powder and One hundred thousand men ready at an hours Warning Turbervile swore he said at Oxford That he wished the King would begin if he did not they would begin with him and seize him and said he came to Oxford for that prupose Mr. Masters swore That in discourse betwen him and the Prisoner he justified the Proceedings of the Parliament in 1640. at which the Witness wondred and said how could he justifie that