whole Body of Peers of which I have the Honour to be a Member And if my Lords here are satisfied it is not the Right and Priviledge of the Peers I acquiesce Lord H. Steward Pray good my Lord do not think that I should say any such thing that the Priviledge of the Peers is frivolous for you do not hear me say That this is one of their Priviledges As I would not willingly mistake You so I desire your Lordship would not misapprehend or misrepresent Me. I spoke not at all of the Peer's Priviledge but of your Plea I tell your Lordship I think your Plea is not a good Plea to Oust this Court of the Jurisdiction of your Cause But if your Lordship have a mind to have your Councel heard to it in God's Name let them come they shall be heard And when that is done to satisfie you the more I will advise with my Lords the Judges that are there to assist what they take to be the Law in the Case and upon the Whole I will deliver my Judgment as well as I can Lord Delamere I hope your Grace will be pleas'd to advise with my Lords the Peers here present it being upon a Point of Priviledge Lord H. Steward Good my Lord I hope You that are a Prisoner at the Barr are not to give Me direction who I should advise with or how I should demean my self here Lord Delamere I beg your Grace's Pardon I did not intend to give your Grace any Direction Lord H. Steward My Lord I shall take care to perform that Duty that is incumbent upon me and that with all Tenderness to your Lordship And I assure your Lordship I will have as much care that I do not injure You as I will that I do not wrong my own Conscience and I will endeavour to discharge my Duty to both with the utmost Fidelity Lord Delamere I humbly thank your Grace I question it not But if your Grace please Lord H. Steward My Lord You must pardon Me I can enter into no further Interlocutions with your Lordship If your Lordship have any mind to have any Councel heard and your Councel be ready we will hear them Lord Delamere If your Grace require of Me to produce Councel presently and they to argue it immediately I must acquaint your Grace I cannot do it For I have none here Lord H. Steward My Lord I cannot tell how to help it the Plea must then be over-ruled and rejected Clerk of the Crown Henry Baron of Delamere Art thou Guilty of the High-Treason whereof thou standest Indicted and hast been now Arraign'd or Not Guilty Lord Delamere Not Guilty Clerk of the Crown Culprit How wilt thou be Tryed Lord Delamere By God and my Peers Clerk of the Crown God send thee good Deliverance Sergeant at Arms Make Proclamation Sergeant at Law O Yes If any one will give Evidence on behalf of our Soveraign Lord the King against Henry Baron of Delamere the Prisoner at the Barr concerning the High-Treason whereof he stands Indicted let them come forth and they shall be Heard for now he stands at the Barr upon his Deliverance Then his Grace gave the Charge to the Peers Tryers in this manner Lord H. Steward My Lords I know You cannot but well remember what unjust and insolent Attempts were made upon the rightful and unalterable Succession to the Imperial Crown of these Realms under the pretence of That which has been so often found to be the Occasion of Rebellion I mean the specious Pretence of Religion by the fierce froward and Phanatical Zeal of some Members of the House of Commons in the last Parliaments under the late King CHARLES the Scond of ever Blessed Memory Which by the wonderful Providence of Almighty God not prevailing the Chief Contrivers of that horrid Villany consulted together how to gain that Advantage upon the Monarchy by open Force which they could not obtain by a pretended Course of Law And in order thereto it is but too well known how they had several Treasonable Meetings made bold and riotous Progresses into several Parts of the King's Dominions thereby endeavouring to debauch the Minds of the well-meaning though unwary and ignorant Part of the King's Subjects But these their evil Purposes it pleased God also to frustrate by bringing to Light that cursed Conspiracy against the Life of His Sacred Majesty King CHARLES the Second as also against That of our dread Soveraign that now is whom God long preserve These Hellish and damnable Plots one would have thought could not have survived the just Condemnation and Execution of some of the chief Contrivers of them especially considering that after it had pleased Almighty God to take to Himself our late Merciful and dread Soveraign no sooner was His Sacred Majesty that now is Seated in the Royal Throne of His Ancestors but He made it His utmost Endeavours not only to convince the World that He had quite forgot those impudent and abominable Indignities that had been put upon Him only for being the best of Subjects and the best of Brothers but did also give forth the most Benign Assurances imaginable to all his loving People that He would approve Himself to be the best of Kings And further to evince the Reality of these His Gracious and Heroick Resolutions He immediately called a Parliament and therein repeated and solemnly Confirmed His former Royal Declarations of having a particular Care of maintaining our Establish't Laws and Religion With which that Wise Great and Loyal Assembly were so fully and perfectly satisfied that they thought they could not make sufficient Returns of Gratitude for such Gracious and Princely Condescentions And yet my Lords while the King and the Parliament were thus as I may say endeavouring to out-do each other in Expressions of Kindness that wicked and unnatural Rebellion broke out and thereupon the Arch-Traytor Monmouth was by a Bill brought into the Lower-House and Pass'd by the general Consent of Both Houses and I could wish my Lords for the sake of that Noble Lord at the Barr that I could say It had Pass'd with the Consent of every particular Member of each House justly Attainted of High-Treason My Lords What share my Lord at the Barr had in those other Matters I must acquaint You is not within the Compass of this Indictment for which You are to Try him as his Peers For That is for a Treason alledged to have been Committed by him in His Majesty's Reign that now is Give me Leave my Lords to detain You but with a Word or two more on this Occasion and that is To let You know That as my Lord at the Barr may with great Safety and Security to himself rely upon your Lordship's Candor and Integrity that You will be tenderly careful and ready to acquit him of the Treason whereof he is accused if upon the Evidence that shall be given You You shall find him Innocent So I must tell You The King has
a Duty incumbent upon me to pass Sentence on him if you convict him what will become of the Case then and how shall I be able to answer it as having done my duty when I pronounce a Judgment notoriously Erroneous and Illegall for so it will be if the Law prove to be against my adjourning This my Lords is a matter of great moment and worth the Consideration But in the other Case of a Trial in full Parliament the Lord that Sits where I do is only as the Chairman of the Court rather than Judge he gives a Vote in such proceedings and therefore my Lord the Prisoner did very well at the beginning to ask the Question whether I had any Vote in his Tryal as a Peer jointly with your Lordships If I sat in full Parliament I should without all question give my Vote as well as any other Peer but sitting here by immediate Commission from the King pro hac vice High Steward I acquaint you as I did him I have no authority to give any Vote My Business is to see the Law observed and fulfilled as Judge Certainly My Lords your Lordships and I and all mankind ought to be tender of committing any Errors in Cases of Life and Death and I would be loath I will assure you to be recorded for giving an Erroneous Judgment in a Case of Blood and as the first man that should bring in an illegal Precedent the Consequence of which may extend I know not how far M. Att. General Will your Grace give direction for my Lord to proceed L. H. Steward Yes he must proceed I think L. Delamere May it please your Grace and you my Lords it is an offence of a very high Nature for which I am this day to answer before your Lordships yet I thank God I am not afraid to speak in this place because I am not only certain and very well assured of my own Innocency no such thought having as yet entred into my heart but I am also well assured of your Lordships Wisdom and Justice which cannot be imposed upon or surprized by Insinuations and florid Harangues nor governed by any thing but the Justice of the Cause My Lords I can with a great deal of Comfort and Satisfaction say that these Crimes wherewith I am charged are not only Strangers to my Thoughts but also to what has been my constant Principle and Practice For I think that in matters relating to the Church and the things enjoyned therein few have conformed more in Practice then I have done and yet I do confess and am not ashamed to say it that I have always had a Tenderness for all those who could not keep pace with me and Charity for those that have outgone me and differed from me though never so far nay though of a different Religion For I always thought Religion lay more in Charity than Persecution While I had the Honour to be a Magistrate in my Country I did constantly duly and impartially execute the Laws and in every publick trust I was very faithful in the Discharge of it for I never voted nor spoke in any manner but as my Conscience and Judgment did dictate to me I have always made the Laws the measure of my Loyalty and have still been as Zealous and Careful to give the King his Prerogative as to preserve to the people their Properties and have endeavoured as far as in me lay to live peaceably with all men This My Lords was not only the Dictates of my own Inclinations but it was the Principle of my lather and the Lesson that he taught me I say of my Father who was so greatly Instrumental in snatching this Nation out of its Confusion and restoring it to its ancient Government by setling his late Majesty upon his Throne and consequently was the means of his present Majesty that now is his coming so peaceably to the Crown And this I may the more boldly speak because I speak it by good Authority because in the Patent that created my Father a Peer his late Majesty is pleased to say his rising was mainly instrumental in his Restoration I beg the Favour of your Grace and my Lords that I may read to you that Clause in the preamble of the Patent which I have here ready to produce Which was read and then my Lord proceeded as follows viz. My Lords I suppose most of your Lordships did know him and whosoever did so I dare say did believe him to be a good man For my part I did not know a better Copy to write after than his Example which I endeavoured always to imitate and that I hope will go very far to vindicate me from the Imputation of being inclined to any such Crime as I stand charged with My Lords it is now late and therefore I shall cut off a great deal of what I had intended to say to your Lordships that I may not take up too much of your time and come immediately to my Defence as to what I stand accused of And first my Lords I shall observe that here have been a great many Witnesses produced and a great deal of Swearing but little or nothing of Legal Evidence to affect me for there is but one man that saith any thing home and positively against me and whom I shall answer by and by all the rest are but Hear-says and such remote Circumstances as may be tacked to any Evidence against any other person but are urged against me for want of greater matters to charge me with and therefore I hope the producing and pressing of these things against me is rather a strong Argument that I am Innocent and that there have been mischievous and ill designs of some against me than that I am guilty for if they had had other and greater matters your Lordships would have been sure to have heard of them With your Lordships leave I cannot but observe to your Lordships an excellent saying of that great man my Lord of Nottingham whose Name will ever be remembred with Honour in our English Nation when he sate in the same place that your Grace does now at the Tryal of my Lord Cornwallis which I will read to your Lordships Speaking to the Peers he has this passage I know your Lordships will weigh the Fact with all its circumstances from which it is to receive its true and its proper Doom Your Lordships are too just to let Pity make any abatement for the Crime and too wise to suffer Rhetorick to make any Improvement of it This only will be necessary to be observed by all your Lordships that the fowler the Crime is the clearer and plainer ought the Proof of it to be there is no other good Reason can be given why the Law refuseth to allow the Prisoner at the Bar Counsel in matter of Fact when Life is concerned but only this because the Evidence by which he is condemned ought to be so very evident and so plain that
according to the Methods of Law which must be observed in your Case as well as all others You must plead to the Indictment before you be heard to any thing else L. Delamere May it please your Grace I have something to offer to your Grace's and their Lordships consideration which is a matter of Law L. H. Steward I know not what matter of Law you have to offer If you have a mind to demur to the Indictment you may L. Delamere Will your Grace please to hear what I have to say and then I shall submit it to your Grace's Judgment L. H. Steward I would hear what you have to say my Lord with all my heart if I could But I must then pass by all the Forms and usual Methods of proceeding and that without any advantage to you too and that I suppose your Lordship will not desire of me Ask my Lord Whether he be guilty or not guilty Cl. of Cr. How sayst thou Henry Baron of Delamere Art thou guilty of this High Treason whereof thou hast been indicted or not guilty L. Delamere I beseech your Grace to hear me what I have to say I shall not detain your Grace very long but I beg your Grace to hear me L. H. Steward My Lord Delamere I must keep you to the known Rules and Methods of Law This is not your time to speak but to plead in your proper time you shall be fully heard whatsoever you have to say L. Delamere If your Grace please I have something to say which concerns all the Peers of England in point of Right L. H. Steward My Lord you must either plead or demur to this Indictment that is the usual Practice before any thing else can be done L. Delamere My Lord I have a Plea to offer to your Grace and my Lords and it is with reference to the Priviledg and Right of the Peers of England L. H. Steward If you have any Plea to offer it must be received my Lord. L. Delamere My Lord amidst the hardships I have lain under by my frequent Imprisonments and close Confinement L. H. Steward My Lord Delamere You must keep up to the Legal Method of Proceedings In Cases of this nature I would as far is possible for me to do indulge a Person of your Quality and in your condition but withal I must do right to the Court and not permit any Breach to be made upon the Legal Course of Proceedings You must plead or demurr to the Indictment before you are heard to say any thing L. Delamere Will your Grace be pleased to hear me tell you my Reasons why I offer you a Plea of this nature to the Indictment L. H. Steward My Lord if you have any Plea put it in L. Delamere Will your Grace be pleas'd to accept it as I have done it It may be it is not so formal because I have had no Councel allowed me to peruse and sign it But as it is I here offer it to your Grace's consideration L. H. Steward Ay put it in Then it was delivered to the Clerk L. H. Steward Read it Cl. of Cr. The humble Plea of Henry Lord Delamere to the Indictment of High Treason against him now to be tryed by the Lord High Steward and Peers here assembled THE said Lord Delamere saving to himself all benefit of Advantage of any further or other matter of exception to the Generality Incertainty or Insufficiency of the said Indictment and all matters and things which do or may concern the same for Plea hereunto saith That he was by his Majesty's Writ Summoned to this present Parliament which began the Nineteenth Day of May last and attended his Duty there as a Peer of this Realm That for High Treason supposed to be committed by him during the Sitting of the same Parliament he was the Twenty sixth Day of July last committed by Warrant of the Earl of Sunderland one of his Majesty's Principal Secretaries of State to the Tower of London That the Peers in Parliament assembled taking Notice by his Petition of the Ninth of November last of his being absent from his Attendance in Parliament sent a Message to his Majesty to know the reason why he the said Henry Lord Delamere a Peer of that House was absent from his Attendance there Upon the Tenth Day of November last the Lord Treasurer reported his Majesty's Answer to the said Message viz. That the said Lord Delamere was absent from his Attendance in Parliament because he stood committed for High Treason for levying War against the King this last Summer testifyed upon Oath and that his Majesty had given directions that he should be proceeded against with all speed according to Law The House of Peers not being satisfied with this Answer the Debate thereof was adjourn'd till the Monday morning following On which Day the Lords resuming the Debate concerning the Lord Delamere and the King's Message after some Debate the Lord Chancellour by his Majesty's Command gave the House an account what Proceedings had been against the Lord Delamere since his Majesty's Answer to their Address concerning his absence from the House which was to this Effect That the King had given Order for a speedy Prosecution of him That the Treason whereof he was accused was committed in Cheshire and that being a County Palatine the Prosecution ought to be there and not in the King's Bench as it might be if the Treason had been committed in another County and that therefore his Majesty had given Order for a Commission of Oyer and Terminer into Cheshire in order to the finding of an Indictment against him for the said Treason And that accordingly a Commission of Oyer and Terminer was already sealed and if the Indictment be not found before the end of the Term the said Lord Delamere's Prayer being entred in the Kings's Bench he should be Bailed All which Proceedings do more fully appear in the Journals of the said House of Peers to which the said Henry Lord Delamere doth refer himself Afterwards that is to say upon the 〈◊〉 Day of 〈◊〉 the said Parliament was Prorogued by his Majesty unto the Tenth Day of February next as by the said Journals it doth also appear Upon all which Matters the said Henry Lord Delamere doth humbly tender this his Plea to the Jurisdiction of your Lordships in this Cause and doth humbly conceive your Lordships ought not to proceed in the Tryal of him upon the Indictment of High Treason now before you And that for these following Reasons First Inasmuch as it appears by the said Petition of the said Henry Lord Delamere and the several Orders of the Lords and the King's Answers to the Message of the Lords thereupon That the said House are already possessed of his said Cause which is for the same supposed Treason for which he was at first committed and which is the same Treason for which he now stands indicted before your Lordships And for this Reason your Lordships as
he humbly conceives by the Law and Custom of Parliament which is part of the Law and Custom of the Land ought not to proceed against him upon the said Indictment but his said Cause ought wholly to be determined and adjudged in the said House of Peers and not elsewhere as in like Cases has been formerly done Secondly Whereas it is the Right and Privilege of the Peerage of this Realm That no Peer thereof ought to be tryed or proceeded against for High Treason during the continuance of the Parliament except in the said House of Peers and before the whole Body of the Peers there And whereas the aforesaid Parliament is now continuing by Prorogation until the tenth day of February next abovesaid the said Henry Lord Delamere humbly conceives that by the Law and Custom of Parliament hitherto used which is part of the Law and Custom of the Realm he ought not nor can be tryed before your Lordships for the said Treasons because the said Parliament is still continuing and not dissolved And lastly The said Henry Lord Delamere doth further say That he is the same Henry Lord Delamere mentioned in the Commitment Petitions Messages Answers and Indictment now read unto him and the said Treason for which he was committed is the same Treason mentioned in the Commitment Petition Messages Answers and Indictment as aforesaid To which said Indictment he humbly conceives he is not bound by Law to make any further or other Answer L. Delamere May it please your Grace and you my Noble Lords I do not offer this Plea out of any diffidence or distrust in my Cause nor out of any dislike I have to any of your Lordships that are here Summoned to be my Tryers I cannot hope to stand before any more just and Noble nor can I wish to stand before any others but your Grace and my Lords will pardon me if I insist upon it because I apprehend it a Right and Priviledge doe to all the Peerage of England which as it is against the Duty of every Peer to betray or forgoe so it is not in the power of any One or more to wave it or give it up without the consent of the whole Body of the Peers every one of them being equally interested This my Lord I humbly demand as my Right and Priviledge as a Peer of England and submit to the direction of your Grace and my Noble Lords L. H. Steward What say you to it Mr. Attorney Mr. Attor General May it please your Grace This Plea that is here offered by this Noble Lord is a Plea to the Jurisdiction but with submission it needs very little answer for it has very little in it The Force of the Plea is That he ought to be tryed by the whole Body of the House of Peers in Parliament because the Parliament is still continuing being under a Prorogation and not dissolved and because there was some agitation of the matter concerning this Prosecution upon his Petition in the House of Lords and therefore it concludes That he ought not to be tryed by your Grace and these Noble Lords upon this Commission but by all the Lords in Parliament With submission my Lord This is contrary to all the antient Precedents and against the known Rules of Law for the Law is If the King pleases to try a Peer in Parliament then the Record may be brought into the House and there they proceed as in other Cases and all the Peers are Judges Thus it is in the time of a Session of Parliament but if the Parliament be prorogued there are many instances and indeed none to the contrary that after a Prorogation the Proceedings are before the High Steward by Commission And as to the other part of the Case I have this to say to it That there is nothing at all depending in the House of Lords that can oust this Court of the Jurisdiction for there was not so much as any Indictment returned there no nor so much as found during the Session of Parliament All the agitation was only upon my Lords Petition and the King's Answer that he intended as speedy a Prosecution as could be Besides my Lord your Grace sees it is a Plea in paper and in English without any Councels hand and therefore I hope your Grace does not expect that I should formally demur to a Plea in this form and that contains no more of Substance in it But I must desire your Grace to over-rule it and that the Prisoner may plead in chief L. Delamere My Lord I humbly pray that I may have Councel assigned me to put my Plea into Form and to argue the matter of it L. H. Steward My Lord Delamere I am sure I ought and ever shall be as tender of the Priviledges of the Peers of England as any other Person whatsoever For I am concerned as well in interest as inclination so to be having the honour to be one my self But I know your Lordship will not think the Priviledge of the Peers is concerned in this matter nor will your Lordship I dare say insist upon matters that are purely dilatory if your Lordship be satisfied that they are so And therefore give me leave my Lord to mind you of a few things whereby your Lordship will easily see That the chief things on which you insist are grounded upon mistakes First You say The House of Peers was possessed of the Cause which could not be and I will tell you why Because there was no Indictment ever removed thither or lodged there Which plainly proves that the Lords were never possessed of the Cause Nor indeed was the Bill found upon which you are now arraigned till after the Prorogation of the Parliament So that they could never come to be possessed of this matter These are mistakes in Point of Fact and your Lordship cannot but well know them to be so And there is as great a mistake in the Law That during the continuance of a Parliament though it were prorogued yet if not dissolved a Peer cannot be tryed but by the House of Lords This certainly is a very strange Doctrine and is not only against the reason and methods of Law but contrary even to your Lordships own experience For your Lordship cannot but very well remember that during the continuance of the Parliament after a Prorogation the Lord Cornwallis was tryed before the High Steward and such a number of Peers as were then summoned upon such a Commission as I now sit here by But indeed during the Sitting of the Parliament then all the Peers are both Tryers and Judges as was in the Cases of my Lord Stafford and my Lord of Pembroke they being a Court of Judicature then actually sitting and therefore this Plea is grounded as upon mistake in Fact so upon a mistake in point of Law So that though as I said at first it is both my duty and interest to preserve the priviledges of the Peers yet I must take
care that no injury be done to the Law and truly I take this Plea to be altogether dilatory and I suppose your Lordship is satisfied of it and will not insist upon it L. Delamere If your Grace please It was alledged and agreed in the Case of my Lord of Bristol that the Cause of a Peer in time of Parliament properly belong'd only to the House of Lords And that which possessed the House of Lords of his Case was as I apprehend no more than is in my Case a petition upon the account of being absent and there the Lords claim the cognizance of the whole Cause and nothing was done but in the House of Lords And as to the Instances your Grace has mentioned of my Lord Cornwallis and there was another of them my Lord Morley this Question was never under Debate in those Cases therefore I suppose they cannot be admitted as Precedents L. H. Steward But my Lord it would have been an Errour in the whole Proceedings if this Court had not Jurisdiction And sure the Judges who are always called to assist in such Cases and who in matters of life even in the Cases of common persons are so tender and careful that there be no irregularity in the Proceedings would not have let things pass in that manner had they been erroneous L. Delamere My Lord I think no other Precedents are produced but those two and there the Question was never debated L. H. Steward I only put you in mind of those that were lately within memory but no question of it there are a great many more Instances to be given Mr. Attor Gen. I pray your Grace's Judgment to over-rule the Plea and that my Lord may plead in chief L. Delamere I hope your Grace will be pleased to assign me Councel to put my Plea in Form and that I may have time for it that they may be heard to make a solemn Argument in Law L. H. Steward My Lord if you insist upon it and think it worth the while to have Councel heard we will hear them L. Delamere I submit it to your Grace I only offer it that I may not be wanting to the support of the Peers Priviledges I assure your Grace I speak not to put off the Cause for I am willing to come to my Tryal and I have reason so to be for I question not but to make my innocence appear L. H. Steward My Lord I tell you what my opinion of the Plea is but if you insist upon it to have your Councel heard I will hear them L. Delamere I have no Councel here if your Grace please to give me time to send for them and that they may prepare to argue it Mr. Attor Gen. No my Lord If your Grace will hear Councel I for the King must pray that it may be done presently for a Plea to the Jurisdiction is never favoured nor is the party to be allowed time to maintain it but he must be ready at the time it is offered L. Delamere Pray My Lord how was it done in the Case of Fitz-Harris his Plea was a Plea to the Jurisdiction and he had four days allowed him to put his Plea in form and to instruct his Councel L. H. Steward I am not able at present to remember what was done in such or such a particular Case But according to the general method and course of Law the Plea to the Jurisdiction is not favoured nor time allowed to it but the party must be ready to maintain it presently Mr. Attorn Gen. But with Submission my Lord That Case of Fitz Harris is nothing to this Noble Lord's Case neither There was a formal Plea put in in Writing and drawn up in Latine and a formal Demurrer joined and thereupon I did take time to speak to it But with your Grace's favour by the Law the Prisoner must be always ready to make good his Plea if he will oust the Court of their Jurisdiction L. H. Steward Mr. Attorney If my Lord Delamere does insist upon having his Councel heard it is not fit for me to refuse hearing what they can say Mr. Attor Gen. But that must be presently then My Lord. L. Delamere It is my Duty my Lord to submit to what your Grace and my noble Lords shall determine I would insist upon nothing that should offend your Grace or them Mr. Att. Gen. If your Grace pleases You are the only Judge in this Case in Matters of Law For these Noble Lords the Peers are only Tryers of the Fact Therefore I appeal to your Grace's Judgment and pray for the King that this Plea may be over-ruled it being vitious and naught both in Form and Substance Lord H. Steward My Lord Delamere I must acquaint you That according to the Constitution of this Court Matters of Law are determined by Me as the sole Judge while I have the Honour to act under this Commission But if your Lordship insist upon it to have your Councel heard God forbid that I should deny it You. I will hear what your Councel will say and afterwards I will according to the best of my Understanding deliver my Judgment Lord Delamere My Lord I have never had any Councel assigned me Lord H. Steward My Lord If You have any Councel ready we will Hear them Lord Delamere If your Grace please to assign me Councel and give me Time to send for them and them Time to prepare I will obey your Grace's Directions but I could have none here ready because none were assigned me Lord H. Steward My Lord You cannot by the Course of Law have Councel allowed You in the Case of a Capital Crime till such time as the Court where You are called to Answer is apprized that there is some Matter of Law in your Case that may need Councel to be heard to Inform their Judgment and which they may think convenient to hear Councel to For if in case any Prisoner at the Barr shall before-hand be allowed to have Councel to start frivolous Objections such as this and we all know that there are some who will be easily prevailed with to endeavour to pick Holes where there are none and to offer Matters foreign from the things whereof the Party stands accused and upon the Prisoner's bare Request Councel must be heard to every trivial Point the Courts of Law would never be at an end in any Tryal but some dilatory Matter or other would be found to retard the Proceedings But it does not consist with the Grandeur of the Court nor your Lordship's Interest to let such a frivolous Plea interrupt your Lordship's Tryal However if your Lordship has Councel ready I will not refuse to hear them Lord Delamere My Lord I hope the Priviledge of the Peers of England is not frivolous I assure your Grace I do not offer this Matter as if I thought it more conducing to my Interest than my Tryal now No my Lord it is not for my self but for the
I humbly thank your Grace I desire to know of him who let him into the house Saxon. The man that came with me went with me just to the Door and let me in within the Door and I saw no other man but that man till I came into the Room where my Lord and those two Gentlemen were L. Delamere Was there no body else but we there Saxon. No you were so wise you would let no body be by L. Delamere My Lord I shall trouble this Witness no farther at present L. H. Steward Then Mr. Attorney General will you proceed Mr. Att. General My Lord we shall give no more Evidence at present but shall rest it here till we see what Defence this Noble Lord will make for himself L. H. Steward Then my Lord Delamere your time is now come to make your Defence you have heard what has been Evidenced against you and my Lords now expect to hear what you have to say for your self L. Delamere May it please your Grace a great part of the Day is spent and I would beg the Favour of your Grace that I may have the favour till to morrow morning to review the Notes I have taken and then I shall make my Defence L. H. Steward My Lord Delamere I had this very thing in my thoughts before I came hither this Day because I did foresee that this was likely to be a long Cause and the proceeding in it would take up much time I have a little doubt I must needs say in my own mind whether it may be done by Law I know very well if this were a Trial in full Parliament there have been Precedents to warrant the Adjournment till another Day though it be in the midst of a Trial and in the middle of the Evidence But this Court I take to be of the same nature though of a degree higher with the other ordinary Courts of Judicature and whether it be not obliged and tied up to the same Method of Proceeding with those other Courts where all Capital Offences are tried is a thing I am in some doubt about In those Courts it has not been usual to Adjourn the Court after Evidence given nay it has been sometimes a Question whether the Judges in those Courts after the Jury are gone from the Barr to consider of their Verdict could Adjourn themselves I say the Judges have sometimes made a Doubt of it though I know the Point is now settled and the Practice is that they may and do But this is most certain after the Evidence given the Jury cannot be Adjourned but must proceed in their Enquiry and be kept together till they are agreed of their Verdict this has caused some Hesitancy in me what the Law may be in this Case therefore I think it may be proper to consult with my Lords the Judges for I desire the thing may be considered and settled L. Delamere My Lord I humbly beg this Favour of your Grace but to Adjourn till to morrow L. H. Steward With all my heart my Lord if it may be done by Law L. Delamere I hope it may my Lord and I beg that Favour of your Grace L. H. Steward My Lord I should be very glad to comply with your Lordship's desires but truly I have considered of it and do doubt whether I can by Law do it In full Parliament it is clear it may be done but upon this Commission after my Lords the Peers are once charged and the Evidence partly given whether I can then Adjourn them till another Day is with me a Doubt My Lords if your Lordships please before such time as my Lord the Prisoner at the Barr enters upon his Defence I will with your leave propound the Question to my Lords the Judges and hear their Opinion what the Law is L. Delamere My Lord I shall hardly be able to finish all I have to say in any convenient time this Day L. H. Steward But my Lord if an Adjournment cannot be by Law I cannot help it L. Delamere There has a great deal been said and it will require a great deal of time to give it an Answer L. H. Steward Ay but if it cannot be done as you would have it we must be contented to stay the longer together for I would not abridge you of your Defence therefore my Lords the Judges if you will please to go together and consider of it and report your Opinions what the Law is in this Case and we will stay till you come again Then the Judges withdrew into the Exchequer Chamber E. Nottingham My Lord High Steward I do humbly conceive this is a Matter that concerns the Priviledge of the Peers and because it is a Matter that doth so much concern the whole Peerage I think my Lords here ought in some measure to concern them selves about it Therefore my Lord I have a short Motion to make to your Grace that considering the Consequence that the Precedent of this Case may draw with it since my Lords the Judges are gone together to consult of this Point of which I may say they are not altogether the sole Judges We may also withdraw to consider of this Matter with them because it may not be proper for my Lords in Publick here to offer what they may have to say to incline my Lords the Judges in their Judgments one way or other L. Falconberge My Lord I humbly offer this to your Grace upon the Motion that this Noble Lord has made that with Submission I take this to be a thing that concerns the Priviledge of Peerage only and I conceive the Judges are not concerned to make any Determination of that Matter I think therefore my Lords here ought to retire with them to consider of it L. H. Steward My Lords I think with Submission to your Lordships that this is a Question naturally proper for my Lords the Judges to give their Opinions in whether this Court as a Court of Judicature for the Trial of this Noble Lord may in the midst of the Tryal adjourn till another day And the priviledge of the Peerage cannot at all come in question here as I conceive L. Falconberg My Lord that we conceive is a point of priviledge which certainly the inferior Courts can have no power to determine L. H. Steward If your Lordships have a mind to withdraw you may Lords Ay withdraw withdraw Then the Peers withdrew and after half an hour the Judges returned and took their places as before and after about an hour the Peers returned to their former places L. H. Steward My Lords the Judges have you considered of the Matter that has been proposed to you and what is your Opinion L. C. J. Herbert May it please your Grace the Judges in obedience to your Graces Commands have withdrawn and considered of what your Grace proposed to them and with humble Submission they take the Question to be this Not whether your Grace may Adjourn your Commission from
one day to another for that is clear you may and has been practised for that is the Case of the Earl of Somerset and his Wife But the Question is Whether after the Prisoner is upon his Tryall and the Evidence for the King is given the Lords being as we may term it Charged with the Prisoner the Peers Tryers may separate for a time which is the consequent of an Adjournment to another day And my Lord the Judges presume to acquaint your Grace that this is a matter wholly new to them and that they know not upon recollection of all that they can remember to have read that either this matter was done or questioned whether it might or might not be done in any Case My Lord If the matter had been formerly done or been brought into question in any Case where it had received a determination and reported in any of our Books of Law then it would have been our duty to contribute all our Reading and Experience for the satisfaction of this great Court But being as it is a new question and a question that not only concerns the particular Case of this Noble Lord at the Barr but is to be a president in all Cases of the like nature for the future All we can do is to acquaint your Grace and my Noble Lords what the Law is in the inferiour Courts in Cases of the like nature and the Reason of the Law in those points and then leave the Jurisdiction of this Court to its proper Judgment My Lord in the first place where the Tryal is by a Jury there the Law is clear the Jury once charged can never be discharged till they have given their Verdict this is clear and the reason of that is for fear of Corruption and tampering with the Jury an Officer is sworn to keep the Jury together without permitting them to separate or any one to converse with them for no man knows what may happen for though the Law requires honest men should be returned upon Juryes and without a known Objection are presumed to be probi legales homines yet they are weak men and perhaps may be wrought upon by undue Applications This My Lord it is said fails in this Case because the Lords that are to try a Peer are Persons of that great Integrity and Honour that there is not the least presumption of their being to be prevailed upon in any such way and for that reason because of the confidence which the Law reposes and justly in Persons of their Quality they are not sworn as common ordinary Jurors are but are charged and deliver their Verdict upon Honour My Lord in the Case of a Tryal of a Peer in Parliament as your Grace was pleased to observe and as is very well known by late Experience there the matter has been Adjourned till another day and for divers days the Evidence being given in several Parcells and yet there the danger is as great if any were to be supposed of tampering But whether the Lords being Judges in that Case and in this Case only in the nature of a Jury makes the difference though in both Cases it is but like a Verdict for they give their Opinions Seriatim whether the Peer tryed be Guilty or not Guilty that they submit to your Graces consideration Upon the whole matter My Lord whether their being Judges in the one and not in the other instance alters the Case or whether the Reason of Law in inferiour Courts why the Jury are not permitted to seperate till they have discharged themselves by their Verdict may have any influence upon this Case where that reason seems to fail the Prisoner being to be tryed by his Peers that are men of unquestionable unsuspected Integrity and Honour we can't presume so far as to make any Determination in a point that is both new to us and of great Consequence in it self but think it the properest way for us having laid matters as we conceive them before your Grace and my Lords to submit the Jurisdiction of your own Court to your own determination L. H. Steward My Lords I confess I would always be very tender of the Priviledge of the Peers wherever I find them concerned but truly I apprehend according to the best of my understanding that this Court is held before me It is my Warrant that convenes the Prisoner to this Barr. It is my Summons that brings the Peers together to try him and so I take my self to be Judge of the Court. My Lords 't is true may withdraw and they may call the Judges to them to assist them which shews they have an extraordinary Priviledge in some Cases more before the High Steward than Juries have in inferior Courts in Cases of common Persons For if it be in a common Case no Jury can call either Counsell or Judges to assist them in the absence of the Prisoner but if they will have advice it must be asked in open Court in the presence of the party accused But now My Lords if you have a mind to consult with me in private as I now sit by Virtue of this Commission which is his Majesties Warrant for me to hold this Court I could not withdraw with you but you must ask all your questions of me in the presence of the Prisoner in open Court whereas if it were in full Parliament as were the Cases of my Lord Stafford and my Lord of Pembroke then he that were the High Steward might go along with you when you withdrew and consult with you and give his Opinion which I cannot do in this Case for I am bound to sit in Court while you withdraw to consider of the Evidence and am not to hear any thing said to me but what is said in open Court in the presence of the Prisoner except it be when you deliver your Verdict This I confess my Lords has a great weight with me and I know your Lordships will be very tender of proceeding in such a Case any way but according to Law For though you are Judges of your own Priviledges yet with Submission you are not Judges of the Law of this Court for that I take to be my Province Why then Suppose my Lords I should take upon me to do as my Lord Delamere desires and adjourn the Court and suppose the Law should fall out to be that indeed I ought not so to have done would it be any advantage to this Noble Peer if he should be acquitted by your Lorships after such an Adjournment might not the evil consequence of that be that he might be Indicted for the same crime and tryed again For all the Proceedings after that would be Void and lyable to be reversed And if on the other side your Lordships should think fit upon the Evidence you have now heard and what he shall say for himself to convict him after I have adjourned as is desired and I pass Judgment upon him as it will be
at such a time and that he was sent for and entertain'd as a Person recommended by my Lord Brandon as fit to be intrusted with the Secret and capable of being imployed to stir up the Country in order to the prosecution of a Design they had on foot to raise a Rebellion and he does Charge Sir Robert Cotton and Mr. Crew Offley to have been there at the same time The Evidence My Lords that has been produced to falsifie this positive Witness in the point of Sir Robert Cotton's being there has been by Five or Six Witnesses who testifie Sir Robert Cotton's being in Town and not elsewhere from the 10th of April to the latter end of July and I do not see what we have to say in answer to their Testimony I must agree the Proof to be full in that Point and if the Evidence they give be true I cannot say that Saxon's Evividence can be true in that Point Likewise as to Mr. Offley Sir Willoughby Aston and others have testified that he was not at my Lord Delamere's at the time Saxon speaks of For he gives you an account where he was every day from the 26th of May to the 4th of June and his own Servants bring him to his own House upon the 4th of June in the Evening which is quite another way than from Sir Willoughby Aston's to my Lord Delamere's If this likewise be true what Saxons says cannot be true I must agree it There is another thing that is offered on my Lord Delamere's part That he was himself in Town at that time that Saxon sayes he was at Mere But here indeed the matter seems to be a little more strange and dubious that my Lord should make so much hast down as to go out late at Night and so cautiously as to go by a wrong Name and yet to ride to Town again the Post-way to be here just the 3d of June when Saxon swears he was in Cheshire I must confess there is the Proof of his two Brothers that say They saw him in Town the 3 d and 4 th of June There is likewise some account given of his going out of Town that it was upon a Message received from his Mother that his Child in the Countrey was sick and indeed he did go a By-way and change his name for fear of a Warrant in a Messengers hands that was out against him to apprehend him Now My Lords I do not hear any thing that has been offered that there was any such Warrant or any discourse to ground that apprehension upon My Lord had the first and only apprehension of a Warrant but upon what Reasons he himself best knows This apprehension made him go out of Town so privately he sayes because he would not be prevented of seeing his sick Child But how comes it to pass that my Lord makes such a speedy Return By the Proofs it appears he did not get there till Sunday Night and upon the Tuesday Morning comes Post for London The account that he gives of that is this His hast was to see another Child that was here sick in Town For he had received an express from his Wife upon the Monday to acquaint him that the Coast was clear and there was no Warrant out against him but if he intended to see his Child alive he must make hast up to Town and accordingly upon the Tuesday morning early he sets out and upon the Wednesday in the Evening is here in Town again But with submission My Lords there is no good Account given by this noble Lord what reason there was for so many Post-Journeys backward and forward as had been testified he to have made within a very little compass of time for besides this of his return Post upon the 2 d of June there is only an Answer given to one of the rest which is That of the 5 th of May when he saith he went to take possession of the Land that he held by a Lease then renewed to him by the Bishop which being of some Value and Consideration to his Lordship and the Bishop being sick he thought it necessary to go down Post himself and would not be content to receive Livery by Attornment This is the only answer that is given to all those times of his riding Post that have been given in Evidence These are matters of Suspicion that are offered to your Lordships but I confess matters of Suspicion only unless clear positive probable Proof be joyned with them will not weigh with your Lordships to convict a man of High-Treason where two Witnesses are required But whether these matters of Suspicion be such violent and necessary Presumptions as tend to fortifie the positive Testimony I must leave that to the Consideration of your Lordships Lord High Steward You do not call any more Witnesses then I perceive Mr. Soll. General No My Lord. Lord High Steward My Lords it has not been usual of late for those who have sate in the place where I now am upon those Occasions to give you Lordships any trouble in repeating or observing upon the Evidence In this Case the Evidence that hath been given has been very long and it would be too great a Presumption in me should I have any manner of doubt in the least that either your Lordships have not well observed it or the Learned Counsel for the King have been defective in collecting or remarking upon it so as to need my Assistance But my Lords I confess there is something I cannot omit taking notice of not for your Lordships sakes but for the sake of this numerous and great Auditory that one mistake in point of Law might not go unrectified which seemed to be urged with some earnestness by the Noble Lord at the Barr That there is a necessity in point of Law that there should be two Positive Witnesses to convict a man of Treason He seemed to lay a great stress upon that but certainly his Lordship is under a great mistake as to the Law in that Point for without all doubt what was urged in answer to this Objection by that Learned Gentleman that concluded for the King is true There may be such other substantial Circumstances joyned to one Positive Testimony that by the Opinion of all the Judges of England several times has been adjudged and held to be a sufficient Proof As for the purpose in this Case suppose your Lordships upon the Evidence that has been given here this day should believe Saxon swears true who is a Positive Witness and shall then likewise believe that there was that Circumstance of Jones's coming over from Holland with such a Message upon the 27 th of May which is directly sworn in Evidence you are the Judges of that Evidence and what the other Witnesses have sworn likewise and is not denied by my Lord the Prisoner at the Barr that he went out of Town that Night changed his Name and went an indirect By-Road certainly these
gathered up agen and therefore unless the Case be very clear against me you I am sure will not hazard the shedding of my blood upon a doubtful Evidence God Almighty is a God of Mercy and Equity Our Law the Law of England is a Law of Equity and Mercy and both God and the Law require from your Lordships Tenderness in all Cases of Life and Death and if it should be indifferent or but doubtful to your Lordships which upon the Proofes that I have made I cannot believe it can be whether I am innocent or guilty both God and the Law require you to acquit me My Lords I leave my Self my Cause and all the Consequences of it with your Lordships And I pray the All-Wise the Almighty God direct you in your Determination Lord High Steward Have you any thing more to say My Lord Lord Delamere No My Lord. Lord High Steward Then Mr. Attorney and you that are of the Kings Counsel What have you to say more Mr. Soll. General May it please your Grace and you my Noble Lords the Peers of my Lord Delamere the Prisoner at the Barr. The Evidence that hath been given against this Noble Lord is of two Natures part of it is positive Proof and part is circumstantial and though it be allowed that there must be two Witnesses in Cases of Treason and that Circumstances tho never so strong and sufficient to fortify one positive Proof do not nor can make a second positive Witness Yet I crave leave to say that there may be Circumstances so strong and cogent so violent and necessary to fortify a positive Testimony that will in Law amount to make a second Witness such as the Law requires My Lords I do not say every Circumstance will do it but such as necessarily and violently tending to the same thing that was positively proved As for Example If a man comes and Swears against another that he said he will go immediately and kill the King and another man that did not hear those words comes and testifies his Lying in wait that circumstance of Lying in wait that was an action indifferent in it self yet when applyed to the positive Proof will be a second witness to satisfie the Law which requires two witnesses in Treason It must confess My Lords when we will make Circumstances to be a second Evidence they must be such as are necessarily tending to fortifie the positive Evidence that was given by the single Witness Now whether that be so in this Case I must as becomes me leave to your Lordships Consideration It is not my business to carry the Evidence further than it will go and I am sure it is not my duty to let it lose any of its weight and if it have not that force it ought to have I should be to blame as not having done what belongs to me to do I will therefore state the Fact to your Lordships plainly as it stands upon the Proof and submit the whole to your Lordships Determination My Lords Our positive Proof with which I crave leave to begin is but by one single Witness and that is Saxon and his Evidence is this That being in Cheshire where he lives he was sent for about the 3 d or 4 th of June last to my Lord Delamere's House at Mere and there he was brought into a Lower Room where he saw my Lord Delamere Sir Robert Cotton and Mr. Crew Offley That my Lord Delamere told him he had received a Message lately by one Jones that was sent from the Duke of Monmouth whereby he understood that the Duke would speedily be in England and that they must provide Men and Arms to assist him when he came That he was a Man recommended to them by my Lord Brandon and that upon his recommendation they had thought fit to intrust him in the matter and withal told him They were to raise 40000 l. and 10000 Men in that County He tells you likewise these Gentlemen gave him 11 Guineys and 5 l. in Silver to go of an Errand for them to the Duke of Monmouth which he undertook to do and hired a Horse to that purpose This My Lords is the positive Proof and this I must acknowledge standing-single and by it self will make but one Witness but whether the Circumstances that have been offered to your Lordships by the other Witnesses be such violent Circumstances as necessarily tend to fortifie and support that positive Evidence and so will supply the defect of a second Witness is the next question that I come to consider and I shall take them into consideration in the same order that the Evidence was delivered The first step My Lords that was made as to any Evidence that toucheth this Noble Lord at the Bar was what was testified by my Lord Gray for as to the other part of the Evidence that related to the Conspiracy in general I need not trouble your Lordships with the repetition of it that there was such an one is notoriously known but I say that part of the Evidence in his History of the Conspiracy which my Lord Gray brought home to my Lord Delamere was this That upon the first Meetings and Consultations it was resolved upon That the Duke of Monmouth should go into Cheshire to make an Interest there and among the Persons that he was directed to go to and to apply himself to for advice there as Persons fit to be trusted this Noble Lord was one That upon the Duke of Monmouth's Return out of Cheshire he did give his Confederates here in Town an Account how well he had been received and that he liked all things very well there This my Lords is the first Circumstance offered that has been to you to shew that he had a Confidence in my Lord Delamere as a Principal Support of his Designs at that very time The next thing that we offer is this Message of Jones's and for that our Evidence has fully and plainly made it out to your Lordships That Jones did go over into Holland and his Business there was an Errand from Disney and Major Wildman and the Confederates here The effect of his Message was That it was their Opinion That the Duke of Monmouth should go for Scotland and joyn with my Lord Argyle but upon the Receipt of the Message he being angry said It was too late for such a Message now and he would come into England for he was ready to Sail and thereupon he did send this same Jones back again into England upon a Message to inform the Lords and others of his Party among whom my Lord Delamere was one That he would have them betake themselves into their several Countries and not stay to be taken or clap'd up here for that he did understand was the design and this Message was delivered in Writing now that the Duke of Monmouth did write a Note and give it to Jones is verified by my Lord Gray's Testimony too and this was Sealed