REMARKS UPON THE TRIALS OF Edward Fitzharris, Stephen College, Count Coningsmark, The Lord Russel, Colonel 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 Judge's Head in Chancery-Lane, near Fleetstreet. MDCLXXXIX.   

THE CONTENTS.  

REmarks on Fitzharris' Trial. pag. 3  
Remarks on Colledge's Trial. 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 Trial. p. 56  
Remarks on Colonel Sidney's Trial. p. 76  
Remarks upon the Award of Execution against Sir Thomas Armstrong p. 83  
Remarks on the Trial of Count Coningsmark. p. 85  
Remarks on Mr. Cornish's Tral. p. 89  
Remarks on the Trial of Charles Bateman. p. 99    

REMARKS UPON SEVERAL TRIALS.  
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 easy; but in progress of time, was increased, 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 burdensome, as what is now imposed 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. Outrageous Damages. Seizing 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 heightened to 10000 l. 20000 l. 30000 l. and 40000 l.  
For the second, The punishment of Oats, 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 Outrageous 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 testify.  
For the Fourth, The seizing 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 Proceed 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 mentioned 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' Trial.  
THE first Person I shall begin withal, shall be Fitzharris; and that it may not be wondered, that the Trial 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 thoroughly looked into, some Persons afterwards Witnesses in the Lord Russel's, Colonel Sydney's, and Mr. Hampden's Trials, 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 Colonel Sidney might have worn their Heads on their Shoulders 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 remembered, 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 Oats afterwards discovered 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 likelihood 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 Evidence he was committed, it would go a great way in discovering the Truth of many Matters as yet in the dark; (but that Design miscarried, because the Intrigue was discovered before it took effect, and yet a like design was still carried on; and many of the Clergy of the Church of England had been prevailed with, to cry the Popish up as a Fanatic Plot.) The Papists and the Clergy of the Church of England being in the Late Times equally Sufferers, and oppressed by the fanatics, they naturally grew to have a Kindness for each other, and both joined in hating the fanatics, and therefore pretended at least that they did not believe any thing of the Popish Plot, but that that Report was given out by the fanatics, whilst they themselves were designing something against the Church of England. The Papists having so great a party of the Clergy of the Church of England, ready to believe any thing of a Fanatic Plot, which they should forge, and observing that that which gave Credit to the Popish Plot, was Writings concurring with Oral Testimony, which it did; for very little of the Truth of the Popish Plot depended on the Credit of Oats, Bedloe, or any other person, most of the Facts of that Design, when discovered, proving themselves. To instance in one, Oats discovered Coleman had Intelligence with Le Chase of a Design on England, and that Coleman had papers testifying as much; when those papers were seized, and owned by Coleman, and the purport of them was what Oats said they were, it was not material, whether Oats was a man of Truth or not, the Papers, without Oats his further Evidence, sufficiently proved the Design. I say the Papists, having observed what the Evidence was which gave Credit to that Plot, resolved to pursue the same steps, and therefore Dangerfield was made use of to leave papers in Colonel Mansel his Lodging, who was an Acquaintance of my Lord Shaftesbury's, importing a Plot; but that was so foolishly carried on, and the than Attorney General, who had the Examination of that Matter, not being qualified with the Assurance his Successor had, to carry on a thing that had neither Sense nor Honesty in it, made such a scurvy Report of the matter to the King and Council, that they were enforced to vote Mansel innocent, Dangerfield guilty, and that it was a Design of the Papists to lay a Plot to the Dissenters charge, and a further proof of the Popish Plot. But that Attorney General being removed to a place of more Honour, tho' of less Profit, and another put in his place, the Papists resolved to carry on the same Design, and no Person a fit Instrument than Fitzharris, in respect of his Religion and his Acquaintance; but before his Design came to perfection, it was discovered.  
He was first Imprisoned in Newgate, where some persons (amongst whom Mr. Cornish, as I remember, than Sheriff, was believed to be one, and it was not the least of his Crimes, that he endeavoured to look into that arcanum) went to examine him as to the particulars of that Design; which was quickly taken notice of, and the Prisoner in breach of the Habeas Corpus Act, removed from thence to the Tower, where he was kept close Prisoner.  
The Parliament at Oxford meeting soon after Fitzharris his Apprehension, and the House of Commons being informed of as much of his Design as was them discovered, they thought themselves highly concerned to examine him; but how to do it they knew not; only they resolved (upon a Report which one of their Members made them of one Hubert, who confessed himself guilty of Firing the City of London, upon which it was resolved to examine him in the House of Commons the next Morning, but before the House sat Hubert was hanged) that Fitzharris should not be hanged without their knowledge, and consent; and to effect it, they remembered a design to try the five Popish Lords in the Tower upon Indictments, whereupon if they should be acquitted, it was through that those acquaittals might be pleadable to Impeachments; to prevent which, the House had exhibited general Impeachments of High Treason against them in the House of Lords; which had such success, that the Lords were never, and the Judges gave their Opinion, that they could not be tried on the Indictments, as long as the Impeachments were in beign; for which Reason, the House of Commons exhibited a general Impeachment of High Treason in the House of Lords against Fitzharris, which was received; after which the House of Lords made an Order, that Fitzharris might or should be tried in the King's-Bench for the same Treason; suddenly after which, that Parliament was dissolved. Whether Fitzharris his Business was the break-neck of that Parliament, I know not, but it was shrewdly suspected it was.  
There was at that time a Chief Justice in the King's-Bench, who was himself under an Impeachment of High Treason, and had not for that reason sat in Court for some Terms preceding, and the Trial of Fitzharris being generally looked upon to be as illegal as it was odious, it was thought convenient to carry it on by a person of better Credit; whereupon one who had been a puisny Judge of that Court, and had behaved himself very plausibly, and had gained Credit by being turned out, was thought to be the fittest person to undertake it; and accordingly the then present Chief Justice was removed, and the other was preferred to this place.  
It being resolved that Fitzharris should be tried, the business was how to get Witnesses to give Evidence to a Jury, and how to get Juries to find the Bill, and to Convict the Prisoner, which were difficult preliminaries.  
A person who had been one of the House of Commons which had exhibited the Impeachment, was a principal Witness, but if he should give Evidence on the Indictment, he knew not how far he might be hereafter questionable and punishable for it, when a Parliament should sit again; but at last that person was prevailed upon to give Evidence, but by what means is best known to himself. And as for the Juries, Grand and Petty, they were satisfied with the direction of the Court, that they not only might, but aught to find the Bill, and Verdict according to their Evidence. And I think the Court was so far in the right.  
That matter being adjusted, a Bill of High Treason was found against the Prisoner, whereupon he was presently arraigned, and after much contest and Declaration of the Court, that they could hear nothing till he had pleaded in chief, (which if he had done, the Plea he afterwards pleaded, which was to the Jurisdiction of the Court, had come too late) he had leave given him to plead the special matter of the Impeachment, and accordingly Counsel were assigned him to draw up and argue his Plea put in to the jurisdiction of the Court; which was, That he was impeached in a Superior Court for the same Treason.  
Great endeavours were used to have the Plea overruled, without 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 alleged, 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 proceed were different in the Trials; in the first, the Trial 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 tried 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 impeached is obliged to answer; that in all cases of Appeals a man is put twice in jeopardy of his Life, if he be tried 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 King's 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 replied 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 denied.  
It could not be denied, 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 stopped proceed 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 Judge's 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 alleged? which they did not. It was not a Reason to disallow the Plea, because particular Articles use to follow general Impeachments, and the impeached 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 superior 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 thorough 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 show 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 show 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 show 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 Trial ordered to be the next Term.  
I think it would puzzle any person to show, that if ever a Court of Westminster Hall thought a matter of such difficulty, as fit to be argued, that they gave their Judgements afterwards without the Reasons; 'Tis true, that the Courts of Civil Law allow Debates amongst the Judges to be private among themselves, but the Proceed at Common Law always were, and aught to be, in aperta curia. Had this practice taken place heretofore, as it hath of late (but all since this Precedent) 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 Judgement, and contain the Reasons of the Judgement, which are rarely expressed in the Record of the Judgement; 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 Judgement. Men sometimes will be ashamed to offer those Reasons in public, 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 publicly 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 Judgement? Had the three Judges, who were clear in their Opinion, given their Reasons of that Opinion, perhaps some of the standers by might have showed 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 slander by might have shown 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 lie; and if a Judge give Judgement 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 Judgement be legal, yet the pronouncing of it is unjust.  
Judge's ought to be bound up by the Reasons given in public, and not satisfy or make good their Judgement, 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 Raleigh, of which Trial 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 forthcoming?) When he summed up the Evidence, he said, Just than 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 die, 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 suppressed, and crushed, as Scandalisers of the Justice of the Nation. And I think this may be justly called the first mute Judgement given in Westminster-Hall.  
But to return to Fitzharris his Trial, 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 holder's, 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 show 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 Trial. It is true, that was a Trial in the City; but that matter had no consideration in the Judgement; 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 Trial 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 Judgement is afterwards cited in Colonel Sidneys Trial 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 Trial 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 Parliament to alter the Law between the two Trials, that I know of.  
Another art used, was to Challenge for the King, without Cause, where no Cause could be shown, 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 show his Cause of Challenge; but is answered by the Court, that he need not, till all the Panel 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 Trial. 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 Trial, 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 show 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 Trial 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 scandalise 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 Ambassador, 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 Guineas, 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 Ambassador, 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' hand, for the Prisoner. Dr. Oats 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 Money; that the King said the came to him three Months before he appeared at the Council Table.  
Colonel 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 bethel, 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 Catholic, and upon that account it was said to be dangerous to let him go near the King, that he never was admitted to the King.  
The Lord Cornway said, that the King had declared in Council, that Fitzharris had been employed by him in some trifling businesses, and that he had got money of him; but added, as of his own Knowledge, that the King never spoke with him till after he was taken, which was the 28th of February last.  
All the Evidence being over, it was summed up by the Counsel, That upon all the Circumstances of it, Fitzharris was the Contriver and Director of the Libel; that it was a Treasonable Libel, and a Jesuitical Design; that the Excuse he made as if Everard drew him into it, or trepanned him into it, was vain; nothing of that being proved. That Everard could do nothing alone, and therefore Sir William Waller must be in the contrivance; but that was unlikely; that the Prisoner would insinuate that the King hired him to do it, because the King gave him Money, but that was out of Charity; and therefore concluded, with a great many words, that an English Protestant Jury of twelve substantial men, could not but find the Prisoner guilty.  
The Court added, that tho' Doctor Oats said, Everard said it was a design of the Court, and was to be put on some Lords, and into some parliaments Men's Pockets, yet Everard was there upon Oath, and testified no such thing in the world; and for the Impeachment in the Lord's House they were not to take notice of it.  
After which, the Jury informed the Court, that they heard there was a Vote in the House of Commons, that the Prisoner should not be tried in any inferior Court: To which the Chief Justice said, That that Vote could not alter the Law, and that the Judges of that Court had Conference with all the other Judges concerning that matter, and it was the Opinion of all the Judges of England, that that Court had a Jurisdiction to try that man. After which, Justice Jones was of Opinion, that if he were acquitted on that Indictment, in might be pleaded in Bar to the Impeachment. And Justice Raymond delivered his Opinion to the same purpose. It is strange, that all the Judges should be of that Opinion, yet before it was said, Justice Dolbin doubted. It is more strange, that if Justice Dolbin was not of that Opinion, he would hear it said he was, and not contradict it. It is most strange, that if the Judges of that Court were of that Opinion, they had not declared so, in the arguing or giving Judgement on the Plea; for that was the Matter of it, being pleaded to the Jurisdiction of the Court, that they had not power to try the Prisoner for that Crime, so circumstanced.  
If the Plea had been overruled as to the Matter, none would have been so impertinent, as to go about to maintain the Form of it.  
Now to say truth in behalf of the public, and not on behalf of Fitzharris, the Evidence was unfairly summed up; for Fitzharris never pretended Everard drew him in, or was to trepan him: It is true, he asked Everard what the design of the Pamphlet was, and whether he was not put upon it to trepan others? who answered, he was not. But afterwards being too nearly pressed by the Attorney General, he said, Fitzharris told him the use of the Libels was to disperse them he knew how; that they were to be drawn in the name of the Non-conformists, and put upon them. And Oates said, Everard said the Libels were to be printed, and sent abroad by the Penny-Post to the Protesting Lords, and Leading Men of the House of Commons, and the persons seized with them in their pockets; which is all strong Evidence that the Libel was designed to trepan others, and that was all along the import of Fitzharris his Questions, though cunningly not answered by some of the Witnesses, and as cunningly omitted in summing up the Evidence.  
It is true, the Chief Justice said, Everard said no such thing as Oats had said; but why was not Everard, who was then present, asked whether he said what Oats had given in Evidence?  
There cannot be shown any Precedent where a Witness contradicts, or says more or less than a Witness that went before him, by the hearsay of that Witness; but the first Witness is asked, what he says to it? Why was not Sir William Waller, who was also present, asked what he said to the Evidence of Mr. Mansell and Mr. Hunt? and who it was that informed Sir William what the King said? It was no way in proof, nor pretended by Fitzharris, that any person was concerned in that matter, but Everard and Fitzharris, though it was shrewdly suspected by the House of Commons; and no man that reads the Trial, but believes there were many more concerned, not yet discovered; but the Counsel might have brought in any Judge of the Court by the head and shoulders to be a Confederate, as well as Sir William Waller, that was a Jack-a-lent of their own setting up, in order to knock him down again.  
It was not pretended by Fitzharris that the King gave him any money to frame that, or any other Libel; there was Evidence, that he had got money of the King for some little matters he was employed in; perhaps for bringing Libels dispersed abroad, or discovering Plots.  
Upon the whole Evidence, it was plain that Fitzharris was an Irish Papist; it was plain he was the only visible Contriver of the Libel; who were behind the Curtain, is not plain, and to know them, was the Design of the Impeachment.  
It was plain it was a Devilish Jesuitical Design, as the Court and Counsel, in summing up the Evidence, agreed it to be; it was plain, that the Libel was such, that if dispersed with intention to stir up the King's Subjects against him, it had been High Treason within the Statute of the 13th of the King; but what the intention of the contriving the Libel was, was not very certain; and therefore, consequently what the Crime of it was, was uncertain.  
To take the Evidence all the ways, as to the Design of the contriving of the Libel, it is capable of being interpreted, the easiest construction, is to say, he framed a Libel with intention to pretend to the King, that he had intercepted a Libel privately dispersed; and to make it more likely, it should be framed in the Nonconformists Names, to make his Report the more credible, (for of Papists or Churchmen it could not be believed) to get more money of the King; and that matter, by all his Questions to the Witnesses, he most drove at; and that would at most be but a Cheat.  
A more Criminal, but less credible construction, is to believe he designed to disperse them, to excite and prevail upon the Discontented to take up Arms.  
For what Effect had that Pamphlet, when it was, for it was afterwards dispersed, upon the Minds of the People? or what Effect could any Man of Sense think it could have? for though it was a Virulent, yet it was as Foolish a contrived 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 Oats 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 itself 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 Misdemeanour, 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 Supreme 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 levy 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 levy 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, than Sir Samuel Astrey, who read it in Court at the Trial, 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 Trial 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 Trial. 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 enforced 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 Oats. 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 heartburning in the City against the Government, and raised great Jealousies between the King and People, when the Sheriff's North and Richardo 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 heartburning, 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 heightened by the Judgement 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 Judgement? 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 Trial, when the Earl of Essex, Lord Russel, Colonel Sidney, Mr. Hampden, and several others were clapped 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 Colonel 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 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 monopolised, and put into a few hands. Did not the unreasonable Fines, and cruel Punishments inflicted, oppress many, terrify 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 Month's 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 City's Charters was but in show 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, Gaolers, and other Officers, who have had, or now have Custody of Prisoners, and having not taken the Test, trusting to the validity of a Dispense, 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 Public 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 King's Council,) once said to me was true. He was complaining that the King was misled 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 Supreme 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 virtue 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 expressed; 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 expressed in the Act, tho' they were somewhat like those expressed, 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, 'tis 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 Judgement 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 Supreme Power to punish a Fact in a higher manner than by Law Established, if the Fact in its nature is a Crime, and the Circumstances make it much more heinous 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 Accessaries to a barbarous Murder, and were equally if not more guilty than the Principal, to Enact, as they did, that if they should be found guilty as Accessaries, they should not have their Clergies, which at the time of committing the Fact Accessaries to Murder were allowed to have. It is true, to Declare or Enact a Fact, after it is committed, to be a Crime, which when committed was in itself none, such as transporting Wool beyond Sea, and the like, would be high Injustice.   

REMARKS UPON Colledge's Trial.  
BUT to return whence I have digressed, Fitzharris being Executed according to his Sentence, tho' there was great grumbling amongst the Protestants, that those who set him on work were concealed, and never like to be discovered now he was dead; yet all was quiet, but the Conspirators, who resolved, tho' Fitzharris miscarried in his Design, yet the Plot should go on, but what it should be, or where, the Scene of it should be laid, or who the Plotters should be, they were not well resolved.  
Great noise of Warrants being issued out there was, but at last, all centred in an inconsiderable Fellow, one Stephen College, a Joiner by Trade, who for his Honour, as a Prisoner of State, was committed to the Tower for High Treason. At first it was designed to lay the Scene in London, and accordingly a Bill of Indictment of High Treason was exhibited to the Grand Jury (whereof Wilmore was one) at the Session's House; but the Business of Fitzharris was so new, and smelled so rank, that the Bill could not be digested, but was spewed out with an Ignoramus; for which Wilmore was afterwards forced to fly his Country.  
Then it was resolved the Scene should be at Oxford, and accordingly the King's Counsel, with Irish Witnesses, at the Assizes, post thither, and prevail with the Grand Jury, to find the Bill; but by what Arts is not known, for he was privately shut up with them; and I should wonder, if he, who frequently in the hearing of those who understood better than himself, had assurance enough to impose upon the Courts, should scruple in private to impose any thing on an ignorant Jury.  
I know not how long the Practice of that matter of admitting Counsel to a Grand Jury hath been; I am sure it is a very unjustifiable and unsufferable one. If the Grand Jury have a doubt in point of Law, they ought to have recourse to the Court, and that publicly and not privately, and not rely upon the private opinion of Council, especially of the King's Council, who are, or at least behave themselves as if they were Parties.  
It is true, it is said that they are upon their Oaths, and though it be not expressed in their Oaths, that they should do Right between the King and Subjects, yet that is implied in the Oath I agree; but have they behaved themselves as if they were under an Oath? besides all Men are not capable of giving advice to be relied on in so great a matter as Life; but the manner of doing it being in private, can never be justified. I know in Fitz-Harris his Case, the King's Council were cajoling the Grand Jury in private for some hours, but I did not think fit to take notice of it in that Trial, because I think both the Grand and Petty Jury did very well, they acted according to the best of their understanding, which is all that God or Man required of them; they asked pertinent Questions, they were overruled in some, not fully answered in others; not that I think either of them gave a Verdict according to Law upon the Fact, as it appeared upon the Evidence; but that was not the fault of the Jury, but of the King's Council, and of the Court who misled the Jury. I thought it more proper to take notice of it in this Trial, wherein the first Bill was rejected by an understanding Jury; and all Men wondered how the second came to be found Billa Vera; and for that reason one of the King's Council boasted at Court of his service and cunning management in the matter.  
The Bill being found, the next matter was to bring the Prisoner to his Trial, and as he had more honour than what usually is bestowed on so mean a Man, to be Committed to the Tower, though in truth it was to keep him from all means of defence; so to carry the matter on, he was allowed to have by Order of the King and Council, a Council and Solicitor to come to him, and advise him for his Defence at all events, a favour denied to Fitz-Harris, for his Council was to advise to the matter of the Plea only; but that favour in show was only to betray him, as shall be shown: And a third favour he had, which no Man of his quality ever had; there were then three of the King's Council sent from London, and all the Council could be picked up upon the spot, which were three more, and no less than four Judges to Prosecute and Try him; but that was to make sure work of him.  
The 17th. of August, 1681. he came to his Trial, his Endictment, as to part, was in common form for Treason, but particularly for designing to seize the King's Person at Oxford, mixed with words, he should say, as, That there was no good to be expected from the King, he minded nothing but beastliness, and that he endeavoured to establish Arbitrary Power and Popery; to which being required to plead, he desired a Copy of the Indictment, a Copy of the Jury, to know upon what Statute he was Indicted, and Council to advise him whether he had any thing pleadable in Bar, all which were denied him; then he desired he might have his Papers which were taken from him after he was brought from the Prison, and before he came into Court, at an House over against the Court; for so it seems the King's Council had ordered the matter, that the Goaser Murrel, and the Messenger Sawel, after they had him out of the Prison, should run him into an House, and take away all his Papers, which they believed were the instructions, as in truth they were, of the Council assigned him when in the Tower, and bring the Papers to them, whereby they would not only disable him of his Defence, but they could be better instructed how to proceed in a way for which he had not provided himself of any Defence.  
Murrel and Sawel did as the King's Council directed them; much wrangle there was whether he should have his Papers or not, all the Court agreed he should not have them till he had pleaded Guilty or not Guilty, and afterwards he should have the use of some, and not of others, because they did not appear to be written by himself, but by some Council or Solicitor, and as they said, none is allowed in Treason, unless assigned by the Court; the Chief Justice North said they were not taken away by him; but says College, They were taken away by the Keeper under pretence of bringing them to his Lordship; the Court said they knew not what Papers he meant, and knew nothing of it; he said the Indictment mentioned something of Misdemeanour 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 Council and Solicitors, and none in Law was allowed in Treason. 'Tis 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, Council are allowed even on the Trial. The reason given that the Indictment is the Suit of the King, and no Council 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 Council 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 Client's 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 Council 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 Council, 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 Prisoner's 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 public it is not material whether a man is prosecuted and punished 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 though 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 though the rule in Indictments, is, That no Council is allowed, yet it is confined to the Trial, no Law, Common, or Statute, nor any Usage says, A Prisoner shall not have Council to advise him before or after the Trial; and in Murder and all other Crimes, it is always admitted, and why not in Treason?  
In Treason, says some, 'tis Criminal for one to advise or solicit for the Prisoner; and the King's Council said, He had known one Indicted for being a Solicitor for one in High Treason; and says the Court, It is Criminal for one to be Solicitor or Council 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 soliciting is spoken of in general terms, which being reduced to Particulars, will show 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 Judgement, 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 , 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, showing 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 Solicitor 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 couped 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 shown in another place; but say they, The Court shall assign him a Council and Solicitor; but when, and for what? only for a Point of Law. May not a Prisoner want a Solicitor 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 Solicitor? And when shall the Court assign him a Solicitor; only when the Prisoner comes upon his Trial, and then it is too late to have any use of him; as College was, Arraigned at Twelve, and Tried 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 Solicitor 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 devilishly breaking an Award, whereby two injust Arbitrators directed the Prisoner to convey his Land to a certain Lord, without any Satisfaction or Recompense, 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 Man's Memory be good, and can bear all the Advice given him; and another Man's 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 Handwriting, and not another's; how ridiculous is the distinction? Suppose the Prisoner cannot write, then is he Hanged for his Parent's Fault or Misfortune, for not Educating him, or for not being able to Educate him better.  
Which is somewhat of kin to the late Practice in the West, where many Men were Hanged for having of old Jewish Names, as Obediah, or the like, with a Jest, that their Godfathers Hanged them. But suppose it is not lawful in general to be a Council or Solicitor, with, or to a Prisoner committed for High Treason, yet the Prosecutions being the King's, he may give a Privilege, which the Law of Courts doth not allow, and in this Case it was so done; for, to the Confusion of those who did this Injury, and of those Judges who would not do the Prisoner Right, they have printed the Orders of the King and Council, which appointed Mr. West and Aaron Smith to be his Council and Solicitor.  
If it was lawful for the Prisoner to have Counsel and to have Advice in Writing; it was very unlawful and as high a misdemeanour in the King's Council to order his Papers to be taken away, as they were capable of being Guilty of, both the Prisoner and the Matters of his Defence being under the Protection of the Court.  
It is not an ancient practice the seizing of Papers, though of late used; it began, I believe, upon my Lord Coke, whose Papers were seized and carried to the Secretary's Office, upon the like Pretences as of late, and when returned were gelt to many Bonds and other Securities, to a great many Thousand pounds' value, which never came to light. It was afterwards practised upon some Members of Parliament, and, as I remember, voted Illegal, as undoubtedly it is; for though, sometimes, you may meet with Papers which may be Evidence against the Prisoner; so it is possible, that other Papers, than the Prisoners may be mixed with his to make good an Accusation; nay, which is worse, some of the Prisoners may be withdrawn, which may be the only matter of his Defence; and that hath been often practised: And I cannot but remember a Story about this Matter. When Sir William Jones died it was said, That one from Whitehall offered Sir William Jones his Servant a great Sum of Money but to let him search his Master's Study, to find a Paper which would discover great Matters. A certain person discoursing with a Privy-councillor about it, the Privy-councillor said, It was not true; for, says he, if we had a mind to have done it, could we not send a Messenger on pretence of searching for treasonable Papers, and bring all the Study to Whitehall, and keep what we would of them?  
But though that hath been often practised, yet this was the first time that ever a Prisoner had the Instructions for his Defence taken away from him; and the manner was worse than the thing, it being done just as he was coming to his Trial, relying upon his Writing, not his Memory for his defence; besides the Agony so great an Injury put him in, when he had so great a concern upon him, as the Trial for his Life, and he could not but know by all that Preparation, that it was more than ten to one against him; all which is well seen in his Trial, where he so pathetically and sensibly pressed the Court for Justice in this matter, which they excused with such mean Answers, that all mankind must see they were satisfied of the Injustice, and were resolved not to do him Right; They knew not which way he came by the Papers; they knew not but he may be Criminal who brought them him; they knew nothing of his Papers; they knew not what Papers he meant; that his Lordship did not take them away, and such like stuff, as if it was not the Duty of the Court to relieve the Prisoner against the Oppression of any Persons but themselves; else why did they not ask Murrel and Sawel, who stood by, and were charged with taking them for the Papers, and have satisfied themselves of them; but in truth they knew before what they were. And College was a true Prophet, when finding his Life so beset, he said, This is an horrid Conspiracy to take his Life: But it would not stop there, for it was against all the Protestants in England, and the Rule the Court made at last was as unjust, That he should have the use of some of his Papers after he had pleaded not Guilty, but not before; for suppose there was matter in them which could not be made use of after such Plea, as a Plea to the Jurisdiction of the Court, a Pardon, otherwise acquitted and the like, could not be pleaded, or advantage taken of them after not Guilty pleaded; although there was not such yet there might have been such Pleas, for aught the Court knew. How unjust then was it for him to plead not Guilty before he should have the use of his Papers? but there was matter in them for quashing the Indictment; and he hinted so much to the Court as that the Indictment contained Crimes of different Nature, as Treason and Misdemeanour, and I think it was good Cause to quash the Indictment.  
In all Civil Matters, two matters of different Natures cannot be put into one Action, as Debt and Trespass; two Capital Crimes of different Natures cannot be joined in one Indictment, as Murder and Robbery; and for the same, and another Reason, Treason and Misdemeanour cannot be joined in one Indictment; for the Jury may observe that one part of the Indictment, which in itself is but misdemeanour, as that he said, The King minded nothing but beastliness, etc. though charged in the Indictment as Treason, was proved, and not the material parts of the Indictment, as designing to seize the King's Person, etc. and finding some part of the Indictment proved, might find him guilty generally, which extends to every Article of the Indictment, and so the Jury deceived, an the Prisoner in danger; or suppose he was acquitted on such an Indictment, if it ought to have been quashed, whether the Prisoner show the Error, or not, he may be Tried again upon another good Indictment for the same Treason: If therefore what he offered was an error, or but like an error in the Indictment, by the Law which favours life, and the jeopardy of life, the Court ought not to have Tried him on that Indictment, but have directed another Indictment to have been found: It is a vain objection to have said, that that would have been troublesome. Is the mischief of that comparable to that of putting a man twice in jeopardy of his life for the same thing? but it would have been a delay. I say none; for there was a Grand Jury in Court, and within the two hours' time the Court adjourned, for (to give the King's Council opportunity of viewing the Prisoners Papers, which were taken from him, and to consider of the method of his Prosecution by them, which they did, and altered it from what they at first designed it;) the King's Council might have had a new Bill found, but peradventure they could not prevail with that Grand Jury to have found a new Bill; they remembered they had ill luck with the first Bill at London; that I believe was the true reason; but because I'll do the Court no injury, in imputing that to the cause of the adjournment, which was not; 'tis true, in the Printed Trial, 'tis pretended they adjourned, in order to Dine; yet those that knew that the adjournment was by the direction of the King's Council, and overheard their whispering with the Chief Justice, (which is both an undecent and an unjust thing, and is neither better nor worse than a Plaintiff or Defendants whispering a Judge while his Case is before him Trying;) and I know that he Judges had Breakfasted but a little before, and had no great stomach to their Dinners, and therefore believe, that that before assigned, and not what pretended, was the true cause. They might better have put off their Dinner to their Supper, than their Supper to their Breakfast, as they did, the Trial lasting till early next Morning.  
But because all irregularities of Court and Council, in all these matters, are shifted off and excused by two Sayings not understood generally; the first whereof is, That the Court is to act for the King, and the Council are for the King, and no person must come near the Prisoner to the prejudice of the King, as in Fitz-Harris his Case was often said; a Witness was permitted to go on in an impertinent story, on a Transaction between him and my Lord Shaftsbury, in my Lord russel's Trial, of which the Prisoner complained that it was designed to incense the Jury; and though the Chief Justice declared it was not Evidence, yet he a great while afterward went on in a like manner; nay, the Council, in summing up the Evidence, repeated the same matter, which was permitted, because it was for the King: and yet when the Earl of Anglesey began to say what the lady Chaworth told him, he was snubed, and cut short; and Mr. Edward Howard was served the same sauce, because it was against the King: It is fit therefore to know what is meant in Law by those words. No body doubts what the Courts or King's Council of late days meant; but in Law the are not so meant, for though many things are said to be the King's, as the Protector of his people, and more concerned in their welfare than any private persons, yet they are so in preservation, and not in property or interest. The Highways are the King's, in preservation for the Passage of his Subjects, and whoever obstructs them wrongs the King; as he is hurt when his Subjects are hurt, but in property the Soil generally belongs to private Persons; the King is hurt when his Subjects are oppressed by force, because he has engaged to defend them, and therefore the Offender is punished by the King, to deter the Offenders and others from committing the same offences, which is for the benefit of the public; but as a Man may be oppressed by open force, so he may be oppressed by private insinuations, and false accusations, and the King has engaged to defend his Subjects from such; not that it is possible to prevent them, but by consequence, that is by punishing such as shall be found guilty of such Crimes, which heretofore were punished with the highest Arbitrary Punishments we read of: The consequence is, That it is for the King to punish Offenders, to acquit the false accused, and to punish the false accusers; that is to say, In all Cases to do right, according to Law and Truth.  
Surely Queen Elizabeth gave the best explanation of the words, when the Lord Burleigh, seeing Sir Edward Coke, the then Attorney General, coming towards her, he said, Madam, here is your Attorney General, Qui pro domina Regina sequitur. Nay (says she) I'll have the words altered, for it should be, Qui pro Domina veritate sequitur.  
For the King and for Truth, then are sunonymous words, for the King against the Truth is a contradiction, and the Judges and King's Council having taken an Oath to advise the King according to the best of their cunning, which is according to Law and Truth; if therefore the King's Council use means, and the Court permit them so to do, to suppress Truth, or to disable the Prisoner from making his innocence Appear, as in College his Case was done; if they urge things as Evidence of the Crime whereof the Prisoner is accused, which by Law are not Evidence, as in this Case, in the Lord russel's Case, Colonel Sydney's Case, Mr. Hambden's Case, Mr. Cornish's Case, and in many more they did, and has in some of them shall be hereafter shown. If they insinuate any fact as Evidence, which is not proved, as in my Lord russel's Trial, that my Lord of Essex killed himself; if they wrist as Evidence of the fact, which in sense is not so; as in Colonel Sydney's Case, the writing his Book; for, for any thing appeared, it was writ before King Charles the Second came to the Crown; they are Council, against the King, being against Truth as well as against the Prisoner.  
I think no Man will deny the truth of this proposition, That it is as much the King's interest, to have an innocent, accused of Treason, acquitted, as it is to have a nocent, accused of Treason, convicted: If that be true, then let any one show me a reason if he can; for there is no Law against it, why he may not have the same liberty of clearing his innocence, as the prosecutor hath of convicting him; I mean by free and private access of all persons, to the Prisoner, as is used in all other capital matters; if it be said he may get some to corrupt the witnesses against him, or subborn others for him, the same may be said in all other matters; but in Treason that is not a likely matter, for generally the Prisoner never knows what he is accused of, and consequently cannot know his Accuser, nor know how to provide a counter-Evidence, till he comes to be Arraigned, and then it is too late; for generally he is presently Tried after his Arraignment, as was the Case of College, and my Lord Russel, and Mr. Cornish; and persons committed for Treason are so much the less able to corrupt or suborn Witnesses than any other Criminals, that they generally, according to the late practice, have no Accuser brought face to face to them on their Commitment, as all other Criminals have, who always are committed upon an Accusation made upon Oath in their Hearing, and their Defence heard before their Mittimus made; and whatever the pretence may be, yet, in experience, it is found more perjuries in prosecutions for Treason by the Accusers committed than by the Witnesses for the Prisoner.  
One reason is, a Witness in Treason is more difficultly convicted than in any other Crime, for Treason is an Ignis fatuus, 'tis here and there, as College 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 Murder, 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 Oats 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 vicious Indictment, as was done in Colledge's and Colonel Sydney's Cases, is against the King, as it is against Law, for by that means he is in danger to be Hanged if Convicted; or Tried 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 shown; 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 College, to Colonel Sidney, 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 sense 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 Oats 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 therefore to instance in the only person who hath of late escaped 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 oath 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 easy 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, clapped 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 solicit 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 Solicitor there is no occasion or use; if the Prisoner desires Council upon a Point of Law, as was done in my Lord russel's Trial, the Council named must be ready to argue presently, and the Court deliver their Judgement presently, without any consideration. The Prisoner indeed hath liberty to except to Thirtyfive 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 Council must have a Copy of them; he must hear all the Witnesses produced 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 Council 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 or 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 sums colour or imposing other hardships upon him, to wit, That a Witness cannot be examined for the Prisoner on his Oath in a Trial 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 Trial upon an Indictment of any Criminal Matter, yet in Indictments of all Criminal Matters, not Capital, 'tis 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 ancient 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, 'tis 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 falsely, more than they would be in a matter of less moment: The weakness of that reason hath been in part shown, and shall be further shown. I think none will deny, but the end of all Trials in any matters Capital, Criminal, or Civil, is the discovery of Truth; Next, 'tis 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 always 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 denied 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, than he hath too much advantage; for men may be found which will say falsely 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 Proceed, but as a reason why matters in Capital Proceed 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 Trial of College, 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 overruled, 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 vilifying words spoke of the King at several times at Oxford, and London, by the Prisoner to himself alone; that he shown the Witness several scandalous Libels and Pictures, and said he was the Author of them; that he had a silk Armour, 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 Armour, and that when he shown 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 seize 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 between him and the Prisoner, he justified the Proceed of the Parliament in 1640. at which the Witness wondered, and said, how could he justify that Parliament that raised the Rebellion, and cut off the King's head? To which the Prisoner replied, That that Parliament had done nothing but what they had just cause for; and that the Parliament which sat last at Westminster was of the same Opinion: That he called the Prisoner Colonel in mockery, who replied, Mock not; I may be one in a little time.  
Sir William Jennings swore as to the Fight with Fitz-Gerald, and the words about his bleeding.  
For the Prisoner.  
Hickman said he heard Haynes swear God damn him, he cared not what he swore, nor whom he swore against, for it was his Trade to get Money by swearing. Mrs. Oliver said Haynes writ a Letter in her Father's name, unknown to her Father. Mrs. Hall said she heard Haynes own that he was employed to put a Plot upon the Dissenting Protestants. Mrs. Richards said she heard him say the same thing. Whaley said Haynes stole a Silver Tankard from him. Lun said, Haynes said the Parliament were a company of Rogues for not giving the King money, but he would help the King to money enough out of the fanatics Estates. Oats said Turbervile said, a little before the Witnesses were sworn at the Old-baily, that he was not a Witness against the Prisoner, nor could give any Evidence against him. And after he came from Oxford, he sad he had been sworn before the Grand Jury against the Prisoner, and said the Protestant Citizens had deserted him, and God damn him he would not starve. That John Smith said God damn him he would have Colledge's Blood. That he heard Dugdale say, that he knew nothing against any Protestant in England; and being taxed that he had gone against his Conscience in his Evidence; he said it was long of Colonel Warcup, for he could get no money else; that he had given out, that he had been poisoned, whereas in truth it was a Clap. Blake said, that Smith told him Haynes his Discovery was a Shame Plot, a Meal-tub-Plot.  
Bolron said, Smith would have had him give Evidence against Sir John Brooks, that Sir John should say there would be cutting of Throats at Oxford, and that the Parliament-men went provided with four, five, six, or ten men apiece; and that there was a Consult at Grantham, wherein it was resolved, that it was better to seize the King than to let him go, whereas he knew of no such thing; that he would have Balron to be a Witness against College, and told him what he should say, lest they should disagree in their Evidence that he heard Haynes say he knew nothing of a Popish or Presbyterian Plot, but if he were to be an Evidence, he cared not what he swore, but would swear any thing to get Money. Mowbray said, Smith tempted him to be a Witness against College, and was inquisitive to know what discourse passed between him, the Lord Fairfax, Sir John Hewly, and Mr. Stern on the Road; and said, that if the Parliament would not give the King Money, and stood on the Bill of Exclusion, that was pretence enough to swear a design to seize the King at Oxford. Everard said Smith told him he knew of no Presbyterian or Protestant Plot, and said Justice Warcup would have persuaded him to swear against some Lords a Presbyterian Plot, but he knew of none; he said, Haynes told him it was necessity and hard pay drove him to speak any thing against the Protestants; and being questioned how his Testimony agreed with what he formerly said? answered, he would not say much to excuse himself, his Wife was reduced to that Necessity, that she begged at Rouse's door, and mere necessity drove him to it, and self preservation; for the was brought in Guilty when he was taken up, and was obliged to do something to save his Life; and that it was a Judgement upon the King or People; the irishmen's swearing against them was justly fallen on them, for outing the Irish of their Estates. Parkhurst and Symons said they had seen at College his House, his Arms about the latter end of November. Tates said Dugdale bespoke a Pistol of him for College, which he promised to give College. And upon Discourse sometimes after the Oxford Parliament, Tates said College was a very honest man, and stood up for the good of the King and Government; Tes, said Dugdale, I believe he does, and I know nothing to the coutrary. Deacon and Whitaker said they knew College was bred a Protostant, and went to Church, and never to a Conventicle that they knew of, and thought him an honest man Neal, Rimington, Janner and Norris to the same purpose; and Norris, that Smith (in company where was Speech that the parliament-men's being agreed to go to Oxford) said, he hoped they would be well provided to go, if they did go. El. Hunt said, a Porter in her Master's absence brought the Prints taken in Colledge's house eight weeks before, and said Dugdale told her, after her Master was in Prison, he did not believe College had any more hand in any Conspiracy against his Majesty, than the Child unborn, and he had as lief have given an hundred pounds he had never spoke what he had, and that he had nothing to say against her Master, which would touch his Life.  
Having summed up all the material part of the Evidence in the order it was given, for, or against the Prisoner, let us see whether upon the whole, an honest understanding Jury could, with a good Conscience, have given the Verdict the then Jury did; or whether an upright Court could, with a good Conscience, have declared they were well satisfied in the Verdict given, as all the four Judges in that case did, though the Chief Justice North only spoke the works. And, though it is too late to Advantage the deceased, yet it will do right to the Memory of the man, to whose dexterous management on his Trial many now alive own the continuance of their lives to this Day; it was not their Innocence protected the Lord Fairfax, Sir John Brooks, and many others before mentjoined, and many not named in the Trial, but Colledge's baffling that Crew of Witnesses, and so plainly detecting their falsehood, that the King's Counsel never durst play them at any other person, but the Earl of Shaftsbury, as shall be shown, and failing there, they were paid off, and vanished, and never did more harm visibly, what underhand Practices they might be hereafter guilty of, I know not.  
Who could believe any one of those four Witnesses, Dugdale, Haynes, Turbervile, and Smith, if it were for no other reason than the improbability of the thing, that (as College said) was it probable he should trust things of that nature with Papists, who had broke their Faith with their own Party, who could lay greater Obligations of secrecy upon them than he was able to do? That he, a Protestant, should trust people who had been employed to cut Protestants Throats? And neither of them ever discovered any of the things they swore, till after the Oxford Parliament, though most of them were pretended to be transacted and spoken before?  
Who could believe Dugdale in any part of his Evidence against the Prisoner, when Oats testified against him, that he said he knew nothing against any Protestant in England? And being taxed by Oats, that he had gone against his Conscience, in his Evidence against College to the Grand Jury at London, he said, it was long of Colonel Warcup, for he could get no Money else; which was a plain Confession he had sworn wrong, and Confession of the Cause for which he did it, and of the person by whom he was induced to do it? That he had given out that he was poisoned, whereas his disease was a Clap, which was an ill thing in him, as it employed a charge of poisoning him on other persons? And when Elizabeth Hunt testified against him, that he said, after College was in Prison, that he did not believe College had any more hand in any Conspiracy against the King, than the Child unborn; and that he had as lief have given an 100 l. he had never spoken what he had, and that he had nothing to say against College which could touch his Life? And when Yates testified him, that when Yates said College was an honest man, and stood up for the good of the King and Government; yes, said Dugdale, I believe he does, and I know nothing to the contrary?  
Who could believe Haynes in any part of his Evidence against the Prisoner, when Mrs. Hall and Mrs. Richard's said he owned he was employed to put a Plot upon the Dissenting Protestants? when Whaley testified against him that he was a Thief, and had stole Whaley Tankard? when Lun testified that Haynes said the Parliament were a Company of Rogues, for not giving the King money, but he would help the King to Money enough out of the fanatics Estates? when Hickman testified against him he heard him say, God damn him he cared not what he swore, nor against whom he swore, for 'twas his Trade to get Money by swearing? when Mrs. Oliver said that he had writ a Letter in her Father's name, without her Father's knowledge? When Balron testified against him, that he said he knew nothing of a Popish or a Presbyterian Plot, but if he were to be an Evidence, he cared not what he swore, but would swear any thing to get Money? when Everard testified against him, that he said Necessity and hard Pay drove him to say any thing against the Protestants; and being taxed that his Evidence against College agreed not with what he had formerly said, he said, he could not excuse it, but his poverty and solf preservation drove him to it? which was a plain Confession of the falsehood of his Evidence, and of the reason of it; and added, it was a Judgement upon the King or People, the irishmen's swearing against them, for outing the Irish of their Estates? which can have no other sense, than he irishmen's forswearing themselves against the English was a Judgement, etc.  
How could Turbervile be believed in any part of his Evidence against College, when Oats testified against him, that he said a little before the Witnesses were sworn against College at the Old-bayly, that he was not a Witness against him, nor could give any Evidence against him: and yet asterwards at Oxon, Turbervile told him he had sworn against College to the Grand Jury, and said the Protestant Citizens had deserted him, and God damn him he would not starve? which words I think need no explanation.  
And lastly, how could Smith be believed in any part of his Evidence against the Prisoner, when it was testified against him by Blake, that he said Haynes his discovery was a Sham-Plot, a Meal-Tub-Plot? The meaning of the words I think are well known. That he would have had Bolron swear against Sir John Brooks, the Lord Shaftesbury, and College, things of which he knew nothing, and told him what he should swear, lest they should disagree in their Evidence? When it was testified against him by Oats, that he said God damn him he would have Colledge's Blood? when it was testified against him by sMowbray, that he tempted Mowbray to be a Witness against College and Sir John Brooks, and was very inquisitive to know what discourse he had with the Lord Fairfax, Sir John Hewly, and Mr. Stern on the Road to Oxon, and said, if the Parliament did not give the King Money, and stood on the Bill of Exclusion, that was pretence enough to swear a design to secure the King at Oxon? when Everard, and many others testified he said he knew of no Presbyterian or Protestant Plot? Now if College his Witnesses were credited, it was impossible the King's Witnesses could be credited, that was agreed by the Court to be true upon the Trial; the answer on the Trial was, that the King's Witnesses were on their Oaths, the Prisoners were not; which was a Reason but in words and not in sense.  
And surely what College said on that matter, without any knowledge in the Law, cannot be answered. It is not fair dealing, said he with a man for his life, because the Witnesses against him upon their Oaths deny the things the Witnesses for him prove, therefore the Witnesses against him must be believed, and the Witnesses for him disbelieved, when yet the Witnesses for him were ready on their Oaths to maintain what they said for him.  
Nor is the Law so; for taking the Law to be that a Witness for the Prisoner shall not be sworn, which is only made good by practice; the same Law, that is to say practice, is, that a Witness without Oath for the Prisoner, is of equal Credit with the Witness against him upon Oath, and none can show the contrary till of late days.  
To give one Example of many, where it was necessary for the Prisoner to produce a Witness to prove his Innocency, and where the Witness for him was as much believed as the Witness against him. There was a person, whose name I do not remember, was arraigned (at the same time an Indictment of High Treason was endeavoured to be found against the Lord Shaftesbury) for robbing another of Money and of an hired Horse, of which likewise the person was rob; the robbing of the Money and an Horse was proved by himself and several others, but that the Prisoner was the person that committed the Robbery, none positively swore, but the person rob, who likewise swore, that the Horse on which the Prisoner was taken, was the Horse taken from him; against which the Prisoner proved by the person of whom the Horse was agreed to be hired, that the Horse the Prisoner was taken upon was not the Horse he let to hire to the person rob; whereupon the Prisoner was acquitted; and yet the Prisoner's Witness was not on his Oath, and the person rob was on his Oath; which, besides that it proves the Matter for which it is brought, shows the Folly as well as injustice of the practice of imprisoning men without letting them know for what, and without confronting them with the Witnesses against them, upon the Commitment. For how could this man have known what Witnesses to produce, unless he had known what in particular he was Indicted for? and how could he have sent to such Witnesses, unless he had had the liberty of sending to the persons who were to be Witnesses for him; and it shows the folly of those say, that a man's Innocence must defend him, and that the Evidence against the Prisoner must be as clear as the Sun at noon day: All will agree that the Prisoner in this case was innocent, and yet that alone without producing a Witness to prove his innocence, would have stood him but in little stead; and how could he have known what sort of Evidence to have ready, unless he knew what he was accused of?  
I do not mean what Crime he was accused of, as Treason, Murder, Robbery, Thest, or any other Crime, but unless he knew the Person rob, when, where, and other Circumstances; which, say some, is not to be permitted in Prosecutions of High Treason; for if so, than no man shall be hanged for High Treason, unless there was as strong proof against him, as is required in an Indictment of any other Capital Matter; and that, they say, is not to be expected in Treason, for no man will call two Witnesses to be Evidences of his Words or Actions, being Overt Acts of his Design of High Treason. The Objection is too foolish to be answered: For it is neither better nor worse, than that if a man shall not be hanged for Treason without Evidence, he shall never be hanged for Treason; for no Evidence, and Evidence which the Law rejects, is the same in Sense, tho' different in words; and as the intent of the mind is difficult to prove on part of the King, so is the Prisoner's part of producing counter Evidence much more difficult; and therefore the Law hath taken care by the Statute of Edward the 3 d. that the Intent shall be proved by an Overt Act; and by the Statute of Edward the 6th. that that Overt Act shall be proved by two Witnesses. And therefore, since the Law hath taken care that there shall be a stricter proof in High Treason, than in any other Crime, for the Judges to say a less proof may be admitted to convict one of High Treason, than of any other Crime, is very ridiculous, unless they will at the same time say, that the Parliament who made those Statutes, were men of little understanding, and not to be regarded. And certainly it was a good Counter-Evidence, which was given in behalf of the Prisoner by some Witnesses, though slighted by the Court, and not permitted by the Court to be given by others, that there were great endeavours to set up Sham-Plots, and charge the Protestants with them: For let any one show me a Reason, why the Evidence of Sham-plots, though they do not immediately concern the Prisoner, is not as good Evidence for him, as the Evidence of a Real Plot, in which he was not concerned, is against him. The last was permitted to be given in Evidence against my Lord Russel, Colonel Sidney, and others; though the first was not permitted to many Witnesses in this Trial, and it was a material Objection which College made, That there was no proof of any Persons being concerned with him in the Design of seizing the King.  
It was an unadvised answer the Court gave, that he alone might be so vain as to design it alone; for if from thence an inference is made, as was insinuated by the Court to the Jury, that therefore he did alone design it, it was an Evidence of his being a Madman, not a Traitor; had the Evidence been of the mischiefing the King by means which a single person is capable of using, as Stabbing, Shooting, and the like, the matter is not impossible; but it being by means which it was impossible for a single person to execute, it carries such disbelief with it, that it is impossible to find a man in his Senses at the same time guilty of it: And a man that is non compos mentis, if my Lords Coke and Hales are to be believed, cannot be guilty of High Treason within that Branch of the Statute, Compassing, and imagining, etc.  
It is true, a mad man may be guilty of Treason, in attempting the King's Person; but for that he is no more said to be punished, than Beasts of prey are when killed; which are more properly said to be destroyed than punished for the public good. But if so good a Counter-proof in Colledge's Case was not made, as aught to have been, some allowances ought to be made for the Prisoner's ignorance of what he was accused of, his usage and strict Imprisonment before his Trial, the ruffling him just before his Trial in the manner before declared, the depriving him of his Notes, the giving an Evidence of many hours long against him, before he was permitted to answer any part of it. And the use of Pen, Ink, and paper, was but of little advantage to him; for a man that hath not been used to do it, cannot take notes of any use. And in truth, he complained he had not taken notes of half said, but relied on the Court to do him Justice in summing up the Evidences, which they promised to do, but broke their words.  
It must likewise be considered, that the concern a man hath upon him, when he is upon Trial for his Life, it is so far from fortifying that it weakens his Memory: Besides, the foul practice, without any remorse, put upon him and his Witnesses; some of them imprisoned, that he could not have them at the Trial; others so threatened, that they durst not appear for him, and the cry of the auditory against him and his Witnesses, were mighty discouragements. All these things being considered, how could any understanding Jury take it on their Oaths, That the Evidence against the Prisoner, of a Design to feeze the King, etc. was as clear as the Sun at noon days.  
As for the Evidence which Mr. Masters gave, if it were true, it was no Evidence of Treason; an Erroneous Opinion may make an Heretic, but not a Traitor; it is a very distant Consequence, that because he affirmed that the Parliament in 40 had done nothing but what was just in respect of King, Charles the First, therefore the Prisoner was guilty of a Design against King Charles the Second; besides that in all pronbability, tho' Mr. Masters might inveigh against the Parliament, College might only justify them, by throwing the ill things done in that time upon the Papists, as College in his Defence says; and Mr. Masters, after much pumping, recollected himself, and said he thought the Prisoner said, the Papists had a hand in those things; which proved the truth of Colledge's Assertion.  
As for the Evidence of Colledge's saying he might be a Colonel in time; if he hoped for what he said, it was no Crime, or proof of a Crime, 'tis no more than what every private Soldier hopes for, and he himself had been one.  
As for the Evidence of Atterbury, Sawel, and Stevens, of their seizing the Pictures; admit they swore true, it did not amount to the proof of the Treason in the Indictment, or of any sort of Treason: And yet if Colledge's Maid said true, it looks as if the finders or some other person sent them to Colledge's House, in order to find them there.  
Of all sorts of Evidences, the finding Papers in a persons possession is the weakest, because no person can secure himself against designs upon him in that kind. And after Dangerfield's Design upon Colonel Mansell, and the Evidence in Fitzharris his Trial, that the Design of that Pamphlet was to convey Copies of it to some Members of Parliament's pockets, and then seize them, that piece of Evidence ought to have been spared, till those and other practices of like kind had been forgotten.  
The last Witness was Sir William Jennings, of Colledge's saying he had lost the first blood in the Cause, but it would not belong before more would be lost; what was that more, than that he thought more would be lost in the Cause, which he interpreted the Protestant Cause? Suppose he thought so without reason, and was mistaken, where was the Crime? But if he thought so upon good reason, and good reason he had to think so, there was no pretence of a Crime in it. I believe most men thought as College did, from the time of the business of Fitzharris, and what imputation was it to him? Why were not all the expressions he used in his Trial as good Evidence against him as that saying? For he then said, it was an horrid Conspiracy to take away his Life, and would not stop at him, for it was against all the Protestants of England, and the like; which was his Opinion, and after times shown him a true Prophet.  
One thing was very dishonestly insinuated, that the Prisoner was a Papist, which was only to incense the Jury against him, and it had its effect; whereas it was very plain that he was a Protestant, tho' perhaps a Dissenter, and therefore had not lately come to the public Church; and under that notion the Papists and some Protestants, were contented that Dissenters should be punished as Papists; yet if they could have proved him a Papist, no doubt of it they would have done it; for the destruction of the man was the design of the Prosecution, and it mattered not for what Treason he was convicted, so he was convicted; and he himself gave a pretty sort of Evidence against himself, if they could have proved him a Papist. He proved, and confessed, he was Educated a Protestant; and if they could have proved him reconciled to the Popish Religion, which was Treason, he helped them a great deal in their proofs: It was therefore very disingenuous in the Chief Justice to reproach him at his Condemnation, that he had not made that proof of his Religion as it was expected, when his Religion was not the matter of which he was Indicted; that was slily insinuated to exasperate, and no proof pretended to be made of his being a Papist: But he had more reason to complain of the injustice of the Court in summing up the Evidence, who did it in such a manner, that if they had been Counsel for the Prisoner, as they pretended, they would have been justly suspected to have taken a Fee of the other side to betray their Client.  
For, as College readily said, if the Chief Justice had looked on his Notes, he would have found more Evidence against Turbervile and Dugdale than he had repeated. And it was a lame excuse for the Chief Justice to say, he referred it to the memory of the Jury, for he could not remember more; whenas I dare say, after about thirteen hours' Evidence, the Jury remembered no more than that they were to find him Guilty.  
The truth is, upon hte whole, what College said was true; they took away all helps from him for defending himself, and therefore they had as good have condemned him without a Trial. Notwithstanding all which, the courage of the Man never fainted, but after he was condemned, boldly asked when he was to be Executed? To which the Lord Chief Justice replied, it depended on the King's Pleasure; but smoothly said, in those Cases of High Treason they did not use to precipitate the Execution, it should not be so sudden but that he should have notice to prepare himself. And in truth he had from the eighteenth, on which he was condemned, to prepare himself, to the one and thirtieth of August 1681. on which he was Executed; a much longer time than was allowed may Lord Russel, or Mr. Cornish, and many others. And the true reason of so long a Reprieve, was to see how the Nation would digest the matter, and to see whether the man by the terror of Death could be prevailed upon to become a Tool for to destroy other Innocents'; but when it was found that the people were quiet, and that the Prisoner could not be prevailed upon to do an ill thing to save his life, his Execution was ordered; yet, as a show of mercy, his Quarters were permitted to be buried; a favour he slighted, with saying that he cared not whether he was eaten up with Flies or Worms. The same favour was likewise showed Fitzharris, but the true reason of both was, that they had a mind that the Trials and pretended Crimes, for which Fitzharris and College were condemned should be forgotten; which would not be so soon done, if their Quarters were always exposed to view. But tho' all people were quiet, yet there was great grumbling, and most honest men were afraid; and the constancy of College at his Execution was such, that it made the most violent against him relent.   

REMARKS ON THE Earl of Shaftsbury's GRAND-JURY.  
THE next Person questioned was the Earl of Shaftsbury against whom a Bill of High-Treason was preferred to the Grant Jury, at the Session's House on the 24th Day of November 1681: The Evidence was publicly given in Court and was this. Mr. Blathwaite swore he found the Papers then produced in a Velvet Bag in the great Trunk, which was taken by Mr. Gwnnye in the Lord Shaftsbury's House. Mr. Gwynne swore, All the Papers in the Velvet Bag when he delivered them to Mr. Blathwaite were taken by him in the Lord Shaftsbury's House; Sir Leoline Jenkins swore the Paper produced was the Paper delivered him by Mr. Blathwaite and it was unaltered; then the Paper was read, the Effect of which was a project of an Association signed by no Person, and whose Hand Writing it was none knew; John Booth swore, that he was engaged to Captain Wilkinson, who pretended to have a Commission from the Lord Shaftsbury and several others to go for Carolina, he was about that time introduced into the Earls acquaintance by the Captain, where was a discourse about Carolina business, he was four or five times between Christman and March, with the Earl and the Captain, that the Captain told him he was to Command Fifty Men to be the Earls Guard at Oxon, and would have had him to be One, That if the King did not Consent to several Acts of Parliament and other things they were to Purge the Guards and Court of several Persons, and tho' the Captain told him, that first, yet afterwards he heard the Earl say the same things, particularly about a week or ten days before the Parliament sat at Oxon, he gave some Intimation of this to Walter Banes, and then Writ it down, and sent it to the Counsel Sealed in a Cover. Turbervile swore, that the Lord Shaftsbury said about February, there was but little good to be done with the King as long as his Guards were about him. Smith testified a great deal of discourse between him and the Lord Shaftsbury of something said Reflecting on the King, and that he should say that if the King should offer any violence to the Parliament at Oxford, he would meet with a strong Opposition for that the Gentlemen, who came out of the Country, came well provided with Horse and Arms to Oppose, and that they might Lawfully do it, if he offered and Violence to them, whilst they sat. Haynes swore, that the Earl said if the King did not give Haynes his Pardon, he and others would raise the Kingdom against him, that Haynes gave the Earl an exact Account of Transactions since King Charles the First's coming to the Crown, and that the Earl said the Duke of Buckingham had as much Right to the Crown as any Stewart in England. John Macnamarra said, the Earl said, the King was Popishly Affected and took the same Methods his Father did, which brought his Father's Head to the Block, and they would bring his thither, and this was said in the presence of Ivey, and he thought of his Brother, and said the King deserved to be deposed as much as King Richard the Second. Dennis Macnamarra likewise testified the last words, and that it was the latter end of March or beginning of April, Ivey, said, the Earl said, if the King denied Haynes a Pardon they would rise upon him and force him to give one, and that they designed to depose him and set up another in his stead. Bernard Dennis said, he had a great deal of discourse with the Earl who bid him speak to his Friends in Ireland; for they intended to have England under a Commonwealth and Extirpate the King and his Family.  
Then the Court told the Jury the Indictment was grounded on the Statute of King Charles the Second, but they ought to consider of that Statute as also the 25th of Edward the Third.  
The question is, whether the Grand Jury ought to have found the Bill on this Evidence, first it ought to be considered, what the Duty of a Grand Jury is, and I think it is not what the Chief Justice said, to consider only whether there be probable ground for the King to call the Person Accused to an Account, much less do I think that the reason of the finding of a Bill by the Grand Jury was for the Honour of the King, or Decency of the Matter, least Persons Accused should be called to an Account by the King, where there is no kind of Suspicion of the Crime Committed by them, as the Court said (which last Matter was never assigned as a Reason of finding a Bill by the Grand Jury before) but I take the Reason of a Grand Jury to be this, that no Man for a Capital Matter shall ever be questioned by the King, unless a Grand Jury take it on their Oaths that they believe the Matter of the accusation is true, I do put an Emphasis on the words questioned by the King.  
It is true, it is generally said, That the business of a Grand-Jury, in capital Matters, is in favorem vitae, but that taken simply is not true, for than what reason can be assigned, why a Man shall be Arraigned on an Appeal of Murder, Robbery or the like, which touches his Life, as much as an Indictment of those Crimes, without having the Matter of the Appeal first found to be true by a Grand Jury; but the true reason of a Grand Jury is the vast inequality of the Plaintiff and Defendant, which in an Indictment is always between the King and his Subjects, and that doth not hold in an Appeal, which is always between Subject and Subject, and therefore the Law in an Indictment, hath given a Privilege to the Defendant, which it hath done in no other Prosecution, of purpose, if it were possible, to make them equal in the Prosecutions and Defence; that equal Justice may be done between both. It considers the Judges, Witnesses and Jury are more likely to be influenced by the King than the Defendant; the Judges as having been made by him, and as it is in his Power to turn them out, punish, to prefer or reward them higher, and though there are not just Causes for them to strain the Law; yet they are such Causes, which in all Ages have taken place, and probably always will, this was the reason of running Prerogative so high in their Judgement of High Treason before the Stat. of Ed. III. That no Man, as that Statute says, knew what was not High Treason; This was the reason of expounding that Statute oftentimes between the making of it, and the making the Statute of Queen Mary, that People was at as great a Loss, till the last Statute as they were before the making of the first, and even since the Statute of Queen Mary, the Exposition on the Statute of Ed. III. hath been so extravagant and various, that People are at this day as much at a Loss to know what is not High Treason, as they were before the Statue of Ed. 3. norwas it, or is it, possible, that the great Power of enriching, honouring, rewarding and punishing lodged in the King, but that it always had, and yet must have, an influence on the Witnesses and Jury; and therefore it is that the Law hath ordered, that at the King's Proscution no Man shall be criminally questioned, unless a Grand Jury, upon their own Knowledge, or upon the Evidence given them, shall give a Verdict, that they really believe the Accusation is true.  
jown of late days, They have said the Duty of the Grand Jury is to find, whether the Accusation is probable, but that saying is warranted by no positive Law, or ancient Authority; and therefore the Duty of the Grand Jury must be founded in the Oath administered to them, which is as strict as the Oath administered to the Petit Jury; and to say Truth, the Verdict of the Petit Jury takes credit from the Verdict of the Grand Jury, which is not only the reason of the difference in the Names of the two Juries; but is likewise the reason, why an Attaint for a false Verdict doth not lie against a Petit Jury.  
The Oath of the Grand Jury is, To present the Truth, the whole Truth, and nothing but the Truth: The Oath of the Petit Jury is, Well and truly to try, and true Deliverance make, between the King, and the Prisoner at the Bar, etc. which signifies the same thing as to present the Truth, etc. it is true, some reasons have been offered, which if considered, are Word, without Sense; As thatthe Presentment of the Grand Jury is but in order to bring the Prisoner to his Trial, and he is not before the Grand Jury to make his Defence himself; but that can be no reason why Probabilities should satisfy the Jury, because it doth not answer the design of the Law, which will have a Man convicted by the positive Oaths of Two Juries, consisting of more than twenty four, in all Endictments.  
Next why is a Grand Jury composed of more substantial and understanding Men than a Petit Jury, if their business be mere Formality, or a Matter of less weight than the business of a Petit Jury: In the last Place, why is less Evidence required to convict a Man in his absence than is required to convict him if present; it seems to me so far from an Argument, that less Evidence is required to convict one, if absent, than if present, that it seems to me, that more Evidence should be required to do it. Men may, and often do, make very fair Stories in the absence of a Person accused, that when present, he easily answers; and there being no positive Law for the Direction of a Grand Jury in that Matter, a Grand Juryman is excusable, nay it is his Duty, to give a Verdict according to the plain Understanding of the Words of his Oath, which is to present the Truth, as far as he is convict of it, and that Truth must be found according to his knowledge, or as it is represented to him by Witnesses.  
And as for the Witnesses, they must be Persons of credit, and all Persons are supposed to be so, unless the Grant Jury know the contrary, or have been so credibly informed; 'tis true a Grand Jury ought not to believe Coffee house Stories, or light Stories, but common Fame by credible Persons, which is vox Populi ought to prejudice them against a Witness, so as to disbelieve him, and it is no Answer to say, as the Chief Justice in this Case said, That the credibility of the Witness is not to be considered by the Grand Jury, because the King is not present to defend the credit of his Witness (though the Fact in that Case was not true, for the King's Attorney, Solicitor and Counsel were present, and I think the King is no otherwise present at any Criminal Prosecution, and the Jury knew by Colledge's Trial and by Wilkinson's Deposition, before the King that the Evidence of all the Witnesses produced except what were to the Paper was questioned, but even that was afterwards quitted by the Court when it would not be swallowed by the Grand Jury; for afterwards the Court told them that if they, of their own Knowledge, knew any thing against the Witnesses, they might consider of it, but not of what they were credibly informed of by others, and besides the credibility of the Witnesses, the Possibility or Probability of the thing sworn is to be considered by the Grand Jury, an impossible thing they ought not to believe, tho' sworn by never so many credible Witnesses, and a very improbable thing they cannot positively on their Oaths swear they believe.  
And not only the Fact, but what the Crime of the Fact alleged in the Bill of Endictment, the Grand Jury as far as they are capable of judging Matter of Law ought to consider; so they were told in the charge given them; it is true if they were Ignorant in the Law and the Court in their directions misled them, as if the Court should tell them stealing an Horse is High Treason, and the Grand Jury find it accordingly, it is excusable in the Grand Jury, though punishable in the Court; but wrong directions by the Court in the finding a Fact, where there is no Evidence doth not excuse the Jury. Now to examine the Matter in hand by these Rules, could any Person who knew my Lord Shaftsbury, or that had heard of, or believed his Character to be what it was, believe that it was possible for him to discourse with the Witnesses, at the rate they swore; to some of them; to discourse of Matters of policy, with Booth at one time, and afterwards with Haynes, and afterwards with Macnamarra, Fellows of so little Sense, that he would have been ashamed to have entertained them in the meanest Office about him, and yet as they pretended makes them his Privadoes in the secret, of not so much what he would have had them, but of what he intended himself, to do.  
Who could believe any thing, Turbervile, Smith or Haines should say where there was so much of their falsehoods and of their designs to swear falsely proved against them in Colledge's Trial, or of Ivey and the three Macnamarras after that Trial, who tho' they were not produced at it, because the Kings, Conncil by Colledge's Notes, saw he was able to falsify them, yet some Witnesses in that Trial proved their design of swearing falsely.  
Who could believe Booth's story of Listing so many Men under Wilkinson, to be at my Lord Shaftsbury's dispose at Oxon, after Colledge's Trial, and after what Wilkinson had testified to the King and Council, though not then proved to the Grand Jury.  
A Judge indeed cannot take notice of any thing not proved (though he may and aught to be a Witness, if he knew any thing material of the Matter tried before him and others) but a Grand Jury may take notice of any thing they know or believe. The Passages at Colledge's Trial were pretty notorious, being authentically published by Fra: North; and the Examination of Wilkinson by as authentic a Paper.  
It was unaccountable, that the Witnesses concealed what they heard the Earl speak so long, of which none of them pretended to give any reason, nor was it any excuse to those who signed a Petition to the City, in which they suggested, they were tempted to swear against their Consciences, to say they knew not what was in the Petition, he that sets his hand to a thing, as if he aslented to it, but doth not, is a Man of Falshood. Suppose one sets his hand to a Bond, said to be sealed and delivered, not having seen it Sealed and delivered, is not he guilty of little less than Forgery; but admitting those Witnesses had sworn Truth, yet the Jury ought not to have found the Bill; for they ought to find the Bill true according to all the material Circumstances of it, as well as the Substance of it, which was High Treason; one material Circumstance of it was, that it was said to be High Treason, within the Statute of Car. II. and that made another Circumstance of the Indictment material, which was the time when that Treason was committed; because by that Statute the Prosecutions of Treasons on that Statute ought to be within fix Months after it is committed, and the Indictment ought to be within three months after the Prosecution; and he being imprisoned in July, and the Bill suggested, that the supposed Treason was committed the 18th. of March before, and divers other times both before and after, which might be interpreted to have been after the Prisoner's Commitment, had the Jury found the Bill as laid, they had found the Treason to have been committed not only within the time the Prosecution by that Statute ought to be, but also within the time the Indictment ought to have been preferred; whereas in truth, the Earl had been Imprisoned above three months before the Indictment preferred, and there was no Evidence of any Treason committed by him after his imprisonment; and therefore the finding the Bill as laid had been injurious to bring a Man in question for his Life on that Statute, whereas by Law he ought not to have been.  
For it was resolved in Colledge's Case that the Prosecution for Treason on that Statute ought to be within Six Months, and the Indictment to be within three Months, though the Court was of another Opinion in the Lord Russel's Trial.  
And that this Indictment was on that Statute was expressly said to the Grand Jury, and upon good reason; for the Court in their Charge said, that the Intention of levying War, or designing to Imprison the King, was not Treason, till the Statute of Charles the Second; tho' in the Lord Russel's Trial, it was held to be Treason by the Statute of E. 3. and therefore the Time of the Treason committed was material to be found by the Jury.  
As for the Writing found in the Earls Study it was no manner of Evidence of Treason, admitting what the Witnesses swore, as to the finding it to be true; because it was not proved that it was Prosecuted or Composed by the Earl of Shaftsbury, or by his Order, and that Peice of Evidence was in that Particular, a mere Original.  
In Fitz-Harris his Case, it was proved the Libel was Composed by his direction, Coll. Sydney's Book was proved to be like his Hand, it was pretended that College said he was the Author of the Raree-show, and no example of this Evidence was ever made use of before.  
Neither was it evidence of Treason as to the Matter, for there was not one word against the present King, but his Successor, if it should be such a Person.  
It is true, one of the King's Counsel said that one passage in it, was that they would join to destroy the Mercenary Forces about London, and thence inferred it was down right levying War, against the King and his Guards, whereas there is not any such word or thing in the Paper, as he pretended to cite, and if they had been in the Paper, they would have been but Evidence of a Treason within the Statute of the late King, and then the time of Writing them, aught to have appeared, and if that had been cleared, yet for the above Reasons it was no Evidence, and the Grand Jury, tho' some of them afterwards smarted for it upon other pretences, did like honest understanding Gentlemen, and had they done otherwise to avoid the Ignominy of being called, tho' in truth it was an honour to be an Ignoramus Jury, they had justly deserved the reproach, which since have lighted on other Juries; such as Mr. Cornish's. and the like, and having spoken of this Ignoramus Jury, for which two of them, if not more, were afterwards upon other pretences severely handled; I think fit to say something of the Sufferings of one, for being in a preceding Ignoramus Jury, because it was a mere Novelty, and that was Mr. Wilmore.   

REMARKS ON Mr. Wilmore's HOMINE REPLEGIANDO.  
HIS Prosecution though it was but Criminal and not Capital did as much mischief, as it struck a terror into all Grand Juries, as any the before mentioned Matters; and it was by the homine replegiando issued out against him. As for the Information against him I shall say nothing, because the injustice of both will appear in the discourse of the first, Mr. Wilmore had sent a Boy beyond Sea by agreement, as Mr. Wilmore said, whether true or not, as to this Matter is not material, a homine replegiando is granted against Mr. Wilmore for this, at whose Prosecution is not material; for any Person upon suggestion backed by an Affidavit may have it granted, the Sheriff would have returned on the Writ, that the Boy was sent by his own agreement and consent with Mr. Wilmore, which return was not allowed, and the Sheriffs were told that they must either return they had replevied the Boy, and they must have him in Court, or else they would be laid by the heels, or else they must return that Mr. Wilmore had Esloigned him, which is carrying him away, where the Sheriff could not find him, and then a Withernam would issue against Mr. Wilmore, upon which he would be taken and kept in Prison, till he produced the Boy, and no other return should be allowed then one of those two, and if they did not make one of those two Returns they should be Committed, and if the Law be so, the Court were innocent, but the Law ought then to be reform in that Particular; but if the Law was not so, as I think it is not, I think Mr. Wilmore and the Nation had great injustice done them; for it was quickly seen what the mischief of that Judgement was, and therefore it was endeavoured to be reform by an Act of King and Counsel afterwards; first I say, it is lawful for a Master to Covenant with a Servant to serve him beyond Sea, in the next place it is lawful for a Master to send his Servant beyond Sea according to such agreement, and if both those Propositions be true, as I think no Man will say they are not, it is a natural consequence to say, that the Law hath provided a Return upon a Writ of homine replegiando, if it should be such out against such Master for a Servant so sent beyond Sea, which may indempnify the Master in so doing, and that Return can be no other than the special Matter, which in this Case was refused to be accepted; 'tis no argument that no such Return is ever read of in any Book; For the Law hath determined, that some Returns are good and others are bad, yet it hath not said, what are all the good Returns, which may be made on an homine replegiando, and the Sheriff is no more confined to Returns than a Man is in the Pleading of his Case, which my Lord Coke says may very, according to the Nature of his Case, and yet the Law hath said what is a good Plea, and what a bad one, but hath not expressed all the good or bad Pleas; and therefore it is no argument against such a Return, that no precedent of it can be found, 'tis enough that no judgement can be produced against it, and the reason of both may be, that the Case never happened before, that is to say, that never any Person was so malicious before, as to sue out an homine replegiaendo against a Master for a Servant sent by agreement beyond Sea, and Returns must be varied according to the Case, perhaps no Precedent can be found of a Return on that Writ, that the Person sought for is dead, yet all Persons will agree it is a good Return, it is so in a Replevin of Cattle, and even that Example falsifies the Doctrine of the Court, that there is but two Returns on that Writ allowable by Law, it is not an argument for disallowing the Return, that the Person sent beyond Sea, was a Child not capable of making such a contract, (though I believe if the Matter were looked into he was of Age so to do,) for nothing of that doth, or can appear in the Writ or Return; It stands therefore simply upon this, whether the Sheriff may on an homine replegiando return, that the Person supposed to be in custody, being of full Age, was by mutual agreement sent beyond Sea by the Person in whose oustody by the Writ, he is supposed to be, which I think is far from a doubt; but notwithstanding all these hardships on Juries, it was seen to be plainly impossible to procure any Bills of Indictment for High Treason, much less any Persons to be convicted on the like Evidence, except in London, where are some of the best, as well as the worst, Men in the Nation, and even there it was not to be done as long as the Juries were sensible and honest Men, which would be as long as the Election of Sheriffs was in the Citizens, and to the Honour of the City, it was seen that they chose honest Men to be their Sheriffs, and those chosen when they saw the Public Safety depend on honest Officers, though at other times they had rather pay a Fine than undergo the trouble and charges of that Office, yet at that time no Man legally chosen refused to stand, tho' at that time they were reproached and punished for it; and if Mr. Box. refused, it was because he would not join with North, who was imposed on the City; for which reason it was resolved to take from the City, the right of choosing Sheriffs, but by what means it was not presently resolved on.  
That the City might forfeit their right of Electing, there was no great doubt, as if the Sheriffs were dead and new ones were not chosen in a convenient time; so that there was a defect of Justice or the like, they would have forfeited their right, but nothing of that kind could be laid to their charge, therefore a new unheard of Matter was thought on, and set a Foot, which was to make the City forfeit their being a Corporation, and being annihilated, the Grants made to them by the Crown, as the right of Electing Sheriffs was, would revert to the Crown again.  
A quo Warranto was therefore brought against the City in Hillary Term 1681. to show by what Warrant they pretended to be a Corporation, and to have the Privileges mentioned in the Writ, to which the City pleaded and set forth their right, and the King replied, and set forth several Matters done by them, contrary to the duty of a Corporation; upon which there was a Demurrer, of which Judgement was not given till Trinity Term, 1683. I will say nothing of the right of the Proceeding, it having been largely and learnedly argued for the City, but if the Matter were so clear a Case, as the King's Council and Court would have it to be, how came it to pass that in Henry the Eight his time, when the King was so earnestly bend to dissolve the religious Corporations, in which the inclination of the Nation joined with him, the doing it by quo Warrantoes was not thought of, it was very plain, that those pretended Religious did not observe the Rules, nor perform the Ends for which they were incorporated, and certainly their Misdemeanours against the intent of their being incorporated were better Causes of forfeiture than was the Cities Petitioning for a Parliament, etc. yet that King took other methods, he had formal Conveyances of their Lands, from most of those Corporations, and formal Surrenders of their Corporations signed by every individual of the Corporations, and those afterwards confirmed by Act of Parliament, and sure the Late King had as much right to bring a Quo Warranto against Maudling College for refusing, contrary to their duty, to admit the Precedent the King nominated; if the King had a right to nominate the Precedent (as some Judges asserted he had) as King Charles the Second had against the City, and it was once in debate, whether the Proceeding against that College should be by quo Warranto or before the Ecclesiastical Commissioners; the last was resolved on, not as the more legal or effectual, but as more expeditious. In the one the Proceed being de die in dieam, in the other from Term to Term; this only I will observe that when the Judgement against the City was given, which was of the greatest concern to the Nation ever contested in any Court of Westminster Hall, it was done by two Judges only, and no reason of that Judgement rendered, whereof Wythens who was one, I think, heard but one Argument in the Case; it is true they asaid Raymond, when alive, was of the same Opinion, and said Saunders who was then past his Senses was of the same Opinion, tho' I was told by one who was persent when the two Justices came to ask his Opinion in the matter, he had then only Sense enough to reproach them for troubling him about the Matter when they were sensible he had lost his memory, and to say truth, the delivering the Sense of an absent Judge, tho' it hath been sometimes practised, is not allowable; for sometimes they deliver another Opinion than what the absent Judge is of, Judge Withens did so in several Cases, when he delivered the Opinion of Sir Edward Herbert, which Sir Edward Herbert afterwards in open Court disowned; Judge Holloway served Judge powel the same trick, if the last said true. The long depending of the quo Warranto had Alarmed all the Nation, who yet were quiet, hoping that Judgement would be given for the City, as some of the Judges and of the King's Council had given out it would, but the contrary as resolved on; and therefore the Nation at the time of the giving the Judgement must be amused with somewhat else, and with nothing so proper as a Plot; but there was difficulty in that also: for if the pretended Plotters should be acquitted it would make the matter worse, and nothing would secure that, but imposing what Sheriffs they pleased on the City, and accordingly North and Richardo was pitched on, the one by a shameless Trick, and the other by open Force, were imposed on the City.  
Having gained that point the Proceed in the quo Warranto were much quicker than 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 Judgement 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' Judgement 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 Trial.  
THE Plot being noised abroad, the Persons beforehand resolved on, were seized on, and the Lord Russel and others were clapped 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, etc. and the same Morning was tried; he desired he might not be tried that day, for he had some Witnesses which would not be in Town till Night, which being denied, than he desired that the Trial 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 Panel of the Jury that was to pass on him, he was told he had a Copy delivered to his Servant some days before. The Jury being called, he challenged the Foreman, for being no Freeholder in London, to argue which, Council 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 Juryman ought to be a Freeholder; that the Stature of 2. Hen. 5. provides none shall be a Juryman in capital Matters, but a Freeholder 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  in the Ward in London, shows it was a good Challenge in London before that time; the 4th. of Henry the 8th. which likewise takes away the Challenge of no  in London, shows 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 King's Council said, at Common Law it was not necessary that a Juryman in Treason should be a Freeholder, 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 Freeholders' 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 overruled by the Kings-Bench, by Advice of the Judges of the Common-Pleas; that the Venire mentions no , But only Probos & Legales Homines de Vicineto.  
Then the Chief Justice asked Mr. Polexfen, whether he did find in any Judgement in Treason at Common Law, that no  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 Precedent 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 Privileges of the City of London seemed to be leveled at in that Point: Justice Withins was of the same Opinion.  
Then the Chief Justice told the Prisoner the Court overruled his Challenge, but that he had no Hardship put upon him, for the Reason of Law for Freeholders', 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 Freeholders'.  
These being the Reasons of overruling 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 Trial 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 Judgement 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 Judgement 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 Judgement 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 Juryman shall have Land to a competent Value, according to the Discretion of the Justices. My Lord Coke saith, in such case any  sufficeth, now how can that be true, if it were not necessary at Common Law, to have some , for the Statute makes no Provision for Debt or Damages under forty Marks. It must therefore be by Common Law, that some  was necessary, and that any  shall suffice. And surely, if in Civil Matters it was necessary for a Juror to have a , 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 Freeholder, 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 Freeholder to marry with a Tradesman, as is to be seen by the Statute of Wharton, and therefore mere Tradesmen, and not Freeholders', were not to be trusted with the Concern of a Trial in a civil Matter, and much less in a Capital, and least of all in a Trial of High-Treason.  
The Chief Justice Pemberton says, that the reason of Freeholders', 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 tried, is the measure of the substance of the Juryman; if that be true, the Trial in Treason is of the highest concern: How then is it true, as some of the Judges concluded, that though  might 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 ; for that is only a Privilege 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 passed upon him before, which is also in Favorem Vitae, that no man at the King's 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  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 Freeholders', or perhaps it was to no purpose, they being tried in Middlesex, where a Jury of Freeholders' 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 perhaps 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 Trial 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 Trial, signed by Fra. Pemberton, and of Colledges' Trial, signed by Fra. North, and of my Lord Russel's, signed by William Prichard Mayor, and Col. Sidnie's Trial, signed by George Jefferies, and Mr. Cornish's Trial, 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 King's side, to show 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 overruling this Challenge, some were of Opinion that it was no Chanllenge in any Case at Common Law; so said the Attorney and Solicitor 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 differed in their Reasons, yet all agreed in this, and in this only, that tried he should be, and that presently.  
Then, as for the Custom of the City of London, to try without Freeholders', 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  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 Worcester's Case, which I agree was of as good Authority, and of no better than the Judgement 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 Freeholders'.  
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 Freeholders' in the Cities; but when matters became more quiet, and Trade increased, and made Houses in the Cities more valuable, then were Houses of equal Convenience, and less Price, situate in the Suburbs, or in the Country, the Gentry by degrees parted with their Houses in the Cities to Tradesmen for Profit, and removed themselves to other Places. And I believe it may be remembered, that even the Strand, in the momory Man, could have furnished the County of Middlesex with a sufficient Number of Freeholders', and yet now, for the above Reasons, you can hardly find a Jury of Freeholders' there.  
Besides, It must be remembered, that London heretofore had many of the King's 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 Judgement, 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 Freeholders'; 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 Freeholders' 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 Freeholders' 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 expressly commands the Writ shall so express it, in all Issues joined in Westminster, to be tried 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 joined 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 Judgement. 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 Trial to be put off, for to have considered of it, in that time perhaps some of them might have remembered, 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 tried the Prisoner in Treason the day he was Arraigned, and could not put off the Trial for a morning without the Attorney General's Consent; but surely that is not true, Plunket and Fitz-Harris were tried 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 Trial, 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 Bailie, the Trial 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 General's 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 Tried and Judged by the Attorney alone, or what needs all the Formality of a Trial, if it be said that that Trial, was put of, because the King's Witnesses were no ready, I say there is the same Reason to put of a Trial, because the Prisoners Witnesses are not ready, and that was the pretended, though not the true Reason of putting of Fitz-Harris his Trial to another Term, and there is no Law to the contrary.  
It is totally in the discretion of the Judges, to put of a Trial, which discretion ought to be governed by Reason.  
But indeed this was extraordinary and without any precedent, it can never be shown 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 Trial was denied, where he shown but any Colour for what he said, when the Sessions were to continue after the time he desired as in this Case it did. Fitz-Harris said his Witnesses were in Holland, and though he named no Persons, yet his Trial was put off to the next Term; my Lord Russel said his Witnesses could not be in Town till that Night, yet the respite till next day was denied, all Persons agreed, that there was some extraordinary Reason for it, and before the Trial was over, the Riddle was out.  
My Lord of Essex was killed, or to be killed, that Morning, as to this Matter it is not material, whether by his own or another's Hand, they were sensible, the Evidence against my Lord Russel was very defective, and that accident was to help it out, but that would not avail unless it were a surprising Matter upon the Jury, should the Jury have had a days or but a Morning's time to consider of it, People might have been talking with the Jury, it was very material to ask, what influence that accident would have on my Lord russel's Trial, whether it was any Evidence against him, they might have been told what was true, that no Person killed, was in Law supposed to have killed himself, till a Coroners Enquest had sat upon the view of his Body and found it so, and if it had been so found, yet even that had been no Evidence against another, because the Coroners Enquest never found the reason why a Man killed himself, and if they should find the reason, yet even that was no Evidence against another, because that other was never called before the Coroners Enquest to make his defence, they might have been told a great many Circumstances of the Improbability of the kill himself, they might have observed that the King's Council was so far sensible, that it was no Evidence against my Lord Russel, that they never attempted to prove the Earl of Essex was dead or killed himself, it was only slyly insinuated together with the reason of it which had its Effect, if the report be true of some of the Jurymen's saying it went farther with them than all the Evidence of the Witnesses produced, and if that be true, there was a reason, though not a just one, for speeding that Trial beyond the ordinary Methods of Trials at the Old Bailie.  
But though my Lord Russel had seemingly less favour in that Matter than any other Person, even than College, who had the respite of two or three hours between his Arraignment and Trial, (though that was not in Favour to College, but only to examine his Papers which they took from him, and instruct their Witnesses accordingly) yet in other things he had more favour or justice done him; his Papers were not taken from him; it was agreed to be his Right to use them without questioning from whom he had them, what they were, or the like, as in Colledge's Case was done, he had a Copy of the Panel of the Jury, even before his Arraignment given him, and the Chief Justice said it was never denied in case of Life, that he knew of, which was denied Col ledge before he pleaded; because as then was pretended there was no Issue joined, till Plea pleaded, after which the Venire is awarded, tho' all Méns know, That the Sheriff summons the Jury before the Arraignment, and even after Issue joined; College was denied a Copy of the Panel, only he was told, he should look every Juryman in the Face before he was sworn; and as far as the Looks of a Man betrays him, he should be satisfied, whether he was honest or not, which is an ill way of judging; for I think the Person, that gave that Rule, would have deceived any Man by his Countenance, who had known his Practices.  
But say the Attorney General, in my Lord Russel's Case, it was matter of Favour, and not of Right, therefore no Injustice to College; I confess of all Men, which ever came to the Bar, he hath laid down the most Rules, which depend totally upon the Authority of his own Saying; In Colledge's Case, he affirmed, that the King's Witnesses ought not to be kept out of the hearing of each other, when they gave their Evidence (a method used in Civil Matters, the reason of which is well known, and none can show any Law or Reason, why it should not be used in capital Matters) with as much Reason and Authority as what now said.  
First I do affirm there is no Authority in Law, which says a Prisoner shall not Have a Copy of the Panel; In the next place I do affirm, that after a Jury struck in a civil Matter, each Party ought to have a Copy of the Panel, in order to provide himself of a challenge, if there be any cause: In the last Place, I do affirm, that by Law more Favour is allowed a Defendant in a Capital Matter to defend himself, then in a civil, and if these propositions be true, let any Person if he can make out the Law, or Reason of the above assertions.  
Of a like stamp were the say, when my Lord desired a Copy of the Matter of Fact laid against him, the Attorney said he had notice of it, for questions were put to him about it, and he was with his Lordship himself, and examined him upon those questions, which was a Favour to him, that he might know what the Matter was he was accused of.  
I do not affirm that ever it was practised, to give the Prisoner a Note of the Fact, to be given in Evidence against him, proving Treason, or that it was ever densed till then, nor do I know of any Law pro or con in the Case, but if one would judge by reason or practise in parallel Cases, I think it ought not to be denied.  
I know not at present of more than two Sorts of general Indictments. and those are of Treason and Barratry, the last is a general Indictment for stirring up Suits without reason, and without mentioning any Suit in particular; and therefore if by the Rule of Court, the Defendant was not helped, which obliges the Prosecutor to give the Defendant some reasonable time before the Trial, a Note of what Suits he intends to give in Evidence against him; it was impossible for the Defendant to escape, if it had been his misfortune to have had five or six Suits.  
For I never yet saw a Witness produced against the Indicted, but he would swear the indicted brought an Action against him without reason, and yet I have often seen, that the Indicted having had notice, that that was one of the Suits he was intended to be charged with, hath been able to prove, that he had good, or at least, probable Cause of Suit, which he could' not have done, if he had not notice; and in Treasons for designing to kill the King, there having been so many Interpretations of Facts tending that way, that it is almost impossible for an Innocent to defend himself, unless he had notice of the Fact intended to be insisted on at the Trial.  
There are yet some expressions which mightily puzzle me, the King's Council said in the argument of the challenge that they would not have the point of being a Juryman, though not a Freeholder lost to the City of London, and one of the Judge said, 'twas the Privileges of the City were struck at in that point, if by those expressions it is meant, that it is for the benefit of the public that there should be no failure of Justice, I argree to it but if it be meant that it is for the benefit of the Citizens to be Jurymen, I deny it; and I think nothing shows it plainer than that it is a Privilege, that a Citizen shall not be drawn out of the City to be a Juryman, that a Nobleman shall not be on a Jury, that it is a Matter of Prerogative in the King and favour to a particular Person, to grant him a Charter of exemption from being on a Jury; so that if I consider the Law, I know what is meant by those expressions, if I consider allowed Practice, it is true a Juryman may earn his Eight Pence for a Trial, but that is too inconsiderable pay, for Persons of substance as the Jurymen in this case were said to be fond of the employ, or to account it a Privilege, but even that was but in civil Mattress, in criminal Matters, not Capital, the Jury were heretofore paid, if they acquitted the Defendant, but not if they found him Guilty, though of late it hath been Practised to give them more, and treat them higher if they Convicted the Defendant than if they acquitted him; but in Capital Matters, as the Case in question was, it was never allowed, or at least owned to pay the Jury, be the Verdict which way it would, having spoken to the Preliminaries, I proceed to the Trial, wherein Coll. Rumsey was first produced, he said he was sent by my Lord Shaftsbury about the end of October, or beginning of November who told him, he should meet at one Shepherd's, the Duke of Monmouth, Lord Russel, Lord Grace, Sir Tho. Armstrong and Mr. Ferguson, to know of them, what resolution they were come to about the Rising of Taunton; Sheppard carried him where they were, and Answer was made, Mr. Trenchard had failed them, and there would be no more done in the Matter, at that time; thereupon the Lord Shaftsbury took a Resolution to be gone; Mr. Ferguson spoken most of the Message, and he thought the Lord Grace spoke something to the same purpose, he did not know how often he had been at that House, he was there more than once, or else he heard Mr. Ferguson make a Report of another Meeting to the Lord Shaftsbury, my Lord Russel was in the room, and that was all they said at that time, that he remembered, he was not there above a quarter of an hour; there was some Discourse about seeing in what posture the Guards at the Mews and Savoy were in, by all the company; to know how to surprise them, if the Rising had gone on; Sir Tho. Armstrong and Mr. Ferguson began, all debated it, he thought the Duke of Monmouth, the Lord Grace and Sir Tho. Armstrong were sent to view them; the Rising was appointed to be the 19th. of November, he was spoke to by the Lord Shafsbury to go to Bristol, if the Rising had gone on, but in what quality was not determined; the Lord Russel agreed to the Debate, being asked, if my Lord Russel said any thing there, and what? He answered, my Lord Russel spoke about the Rising at Taunton, being asked what my Lord Russel said, he answered my Lord Russel discoursed of the Rising; being asked if my Lord gave his Consent to the Rising, he said he did. The next witness was Mr. Sheppard, who said in October last, Mr. Ferguson came to him in the Duke Monmouth's Name, and desired the Conveniency of his House for himself and some Persons of Quality, which he granted. In the Evening the Duke of Monmouth, Lord Grace, Lord Russel, Sir Thomas Armstrong, Coll. Rumsey, and Mr. Ferguson came, not altogether, but the one after the other, Sir Thomas Armstrong desired, that none of his Servants might come up and that they might be private; so what they wanted he went down for, a Bottle of Wine or so, the substance of the discourse was to surprise the Kigns Guards, and in order to to it, th' Duke of Monmouth, the Lord Grace and Sir Thomas Armstrong went one Night, aske remembered, to the Mews, or thereabouts, to see the Guards, and the next time they came to his House, he heard Sir Thomas Armstrong say, the Guards were very remiss in their places, and not like Soldiers, and the thing was feasible, if they had but strength to do it, he remembered but two Meetings there, they came in the Evening, he heard, nor saw, any Coaches at his Door; when they came in, as he remembered, the Lord Russel, was both times there, he had no business with the Lord Russel, nor the Lord Russel with him, at that time, but since he had; he did not remember. Coll. Rumsey discoursed the Lord Russel about any private business, nor remembered any farther Discourse, he remembered no Writings nor Papers read at that time, upon Recollection he remembered one Paper read by Mr. Ferguson in the nature of a Declaration, setting forth the Greivances of the Nation, the Particulars he could not tell: It was a pretty large Paper, it was showed for Approbation as he supposed, when to be set out was not discoursed, 'twas showed to Sir Thomas Armstrong, and as he remembered, the Duke of Monmouth was present, and he thought Coll. Rumsey was present. Coll. Rumsey said he was not present, it was done before he came, Mr. Sheppard went on and said the design of the Paper was in order to a rising as he supposed, by the Purpose of it, he would not say the Lord Russel was there when that Paper was read, but he was there when the talk was about seizing the Guards, he could not be positive as to the times of those Meetings, but it was when the Lord Shaftsbury was absent from his House, he absented about Michaelmas Day, he could not be positive that my Lord Russel was at both Meetings, he thought he was at both, he was sure he was at one, the last Witness was the Lord Howard, he said, he brought Captain Walcot acquainted with the Lord Shaftsbury, and upon his account, Captain Walcot soon gained a confidence with the Lord Shaftsbury, Walcot told him, the People were sensible all their Interest was going to be lost by the violence offered to the City, in the Election of Sheriffs, and that they were resolved to take some Course to put a stop to it, that there was several meetings, about it, and some Persons begun to prepare to Act, that some had good Horses and kept them in private Stables, and he resolved to be one in it, he having an Estate in Ireland, he dispatched his Son thither, and ordered his Son to turn his Stock into Money, the Son went about August, that the 30th of Sept. Walcot Dined with him; told him that the Lord Shaftsbury was secreted and desired to speak with him, Walcot brought him to the Lord Shaftsbury, who complained of the Duke of Monmouth and the Lord Russel for deserting him, but there was such preparation made in London, that now he was able to do it of himself, and intended to do it suddenly, he had above 10000 brisk Boys ready to follow him, when he held up his Finger, they would possess themselves of the Gates, and in twenty four hours they would multiply to five times the number, and would be able to possess Whitehall by beating the Guards; the Lord Howard went to the Duke of Monmouth, told him the Lord Shaftsbury's complaint, who said, the Lord Russel and he told the Lord Shaftsbury from the beginning, that there was nothing to be done by them in the Country, at that time; the Matter of the discourse between him and the Duke of Mounmouth, him and the Lord Shaftsbury, and him and Walcot, is too tedious to relate, and as little to the purpose, if the Jury had understood Matter of Law which they did not; in it he takes care to show what Confidence my Lord Shaftsbury had in him, more than in the Duke of Monmouth or the Lord Russel, how very Cautious he was, and how Precipitate the Lord Shaftsbury was, and that what he told the Duke of Monmouth, the Duke told the Lord Russel, and he heard the Lord Russel had been with the Lord Shaftsbury, and put off the intended rising, at which the Lord Russel interrupted him, and said he thought he had very hard measure, there was great deal of Evidence given by hear-say only, whereupon the Chief Justice said it was nothing against the Prisoner, he declared it to the Jury, but the Attorney General bid the Lord Howard go on in the method of time, and that it was nothing against the Prisoner, but the Witness was coming to it, if his Lordship would have Patience, he assured him so, the Lord Howard went on where he left off, with a story between him and Walcot, of an intended Rising, and of some dark Say let fall by Walcot, and the Lord Grace, importing a Design upon the King's Person, but the Lord Howard was very careful to put all off, but at last it was resolved to rese on the 17th of November, but the Lord Howard fearing it had been discovered, because he saw a Proclamation a little before, for bidding Bonfires without the Lord Mayor's leave, that of the 17th of November, was also disappointed, and the Lord Shaftsbury went away and died, but considering they had gone so far, that it was not sase, to retreat, and considering that so great an Affair as that was, consisting of such infinite Particulars, to be managed with so much fineness, they erected a Cabal of six Persons, the Duke of Monmouth, Lord of Essex, Lord Russel, Mr. Hampden, Algernon Sidney, and himself, about the middle of Jannary last, and about that time, they met at Mr. Hampdens' House, where it was considered whether the Insurrection should be in London, or in Place distant, what Countries and Towns were fittest and most disposed to Action, what Arms necessary to be provided, how to raise twenty five, or thirty thousand Pounds, and how they might so order it, as to draw Scotland into a Consent with them; about ten days after, they met at the Lord Russe's House, and then resolved to send some Persons into Scotland to the Lord Argile, to invite some Persons hither to give an account of that Kingdom; the Persons to be invited, were Sir Jo. Cockram, Lord Melvil, Sir Campbill, that matter was referred to Col. Sidney, who told him he had sent Aaron Smith; they agreed not to meet again till the return of the Messenger; the Messenger was gone about a month, it was six weeks or more before he returned, and then his Lordship was forced to go into Essex, where he had a small Concern, where he stayed three weeks, and when he returned, he was informed Sir John Cockram was come to Town, and afterwards he was forced to go to the Bath, where he spent five weeks, and from that time to this, was five weeks, all which time was a Parenthesis to him. And that he and the five mentioned erected themselves by mutual Agreement into that Society. Atterbury swore campbel was in his Custody: then Col. Rumsey was asked whether my Lord Russel heard him when he delivered his Message to the Company, and in what place of the Room the Company were; who answered, that when he came in, they were standing by the Fireside, but all came from thence to hear him; and when my Lord Russel said Col. Rumsey was there when he came in, Rumsey said no, the Duke of Monmouth and Lord Russel went away together.  
Then in behalf of my Lord Russel, the Earl of Anglesey was examined, who said, that visiting the Earl of Bedford, the Lord Howard came in, and told the Earl of Bedford that his Son could not be in such a Plot, or suspected of it, and that he knew nothing against the Lord Russel, or any body else, of such a Barbarous Design, and he was going on again with what the Lady Chaworth had told him, but was interrupted by the King's Council, telling him, as the Court would not permit them to give Hear-say in Evidence against the Prisoner, so they must not permit his Lordship to give Hear-say in Evidence for the Prisoner. Mr. Howard said, that the Lord Howard took it upon his Honour, and his Faith, he knew nothing of any Person concerned in that Business, and not only thought my Lord Russel unjustly suffered, but he took God and Man to witness, he thought my Lord Russel the worthiest man in the World. Dr. Burnet said, the Lord Howard was with him, and he did then, as he had done before, with Hands and Eyes lift up to Heaven, declare he knew nothing of any Plot, nor believed any, and treated it with great Scorn and Contempt. The Lord Cavendish testified, as to the Life and Conversation of the Lord Russel, and thence concluded, it was not likely he should be guilty of any such matter, and heard the Lord Russel speak of Rumsey, as if he had an ill Opinion of him, and therefore it was not likely he should trust him. Dr. Tillotson spoke of his Conversation. Dr. Burnet and Dr. Cox spoke of his Cenversation, and of his Averseness to all Rise. Dr. Cox testified, that my Lord Russel said the Lord Howard was a man of luxuriant Parts, but he had the luck not to be trusted by any Party. The Duke of Somerset spoke of the Lord russel's Conversation. The Lord Clifford, Mr. Leveson Gore, Mr. Spencer, and Dr. Fitz-Williams spoke as to my Lord Russel's Conversation. The Lord Howard being asked by the Jury what he said to the Earl of Anglesey's Evidence, owned what the Earl said, but he did it to outface the matter, and if he said untrue, he ought not to be believed on his Oath, and insinuated, that he meant what he said, to be meant of a Design of Murdering the King, which he did not believe the Duke of Monmouth or the Lord Russel guilty of.  
This being the sum of the Evidence given against, or for, my Lord Russel, let us consider how far it will justify the Verdict given against him; first consider the improbability of Rumsey's Evidence, if my Lord Cavendish said true, that he should trust Rumsey to hear the debate about seizing the Guards, when the Lord Russel had an ill Opinion of Rumsey, as for Rumsey's delivering the Message, there was no great Matter in that, it is impossible to hinder People's speaking, and it is not Treason to conceal what's said; besides it was well known, it was. Rumsey's way to talk extravagantly, in order to accuse those that heard him, if they did not discover it, but besides the improbability of the Evidence in respect of the Person, the manner of delivering the Evidence, and the Evidence if self was such as carried no Colour of Truth with it, he said he delivered his Message and had an answer to it, and being asked what the Company said further, answered, that was all that was said at that time that he remembered, and gives a very good reason for it, for he stayed not above a quarter of an hour, and added that he was not certain, whether he then heard something of a Declaration there, or whether Mr. Ferguson reported it to my Lord Shastsbury, that they had debated it, and yet when Sheppard said Rumsey was there when the Declaration was read, he denied it, and said it was read before he came in, being asked to what the Declaration tended, he answered to another Matter, viz. that there was some discourse about seeing in what Posture the Guards were in, and said that all the company debated it, and being drawn on by questions, said it was in order to seize the Guards, if the Rising had gone on; now how doth that Part of the Evidence agree with what he said before, that there was nothing more said than the delivering his Message, and the answer to it; and how doth it agree with the time he said he stayed, which was not above a quarter of an hour, whereas that debate, if all the Persons present being six debated it, as he said they did, it would certainly have taken up a larger time, how does the first and last part of his Evidence agree, when he said my Lord Russel agreed to the answer of his Message, and being askedd whether and what he spoke to it? said, he spoke about the Rising at Taunton, but doth not say, what, and yet in thefirst part of his Evidence, he said when asked, who sent the Message back, Mr. Ferguson delivered the answer, the Duke of Monmouth and the Lord Russel were present, and he thought the Lord Grace said something to the same purpose, but what credit could be given to any part of a Man's Evidence, whose memory was so shallow, that he could not remember whether he was at two Meetings, or whether Mr. Ferguson related one of them to the Lord Shaftsbury, yet both were supposed to be within the compass of a Year, whereas a Man of Sense is supposed to remember all his own Acts for seven Years past, which it the reason why the Chancery obliges a Man to answer as to his own Acts positively for seven Years without saying as he believeth, or as he remembreth, or the like, what credit is to be given to a witness who testifieth what was said in company, and by whom, when his memory doth not serve to answer positively, whether he was in the company, or whether another told him what was there said, he might as well have said he was there, or dreamt he was there, or that he heard the discourse or dreamt of it, had carried equal credit with it.  
It was plain, the Man was not of sane memory enough to make a Will, much less to be a witness in the Trial of a Man's Life, and nothing can be said for him, but that he was a witness for the King, that is to say, a mad Man may be a witness to take away a Man's Life, which is as good law as a great deal of other Cant vented as a part of the Prerogative.  
It is true one of the King's Council recommends Rumsey to the Jury, as a very credible witness under the notion of an unwilling witness, but had the same Person been a Council for the Prisoner, he would have called Rumsey a dancing witness, for he said backwards and forwards, and an amazed winess for being asked one thing, he answered another, being asked as to the Declaration, he answered to the seizing of the Guards, being asked whether my Lord Russel assented to the answer of the Message, he replied yes, because he talked of the Rising, etc. which might be as well against as for it.  
Sheppard's Evidence was to the Design, of seizing the Guards, and as to the Declaration, he remembered but two Meetings, at both which he said, a he remembered, my Lord Russel was present but he could not be positive in that, and the times of the Meetings he did not remember, he said, the substance of the Discourse was, how to surprise the King's Guards, and that the Duke of Monmouth, the Lord Grace and Sir Tho Armstrong went to see the Guards, as he remembered, and the next time they came to the House, Sir Tho. Armstrong said, the Guards were very remiss, etc. Taking this Evidence by itself, without tacking Rumsey's Evidence to it, it was so far from being Evidence of Treason, that it was no Crime; for he doth not say, it was intended to be put in practice, notwithstanding all said by him, both the Discourses and the Persons viewing the Guards (which last was not Evidence, not aught to have been given in Evidence) might be a Matter to try each others Judgements, as well as an Evidence of a thing designed, and if it be capable of two Interpretations, the Law hath said, it shall be taken in mitiore sensu, in favour of Life, that distinction was taken by the Chief Justice in Blague's Case, the day after this Trial where the Evidence against him, was a discourse about taking the Tower, as High a Crime as seizing the Guards, and upon that Blague was acquitied, it is true Rumsey said it was in order to be put in Practice, when the Rising should be in the Country, but that he did not say at first; but was afterwards lead to it by question, nor doth he speak it as a thing at that or at any other time determined, but as his own surmise or guests, because he knew of an intended Rising, yet how foolishly did he contradict himself, for says Rumsey it was to have been put in Practice, if the intended Rising had gone on, and yet at the same Meeting he had said before, the Rising was put off, how contradictory therefore is it to say they made preparations for a thing they had laid aside before, and it is plain Sheppard speaks of the same time, for both agree, Rumsey was at that Meeting, though they do not agree how soon he came, besides, how could Sheppard speak positively of the discourses, or of the Design of it, when he owns he did not hear all their discourse, and gives a very good reason for it; for he said he went several times down to fetch Wine, Sugar and Nutmeg, and did not know what was said in his absence, he said he heard nothing about a Rising, nor heard any further discourse; but on recollection, he heard something about a Declaration of Grievances in order to a Rising, as he supposed, the Particulars he could not tell, now what sort of Evidence was that, in all Civil Matters, a Witness shall not be permitted to give Evidence of the content of a Deed or Writing without producing the Deed or Writing if self, or a true Copy of it, and upon very good reason; for he may make an untrue Construction of it, I remember a Witness who swore to the content of a Deed of Entail, and being asked whether he knew a Deed of Entail, and by what he knew the Deed he spoke of to be a Deed of Entail, answered he knew a tailed Deed very well, and he knew the Deed he spoke of to be a tailed Deed, because it had a Tail half as long as his Arm, meaning the Label of the Deed, and if this be the Practice and the Reason of the Practice in Civil Matters, show me any Authority or Reason any thing should be permitted to be given in Evidence in Treason, which is not permitted to be given in Evidence in the Trial of any Civil Matter.  
If you say as Justice Levins said, in a like Case, in Colledge's Trial, that it would be the difficultest thing in the World to prove Treason against a Man, if the Law were not so, and the King would in no sort be safe, of the other Hand I say as College there said, if the Law should be so, no private Person is safe, and if there be mischiefs of either Hand, the Law is and must be Judge, which hath taken care (though to no purpose, because it hath not been observed) that there shall be a stricter Proof in Treason than in any Civil Matter, or in any other Crime, and how the Judges come to permit that lose Evidence in Treason to be given, which of late Years they have done, no just or honest Account can be given.  
The last material Witness against my Lord Russel was my Lord Howard (as for Atterbury's Evidence, it ought not to have been permitted to be given, as shall be shown, nor was it material) to no part of whose Evidence any Credit ought to be given, even by his own Confession, he was surely in the right, when he said that the Religion of an Oath is not tied to a place, and I'll add, nor to a Form, but receives its Obligation from the Appeal is therein made to God, and therefore if he said, (though I own he was not bound to say it) to the Earl of Bedford, Mr. Howard and Dr. Burnet, what was testified against him, he ought not to be believed in any part of his Evidence, did he say to my Lord Bedford, when unsent for and unasked, for aught appears after my Lord Russel was clapped into the Tower, he said his Son could never be in any such Plot, as that, or suspect for it, and that he knew nothing against him, or any body ehe, of such a barbarous Design, and yet he knew if he swore true that my Lord Russel was Guilty of such a barbarous Design, that nothing but the Lord Howard's Duty to God, the King and the Country, could prevail with him, to give it in Evidence against a Person for whom be had so great an Affection as he had for my Lord Russel, how was it consistent with the truth of his Evidence what he said to Mr. Howard, that he knew nothing of any Man's being concerned in that business, and particularly of my Lord Russel whom he highly Commended, and said be thought the Lord Russel unjustly Suffered, or with what he said to Dr. Burner with Hands and Eyes lift up to Heaven, which is as much an Appeal to God, as may be, that he knew nothing of any Plot, nor believed any, it was an idle Evasion to say, when he spoke of my Lord Russel, he meant my Lord Russel was not Guilty of the Design of Murdering the King, (for which that Man as he said was Committed) meaning Walcot, the Lord Russel, or any other Person, for he is still at liberty to explain himself, and I am apt to think they were all Committed by Warrants of the same Form. I know not how dextrous he is at paring an Apple, but he must be an Excellent Logician that can reconcile the truth of his Evidence and Say, the Truth is, that a Man that hath those Niceties in his Head ought to have no Credit; for no Man knows whether he understands what he says aright, and I am apt to think that his Lordship can show, that he did not intent what he said at my Lord russel's Trial in the Sense it was understood by the Court or Jury, to say, that he was to outface the thing for himself and his Party was as vain (for besides that I think he was of no Party, because as my Lord Russel said he had the luck to be trusted by none) where was the Sense of making those Protestations to Persons, who could do him no good, and would do him no harm, both which my Lord Pemherton could; and therefore 'twas not alike: It is true the Attorney General Commends the Lord Howard as a Person of great Credit amongst the Party, and insinuates the Lord Grace was left out of the Cabal for his Immorality, and the Lord Howarch was taken in his place; but to pass from the General of his Evidence to the Particulars of it, for about two Leaves in the Print of it 5 it is a discourse between my Lord Shaftsbury and him; wherein he makes my Lord Shaftsbury have a wondrous Confidence in him, and discovers all the Design to him, and what number of Men he had at Command; but who they were, or what they were, was never yet discovered, and yet the Lord Howard had not at that time been concerned in the Matter, nor did then assent, he very prudently was resolved to see, whether it was likely to take Effect or not before he would enter on it, it was indeed a Matter of great wonder to those who knew my Lord Shaftsbury, and knew what Opinion he had of the Lord Howard from the time the Lord Shaftsbury discovered that the Lord Howard frequented the Duchess of Portsmouth, which was before Fitz-Harri his Trial, though after that Trial the Matter was publicly owned, which was before suspected by most known to the Lord Shastsbury, that he should so readily trust the Lord Howard with the Secret, who was unconcerned in the management before, as he says himself, and yet secreted himself from the Duke of Monmouth and my Lord Russel, who were equally Guilty, if what was sworn, was true; I cannot but observe that in all the time of the Lord Shaftsbury, the Lord Howard was not otherwise concerned in the pretended Design, but in raising difficulties, and being in great fear lest there should be a Rising or an Attempt upon the King's Person, and if he said true, he was he Man that put of the intended Rise and likewise the intended Designs on the King's Person, in so much that I think he was so far from standing in need of a Pardon for Treason, that he deserved a considerable Reward, if it were for nothing else than for his fearing the design was discovered: By the Proclamation against Bonfires, which, as he said, put off the Rising intended to be the 17th. of November, and yet he and others being afraid the middle of January, they erected themselves into a Cabal of Six Persons, of which there is but one Person in all his Narrative, he pretends to have spoken to about that Matter before, which is the Duke of Monmouth, and but one more he pretends even by hearsay to be concerned in it before, which is my Lord Russel, and how improbable therefore was it, that those Six Persons should, as it were on sight, put themselves upon such a dangerous design, especially considering the reason he gives for it, which was their Fears, that what had been transacted was, or might be, discovered; this likewise is observable, that from the 30th. of September, the time the Sheriffs entered upon their Office to the 17th. of November following, he is very exact as to the time of each Matter, when there was no Person could contradict him; for my Lord Shaftsbury was dead, Walcot was convicted, and the Duke of Monmouth was gone, who are all the Persons mentioned to be concerned in that time, yet when he comes to speak of the matter, in which my Lord Russel was concerned, then be says, it was about the middle of January, about ten days after, about six weeksafter, about three weeks and five weeks; for had he been precise in the times, he might have been disproved in the Meetings, he gave Evidence of; and it is much his Memory was so very good as to the former times to be so very precise in them as he was, and so very defective in the latter times, and yet those times do not make up the space between the middle of January, and the time of the Trial by many weeks, unless you will give large allowances to the word (about) an Exception which was taken to Mowbray's Evidence, tho' he rectified it by his account in his Almanac; but it would not be admitted, tho' College very sensibly desired of the Court for Justice sake to look on the Almanac, to see whether it was newly writ, as if done for that purpose.  
Besides the Improbability, if such a thing was in hand, as the Lord Howard, pretended, for him to run into the Country, and then to the Bath, when the matter was just come to a Crisis as it were, shows him, if swore true, rather a Madman than a Traitor.  
But the Usage of the King's Council and the Court toward the Prisoner was very unjust and unfair, they permitted the Lord Howard to go on with a long story of him and my Lord Shaftsbury, at which when my Lord Russel took Exceptions, the Chief Justice it is true said it was no Evidence, yet the Attorney General bidding him go on in the Method of time, he went on where he left of; intermixing Stories of Designs and of Attempts by other Persons upon the King's Person to exasperate the Jury, as my Lord Russel said rightly against him; a thing which no Council durst have done, and no Court would have suffered in any other Case, nor even in that would the Court or Council suffer it for the Prisoner; how was my Lord Anglesey checked when he began to tell what my Lady Chaworth said, and Mr. Edward Howard, when he did not speak of his own knowledge, how unjust was it for the King's Council to repeat all the Evidence the Lord Howard gave, when they summed it up, even that which the Court told them before was not Evidence! how unjust was the insinuating of the Death of my Lord of Essex, as Evidence against my Lord Russel! and why did not the Court in Summing up the Evidence take notice of the Liberties the Witnesses and Council had taken, and have told them what was not Exidence. No other reason can be given than what College said at his Trial upon his Observation of Fitz. Harris' business and his own, That the Matter was not to stop at him.   

REMARKS ON Col. Sidney's TRIAL.  
THE Lord Russel being Executed, and the same day, what was called his Speech, being published then, which nothing of Print was more eagerly accepted or sought after, which shown the Inclination of People; there was some respite for quieting the minds of the People, but it was not to stop there, as College said, and therefore Col Sidney (who was talked to Death, under the Notion of a Commonwealth's man) was the 17th. of November, 1683. brought to Westminster to be arraigned on an Indictment of High-Treason; the Indictment at the time he came to the Hall, was so far from being found by the Grand Jury, that it was not so much as presented to them; but the King's Council, who had packed the Jury, knew well enough that it would be accepted, that is, found upon sight by the Jury, without any consideration, which was accordingly done, and Col. Sidney thereupon arraigned. The Indictment was for designing to depose the King, and to persuade the King's Subjects to rebel; and that he did write a certain Libel, wherein it was contained, that he (meaning King Charles, the Second) is subject to the Law of God, as he is a Man, to the People who made him such, as a King, & To which Indictment, he would have put in some exceptions, expressed in a Parchment in his Hand, but was told by the Court, he must either plead or demur, and upon no other Terms Exceptions could, or aught to be, admitted, after which, he pleaded not Guilty.  
The 21th. of November he was tried, at which time he insisted to have a Copy of his Indictment, as he had done when he was arraigned; but was both times denied. The first Witness against the Prisoner was Mr. West, against whom Col. Sidney objected, because he was not pardoned; but it was answered by the Court, that he was a good Witness in my Lord russel's Trial, and therefore should be in that; then Col. Sidney desired Mr. West might speak nothing but what be knew of Col. Sidney, but was answered by the Court, he might give Evidence of a Plot in general, though Col. Sidney not concerned in it, and it was called Sir William Jones' Law; then Mr. West went on, and gave Evidence of what Col. Rumsey, Mr. Nelthorp, and Mr. Ferguson told him of Col. Sidney, but of his own Knowledge, he could not say any thing of the Prisoner. Rumsey gave a like Evidence he had done in my Lord Russel's Trial, with an Addition of what Mr. West and Mr. Goodenough told him. Keeling gave evidence of what Goodenough told him, all which the Court agreed was no Evidence against the Prisoner. Then the Lord Howard gave the like Evidence from the niddle of January to that time, as he had done in the Lord Russel's Trial, saving that the said the Earl of Salisbury was brought into the Cabal, who was not mentioned before, and save that be said the meeting at my Lord Russel's was about a Fortnight or three Weeks after the meeting at Mr. Hampdens whereas in my Lord Russel's Trial, he says it was about ten days after the meeting at Mr. Hampden's House, and here he makes two notable Speeches for Mr. Hampden at the opening of the Consult, both which he had forgotten at my Lord Russel's Trial, nor could remember at Mr. Hampden's Trial, though in the last he was lead by a great many Questions, to put him in mind of them. After his Evidence given, Col. Sidney was asked whether he would ask the Witness any Questions, who answered, he had no Questions to ask him; whereupon the Attorney General said silence— You know the Proverb.  
The Record of the Lord Russel's Conviction and Attainder was given in Evidence. Sir Andrem Foster swore Sir John Cockrant and the two campbel's came to London; Sir Philip Floyd proved the seizing of some Papers in the Prisoner's House, and he did believe the Papers shown in Court to be some of them. Sheppard, Cary, and Cook swore the Writing produced was like the Prisoner's Hand writing; the Attorney General desired some part of the Writing should be read; the Prisoner desired all of it might be read, but was answered by the Court, that the Attorney must have what Part of it he would to be read, and afterwards the Prisoner should have what Part of it he would, should be read; but he persisted to desire all of it should be read; then the Writing was read, which wouldhave plainly an Answer to a Book, but what Book was not mentioned, in which the Right of the People was asserted. The Earl of Anglesey gave the same Evidence for the Prisoner, of the Lord Howard's speaking of my Lord Russel and the Plot, as he had done in my Lord Russel's Trial. The Earl of Clare said that the Lord Howard, after Col. Sidney's Imprisonment, said, if he was questioned again, he would never plead, the quickest Dispatch was the best, he was sure they would have his Life, and speaking of the Primate of Armah's Perphesie, said, the Prosecution was begun, and he believed it would be very sharp, but hoped it would be short, and said, he thought Col. Sidney as innocent as any man breathing, gave him great Encomiums, and bemoaned his Misfortune; and as for Col. Sidney's Papers, he said he was sure they could make nothing of them. Mr. Philip Howard said, the Lord Howard said it was a Sham-Plot; Dr. Burnet gave the same Evidence as he did in my Lord Russel's Trial; Mr. Ducon gave Evidence, that the Lord Howard said he knew nothing of Col. Sidney's being in any Plot. The Lord Paget gave Evidence to the same purpose. Mr. Edward Howard gave Evidence to the same purpose. Tracy and Penwick gave Evidence to the same purpose. Mr. Blake testified, that the Lord Howard said he had not his Pardon, and could not ascribe it to any other reason, than that he must not have his Pardon, till the Drudgery of Swearing was over. Now to review that hath been said, it is strange to see what a Progress was made in the Resolutions of Points of Law, to take away a man's Life; to say in Col. Sidney's Words, as if the Court and Council thought it their Duty to take away a man's Life any how. Mr. West and several others are admitted to give Evidence by Hear-say against the Prisoner, and their Evidence summed up and urged as Evidence to the Jury, and the Reason given for it, was, that he was admitted a good Witness of a like matter, in the Lord russel's Trial; which besides that, it was not true, for he was rejected in that Trial, as it appears in the Print; yet if he had been admitted, it was of no Authority, as Col. Sidney said, because perhaps he was not excepted to; of a like Stamp is the Evidence of the Conviction of the Lord Russel, though I agree the Lord Russel's Conviction was as good Evidence against Col. Sidney, as the Earl of Essex's Murder was against my Lord Russel, and no better; the same may be said of Rumsey, Keeling, Foster and Atterbury's Evidence. Against the Lord Howard's Evidence, there was the same Objections, as in the Lord Russel's Trial, with the Addition of several other Persons, testifying, that he said he knew not, or believed any thing of the matter, and that he could not have his Pardon, till he swore others out of their Lives, which in truth was the Sense of his Expressions.  
The King's Council indeed had thought of something since the Trial of my Lord Russul to palliate the matter of the Lord Howard's Sayings (for they leaned hard upon his Reputation, and looked as if he would perjure himself at the expense of some Persons Lives, as his Words are in the Lord russel's Trial) would you, say they, have had him confessed the matter to those Persons to whom he had denied it?  
I think there is a difference between confessing and denying, who asked him the Question? What did it avail him to deny it to the Persons testifying against him? and therefore when he voluntarily said a thing untrue, unasked, not provoked or compelled to do it, and which could do him no good, it was good Evidence of his untruth, and that no Credit ought to be given to what he swore.  
As for the last part of the Evidence, which was about the Writing, both the Indictment and the Evidence was defective.  
As for the Evidence, if the Subject Matter of the Writing had been Evidence of Treason, the Indictment ought to have expressed that he published it, which the Indictment in this Case did not; and upon good reason, which was, that the Jury might be put in mind, that the Publishing of it was necessary to make it known; whereas they very well knew that the Evidence would not, nor did come up to it. This was the first Indictment of High-Treason, upon which any man lost his Life, for writing any thing without publishing it; for in Fitz-Harris's Indictment, he was charged with publishing his Libel; and so in all other Indictments for Writing, and upon good reason, for this being made an overt Act of Treason, it must be an Evidence of a Design to kill or depose the King, or the like; and as the Consequence of what in the Writing contained, which was that the Power was in the people, etc. being in its Nature no other, nor urged by the King's Council, to any other intent than to corrupt the Subjects minds, could not be Evidence of such matter, unless proved he had Writ and Peblished it, whereof the last was not pretended to be proved.  
That it was necessary to be expressed in the Indictment, and and proved at the Trial, appears by the Resolution of all the Judges of England in Hugh Pines Case, reported in Cro. Car. 89. at a time when Prerogative run pretty high; wherein, besides the resolution that no Words charging the King with any personal Vice, is Treason. There is the Case of one Peacham, in the 33d. of Henry the 8th, cited, who was indicted for Treason, for Treasonable Passages in a Sermon, never preached, nor intended to be preached, but found in Writing in his Study; he was found guilty, but never executed, for many Judges at that time were of Opinion it was not Treason, as the Book says, which I think, according to the Evidence here given, was the express Case of Col. Sidney, admitting he writ the Book produced, and that the Passages in it were Treasonable.  
And as this Indictment was an Original in the particular before mentioned, so it was a second of an Inuendo Indictment of Treason, Fitz-Harris was the first, the Prosecution against Car,, as I remember, was an Information, and Judgement Arrested after a Verdict because it was by invendo, of which no Precedent could be produced, and although in Actions for words it was permitted, yet in Criminal Matters being Penal, it was resolved it ought not to be permitted, and certainly much less in Treason, and as this Indictment was an Original in one part, and a Second in another, the Evidence on it was an Original in another part, which was proving the Book produced to be Coll. Sydney's Writing; because the hand was like what some of the Witnesses had seen him writ, an Evidence never permitted in a Criminal Matter before; The Case of the Lady Car was truly cited by Coll. Sidney against whom there was an Indictment or Information of Perjury, in which it was resolved that comparision of hands was no Evidence in any Criminal Prosecution, and it must be owned that at that time besides Keeling and Twisden, there then sat in that Court Sir Wadham Windam,, whom all will own to have been the second best Judge which sat in Westminster-Hall, since the King's Resturation, and if it be not Evidence in a Prosecution of Misdemeanour, much less in Treason as Coll. Sidney said, which inference, besides the reason of the thing, is backed by the Authority of my Lord Coke.  
But admitting Coll. Sidney writ that Book, and Published it; yet if it were not done with a design to stir the Subjects up into a Rebellion, but was writ and Published only disputandi gratia, as the immport of the Book shows plainly it was, it was no more Treason than the discourse between Blagrave and Mate Lee about taking the Tower was, and suppose it was writ with that design, yet it not appearing when it was writ, how could a Jury upon their Oaths say it was done with a design to raise Rebellion against King Charles the Second, when for aught appeared, it was writ before he was King or thought of, it might for aught appeared be writ in Kings Charles the First his time, or Cromwell's time, and designed against either of them, or any Foreign Prince, and therefore could not be Treason against King Charles the Second.  
The Evidence was an Original in this Particular, also it was the first time that ever a Particular Expression in a Writing was ever given in Evidence against a Man in Treason without reading the whole Writing, and for a very good reason given by the Jury in Fitz Harris his Case, which was that there might be something in the Writing not expressed in the Indictment, which may explain the Clauses in the Indictment, so that they may bear another construction, and in that Trial it was agreed, the whole Writing aught to be read, and was read accordingly, and it was the duty of the Court to have ordered it, whether the Prisoner or Jury had desired it or not, as they are upon their Oaths to do right; but in Coll. Sydney's Case, when pressed by him, it was denied; only some Particular Passages he might have read, if he would, which he did not accept of, upon a very good reason with he gave, which was, that he knew not the Passages of the Book, or at least he did not remember them, and therefore could not call for them, 'tis true that Practice in Civil Matters is allowed to save time, where the mischief is not very great, because of a Passage in a Deed or Writing Material for either Party is omitted in reading, the Matter may be brought about again, but in Criminal much less in Capital, Prosecutions they cannot be, unless a way can be found to bring a Man to Life again.  
Almost all the Circumstances of this Trial are Originals, the summing up of the Evidence against him was Barbarous, being Invectives, and no Consequences, it was shid he was not only Guilty of the Practices he was accused of, but he could not have been otherwise, because his Principles lead him to it, and it might with as good reason have been urged, that he not only was became, but was Born, a Traitor; the last Matter remarkable in the Trial was that of an Overt Act of which the Court said it was resolved by all the Judges of England, that if I buy a Knife of J. S. to kill the King and one Witness prove I bought a Knife, and another prove I bought it for that purpose, it is two witnesses of an Overt Act within the Statute of Ed. 6th.  
It were very fit to know who the Judges were which gave that resolution, if it were but for the Authority of the Case; for I doubt the reason of it will convined no Man; they might as well have resolved that eating or drinking, or the most ordinary Acts of a Man's Life, is an Overt, Act of High Treason.  
The Law hath taken that care for the Evidence of High Treason, which it hath not done in any other Case, that it must be proved by an Overt Act, proved by two witnesses, one would think at first sight of the Statute that there should be two witnesses to the same Fact; but that hath been adjudged otherwise, but still it was resolved, there must be two Winesses, but if this Resolution be Law it is plain there needs but one, 'tis true if a Man does an Act for which he can give no reason, as Placing a Mine of Powder in a Place the King usually passeth over, or planting a piece of Cannon to shoot at a place the King usually passeth by, he cannot give a credible reason why he did it, and another swears the purpose of the thing, it is two good Witnesses within the 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 when Swords were not usually worn, but by Soldiers, 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 Soldier, doth at this day; but no Man will say that now Swords are usually worn by all sorts of People, that it is a breach of the good behaviour, and so that which heretofore was 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 Sidney 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, 'tis no Prudence to ask a thorough paced Witness a question, in Mr. Hampdens' Trial, 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 Outlawed 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 Tried, 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 Trial; and because he would not Purchase his Pardon, at the expense 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 Outlawed for High Treason, when he was beyond Sea, he was taken and borough 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 Outlawed shall within a Year after the Out-lawry pronounced, yield himself to the Cheif-Justice of the King Bench, and offer to traverse his Indictment, and on his Trial shall be acquitted, he shall be discharged of the Out-lawry; upon the construction of this Statute, no Judgement was ever given that I know of, and the reason is no Man Outlawed was ever denied a Trial 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, than 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, though 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 Trial within a competent time, which that Statute limits to be a Year after the Outlawry pronounced.  
This being plainly the Sense of the Statute, it was injustice to deny the Favour or ●ight of a Trial to Sir Thomas Amstrong, which was never denied any Person before, nor since; where it was agreed, that all the Witnesses against the Person accused was alive, as in Sir Tho. Armstrong's Case, they were barely upon the quibble of the Word render, which in no Case that ever I read, was ever differenced from takes, but in one Case, which is Smith and Ashes Case in Cro. C●r. 42. In an Outlawry for Debt against Husband and Wife, which will not extend to, or warrant the Judgement in this Case, and if there were but a doubt in the Case, as it cannot be denied but there was, the Outlawry ought to have been waved, or at least Council for the Prisoner heard as to the Point.  
It was a vain and unjust reason (and only tending to incensed the thing) assigned by the Attorney, That the Prisoner was on who actually engaged to go upon the King's hasty coming to Town, to destroy him by the way, whenas the Prisoner offered to prove his innocence in that and other Matters, of which he was accused, and even that object against him was an Invention of the Attorneys for any thing appears, but than it was resolved to stop as nothing, and ●…cess had made them fearless; Fitz-Harris and College 'twas owned had hard measure, and that their Case might be forgotten, their Quarters were buried, but Sir Thomas Armstrong's were exposed, though the Proceed against him were equally as unjustifiable, as in the other two Case.   

REMARKS ON THE TRIAL OF C. Conningsmark.  
I Think fit to remember in the same Reign, though before this time, one Case to show how the Courts of Justice were remiss, or voilent, according to the subject Matter.  
All will agree, that the Murder of Mr. Thynne was one of the most Barbarous and Impudent Murders that ever was Committed, and of that Murder Count Conningsmark, though he escaped Punishment, was the most Guilty.  
I do not complain that in that Trial, the Chief Justice directed the Prisoner, the way to make the King's Council show 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  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 aught 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 Tried, though I believe no great Injury to them, because they had little or nothing to have said for themselves.  
But if they had been asked, they would have said as they did before their Trials 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 Stern and Barosk  
I do agree that what they said before the Justice of Peace was not Evidence against the Count, I do agree that the Count being Indicted and Tried as Accessary at the same time the Principals were Indicted and Tried, the Principals could not be good Witnesses against the Count, because properly a Principal aught to be Convicted before the Accessary be Tried, and therefore though for Expedition both are Tried together, yet the Verdict always is, and aught to be, given against the Principal, before that of the Accessary.  
But I deny what was in that Trial laid down for Law, that the Accessary being in the same Indictment, with the Principal, must be Tried at the same time, it is true the Count desired his Trial might be put of for two or three days, which the Court knowing what was best for the Count denied, and not for the above pretended Reason; for an Indictment against many may be Joint, and yet the Trials may be several, the Truth is in such Cases, the Indictment is joint and several.  
Suppose the Accessary, at the Trials of the Principals, had not been in Custody, will any Person say that if afterwards he was taken, the cannot be Tried upon that Indictment, in which he was joined with the Principals.  
But besides an hundred Precedents not Printed, there is George Salisbury et all the Case in Plowden Fol. 100 where it was resolved, that though an Indictment against many is Joint, yet the Venire may be several against each, Person, and consequently the Trials may be several, and if so then the times of the Trials may be several, but that which is to be complained of is, that the Count in the Opinion of all Mankind at that time and since was the most guilty Man yet the care taken to punish the less Guilty, as Stern and Boroskie, was in order tolet the most guilty escape for I think both Stern and Boroskie might have been and would have been, good Witnesses against the Count, if the Court would have permitted it, the Count might have been Indicted as Accessary to Wratts, only, for the Accossory to all the Principals is Accessary to every of them severally, and when the Court, in their private Consciences were satisfyied, the Cound was most Guilty, they ought to hagve been cunning astati, as my Lord Hobart calls it to have brought him to Punishment, but 'twas said Stern, and Boroskie being Indicted of the same Crime with the Count, they could not be good Witnesses against him, which I think is no more Law than it is Truth, Truth it was not, for the Count was Indicted as Accessary, the rest as Principals, but taking it that all was Indicted and Tried as Principals for the same Fact, at the same time, why is not the Evidence of the one good against the other. First, I think there is no express Resolution for that point of Law, but a late Rule given at Kingston Assizes, upon the Trial of a Maid and one Saterwaite, for Burning or an House, and therefore there is a liberty to examine, by Reason, how the Law is. I agree, if a Man Is indicted and tried for killing another, he shall not be admitted to say, B. did it by himself, but I think he may be a good Witness to prove that he and B. did it, that is to say, he shall not give any Evidence against another, which tends to acquit himself, as well as accuse another; but I think he may give Evidence which accuses another of the same Crime whereof he is indicted, it it doth not tend to vacquit himself.  
For is agreed of all hands, that being guilty of the same Crime doth not disable a Witness, for then Widdrington and several Persons in the Lord Russel's Plot, as it was called, had not been good Witnesses; in the next place, the Circumstances of an Indictment against the Witnesses, for the same thing he testifies against another, doth not disable him; Widdrington was indicted for the same things, of which he gave Evidence against several others, a● his Complices in Robberies; nay, the Law hath given somewhat more Credit to the Evidence of a Person indicted, as a Witness of the same thing against others, than it does to a Person not indicted, as in the Case of an Approver, which as Stamford says, was a Person in Prison (not at large) for the Fact for which he was indicted, arraigned upon an Indictment, or an Appeal of Felony, which before a Coroner assigned by the Court, confesses himself guilty of the Felony, of which he is indicted, and not of any other, and confesses other Persons, naming them as Co-adjutors with him, in committing the Crime of which he is indicted, and not of any other Crime, so much Credit shall be given to that Confession, that Process shall be made out against the Person peached, who, it taken, shall be arraigned on that Approvement, as if an Indictment by a Grand Jury had been found against him, and if the Law gives so much Credit to an Approver, I think no Person can show me a Reason, why a Person indicted is not a good Witness against another for the same Crime.  
It is true, Stamford says, if the King gives an Approver a Pardon, he is a good Witness; which implies, that otherwise he is not; but it must be considered, that the reason of that, is, that an Approver being indicted, as he always is, and confessing the Indictment, is convicted, and a Person convicted of Felony, cannot be a Witness till pardoned; but it will be no Argument why Stern or Boroskie had not been good Witnesses against the Count, before they were convicted; and it was a like piece of Justice, that whereas the Count was the most guilty, he was acquitted. Wrats being the next greatest Offender, was honourably interred, and Stern and the Polander, which were the least Offenders in that Matter, were hanged in Chains.  
It was somewhat like the New-England Law, remembered by Hudibras, of hanging an useless innocent Weaver, for an useful guilty Cobbler.   

REMARKS ON Mr. Cornish's TRIAL.  
THere yet remains two Persons Prosecutions to speak of, the one was Mr. Cornish, who was taken the— of October 1685. and was arraign on an Indictment of High-Treason the Monday after, for conspiring to kill the late King Charles the Second, and knowing James Duke of Monmouth, William Russel Esq; and Sir Thomas Armstrong to be Rebels and Traitors, promised to be assisting to them in their Treasons; to which he pleaded not Guilty; he desired to put off his Trial, because he had no notice till the Saturday before at twelve a Clock, and he could get no Friend to come to him till eight a Clock at Night, and then he was permitted to speak with no body, but in the presence of the Gaoler; he had been allowed no Pen, Ink, or Paper; he was told by the Court he ought not to have it, without Leave given on a Petition preferred by him, and that he was taken Teusday before, which to that time was almost a Week; he said his Children had petitioned the King the Night before to put off his Trial, and it was referred to the Judges, he did not know whether he was committed for High-Treason against the then present, or the former King, and he had a material Witness an hundred an forty Miles off, but was told by the Court, they had no Power to put off his Trial; it is true, they said the Lord Russel's Trial was put off to the Afternoon, (which was not true) but that was a Favour, which could not be challenged by another person as a Right; he complained he had not a Copy of the Panel, but was answered it was not his Right to have it; then the Attorney said he had not deserved so well of the Government, as to have his Trial delayed, and therefore he was presently tried.  
Rumsey swore, that about the latter end of October, or beginning of November, the Earl of Shaftsbury desired him to go to Mr. Sheppard's House, where was a Meeting of the Duke of Monmouth, Lord Russel, Lord Grace, Sir Thomas Armstrong, Mr. Ferguson, and Mr. Sheppard; he came late, and they were just on going away; he delivered his Message, and they told him that Mr. Trenchard had disappointed them; he had not been there above a quarter of an hour, but Mr. Sheppard was called down, and brought up Mr. Cornish, and told them Mr. Cornish was come, who came into the Room, and excused his not coming sooner, and that he could not stay, for he was to meet about the Charter, whereupon Mr. Ferguson opened his Bosom, and under his Stomacher pulled out a Paper, they told Mr. Cornish they had had it read, and desired to read it to him; Mr. Ferguson read it, Mr. Sheppard held the Candle while it was reading, and afterwards they asked Mr. Cornish how he liked it, who said, he liked it very well, he remembered two Points in it very well; the one was for Liberty of Conscience, the other was, that all who would assist in that Insurrection, which had Church or Kings-Lands in the late War, should have them restored to them; he did not hear all the Paper, and observed only these two Points, it was a Declaration on a Rising, and when the Rising was to have been, it was to have been dispersed abroad; there was a Rising intended at that time, and Mr. Cornish said, he liked the Declaration, and what poor Interest he had he would join with it; he had great Deal with Mr. Cornish, and Mr. Cornish was a very honest Man, it was out of compassion he had not accused Mr. Cornish before.  
Mr. Goodenough said there was a Design to rise in London, and for that purpose to divide the City into twenty parts, and to raise five hundred Men out of each part, to take the Tower, and to drive the Guards out of Town; before that agreed on, he being by chance at Mr. Cornsh's House, said, the Law will not defend us; some other way was to be thought on; Mr. Cornish said, he wondered the City was so unready, and the Country so ready; Mr. Goodenough replied, there is something thought of to be done here, but in the first place, the Tower must be seized, where the Magazine is; Mr. Cornish paused a little, and said, I will do what good I can or what I can, or to that purpose, he said.  
He afterwards met Mr. Cornish on the Exchange, who asked him how Affairs went, and this was in Easter Term 1683. He had some Matters with Mr. Cornish about managing the Riot, which was brought against him, Mr. Cornish, and others, he came to Mr. Cornish's House about the Business of the Riot, and no Person was by at the Discourse; Mr. Gospright testified for Mr. Cornish, that he opposed Mr. Goodenough's being Under-Sheriff, and said he would not trust an Hair of his Head with him, he was an ill Man, obnoxious to the Government, and had done ill things, and he would not trust his Estate and Reputation in the Hands of such an Under-Sheriff, and he believed Mr. Goodenough and Mr. Cornish were never reconciled, Mr. Love, Mr. Jekil and Sir William Turner testified to the same purpose; Mr. Lane spoke out of the Printed Trial, of my Lord Russel, and said Rumsey in that Trial said he did not hear the Declaration read; for it was read before he came, Dr. Calamy said Mr. Cornish did often come to Church and receive the Sacrament, Mr. Sheppard said he was Subpaend d by the King, and by Mr. Cornish the Night before, and that Mr. Cornish his Son was with him the Afternoon of the day before, who pressed him to be at the Trial the next day, that there were Accounts depending between him and Mr. Cornish, whereon there was about one or two hundred Pounds due to Mr. Cornish, and Mr. Cornish's Subpena was served first upon him: At one of those Meetings at his House, Mr. Cornish came to speak a few words with the Duke of Monmouth or some other, he could not be positive in that, it was so many Years ago, he did not stay above half a quarter of an hour in the House, Sheppard came up Stairs and went out with Mr. Cornish, and there was not one word read, nor no Paper seen while Mr. Cornish was there, he remembered there was a Declaration read, Ferguson pulled it out of his Sho, he could not tell whether Mr. Cornish was at his House the Night the Declaration was read, but he was positive not Paper was read while Mr. Cornish was there, for Mr. Cornish was not looked on to be one of the Company, he did not know who Mr. Cornish came to speak with, when he came to Sheppard's House, Mr. Cornish was but once at his House when the Duke of Monmouth was there, he did not remember that Mr. Cornish was in the Company when Rumsey was there, he said he had attended the Court from Eleven a Clock till half an hour past three.  
This being the Sum of the Evidence, given in the Trial for, and against, the Prisoner. Let us see whether those Inferences could be made from it, as was made by the Court and Council, and whether on the whole, and honest Jury, though but of little understanding, could have found him Guilty of the Treason in the Indictment.  
It is agreed of all Hands, that a petty Jury may, and must, consider the credibility of a Witness, (though in the Lord Shiftsbury's Case, it was said a Grand Fury ought not so to do) and if so surely Rumsey was not a credible, though he was not a disabled, Witness, no more than a Man, who owns himself to be a Man of Falsehood, a profligate Wretch, and perjured by his own Confession, though not Convicted of it; he had notoriously confessed himself Guilty of High-Treason, and of being in the Design of an intended barbarous Murder, he had sworn in the Lord Russel's Trial, he had named all the Persons at the Meeting, he spoke of, of which Mr. Cornish was none, and being taxed in this Trial with it, he excuses his Perjury with Compassion to the Prisoner, which was mean, foolish and contradictory; he Perjured himself to save the Prisoner, and then swore Truth to Hang him, he had not presence of mind enough to excuse himself in the manner, a Witness in the Lord Russel's Trial, did, that his God, his King and his Country, put him unwillingly to Act that Part, besides that in the Lord Russel's Trial, Rumsey swore he was not at the reading the Declaration, and contradicted Sheppard, who swore he thought he was there.  
But that passage was proved only by a Witness, who had read it in the Trial, which I confess in strictness of Law is not Evidence 〈◊〉 if the Witness had said he heard Rumsey swear so at the 〈◊〉 russel's, Trial, even that had not been Evidence, unless a Record of that Trial had been produced in Court, which was not done; but all those things being but mere circumstances, show the injustice of Speeding his Trial, and denying him Council: Would not any Council have told him that in strictness of Law, a Passage in a Printed Trial was not Evidence, and was it not easy for him to have got a Witness to have said that he had heard Rumsey swear so at that Trial, were not all the Judges which sat upon him, and all the King's Council which were against him, present at the Lord russel's Trial, and perfectly remembered what Rumsey then swore, as to the Pretended Declaration, and might he not have Subpoena'd them to have testified that Matter? Nay, was it not their Duty, to have done it even without a Subpaena?  
To say it was against the King, and therefore they could not do it, or they were in the Commission to try him, and therefore they could not do it, is neither Law nor Reason, every Man knows that a Judge in a Civil Matter Tried before him, and a Council even against his Client hath been enforced to give Evidence (provided it be not of a Secret communicated to him, by his Client) for in that particular, a Judge ceases to be a Judge, and is a Witness; of whose Evidence the Jury are the Judges, though he after reassume his Authority, and is afterwards a Judge of the Juries Verdict.  
A Judge may Sue, and must be Sued, in his Court, but in that Case he ceases to be a Judge and is a Suitor, though he reassumes his Authority in all other matters, and if it be so in Civil matters, let any Man show me a reason why the Law is not so in Criminal matters, there is no express Law against it, and it will be absurd in reason to say the Law is not so; for at that rate the King may put any witness, he knows the Prisoner intends to produce for himself, into the Commission for Trying him, and so deprive the Prisoner of the benefit of his Evidence as in this Case; Sheppard whose Evidence ought to have been of great, (as it shall be shown,) though it was not of any, Avail to the Prisoner, might have been put into the Commission, to have Tried Mr. Cornish, for he was as much qualified for it, as Sir James Smith then Lord Mayor, or any Judge upon the Bench, and if they might have been witnesses for the Prisoner, if Subpoena'd, they might have been witnesses for him, even without ask; and it was a duty incumbent on them, though not as Judges yet as Christian Men so to be.  
Humanity commands the Discovery of Truths, which prevent the shedding Innocent Blood, and Christianity commands a Man to do as he would be done by. I think the question need not be asked what they would have had done, if it had been their Case.  
The reason that all matters of Law are, or aught to be Transacted publicly, is, that any Person unconcerned as well as concerned, may as amicus curiae, inform the Court better, if he thinks they are in an error, that Justice may be done, and the reason that all Trials are public, is, that any Person may inform in point of Fact, though not Subpoena'd, that Truth may be discovered in Civil as well as Criminal matters.  
There is an invitation to all Persons, who can inform the Court, concerning the matter to be tried to come into Court, and they shall be heard. It is true if the Judges or any Person had testified what Rumsey had said at my Lord Russel's Trial, it had not been Evidence without the record of the Trial, and it is as true that neither the Record, nor a true Copy of it could have been procured between Mr. Cornish's Commitment, if it were on Friday, (as I have heard it was) though the Court said, it was on Tuesday, much less between the notice of his Trial, which was Saturday-noon, and the time of his Trial, which was Monday-morning.  
But than what Justice was there in speeding his Trial, so as to deprive him of the Circumstances of his defence, for that was but a Circumstance, and not an essential matter, and what account can be given why the Court when they were well satisfied, that it was in the Prisoner's Power to procure such a witness, and such a record, did not stay till he did it; or if it would be too long in doing why should they not have put off the Trial for that time, and give the Prisoner a convenient time to do it.  
The first, in Civil matters hath been, frequently done, when a Deed or Witness hath been wanting, if it could be done in a convenient time, and the putting off a Trial before it came on, though after it came on they have not done it, because there is no great mischief in that, for either Party hath Power to bring it about again, but not so in Capital matters, and therefore Jurys in Capital matters have been frequently discharged, after sworn, where the Evidence hath been defective.  
It is true my Lord Coke saith that a Jury once charged with a Prisoner, cannot be discharged but must give their Verdict, but it is as true that he says so in Favour of the Prisoner, that when the Evidence against him appears defective, he shall not be continued a Prisoner till more Evidence can be found, or procured against him, though the Practice of late days hath been quite contrary, viz. to discharge the Jury where the Evidence against the Prisoner hath been defective, but enforce them to give a Verdict, where the Prisoner's defence hath been defective, though to their knowledge if he had longer time to do it, he had been able to produce the witnesses who could clear him, but by what Law or reason I am to seek, yet I confess, if Rumsey's owning his Perjury in the Lord russel's Trial, in the very point sworn against the Prisoner, and so frivelously excusing it would not discredit him; I know not that any Record, Witness, or Evidence would have availed Mr. Cornish.  
And add to Rumsey's contradicting himself, that Sheppard, who never contradicted himself, and had been a witness in both Trials agrees, that what Rumsey had sworn in my Lord russel's Trial, as to Mr. Cornish's not being there, was true.  
But admitting Rumsey had never perjured himself but was of equal credit with Sheppard, yet when they contradicted each other in a point, which carried no probability or improbability with it in a Capital matter, the Jury ought to believe in favorem vita; for it makes the matter at least doubtful, and therefore the Jury ought to have acquitted the Prisoner, for a reason the Law, and which was given in Coll. Sydney's Trial (though shewishly) by the Court, viz. that it is better that 20 Nocents should escape than one Innocent sufferer.  
But to pass from the credibility of the witness to the matter of his Evidence, this was the second time that this sort of Evidence in any Case Criminal or Civil, was permitted to be given in Evidence, and there is the same exceptions to it, as are above assigned to the Evidence of Sheppard, as to the Declaration in my Lord Russel's Trial, if a true Copy of part of a Deed or Writing was never yet permitted to be given in Evidence, much less hath or ought the purport of part of a writing be given in Evidence, especially when such a reason is given, why the witness remembered but part of it, as is given by Sheppard in my Lord Russel's Trial, and Rumsey in this Trial, they did not hear all the Paper read.  
And surely Goodenough could no way fortify Rumsey's Evidence, being clearly of another matter, and that so very uncertain that no heed ought to have been given to it, when Goodenough told Mr. Cornish something ought to be done in the City, but in the first place the Tower ought to be seized, to which he answered he would do what he could, or what good he could, may as well relate to Goodenoughs precedent discourse, where he complains, that the Law would not defend them, though Innocent as well as to the seizing the Tower, and if they should refer to the last, yet they may well enough be interpreted, that he would do what he could, or what good he could, to prevent the seizing the Tower, and if they are capable of two Senses they ought to be interpreted in the best for the Prisoner.  
Besides the words are spoken not as a thing designed, but as a matter without which all other matters were in vain, and might be mere matter of discourse, as was that between Blague and Mate Lee about taking the Tower, and if there was such a Design a Foot, it doth not appear, that Mr. Cornish was ever acquainted with it; the same may be said as to what he asked Goodenough, when he asked how Matters went, may not those words well enough be applied to the business of the Riot, Goodenough managed for Mr. Cornish and others, and if what Goodenough said was Evidence of a Design of Seizing the Tower, that as well as the Treason against the Guards were Treasons by the Act of the late King, and not by the 25th of Edward the Third, if it be true Doctrine, which was laid down in the Charge to the Earl of Shaftsbury's Grand Jury, and if so, it ought to have been Prosecuted for it, within six Months, and Indicted within three Months if the Doctrine in Colledge's Trial be true, and yet this Design, if true, was in Easter Term 1683. and the Prosecution not till October 1685.  
There was yet one piece of Evidence urged against him, that by his own Witness, Sheppard, who positively testified for him as to the main, yet in a Circumstance seemed to testify against him, which was Mr. Cornish's being as his House, when the Duke of Monmouth, and the rest were there, when the Declaration was read, and upon that piece of Evidence, as if it had contradicted what Mr. Cornish said before, there was mighty Triumph, whereas the most that could have been made of it was that M. Cornish in part of his defence was Guilty of an Untruth, and even that was not so in Fact; for being charged to have been at Sheppard's the Night the Declaration was read, he answered he was never at a Consult in his Life, he never was at Sheppard's in any Consult, he never was there with my Lord Russel, as he remembered; he had been at Sheppard's several times, but never liked Ferguson for his Morals, and therefore never liked to be in his company, and he did not know, but that he might inquire for the Duke of Monmouth in other Places, and this is all Mr. Cornish says of that matter.  
Sheppard says, Mr. Cornish came into his House at one of the Meetings to speak with the Duke of Monmouth or some other, he could not be positive in that, it was so many Years ago, and did not stay half a quarter of an hour, he could not say it was the night the Declaration was read; he did not know, whether Mr. Cornish came to speak with the Duke of Monmouth or not; he could not remember, whether Mr. Cornish was there in company, when Rumsey was there; there were not above three Persons there when Mr. Cornish came, which was the Duke of Monmouth, Mr. Eerguson, and he could not tell, whether the other was the Lord Russel, or the Lord Grace.  
Now it would be hard to find out the contradiction between Mr. Cornish's Say and Sheppard's Evidence; both agree that Mr. Cornish hath been often at Shepherd's House, and neither denies or affirms that he was, or was not there the Night the Declaration was read, for a good Reason, which was that Mr. Cornish knew nothing of it, and Sheppard knew not which of the Nights he was there, Mr. Cornish said he was not there with my Lord Russel, as he remembered, and Sheppard doth not affirm he was there with the Lord Russel; Sheppard says he was, there, when the Duke of Monmouth was there, and Mr. Cornish doth not say, that he was not there with the Duke of Monmouth, Sheppard said, he spoke to the Duke of Monmouth, or some other Person, but he thought it was the Duke of Monmouth, which is no direct Affirmation that he spoke to the Duke; and Mr. Cornish doth not say, he did not speak to the Duke of Monmouth; so that if the Account of the Trial, set out by the Authority of, and signed by, Tho: Johnes be true, I cannot see any manner of contradiction between Mr. Cornish and Sheppard: And therefore, as the Court and the King's Council did infer, that Sheppard's Evidence, who positively denies the Truth of Rumsey's Evidence, was so far from invalidating, that it corroborated Rumsey's Evidence, and cleared the thing, which was before somewhat dark, beyond all manner of contradiction, is a piece of effrontery: but admitting Sheppard had said Mr. Cornish was at his house the night the Declaration was read, and had contradicted Mr. Cornish, is it a necessary consequence, that he heard the Declaration read, and promised his assistance to it? which must be the inference, if it must support Rumsey's Evidence.  
If it be not a necessary Consequent, but a probable one, that ought not to weigh with a Jury, to convict a Person of a capital Crime, especially not of Treason, the Statute of Edw. the 3d. says probably Convict, that is says my Lord Coke, convicted upon direct and manifest Proof, not upon probable Conjectural Presumptions, or Inferences, or Strains of Wit●: And to say truth, when Verdicts have been given on such Evidence, they have been often faulty.  
To give some Instances of many, it is remembered in our time, where Persons were convicted of the Murder of a Person absent, but not dead, barely by Inferences upon the Evidence of foolish Words and Actions; but the Judge before whom it was tried, was so unsatisfied in the Matter, because the Body of the Person supposed to be murdered was not to be found, that he reprieved the Persons condemned, yet in a Circuit afterwards, a certain unwary Judge, without enquiring into the Reasons of the Reprieve, ordered Execution, and the Persons to be hanged in Chains, which was done accordingly, and afterwards, to his Reprach, the Persons supposed to be murdered appeared alive.  
My Lord Coke relates a like Story in his Time, of an Uncle, who beat his Niece which had an Estate, which on her Death would descend to him, the Girl was heard to cry, good Uncle do not kill me, after which she ran a way, and concealed herself some few miles from London; the Girl being missing, and the Neighbours remembering the Cry of the Girl, and tacking it to the Probability that the Uncle might be induced, for his Advantage, to murder his Niece, apprehends him, and he was indicted for it at the Sessions, and the Judges being unsatisfied in the Evidence, by reason the Body of the supposed murdered Girl did not appear; the Uncle saying that she was run away, they gave him time to the next Sessions to find her out, which he being not able to do, thought to defend himself by producing another Girl very like his own Niece, which he did accordingly; and being detected, it increased the Suspicion, and by Inferences from all those Circumstances, he was convicted, and afterwards executed.  
Some years after which, the Girl appeared, and claimed her Estate, and therefore it is a most dangerous and unwarrantable thing, for a Jury, in capital Matters, especially in Treason, to convict a Person upon the Evidence of Probabilities.  
As the Evidence in this Case against the Prisoner was weaker than in any of the precedent Cases, so the Usage of the Prisoner was more rigorous than in any of them; in all the other Case, the Prisoners had more Weeks allowed them to prepare for their Trials, than this Person had Days; all the other Persons, after Notice of Trial, were permitted to have Friends, nay, Council, freely to come to them, and confer with them in private, without the Presence of a Gaoler, which was denied this Person; all the others, except Col. Sidney, had soft Words given them on their Trials; but this Person was rudely handled.  
How often was he snubbed and bid hold his Tongue? How often did he beg the Patience of the Court, to hear him and his Witnesses? and when he was heard, how was all he said ridiculed? and if he said he was innocent, he was bid remember my Lord Russel said so to his Death, when he said he was as innocent as any Person in the Court, he was told, for all his Confidence few believed him. If he said the Matter sworn against him was improbable (which hath been taken for a pretty good Topick for the Disbelief of a Matter testified) how is it ridiculed by Improbability, Improbability, Improbability? If he go to prove he is an honest Man, he is told that is all Appearance. If he says he employed Goodenough about the Riot, he is told that is a Branch of the Plot. If he call Mr. Gospright as a Witness for him, the Witness is reproached with having helped the Prisoner in packing Juries; if he call one to prove he received the Sacrament, he is told, that was in order to qualify himself to be a Sheriff, and as such his Usage before, and at the Trial, such was it afterwards, to order him to be tied when he was senten'sd, was an Indignity not used to Persons of his Quality, a thing indeed permitted, not commanded to be used, on boisterous Criminals, who may be suspected to do a sudden Mischief, if their Arms were at liberty.  
Of like kind was the Reproaching him with the Cheerfulness of his Countenance at his Condemnation, and that it might be all of a Strain, his Quarters were exposed, a Severity used to none abovementioned, but Sir Thomas Armstrong, and in all these Trials, College made the best Defence, and perhaps Circumstances considered, the best Defence ever made upon an Indictment of a Capital Matter, and Mr. Cornish's was the weakest, though it signified nothing; for I believe that none who reads his Trial, but will plainly see he was so beset, that the Defence he, or any for him could make, would have availed him nothing, and no Account can be given for the Proceed against Mr. Cornish, in the above manner, but that some of the judges, whereof three of them were then on the Bench, had been newly come out of the West, where they had been so flushed and hardened, that nothing seemed to them Rigorous or Cruel, and the rest seemed to vie with them in the Practice.   

REMARKS ON Mr. Bateman's TRIAL.  
THE last Person, which concluded the Tragedy, was one Charles Bat man a Chirurgeon, his demerits were, that he had been, or at least was reputed to have been Chirurgeon to the Earl of Shafesbury, and one whom his Lordship had a kindness for, and therefore according to the Cant of the Time, he was called a Factious Fellow; and he had revived the Memory of his demerits, by attending when Oats came from his Whipping, and Letting him Blood; whether either of those Circumstances were true or not, I know not, but they were believed: And therefore the 9th of December 1685. he was Indicted and Tried for High Treason. On his Trial he seemed to be Distracted, and therefore out of abundance of Charity, the Court appointed his Son to make his Defence for him.  
The Witnesses against him were Keeling, who only spoke of a Design in general, without mentioning Bateman to be concerned in it, Thomas Lee and Richard Goodenough swore, at several times and places his discourse to them severally, of seizing the Tower, City and Savoy. Baker for the Prisoner said, Lee in the Year 1683. would have had him insinuated himself into the Prisoner's company, and discourse about State affairs, and by that he would find a way to make Baker a great Man: upon the Evidence the Prisoner was found guilty. Against Goodenough's Evidence, there is only this to be said, that he was pardoned but so far only, as to qualify him to be a Witness, though not a very credible one, not only the Gild sticking to him, but even the Punishment of what he had then lately done, hanging over his head, and what was said for some time, of all the Witnesses for the King, at that time, and for some time before, was true, they hunted like Cormorants with Halters about their Necks, though even that matter by one of the King's Council was boasted to the Jury, as a circumstance of more credibility; for he assured them there was not a Witness which he produced had a Pardon, as the Witnesses in the Popish Plot had. 'Tis true, in the Popish Plot, upon very good reason the Witnesses having confessed what they pretended to know, of matters in which they had an hand, it was not thought proper to use them as Witnesses, though they had used them as Informers, till they were pardoned, lest it might happen to be, or at least it would have been suspected, that the terror of the Punishment of the Crimes confessed might influence them to swear falsely to the jeopardy of other men's Lives, to save their own, which as the Lord Howard truly said, was the drudgery of Swearing. But to Lee's Evidence, besides the Evidence of Baker against him, that he would have procured Baker to have been a Witness against the Prisoner, and enticed him with the promise of making him a great Man, and besides that it appears in Rouse his Trial, that Rouse and he were upon the Trepan with each other, to bring each other into the pretence of a Plot, in order to make some advantageous discovery of it. of which Lee got the start of Rouse; the objection which was made to his Evidence, why Lee had not accused the Prisoner sooner, there being near three Years between the pretended disign, and the discovery of it, was never satisfactorily answered, it was a foolish story to say Goodenough could not be had before, and a single Testimony in High-Treason was not sufficient; every one knows, that though a single Witness is not enough to convict a Man of High-Treason, yet a single Persons Testimony is enough to commit a Person accused, and upon Conviction on the Testimony of a single witness, to make him a Prisoner for his life, witness Mr. Hampden and others, besides the subjecting him to other Corporal punishments, inflicted at discretion, witness Mr. Johnson and Oates; and in 1683. when the words were pretended to be spoken Bateman had not been spared if accused; and though it be a good reason for the Court to have given, why they did not proceed against the Prisoner till that time, because there were not two Witnesses against him, yet it was no reason for Lee, why he did not accuse the Prisoner before that time, especially he having been several times before that time examined, not only of what he knew, but of what Persons he knew concerned: but to say truth, Lee in the Trial did not pretend to answer the Objection, but the Court in the manner before endeavoured to answer it for him.  
The last Matter observable in this Trial, was the permitting Bateman's Son to make his Father's Defence, which was an extraordinary unparalleled favour, it was the first and last time that, or any thing like it, had been done, the Lord Russel's Lady indeed was permitted to take Notes at the Trial for her Lord; but he only was permitted to make use of them; Fitz-Harris his Wife when she but whispered her Husband, or but told him what Jurors he should challenge, and what not, was severely corrected and threatened to be thrust out of Court, for doing it in prejudice of the King. In Colledge's Trial, he was told that Persons that advised a Prisoner in Treason, even before a Trial, were guilty of High Misdemeanour; nay a Solicitor had been Indicted of High-Treason for it, and therefore nothing can excuse the allowing the Prisoner Council in matter of Fact, as was done in this Case (it is not material, whether the Son was a Barister at Law or not) but the weakness of the Prisoner, who to all appearance was moped Mad.  
But the Court by excusing their Favour upon that account incurred a worse censure; for nothing is more certain in Law, than that a Person who falls Mad after a Crime supposed to be committed, shall not be tried for it; and if he fall Mad after Judgement, he shall not be executed, though I do not think the reason given for the Law in that point will maintain it, which is that the end of Punishment is the striking a Terror into others, but the Execution of a Madman had not that effect; which is not true, for the Terror to the living is equal, whether the Person be Mad or in his Senses, and that is the reason of breaking the Person executed for Treason, and exposing his Quarters, which is done rather to deter the living, than for punishing the dead; but the true reason of the Law, I think to be this, a Person of non sana memoria, and a Lunatic during his Lunacy, is by an Act of God (for so it is called, though the means may be humane, be it violent, as hard imprisonment, Terror of death, or natural, as sickness) disabled to make his just defence, there may be circumstances lying in his private knowledge, which would prove his innocency, of which he can have no advantage, because not known to the Persons, who shall take upon them his Defence, and that is the reason many Civil actions die with the Persons against whom they lay in their Life times, and that is the reason why in Criminal matters, Persons by ordinary course of Law, cannot be convicted after their deaths.  
For in all civil Actions, there is as much reason for the Person injured, to have satisfaction out of the Estate of the Person who injured him, in the hands of his Heir or Executor after his death, as there was to have it out of the Estate of the Injurer in his own hands in his Life time, and there is as much reason that the Heir or Executor of a Person who hath committed a Crime, which by Law would have forfeited his Estate, if in his Life time he had been attainted of the same, should forfeit the Estates they claim from him, as if the had been attainted in his Life time, which had prevented the said Estates vesting in them, and it hath been sometimes practised, where the Crimes of the Persons deceased have been notorious, and without any doubt, as was the Case of several Persons mentioned in the Act of Pains and Penalties, which Act had example from many other Acts of Parliament in other Reigns, where the Persons were dead before Punishment overtook them.  
And though of late years it hath been pretended, that the King's safety depends upon the speedy Trial and Execution of a Person guilty of High-Treason, yet that was never thought so heretofore, nor in Truth in itself is so; for it is plain in reason as well as experience, that what is said of Witches is true, of all Malefactors when once they are in Custody, their power of doing mischief ceases.  
The King is therefore no otherwise benefited by the destruction of his Subjects than that his Example deters others from committing the like Crimes, and there being so many to be made Examples of, besides those on whom the misfortunes of Madness falls, it is inconsistent with humanity to make Examples of them; it is inconsistent with Religion, as being against Christian charity, to send a great Offender quick, as it is styled, into another World, when he is not of a capacity to fit himself for it; but what ever the Reason of the Law is, it is plain, the Law is so, and for remedying it in High-Treason, was the 33 of Henry the Eighth made; whereby is is Enacted, that if a Man fall Mad after he hath committed High-Treason, he shall notwithstanding be tried in his absence, and if a Man fall Mad after he is attainted of High-Treason, he shall notwithstanding be Executed, which Statute extending only to High-Treason, the Law continued, and yet is as it was at Common-Law in all other Capital Matters, and even that Statute was called a Crued and Inhuman Law, and therefore lived not long, for is was aftenwards Repealed, so that the Law as to this matter, when this man was tried and executed, was as it was at Common-Law, and therefore if he was of non sana Memoria, he ought not to have been tried, much less executed. I know it will be objected, that if this matter of non sana Memoria should be permitted, to put off a Trial or stay Execution, all Malefactors will pretend to be so, but I say there is a great deal of difference between pretences and realities, and sana and non sana Memoria, hath been often tried in Capital Matters, and the Prisoner's have reaped so little benefit by their pretences, it being always discovered, that we rarely hear of it, in this Case the Prisoner might have been tried as well absent as present, according to that repealed Statute, for any advantage he did, or could, reap by being present, and it seems very probable the Court thought him distempered, for if he was of sane memory, his Son ought not to have been permitted to make his Father's defence; if he was distempered, he ought not to have been tried, much less executed, and this Person being the last man, as far as I can remember, or can find by the Printed Trials, which suffered for the Plot of High-Treason first set on foot by Fitz-Harris, and carried on against College, and the other Persons herein mentioned, and the Design stopping here, I think fit to end the Remarks in the Proceed of all Capital Matters with him, but I think it is fit for me to make some Apology for the thing, and for myself, for taking on me to censure the Opinions and Actions of Persons whose Characters carried Authority with them, I confess I never thought that either the great Seal or a Garment ever added to a Man's Sense, Learning or Honesty; but he remained just such as to those qualities, after his preferment, as he was before, and as to many of the Persons reflected on in these Remarks, the censure of Coll. Sidney was true, and for the best of them, it is plain they not only varied from one another in their Opinions, but even from themselves in the Judgement of the same Case, but always tending to the destruction of the Person tried for his Life, witness the Opinion of the Court in the Challenge of Jurors not having a , and the designing to levy War not Treason, within the Stat. of Ed. 3. and forty other Matters, and that not only gives a Liberty to inquire, but naturally puts one upon the Enquiry, which of the two Opinions is right, though it is impossible for one, not to think meanly on the Person, who in so great a Concern, as a Man's Life, should be so rash as to give his Opinion without consideration, or so unsteady as to give different Opinions in the same Case; for if the Truth of a Man, who tells history backward and forward, is justly suspected in point of Truth, so the knowledge and sincerity of a Man, who gives different Opinions in the same Case, is justly suspected in point of law, which together with the fulsome, but injurious, Stuff vented for Crown-Law, which was the first Matter, which put me on considering and writing what I have done.  
And for myself, if Tully thought it a reproach to his Son, if he did not abound with Philosophy, having heard Cratippus for the space of a whole Year, and that at Athens, surely one who hath had his Education at one of the Three great Schools for some Years, and afterwards at the University: And lastly, Twenty five Years constant residence in an Inns of Court, and Twenty Years Attendance at Westminster-Hall, and not diverted by the usual Employs of a Solicitor or Attorney, may be allowed without the Imputation of Confidence, to give his Censure, upon consideration, on the extempore Judgements or Opinions of Persons, tho' of greater Standing and Character than Himself.  
FINIS