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And if you
ander his hand, are an evidence beyond all | be given for ill purposes, for to make him trecontroul in the world that he gave those direc- pan bis subjects : Which is another piece of tions; and these are treason, that is plain. virulency that these papists always exercise And therefore it does seem to be as strong an against the king ; they always make an ill use evidence against Mr. Fitzharris of this treason, of his best actions, and an ill interpretation of as peradventure ever was given against a trai- them. For, gentlemen, can it be believed, that tor. There is not any one witness that stands the king would ever design such a thing as this single, but there are two to each night; and his is, to blacken his family for ever, to stir up all own instructions written by himself do not stand bis subjects against him, to endanger his crown upon the evidence of a single witness, for he and kingdom, and all that he has in the world? owned it in the presence of three witnesses : So And all this to what purpose ? No colourable then a stronger evidence cannot be given that design can be made of it. This is such a thing, be was the author and director of this book. to excuse such a villainy, as never was heard
Then, gentlemen, you must consider what of, by wresting the king's charity and genero. he says for himself' in excuse of this horrid sity to such ill purposes; but that some men treason that these witnesses seem to fix so fully have the confidence to do any thing. I must upon him. The first witness he brings is Dr. leave it to you. Here are three witness his own Oates; and he does tell you, that having some hand to these instructions, and his making a discourse with Everard, Everard should say, declaration that it was not treasonable enough, this was a design of the court, and was to be nor virulent enough. All these things are put into some lords, and I think into some strong evidences in the case. parliament-men's pockets ; and then they were believe these witnesses and his own handto be apprehended. I think this is Dr. Oates's writing, it is a plain case, you must find him testimony. Mr. Everard is here upon his oath, guilty. and he testifies no such thing in the world : It Fitzharris. May I have liberty to speak ons is easy for one to come and say, I heard a man word ! say so; perhaps he said it by way of conjec- L. C. J. Gentlemen, I had forgot one thing. ture ; but this is no answer to direct proof. For fear it make an impression in you, because Mr. Sheriff Cornish is the next witness, and I see he hath inculcated it often and often, and he says, he had some discourse with the king, that is, the impeachment that was by the Comand the king should say, he thought Mr. Fitz- mons House of treason against Mr. Fitzharrisin harris had been an honest man, and had given the Lords House: I must tell you, gentlemen,
that is not before you at all; the matter of Mr. Sh. Cornish. No, my lord, the king said, that was by way of abatement pleaded to the he took him to be an ill man.
jurisdiction of this court, and that is now over. L. C. J. Then it seems I was mistaken ; his You must have no consideration, nor can bare majesty did not tell him he took Fitzharris to any consideration, of that now. Your question be an honest man, but an ill man. But that he is not whether we have authority to try this had formerly some money of the king, upon cause ; but you are impappelled and sworn to pretence of doing him some service; now that one point, and that is, whether Fitzharris be brings it out what the king's meaning was: guilty of this treason or not. Whether the court For it seems there had been begged some have authority to do it, is another question proper money for him, and the king, at my lady for our determination, and we have determined Portsmouth's desire, by way of charity, gave it; but there is nothing of that lies before you him some little matter of money; he boasting in this case. Therefore you must not be misand telling the king he could do him some ser- led with any thing that he talks so fondly of vice. You see what manner of service it is he concerning the impeachment, or concerning would have done him and the kingdom. Then his blood İyivg at your doors, that surely will as to the rest of his evidence, there is Mrs. signify nothing to men of understanding at all. Wall, and my hdy ducha of Portsmouth; Mr. Johnson. My lord, it is our happiness and he hath camined the concerning the to come before you under these circumstances.
nd, and they both declare We have understood there is a vote of the Commanejo was given: It mons of England in parliament, that says this
for a gratuity from man shall not be tried in an inferior court; now his boasting, says we take ourselves to be the judges of this man
ilie king service, in part under your lordship's directions. e terest. I think Serj. Maynard. You are not judges of it, you sy material : For as are only to try the fact.
it signifies no- Mr. Johnson. I only offer my sense, and if Tint him or against the other gentlemen think otherwise, they will are about delivering speak it. I think the office of a juror is such, to his wife. Now, that it is within his power to acquit or condemn Her what ill use this according to the evidence, as it lies within his te of the king's own conscience. Now if we should acquit
3 he gave him this man (we have no assurance we shall acquit anymo iranta, and now him, only suppose it) then there is nothing
aunte this to against him but what lies in a parliamentary
him some money.
way, and we shall forejudge their cause. There | doubt but we are all of the same opinion. It is fore I say, I do not know how far by law we are no marvel indeed to hear a man that stands in compellable to give a verdict in this case upon Fitzharris's place, to object any thing that him.
may cast a mist before your eyes. And yet L. C. J. Look you, gentlemen, we would it cannot but be wondered at too, that when consult your satisfaction as much as we can three protestant witnesses have sworn precisely, in all things; and it is reasonable that if you he should have the confidence to urge any thing have any doubts you should propose them to us, of this nature. He who appears by the indictand to that purpose we are to give you satis ment itself, and the proots made upon the infaction, and will in all things. I must tell you dictment, to have endeavoured to destroy all as to the jurisdiction of the court, that it is not the laws of England, all Magna Chartă, all at all before you: and as to the vote of the our liberty and our religion, and to inslave us House of Commons, alledged by bim, if any to the king of France : For that appears plainly such there be, that cannot alter the laws of the the design, if you have any credit to the witland, por justify any of us in departing from nesses that are produced: He that would have our duties, no more than if a letter or mandate pulled down all that is sacred amongst us, is should be gained from the prince or chief ma- so zealous for the authority of the House of gistrate of this kingdom, to any of us in dero- Commons. We have all of us a great regation of justice (as it is possible by surprise to verence for the House of Commons, and for be) we are to take notice of the one, no more their opinions ; but as my lord hath told you, than the other. We are upon our oaths to do jus- so I tell you my opinion, that a vote of the tiee according to the law of the land: you likewise House of Commons does not in the least sort are upon your oaths, and sworn to do justice in alter the law: For, indeed if it did, it were to your sphere ; and your oath is, that you shall give a legislative power to the Commons, which enquire truly whether he be guilty or not; does only belong to the King, the House of and if he be guilty in your judgments, you can Lords, and the Commons together. And, genno more spare him, than you can condemn an tlemen, though Mr. Fitzharris says, if he be innocent person. It never was pretended by acquitted here by you, yet he should remain any man, nor will it be asserted by any man to be questioned again in parliament ; there is that understands himself or the constitution of no man in the world can doubt, if he were acthe government of this kingdom, that a vote of quitted here, and were questioned in parthe House of Commons can change the law of liament, but he would say, he hath been the land. It cannot excuse us, it we deny to upon bis legal trial by, his peers, and that ty a man that is brought before us ; nor will it he hath been acquitted by his peers upon excuse you, being under an oath, justly to try solemn evidence. But, gentlemen, you are him. If you should (because the Commons to consider what is your business : Your House have voted that he shall not be tried) de- office is to be jurors, not to be judges ; you clare that man innovent, who in your own judg- are not to take upon you any such authoment you believe to be not innocent; you por we rity. Your commission is your oath, and by are not to consider what will be the consequence that oath you are sworn to inquire wheof this if this, man be acquitted or condemned; ther the prisoner be guilty, as he is indicted, that is not before us. You and we too are tied or not: If you, as Englishmen, can say he is precisely to the laws of the land, and by that not guilty, let it lie upon your consciences, law must this man be judged. As to our parts and the danger of the king's blood and life be we must do it as to the law, and you as to the upon you. fact. But I'll tell you further, gentlemen, this Just. Dolben. Gentlemen, I desire to speak doubt was moved to us by the grand jury, be- one word to you, to let you know, I am of fore the bill was found; we had an intimation that the same opinion with my lord, and with my they would move such a doubt to us as seems brother; and I cannot but wonder at you for to be your doubt now. Therefore for their sa- making this scruple: For if there were any tisfaction, and the taking away any scruple that thing in what you have said, it concerns us that might be in the case, all the judges of England are judges, and not you at all ; for it is a matdid meet together, and seriously debate the mat- ter of jurisdiction : And whether we have a ter and substance of all this; and it was not our jurisdiction or not, we must satisfy ourselves opinion of this court only, but the opinion of all that we have a commission to do it; it conthe judges of England, I'hat we had a jurisdic. cerns not you. Do you but consider the oath tion to try this man. This we have told you, you have taken, that you will well and truly because we would satisfy all men to go on try, and true deliverance make betwixt our sofairly in the things that are before them. There vereign lord the king, and the prisoner at the fore, that being putout of the case, you must con bar, according to your evidence: And you sider of your verdict, and give it in upon this trial. have sworn a true verdict to give upon it, and
Mr. Johnson. We do not doubt, my lord, do you now scruple whether you should give but your opinion in this case will indemnify us any verdict or no, when but even now you from any future charge by the Commons of have sworn you will give a verdict ? If any England. But it lies before us to consider what such thing as this had been in your heads, (tor we are bound to do in the case.
it might be then in your heads, as well as now) Jast. Jones. Gentlemen, Fsuppose you do not why did not you speak of it before you took
SATE TRIALS, 33 CHARLES
onded into fonr quarters, to be
at your sin, and repentance for
ste to come to me, and any
391) STATE TRIALS, 33 CHARLES II. 1681.-Proceedings against (392
Silence proclaimed during judgment. evidence, and would you acquit him against Cl. of_Cr. Edward Fitzbarris, hold up thy such an evidence as haih been given ? For, be- hand. Thou hast been indicted and arraigned sides what sir William Waller, Smith, and of High-treason, and hast thereunto pleaded, Everard have deposed, the very note sworn by Not guilty, and for thy trial put thyself upon sir Philip Lloyd and Mr. Bridgman, to be owned God and thy country, and thy country hare by Fiszharris as his hand, contains trea- found thee guilty : What canst thou say for son enough in it if there were no more: There. thyself, why judgment of death should not be fore there must be something more in it, than given against thee, and execution awarded ac. for the sake of such an unreasonable scruple. cording to law ?
Just. Raymond. I am of the same opinion, Fiten. My lord, I think it will be prejudicial truly.
to the king's service, that Sentence should pass Dir. Johnson. My lord, I took the liberty to before I have made an end of the evidence I speak it now; I could not speak it before: For have given in against my lord Howard, I was not then to enquire what I was to be sworn L. C. J. Mr. Fitzharris, we can take no nota, nor could I know what would be the matter tice of any thing of that nature. When you that would come before us, till we were sworn. are asked, what you can say why judgment Therefore I humbly beg your pardon, that I sbould not pass against you, it is, what legal made the motion.
matter you have, what matter in law to excuse L. C. J. We are not at all troubled at any yourself from that judgment ? For this is 00thing you have said : do not mistake us, we thing, the saying you are to give evidence ; do not take it ill from you, that you acquaint us we know nothing of that, it will not delay with your scruples : We are ready to give all judgment a minute. And for what you say, it satisfaction we can, to any that are concerned will be prejudicial to the king's service, it is the before us'; therefore we are no way troubled king that prays judgment against you by his that you made any such scruple, but have attorney. given you a fair answer to it.
Fitzh. I beg the king's mercy for transpor. Mr. Johnson. My lord, I desire a note of the tation, my lord. names of the jury:
L.C. J. We can do nothing in that. L. C. J. Give it him, Mr. Astrey, or else Fush. Nor to give me time before my exethe crowd is so great he may not know them. cution ? I can say no more, my lord. [Then the Jury withdrew for half an hour,
L. C. J. Look you, Mr. Fitzharris, you and at their return being called over and ap- heinous treason, a treason that is in truth of
have been here indicted for a very great and pearing, the clerk took the verdict.] Cl. of. Cr. Edward Fitzharris, hold up thy tends to the rooting up the whole government
the first magnitude; for it is a treason that hand : (Which he did,) look upon the prisoner, of this kingdom, and the destroying of us all; how say you, is he Guilty of the high-treason plainly, both of the king and of all his subjects whereof he stands indicted, or Not Guilty ?
It does not only destroy the peace and quiet, Foremun. Guilty, &c.
but it tends in truth to the utter destruction of L. C. J. I think you have found a very good the whole kingdom, and to bring us into a verdict, and upon very full and strong evidence.
confusion and disorder, never to be avoided or Sol. Gen. Will your lordship please to give effect. You have been here arraigned, and
retrieved, if your designs should have taken judgment? L. C. J. We will take time for that.
pat yourself upon the country, and they have Sol. Gen. Will you give a rule to have him found you guilty of this treason : it is a thing
well eonsider ; for certainly, you brought up to-morrow? L. C. J. Move us another day for it.
have contracted to yourselfa mighty guilt in such Fileh. My lord, I hope I may have the li- | destruction of the king, and in such a way, as
a thing as this is. You have endeavoured the berty of my wife, and some friends now to must have in truth destroyed all his good subcome to me. L. C. J. Any friend I think may come to been to excite the people to a rebellion, and a
jects together with him. Your design hath you: But, Mr. Fitzharris, you must be modest in the using that liberty we give you. You popular insurrection, that would have swept have heretofore abused your liberty: I do not In truth, it is a treason against all mankind,
away all like a deluge, if it bad taken effect. love to exasperate things to one in your cir- the stirring up of the people is; it is of evil ex. ful, knowing your own condition, that you do ample to all mankind, the stirring up of the
people against their natural lord, to whom we nothing prejudicial to the king or kingdom.
owe all allegiance and obedience. But your Upon Wednesday June 15, 1681, Edward design in this way was hy setting the people of Fitzharris was brought to the Bar of the Court England together by the ears, to bring in the of King's-bench, to receive his Sentence. Roman Catholic religion upon such as should
Att. Gen. My lord, I humbly pray your be left. It seems you are an Irish papist, and judgment against Mr. Fitzharris, who is con- sucked in very ill principles where you have victed of High treason.
lived ; and you have bere endeavoured to do as
Toe bave that liberty already. 's met without the presence of a We will not restrain them as to that, to you. bare is no rale of court for it, my We will not restrain any thing of Sing, there is no rule to restrain ? him have that liberty that other
dis condition usually have had in is wife to come to him, or any
e Protestant minister whatsoever. hy let it be put into the rule of We make no rule, there does not
you, Mr. Fitzharris, we lay lipo your wife, or any other friend; se be in another condition, that
to you, we cannot meddle . We are not to deliver her out tuwe make no rule, but take off Si the Court from restraining any
el Sentence, the last day of the
Toner was taken away, and in
, being the 22d of June, 1681, best of the Court of King's-bench the lieutenant of the Tower of the judgroent, and commandels car the prisoner to the sheriff of ten Priday the first day of July
be executed according to the ech sri followeth in these words.
bebas Dei gratia Angl. Scot.
m. Rex, fidei defensor, &e. Tenis nostre London. salutem. Send Edwardus Fitzbarris nuper " Martini in Campis in Com.
coastra coram nobis consi
much mischief in this kingdom, by that trea- Midd. Gen. pro quibusdam altis proditionibus sonable book, as lies in any one man's power unde ipse coram nobis indictat. est, et superperhaps to do. . It is a mercy and a happiness, inde per quandam Juratam Patriæ inde inter that it bath pleased God in his providence to nos et præfat. Edwardum capt. convict. et deliver us out of your hands ; for this was attinct. existit, ac Turr. nostra London. 'per your design, if you could have brought it • medium Civitatis nostræ London. præd. usq; about : but it hath pleased God now to bring • ad Furcas de Tyborne trahatur, et super
Fur you to justice for it, and the judgment of the • cas illus ibidem suspendatur, et vivens ad law must pass upon you. Now that judgment • terram prosternatur, ac interiora sua extra is this: You must return to the Tower, from • ventrem suum capiuntur, ipsoque vivente whence you came, and from thence you must comburentur ; Et quod Caput ejus amputetur, be drawn through the streets of the city of quodq; Corpus ejus in quatuor partes divi, London to Tyburn; there you shall be datur, et quod Caput et Quarter. ill. ponantur hanged by the neck, but cut down before you ubi nos ea assignare voluerimus : ideo tibi are dead; your bowels shall be taken out and præcipimus firmit. injungend. quod die Veburnt before your face, your head cut off, and • neris primo die Julii prox. futur. apud Tower: your body divided into four quarters, to be • hill cum Vic. Miud. convenias, et præd. Ed• disposed as shall please the king; and I pray
wardum Fitzharris eidem Vic. Midd. delibe"God to have mercy upon your soul, to give * rari tacia , ut idem Vic. executionem de eo you a sight of your sin, and repentance for • in forma præd. fieri faciat, prout inde nobis
respondere volueris. Teste Francisco PemFitsh. My lord, I hope I may have the li- • berton apud Vestm. xxii die Junii, Anno berty of my wife to come to me, and any • Regni vostri xxxiü. • Per Cur. ASTRY,' friend. L. C. J. You have that liberty already.
And another writ at the same time was issued Fitzh. No, not without the presence of a out of the same Court, directed to the sheriff warder.
of Middlesex, to receive the prisoner from the L. C. J. We will not restrain them as to that, lieutenant of the Tower at the time appointed, let them come to you.
and to execute him according to the sentence. Othcer. There is no rule of court for it, my Which writ was in these words ; lord.
• Carolus Secundus Dei gratia Angl. Scot. L. C. J. We will not restrain any thing of • Franc. et Hibern. Rex, fidei Defensor, &c. your wife's coming, there is no rule to restrain
· Vic. Midd. salutem. Cum nos in Cur. nostra her; but let him have that liberty that other
coram nobis consideraverimus quod Edwardus prisoners in his condition usually have had in the Tower, bis wife to come to him, or any
· Fitzbarris nuper de Parochia S. Martini in
• Campis in Com. Midd. Gen. pro quibusdam otber friend or Protestant minister whatsoever.
altis proditionibus unde ipse coram nobis inOfficer. Pray let it be put into the rule of
• dictat. est, et superinde per quandam Jur. Court, my lord.
• Patriæ inde inter nos et præfat. Edwardum L. C.). We make no rule, there does not
• capt. convict. et attinct. existit, de Turr. nos. Deed any. Look you, Mr. Fitzharris, we lay
• tra London. per medium Civitatis nostra dorestraint upon your wife, or any other friend; but if your wife be in another condition, that
• London, præd. usq; ad Furcas de Tyborne
trahatur, et super Furcas illas ibidem suspen. she cannot come to you, we cannot meddle
datur, et vivens ad terram prosternatur ac with that.
• interiora sua extraventrem suum capiantar, Justice Jones. We are not to deliver her out ipsoq; vivente comburentur : Et quod Caput of prison.
ejus amputetur, quodq; Corpus ejus in L. C. J. No, we make no rule, but take off
quathe hands of the Court from restraining any
tuor partes dividatur et Quarter. ill ponantur
* ubi nos ea assignare volueriinus : ideo tibi one to come to you.
præcipimus firmiter injungen. quod cum Loc. Then the prisoner was taken away, and in • tenen. Turr. nostræ London. præd. die Vepursuance of this Sentence, the last day of the • neris primo die Julii prox. futur. apud Tower. said Trinity-term, being the 22d of June, 1681, Hill convenias, et ipsum Edwardum Fitza writ issued out of the Court of King's-bench
• harris de præfat. Loc. tenen. recipias, et Ex directed to the lieutenant of the Tower of 6ecutionem de eo in forma præd. facias prout London, reciting the judgroent, and command- • decet. Teste Francisco Pemberton apud ing bim to deliver the prisoner to the sheriff of · Westm. xxii die Junii Anno Regni nostri Middlesex, upon Friday the first day of July
Per. Cur. Astry.' next following to be executed according to the
Upon the day appointed, viz. July 1, Edward sentence. Which writ followeth in these words.
Fitzharris was, near the Tower-Gate on TowerCarolus Secundus Dei gratia Angl. Scot. Hill, delivered into the custody of the sheriffs • Franc. et Hibern. Rex, fidei defensor, &c. of London and Middlesex, viz. Slingsby Bethel Loc. tenen. Turris nostre London, salutem. and Henry Cornish, esquires; who upon the Cum nos in Car. nostra coram nobis consi- place signed a discharge for him to the lieutederaverimus quod Edwardus Fitzbarris nuper nant of the Tower. Then he was put on a . de Parochia $. Martini in Campis in Com. Sledge, and thence conveyed through the city
of London to Newgate, where he overtook Oliver, whether his body might not be at the disposad Plunket, who was just before on another sledge, of his wife, without quartering. Upon which passing to the same place of execution. ·
the sheriff read him the warrant. Where being come (soon after Plunket's pri- Soon after which he was executed. yate prayers, &c.) Fitzharris asked capt. Richardson, Whether the sheriffs had a warrant for The PAPER* referred to was as follows: the disposal of his body ? Capt. Richardson answered, Yes. Then he desired Dr. Hawkins's of high-treason, for endeavouring to dethrone
“ I Edward Fitzharris, having been indicted assistance, which the sheriffs readily granted, the King, was thereupon found Guilty, and and called for him to go to him on the sledge ; sentence of death passed on me. I the afore. which the doctor did, and on his knees embraced him, and continued a private discourse freely, without any hopes to save my life, but a
said Edward Fitzbarris do voluntarily and with him for some time.
dying man, and to discharge my conscience Sheriff Bethel asked Mr. Fitzharris, what towards God, and for the better satisfaction of have you to say?
the world, make this declaration following, in Mr. Fitzh. answered the Doctor of the Tower the presence of God, and unto Dr. Francis would answer for him, he having left his mind Hawkins, chaplain of the Tower of London.
“I do profess and declare my religion in the Mr. Sheriff Bethel. You will do well to dis- general to be that which hath been truly and charge your conscience.
anciently delivered in the first four general Fitzh. I have left it all with the Doctor in councils; and in particular, my belief is that writing under my hand, who will communicate true faith of a Christian, briefly contained in it with witness, to the world.
those three Creeds, commonly called the AposDoctor Martin, of Woodstreet, being at the tles Creed, St. Athanasius's, and the Nicene same time in the presence of the sheriffs, de Creeds: and I die a member, and in the comsired Mr. Fitzharris to declare, whether he munion of Christ's holy Catholic church, hopdied a Protestant or a Papist. He answered, ing for mercy, through the alone merits of the having left his mind fully with Dr. Hawkins, Passion of our Lord and Saviour Jesus Christ
. he hoped it might be satisfactory. The Doctor “ I do also confess and declare, as to the replied, it would be more satisfactory to declare crimes which I die for, I was no further conhimself there, and that it was no shame to die a cerned in the libel, than as employed to give Protestant, To which Mr. Fitzharris replied the king notice of what libels or other accusaas before.
tions, there were against him; and to this inThen Mr. Fitzharris said, Good People, this tent, and no other, I endeavoured to get this liinfamous kind of death is much more irksome bel: which at length I did from Mr. Everard, to me than death itself: such judgments as all written under his own hand, and carried it to these my sins against God may justly bring Mrs. Wall, by whose means I conveyed all upon me, and I do most humbly submit unto matters of this, or the like nature, to the king. it. But as to the crimes which I now die for, | I told her I had a business of great consequence I take God to witness, I was no further concerned in the Libel, than to discover to the * “ This Paper contains many ratorious fal. king what practices of that kind were against sities, which were impossible to be true ; and him, being employed to that end ; though carries with it gross marks of artifice and conthose that employed me, refused to do me trivance practised on him, while he was en• justice at my trial. And I call God to witness, tirely under the management of Dr. Hawkins, I never had a farthing of money of the king in minister of the Tower, who soon after was my life, but on the account of the like service. made Dean of Chichester. Fitzharris's wife And as to the witnesses that have sworn against was not then admitted to him ; but he wrote me, I do here solemnly declare now at my several Letters to her, one the very morning
ath, that I have not seen the French ambas-on which he suffered, informing ber, how he wor since the beginning of the breaking out was practised on with hopes of life, if he would
thie Plot, neither have I had any acquaint- accuse the earl of Shaftsbury and lord Howard ica with him. And as to his confessor, I of the libel : he declared, that they were innosrer spoke with him in my life ; neither had I cent, and that what he had deposed against the y dealing, either directly, or indirectly, in Papists was true; he charged her by no means
y life with them, though sir William Waller to be prevailed on to swear falsly against any. and the rest swore most falsly to the contrary. These Letters had such
a tendency to destroy And how like is it that the French ambassador the credit of Hawkins's Paper, that the Court
vuld give three thousand crowns for writing got her to deliver them upon the promise of a that libel, I leave the world to judge. What i pension.” Note to former edition.
furtlier declare, I have left with Dr. This paper was puðlished under the title of 4. I forgive all the world, and do hope The Confession of Edward Fitzharris, ese
will forgive me. I beg the prayers. Written with his own hand, and delivered to all good people for a happy passage into . Dr. Hawkins Minister of the Tower, July 1, The other world.
• 1681. Being the day of his Execution. Mr. Fitzharris desired to know of the sheriffs, London: Printed for S. Carr, 1681.?