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for being a solicitor for one in high treason ; | they had known one indicted for high-treason and says the court, it is criminal for one to for being a solicitor in such a case, though I be solicitor or counsel in cases of high treason, do not believe it; yet that authority goes no unless assigned by the court : and whether it farther to prove the matter, than an indictment be so or no, is worth inquiry.
I knew against a person once, for stealing an First, No law-book as to this matter makes acre of land; and against another for wickedly any difference between treason, and other and devilishly breaking an award, whereby two crimes; and advising and soliciting is spoken unjust arbitrators directed to the prisoner to of in general terms; which being reduced to convey his land to a certain lord, without any particulars, will shew the absurdity of it. satisfaction or recompence, proved those mat
Suppose I, observing the indictment on which ters to be felonies. the prisoner was arraigned, was erroneous, and But though a prisoner may be advised, yet should therefore advise him to move and quash that advice must not be reduced to writing. it for that error: for, say I, if you should be Then suppose one man's memory be good, and tried on this indictment, and found guilty, un- can bear all the advice given him, and another less you move in arrest of judgment, you will man's memory bad, and cannot do it; is not be attainted, and then you can take no ad
the last hanged for having a bad memory, vantage of that error; and if you be acquitted,
rather than for his crime? But though it may you may be indicted again, and tried again, be reduced to writing, yet it must be his own because the first indictment was erroneous. hand-writing, and not another's; how ridicuIf this be law, as none can deny it, is it not
lous is the distinction ? Suppose the prisoner lawful to advise bim ; and it is not fit for the cannot write, then he is hanged for his parent's court to quash the indictment faulty, notwith- fault or misfortune, for not educating him, or standing all the cant of dilatories, subterfuges, tor not being able to educate him better. and defending himself by plain matter of fact. Which is somewhat of kin to the late pracOr suppose I advise in fact, that I hear that tice in the west, where many men were hanged such a witness is come against him, I know he for having old Jewish names, as Obadiah, or is hired to do the job, and I will prove it on him
the like, with a jest, that their godfathers if called: or suppose I tell him, I know such hanged them. But suppose it is not lawful in a witness is convict of perjury, and if he will general to be a counsel or solicitor, with, or to a call me, I will produce the records of his con- prisoner committed for high-treason; yet the viction ; can any lawyer say these things are prosecution being the king's, be may give a criminal ? But if I should advise a prisoner to privilege which the law of Courts doth not escape out of prison, shewing him the way of allow, and in this case it was so done : for, to doing it, it is criminal.
the confusion of those who did this injury, and In all cases comforting a traitor is treason,
of those judges who would not do the prisoner [Co. Inst. 138]; but it is meant where you do right, they have printed the orders of the king it to keep him from justice, [Co. Inst
. 183]; and counsel, which appointed Mr. West and for else feeding a traitor in prison is treason, Aaron Smith to be his counsel and solicitor. which none will affirm, [H.P.C. 218]. So that Ifit was lawful for the prisoner to have reducing general words to particular facts, clears counsel, and to have advice in writing ; it was the sophistry of them : nor is it criminal to be very unlawful, and as high a misdemeanor in a solicitor in treason, for where there is no po- the king's counsel to order his papers to be sitive law, as in this case there is not, natural taken away, as they were capable of being reason must take place; and better reason guilty of ; both the prisoner and the matters cannot be given than what the prisoner in this of bis defence being under the protection of the case gave: if a man be cooped up, anil not suffered to go about his business himself, and It is not an ancient practice the seizing of no friend must be employed to do it for him, papers, though of late used ; it began, 1 behow is it possible for him to make his defence? lieve, upon my lord Coke, whose papers were 1 know it is said his innocency must defend seized and carried to the secretaries office, upon him; but the folly of that saying shall be the like pretences as of late, and when returned, shewn in another place. But say they, the were gelt of many bonds and other securities, court shall assign him a counsel and solicitor ; to a great many thousand pounds value, wbicb but when, and for what i only for a point of never came to light. It was afterwards pratlaw. May not a prisoner want a solicitor for tised upon some members of parliament, and, a matter of fact ? Suppose he had occasion for as I remember, voted illegal, as undoubtedly it a witness which he could not readily find, or is : for though sometimes you may meet with occasion for a copy of a record, for want of papers which may be evidence against the priwhich Mr. Cornish suffered ; was it not rea- soner ; yet it is possible that other papers than sonable for him to have a solicitor? And when the prisoner's may be mixed with his to make shall the court assign him a solicitor ? only good an acousation; nay, which is worse, when the prisoner comes upon his trial, and some of the papers may be withdrawn, which then it is too late to have any use of him; as may be the only matter of his defence, and that Colledge was arraigned at twelve, and tried at hath been often practised. And I cannot but *wo o'clock the same day; and as was Mr. remember a story about this matter : when sir Cornish’s case. But, says the king's counsel, William Jones diod, it was said that one fresa
Whitehall offered sir William Jones's servant | natures cannot be joined in one indictment, as agreat sum of money but to let him search his murder and robbery : and for the same, and master's study to find a paper which would dis- another reason, treason and misdemeanor cancover great matters. A certain person dis- not be joined in one indictment ; for the jury coursing with a privy-counsellor about it, the may observe, that one part of the indictment, privy-counsellor said, it was not true; for, which in itself is but misdemeanor, as that he says he, if we had had a mind to have done it, said, the king minded nothing but beastliness, could we not send a messenger on pretence of &c. though charged in the indictment as treasearching for treasonable papers, and bring all son, was proved, and not the material parts of the study to Whitehall,' and keep what we the indictment, as designing to seize the king's would of them ?
person, &c. and finding some part of the inBut though that hath been often practised, dictment proved, might find bim Guilty geneyet this was the first time that ever a prisoner rally, which extends to every article of the inhal the instructions for his defence taken away diciment, and so the jury deceived, and the kom him ; and the manner was worse than the prisoner in danger ; or suppose he was acthing, it being done just as he was coming to quitted of such an indictment, if it ought to kis trial, relying upon his writing, not his me- have been quashed, whether the prisoner shew mory, for his detence; besides the agony so the error or not, he may be tried again upon great an injury put him in, when he had so another good indictment for the same treason. great a concern upon him, as the trial for his If therefore what he offered was an error, or life, and he could not but know by all that pre- but like an error in the indictment, by the law paration, that it was more than ten to one which favo:irs life, and the jeopardy on life, against him : all which is well seen in bis trial, the Court ought not to have tried him on that where he so pathetically and sensibly pressed indictment, but have directed another indictthe Court for justice in this matter, which they ment to have been found. It is a vain objecexcused with such mean answers, that all tion to have said, that that would have been mankind must see they were satisfied of the troublesome. Is the mischief of that comparainjustice, and were resolved not to do him ble to that of putting a man twice in jeopardy right: they knew not which way he came by of his life for the same thing? But it would the papers, they knew not but he may be crí- have been a delay. I say none; for there was minal who brought them him; they knew a Grand-jury in Court, and within the two nothing of his papers, they knew not what hours time the Court adjourned (to give the papers he meant ; that his lordship did not king's counsel opportunity of viewing the pritake them away, and such-like stuff: as if it soner's papers which were taken from him. and was not the duty of the Court to relieve the to consider of the method of his prosecution by prisoner against the oppression of any such them, which they did, and altered it from what persons but themselves; else why did they not they at first designed it) the king's counsel ask Murrel and Sawel who stood by, and were might have had a new bill found; but peradcharged with taking them, for the papers, and venture they could not prevail with that Grandhave satisfied themselves of them ? But in jury to have found a new bilt ; they rememtruth they knew before what they were. And bered they had ill luck with the first bill at Colledge was a true prophet, when finding his London, which I believe was the true reason : life so beset, be said, this was a horrid conspi- but I will do the Court no injury; in supposing racy to take his life : but it would not stop that to be the cause of the adjournment which there, for it was against all the Protestants of was not; it is is true, in the printed trial, it is England. And the rule the Court made at pretended they adjourned in order to dine ; yet last was as unjust, that he should have the use those that knew the adjournment was by the of some of his papers after he had pleaded not direction of the king's counsel, and overheard Guilty, but not before; for suppose there was their whispering with the Chief Justice (which matter in them which could not be made use is both an indecent and an unjust thing, and is of after such plea, as a plea to the jurisdiction neither better nor worse than a plaintiff or deof the Court, a pardon, otherwise acquitted, fendant's whispering a judge while his case is and the like, could not be pleaded, or advantage before him trying); and I know that the taken of them after not Guilty pleaded ; al- judges had breakfasted but a little before, and though there was not such, yet there might had no great stomach to their dinners, and have been such pleas for ought the Court therefore believe, that that before assigned, and knew. How unjust then was it for him to not what was pretended, was the true cause : plead not Guilty before he should have the they might better have put off their dinner to use of his papers ? But there was matter in their supper, than their supper to their breakthem for quashing the indictment ; and he fast, as they did, the trial lasting till early next hinted so much to the Court, as that the in- morning. dictment contained crimes of different nature, But because of irregularities of Court and as treason and misdemeanor, and I think it counsel, in all these matters, are shifted off was good cause to quash the indictment. and excused by two sayings not understood . In all civil matters, two matters of different generally; the first whereof is, that the Court natures cannot be put into one action, as debt is to act for the king, and the counsel are for and trespass ; two capital crimes of different the king, and no person must come near the
prisoner, to the prejudice of the king, as in if they urge things as evidence of the crime Fitzharris's case was often said ; a witness was whereof the prisoner is accused, which by law permitted to go on in an impertinent story, of a are not evidence, as in this case, in lord Rustransaction between him and my lord Shaftes- sel's case, colonel Sidney's case, Mr. Hampbury, in my lord Russel's trial, of which the den's, and Mr. Cornish's case, and in many • prisoner complained that it was designed to in more they did, and as in some of them shall be cense the jury ; and though the chief justice hereafter shewn. If they insinuate any fact declared it was not evidence, yet a great while as evidence, which is not proved, as in my afterward he went on in a like manner: nay, the lord Russel's trial, that my lord of Essex killed counsel in summing up the evidence, repeated himself; if they wrest as evidence of the fact, the same matter, which was permitted because what in sense is not so, as in colonel Sidney's it was for the king ; and yet, when the earl of case, the writing his book, (nay, for any thing Anglesea began to say what the lady Chaworth appeared, it was writ before king Charles the told him, he was snubbed, and cut short ; and second came to the crown) they are counsel Mr. Edward Howard was served the same against the king, being against truth, as well as sauce, because it was against the king : it is against the prisoner. fit, therefore, to know what is meant in law by I think no man will deny the truth of this those words. Nobody doubts what the Courts proposition, That it is as much the king's inor king's counsel of late days meant, but in terest to liave an innocent accused of treason, law they are not so meant: før though many acquitted, as it is to have a nocent accused of things are said to be the king's, as the protector treason, convicted. If that be true, then let of his people, and more concerned in their any one shew me a reason, if he can; for there welfare than any private persons; yet they are is no law against it, why he may not have the so in preservation, and not in property or in- same liberty of clearing his innocence, as the terest. The highways are the king's, in pre- prosecutor hath of convicting him ; I mean by servation for the passage of his subjects; and free and private access of all persons to the whoever obstructs them wrongs thë king, as prisoner, as is used in all other capital matters. he is hurt when his subjects are hurt ; but in If it be said he may get some to corrupt the property, the soil generally belongs to private i witnesses against, or suborn others for him, the persons. The king is hurt when his subjects same may be said in all other matters; but in are oppressed by force, because he has engaged treason that is not a likely matter, for geneto defend them; and therefore the offender is rally the prisoner never knows what he is ac punished by the king, to deter the offenders, cused of, and consequently cannot know his and others, from committing the same offences; accuser, nor how to provide a counter-evidence, which is for the benefit of the public. But as till he comes to be arraigned, and then it is too a man may be oppressed by open force, so he late: for generally he is presently tried after may be oppressed by private insinuations and his arraignment, as was the case of Colledge, false accusations, and the king has engaged to and my lord Russel, and Mr. Cornish ; and defend his subjects from such; not that it is persons committed for treason are so much the possible to prevent them, but by consequence, less able to corrupt or suborn witnesses, than that is, by punishing such as shall be found any other criminals, that they generally, aeguilty of those crimes, which heretofore were cording to the late practice, have no accuser punished with the highest arbitrary punish - brought face to face to them, on their commitments we read of. The consequence is, that it ment as all other criminals have, who always is for the king to punish offenders, to aequit the are committed upon an accusation made apon false accused, and to punish the false accusers; oath in their hearing, and their defence heart that is to say, in all cases to do right according before their mittimus made ; and whatever the to law and truth.
pretence may be, yet in experience, it is found, Surely queen Elizabeth gave the best ex- that more perjuries are committed in prosecu. planation of the words, [3 Co. Inst. 79.) when tions for treason by the accusers, than by the the lord Burleigh, seeing sir Edward Coke, witnesses for the prisoner. the then Attorney-General, coming towards One reason is, A witness in treason is more her, he said, Madam, here is your Attorney- difficultly convicted than in any other crime : General, .Qui pro Doniina Regina sequitur.' For treason is an Ignis fatuus, it is here and Nay, says she, I'll have the words altered, for, there, as Colledge was first in London, then in it should be, Qui pro Domina Veritate se. Oxford; it is not confined to place or time, as quitur.'
all other crimes are; in all other crimes, as For the king, and for truth; they are sy. murder, robbery, or the like, it must be proved nonymous words; for the king against the to be within the county where laid; it must be truth is a contradiction. And the judges and of the person named in the indictment, which king's counsel having taken an oath to advise are evidences of fact, which in some sort prove the king according to the best of their cunning, themselves. And there was but one that I rewhich is according to law and truth ; if there member, for Oates I do not count one, was ever fore the king's counsel use means, and the justly convicted of perjary in treason, and that court permit them so to do, to suppress truth, I too was for want of cunning, for be foolishly or to disable the prisoner from making bis in- swore to time as well as place, which a witness nocence appear, as in Colledge's case was done, in Mr. Hampden's trial would never be brought
to do: Besides malice and revenge, which in late times, and the manner of usage of the priprosecators and accusers in treasun are gene- soners, it is so very much like, or rather rally the motives, go farther than money or worse than the practice of the inquisition, as I kindness, which if used in any case, are the have read it, that I sometimes think it was in motives of false witnesses for the prisoner order to introduce popery, and make the in
Now as for the king and for the truth are the quisition, which is the most terrible thing in same,so for the king and for the law are the same. that religion, and which all nations dread, seem The laws are the king's, as he is to see the easy in respect of it. I will therefore recount execution and preservation of them; so for the some undeniable circumstances of the late pracking against the law is a contradiction. tice: a man is by a messenger, without any
Therefore to try a prisoner upon a vicious indictment precedent, which by the common indictment, as was done in Colledge's and law ought to precede, or any accuser or accucolonel Sidney's cases, is against the king as it sation that he knows of, clapt up in close prison, is against the law, for by that means he is in and neither friend or relation must come to him, danger to be hanged-if convicted ; or tried he must have neither pen, ink or paper, or know twice, if acquitted; which is against law.". of what, or by whom he is accused; he must
It is no salvo of the matter what the judges divine all, and provide himself a counter-evi. said in Colledge's case, that the evidence of dence, without knowing what the evidence misdemeanor is no evidence of treason ; for the is against him. If any person advise or solicit same may be said in an indictment of murder for him, unless assigned by the court by which and mbbery ; nor that the judges would take he is tried, they are punishable: he is tried as care to inform the jury which was evidence of soon as he comes into the court, and therefore treason, which of misdemeanor, which they of a solicitor there is no occasion or use; if the promised to do, but were not as good as prisoner desires counsel upon a point of law, as their words, as shall be shewn; for the court was done in my lord Russel's trial, the counsel may forget so to do, and the jury may forget named must be ready to argue presently, and what the court said to them of that matter. the court deliver their judgment presently with
But notwithstanding all this, if the prisoner out any consideration. The prisoner indeed was innocent, there could be no harm done to hath liberty to except to thirty-five of the jury him, for his innocence would defend him : peremptorily, and as many more as he hath This was a saying, and as mortal
cause to except to, but he must not know beFitzharris, to Colledge, to colonel Sidney, to forehand who the jury are ; but the king's Mr. Cornish, and several others, as was the counsel must have a copy of them; he must letter @ amongst the Greeks. It is true, my hear all the witnesses produced to prove him lord Coke used the expression, but in another guilty together, without answering each as he sense than that of late practised. I would fain comes, for that is breaking in upon the king's know what they meant by the expression; Is it, evidence, as it is called ; though it hold many that no man will orever did swear falsly against a | hours, as it happened in most of the trials: he prisoner in treason. If that be true, how came must not have any person to mind him what the sarne persons to beso violent against Oates for hath been sworn against bim, and forgotten by what he swore against Ireland ? or do they him to answer ; for if that were alllowed mean, that, let an accuser swear never so vio- the prisoner perhaps may escape hanging, anel bently and circumstantially against a prisoner, that is against the king : there is a proclamation yet if he be innocent it will do him no harm ? to call in all persons to swear against him, none If that be true, I would fain know how the is permitted to swear for him; all the imperprisoner shall escape; is it that his innocence tinent evidence that can be given is permitted
appear in his forehead, or an angel come against him, none for him; as many counsel from heaven and disprove the accuser? Neither as can be hired are allowed to be against him, of which we have observed, though all have none for him. Let any person consider truly said, and I believe, that some persons have these circumstances, and it is a wonder how been very innocently executed. Or shall the any person escapes : it is downright tying a accuser be detected by the bare questions of man's hands behind him, and baiting him to the prisoner? That I think will not be neither; death, as in truth was practised in all these and therefore to instance in the only person cases. The trial of Ordeal
, of walking bewho hath of late escaped in a trial of treason, tween hot iron bars blindfold, which was abowhere there was a design against his life, which lished for the unreasonableness of it, though it was my lord Delamere, if he had not had had its saying for it too, that God would lead witnesses to have proved the persons mentioned the blind so as not to be burnt if he were-into have been with bim at the place and time nocent, was a much more advantageous trial sworn against him to be in other places, it was for the suspected than what of late was prac, not his denial had served his turn, but he would tised, where it was ten to one that the accused have run the same fate with my lord Bran- did not escape. If any of these things have don. Nay, I am a pt to think, had he been been legally practised, 'I have nothing to say tried by a jury of commoners packed,
as, against it, but I have never read any thing of at that time, they usually were, he had not common or statute law for it. And I can with
better assurance say, than any person who hath The truth is, when I consider the practice of practised these things, that no late tri England
warrants them; and if not, then consider the deed is not his, which yet in an answer ia unreasonableness of these methods.
Chancery, he will confess to be bis? If There is yet one objection to be answered, his witnesses shall not have credit because put which being a very great hardship upon the sworn, to what purpose then is it permitted prisoner, gives some colour of imposing other him to produce them? If they shall have hardships upon him, to wit, that a witness can- credit, but not so much as if sworn, I ask how not be examined for the prisoner on his oath much credit shall be given ? Is it two, three in a trial upon an indictment of a capital matter. or ten witnesses without oath shall be equivaIt is not because the matter is capital, for lent to one upon oath ? And besides, that questhen no witnesses ought to be examined tion never was nor can be answered, what credit upon oath for the appellee in a capital mat- shall be given them? There is an unreasonable ter ; neither is it because it is against the disadvantage put on the prisoner, that a witness king, for then no witness ought to be examined produced on his part, of equal credit with the on oath for the defendant in a trial upon an in- witness against him, shall not have equal credit dictment of any criminal matter; yet in in- | given him, because he is not on his oath; dictments of all criminal matters, not capital, it whereas he is ready to deliver the same things is permitted to the prisoner.
on his oath, if the court would administer it to To say truth, never any reason was yet given him : And yet that difference was taken in for it, or I think can be, if you believe my lord Fitzharris's case, as to the credibility of Eve Coke, 3d Instit. fol. 79. of which opinion my rard and Oates, the first being upon his cath, lord Hale is, in his Pleas of the Crown*, that the last not. that practice is not warranted by any act of par- I do not offer this as any reflection upon the liament, book-case, or antient record, and that late proceedings, but as a reason why matters there is not so much as scintilla juris for it: in capital proceedings ought not to have been for he says, when the fault is denied, truth carried farther than heretofore they were, cannot appear without witnesses. As for what against the prisoner, by example of so unrea. is pretended, that it is swearing against the sonable a practice. king, and therefore it is not allowed of; it is But to return to the trial of Colledge, which a canting reason, which, put into sensible Eng- came on in the afternoon, when the Attorney lish, a man will be ashamed to own. And as slight insisted that the king's witnesses ought not to is the reason, that it being a matter of so high be examined out of the hearing of each other
, a moment as a man's life, the prisoner will be in which he was over ruled, but the rule net the more violent and eager, and the witnesses observed, nor was it material : for the king's may be more prevailed upon to swear falsely, counsel having the prisoner's writings, and by more than they would be in a matter or less them observed how he intended to make the moment: the weakness of that reason bath witnesses against bim contradict themselves, been in part, and shall be further shewn. I they did not produce such witnesses as were think none will deny, but the end of trials in not instructed to concur in the evidence of the any matters capital, criminal, or civil, is the same matter, but produced only such as were discovery of truth : next it is as necessary for instructed to give evidence of distinct matters. the prisoner to have witnesses to prove his in- And therefore Dugdale was first produced, nocence, as it is for the king to have witnesses who gave evidence of vilifying words spoke of to convict him of the crime : which proposition the king at several times, at Oxford and Lonis agreed by the practice, it being always per- Jon, by the prisoner, to himself alone ; that mitted, that the prisoner shall produce what he shewed the witness several scandalous libels witnesses be can, but they are not to be upon and pictures, and said he was the author of oath. In the last place, since truth cannotappear, them; and that he had a silk armour, a brace but by the confession of the party, or testimony borse pistols, a pocket pistol, a sword ; that of witnesses of both sides, it is necessary to put he said, he had several stout men to stand by all the engagement as well on the witnesses of him, and that he would make use of them for part of the prisoner, as of part of the king, to the defence of the protestant religion ; he said
, say the truth, the whole truth, and nothing but The king's party was but a handful to bis party. the truth, as the nature of the matter will bear : Stevens swore the finding of the original of the and as yet no better means has been found Raree-Show in the prisoner's chambers. John out than an oath ; which if denied to the pri- Smith swore his speaking scandalous words of soner's witnesses, either
he is allowed too great the king, and of his having his armour ; and an advantage to acquit himself, or he is not al- that when he shewed it the witness, he said, lowed enough.
These are things that will destroy the pitiful If all that his witnesses say without oath, guards of Rowley ; that he said, He expected shall have equal credit, as if they swore it, the king would seize some of the members of then be hath too much advantage ; for men parliament at Oxford; which, if done, he may be found who will say falsely, what they would be one should seize the king ; that he will not swear, as is plain enough.' How often said, Fitzgerald, at Oxon, had made his nose doth a defendant say in a plea at law, that a bleed; but before long, he hoped to see a great
deal more blood shed for the cause; that if any, Tit. Evidence, p. 264. See Hist. P. C. vol nay, if Rowley himself, came to disarm the 2. cap. 37. p. 283.
city, he would be the death of him. Haynes