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swore he said, Unless the king would let the of no such thing: that he would have Bolron parliament sit at Oxon, they would seize him, to be a witness against Colledge, and told him and bring him to the block; and that he said, what he should say, lest they should disagree the city had 1,500 barrels of powder, and in their evidence; that he heard Haynes say, 100,000 men ready at an hour's warning. he knew nothing of a popish or presbyterian Turbervile swore, be said at Oxford, that he plot ; but if he were to be an evidence, he wished the king would begin ; if he did not, cared not what he swore, but would swear any they would begin with him, and seize him; thing to get money. Mowbray said, Smith and said, he came to Oxford for that purpose. tempted him to be a witness against Colledge,

Mr. Masters swore, that in discourse be- and was inquisitive to know what discourse tween him and the prisoner, he justified the passed betwixt him and my lord Fairfax, sir proceedings of the parliament in 1640, at which John Hewly, and Mr. Stern, on the road ; and the witness wondered ; and said, How could he said, that if the parliament would not give the justify that parliament that raised the rebellion, king money, and stood on the bill of exclusion, and cut off the king's head ? To which the that was pretence enough to swear a design to prisoner replied, That that parliament had seize the king at Oxford. done nothing but what they had just cause for, Everard said, Smith told him he knew of no and that the parliament which sat last at West- Presbyterian or Protestant plot, and said, justice minster was of the same opinion ; that he called Warcup would have persuaded him to swear the prisoner Colonel in mockery ; who replied, against some Lords a Presbyterian plot, but he Mock not, I may be one in a little time. knew of none ; He said Haynes told him it

Sir William Jennings swore as to the fight was necessity, and hard pay drove him to speak ing with Fitzgerald, and the words about bis any thing against the protestants ; and being

questioned how his testimony agreed with what For the Prisoner.

he formerly said, answered, he would not say

much to excuse himself; his wife was reduced Hickman said he heard Haynes swear, to that necessity, that she begged at Rouse's God damn him, he cared not what he swore, door, and mere necessity drove him to it, and nor whom be swore against, for it was self-preservation, for he was brought in.guilty his trade to get money by swearing. Mrs. when he was taken up, and was obliged to do Oliver said, "Haynes writ a letter in her something to save his life, and that it was a father's name unknown to her father. Mrs. judgment upon the king or people; the IrishHall said, she heard Haynes own that men's swearing against them was justly fallen he was employed to put a plot on the dis- on them, for outing the Irish of their estates. senting-protestants. Mrs. Richards said, she Parkhurst and Symons said, they had seen heard him say the same thing. Whaley said, at Colledge's house his arms, about the latter Haynes stole a silver tankard from him.' Lun end of November. Yates said, Dugdale hesaid

, Haynes said the parliament were a com- spoke a pistol of him for Colledge, which he pany of rogues for not giving the king money, promised to give Colledge. And upon discourse but he would help the king to money enough some time after the Oxford parliament, Yates out of the fanatics estates. Oates said, Tur- said, Colledge was a very honest man, and bervile said, a little before the witnesses were stood up for the good of the king and governsworn at the Old Bailey, that he was not a ment. Yes, said Dugdale, I believe he does, witness against the prisoner, nor could give any and I know nothing to the contrary. Deacon evidence against him; and after he came from and Whitaker said they knew Colledge was bred Oxford, he said, he had been sworn before the a protestant, and went to church, and never to a Grand-Jury against the prisoner, and said, the conventicle that they knew of, and thought him protestant citizens bad deserted him, and God an honest man. Neal, Rimington, Janner, damn him, he would not starve. That John and Norris, to the same purpose ; and Norris, Smith said, God damn him, he would have that Smith (in company where was discourse of Colledge's blood. That he heard Dugdale say, the parliament-men's being agreed to go to Oxthat he knew nothing against any protestant in forc, said he hoped they would be well proEngland ; and being taxed that lie had gone vided to go, if they did go.

El. Hunt said a against his conscience in his evidence, he said porter, in her master's absence, brought the it was long of Colonel Warcup, for he could prints taken in Colledge's house eight weeks get no money else : that he had given out that before ; and said, Dugdale told her, atter her he had been poisoned, whereas in truth it was a master was in prison, he did not believe Colledge clap. Blake said, that Smith told him Haynes's had any more hand in any conspiracy against

was a sham plot, a meal-tub plot. his majesty than the child unborn : and lie had Bolron said Smith would have had bim given as lieve have given an hundred pounds he had evidence against sir John Brooks, that sir John never spoke what he had; and that he had noshould say there would be cutting of throats at thing to say against her master, which would Oxford, and that the parliament-men went pro- touch his life. vided with four, five, six, or ten men a piece ; Having summed up all the material part of and that there was a consult at Grantham, the evidence in order it was given, for or against wherein it was resolved, that it was better to the prisoner ; let us see whether, upon the seize the king than let him go, whereas he knew whole, an honest understanding jury could,

3 B

discovery

VOL. VIII.

with a good conscience, have given the verdict and Mrs. Richards said, he owned he was em. the then jury did ; or whether an upright ployed to put a plot upon the dissenting Procourt could, with a good conscience have declar- testants ? When Whaley testified against him ed they were well satisfied in the verdict given, that he was a thief, and bad stole Whaley's as all the four judges in that case did, though tankard ? When Lun testified that Haynes said the chief justice North only spoke the words. the parliament were a company of rogues for not And though it is too late to advantage the de- giving the king money ; but he would help the ceased, yet it will do right to the memory of king to money enough out of the fanatics the man, to whose dextrous management on estates? When Hickman testified against him he his trial, many now alive owe the continuance heard him say, God damn him, he cared not what of their lives to this day. It was not their in- he swore, nor against whom he swore, for it was nocence protected the lord Fairfax, sir John bis trade to get money by swearing ? When Brooks, and many others before-mentioned, Mrs. Oliver said, that he had writ å letter in and many not named in the trial, but Colledge's her father's name, without her father's know. baffling that crew of witnesses, and so plainly ledge? When Bolron testified against him, detecting their falshood, that the king's counsel that he said he knew nothing of a Popish or a never durst play them at any other person but Presbyterian Plot, but if he were to be an evithe earl of Shaftesbury, as shall be shewn ; dence, he cared not what he swore, but would and failing there they were paid off, and va- swear any thing to get money? When Everard nished, and never did more harm visibly ; what | testified against him, that he said, Necessity under-hand practices they might be afterwards and hard pay drove him to say any thing against guilty of, I know not.

the Protestants; and being taxed that his eviWho could believe any one of those four dence against Colledge agreed not with what he witnesses, Dugdale, Haynes, Turbervile, and had formerly said, he said he could not excuse it, Smith, if it were for no other reason than the but his poverty and self-preservation drove him improbability of the thing ; for (as Colledge to it? Which was a plain confession of the falssaid) was it probable he should trust things of hood of his evidence, and of the reason of it; that nature with papists, who had broke their and added, it was a judgment upon the king faith with their own party, who could lay grea- or people, the Irishmen's swearing against ter obligations of secrecy upon them than he them, for outing the Irish of their estates: was able to do ? That he, a Protestant, should which can have no other sense, than the Irishtrust people who had been employed to cut Pro- men's forswearing themsclves against the Eng. testants' throats? And neither of them ever lish was a judgment, &c. discovered any of the things they swore, till How could Turbervile be believed in any part after the Oxford parliament, though most of of his evidence against Colledge, when Oates them were pretended to be spoken and tran- testified against him, that he said, a little besacted before.

fore the witnesses were sworn against Colledge Who could believe Dugdale in any of his at the Old-Bailey, that he was not a witness evidence against the prisoner, when Oates tes against him, nor could give any evidence tified against him, that he said he knew no- against him; and yet afterwards, at Oxon, thing against any Protestants in England ? Turbervile told him he had sworn against Col. And being taxed by Oates, that he had gone ledge to the grand-jury, and said, the Protes. against his conscience in his evidence against tant citizens bad deserted him, and God damn Colledge to the grand jury at London, ie said, him, he would not starve: which words, I It was long of colonel Warcup, for he could think, need no explanation. get no money else ; wbich is a plain confes- And lastly, how could Smith be believed in sion he bad sworn wrong, and of the cause for any part of his evidence against the prisones, which he did it, and of the person who in- | when it was testified against him by Blake, duced him to do it. That he bad given out that he said Haynes's discovery was a Shamthat he was poisoned, whereas his disease was Plot, a Meal-Tub-Plot? The meaning of the a clap: which was an ill thing in him, as it im- words, I think, are well-known: That he plied a charge of poisoning him on other per- would have had Bolron swear against sir John sons. And when Elizabeth Hunt testified Brooks, the lord Shaftesbury, and Colledge, against him, that he said, after Colledge was in things of which he knew nothing, and told him prison, that he did not believe Colledge had any what he should swear, lest they should disagre more band in any conspiracy against the king in their evidence. When it was testified against than the child unborn ; and that he had as lieve him by Oates, that he said God damn him, be - have given an hundred pounds he had never would have Colledge's blood ? when it was spoken what he had; and that he had nothing testified against bim by Mowbray, that be to say against Colledge which could touch his tempted Mowbray, to be a witness against lite : And when Yates testified against him, Colledge and sir John Brooks, and was very that when Yates said Colledge was an honest inquisitive to know what discourse he had with man, and stood up for the good of the king and the lord Fairfax, sir John Hewley, and Me. government; Yes, said Dugdale, I believe he Stern, on the road to Oxon; and said, if the does, and I know nothing to the contrary. parliament did not give the king money, but

Who could believe Haynes in any part of his stood on the bill of Exclusion, that was preevidence against the prisoner, when Dirs. Hall tence enough to swear a design to seize this

king at Oxon? when Everard and many that the prisoner in this case was innocent, and others testified he said he knew of no Presby- yet that alone, without producing a witness to terian or Protestant Plot. Now, iť Colledge's prove his innocence, would have stood him but witnesses were credited, it was impossible the in little stead ; and how could he have known king's witnesses could be credited; that was what sort of evidence to have ready, unless he agreed by the court to be true upon the trial. knew what he was accused of? The answer on the trial was, that the king's I do not mean what crime he was accused of, witnesses were on their oaths, the prisoner's as trcason, murder, robbery, theft, or any other were not ; which was a reason in words, but crime; but unless he knew the person robbed, not in sense.

when, where, and other circumstances; which, And surely what Colledge said on that mat- say some, is not to be permitted in prosecuter, without any knowledge in the law, cannot tions of high-treason ; for if so, then no man be answered. It is not fair dealing, said be, shall be hanged for high-treason ; unless there with a man for bis life, because the witnesses was as strong proof against him, as is required against him, upon their oaths, deny the things in any indictment of any capital matter and the witnesses for him prove; therefore the wit- that, they say, is not to be expected in treanesses against bim must be believed, and the son ; for no man will call two witnesses to be witnesses for him disbelieved, when yet the evidences of his words or actions, being orertwitnesses for him were ready, on their oaths, to acts of his design of high-treason. The objecmaintain what they said for him.

tion is too foolish to be answered; for it is Nor is the law so: for taking the law to be, neither better nor worse, than that if a man that a witness for the prisoner shall not be shall not be hanged for treason without evisworn, which is only made good by practice ; dence, he shall never be hanged for treason ; the same law, that is to say practice, is that a for no evidence, and evidence which the law witness without oath, for the prisoner, is of rejects, is the same iu sense, though different equal credit with the witness against him upon in words: and as the intent of the mind is difcath, and none can shew the contrary til of ficult to prove on the part of the king, so is the late days.

prisoner's part of producing counter-evidence To give one example of many, where it was much more difficult; and therefore the law necessary for the prisoner to produce a witness hath taken care, by the statute of Edward the to prove his innocency, and where the witness third, that the intent shall be proved by an for hin was as much believed as the witness overt-act; and by the statute of Edward the against him: There was a person, whose name 6th, that that overt-act shall be proved by two I do not remember, arraigned (at the same witnesses. And therefore, since the law bath time that an indictment of high treason was taken care that there shall be a stricter proof endeavoured to be found against the lord in high-treason than in any other crime, for Shaftesbury) for robbing another of money, and the judges to say a less proof may be admitted of a hired horse, of which likewise the person to convict one of high-treason than of any

The robbing of the money and a other crime, is very ridiculous; unless they horse was proved by himself, and several will at the same time say, that the parliament others; but that the prisoner was the person who made those statutes, were men of little that committed the robbery, none positively understanding, and not to be regarded. And swore but the person robbed; who likewise certainly, it was a good counter-evidence swore, that the horse on which the prisoner which was given in behalf of the prisoner, by was taken, was the horse taken froin him ; some witnesses, though sligbted by the court, against which the prisoner proved, by the per- and not permitted by the court to be given by son of whom the horse was agreed to be hired, others, that there were great endeavours to that the horse the priso:er was taken upon,

was set up sham plots, and charge the Protestants not the horse he let to hire to the person robbed; with them : For let any one shew ine a reason, whereupon the prisoner was acquitted; and why the evidence of sham plots, though they yet the prisoner's witness was not on his oath, do not immediately concern the prisoner, is and the person robbed was on his oath: which, not as good evidence for him, as the evidence besides that it proves the matter for which it is of a real plot, in which he was not concerned, brought, shews the folly, as well as injustice of is against him. The last was permitted to be the practice of imprisoring

men, without letting given in evidence against my lord Russel, col. then know for what, and without confronting Sidney, and others; though the first was not them with the witnesses against them, upon the permitted to many winesses in this trial

, and commitment. For how could this man have it was a material objection which Colledge known what witnesses to produce, unless he made, That there was no proof of any persons had known what in particular he was indicted being concerned with him in the design of for? And how could he have sent to such wit seizing the king. nesses, unless he had had the liberty of sending It was an unadvised answer the court gave, to the persons who were to be witnesses for that he alone might be so vain as to design it bim? And it shews the folly of those sayings, alone: For if from thence an inference is made, that a man's innocence must defend him, and as was insinuated by the court to the jury, that that the evidence against the prisoner must be therefore he did alone design it, it was au evias clear as the sun at noon-day.

All will agree denee of liis being a madman, not a traitor.

was robbed.

Had the evidence been of the mischiefing the defence says ; and Mr. Masters, after much king by means which a single person is capable pumping, recollected himself, and said he of using, as stabbing, shooting, and the like, thought the prisoner said, the papists had a hand the matter is not impossible ; but it being by in those things; which proved the truth of means which it is impossible for a single person Colledge's assertion. to execute, it carries such disbelief with it, As for the evidence of Colledge's saying be that it is impossible to find a man in his senses might be a colonel in time; if he hoped at the same time guilty of it. And a man that for what he said, it was no crime, or proof is non compos mentis, if my lords Coke* and of a crime, it is no niore than what every solHalet are to be believed, cannot be guilty of dier hopes for, and he himself had been one. high-treason within that branch of the statute, As for the evidence of Atterbury, Sawel, and compassing and imagining, &c.

Stevens, of their seizing the pictures ; admit It is true, a madman may be guilty of trea- they swore true, it did not amount to the proof son, in attempting the king's person; but for of the treason in the indictment, or of any sort that he is no more said to be punished, than of treason : and yet if Colledge's maid said beasts of prey are when killed ; which are more true, it looks as if the finders or some other properly said to be destroyed than punished for person sent them to Colledge's house, in order ihe public good. But it so good a counter- to find them there. proof in Colledge's case was not made, as Of all sorts of evidence, the finding papers ought to have been, some allowances ought to in a person's possession is the weakest, becanse be made for the prisoner's ignorance of what he no person can secure himself against designs was accused of, his usage and strict imprison- | upon him in that kind. And after Dangerment before his trial, the ruffling him just be- field's design upon colonel Mansel, and the fore his trial in the manner before declared, the evidence in Fitzharris's trial, that the design of depriving him of his notes, the giving an evi- that pamphlet was to convey copies of it into dence of many hours long against him, before some members of parliament's pockets

, and he was permitted to answer any part of it. And then seize them, that piece of evidence ought the use of pen, ink, and paper was but of little to have been spared, till those and other pracadvantage to him; for a man that hath not been tices of the like kind had been forgotten. used to do it, cannot take notes of any use. The last witness was sir William Jennings, And in truth, he complained he had not taken of Colledge's saying he had lost the first bloed notes of half said, but relied on the court to do in the cause, but it would not be long before him justice in summing up the evidences; more would be lost; what was that more than which they promised to do, but broke their that he thought more would be lost in the words.

cause, which he interpreted the Protestant It must likewise be considered, that the con- cause ? Suppose he thought so withoat reason, cern a man hath upon him, when he is upon and was mistaken, where was the crime? But trial for his life, is so far from fortifying, that if he thought so upon good reason, and good it weakens his memory: Besides, the foul reason he had to think so, there was no pretence practice, without any remorse, put upon him of a crime in it. I believe most men thought and his witnesses ; some of thema imprisoned, as Colledge did, from the time of the business that he could not have them at the trial ; others of Fitzharris ; and what imputation was it to 30 threatened, that they durst not appear for him ? Why were not all the expressions he him, and the cry of the auditory against him used in his trial as good evidence against him and his witnesses, were mighty discourage- as that saying ? For he then said, it was an ments. All these things being considered, horrid. conspiracy to take away his life, and how could any understanding jury take it on would not stop at him, for it was against all their oaths, That the evidence against the pri- the Protestants of England, and the like; soner, of a design to seize the king, &c. was which was his opinion, and after-times shewed as clear as the sun at noon-day?

him a true prophet. As for the evidence which Mr. Masters gave, One thing was very dishonestly insinuated, if it were true, it was no evidence of treason that the prisoner was a papist, which was only an erroneous opinion may make an heretic, but to incense the jury against him, and it had its not a traitor: it is a very distant consequence, effect ; whereas it was very plain that he was that because he affirmed that the parliament a Protestant, though perhaps a dissenter, and in 40 had done nothing but what was just in therefore had not lately 'come to the public respect of king Charles the first, therefore the church ; and under that notion the papists and prisoner was guilty of a design against king some Protestants were contented that dissenters Charles the second : Besides, that in all pro- should be punished as papists; yet if they bability, though Mr.• Masters might inveigh could have proved him a papist, no doubt they against the parliament, Colledge might only would have done it, for the destruction of the justify them by throwing the ill things done in man was the design of the prosecution, and it that time upon the papists, as Colledge in his mattered not for what treason he was convicted,

so he was convicted. And he himself gave a 3 Inst. 4.6. 4 Co. Rep. 124, b. pretty sort of evidence against himself, if they + H. P. C. p. 10, 43. Hist. of P. C. Vol. 1, could have proved him a papist : he proved,

and confessed, he was educated a Protestant ;

P. 37.

and if they could have proved him reconciled could not be prevailed upon to do an ill thing to the Popish religion, which was treason, he to save his life, his execution was ordered; belped them a great deal in their proofs : it yet as a shew of mercy, his quarters were perwas therefore very disingenuous in the chief mitted to be buried ; a favour he slighted, with justice to reproach him at his condemnation, saying that he cared not whother he was eaten that he had not made that proof of his religion up with flies or worms. The same favour was as it was expected, when his religion was not likewise shewed Fitzharris, but the true reason the matter of which he was indicted ; that was of both was, that they had a mind that the slily insinuated to exasperate, and no proof trials and pretended crimes, for which Fitzpretended to be made of his being a papist. barris and Colledge were condemned, should But he had more reason w complain of the in- / be forgotten ; which would not be so soon justice of the Court in summing up the evi- done, it their quarters were always exposed to dence, who did it in such a manner, that if they view. But though all people were quiet, yet had been counsel for the prisoner, as they pre there was great grumbling, and most honest tended, they would have been justly suspected men were afraid ; and the constancy of Colto have taken a fee of the other side to betray ledge at his execution was such, that it made their client.

the most violent against him relent. For, as Colledge readily said, if the chief justice had looked on his notes, he would have

The author of the Critical Review of the i found more evidence against Turbervile, and State Trials, in justification of these proceed.

lame excuse for the chief justice to say, he ings against Colledge, or rather, perhaps, by could not remember more ; when, as I dare This Ordinance is cap. 44 of that year, and it referred it to the memory of the jury,

for be way of set-off to them, alleges the parliament's

Ordinance of 1649 making words Treason. say, after about thirteen hours evidence, the

enacts, “ That if any person shall maliciously jury remembered no more, than that they were to find him Guilty.

or advisedly publish, by writing, printing, or The truth is, upon the whole, what Colledge tyrannical, usurped or unlawful, or that the

openly declaring that the government was said was true; they took away all helps from Commons in Parliament assembled were not him for defending himself, and therefore they the supreme authority of the nation, every had as good have condemned him without a such offence should be adjudged to be High trial. Notwithstanding all which, the courage Treason.” of the man never fainted, but after he was condemned, boldly asked, when he was to be

From N. Luttrell's “ Brief Historical Reexecuted ? To which the lord chief justice relation,” MS. in All Souls' Library, Oxford, it plied, it depended on the king's pleasure ; but appears that in “ July, 1682, Mrs. Goodwin, smootbly said, in those cases of high treason sister to Stephen Colledge, lately executed for they did not use to precipitate the execution, it treason, was committed to Newgate, on the should not be so sudden but that he should have information of her own husband, for treason ;" notice to prepare himself. And in truth he and that, on “ Sept. 6tb, Mrs. Sarah Goodwin, bad from the 18th, on which he was con

sister to Stephen Colledge, was tried for high demned, to prepare himself, to the 31st of treason, on the testimony of her husband, for August 1681, on which he was executed ; a treasonable words spoke ; but there being no much longer time than was allowed my lord other evidence against her, she was disRussel

, or Mr. Cornish, and many others. charged.” And the true reason of so long a reprieve, was It appears by 3 Modern Rep. 52, that in to see how the nation would digest the matter, Mich. Term, 36 Car, 2, a person convicted of and whether the man by the terror of death drinking to the pious memory of Colledge, was could be prevailed upon to become a tool to de- in the Court of King's-Bench, sentenced to stroy other innocents : but when it was found pay a fine of 1,000l. to stand in the pillory, and that the people were quiet, and that the prisoner 1 to find sureties for his good behaviour.

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