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 words. And though it is too late to advantage the deceased, yet it will do right to the memory of the man, to whose dextrous management on his trial, many now alive owe the continuance of their lives to this day. It was not their innocence protected the lord Fairfax, sir John Brooks, and many others before-mentioned, and many not named in the trial, but Colledge's baffling that crew of witnesses, and so plainly detecting their falshood, that the king's counsel never durst play them at any other person but the earl of Shaftesbury, as shall be shewn; and failing there they were paid off, and vanished, and never did more harm visibly; what under-hand practices they might be afterwards 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; for (as Colledge 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 spoken and transacted before.

Who could believe Dugdale in any of his evidence against the prisoner, when Oates testified against him, that he said he knew nothing against any Protestants in England? And being taxed by Oates, that he had gone against his conscience in his evidence against Colledge to the grand jury at London, he said, It was long of colonel Warcup, for he could get no money else; which is a plain confession he had sworn wrong, and of the cause for which he did it, and of the person who induced him 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 implied a charge of poisoning him on other persons. And when Elizabeth Hunt testified against him, that he said, after Colledge was in prison, that he did not believe Colledge had any more band in any conspiracy against the king than the child unborn; and that he had as lieve have given an hundred pounds he had never spoken what he had; and that he had nothing to say against Colledge which could touch his life: And when Yates testified against him, that when Yates said Colledge 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. Richards 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's 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 it was 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 Bolron 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 Colledge agreed not with what he had formerly said, he said he could not excuse it, but his poverty and self-preservation drove him to it? Which was a plain confession of the falshood of his evidence, and of the reason of it; and added, it was a judgment 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 the Irishmen's forswearing themselves against the English was a judgment, &c.

How could Turbervile be believed in any part of his evidence against Colledge, when Oates testified against him, that he said, a little before the witnesses were sworn against Colledge at the Old-Bailey, that he was not a witness against him, nor could give any evidence against him; and yet afterwards, at Oxon, Turbervile told him he had sworn against Colledge 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's discovery was a ShamPlot, 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 Colledge, 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 Oates, that he said God damn him, he would have Colledge's blood? when it was testified against him by Mowbray, that he tempted Mowbray, to be a witness against Colledge and sir John Brooks, and was very inquisitive to know what discourse he had with the lord Fairfax, sir John Hewley, and Mr. Stern, on the road to Oxon; and said, if the parliament did not give the king money, but stood on the bill of Exclusion, that was pretence enough to swear a design to seize the

king at Oxon? when Everard and many others testified he said he knew of no Presbyterian or Protestant Plot. Now, if Colledge's 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 prisoner's were not; which was a reason in words, but not in sense.

And surely what Colledge 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 E 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 shew 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, arraigned (at the same time that an indictment of high treason was endeavoured to be found against the lord Shaftesbury) for robbing another of money, and of a hired horse, of which likewise the person was robbed. The robbing of the money and a horse was proved by himself, and several others; but that the prisoner was the person that committed the robbery, noue positively swore but the person robbed; 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 robbed; whereupon the prisoner was acquitted; and yet the prisoner's witness was not on his oath, and the person robbed was on his oath: which, besides that it proves the matter for which it is brought, shews 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 shews the folly of those sayings, 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, theft, or any other crime; but unless he knew the person robbed, when, where, and other circumstances; which, say some, is not to be permitted in prosecutions of high-treason; for if so, then no man shall be hanged for high-treason; unless there was as strong proof against him, as is required in any indictment of any 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 overtacts 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, though different in words: and as the intent of the mind is difficult to prove on the 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 third, 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 shew 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, col. Sidney, and others; though the first was not permitted to many witnesses in this trial, and it was a material objection which Colledge 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 is 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 Halet are to be believed, cannot be guilty of high-treason within that branch of the statute, compassing and imagining, &c.

It is true, a madman 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 counterproof in Colledge's case was not made, as ought 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, 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 seize the king, &c. was as clear as the sun at noon-day?

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 probability, though Mr. Masters might inveigh against the parliament, Colledge might only justify them by throwing the ill things done in that time upon the papists, as Colledge 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, it is no more than what every 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 evidence, the finding papers in a person's possession is the weakest, because no person can secure himself against designs upon him in that kind. And after Dangerfield's design upon colonel Mansel, and the evidence in Fitzharris's trial, that the design of that pamphlet was to convey copies of it into 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 the 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 be long 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 Colledge 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 shewed 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

p. 37.

8 Inst. 4. 6. 4 Co. Rep. 124, b.

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 Colledge 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; when, as 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 the whole, what Colledge 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 18th, on which he was condemned, to prepare himself, to the 31st of August 1681, on which he was executed; a nuch longer time than was allowed my 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 whether the man by the terror of death could be prevailed upon to become a tool 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 shew 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 shewed Fitzharris, but the true reason of both was, that they had a mind that the trials and pretended crimes, for which Fitzharris and Colledge were condemned, should be forgotten; which would not be so soon done, if their quarters were always exposed to view. But though all people were quiet, yet there was great grumbling, and most honest men were afraid; and the constancy of Colledge at his execution was such, that it made the most violent against him relent.

The author of the Critical Review of the

State Trials, in justification of these proceedings against Colledge, or rather, perhaps, by way of set-off to them, alleges the parliament's This Ordinance is cap. 44 of that year, and it Ordinance of 1649 making words Treason. enacts, "That if any person shall maliciously or advisedly publish, by writing, printing, or tyrannical, usurped or unlawful, or that the openly declaring that the government was Commons in Parliament assembled were not the supreme authority of the nation, every such offence should be adjudged to be High Treason."

From N. Luttrell's "Brief Historical Re

lation," MS. in All Souls' Library, Oxford, it appears that in " July, 1682, Mrs. Goodwin, sister to Stephen Colledge, lately executed for treason, was committed to Newgate, on the information of her own husband, for treason;" and that, on " Sept. 6th, Mrs. Sarah Goodwin, sister to Stephen Colledge, was tried for high treason, on the testimony of her husband, for treasonable words spoke; but there being no other evidence against her, she was discharged."

It appears by 3 Modern Rep. 52, that in Mich. Term, 36 Car. 2, a person convicted of drinking to the pious memory of Colledge, was in the Court of King's-Bench, sentenced to pay a fine of 1,000l. to stand in the pillory, and to find sureties for his good behaviour.