and I must say, if ever any thing were an instance of popery, then that man is one of the Jesuitedest fellows that ever was; for he does cant so like them, that a man can't tell how to govern himself. Who was it that should write these things? Truly, he had discoursed with him about the matter. Who sent the boy? Do you know? Truly I can't tell: And a wonderful great snuffling and canting before he comes to the business. Besides, what can there be more plain than the proof-pieces before the publishing? The other man says, that he was the man that fetched pieces from Carr's own hand, and that he always looked upon it that all did come from Carr.

Now every man that knows any thing of printing, knows this, that after it hath first taken the press, it is always carried back again to the author, to see whether it be done according to his mind; and after that it comes to the public view. And that this man, Carr, is the author, Mr. Sutton and the rest of his witnesses, if they speak according to conscience, they themselves looked upon this very man to be the author. Their own witnesses looked upon it so. It was not only the private opinion of these men, but the general report of all. So that, my lord, had it not been necessary to the support of the government, I should have scarce troubled myself to give your lordship and the jury this trouble. But I must say, and I do believe, that there is no man whatsoever, that stands to have vices of this nature convicted and punished. but desires the protestant religion may be supported to the utmost, and that popery may be suppressed. But I say, whoever it is, that after this evidence, who is bound by his oath to go according to evidence, shall acquit this man, be must be a man of a humining conscience in

deed.

Sir Fr. Withins. I shall hint one thing to your lordship in this case: That it is an unlike ly thing that a papist should set out this Pacquet at this time. For then, my lord, how came it to pass that Mr. Carr had none came out that week; for his is a Weekly Intelligence? If Mr. Carr's had come out, and this likewise, there had been some pretence for this: But since there came out but one, that the papists set out this is unlikely. They have not pretended to bring in any body else as the author; but their own witnesses say, and they themselves say, he was looked upon as the author. Those things that are done against the government, are never done in the face of the govern

ment.

L. C. J. Really, gentlemen, I thought not that this had been a cause of that moment that now I find it. For their very disturbance hath altered it from Mr. Carr's to a public concern. The noise which they make, this way that these people use, that with their shouts and noise attend the cause, hath quite spoiled it: As in the case of Harris. But those people thatdid then attend him, leave following him in a gaol for

* See ante, p. 932.

5007., which may be 5s, a piece had discharged him of, if they had been as free of their purses as they are of their noises and acclamations: So that in truth they are only violent against the government whilst they can make shouts and noises, but if it comes once to deliver a man from a penal sum, they will let him rot in gaol. For so Harris sent to me, that his party had all forsaken him, and no man would give him any thing. And this is for those hummers, those brave fellows that seem to espouse a cause, and yet leave their party in distress. But let them go away with this, that they prove themselves hereby enemies to the government, and false to that interest and men that they seem to espouse; that come only here to affront a court of justice with their shouts and noises, and will not relieve their party: For this is the complaint of Harris, and the disparagement of all men that come to espouse it. This cause, the truth of it is, I did not look upon to be of this nature and moment, when it was opened. For though there are in this very paper upon which the inforination is grounded, words malicious and reflective enough; yet they were not so apparently appropriated, that a man might observe an extraordinary design in them. This I thought; but really the case is altered even by those men. For I will tell you, Harris is poor, and his keeping in prison is principally occasioned from the manner of the reception of his punishment, which he calls his pardon. And therefore these fellows, these hummers, let them all know, whenever they come to espouse a cause of public concern against the government, they spoil it; and when they are taken, then they ruin one another. And this is like to be so, for none will help them with a groat. And this is the misfortune of that unfortunate man Harris, that he hath no place of mercy left him from the king, because he was attended with such a rabble as these people are, that have made a noise here, and yet will give him no help or assistance when he wants it: And let them know, it hath turned this man's cause into a public cause, because here are people that do espouse it, and the government is hereby concerned much more than by any one action that this Carr could have done. I have said so much more of this, that I might shew you to what a sad case this is brought from what at first it was. For if it had passed without such a noise, as you see how they express themselves, I should not have thought much matter in it; and though you had convicted him, I should have thought a better sentence might have served the turn: but they have undone Carr, if you find him guilty; and so it is likely to prove, whenever there is popular attendance upon public causes that concern the government.

The present case it stands thus: Mr. Carr, here is an information brought against him for publishing a printed pamphlet called, The Pacquet of Advice from Rome, and in it there are recited some particulars, which were observed to you before, which was not well done;

but yet not so insolently done as some perhaps do conceit. The question is, Whether he was the author or publisher of this: you bear he is thought the author, but say his counsel, it is not plain; and that is true. But it seems by their own witnesses, to any man's understanding, that they looked upon him as the author. But then, is be the author and publisher of this particular book? I had rather Mr. Carr, with all his faults about him, and his hummers, should go away with applause, and have him found not guilty, than do him wrong in one circumstance; for I come to try causes according to the truth of fact; I come not to plead on one side nor another; not to condemn men that are innocent, nor to acquit them if they be guilty. Now it remains for you to consider what proofs you have, as to this particular book against which the information lies; and that is the printer himself, who is one of the best sorts of evidence that can be had: for you very well know that evidences of fact are to be expected according to the nature of the thing. That is, forgery is not to be proved so plainly, as to expect witnesses as you do at the sealing of a bond; for men do not call witnesses when they forge a thing. Therefore in things of that nature we are fain to retreat to such probable and conjectural evidence as the matter will bear. I believe some of you have been of juries at the Old Bailey, and that even for men's lives, you have very often not a direct proof of the fact, of the act, or of the actual killing; but yet you have such evidence by presumption, as seems reasonable to conscience. If there be a known case in men's lives, certainly that should govern in offences, and especially when offences are of a nature that reflect upon the Government. As for those words, illicitè, maliciose, unlawful; for that I must recite what Mr. Recorder told you of at first, what all the judges of England have declared under their hands. The words I remember are these: When, by the king's command, we were to give in our opinion what was to be done in point of the regulation of the press; we did all subscribe, that to print or publish any newsbooks or pamphlets of news whatsoever, is illegal; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law for an illegal thing. Suppose now that this thing is not scandalous, what then? If there had been no reflection in this book at all, yet it is illicitè, and the author ought to be convicted for it. And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever, without authority. So as he is to be convicted for it as a thing illicitè done, not having authority. And will assure you, if you find any of those papers, I shall be more merciful in the considerauen of their punishment, if it be in offensive But if so be they will undertake to print news foolishly, they ought to be punished, and shall be punished if they do it without authority, though there is nothing reflecting on

the government as an unlawful thing. The reason is plain: so fond are men in these days, that when they will deny their children a penny for bread, they will lay it out for a pamphlet. And it did so swarm, and the temptations were so great, that no man could keep two-pence in his pocket because of the news. But still they never repented of laying out their money, till they found there was nothing against the government. This is not worth a farthing, there is nothing of treason in it, we will not give a farthing for it. Therefore this book, if it be made by him to be published, it is unlawful, whether it be malicious or not. Now for the matter, the subject matter. What, doth Carr think he hath too much wit to fool us that are to try the malice? It was sillily writ, if he did not believe we understood it, and that were very intolerable in us; I hope I speak plain: That is, the sort of books that he writ; it must be with an intent people should know what reflections he made; and shall all mankind know, and shall they that try the cause not know it? If you find him guilty, and say what he is guilty of, we will judge whether the thing imports malice or no. Sir Francis Winnington hath told you there are some things that do necessarily imply malice in them. If this thing doth not imply it, then the judges will go according to sentence; if it doth, so that it concerns not you one farthing, whether malicious or not malicious, that is plain. Now, there remains only one thing, that is, Whether or no he was the publisher of this book? For that we have this evidence. The printer tells you, he was the person that they looked upon to be the author of this book, that he sent this book to be printed by his boy. The printer saith, that he often discoursed with him, and he took it for granted. His boy brought it. To what purpose? To be printed. The printer's servant says, they looked upon him as the author, and I have fetched sheet by sheet, several sheets from his own hand. I will do right in the case, be it what it will, let him escape or not. Say his counsel, Had you this particular paper from him? I urge this as clearly, as their own counsel have objected. For that you must consider, whether he is the author of the book. You must take evidence in this case, as you do all the year long; that is, in other cases, where you know there is an absolute certainty that the thing is so: for human frailty must be allowed; that is, you may be mistaken. For you do not swear, nor are you bound to swear here, that he was the publisher of this book; but if you find him guilty, you only swear you believe it so. God help juries, if so be in matter of fact they should promise otherwise. They cannot swear it. Now the question is, Whether you have evidence enough here to swear he was the publisher: for this is the main thing, to prove that he is so. Now the printer tells you that be knew the man; that be had frequent converse with him about it, and that he took it for granted. Now consider, when a man talks at this rate, he does not say he was, but that he

took it for granted; he does not as much as say he is. They will own he writ several sheets of this book; then, why not all this book? Now we come to the more principal matter of fact, according to reason and the probable evidence of things. That this person is taken to be the author, and that it was his boy that brought these papers to be printed. If you cannot say he sent him, you can give no verdict while you live, if you expect that. The printer says, he had been often discoursing with him; that his boy brought them, and that he knew no other person in the world that had any pretensions to be the author, and if he were the author, no doubt but he is the publisher. Whether or no any body else had an hand in this, we do not know. If you are satisfied in your consciences

that you believe he is not the author, you must acquit him. If you are satisfied it is not he, you must find him Not Guilty. So that as you are honest men and wise, as I believe you are; if you believe he was not the publisher of this pamphlet, that he did not send his boy to have it printed, but that he came of his own head, you must find him Not Guilty.

The Jury went from the bar, and nigh an hour after returned, and brought him in Guilty.

L.C. J. You have done like honest men. Mr. Recorder. They have done like honest

men.

See the Proceedings against the Judges, infru.

A. D. 1680.†

·

From the Journal of the Commons it appears that this Mr. Arnold had been very active against the Papists

From a pamphlet, intitled, "The Trial of John Giles, at the Sessions-House in the Old Bailey: Held by Adjournment from the 7th day of July, 1680, until the 14th day of the same month: The Adjournment being appointed on purpose for the said Giles his Trial, for a barbarous and inhuman attempt, to assassiante and murder John Arnold, esq. one of the Justices of Peace for the county of Monmouth, and now a member of the honourable House of Commons, made public by virtue of an Order of the Lords Spiritual and Temporal, in parliament assembled: London, printed by Thomas James, for Randal Taylor, and by hin sold at his house near Stationers Hall, 1681."

"By virtue of an order to me granted by the 'Lords Spiritual and Temporal in parliament ⚫ assembled, dated on Thursday the 28th of Oct. ' 1680; I do appoint Randal Taylor, near Stationers Hall, to print this Trial of Mr. John • Giles, and that no other person or persons presume to print the same. Jo. COMBE." London, Oct. 14, 1680.'

N.B. It appears from the Lords' Journal, that it was stated on the behalf of Combe, that he had carefully taken in Short Hand this Trial, and also those of Lord Castlemaine, Elizabeth Cellier, and Henry Care.

Rege, quam pro scipso),' the court asked his consent, and what he could say why the trial should not be put off; that so all the world might hereafter say, That Mr. Giles had all the favour that he could reasonably desire, and what the court could in justice shew him, and that no manner of excuse might be left him.

After which Mr. Arnold, in a very pertinent speech, declared part of the fact and also of the proceedings before his wounding, as it had occurred between him and Mr. Herbert; and of his favourable and just proceedings against Mr. Herbert, and also against John Giles, after the fact was committed; and declared that Giles had sufficient notice of his trial; but notwithstanding he did submit hinself to the judgment of the court.

Thereupon the court advised a minute or two's space; it was ordered, That the court should be adjourned until the Wednesday following; by which time Mr. Giles might send to Monmouth, and have what witnesses brought up he could get.

And the day appointed being come, and the court being sat, proclamation was made according to custom. Then the following jury were called and sworn, viz. Christ. Plucknet, William Dodd, Anthony Nurse, John Burton, Nathan Godwin, George Wood, James Partridge, Lawrence, Wood, John Bradshaw, William Withers, Edward Proby, Rich, Bromfield. Who according to the form of law, were charged to enquire, Whether the prisoner were guilty of the following indictment upon which he had been arraigned, and had pleaded Not Guilty?

Cl. of Cr. The Jurors of our lord the king, upon their oaths, do present, That John Giles late of the parish of St. Dunstan in the West, in the county of Middlesex, gentleman, not having God before his eyes, but being moved and seduced by the instignation of the devil, contriving, and maliciously, by a most wicked conspiracy, with divers other malefactors to the

great consequence, and though it more immediately concerns Mr. Arnold, yet it highly concerns every man present; you of the jury, and I; nay, every other freeman of England, which ought to be protected by the laws, must needs be concerned at so great a violation of them, and cannot but set our faces against such villainous and barbarous attempts as these, wherein there did not want the good-will of the actors to make it a most barbarous and bloody murder. In the course of our evidence, and the method we will take to proceed in, it will be necessary to do these three things. First of all, we shall acquaint you with that which we apprehend to be the reason and occasion of this horrid fact. Next we shall tell you what that fact was. And in the last place, enquire how far this defendant is guilty thereof.

For the first; give me leave to acquaint you with what we apprehend to be the true reason of this assassination. It is notorious to most inen, but especially to the county of Monmouth, where Mr. Arnold was a justice of peace, how active and diligent, how faithful and vigorous a man he has been in the discharge of his duty to his king and country, in putting the laws in execution against the papists, and endeavouring to suppress popery: This was the ground of their malice, as you will find by the evidence, and by the several threats that he had before this act was done. But more particularly there was this occasion; there was one whom they called captain Evans, but indeed was Father Evans, a popish priest; this man in Monmouth was taken by Mr. Arnold, and was prosecuted according to law, and convicted. I mention this circumstance, because our evidence will refer to it, and that you will see out of the actors own mouths, if we may believe the actors in this bloody tragedy when they did the fact: This prosecution of Father captain Evans, was no small occasion of their villainy which they acted upon Mr. Arnold. These were the grounds of their malice, gentlemen, and what happened to Mr. Arnold was the effect. And I do the rather mention this particular, that you may know what sort of people these were that practised this villainy upon Mr. Arnold; for it will be a necessary circumstance in our proof against this prisoner at the bar, to shew that he is one of that bloody tribe.

Gentlemen, the next thing is to shew what this fact was, and how it happened. Mr. Arnold had a controversy with one Mr. Herbert, another justice of the peace in Monmouthshire: that cause between them was to be heard before the king and council the next day after this fact was committed: I mention Mr. Herbert, but I hope he is more a gentleman than to be concerned in such a villainy. We will not at this time give any evidence that relates to him: For truly I believe this could only be the contrivance of a Jesuit, and the practice of a bigotted papist. But thus it happened: Mr. Arnold going to attend his counsel upon this occasion, to prepare himself for this hearing that was to be before the king and council; in

Bell-Yard there he is set upon, there he is wounded, there he is murdered, as these assassins thought. And this Mr. Arnold will prove to you when he comes to give his evidence. This to the fact.

Gentlemen, the next is now to consider how far this man at the bar is guilty of it; and for that, gentlemen, we will give you evidence of several sorts:

1. The positive proof of Mr. Arnold himself, who, as Mr. Holt has observed before, almost by a miracle, discovered the defendant's face; for a light accidentally coming out of one of the neighbouring houses, and the defendant looking at Mr. Arnold to see whether he was the man they wanted, immediately upon that he was assaulted and carried into JackanapesLane, and was wounded in several places. This, gentlemen, is plain, and will be positively proved; and then when this man was taken up on suspicion, and was carried before a justice of the peace, and Mr. Arnold was sent for, though Mr. Arnold had no private intimation, no kind of knowledge before-hand of Giles's being taken; and there were several men stood besides this man, yet though he had never seen him before, but at the time when the fact was done, Mr. Arnold immediately charged him with the fact, and as soon as he heard him speak he knew his voice. This was so plain upon Giles, that he had not the power, though he might have had the confidence, at that time to deny it: But instead of a denial said, the matter could but amount to an assault and battery. In the next place we have evidence from the defendant's own mouth, which in a case of this nature ought to weigh as much as can be, and I think is as much as the nature of the thing is capable of. This man the very next day after Mr. Arnold had been thus assaulted, discoursing with one Phillips by name, and relating the business which happened to Mr. Arnold, and before he could know he had armour on, as we will prove from the circum. stance of the time (what does Giles say?) says he, Damn him, rot him, Mr. Arnold, said he, had armour on. And this, gentlemen, could not be known by him at that time, if he had not been a party in this base attempt. And there is a circumstance that goes yet beyond this, which I would have you observe, that when Mr. Arnold was assassinated, when they made their attempt, in the very act were these words used, Damn him, rot him, he has armour These very words were spoken then, and upon that they fell to cut his throat. We have this circumstance more; he had broken his sword, and went to a cutler, one Darcy by name; this man was a papist, and says he, Where hast thou been, Giles, fighting with the devil? No, it was with damn'd Arnold. This we will prove to you: These are evidences that are positive.

on.

Some other witnesses we have, that will be very material to prove to you what sort of man the defendant is that he has declared there is no plot; that those that believe it are rogues;