for being a solicitor for one in high treason; and says the court, it is criminal for one to be solicitor or counsel in cases of high treason, unless assigned by the court: and whether it be so or no, is worth inquiry. First, No law-book as to this matter makes any difference between treason, and other crimes; and advising and soliciting is spoken of in general terms; which being reduced to particulars, will shew the absurdity of it. Suppose I, observing the indictment on which the prisoner was arraigned, was erroneous, and should therefore advise him to move and quash it for that error: for, say 1, if you should be tried on this indictment, and found guilty, unless you move in arrest of judgment, you will be attainted, and then you can take no advantage of that error; and if you be acquitted, you may be indicted again, and tried again, because the first indictment was erroneous. If this be law, as none can deny it, is it not lawful to advise him; and it is not fit for the court to quash the indictment faulty, notwithstanding all the cant of dilatories, subterfuges, and defending himself by plain matter of fact. Or suppose I advise in fact, that I hear that such a witness is come against him, I know he is hired to do the job, and I will prove it on him if called: or suppose I tell him, I know such a witness is convict of perjury, and if he will call.me, I will produce the records of his con viction; can any lawyer say these things are criminal? But if I should advise a prisoner to escape out of prison, shewing him the way of doing it, it is criminal. In all cases comforting a traitor is treason, [Co. Inst. 138]; but it is meant where Tou do it to keep him from justice, [Co. Inst. 183]; for else feeding a traitor in prison is treason, which none will affirm, [H. P. C. 218]. So that reducing general words to particular facts, clears the sophistry of them: nor is it criminal to be a solicitor in treason, for where there is no positive law, as in this case there is not, natural reason must take place; and better reason cannot be given than what the prisoner in this case gave: if a man be cooped up, and not suffered to go about his business himself, and no friend must be employed to do it for him, how is it possible for him to make his defence? I know it is said his innocency must defend him; but the folly of that saying shall be shewn in another place. But say they, the court shall assign him a counsel and solicitor; but when, and for what? only for a point of law. May not a prisoner want a solicitor for a matter of fact? Suppose he had occasion for a witness which he could not readily find, or occasion for a copy of a record, for want of which Mr. Cornish suffered; was it not reasonable for him to have a solicitor? And when shall the court assign him a solicitor? only when the prisoner comes upon his trial, and then it is too late to have any use of him; as Colledge was arraigned at twelve, and tried at two o'clock the same day; and as was Mr. Cornish's case. But, says the king's counsel, they had known one indicted for high-treason for being a solicitor in such a case, though I do not believe it; yet that authority goes no farther to prove the matter, than an indictment I knew against a person once, for stealing an acre of land; and against another for wickedly and devilishly breaking an award, whereby two unjust arbitrators directed to the prisoner to convey his land to a certain lord, without any satisfaction or recompence, proved those matters to be felonies. But though a prisoner may be advised, yet that advice must not be reduced to writing Then suppose one man's memory be good, and can bear all the advice given him, and another man's memory bad, and cannot do it; is not the last hanged for having a bad memory, rather than for his crime? But though it may be reduced to writing, yet it must be his own hand-writing, and not another's; how ridicu lous is the distinction? Suppose the prisoner cannot write, then he is hanged for his parent's fault or misfortune, for not educating him, or for not being able to educate him better. Which is somewhat of kin to the late prac tice in the west, where many men were hanged for having old Jewish names, as Obadiah, or the like, with a jest, that their godfathers hanged them. But suppose it is not lawful in general to be a counsel or solicitor, with, or to a prisoner committed for high-treason ; yet the prosecution being the king's, he may give a privilege which the law of Courts doth not allow, and in this case it was so done: for, to the confusion of those who did this injury, and of those judges who would not do the prisoner right, they have printed the orders of the king and counsel, which appointed Mr. West and Aaron Smith to be his counsel and solicitor, If it was lawful for the prisoner to have counsel, and to have advice in writing; it was very unlawful, and as high a misdemeanor in the king's counsel to order his papers to be taken away, as they were capable of being guilty of; both the prisoner and the matters of his defence being under the protection of the Court. It is not an ancient practice the seizing of papers, though of late used; it began, I believe, upon my lord Coke, whose papers were seized and carried to the secretaries office, upon the like pretences as of late, and when returned, were gelt of many bonds and other securities, to a great many thousand pounds value, which never came to light. It was afterwards praetised upon some members of parliament, and, as I remember, voted illegal, as undoubtedly it is: for though sometimes you may meet with papers which may be evidence against the pri soner; yet it is possible that other papers than the prisoner's may be mixed with his to make good an accusation; nay, which is worse, some of the papers may be withdrawn, which may be the only matter of his defence, and that hath been often practised. And I cannot but remember a story about this matter: when sir William Jones died, it was said, that one from 729] would of them? : natures cannot be joined in one indictment, as murder and robbery: and for the same, and another reason, treason and misdemeanor cannot be joined in one indictment; for the jury may observe, that one part of the indictment, which in itself is but misdemeanor, as that he said, the king minded nothing but beastliness, &c. though charged in the indictment as treason, was proved, and not the material parts of the indictment, as designing to seize the king's person, &c. and finding some part of the inBut though that hath been often practised, dictment proved, might find him Guilty geneyet this was the first time that ever a prisoner rally, which extends to every article of the inhad the instructions for his defence taken away dictment, and so the jury deceived, and the from 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 defence; 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 favours life, and the jeopardy on life, against him all which is well seen in his 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 objec excused 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 cri- 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 bill; they rememAnd bered they had ill luck with the first bill at truth they knew before what they were. Colledge was a true prophet, when finding his London, which I believe was the true reason: life so beset, he 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 de of 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, as treason and misdemeanor, and I think it was good cause to quash the indictment. In all civil matters, two matters of different natures cannot be put into one action, as debt and trespass; two capital crimes of different But because of irregularities of Court and counsel, in all these matters, are shifted off and excused by two sayings not understood generally; the first whereof is, that the Court is to act for the king, and the counsel are for the king, and no person must come near the prisoner, to the prejudice of the king, as in Fitzharris's case was often said; a witness was permitted to go on in an impertinent story, of a transaction between him and my lord Shaftesbury, in my lord Russel's trial, of which the ⚫prisoner complained that it was designed to incense the jury; and though the chief justice declared it was not evidence, yet a great while afterward he went on in a like manner: nay, the counsel in summing up the evidence, repeated the same matter, which was permitted because it was for the king; and yet, when the earl of Anglesea began to say what the lady Chaworth told him, he was snubbed, and cut short; and Mr. Edward Howard was served the same sauce, because it was against the king: it is fit, therefore, to know what is meant in law by those words. Nobody doubts what the Courts or king's counsel of late days meant, but in law they are not so meant: for though many things are said to be the king's, as the protector of his people, and more concerned in their welfare than any private persons; yet they are so in preservation, and not in property or interest. The highways are the king's, in preservation for the passage of his subjects; and whoever obstructs them wrongs the king, as property, the soil generally belongs to private persons. The king is hurt when his subjects are oppressed by force, because he has engaged to defend them; and therefore the offender is punished by the king, to deter the offenders, and others, from committing the same offences; which is for the benefit of the public. But as a man may be oppressed by open force, so he may be oppressed by private insinuations and false accusations, and the king has engaged to defend his subjects from such; not that it is possible to prevent them, but by consequence, that is, by punishing such as shall be found guilty of those crimes, which heretofore were punished with the highest arbitrary punish ments we read of. The consequence is, that it is for the king to punish offenders, to acquit the false accused, and to punish the false accusers; that is to say, in all cases to do right according to law and truth. 6 if they urge things as evidence of the crime whereof the prisoner is accused, which by law are not evidence, as in this case, in lord Russel's case, colonel Sidney's case, Mr. Hampden's, and Mr. Cornish's case, and in many more they did, and as in some of them shall be hereafter shewn. If they insinuate any fact as evidence, which is not proved, as in my lord Russel's trial, that my lord of Essex killed himself; if they wrest as evidence of the fact, what in sense is not so, as in colonel Sidney's case, the writing his book, (nay, for any thing appeared, it was writ before king Charles the second came to the crown) they are counsel against the king, being against truth, as well as against the prisoner. I think no man will deny the truth of this proposition, That it is as much the king's interest to have an innocent accused of treason, acquitted, as it is to have a nocent accused of treason, convicted. If that be true, then let any one shew me a reason, if he can; for there is no law against it, why he may not have the same liberty of clearing his innocence, as the prosecutor hath of convicting him; I mean by free and private access of all persons to the prisoner, as is used in all other capital matters. witnesses against, or suborn others for him, the same may be said in all other matters; but in treason that is not a likely matter, for gene rally the prisoner never knows what he is ac cused of, and consequently cannot know his accuser, nor how to provide a counter-evidence. till he comes to be arraigned, and then it is too late: for generally he is presently tried after his arraignment, as was the case of Colledge, and my lord Russel, and Mr. Cornish; and persons committed for treason are so much the less able to corrupt or suborn witnesses, than any other criminals, that they generally, according to the late practice, have no accuser brought face to face to them, on their commit ment as all other criminals have, who always are committed upon an accusation made upon oath in their hearing, and their defence heard before their mittimus made; and whatever the pretence may be, yet in experience, it is found, that more perjuries are committed in prosecu tions for treason by the accusers, than by the witnesses for the prisoner. Surely queen Elizabeth gave the best explanation of the words, [3 Co. Inst. 79.] when the lord Burleigh, seeing sir Edward Coke, 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 Domina 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 truth is a contradiction. And the judges and king's counsel having taken an oath to advise the king according to the best of their cunning, which is according to law and truth; if therefore the king's counsel use means, and the court permit them so to do, to suppress truth, or to disable the prisoner from making his innocence appear, as in Colledge's case was done, to be within the county where laid; it must be of the person named in the indictment, which are evidences of fact, which in some sort prove themselves. And there was but one that I remember, for Oates I do not count one, was ever justly convicted of perjury in treason, and that too was for want of cunning, for he foolishly swore to time as well as place, which a witness 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 priprosecutors and accusers in treason are gene-soners, it is so very much like, or rather rally the motives, go farther than money or Therefore to try a prisoner upon a vicious indictment, as was done in Colledge's and colonel Sidney's cases, is against the king as it is against the law, for by that means he is in danger to be hanged if convicted; or tried twice, if acquitted; which is against law." It is no salvo of the matter what the judges said in Colledge's case, that the evidence of misdemeanor is no evidence of treason; for the same may be said in an indictment of murder and robbery; nor that the judges would take care to inform the jury which was evidence of treason, which of misdemeanor, which they promised to do, but were not as good as their words, as shall be shewn; for the court may forget so to do, and the jury may forget what the court said to them of that matter. But notwithstanding all this, if the prisoner was innocent, there could be no harm done to him, for his innocence would defend him: This was a saying, and as mortal it was to Fitzharris, to Colledge, to colonel Sidney, to Mr. Cornish, and several others, as was the lettere amongst the Greeks. It is true, my lord Coke used the expression, but in another sense than that of late practised. I would fain know what they meant by the expression; Is it, that no man will orever did swear falsly against a prisoner in treason. If that be true, how came the same persons to be so violent against Oates for what he swore against Ireland? or do they mean, that, let an accuser swear never so violently and circumstantially against a prisoner, yet if he be innocent it will do him no harm? If that be true, I would fain know how the prisoner shall escape; is it that his innocence shall appear in his forehead, or an angel come from heaven and disprove the accuser? Neither of which we have observed, though all have said, and I believe, that some persons have been very innocently executed. Or shall the accuser be detected by the bare questions of the prisoner? That I think will not be neither; and therefore to instance in the only person who hath of late escaped in a trial of treason, where there was a design against his life, which was my lord Delamere, if he had not had witnesses to have proved the persons mentioned to have been with him at the place and time sworn against him to be in other places, it was not his denial had served his turn, but he would have run the same fate with my lord Brandon. Nay, I am apt to think, had he been tried by a jury of commoners packed, as, at that time, they usually were, he had not escaped. The truth is, when I consider the practice of worse than the practice of the inquisition, as I have read it, that I sometimes think it was in order to introduce popery, and make the inquisition, which is the most terrible thing in that religion, and which all nations dread, seem easy in respect of it. I will therefore recount some undeniable circumstances of the late practice: a man is by a messenger, without any indictment precedent, which by the common law ought to precede, or any accuser or accusation that he knows of, clapt up in close prison, and neither friend or relation must come to him, he must have neither pen, ink or paper, or know of what, or by whom he is accused; he must divine all, and provide himself a counter-evi> dence, without knowing what the evidence is against him. If any person advise or solicit for him, unless assigned by the court by which he is tried, they are punishable: he is tried as soon as he comes into the court, and therefore of a solicitor there is no occasion or use; if the prisoner desires counsel upon a point of law, as was done in my lord Russel's trial, the counsel named must be ready to argue presently, and the court deliver their judgment presently without any consideration. The prisoner indeed hath liberty to except to thirty-five of the jury peremptorily, and as many more as he hath cause to except to, but he must not know beforehand who the jury are; but the king's counsel must have a copy of them; he must hear all the witnesses produced to prove him guilty together, without answering each as he comes, for that is breaking in upon the king's evidence, as it is called; though it hold many hours, as it happened in most of the trials: he must not have any person to mind him what hath been sworn against him, and forgotten by him to answer; for if that were allowed the prisoner perhaps may escape hanging, and that is against the king: there is a proclamation to call in all persons to swear against him, none is permitted to swear for him; all the impertinent evidence that can be given is permitted against him, none for him; as many counsel as can be hired are allowed to be against him, none for him. Let any person consider truly these circumstances, and it is a wonder how any person escapes: it is downright tying a man's hands behind him, and baiting him to death, as in truth was practised in all these cases. The trial of Ordeal, of walking between hot iron bars blindfold, which was abolished for the unreasonableness of it, though it had its saying for it too, that God would lead the blind so as not to be burnt if he were innocent, was a much more advantageous trial for the suspected than what of late was practised, where it was ten to one that the accused did not escape. If any of these things have been legally practised, I have nothing to say against it, but I have never read any thing of common or statute law for it. And I can with better assurance say, than any person who hath practised these things, that no law hi England warrants them; and if not, then consider the unreasonableness of these methods. There is yet one objection to be answered, which being a very great hardship upon the prisoner, gives some colour of imposing other hardships upon him, to wit, that a witness cannot be examined for the prisoner on his oath in a trial upon an indictment of a capital matter. It is not because the matter is capital, for then no witnesses ought to be examined upon oath for the appellee in a capital matter; neither is it because it is against the king, for then no witness ought to be examined on oath for the defendant in a trial upon an indictment of any criminal matter; yet in indictments of all criminal matters, not capital, it is permitted to the prisoner. To say truth, never any reason was yet given for it, or I think can be, if you believe my lord Coke, 3d Instit. fol. 79. of which opinion my lord Hale is, in his Pleas of the Crown*, that that practice is not warranted by any act of parliament, book-case, or antient record, and that there is not so much as scintilla juris for it: for he says, when the fault is denied, truth cannot appear without witnesses. As for what is pretended, that it is swearing against the king, and therefore it is not allowed of; it is a canting reason, which, put into sensible English, a man will be ashamed to own. And as slight is the reason, that it being a matter of so high a moment as a man's life, the prisoner will be the more violent and eager, and the witnesses may be more prevailed upon to swear falsely, more than they would be in a matter of less moment: the weakness of that reason hath been in part, and shall be further shewn. I think none will deny, but the end of trials in any matters capital, criminal, or civil, is the discovery of truth: next it is as necessary for the prisoner to have witnesses to prove his innocence, as it is for the king to have witnesses to convict him of the crime: which proposition is agreed by the practice, it being always permitted, that the prisoner shall produce what witnesses he can, but they are not to be upon oath. In the last place, since truth cannot appear, but by the confession of the party, or testimony of witnesses of both sides, it is necessary to put all the engagement as well on the witnesses of part of the prisoner, as of part of the king, to say the truth, the whole truth, and nothing but the truth, as the nature of the matter will bear: and as yet no better means has been found out than an oath; which if denied to the prisoner's witnesses, either he is allowed too great an advantage to acquit himself, or he is not allowed enough. If all that his witnesses say without oath, shall have equal credit, as if they swore it, then he hath too much advantage; for men may be found who will say falsely, what they will not swear, as is plain enough. How often doth a defendant say in a plea at law, that a *Tit. Evidence, p. 264. See Hist. P. C. vol 2. cap. 37. p. 283. deed is not his, which yet in an answer in Chancery, he will confess to be his? If his witnesses shall not have credit because not sworn, to what purpose then is it permitted him to produce them? If they shall have credit, but not so much as if sworn, I ask how much credit shall be given? Is it two, three or ten witnesses without oath shall be equivalent to one upon oath? And besides, that question never was nor can be answered, what credit shall be given them? There is an unreasonable disadvantage put on the prisoner, that a witness produced on his part, of equal credit with the witness against him, shall not have equal credit given him, because he is not on his oath; whereas he is ready to deliver the same things on his oath, if the court would administer it to him: And yet that difference was taken is Fitzharris's case, as to the credibility of Everard and Oates, the first being upon his oath, the last not. I do not offer this as any reflection upon the late proceedings, but as a reason why matters in capital proceedings ought not to have been carried farther than heretofore they were, against the prisoner, by example of so unrea sonable a practice. But to return to the trial of Colledge, which came on in the afternoon, when the Attorney insisted that the king's witnesses ought not to be examined out of the hearing of each other, in which he was over ruled, but the rule not observed, nor was it material: for the king's counsel having the prisoner's writings, and by them observed how he intended to make the witnesses against him contradict themselves, they did not produce such witnesses as were not instructed to concur in the evidence of the same matter, but produced only such as were instructed to give evidence of distinct matters. And therefore Dugdale was first produced, who gave evidence of vilifying words spoke of the king at several times, at Oxford and London, by the prisoner, to himself alone; that he shewed the witness several scandalous libels and pictures, and said he was the author of them; and that he had a silk armour, a brace of horse pistols, a pocket pistol, a sword; that he said, he had several stout men to stand by him, and that he would make use of them for the defence of the protestant religion; he said, The king's party was but a handful to his party. Stevens swore the finding of the original of the Raree-Show in the prisoner's chambers. John Smith swore his speaking scandalous words of the king, and of his having his armour; and that when he shewed it the witness, he said, These are things that will destroy the pitiful guards of Rowley; that he said, He expected the king would seize some of the members of parliament at Oxford; which, if done, he would be one should seize the king; that he said, Fitzgerald, at Oxon, had made his nose bleed; but before long, he hoped to see a great deal more blood shed for the cause; that if any. nay, if Rowley himself, came to disarm the city, he would be the death of him. Haynes |