chester's about some business I had to do for him, and several other persons of quality; he sent for me one afternoon from the parsonage in Adderbury to his house, and his lady and he stood together: He sent to me, and asked me, if my horse were at home; said he, I would have you carry this letter to Mr. Thomson, if you are at leisure this afternoon: My lord, I am at leisure to serve you; so I took a letter from his hand, and his lady's too; as I remember (he made an offer that way) sealed with his own seal, and I carried it to Thomson, and delivered it to him: And he told me, that he would wait upon my lord, for it was for some lands my lord did offer, to raise money for some occasion: This is the truth of that scandal.

It is said that I had a priest several years in my house, viz. Sergeant, that came over from Holland to discover. About some ten years ago, that very same man came to me, but was a stranger to me, and he came to me by the name of Dr. Smith, a physician; and there was an apothecary in the Old Bailey, and a linen-draper within Ludgate, that came with him, they brought him thither, and took a chamber, and he lay about half a year, or three quarters, at times, by the name of Dr. Smith, and as a physician; this is the truth of that, and no otherwise. This is the entertainment of Sergeant.

with him when it was sworn. I wish the Commons of England as well as I wish my own heart; and I did not understand, but when I served the parliament I served his majesty too; and let them be miserable that make the difference between them, for my part, I never did. I came to Oxford with my lord Howard, whom I look upon to be a very worthy honest gentleman, my lord Clare, my lord Paget, and my lord Huntington, and this captain Brown, and Don Lewes, were in my company, and came along with us, as they were my lord Howard's friends: Brown I have known, I believe, two or three months; but Lewes I never saw before that day; they said they came with my lord Howard. I take God to witness, I never had one six-pence, or any thing else to carry on any design; and if it were to save my life now, I cannot charge any man in the world with any design against the government, as God is my witness, or against his majesty, or any other person.

As for what arms I had, and what arms others had, they were for our own defence, in case the Papists should make any attempt upon us by way of massacre, or any invasion or rebellion, that we should be ready to defend ourselves; God is my witness, this is all I know. if this be a plot, this was I in, but in no other; but never knew of any numbers, or times appointed for meeting; but we have said one to So the occasion of my coming to Oxford I another, that the Papists had a design against do say was voluntary; the parliament-men the Protestants, when we did meet, as I was a last parliament at Westminster, and several man of a general conversation; and in case they lords, dined together the day before they sat; should rise, we were ready; but then they should the last sessions of parliament at Westminster, begin the attempt upon us: This was my busithey sent for me to the Sun tavern behind the ness, and this is the business of every good subExchange, and when I came, the duke ofject that loves the laws of his country and his Monmouth, and several lords were together, and I believe above a hundred parliament-men of the Commons: The duke of Monmouth called me to him, and told me, he had heard a good report of me, that I was an honest man, and one that may be trusted; and they did not know but their enemies, the papists, might have some design to serve them as they did in king James's time by gun-powder, or any other way: And the duke, with several Lords and Commons, did desire me to use my utmost skill in searching all places suspected by them; which I did perform: And froin thence I had, as I think, the popular name of the Protestant Joiner, because they had intrusted me, before any man in England, to do that office.

This same Haynes, one of them that swore against me, had discovered to me and several others, as to Macnamarra and his brother, and this Ivy, who are now all of another stamp, that the parliament was to be destroyed at Oxford, and that there was a design to murder my lord Shaftesbury, by Fitzgerald and his party; and that they did endeavour to bring Macnamarra over to him, and said, then it would be well with him; and they would not be long before they had Shaftesbury's life: And he made depositions of this to sir George Treby, as I heard afterwards, for I was not

king. For England can never hope to be happy under those blood-thirsty men, whose religion is blood and murder; which I do with all my soul, and did, ever since I knew what religion was, abhor and detest, viz. the church of Rome, as pernicious and destructive to human societies, and all government.

I beseech God that every man of you may unite together as Protestants against this common foe. Gentlemen, it is my sense, and I do in that believe, I am as certainly murdered by the hands of the Papists, as sir Edmundbury Godfrey himself was, though the thing is not seen. These witnesses certainly are mercenary men, and I beseech God Almighty to have mercy upon their souls, and forgive them; and either by his judgments or mercies reclaim them, that they shed no more innocent blood: There is not a man of them that I know of, that ever heard me say, or do, any bit of treason in my life. This is (the first, I may not say it is) but almost twentieth Sham-Plot that they have endeavoured to put upon the nation, to delude the people, and put off their own damnable plot. This is not the first, but I think, the sixteenth or seventeenth; I pray God that my blood may be the last. I pray God defend every man's blood, and all Protestants in Eng land, from the hands of these bloody Papists,

by Jesus Christ my alone Saviour and Redeemer, in whom I put my trust alone for salvation: 'It is thee, O God, that I trust in, thou righteous Judge of Heaven and Earth: all Popery, all pardons, all Popes and Priests, all dispensations I disown, and will not go out of the world with a lie in my mouth. From the sincerity of my heart I declare again, that what I have said to you is the very sentiments of my soul, as God shall have mercy upon me, and to the best of my knowledge.

by whose means I die this death; and if they | God receive me into thy blessed presence, should go on in this nature, I hope the good God will open every man's eyes to see it before he feels it. Aud, I beseech you, if you have any love for your king, your country, and the Protestants, unite together, if you are Protestants. I pray God those that deserve the name, let them be called how they will, either Dissenters, or Church of England men, that they may unite together like men, like Christians, against the common foe, who will spare neither the one side, nor the other, but beat you one against another like two pitchers; the last that stands, they will certainly destroy if they can. This is my sense, and God is my witness, I speak my conscience. I do not know, Mr. Sheriff, whether there be any thing else I have to say, or no; we have a good God, and I heseech every man that hears me this day, (for we live in a sinful age, good people, and it behoves every one of you, it cannot be long before all that look upon me in this condition must lie down in the dust, and, God knows, must come into an eternal state, either for mercy or for judgment.) I beseech you in the name of God, he is a God of mercy, and a God of patience and long-suffering, that you would break off your sins by repentance, and serve a good God, who must be your friend at last, or else you are lost to eternity.

O Lord how ungrateful wretches are we, that have a God of such infinite mercy and goodness, that affords us our life, our health, and a thousand mercies every day; and we, like ungrateful people, not deserving the name of men or Christians, live riotous lives, in debauchery and swearing, in malice, and the Lord knows how many evils; I beseech God that I may be this day a means in the hands of God, to bring some of their souls over to him: I beseech you, remember what I say; indeed I do not know, I have been so strangely used since I have been a prisoner, what to say, being brought from one affliction to another, that my body is worn out, and my memory and intellects have failed me much to what they were. I cannot remember what I have to say more, but that the Lord Jesus Christ would bless my country, and preserve it from popery, and in mercy bless his majesty: Good God be merciful to him, make him an instrument in thy hand to defend his Protestant subjects; Lord in mercy defend him from his enemies. Good God bless his people; Good Lord continue the gospel of Jesus Christ, thy gospel, in it's purity to us and our posterity, as long as the sun and moon endure. O Lord, save all that call upon thee; be merciful to all thy servants, all thy people that put their trust in thee; good Lord deliver them from the hands of their enemies; good God, let their lives, and bodies and souls, be all precious in thy sight. O merciful God, put a stop to these most wicked conspiracies of thy enemies, and the nation's enemies, the Papists. Let no more Protestant blood be shed but this of mine, I beseech thee, O my God. O Lord look upon me, O Lord bless me, Ŏ good

YOL. VIII.

I desire the prayers of you, good people, while I am here; and once more I beseech you to think upon eternity, every one of you that hear me this day. The Lord turn your hearts and souls, if you have been wicked livers; if you do live wicked lives, the Lord in mercy convert you, and shew you your danger; for I as little thought to come to this as any man that hears me this day; and I bless God, I have no more deserved it from the hands of men, than the child that sucks at his mother's breast: I bless my God for it, and do say I have been a sinner against my God, and he hath learnt me grace ever since I have been a prisoner. I bless my God for a prison, I bless my God for afflictions, I bless my God that ever I was restrained, for I never knew myself till he had taken me out of the world. Therefore you that have your liberties, and time, and precious opportunities, be up and be doing, for God and for your souls, every one of you.

To his Son. Where is my dear child ? Sheriff. I made one request to you, and you gave me an imperfect answer: You said you were of the best reformed church in the world, the church of England according to the best reformation in the world: I desire you, for the satisfaction of the world, to declare what church that is, whether Presbyterian, or Independent, or the Church of England, or what?

Coll. Good Mr. Sheriff, for your satisfaction, for 20 years and above I was under the Presbyterian ministry, till his majesty's restoration; then I was conformable to the church of England when that was restored, and so continued till such time as I saw persecution upon the dissenting people, and very undue things done to their meeting places; then I went among them to know what kind of people those were: And I do take God to witness, since that time I have used their meetings, viz. the Presbyterians, others very seldom, and the Church of England. I did hear Dr. Tillotson not above three weeks before I was taken. I heard the church of England as frequently as I heard the dissenters, and never had any prejudice, God is my witness, against either, but always desired heartily that they might unite, and be lovers and friends, and had no prejudice against any man; and truly I am afraid it is not for the nation's good that there should be such heart burning between them: That some of the church of England will preach that the presbyterians are worse than the papists. God doth know that what I

3 A

say, I speak freely from my heart, I have forgive the world with all my soul, all the infound many among thein truly serving God,juries I have received, and I beseech God Aland so I have of all the rest that have come mighty, forgive those poor wretches who have into my company : : men without any manner cast away their souls, or at least endangered of design but to serve God, serve his majesty, them, to ruin this body of mine: I beand keep their liberties and properties; men seech God that they may have a sight of their that I am certain are not of vicious lives: I sins, and that they may find mercy at his hands : found no damners, or those kind of people Let my blood speak the justness of my cause. among them, or at least few of them. I have done And God have mercy upon you all.

To his Son, kissing him several times with great passion. Dear child, farewell, the Lord have mercy upon thee. Good people, let me have your prayers to Almighty God to receive my soul.

To Mr. Cushwait, Pray, Sir, remember me to Dr. Hall and Dr. Reynall, and thank them for all their kindnesses to me; I thank you, Sir, for your kindnesses: The Lord bless you And then he prayed. And as soon as he had all. Mr. Sheriff, God be with you: God be done, spake as followeth : with you all, good people.

The Lord have mercy upon my enemies, and I beseech you, good people, whoever you are, and the whole world that I have offended, to forgive me; whomever I have offended in word or deed, I ask every man's pardon; and

The Executioner desired his pardon, and he said, I do forgive you. The Lord have mercy on my soul. And so he was turned off, and the Sentence executed, but his quarters were permitted to be buried.

REMARKS ON COLLEDGE'S Trial, by Sir JOHN HAWLES, SolicitorGeneral in the Reign of King William the Third.

BUT to return whence I have digressed,* | scruple in private to impose any thing on an Fitzharris being executed according to his sen- ignorant jury. tence, though there was great grumbling amongst the protestants that those who set him on work were concealed, and never like to be discovered now he was dead; yet all was quiet, and the conspirators, who resolved, though Fitzharris miscarried in his design, yet the Plot should go on; but what it should be, or where the scene of it should be laid, or who the plotters should be, they were not well resolved.

I know not how long the practice in that matter of admitting counsel to a grand-jury hath been; I am sure it is a very unjustifiable and unsufferable one. If the Grand-jury have a doubt in point of law, they ought to have recourse to the court, and that publicly, and not privately, and not rely upon the private opinion of counsel, especially of the king's counsel, who are, or at least behave themselves as if they were parties.

Great noise of warrants being issued out It is true, it is said they are upon their oaths; there was, but at last all centered in an incon- and though it be not expressed in their oaths, siderable fellow, one Stephen Colledge, a join- that they should do right between the king and er by trade, who for his honour, as a prisoner subjects, yet that is implied in the oath, I agree. of state, was committed to the Tower for High But have they behaved themselves as if they treason. At first it was designed to lay the were under an oath? Besides, all men are not scene in London, and accordingly a bill of in- capable of giving advice to be relied on in so dictment of high treason was exhibited to the great a matter as life; but the manner of doing grand jury (whereof Wilmer was foreman) at it being in private can never be justified. the sessions-house: But the business of Fitz-know, in Fitzharris's case, the King's counsel harris was so new, and smelt so rank, that the bill could not be digested, but was spewed out with an Ignoramus; for which Wilmer was afterwards forced to fly his country.

Then it was resolved the scene should be at Oxford, and accordingly the king's counsel, with Irish witnesses, at the assizes, post thither and prevail with the grand-jury to find the bill; but by what arts is not known. for he was privately shut up by them: and I should wonder, if he, who frequently, in the hearing of those who understood better than himself, had assurance enough to impose upon the courts, should

See what preceded, printed at the end of Fitzharris's Case, at p. 429 of this volume.

were cajoling the Grand-jury in private for some hours: but I did not think fit to take notice of it in that trial, because, I think both the grand and petty jury did very well; they acted according to the best of their understanding, which is all that God or man required of them ; they asked pertinent questions, they were overruled in some, not fully answered in others; not that I think either of them gave a verdict according to law upon the fact, as it appeared upon the evidence; but that was not the fault of the jury, but of the king's counsel, and of the court, who misled the jury. I thought it more proper to take notice of it in this trial, wherein the first bill was rejected by an understanding jury, and all men wondered how the

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.

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 mat-
ters 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 hear 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 ridicuIf this be law, as none can deny it, is it not lous is the distinction? Suppose the prisoner lawful to advise him; and it is not fit for the cannot write, then he is hanged for his parent's court to quash the indictment faulty, notwith-fault or misfortune, for not educating him, or standing all the cant of dilatories, subterfuges, for not being able to educate him better. 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 conviction; 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 you 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,

Which is somewhat of kin to the late practice in the west, where many men were hanged for having old Jewish names, as Obadiab, 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 practised 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 prisoner; 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