Trial of the Charge of High Treason, Day 5 · Floating text
Exceptions to the Charge of High-Treaſon, and other High Crimes, and Offences, exhibited to the High Court of Juſtice, by Edmund Prideaux Eſq Atturney Generall for the Commonwealth of England, againſt Chriſtopher Love Clerk: And Matters of Law humbly preſented to the ſaid High-Court, according to the Direction of an Order hereunto annexed. For this Order, ſee the fore-going page.
Firſt THe Charge is, That Chriſtopher Love as a falſe Traitour, and Enemy to the Commonwealth of England, and out of a Traiterous and wicked Deſigne, to ſtir up a new and Bloody War, and to raiſe Inſurrections, Sedition and Rebellion within this Nation, in ſeverall dayes and times, that is to ſay, in the yeers of our Lord God 1648, 1649, 1650, 1651, at London and in divers other places within this Commonwealth of England, and elſewhere, together with William Drake, and divers other perſons, did traiterouſly combine, confederate, and complet together, to ſtir and raiſe Forces againſt the preſent Government of this Nation, ſince the ſame hath been ſetled in a Commonwealth and Free-State, without a King and Houſe of Lords, and for the ſubverſion and alteration of the ſame.
The Act of the 17 of July 1649. is, That if any perſon ſhall maliciouſly or adviſedly plot, contrive or endeovour to raiſe forces againſt the preſent Government, or for the ſubverſion or alteration of the ſame; and ſhall declare the ſame by open deed, that every ſuch offence ſhall be Treaſon.
Exception 1. The words Maliciouſly or Adviſedly are left out of the Charge.
2. That the words of the Act are omitted, which are, Plot, Contrive or Endeavour,
3. It is not Treaſon within the Act to plot, contrive, or endeavour, to ſtir up or raiſe Forces againſt the preſent Government, or for the ſubverſion or alteration of the ſame, unleſſe the ſame be declared by ſome open deed. But the Charge is, That Chriſtopher Love did combine, confederate, and complet, to ſtir and raiſe up Forces againſt the preſent Government, &c. and it is not charged that he ſaid Chriſtopher Love did declare the ſame by any open deed.
Secondly, Whereas the ſaid Chriſtopher Love is by the ſaid Articles charged, that for the Subverſion, and alteration of the ſame, and to carry on the ſaid traiterous Deſigne, that he did Traiterouſly and Maliciouſly declare, publiſh, and promote the eldeſt Son of the late King to be King of England (meaning this Commonwealth) without the conſent of the people in Parliament, firſt had, and ſignified by Authority or Ordinance to that purpoſe.
The Act of the 30. of January 1648. is, that no perſon do preſume to proclaim, publiſh, or any way promote Charls Stewart, ſon of the late King Charls, commonly called, the Prince of Wales, or any other perſon, to be King, or chief Magiſtrate of England, by colour of Inheritance, Succeſſion, Election, or any other claim whatſoever.
Exception. It is not expreſly charged that the ſame was done after the ſaid Act made, neither doth the Charge purſue the words or intent of the Act.
Thirdly: The Charge is, that to accompliſh the ſaid trayterous and wicked deſigne, the ſaid Chriſtopher Love, on ſeverall dayes and times in the yeers aforeſaid, at London &c. together with William Drake and other perſons, did trayterouſly and maliciouſly invite, aid and aſſiſt the Scots, being Strangers, to invade this Commonwealth of England, and hath adhered to the Forces of the Enemies raiſed againſt the Parliament
The Act of the 17 of July 1649. is, that if any perſon ſhall procure, invite, aid or aſſiſt any Forraigners or Strangers to invade England or Ireland; or ſhall adhere to any forces raiſed by the enemies of the Parliament or Commonwealth, or Keepers of the Liberties of England; every ſuch offence ſhall be taken to be Treaſon.
Except. 1. That it is not alledged in his Charge who in particular were the Strangers that were invited to invade England.
2. That it is not alledged, that at the times of the invitement, aid and aſſiſtance laid in the Charge, the Scots were ſtrangers.
3 That it is not alledged particularly in the Charge, to the Forces of what enemies raiſed againſt the Parliament, Chriſtopher Love did adhere.
4 It chargeth the Priſoner for a treaſonable aſſiſtance in ſome yeers that were before the ſaid Act of the 17 of July 1649 was made.
5 To advance the ſaid traiterous and wicked deſigne, is uncertain to what deſigne it ſhall have reference, ſeverall charges of treaſon being before expreſſed.
Fourthly. The Charge is, That Chriſtopher Love, divers dayes and times between the 29th of March 1650. and the firſt day of June 1651. at London &c. did traiterouſly and maliciouſly give, hold, uſe and maintain correſpondency and intelligence by letters, meſſages, inſtructions or otherwiſe, prejudiciall to this Commonwealth, with Charles Stewart ſon of the late King, with the late Queen his mother, and with Henry Jermin, Henry Piercy, and divers other perſons being of Councel and abiding with Charles Stewart.
By the Act of 26 March 1650. the matters charged herein are onelyonly prohibited, but are not made Treaſon.
Except. 1. That this charge is miſlaid, being charged to be done traiterouſly.
2 The charge is uncertain, being alledged in the disjunctive (or otherwiſe) and ſhews not in what other manner.
Fifthly. The Charge is, That Chriſtopher Love, within the times, and at the places aforeſaid, did traiterouſly and maliciouſly uſe, hold and maintain correſpondency and intelligence with divers perſons of the Scotiſh Nation; that is to ſay, with the Earl of Argile, and others of the Scotiſh Nation, and with divers other perſons of other Nations, whom Chriſtopher Love well knew to adhere to the ſaid Scotiſh Nation in the War againſt the Parliament.
The Act of the 2d of Auguſt 1650. is, that all and every perſon that ſhall uſe, hold or maintain any correſpondency or intelligence with any perſon or perſons of the Scotiſh Nation, reſiding in Scotland, without the licenſe of the Parliament, the Councel of State, or the Lord Generall: or with any perſon or perſons of the Scotiſh or any other Nation whom they ſhall know to adhere to the Scotiſh Nation in this War againſt the Parliament.
Except. 1. That it is not laid, that the perſons of the Scotiſh Nation mentioned in the charge, were reſiding in Scotland, nor expreſly alledged that they did adhere.
2▪ That it is not averr'd that ſuch correſpondency was holden without the licenſe of Parliament, Councel of State, or the Lord General, nor in what war the correſpondence or intelligence was held.
3 It is not laid with what particular perſons of any other nation adhering to the Scotiſh Nation, correſpondency or intelligence was holden; nor of what Nations.
4 This correſpondency and intelligence is not laid to be after the 5 of Auguſt 1650. mentioned in the ſaid Act of the 2d of Auguſt 1650. but refers to a time preceding that Act.
Sixthly. The Charge is, That Chriſtopher Love, within the times and at the places before mentioned, did traiterouſly and maliciouſly abbet, aſſiſt, countenance and incourage both the Scotiſh Nation, and divers other perſons adhering to them in this War, againſt the Parliament. And did ſend and convey, or cauſe to be ſent and conveyed, Moneys, Arms, Ammunition, and other Supplies to Scotland and other places, and to the ſaid Titus, &c. in confederacy againſt this Nation, without licenſe of the Parliament of England, or Councel of State, or Generall of the Army.
The Act of the 2d of Auguſt 1650. is, that no perſon ſhall abbet, aſſiſt, countenance or incourage the Scotiſh Nation, or any other perſon or perſons adhering to them in their war againſt the Parliament and Commonwealth of England; or ſhall go, or ſend, or cauſe to be ſent &c. any money, Horſe, Arms, Ammunition, or other Supplyes into Scotland &c. or to any perſon under their power, or in confederacy with them againſt this Nation, without the licenſe of the Parliament of England, Councell of State appointed by their authority, and of the Captain Generall of the Parliaments Forces a… aforeſaid.
Except. 1. That there are no particular perſons named, who were abetted, aſſiſted, countenanced, or incouraged, neither of the Scottiſh Nation, nor of any other perſons adhering to them.
2. In the Charge, the ſending of mony, &c. is laid to be done without the licenſe of the Parliament of England, or of the Councel of State, or Generall of the Army.
The words of the Act are, without the licenſe of the Parliament of England, or Councel of State appointed by their Authority, or of the Captain Generall of the Parliaments Forces.
3. The time to which this refers, is between the 29 of March 1650. and the 1. of June 1651. and ſo it takes in the time between the 29 of March 1650, and the 2d of Auguſt 1650. which is before the making of the Act.
Seventhly. The charge is, That the ſaid Chriſtopher Love, at the times and places before mentioned, did Traiterouſly, and Voluntarily relieve the ſaid Sylas Titus, and one Sterks a Scotchman, which then were and yet are under the power of the Scottiſh Nation, and in Arms againſt the Parliament of England, with Moneys, Arms, and Ammunition.
By the Act of the 26. of March 1650. the matters charged herein, are only prohibited, but not made Treaſon.
Except. 1. That this Charge is miſlaid, being charged to be done Traiterouſly.
2. It is laid to be at the times before mentioned, whereas there are ſeverall times before mentioned; ſo as it is uncertaine to which of thoſe times this Charge relates.
3. And of theſe times ſundry of them are laid to be in ſeverall years before the making of the upon Act which this Charge is grounded.
Allegations by Chriſtopher Love touching the matters and proof upon the Charge.
Though I do not conceive any ſufficient proof is made of the Charges againſt me, yet I ſhall be ready to make it appear upon proof.
That one of the principall witneſſes hath depoſed againſt me upon promiſe of reward, and upon menace of puniſhment.
That one hath received extraordinary rewards for his depoſing.
That diverſe of the witneſſes againſt me have been by their owne confeſsion detected of contributing of ſupplies and aſsiſtance, ſending and receiving letters, contrary to the late Acts.
That no two lawfull witneſſes produced prove any one Treaſonable fact.
That no witneſſe doth depoſe further then concealment, or miſpriſion of Treaſon at the moſt.
Chriſtopher Love.
As this caſe is ſtated, we conceive theſe queſtions may ariſe.
1. Whether in this caſe theſe be lawfull and ſufficient witneſſes, as by law is required.
2. Whether here be two lawfull witneſſes.
3. Whether any concealment of Treaſon be Treaſon within the late Acts.
We have not ſeen any Authenticall copies of the Charge or Evidence; but upon the copies wee have ſeen, we humbly conceive fit to tender theſe matters and Exceptions to the conſideration of this High Court. And wee ſhall be ready to ſpeak to them, or any of them, or to any other matters ariſing upon the caſe, as we ſhall receive further directions.
Matthew Hales.
John Archer.
Thomas Waller.
After the Court had received the precedent Exceptions, and were ſat in Weſtminſter Hall, Mr. Love was commanded to the Bar.
When Mr. Love ▪ appeared at the Bar, he deſired the Court that his councell might be heard to theſe Exceptions. And when Mr. Archer and Mr. Waller, who were of his councell, appeared in Court, the Court demamded of them, whether they were of Mr. Loves councell? they anſwered, they did underſtand they were aſſigned to be of his councell by the Court; then the Atturney Generall demanded of them, whether or no they had ſubſcribed the Engagement; they anſwered, they had not done it; and ſpake further to this purpoſe, that they were by the Court aſsigned to be of Mr. Loves councell, and were ſent for into the Court, and in obedience thereunto they had appeared, and were ready to ſpeak, if they might be heard. It was demanded of them by the Court, whether or no they would ſubſcribe the Engagement? they anſwered, That they deſired time to conſider of it: and ſo withdrew.
After they had withdrawn, Mr. Love moved the Court that Mr. Hales, another of his councell, might be ſent for.
— Ʋpon the coming in of Mr. Hales, the Lord Preſident ſaid.
L.P.
You come at councell for M. Love, the Gentlemen that were here, are brought into an incapacity of doing him ſervice that way; we asked them whether they have ingaged: we doubt not you, but tell you the reaſon why we did it.
Mr. Hales.
My Lord, I have done it.
L. Preſ.
Therefore you are aſſigned.
Mr. Hales.
I had very late notice of this buſineſſe, it was Saturday night late before I had notice of it, and the next day was not a day to think of thoſe things. Yeſterday was Munday, and the moſt part of that day I ſpent in looking over thoſe things that had been (I think) preſented to your Lordſhip and the Court; we did not know what command your lordſhip would put upon us, whether you would admit us to ſpeak, and to what you would admit us to ſpeak, and when you would admit us to ſpeak. …t is impoſſible (my lord) I muſt deal plainly, I profeſſe it is impoſſible for me, in a buſineſſe of this great conſequence, to undertake to ſpeak any thing for the preſent, till ſuch time as I know your lordſhips directions, and this was that we acquainted this Gentleman with aſſoon as ever I ſaw him, and the firſt time that ever I ſaw him, which was but this day.
Att. Gen.
I think that Mr. Hales hath put ſomewhat under his hand.
Mr. Hales.
We have done ſo.
Att. Gen.
Nay you muſt ſtand ſingle, the other two are ſet aſide, it muſt be you only, I ſuppoſe Mr. Hales knowes what he is to ſpeak to.
Mr. Hales.
Truly we know what we are to ſpeak to, but to ſpeak upon ſuch a buſineſſe on ſuch a ſudden, when we did not know what directions the Court would give, that I could not undertake, and I think Maſter Attourney will not preſſe it upon us, it were a hard caſe if he ſhould.
Att. Gen.
Mr. Hales knowes as well as any man what is to be done in theſe caſes, none better then himſelfe, the Court uſeth not to aſſign councel to pick flawes, but thoſe that are juſt exceptions, and the Court i… doubtfull too, how they will allow councell to debate them, and ſtand to the judgement of the Court. I ſuppoſe he comes to ſpeak to that that the party hath alledged.
Mr. Hales.
It is true, we do ſo: but Mr. Atturny General knowes likewiſe, that when matters of law are aſſigned, that there is ſome reaſonable time, we expect not long, but ſome reaſonable time it aſſigned alſo for the parties to prepare themſelves, for truly otherwiſe I ſhould not do that duty I ow to the Court and my Client, if I ſhould ſpeak ex improviſo, in ſuch a manner as I have done; for the firſt time I ſaw any thing of it, was on Saturday night, between eight and nine of the clock.
L Preſ.
Though that was the firſt ſight of this paper, as it is now ſet down, it was not the firſt notice you had to be of his councell, but himſelfe hath declared it here long agoe, that the former paper was by your advice.
Mr. Hales.
No (my lord) if he did ſo, I will plead not guilty.
L. Preſ.
I will not ſay your name, but when he gave us in his paper, before this, the laſt day, you ſaid it was the advice of your councel.
Mr. Love.
Not Mr. Hales.
L. Preſ.
Then haply we ſhal eaſe you a great deal: that that is under your hand, is very ſhort, and we ſhall eaſe you of ſome of that too; and you know that upon all aſſignments in the Upper Bench and common Law, when they firſt open it, they ſhow ſome cauſes upon which they wil argue it, and when you have had time already, now ſhew ſomething that may be worthy of it, and we will conſider of it.
Att Gen.
Before he ſpeak (my lord) I deſire that he will give it under his hand poſitively, not queries but poſitive, that this in his judgement he thinks fit to be matter of Law, and to be argued.
M. Hales.
My Lord, we think that theſe things are ſuch.
L. Preſ.
Then you muſt upon the firſt ſight open it ſo far, that it may be your judgement.
At. Gen.
But not ſuffer it to be debated unleſs you think it doubtfull.
M. Hales.
We are here aſſigned councell for him, and if your Lordſhip will pleaſe to give us that time that may be convenient for us to doe our duty for him, if not, wee ſhall doe but your Lordſhip wrong, and our Client wrong if we ſhould ſpeak.
L. Preſ.
You may have ſome convenient time, but you muſt open it now, that we may judge what time is proportionable; if you will not open it, that this is the point you will argue upon, we can ſay nothing.
M. Hales.
Then the reading of that which we have exhibited to the Court, will be as much as poſſibly I ſhall be able to do at this time, for we have had no copy of the Charge.
L Preſ.
Nor muſt have.
M. Hales.
And we have taken a copy at random, according as it hath been offered to us by thoſe that have taken notes, and we have preſented upon thoſe Notes, and we have applied our ſelves to M. Atturney for a copy of the Charge, and he conceived that it was not fit for him to do it without direction of the Court; but for a copy of the Charge when Exceptions are taken, it is uſuall to have it granted; and for us to ſpeak and ſpend your lordſhips time upon matters that are contained in a Charge, whereof for my own part I never heard, and which is uſuall upon Excceptions offered to be granted, it would be very—
L. Preſ.
It is an excellent thing to ſpeak to men of underſtanding; did you ever know an Inditement in this nature, a copy of it delivered upon the priſoners prayer?
M. Hales.
Yea, I have known it very often.
L. Preſ.
He ſhall, as his memory ſerves him, ſpeak to the ſubſtance, but to have a copy of the Charge, I take it, you have not known.
M. Hales.
Thus far I have known it, I have been commanded to be of counſell with perſons that have been impeached of Treaſon by the Parliament, I know that the Archbiſhop of Canterbury, when hee was impeached of Treaſon, had a copy of his Charge, that I know he had; I know this is the uſuall courſe, that if a perſon takes Exceptions to a matter contained in an Inditement, though it is true, he ſhall not have the copy of the whole Inditement, yet he ſhall have a copy of ſo much whereupon his Exception growes; that hath been done, and will not be denied; but for the other matter, I know that in the Archbiſhop of Canterburies caſe there was a copy of the whole Charge granted, and the like was done in the caſe of the Lord Strafford.
At. Gen.
I ſhall give that anſwer a little more then I did, Parliamentary proceedings are no rule for other Courts to walk by; beſides (my lord) you ſit here upon a known publiſhed Law, and the offence charged is againſt thoſe Laws: I believe M. Hales well remembers, that both my lord of Straff…rds caſe, and the Archbiſhop of Canterburies caſe were both of them for many ſeverall facts ſeverall times a long time committed, which ſeverall facts being judged by Parliament, were judged to be Treaſon not againſt any ſetled poſitive Law: And for Straffords caſe, you know how the judgement, at laſt was given by Act of Parliament, King, Lords and Commons. And for the Archbiſhop of Canterburies caſe, you know what the ſeverall complaints againſt him were, many of them not Treaſon, but ſo many of them together, that in Parliament they thought fit to judge him guilty of Treaſon; but thoſe priviledges are not to be paralleld, he knowes very well it was not againſt ſuch, and ſuch, and ſuch a law, to make thoſe offences Treaſon. Having given thus much favour, I may ſay, to the Priſoner, that he may by memory exhibit his Exceptions, he hath done it, if you judge that thoſe Exceptions are worth the debating, be worthy of it, you may (as M. Hales ſaith) give directions for ſo much to be given him, otherwiſe (for my part) I did never give it unto any; but thoſe that have been in my place before, did never give it but by immediate Warrant from the King, or the Parliament now, but for ſo much as the Court thinks fit, for ſo much as concerns the Exceptions.
Sir Tho. Witherington.
For that that M. Hales objects to the Inditement, it ſtands with a great deal of juſtice; for if a priſoner layes hold of part of an Inditement, and ſay there is a miſtake in it, there is reaſon it ſhould be ſo, becauſe the Court muſt judge it whether it be ſo or not, therefore there is neceſſity of it that there ſhould be a copy of ſo much; but I think he never knew that all the Inditement was, but that part, and that is of neceſſity for the Court, that they may ſee whether the Exceptions accord with the Inditement or no; if there be any Exception to an Inditement, if that Exception remains not as a doubt or queſtion, there ſhall be no copy of ſo much of the Inditement given: if he ſhall raiſe a doubt that there is any doubt in law, or any queſtion and variance between the Acts and the Charge, if he ſhall raiſe any ſuch doubt, then I think according to the old law he may have that part of the Charge; but we deſire he may raiſe ſome doubt to the Court.
M. Hales.
My Lord, we have raiſed the doubts, and we are ready to deliver in thoſe that we conceive to be Exceptions to the Charge, if we be over-ruled in them, we have no more to ſay; but if your lordſhip upon the view of theſe things we have offered, think them worthy to be ſpoken to before your Lordſhip, then ſurely that is agreeable with that very rule which the Councell of the State is pleaſed to ſtate; that is, that in caſe we alledge that which the Court ſhall thinke fit for us to debate before them, that then we may have that whereby it may appear whether we debate upon that which is, or is not.
At. Gen.
M Hales ſaith he hath given them in, but I have ſeen none of them, my lord.
L. Preſ.
Whether their memory be perfect or imperfect, that we ſhall help you withall, and then I will tell you what you were beſt do, for time goes away: we will before you take it, take the ſeverall Statutes and the Charge, and your Exceptions, and compare them altogether before you, and you ſhall except to every one as you go.
At. Gen.
I deſire the exceptions may ſtand as they are.
L. Preſ.
I, but hee ſhall ſee whether there be any materiall variance between the Notary and the Charge.
At. Gen.
That Notary was upon favour too, Mr. Love will acknowledge it.
Mr. Love.
I do with all thankfulneſs acknowledge it, my lord.
At. Gen.
I deſire it may be no preſident for after-times.
The Clerk.
If you pleaſe, read your Exceptions.
M. Hales.
My lord, we begin with the firſt, and theſe are the Exceptions: We take it that Charge is grounded upon the Act of the 17th. of July, 1649. and we take ſome Exceptions to that firſt part of the Charge, that is, concerning what offences ſhall be adjudged Treaſon.
L. Preſ.
Read your Exceptions, and then you ſhall hear the Charge.
M. Hales.
Our Exceptions are theſe; firſt, that whereas the words of the Act are, That if any perſon ſhall maliciouſly, and adviſedly plot, contrive, or indeavour to ſtir up, or raiſe Forces againſt the preſent Government, or for the ſubverſion or alteration of it, that the words maliciouſly or adviſedly, are left out of the Charge, which we conceive are materiall words.
At. Gen.
Read.
M. Barnard the Clerk.
That he the ſaid Chriſtopher Love, as a falſe Traitor and Enemy to this Common-wealth, and Free-State of England, and out of a traiterous and wicked deſign to ſtir up a new and bloody war, and to raiſe inſurrections, ſeditions, and rebellions within this Nation, did ſeverall dayes and times, in the ſeveral years of our Lord, 1648. 1649. 1650. 1651. at London and in divers other places within this Commonwealth of England, and elſe-where, together with William Drake late of London Mercer, Henry Jermin late of London Eſquire, Henry Piercy late of London Eſquire, Richard Graves late of London Eſquire, Edward Maſſy late of London Eſq ; John Gibbon late of London Gentleman, &c. and other their complices yet unknown, did traiterouſly and maliciouſly combine and confederate themſelves together, and plot, contrive, and indeavour.
At. Gen.
What ſay you M. Hales?
M. Hales.
Now we find what the inconvenience is of coming to put in our Exceptions, when we have not a cleer copy of the Charge, and that was the cauſe why we did ſubjoyn this, that in caſe any miſtake ariſe by miſtake of the copies, that we may amend: it it is true, we find maliciouſly is in.
At. Gen.
Traiterouſly will be enough.
M. Hales.
I think not, that is ove…; for if it be maliciouſly alledged, that is over. Then the next thing we except to, is, he traiterouſly combined, confederated, and complotted together; it is true, there is plot in it, but there wants the words contrive and indeavour, but that is not the principall matter wee ſtand upon.
The Clerk.
They are in.
M. Hales.
Then that is anſwered too. The next Exception that we take to the Charge is, that the Act upon which this part of the Charge is grounded, ſayes, that he muſt manifeſt it by an overt Act, by an open deed; now we ſay, there is (as we conceive) nothing charged upon him in purſuance of this Act, that is, there is no overt, or open deed laid in the Charge, for the words of the Act are ſo, that if any man ſhall maliciouſly plot, contrive, and endeovour to ſtir up, or raiſe forces againſt the preſent Government, and ſhall declare the ſame by open deed, that then every ſuch offence ſhall be Treaſon.
At. Gen.
If M. Hales hath read the copy of the Charge as it was taken, I think he findes divers of them in the Charge of open acts.
M. Hales.
The buſineſs is not whether there be open deeds, but whether they are applied to this Act, or be Subſtantive Charges of themſelves.
At. Gen.
I would ask him, whether that open act muſt be in the Inditement, or in the Evidence?
M. Hales.
In the Inditement; it muſt be expreſly laid in the Inditement, or els it is no good inditement.
At. Gen.
But for that, that we may not diſpute upon thoſe things, my lord, there are the ſeverall Charges againſt the ſeverall Acts; there are ſeverall open acts that are laid in the Inditement, and (I think) if he look upon it, he will find that they are laid to every one of them, and relate and refer to every one of them.
S. Tho. Wither
There is writing of letters, contributing of money, and receiving of meſſages.
Mr. Hales.
That will appear by the ſubſequent parts of the Charge.
L. Preſ.
The ſubſequent parts of the Charge will make that appear, for if he did lend mony, &c. if they be really there, we ſhall hear it by and by.
M. Hales.
I take it, that the law is very plain, that the Act muſt be mentioned in the Indictment.
At. Gen.
But we will not debate that when we are expreſſe in the thing, we are not ſo tyed to form, as to pin them to every word of it.
The Clerk.
And further to carry on and accompliſh the ſaid wicked practice and deſign; he the ſaid Chriſtopher Love, divers dayes and times between the 29th of March 1650. and the firſt of June in the year of our Lord 1651. at London and other places as aforeſaid, did traiterouſly and maliciouſly give, hold, uſe and maintain correſpondency and intelligence by letters, meſſages, inſtructions, and otherwiſe.
L. Preſ.
Theſe are open acts.
Mr. Hales.
Then favour us in this, we take it that between this, and the firſt Charge, there comes a particular charge, that relates to Charles Stewart, that is intervenient between the firſt charge, and this that is now read, or elſe we are miſ-informed by the Priſoner; and if there be ſo, then we think our Exceptions will take place.
S. Tho. Wither.
It is all contained in one Indictment, and then that that explains the overt act followes afterwards, as a diſtinct thing in the Indictment, and ſo it was in my Lord Cobhams caſe in that Indictment, and in my Lord of Eſſex his caſe.
L. Preſ.
He may make overtures.
M. Hales.
We confeſſe it; but we ſupoſe it very certain, that both as this Act is penn'd, and as the Act of —is penn'd, which are much at one, as to the manner of penning them, there is of neceſſity an overt act to be laid to make good that general Charge; that, we conceive, will be plain; and that is admitted and agreed by the Lord Cook in his collections of the Pleas of the Crown, fol. 12.13. where he ſaith, the Indictment of the Earl of Somerſet, in the time of Edward the 6th, and all other of the like form, were againſt Law, becauſe he ſaid, that he did not follow the words of the act, and that he did it per apertum factum, and ſhews not what that open deed was; that was not a good indictment, for the fact muſt be ſet forth in the indictment; that muſt be done. Then the queſtion is, whether this be ſo done here or no? we conceive by this Charge it is not ſo done here, upon this ground; we ſay, there follows after this a particular charge concerning his promotion of Charles Stewart; and then ſubſequent to that, there follows this that the Court hath now read; we ſay, that in this caſe here is not a charge of an overt act, neither by the one nor by the other; there is not a charge by the former, becauſe that is a diſtinct treaſon made diſtinctly treaſonable by another act; and therfore that which is made a diſtinct charge of treaſon by another act, ſhall not be an overt act within the former: That is one thing we ſay. And another thing we ſay is this, that in this caſe, the ſecond, that is that which the Court hath been pleaſed to direct to be read to us concerning his holding correſpondence, that ſhall not be an overt act relating to the firſt charge; for it is an uncertain relation: for there be two deſignes mentioned before, the one is a deſigne contained in the firſt charge, the other a deſigne contained in the ſecond charge, for the promoting of Charles Stewart; and we ſay, the third ſhall not be coupled up to the former, becauſe it is a diſtinct Charge of Treaſon in it ſelf, and becauſe it is uncertain to which it relates; for it refers not more to the firſt Charge then to the ſecond concerning the promoting of Charles Stewart, that is called the Prince of Wales.
L. Preſ.
For this, I take it for the preſent, that the Charge is founded upon four Statutes, if he lay the offence againſt the firſt, ſecond, third, and fourth, and he ſhall come and conclude it without relation to any particular of theſe Treaſons, he did thus and thus by letters and correſpondencies, that will relate to them every one, though it come but in the concluſion; and though the Statutes be various, yet the indictment is but one, and he may put in this of the overtures in one place ſufficiently, to be a ſufficient overture to every one; and therefore though to one of them there ſhould be no overture in it at all, but valet ut valere poteſt, it will hang upon ſo much, as it will bear an overt act, and then you will not deny but that thoſe words are overtures.
M. Hales.
It is true, they are ſo, but yet ſtill we conceive this third, which we call the third Charge, that is concerning holding correſpondence, the third or fourth, I cannot tell which it is, but it is one of them; we ſay, that that is not an overt Act applied to the firſt Charge: when we come to the ſubſtance of that Charge as it ſtands by it ſelf, then our Exceptions will riſe upon it, as it ſtands ſingly by it ſelf; but we conceive that ſhall not be a ſupplementall Charge to make good that firſt Charge, that is concerning endeavouring to ſubvert the State as it ſtands eſtabliſhed, it ſhall not be uſed as an overt Act to make good the firſt Charge; when we come to that particular Charge, that is concerning the maintaining of correſpondence, whether it be a good Subſtantive Charge of it ſelf, then we ſhall offer our Exceptions to that; but in the mean while we are but upon debate of the firſt, whether the firſt containeth ſuch a Charge, as by the Act of the 17th. of July, 1649. is required.
At. Gen.
My Lord, we are heard before you concerning it, Mr. Hales will find that after all theſe lawes are repeated, and after all his offences againſt thoſe laws are repeated, it is concluded that all are againſt the ſeverall Acts of Parliament, in ſuch caſes made and provided; if Mr. Hales wil ſingle them, …he impeachment doth not, but relates to all of them; and, I think, that in this way of impeachment we are not tyed to thoſe very nice and ſtrict formal rules upon Indictments, but if ſubſtance doth appear, it doth appear to you, my Lord, that in ſubſtance the Acts are purſued, and that upon the whole impeachments there are, even this that is required, the expreſſion of an open deed, an ove…t Act, thoſe are laid, and it will be acknowledged by Mr. Hales, that they are in themſelves ſufficient, being thus expreſt and concluded, that thoſe ſeverall practices and deſigns, and Treaſons, are againſt the form of the ſeverall Statutes, in that caſe made and provided, not in relation to the 17. of July, nor the 2d of Auguſt, but to all of them; and I beleeve that all of theſe facts, all of this Treaſon, all of this Deſign, whether with the Scotch nation, or members of the Scotch nation, or thoſe adhering to the Scots nation, had all but one foundation, the ſubverſion of this preſent Government, that was the foundation and Treaſon of the whole, that was it that was intended; for to bring one in, and not to caſt out the other, would have done no good; but upon the whole, that was the Treaſon; and upon all theſe circumſtances and open deeds, and deſigns, the ſum, though it be a Treaſon to hold correſpondence, though it be a Treaſon to promote Charles Stewart, though it be a Treaſon to do other things, yet the Treaſon is in this, the Scots Nation to come in with intent to ſubvert the Government, Charles Stewart to be made King to ſubvert the Government: ſo that the grand work, at heart, at root, was the ſubverſion of the preſent Government; and as for that, I wiſh heartily for Mr. Love's ſake, there were not ſo many open deeds expreſt by him.
S. Tho. Wither.
Mr. Hales ſpeaks of the Charge, the words are theſe; And further to carry on and accompliſh the ſaid traiterous and wicked Practice and Deſign, he, the ſaid Chriſtopher Love (now this I take to be the overt Act) divers dayes and times between the 29. of March 1650, and the firſt of June 1651 at London and divers other places; as aforeſaid, did Traiterouſly and Maliciouſly, uſe, and hold correſpondence and intelligence by letters (thoſe are open acts) Meſſages, Inſtructions and otherwiſe, to the prejudice of the Commonwealth; and theſe are laid within the time, and not a diſtinct Charge, as Mr. Hales would infer: but they do directly ſet forth an overt act done by Mr. Love.
Mr. Hales.
Is it your Lordſhips pleaſure I ſhould reply any thing, becauſe I come utterly unprovided for it, I muſt profeſſe.
At. Gen.
We may give him this, and one or two more.
L. Preſ.
Go on Maſter Hales, if you have that that is materiall for another reply, do; but take this, Maſter Hales, I take it very ſtrong both in Grammer and Logick too, as well as in Law, that when all the whole charge is radically and fundamentaly but one Treaſon, though there be many branches of it, the Charge hath knit them altogether, and made but one act of ſo many complicated Treaſons as here are, and when he comes to the latter end, if ſome of them were De facto, not by an overt deed publiſhed, yet if he come and prove that it was ſo done by the proofs, that there was correſpondence, and theſe things De facto done, and that charge De facto done, you cannot break it there, to ſay that this fact did not reach to all; for if there be any one, it is ſufficient; but here it is to all, even to that one that you ſpeak of.
At. Gen.
My Lord I ſhall read a word to Mr. Hales, Al which Treaſons and Traiterous and Wicked practiſes and deſigns of him, the ſaid Chriſtopher Love, were, and are to the apparent hazard of the publick peace of this Commonwealth and Free State, Parliament and people of England (Mr. Hales findeth not theſe in any Indictment) and to the manifeſt breach, contempt, and violation of the lawes of this land, and contrary to the form of divers Statutes and Acts of Parliament in ſuch caſe made and provided, in generall, my Lord.
M. Hale.
We conceive, under favour, and we think that it cannot be denyed, that ſuch a concluſion will not ſerve the turn.
At. Gen.
No, not in an Indictment.
Mr. Hale.
If there be a ſubſtantial part of the Charge omitted, that ought to be alledged in fact, it is not the concluſion, that contrary to the form of the Statutes in this caſe made and provided, will help it. My Lord, (I come unprovided) the caſe of my Lord Dyer, that known caſe upon an Indictment for Recuſancy, or for a wilfull or knowing harbouring of a Jeſuite, or Prieſt: Saith my Lord Dyer, It is not enough to ſay, he did harbour him contrary to the form of the Statute,▪ but hee muſt ſay, he did it knowingly: he muſt alledge and purſue the ſubſtantiall words of the Act of Parliament. And ſo again, an Indictment for abſenting from Church; it is not enough to ſay, he did it contrary to the form of the Statute: but that he did it obſtinately. Therefore that generall concluſion, that this was to the hazard of the Commonwealth (it is true, it is an ill thing for any man to do ſuch a thing that is to the hazard of the Commonwealth) but thoſe words ſerve not the Statute neither: and then to ſay at the concluſion, Contrary to the form of divers Statutes, that will not help it, under favour, in caſe of an Indictment. Then Mr. Atturney makes a difference between the caſe of an Indictment, and this Charge. I conceive that in this caſe there is no difference; the matter is the ſame, the one concerns the life of a perſon, and ſo doth the other; the offence is the ſame, the one is a charge of high Treaſon, and ſo is the other. It is true, thoſe formalities that concern the manner of the Triall, thoſe (it is true) are laid by, becauſe here is no Jury to come before your Lordſhip; but your Lordſhip tryeth upon the hearing of the teſtimony, and according to things alledged and proved: But for other matters that eſpecially are ſubſtantially required by the Act of Parliament, wee conceive that thoſe ſhall be ſupplyed no more by an intendment in caſe of a Charge before your Lordſhip, then in caſe of an Indictment for Treaſon: To this I ſhall ſay no more, but leave a word or two to your Lordſhips judgment. For the other thing (we are ſtill but upon the firſt Charge, the firſt Article) it hath firſt of all been inſiſted upon, that an overt act is not neceſſary to be alledged, becauſe ſupplyed by the words of the concluſion, Contrary to the form of the Statute: To that I have anſwered, I conceive, it is not, nor can it be ſupplyed, becauſe it is a ſubſtantiall thing in the very words and bowels of the Act, and cannot be ſupplyed by a generall concluſion. Then it hath been ſaid by Sir Thomas Withrington the States Serjeant, that in this caſe thoſe ſubſequent matters and charges ſhall be an overt act within the Statute; that is that which hee hath read to you; It is in the fourth Article (as I take it) That Chriſtopher Love, divers times between the 29 of March 1650. and the firſt of June 1651. did traiterouſly and malicouſly hold and uſe correſpondence and intelligence by letters and meſſages. But that cannot be; I may ſay it, that is not a ſufficient manifeſtation of an overt Act, becauſe there do precede it theſe particular Charges of Treaſon within particular Acts of Parliament; why then, if ſo be (to maintain his deſigne, for the carrying on of his deſigne aforeſaid) this ſhould be ſaid to relate to the firſt deſigne, why not to the ſecond deſigne, of promoting Charls Stewart to be King? And why not to the third deſigne? So that where there are three ſeverall deſignes before, all made Treaſon by the Acts of Parliament, that cannot be an overt act to make good the firſt part of the Charge, with ſubmiſſion to your Lordſhips judgment. And then another thing wee ſay, That this Charge which Sir Thomas would carry up to the firſt Charge, and make it as an inforcing and overt act within the firſt Charge, that cannot be, for this other reaſon; becauſe it is charged as a traiterous diſtinct act in him. Now we have this learning delivered by Sir Edward Cook in his Comment upon this, in the 25 yeer of Edward the third: That is, where there are ſeverall acts made Treaſon; the one is an act for leavying of warr: Now there the caſe was Treaſon againſt the perſon of the King, Queen, Prince, &c. that one part ſhall not be an overt act in caſe of Indictment, ſhall not be conſtrued as an overt act for the making good of another part; becauſe where all are made equally traiterous, and all are charged as equally traiterous, wee think, with ſubmiſſion, thoſe parts ſhall not be made an overt act to another Treaſon. So when here is a Treaſon made by the Act of the 17 of July, and another by a ſubſequent Act, that which is charged as a Treaſon in the ſubſequent Act, ſhall not be ſaid to be an overt act for the making good of the former: if the former be not a Treaſon able to maintain and ſupport it ſelf, this ſubſequent act ſhall not ſerve as a bolſter to uphold it, and to ſupply that which is laid as a diſtinct treaſon of it ſelf. Now theſe are the three things we inſiſt upon: Firſt, That an overt act is neceſſary to be laid. Secondly, That it is not ſupplyed by the generall concluſion, nor can it be. Next of all, that this act that is here laid to be done, traiterouſly to hold correſpondence and intelligence, it refers no more to the firſt deſigne, then to the ſecond or to the third deſigne, which are charged as three diſtinct Treaſons; and this is charged as a diſtinct and poſitive Treaſon of it ſelf, and therefore ſhall not be carried over as a ſupplement to another.
Att. Gen.
We granting that an overt act is neceſſary to be expreſs'd; grant it ſhould be ſo, but no more but in evidence: and then granting in the next place, that the generall concluſion will not be ſufficient to maintain it, when it is requiſite an open deed ſhould be expreſs'd. Then for the third, I cannot be of his judgment in this way of impeachments; but as we ſee one perſon may commit four or five treaſons, and one act may be an offence againſt four or five Acts of Parliament; and this is the truth: for where the ſeverall acts are repeated, that (my Lord) are thoſe lawes againſt which this treaſon, and this treaſonable practice and deſigne is laid to be; then follows the ſeverall enumerations of thoſe practices, deſignes, and open acts of his now applyed by us. But Mr. Hales would take them and apply them to one ſingly; But I obſerve to your Lordſhip, that thoſe open acts of his are offences by an open act againſt the ſeverall Acts of Parliament; but it ſerves his turn for his Client to apply them ſo: but I hope you will not apply them ſo; but when they come between the offences, and the overt acts follow it, and the concluſion upon the whole, that all thoſe traiterous and wicked practices and deſignes are againſt the ſeverall Acts of Parliament: And if there be an open act ſo expreſs'd in the impeachment, that in law is an open act, ſuppoſe it ſhould be required to be expreſs'd; if there be an open act, then I hope you will be ſatisfied when it hath been well proved; if it be expreſs'd in the Indictment an open act, that I hope will ſatisfie your judgments and conſciences; eſpecially when open acts ſhall appear to you to be an offence againſt the Acts of Parliament. I ſhall leave this to your judgment, and trouble you no further; and you will finde in its place whether it be requiſite or not.
L. Preſ.
That that Mr. Hales ſaid, if it were a thing of abſolute neceſſity in an Indictment, then the concluſion will not help; if the thing were of abſolute neceſſity there charged, and not charged contra formam Statutis, will not do it: but if I underſtand it right, it is fully laid in this Charge, that he did by open and overt acts do the thing; it is laid ſo; the words of open act are not, but the value; that is, that he did by writing, by words, by meſſages, by money; and theſe are really overt acts, though hee did not call theſe overt acts; theſe are laid fully in the Charge: and then, if they be laid fully in the Charge, and we ſatisfied in the full proof of that Charge, that we have heard overt acts to maintain it, then I think this cannot come within any of thoſe caſes, that when an eſſentiall thing is left out of an Indictment, there the concluſion will not help: this I conceive ſo far. Then the next, What method or order this can be, by ſetting down the Statutes, and then withall theſe overt acts of letters, of meſſages, of money, will reach to every one of the qualities, that theſe Treaſons are manifeſted by this act; but if it were a treaſon of ſuch a nature, that none of theſe could reach to the manifeſtation of it, then you ſay well; but when theſe words reach to the manifeſtation of every charge laid in the Charge, then it is effectuall and reall, and the concluſion is ſufficient.
Att. Gen.
Before he goes to the next, I ſhall crave your direction in it; for I profeſſe, my Lord, to you, that I in drawing the Impeachments, take not my ſelf to be ſo ſtrictly tyed to the forms of Indictments in letters and ſyllables; and the forms I have taken and do take, are thoſe that have paſs'd heretofore, and I follow them; and till I receive your direction to the contrary, I take not my ſelf bound but to expreſſe the ſubſtance of that which is laid to his charge, by which hee may know his Offence, and give an anſwer: But to formes, and quiddities, and niceties, I conceive I was not bound to that.
Mr. Hales.
I preſſe not forms, nor quiddities, nor niceties in this buſineſſe. The next is, concerning the charge of promoting the Prince of Wales.
Att. Gen.
No, there is no ſuch thing in it, your copy is amiſſe again; read it.
Mr. Hales.
Our Exception is this, (wee have been but upon the firſt all this while, I take it ſo) the next is, That he did traiterouſly publiſh the ſon of the late King of England, to be King of England (meaning this Commonwealth) without the conſent of the people in Parliament firſt had or ſignified by ordinance to that purpoſe. I think wee ſhall not trouble your Lordſhip much with that; for if that be as our copie is; it is true, it is not well laid; but if it be never ſo well laid, I conceive, as I am informed, there is nothing of that endeavoured to be proved.
Att. Gen.
That we leave to the Court, Mr. Hales.
Mr. Hales.
Then the next is, that to accompliſh the ſaid traiterous and wicked deſigne, Chriſtopher Love did at ſeverall dayes in the yeers aforeſaid, traiterouſly and wickedly adviſe the Scots. Our exception to that is this, There is a treaſonable aſſiſtance charged in ſome of the yeers that were before the making of the Act that did prohibit it.
At. Gen.
And afterwards too, M. Hales.
Mr. Hales.
It layes it in ſome of the yeers before the making of the Act, and that is ſufficient to invalidate this Charge.
The Clerk.
And further to carry on and accompliſh the ſaid traiterous and wicked practice and deſigne, he the ſaid Chriſtopher Love, ſeverall dayes and times in the reſpective yeers aforeſaid, at London and divers other places within this Commonwealth of England, and elſewhere as aforeſaid, together with the ſaid William Drake, Henry Jermin, and others their complices aforeſaid, did traiterouſly and maliciouſly invite, aid, and aſſiſt the Scots, being forreigners and ſtrangers, to invade this Commonwealth of England, and hath adhered to the forces raiſed by the enemies of the Parliament and Commonwealth aforeſaid, and Keepers of the Liberties of England as aforeſaid.
At. Gen.
You will finde this in a Statute before this.
Mr. Hales.
Not before the 17 of July 1649. and then your Charge is repugnant, you charge us for an offence which is precedent to the ſtatute.
At. Gen.
For that, you go and take them and pick them; but we lay them all together: the…e were Treaſons he committed in 1648. and that which I pitch upon ſtill is this (that Mr. Hales thought was waved) that this man did not promote the intereſt of Charles Stewart late King, or that he had not endeavoured a ſubverſion of this Government; I lay that againſt this Act made in 1648. then by conſequence to maintain that, he did it to promote his intereſt, and to ſubvert the Government; and there was a law in 1648 that did inhibit that; there is a law inhibits the calling in of ſtrangers; and it follows by that, that he who calls in ſtrangers may promote the intereſt of Charles Stewart too; and that foundation is to this purpoſe, that he did promote him to have been King of England: and you know what he expreſs'd to you, what tenderneſs of conſcience he had to take care that he might not go elſewhere.
Mr. Hales.
If it be ſo, then we muſt deſire, That part of the charge may be read.
At. Gen.
I have not charged them, nor untill I receive command, ſhall I vary from what I have received formerly, that I ſhall charge this to be againſt this, and that againſt that; but I have laid down the Acts of Parliament that have made things Treaſon, and the offences ſeverally, and upon the whole conclude that theſe are treaſons againſt ſeverall Acts of Parliament ſeverally; if one or all together ſerve turn, I hold it well enough. If you put me to every one of them particularly, I muſt have more time, and better Clerks to draw the Inditements.
Mr. Hales.
Stil the ſame objection meeteth (with ſubmiſſion to the Court and Mr. Atturney, the ſame objection meets) with them; we ſay then, he will make this a kinde of an additionall Charge to the firſt, or to the ſecond, or to both; but we know not to which.
Att. Gen.
Yes.
Mr. Hales.
But we ſay that that is not ſufficient, upon theſe reaſons, becauſe it is a charge of treaſon in it ſelf, and therfore ſhall not be made an additionall and ſupplementall charge to make out another. And then we ſay, that this is uncertainly charged, whether you will make it ſupplementall to the firſt charge of Treaſon, that is, the endeavouring of the ſubverſion of the Commonwealth; or to the ſecond charge of Treaſon, which is a diſtinct charge of treaſon, of the promotion of the intereſt of Charles Stewart.
Att. Gen.
I cannot divide them.
L. Preſ.
Are not theſe as perfect as before? doth not the ſubverſion of this Commonwealth promote the intereſt of Charls Stewart? and doth not the promotion of Charls Stewart ſubvert the intereſt of this Commonwealth? If he hath laid it, that he did both of theſe by aſſuming it, by a double or multiplyed act, and all theſe multiplyed acts are but one ſubverſion; if I ſubvert it by one, or by 20 acts, both of them are the ſame in nature; for the ſubverſion of the one, is the bringing in of the other; and the bringing in of the one is the ſubverſion of the other; and ſo they are relatives fully one to the other, and there cannot be more expreſs'd in the Charge then this: And notwithſtanding all theſe acts, though that act hath made the Treaſon, cannot it be by another act? you may proſecute by vertue of this ſubſequent act, any thing that was underſtood to be generall treaſon by the law of the Land.
Mr. Hales.
My Lord, this is that we inſiſt upon. It is true, we do conceive, though the promotion of the intereſt of Cha. Stewart is not conſiſtent with the preſervation of the intereſt of the Commonwealth; yet every deſtruction of the intereſt of the Commonwealth is not therfore a promotion of the intereſt of Charles Stewart; for then there could be no Treaſon againſt the Commonwealth, but it muſt be a promotion of the others intereſt. Now there may be a Treaſon againſt the Commonwealth without the promotion of the others intereſt. I urge it to this purpoſe, to make it appear, that they are ſeverall Charges bottomed upon ſeverall Acts, and therefore the reference here made to promote the deſigne aforeſaid, is uncertain to which it ſhall relate; it may fall out the partie may be guilty upon the firſt Article; it may fall out, he is not guilty upon the ſecond Article, and then it is uncertain to which article it relates, that hee is guilty of, or not guilty of: and here may be the conſequence of it, then you will make a Treaſon, which to this third clauſe is a Subſtantive, and contained in it ſelf, to be an overt act to another charge of Treaſon, and that you cannot do: you cannot make a Treaſon which is ſo charged, to be an overt act, or expoſition, or a declaration of that which is contained in the former, like that caſe I inſtanced in before, of the 25 of Edward the 3d, That no man ſhall go about to deſtroy the perſon of the King, nor to raiſe war againſt his people: ſo that we uſe it not in any other reference, but onelyonly to explain and bring the reaſon of that ancient Law to this Law: In that caſe a man cannot charge the overt act of going about to deſtroy his perſon, which is a diſtinct Treaſon of it ſelf, to be an overt act to the Charge of Levying war, which is another diſtinct Treaſon: And if he alledg, ſuch a one did go about to deſtroy the Prince, or the Conſort of the King, or the King, and to make the levying of war to be an overt act to it, this he cannot do; becauſe though it is true, it might be an overt act to it, yet notwithſtanding, it being made a diſtinct treaſon, it cannot be an overt act to another treaſon: and ſo here, this very aſſiſting and inviting of forces is made a diſtinct treaſon; and ſo if you take it ſubſtantively, it is inſufficiently laid; and if relatively, you may not do ſo, becauſe it is a treaſon of it ſelf, and ſhall not be brought in relation to another treaſon laid before it.
Att. Gen.
For that, I hope Mr. Hales will leave me to that liberty I have, that is, that if one act be an offence againſt ſeverall Acts, I may aggravate it ſo, as to make him know it is ſo; and I take it for an aggravation of his offence, when he hath offended againſt ſo many ſeveral Lawes, which he hath done; and that I may have liberty to ſay ſo, though perhaps that ſubverſion of this Government is not in every reſpect a promoting of the intereſt of Charls Stewart; but the ſubverſion of this Government, as it is here laid in this inditement, is a promotion of the intereſt of Charles Stewart: and ſo it is here. And I have done now with that.
L. Preſ.
Then (Mr. Hales) I will add a word, becauſe that you did put the caſe of a man deſtroying the perſon of a King, and Levying of war; if it be laid, thoſe very acts, if they be laid as a continued, or a medium, or an enterprize, that he had taken up a war to deſtroy the perſon of the King; thoſe words in one ſenſe, if it had been laid ſolitarily by it ſelf, and deſtroying the King in another; but if he ſhewed that by levying of war he endeavoured it, then the denomination is from the end in that place; and though they be two treaſons ſubſtantively, yet when they are laid as one continued act, they are but one: and ſo it is in this caſe; all theſe, though there are ſeveral ſtatutes, and ſeveral treaſons, theſe multiplyed acts make up but one compleat in the concluſion: if there want one of theſe, if there be ſufficient in the other, it is treaſon enough, and too much too (I would it were not ſo) if they be laid in ſubordination, as all theſe are, every one of them further to promote this, and to promote that; ſo they are laid in promotion of it to every one; and then they are contiguous, and depend one upon another, and are ſubſtantive, and ſo ſubſtantiall, as that they may be relatives one to another, and ſo are theſe.
Att. Gen.
The next, Mr. Hales.
M. Hales.
The next is the 4 Charge; and that is, concerning holding correſpondence by letters & meſſages, with Charls Stewart and the late Queen his mother; we ſay, that this part of the Charge is ill laid alſo; it is laid in nature of a felony by the Act, and laid to be done traiterouſly in the Charge; and that is a ſubſtantial (not a meer formality, but a ſubſtantial) miſtake; for if ſo be a woman be indited of petty treaſon becauſe it is proditoria, yet in truth it amounts but to felony; now in caſe where ſhe is an acceſſary to a felony, the inditement is naught: if a man be accuſed that he did traiterouſly ſuch an action, which in it ſelf amounts but to a felony, that charge is naught; and ſo it is here, it is miſlaid: for by the act of the 26 of March 1650, the matters therein charged are not made treaſon, at moſt but capital; but we think it only prohibited, and then we ſay it is an uncertain charge: and ſo it is, under favour; for though the act ſaith, No man ſhal hold correſpondence by letters, meſſages, or otherwiſe; yet when we come to inform upon it, or to indite upon it, it is not enough to ſay, He held correſpondence by letters, meſſages, or otherwiſe; but if you will ground your deed upon that Act, you muſt ſhew what that otherwiſe is, and that is the exception to that part of the Charge.
The Clerk.
And further to carry on the ſaid traiterous and wicked practice and deſigne, he the ſaid Chriſtopher Love divers dayes and times, between the the 29 of March, 1650. and the firſt of June 1651, at London and other places, as aforeſaid, did Traiterouſly and Maliciouſly give, hold, uſe, and maintain correſpondence and intelligence by letters, meſſages, inſtructions and otherwiſe.
Mr. Hales.
Or otherwiſe was our notes, then that is out of doors, but our Exception is, that it is alledged to be done Traiterouſly.
L. Preſ.
And the Statute ſaith it ſhall be Treaſon.
M. Hales.
No it ſaith not ſo, the Act layes it only in nature of a Felony, and in the Charge it is laid to be done Traiterouſly, and ſo the Charge is miſlaid.
At. Gen.
I confeſſe it is expreſſe ſo in the 26. of March 1650. and it is not ſaid what the offence is, but I conceive in the firſt place, that by the law of England, be that holds correſpondence with a Traitor, will go very near it, my Lord; and the… I humbly conceive, that ſtill he going upon the firſt Act, it is laid to be with Charles Stewart, and th… Queen and Councell with him (I think) it is a promoting of his intereſt; he to hold a correſpondence with him, whom the Parliament hath ſaid, you ſhall in no caſe promote his intereſt.
Mr. Hales.
I muſt be bold ſtill a little, to crave Mr. Atturneys favour, to reply upon him in this kind of way, for I have not had time.
At. Gen.
You have had more time then I, for I heard not of it till now.
Mr. Hales.
We ſay, the Charge is not good becauſe it is made Felony only by the Act, and laid in the Charge to be done traiterouſly; and then we ſay, that Charge is uncertain to what deſigne it relates; if it relates to the buſineſſe concerning the promoting of Charles Stewart's intereſt, if it be ſo, we conceive it is not proved; for the proof I mention not, but that is not inſiſted upon, that Maſter Love did promote the intereſt of Charles Stewart, contrary to the Act of Parliament, that (I think) is not inſiſted upon,
Att. Gen.
O yes.
Mr. Hales.
I conceive, no.
Att. Gen.
I conceive very much otherwiſe, Mr. Hales.
Mr. Hales.
I deſire that Charge once more may be read concerning the promoting the intereſt of Charles Stewart.
The Clerk.
And the better to carry on and accompliſh the ſaid Traiterous and Wicked Practice and Deſign, he the ſaid Chriſtopher Love, with the ſaid William Drake, &c. (ſince the death of Charles Stewart, late King of England, who for his notorious Treaſons, and other Tyrannies and Murders by him committed, in the late unnaturall and cruell warrs, was by Authority derived from the Parliament, juſtly condemned to death, and executed) ſeverall dayes and times, in the reſpective years aforeſaid, at London aforeſaid, and ſundry other places within this Commonwealth and ſince this Nation was ſetled in the way of a Commonwealth or a Free State, as aforeſaid, did Traiterouſly declare, publiſh, and promote Charles Stewart, eldeſt ſon to the late King, to be King of England.
Mr. Hales.
We are informed, that there is nothing of any particular act of his, concerning that; but we have nothing to do with the Fact, but we conceive that no ſubſequent thing by way of conſtruction or interpretation, ſhall make a publiſhing and promoting in ſuch a manner as this is, it muſt be ſuch a thing as expreſly publiſheth and promotes him to be the chief Magiſtrate of England, according to the words of the Act, and not by way of dilation; we ſay, this is not a thing to be applyed to ſerve the turne, upon this reaſon; we ſay, that the holding of correſpondence and intelligence with Charles Stewart, eldeſt ſon to the late King, it cannot be coupled on to the promotion of the intereſt of Charles Stewart to be King of England, ſeeing that is but by way of interpretation to bring it within the firſt part of the Act.
Att. Gen.
For that I ſhall crave your direction.
L. Preſ.
It is not interpretative, but poſitive.
Att. Gen.
But I ſhall ſhall crave your pleaſure, whether I ſhall in my impeachments afterwards put in all my evidence; what is charged, and evidence proves, that you will judge upon I hope.
Mr. Hales.
then the next part of the Charge, and that is the fifth, that he did hold correſpondence with divers perſons of the Scots nation; our Exception to that is plain, we conceive, that part of it is not well laid neither, it is not laid in purſuance of the Act of Parliament, as our notes are, this is that we ſay, that it is not expreſly alledged, that they were perſons reſiding in Scotland, as our notes are.
Att. Gen.
Like enough ſo, Sir.
The Clerk.
And further to carry on and accompliſh the ſaid Traiterouſ and Wicked Deſign, he the ſaid Chriſtopher Love, ſeverall dayes and times in the reſpective years aforeſaid, at London aforeſaid, and divers other places within this Commonwealth of England and elſewhere, as aforeſaid, did Traiterouſly and Maliciouſly hold and maintain, correſpondence and intelligence with divers perſons of the Scots Nation, viz. with the Earle of Argile, Lowden, Louthian, Bayly, Belcarris, and divers other perſons if the Scots, and other Nations, whom he well knew to adhere to the Scots Nation in this war againſt the Parliament and Commonwealth of England.
Mr. Hales.
This we conceive, is not a good charge, for the words of the Act of the 2d of Auguſt 1650, upon which this is grounded, are, that no man ſhall hold correſpondence with the Scots Nation reſiding in Scotland.
Att. Gen.
You were beſt read further, Mr. Hales.
Then Mr. Hales read part of that Act, beginning at theſe words, [Be it Enacted, Ordained, and declared by this preſent Parliament] and ending with theſe words, [Without the allowance, licenſe, &c.
Mr. Hales.
It is true, there is no reſiding; for that yet comes not home, we conceive, to part of the Charge; there are two parts of the Charge, the one, That he did maintain correſpondence with divers of the Scottiſh Nation, and with divers other perſons of divers other Nations, whom he well knew to adhere to the Scots Nation in this warr againſt the Parliament. As to the firſt, that is out of doors; then here is no full charge of holding any correſpondence with any of the Scots Nation; for that part of the Charge reſts upon this, that it muſt be with holding of correſpondence with any ſuch perſons as are reſiding in Scotland, and with any other perſon reſiding there. Then as to the other part—
L. Preſ.
It is a continued ſpeech, not with the Scots nor any other.
Mr. Hales.
Then here is another thing in it, that it is not averred that ſuch correſpondence and intelligence was held without the licenſe of Parliament.
Att. Gen.
You are miſtaken in that, your notes are not true.
The Clerk.
And he the ſaid Chriſtopher Love, within the times, and at the places before mentioned, did Traiterouſly aſſiſt, incourage, without the ſpeciall licenſe of the Councell of State, or Parliament, or Captain Generall of the Parliaments Forces.
M. Hales.
We ſay then, theſe are two diſtinct Charges, and grounded upon two diſtinct parts of an Act, but there is this more in it, which we conceive is not to be anſwered, with ſubmiſſion, under favour, it is ſaid he did it within the times aforeſaid, the times that are aforeſaid, are between the 29 of March 1650, and June 1651; now this Act whereby this is made traiterous or Treaſonable, takes not place till the 5. of Aug. 1650, ſo that it might be done within the times aforeſaid, that is, between the 29 of March 1650, and June 1651, and yet not contrary to the Act of the 2d of Auguſt, which was 1650
S. Tho. Wither.
We lay it within all the times aforeſaid, and, I ſuppoſe, the matter of the evidence hath told you the times, which now we are not to diſpute.
Mr. Hales.
Whatſoever is done between the 29 of March 1650, and the 2d of Auguſt 1650, is not done contrary to the Act of the 2d of Auguſt 1650, upon which Act this Charge is grounded; there is a time between them, and between the time of exhibiting of theſe Articles: whatſoever is ſaid to be done between the 29 of March 1650, and the exhibiting the Articles is not ſaid to be done after the 2d of Aug. 1650; for if it be done between the 29 of March and the 2d of Aug. it is done within the time aforeſaid, that is, between the 29 of March 1650 and June 1651, and yet not done contrary to the Act of the 2d of Auguſt, becauſe done before the Act came forth.
Att. Gen.
Though Mr. Hales will not conſent to it, we will ſtrike out the 29. of March, and then he will not deny but that is good enough, with that ſtriken out, before the firſt of June 1651. whether it be not good enough, and no time laid before it?
Mr. Hales.
No indeed, it is not good enough.
At. Gen.
Why not? it is after the offence committed.
Mr. Hales.
Becauſe it may as well be before the Act as after the Act.
At. Gen.
If we lay it after the offence committed, I ſuppoſe it is well enough, and the wiſeſt will think ſo; lay it to be the firſt of June 1651; ſuppoſe it were in September before, it is good enough.
Mr. Hales.
If you lay it upon the firſt of June, it is a year, before it is not good enough.
Att Gen.
That that Mr. Hales inſiſts upon, he may ſay it is before the firſt of June 1651 ſo long ſince, but in a juſt and reaſonable intendment, when we inſiſt upon that law that makes it Treaſon to hold it after ſuch a time, and we ſay that before the firſt of June 1651. he did commit Treaſon in holding correſpondence, and ſending proviſions of war before that Law, though it were before the ſecond of Auguſt, 1650. that were not againſt that Law.
M. Hales.
Still we ſay, that contrary to the form of the Statute, or contrary to the forme of the Law, which is but the concluſion, ſhall not ſupply that which is materiall to be alledged: now when here is an Act laid to be done, certainly it is materiall, to alledge that it is done in ſuch a time as may appeare to be after the time of the prohibition of it to be done; the prohibition runs to the ſecond of Auguſt, 1650. that no man after the fifth of that Auguſt ſhall doe ſuch an act; then it muſt be laid to be an act done after the fifth of that Auguſt; but it is not laid ſo here, but laid ſo as may be intended to bee done before the fifth of Auguſt; for here is a time laid between the 29. of March, 1650. and the time of the exhibiting the Articles which is in June, 1651. and that he did this within the time aforeſaid; now he that ſaith he did it the 30. of March, ſaith he did it within the time aforeſaid, and yet ſaith not that is within the Act.
Sir Tho. Withrington.
We have given an anſwer to that, we have laid it within, and without the time, that it is within the time, the witneſſe doth prove it, and M Hales ſpeaks not to what we have proved, and cannot ſpeak to it.
Mr. Hales
The proof ſhall never ſupply the inſufficiency of the Charge; for we may as intirely offer you an Exception to this matter, after you have heard the proof, as before you have heard it; for it ſtands now as upon the Charge ſingly, ſo that it ſhall not be ſupplyed out of matter that appears in the proof, but it muſt be conſidered whether the Charge can ſupply it ſelf or not; for that that is alledgable againſt the Charge before the proof made, is alledgable as well afterwards; if it were not good before the proof, the proof ſhall not be ſupplementall to it; for upon that reaſon, if an Inditement did want time, or certainty, then after the party were heard upon his Defence, it might be ſaid when this Exception was taken to the Inditement, all this might appear upon the Evidence, but that will not ſupply the defect of the Indictment.
At. Gen.
I am ſure wee have laid it late enough, the firſt of June, 1651. before that time, and Mr. Hales his Exception is ſtill upon that way of proceedings upon Indictments; he muſt have that poſitive and ſtrict certainty in it in each particular, I muſt give it that anſwer ſtill, that if you do in theſe caſes put me to it, to expreſs every particular circumſtance of every particular fact, and every particular time, and that it muſt conduce in the concluſion of it, I muſt make you Impeachments that will not be fit for you to read nor hear; but under favour, if that it contains in it in this way of Charge that convenient certainty, that conveniency that may put the priſoner to the knowledge of it, and to prove it; for this relates not ſingly, for if I ſhould go that way M. Hales hath laboured to draw me, that is to take every one of theſe ſeverally, and that I muſt make a diſtinct Charge upon one, and upon the other, and a diſtinct Evidence upon one, and upon the others I conceive theſe run quite through all the laws every one of them; had I confined this now between the 5. of Auguſt 1650. and June 1651. then what had become of all the laws before that time? therefore to make them relative to all, I have expreſs'd ſuch a time as may relate to all; for had I confined it ſingly upon this or that act, whereas I humbly conceive, that theſe acts and theſe offences of M. Love are relative to more than one Act of Parliament, and go to ſeverall acts; and therefore I cannot confine my ſelf to one act, and ſay, it was done at ſuch a time, and there limit it and let it die; but my indeavour hath been, and upon this particular we debated it, when we did draw it, we put it ſo, that the ſeverall acts may have the ſeverall effects, and M. Loves Treaſons look upon every one of them, and they upon every one of his Treaſons, and as his offences run through, and againſt all the acts, ſo muſt our laying it upon him run, and the evidence alſo; and though we took care to lay it back far enough, that was to the firſt of June, 1651. and ſo laid it high enough to the other that it might reach the reſt, and in this way we are not tied ſo to expreſs it in every particular, as other Indictments run.
M Hall Att. of the Dutchy.
He would charge it upon the times between the 29. of March, and the 1. of June, that be not the times that we have expreſt in this, for it is that within the times aforeſaid we have poſitively laid, that it was in the year 1651. for we have laid before that in the year 1648, 1649, 1650, 1651. then in the times aforeſaid, we have poſitively laid, that this fact was done in the yeare 1651. which of neceſſity muſt bee ſince that Act concerning the Scots was made, and that I conceive is an expreſs poſitive time mentioned in the Charge, and gives a full anſwer to that objection; for it is not within ſuch a time, but in the year 1651.
M. Hales.
That Charge is within the times aforeſaid, which is laſt mentioned, between March 1650. and 1651.
Mr. Hall.
That we ſhall ſubmit to the Court, whether in the ſame times aforeſaid, ſhall not relate to all the times before-mentioned, as well as the particular times he hath picked out; for we mention that in the year 1651. theſe things were done.
At. Gen.
For that I have given you that that is the generall anſwer, if I be put to it, whereas Mr. Love had tranſgreſſed againſt thoſe ſeverall Acts of Parliament, we have put it ſo, that we conceive his offences run through them all, and ſo we have laid them, and (I hope) we are not upon thoſe Nicities, that we muſt expreſs the direct daies and times, as Indictments run, but here is enough to make him know his offences.
L. Preſ.
I conceive it is much better as it is too, and more obvious to every underſtanding, and their interpretation, then as you would have it, a great deale; for the neceſſities of the day it is not materiall, that you will agree, nor the week if they lay a time ſo many moneths before, or after, if the proof come and fall within the compaſs of the Charge, as the proof is laid, ſo is the fact, the proof determines whether it were within the times without the Law, or within the times aforeſaid; for it is not within that time, and every of them, but within the times generally laid, all thoſe acts were done, and thoſe muſt be laid in particular, which was at one time, and one at another, which were two yeers a brewing, and are by the proofs laid in generall, that is beſt to ſay, one fact was done at one time, and another at another time, and at ſuch a time, and not at ſuch a time, it can be no mans judgement to be ſo laid in an Indictment or Charge, but they muſt be laid thus in generall, and the Evidence muſt make it particular, that it was within the times that are laid, as when there are no times, as from March to June and Auguſt, and after if they be both laid, if the fact be within ſuch a time that is within the law, all the other is out of doors.
M. Hales.
My Lord, thus if it pleaſe your Lordſhip, I think with ſubmiſſion to your Lordſhips judgment, that in ſuch a caſe it is not in the proof to make good a Charge; if the Charge do not containe a ſufficient certainty, it is not in the proofe to make it good. My Lord, I inſiſt now upon the neceſsity of a day to be preciſely laid; I know (though it is true, it hath been otherwiſe held in ſome caſes) yet, in a caſe of this nature, the day is now materiall, for now we are upon an Act of Parliament: As now, if ſo be the Statute of the 29th. of Elizabenh enacts that every man that ſhall knowingly entertain a Jeſuite, that that man ſhall be a Traytor, ſhall ſtand guilty of Treaſon; if ſo be a man would ſay in an Indictment that ſuch a man between the 28th. of November, in the 28th. year of the Queen, and the 28. of December in the 29. year of the Queen, did entertain ſuch a Jeſuite, this Indictment would be naught, not upon the uncertainty of the day, but becauſe it takes in a time which is not prohibited by the Statute, the Inditement may be true that he did receive a Jeſuit within that time, and yet that he did not receive him contrary to the form of … …atute, and to ſay in the concluſion contrary to the form of the Statute will not help it, for that is ou… objection, that it is not done contrary to the form of the Statute, becauſe it takes in ſuch a time, as that it might be done before the Statute came forth; we ſay, that when there is a time laid between the 29. of March 1650, and June, 1651. and that within that time he did do thus, and thus, that there is the fault, it doth over-reach the time of the prohibition of the Statute, for any thing appears to the Court, the Court may finde the Inditement or Information true, that he did it within this time, that is, between the 29. of March 1650. and June, 1651. and yet for all that, the party not in fault to be impeached, becauſe he might not do it contrary to the Act, for he might do it between the 29. of March, 1650. and June, 1651. and yet do it before the Act came forth, which was in Auguſt, 1650.
M. Hall.
My Lord, I conceive M. Hales hath not anſwered that I alledged; but now if there were no other times mentioned in all the Charge, but onelyonly between the 29 of March and June, 1651. then it were ſomewhat; but when the times are expreſs'd before, though that it was in the year 1651. and then we ſay in the times beforeſaid, I conceive that in the times aforeſaid ſhall relate expreſly to that time in the year, 1651. and then it muſt be within the Act.
M. Hales.
That cannot be, that will make the Charge worſe.
L. Preſ.
That I conceive you are upon is this, the very Letter of the Charge; for you ſay at this time that is laid, he could not be a Traytor, and you joyn it with a time in which he might be a Traytor; This (you ſay) they lay in the Inditement, that he did in ſuch a time of March, and afterwards, and at that time there was no law to prohibite it, and ſo that could not be a crime againſt him, and this, you ſay, no proof will help it, I take it, M. Hales, this is the ſubſtance; but if this be thus laid, and the proof doth come in, this is very eſſentiall in my judgement, when upon the matter, if this be as you ſee it appears upon the face of the thing, that the proof muſt go to that time within the Law, and therefore that will not vitiate at all ſuch an Inditement, if it were ſo as you ſay; but I take it, that this being complicated with more Lawes, as I ſaid before, though he were not guilty upon this, yet in the concluſion he is found guilty of that which is as to other offences.
Att. Gen.
I ſhall ſay but this, wee all know that a time is expreſs'd but for formality, and that time that is expreſs'd is not materall, ſo it be laid far back enough; but if I lay it in June, and prove it in June twelve months, it is time enough for this, as your Lordſhip was ſaying: that which I do ſay, is, that I cannot confine not this very act that is ſuppoſed to be, and yet not laid to be againſt that Act of the ſecond of Auguſt 1650. from this clauſe in expreſſe terms, not ſingly: But that which I humbly inſiſt upon is this, that never a one of theſe offences ſingly tranſgreſſe one ſingle Law, but is an offence againſt ſeverall Lawes. I conceive, I had done my ſelf and the Commonwealth wrong, had I limited it to any one; for his complying with the Scots, and joyning with them, and contributing with them, and receiving intelligence, it is more then againſt that ſingle Act; it is promotion of his intereſt, and ſubverſion of the Government, and againſt every one of the laws: And therefore, I conceive, I had not done right to the place I am entruſted with, if I ſhould have laid it ſingly; but he is indited, that as a falſe traitor he hath done theſe things; that is the preamble: and then wee ininſtanced the particulars, and give a time, which time he will acknowledg is not poſitively neceſſary to be true, that that time muſt be the day the fact was committed, but if it be before, it is enough: But he infers, becauſe this ſeems to be an offence within the Statute of the ſecond of Auguſt 1650. and is laid between the 29 of March 1650, and the firſt of June 1651. and ſo whether this can relate to that Act; and by evidence you know it is afterwards; but this being an offence againſt ſeverall Laws, I cannot charge it to be againſt one Law: but the art is now, as Mr. Love began, to take it aſunder, and ſingly, and then it is nothing; and Mr. Hales takes it ſingly. It is not againſt this, nor againſt this; but it is againſt every one of them, and not againſt this ſingly, but againſt the reſt of them.
S. Tho. Wither.
My Lord, it cannot be contrary to the forme of the Statute, unleſſe it be done after the time, ſo that the concluſion ſhews it was laid within the time, but for that caſe, as Mr. Hales inſtanced in, he puts a caſe of one Act of Parliament, we are now upon offences againſt ſeverall Acts of Parliament, in that caſe of retaining a Jeſuite, he is a Traitor by the Act of the 29 of Elizabeth, ſo that if he laies it between the 28 of the Queen, and the 29. if the Jury find that hee did retaine him knowingly on the 10. of May 29. then it will not be denyed, but that it is an offence againſt the Statute.
Mr. Hales.
But ſtill we ſay the Inditement is naught in that caſe, becauſe it takes in a time which was before the Act came forth, ſo that the party might do it within the time expreſt in the inditement, and yet not do it contrary to the Act, and this is our caſe.
At. Gen.
My Lord, you have heard us for that.
Mr. Hales.
The laſt thing is concerning contribution to Silas Titus, and Sterks a Scotchman; and to that we have the ſame Exception, that that is not made Treaſon by any Act of Parliament, and therefore it is miſlaid to be done Traiterouſly, for the Statute of the 26 of March 1650, only prohibits it, and ſo makes it penalt, but not Treaſon. But then we ſay againe, it is laid very uncertainly too; that is, at the times before mentioned; if Mr. Atturney of the Dutchie his conſtructions ſhould ſtand, that is, that the times before mentioned refer to the time paſt, then he may refer to a time before the Act. But we conceive the thing it ſelfe is not Treaſon by the Act, but only prohibited; and we conceive, under favour ſtill, that by way of reduction to any of the former Charges, this ſhall not be made as an inſtance or an overt act by way of reduction to any of the former Charges, becauſe it is charged particularly to be traiterouſly done, becauſe there are ſeverall charges of Treaſon before, and that which Mr. Atturny was pleaſed to obſerve upon another occaſion, that in this caſe the charge is againſt ſeverall Acts of Parliament, it is true, but though it be againſt ſeverall Acts of Parliament, yet it muſt bind & pinch upon one; for we ſay, one Treaſon is not to be made an inſtance to another, and ſo to be made acceſſary, and depending, and accidentall to another, and then we ſay in this caſe, that this being not a Treaſon in it ſelfe, and being as uncertain to which of the former Treaſons it is applyed, it cannot be well laid, nor well applyed, that is, to the laſt, that he did voluntarily relieve Silas Titus, it is not made Treaſon.
Attur. Gen.
It is againſt the Act of the 2. of Auguſt, 1650. in expreſs words: read the Impeachment.
The Clerk.
And further to carry on and accompliſh the ſaid trayterous and wicked practice and deſigne, he the ſaid Chriſtopher Love within the times, and at the places laſt aforeſaid, did trayterouſly and voluntarily relieve the ſaid Silas Titus, Edward Maſſie, Col. Bamfield, one Maſon late of London Gentleman, and one Sterks late of London Gentleman, who then were, and yet are under the power of the Scotch Nation in Arms againſt the Parliament and Common-wealth of England, with monies and ammunition. Which Treaſons and trayterous and wicked practiſes and deſigns of him the ſaid Chriſtopher Love, were and are to the apparant hazard of the publike peace of the Common wealth, and Free-State, Parliament and People of England, and to the manifold breach, contempt, and violation of the Lawes of this Land, and contrary to the forme of divers Statutes and Acts of Parliament in ſuch caſe made and provided.
M. Hales.
Then we ſay, it is uncertainly alledged, and uncertainly laid: but we take it, it is not within the words of the Act, we deſire that Act may be read.
The Clerk.
That ſhall from and after the 5. of Auguſt, 1650. uſe, hold, and maintaine any correſpondence, &c.
M. Hales.
Then this is not within this Act, becauſe that this is concerning ſending to perſons that are in Scotland, I obſerve not that it is charged that they were in Scotland.
At. Gen.
Or ſhall abbet, aſſiſt, countenance or incourage the Scotch Nation, or any other perſon or perſons adhering to them in their war againſt the Common-wealth: What think you of relieving, is not that abbetting and incouraging?
M. Hales.
It ſhould be laid ſo then, I deſire that part of the Charge may be read again.
The Clerk.
And further to carry on, &c.
M. Hales.
My Lord, we think this is not fully charged according to the Act.
At. Gen.
I will read you another of the 26. of March 1650.
M. Hales.
That makes it not Treaſon.
At. Gen.
It comes very neer it, but I inſiſt upon it, it is under the other, relieving them with mony, buying of Arms.
Mr. Hales.
Still the ſame Exception lies upon it, within the times aforeſaid, which certainly cannot be acknowledged.
At. Gen.
We acknowledge the ſame Exception; and the ſame anſwer lies to it, that of the 26. of March 1650. it is, he ſhall ſuffer death, and upon this it is Treaſon upon both together, we cannot divide them, but muſt expreſs them ſo.
Mr. Hales.
Under favour, the one makes it Felony, and the other a Treaſon.
At. Gen.
But it is a deadly one.
L. Preſ.
If a Statute Law makes a thing Felony that was not Felony, or recites a thing that is Felony, and ſaith it ſhall be puniſhed with death, being a petty Larceny, therein you ſay well; but if the Statute recites that that is Treaſon in it ſelfe actually, and ſaith, that they that doe theſe things ſhall ſuffer death, according to the nature of that offence that is formerly recited, and limits it ſo in the recitall, if the recitall be Treaſon in the beginning, and then ſay, that that Trartor ſhall ſuffer death without mercy.
M. Hales.
We have ſhewed our reaſons in the Caſe, my lord, it is as much as we can ſay upon this ſudden concerning this Charge; there are ſome other things that are mentioned here by Mr. Love, as how far forth there be ſufficient Witneſſes, admitting the Charge were good; how far forth the Witneſſes are ſufficient in themſelves; and then whether here bee two concurring Witneſſes to any one act, and whether any thing be more proved then Miſpriſion of treaſon, and concealment of treaſon; theſe are things Mr. Love takes upon him in fact to ſay: And now for thoſe, when the caſe is made, we ſhall be ready to ſpeak to theſe things; for truly it is ſudden and new to me, for theſe matters came not to my knowledg till this morning after eight a clock; that is, concerning the laſt paper he offers to your Lordſhip, and that is, Exception to Witneſſes, proof, and matter of the proof, whether the bare concealment (for thus it is ſtated unto us, the concealment) of any thing that is treaſon whether that be treaſon or no in the party that conceals it; theſe are things that if we were prepared for, we ſhould ſpeak to. Firſt, we conceive by the Statute of primo & quinto Elizabethae, there is a neceſſity in this proceeding before your Lordſhip to have two lawfull and ſufficient Witneſſes. Next of all, we thinke, that if theſe witneſſes be ſuch as he hath ſtated them to be; which whether they be or no, we know not, for we are utterly unacquainted with the evidence, yet we ſhould think they are no ſufficient witneſſes; and then admitting they were ſufficient witneſſes, yet if ſo be one witneſſe ſpeaks to one fact, another to another, we conceive theſe are not ſufficient witneſſes within the Statute, not ſufficient to convict him. And then, if that which they have witneſſed be nothing that amounts to Treaſon, haply committed by others, that makes him not guilty within the Acts. If we had time to underſtand, and digeſt, and conſider, what were the matters that are alledged, we ſhould be able to ſay ſomewhat to it. My Lord, that which we have ſaid, we have ſaid of a ſudden, and ſo it appears becauſe we had not that clear underſtanding of the Charge as otherwiſe we might have had, and ſo have ſaved much of your time.
Att. Gen.
For that that hath been ſaid ſuddenly by Mr. Hales, I ſhall ſuddenly give it this anſwer, he hath had more time then I, he hath ſaid from Mr. Love and not from himſelfe: he ſaith when the caſe is made; I think it will appear then that theſe Exceptions have been made to the Court, that the witneſſes have not been competent neither in quality nor number, they have been ſpoken to; for the witneſſes, the Exception to the quality becauſe they were of the ſame gang, they had a hand in the ſome Treaſon, that was the Exception, I think that will not be allowed to be a legall Exception, they are perſons that (as Mr. Love pretended) had a hand with him in this Fact, and therefore they ſhould not be competent witneſſes; that I ſhall appeal to Mr. Hales's judgment, before conviction and upon a proceeding, whether they may not diſcover (and after conviction) if they be Approvers. For the next, for two witneſſes; when the caſe is made, you will find one, two, three, four, five, ſix, and to moſt of them two, three and four, for ſo I may make bold to ſay, for ſo I read them to you the laſt day. And then for the laſt Exception, that was for the concealment of Treaſon, it is far from it, for I know not what a concealment Mr. Love may intend, I am ſure Mr. Hales will not think that a concealment to run on one, two, or three years, and run on, and ſend letters; that when he acts along with them, and hath the meetings at his houſe continually; moves them to receive money, and contribute; I think hee was the higheſt Actor amongſt them, for the meetings were continually at his houſe, the advices were there reſolved upon debates, there he gave his advice one way, and they another way; I think he will not think this is but miſpriſion of Treaſon; and we never did charge it, nor intend it ſo, but went a little higher.
Mr. Hales.
If that be declared to be inſiſted upon, that the non-revealing of Treaſon, though it be a month or two, or a year or two, can be no Treaſon, then we have done with that queſtion; for then it wil reſt ſingly upon the Fact before your Lordſhip, whether there be any thing more proved, then ſuch a concealment, then it is true, we are diſcharged of that queſtion. But then concerning the proof, if Maſter Atturney will pleaſe to admit, that the proofs are ſuch as Maſter Love hath ſtated in this paper.—
Att. Gen.
That I ſhall not do before hand, but to debate upon the proof, I ſhall crave your Lordſhips directions; I have gone over them already, and it hath been trouble enough to me, if it be your Lordſhips pleaſure I muſt go over the proof again, I ſhall ſubmit to you, but not to him.
L. Preſ.
Mr. Hales, there is no witneſſes that have been heard, but they have been of the ſaid confederacy, that was one Exception Mr. Love made; it was debated at the producing, and over-ruled, and I beleeve your judgement will go well with us, that it was no Exception. Another was, that they have been promiſed rewards, that was likewiſe moved, and over-ruled, the Court was of opinion that they may do it; that if there bee a Treaſon, and there be many correſpondents in it, and one out of remorſe, as ſome of theſe did ſay, that when they had been there they did not like their waies, but went from them, and came to them no more; if this man, or any other man afterwards ſhall come and reveal this, it is in the power of the State either to reward him with monies, and to promiſe him life too, if hee ſhall faithfully do it; and this wee ſay, is a ſtronger caſe then the caſe of an Approver, which afterwards when they became Approvers, they muſt confeſſe the Fact, and ſay they are guilty of the Fact plainely, and openly, and yet then they are good witneſſes to diſcover this, as it was plotted in hell, for this was no other, though they had a vizard upon them, which was no otherwiſe; I ſay, if any one will diſcover ſuch; nay haply it was offered to Maſter Love himſelfe, if he would have done it: I beleeve there was ſome overtures made to him; but this is law too, by the law of this land, which is the law of God; for we have no law practiſed in this land, but is the law of God, and ſo did the Lawyers maintain it before the King in Henry the eighths time, the Popes, Legates, and chief Arch-Biſhops, and Biſhops of England, and did then prove it to them, that there was no law practiſed in England but the law of God, which our Miniſters are loath to touch, and buſie themſelves to ſtudy, but ſtudy the Ceremoniall Lawes of the Jewes, which are Mortua Mortifera, which are not to be practiſed by any other Nation, till they be eſtabliſhed by a law; and that which is the law of God in this land, that hath ſo much preſerved it, theſe they are wilfully ignorant of, and ſay, it is civill; but I ſay, his Chriſtian law: and therefore never diſtinguiſh in a Chriſtian Nation, that the lawes are Morall and Eccleſiaſticall, with that fained diſtinction; but all the Lawes of this Nation are Chriſtian, and ſtand with Evangelicall Truth, as well as With naturall reaſon, and they are founded upon it; and therefore, Maſter Hales, we are here now to go on by theſe lawes, which are the lawes of God, and wee muſt walk in them, as wee would walk to Heaven. And for that you ſpeak of now, Mr. Atturney hath anſwered all the Exceptions every one, and I think for that matter of Fact, every one of them particularly. Mr. Love did take his Exceptions too, and they were over-ruled. Now to come, whether theſe are lawfull witneſſes over again, when it is in matter of Fact, and over-ruled by the judgement of the Court, Maſter Hales will not think that is regular. And then, whether there be two to one point or nor, that is another of your Exceptions; that I take it (Maſter Hales) is not matter of law, but for the Judges to conſider of it; that which ſhould be matter of law, is this, whether that ſingle proofs, ſome to one, and ſome to another, joyned all together do iſſue out all this Treaſon; we want not preſidents for that, for this is a heterogeneall Treaſon, every particular that theſe Statutes make a Treaſon, they are all of them complicated, he hath gone through them all in his act, and we muſt paſſe through them all in our judgments: though every one is particular Treaſon, had it been ſingularly laid by it ſelf; yet now being laid as one concatinated Treaſon, they all of them make but one. For the next, for that of miſpriſion, he is not charged here with miſpriſion at all, but direct Treaſons; and if it be but miſpriſion, we ſhall not for miſpriſion judge him a Traitor upon this Charge; but then, what is in his judgment miſpriſion? if this be nothing but a concealment, I think that the Court upon the Evidence will judge that it is more then a bare concealment, and whether Mr. Hales will think if I be a promoter, and concealer from one to another, and have ſo many continued meetings, whether two or three years together acting with them, & concealing them, for it is not a bare concealment, but a complicated Act; for if it were but a bare notion of it, we ſhould have much ado to prove it, but (I think) the Court is ſatisfied, it is more then notion.
S. Tho. Wither.
I ſhall ſpeak a word to that Mr. Hales moved laſt, whether you will be pleaſed to hear any more of Councels, in theſe three particulars; for, under favour, theſe three particulars concerning the witneſſes, concerning their quality and number, and the Treaſon it ſelfe, theſe are matters of another kind of nature then all the reſt he inſiſted upon, for the reſt are meer matters of Law, upon the formality, and inſufficiency of the Charge; theſe queſtions of the witneſſes, are queſtions that are mixt, for they depend upon the matters in Fact, and cannot be otherwiſe ſtated; now Mr. Love, though he had no Councell appeared before, yet he had in his Defence all theſe Objections too; as of the incompetency of them, becauſe they were participes criminis, and for that I think (under favour of your Lordſhips judgement) he had a full and a cleer anſwer to it, in caſe of an Approver, he is Particeps criminis, and accuſeth men that are Participes criminis, yet that man even ex merito juſtitia, he ſhall be pardoned, ſaith our Law, and therefore that Objection that is made againſt the witneſſes, that they are promiſed rewards and pardon, that is no Objection, for in that caſe the Approver ſhall have his pardon, ex merito juſtitiae. Then for the other point, that is, whether by two witneſſes in ſuch a plot or no, to prove a Treaſonable act, that is, conſiſting meerly upon the matter of fact, that I ſhall not take upon me to repeat, you have heard it; but this I ſaid then, and this I humbly offer now, that if there be two witneſſes, though they concur not in the ſame individuall act, yet if they concur in two acts, concurring to the ſame Treaſon, they prove the ſame Treaſon; if one prove the ſending of letters, and another the ſending of mony, I take it theſe are two witneſſes, though they ſpeak of two diſtinct acts; but in our proof we have gone on to two witneſſes, three or four in moſt points. But then for the miſpriſion of Treaſon, we did apprehend that, that which M. Love himſelf hath confeſſ'd, is Treaſon it ſelf; but Mr. Love is pleaſed to make his own collection upon his owne confeſſion, for I confeſſe my preſence and ſilence after theſe meetings and conſultations; but this I take to be miſpriſion of Treaſon: To this I replyed, we took it to be Treaſon it ſelfe, for our books ſay, a man muſt not ſleep, nor look, back, but go preſently to a Magiſtrate to reveal it; but when a man will not only ſleep upon it, but keep it back, and act in it, this is more then miſpriſion. But our charge is for a Treaſon it ſelfe, and truly Treaſon comprehends a miſpriſion of Treaſon in it, but this point I think neither will come in queſtion now; for we ſay and charge, that it is a treaſon it ſelf, not Miſpriſion; and that collection Mr. Love makes, it is his own, but the judgment is yours, whether it be a Treaſon or not.
Mr. Hales.
If it be your Lordſhips pleaſure we ſhall ſpeak, wee are ready to ſay what we can in the ſhortneſſe of time; but if it be not your Lordſhips pleaſure, we ſhall not ſay it.
At. Gen.
If your Lordſhip pleaſe to declare what he ſhould ſpeak to.
Mr. Hales.
Theſe points, I ſhall onelyonly mention them, I cannot argue them now. This is that I conceive; firſt of all, according as the caſe is ſtated, that is, Whether a perſon menaced, that hee ſhall loſe his life if he diſcover not a particular perſon, and that he ſhall have his life if he do diſcover him; whether ſuch a perſon be a competent witneſſe or no?
Att. Gen.
Hear a word, I appeal then to you, whether any ſuch perſon were produced before you?
Mr. Hales.
Firſt we only go upon what ſuppoſition Mr. Love makes.
Mr. Love.
I humbly crave leave to that effect, to prove that particular.
At. Gen.
No, not now, Sir.
Mr. Hales.
Wee conceive ſuch a perſon is not a competent witneſſe: then that is out of the caſe, it ſhould ſeem, Sir. Truly, then the caſe that is put concerning an Approver, comes not to the queſtion, under favour; for though it is true, an approver at Common law, might be an accuſer; yet we are not now upon a proceeding at the Common law, when we talk of witneſſes now; but we are upon a proceeding how far forth warranted for the witneſſes, by the ſtat. of the firſt and fifth of Ed. 6: ſo that what is ſaid concerning an Approver, comes not to this queſtion; he that may be a competent witneſſe at Common law, he is not a competent witneſſe upon thoſe ſtatutes, for the words of the ſtatute are expreſly, that hee ſhall be a lawfull and a ſufficient witneſſe: and if ſo be that ſuch a caſe were now, it is not to ſample this caſe that is before you, with the caſe of an Approver, which is a bare accuſation at Common law, and where the Jury likewiſe are to have other evidence; for either the defendant may wage his battell, or put himſelf upon his Country; and then it is at the pleaſure of the Jury whether they will beleeve the Approver or no: but by the Act of the firſt and fifth of Edward the Sixth, it is expreſly ſaid, There ſhall be two ſufficient witneſſes in caſe of Treaſon; ſo that that hath made an alteration of what was in the Common law before; one witneſſe was enough before, now two witneſſes are requiſite: and we conceive, the words lawfull and ſufficient conclude ſuch perſons: if there be not any ſuch, we are not to ſay we know, or know not: but if ſo be any perſon is drawn to make ſuch a teſtimony for the preſervation of his life, and ſhall make ſuch an expreſſion, wee think, that though it is true, he is a perſon that is attainted, yet he is a perſon that is thus drawn, and we think he is not ſuch a witneſſe as is intended, eſpecially in ſuch a caſe as this is, where the tryall of the fact is before your Lordſhip, which is both Jury and Judg, to try the fact, and determine the law; and therefore perhaps here will be a more rigorous expectation who ſhould be, and who ſhould not be a ſufficient Witneſſe, then in caſe it were a bare tryall by Jury; there may be thoſe exceptions alledged againſt a witneſſe when the tryall is as now it is, that may not be when a triall is by a Jury; and threfore i… ſo be that a party be thus drawn to teſtifie for the preſervation of his life, we think that this is not ſuch a lawfull and ſufficient Witneſſe as is required in ſuch a caſe. Next of all, it is ſaid in the paper, that they have detected themſelves, being parties of as deep a guilt as the perſon that is accuſed: I will not diſpute that at this time; for it is not the caſe, whether a perſon that is a plotter and confederate with one that commits Treaſon, may be a Witneſſe; but when a perſon is detected by lawfull Authority, before the Charge exhibited, whether ſuch a perſon who is ſo detected, whoſe life is in the hands of the State, be one of theſe competent witneſſes, we muſt leave it to your judgment in that, but we think he is not a competent witneſſe; for there is not a bare accuſation of a perſon, but (as the caſe is ſtated to us) by a perſon that ſhould be examined and confeſſe himſelf guilty of thoſe things whereof Mr. Love is impeached, and that before the Charge is exhibited. My Lord, the next matter is concerning the plurality of witneſſes, the number of them, we think, under favour, with ſubmiſſion, that in this caſe, ſuppoſe the Charge had been ſingly upon one act of Treaſon, wee conceive, that in that caſe there is a neceſſity of two perſons to prove that Charge: If the Charge be upon ſeverall Acts of Treaſon, be the Charge ſo; yet if you will bring them within any one of the acts, you muſt have two Witneſſes to bring them within that act: For ſuppoſe a man were indited of Treaſon heretofore for Levying of war, and another Treaſon for adhering to the Enemies, and another Treaſon for counterfeiting of the Coin, or thoſe kinde of things; theſe are ſeverall Treaſons, though they are all put into one Information, and haply may be put, in caſe of neceſſity, into one Indictment, as here are ſeverall acts put into one Charge. But now a proof of Treaſon within one of the Acts by one Witneſs, and a proof of a Treaſon within another of the Acts by another witneſſe, will not be eſteemed and accounted a proof by two witneſſes; for it muſt be a proof, not that he is within the Charge, but within that part of the Charge upon which he is to be arraigned; and here is not a proving each diſtinct part of the Charge by two witneſſes, as the Statute requires. And then to come neerer, ſuppoſe the Charge were but upon one Act, as that he held correſpondence with the Scots, and did invite them &c. I conceive that in this caſe, under favor, that that particular Act with which you will charge him to be a Traitor within any one law, muſt be proved by two Witneſſes. The Star-chamber courſe I know what it was, that in caſe there were one generall charge, and then it did deſcend to ſeverall particulars, one witneſs would ſerve for one, and another to another, and a third to a third, and theſe ſhould make up two witneſſes to convict the party; but we are not now in a proceeding of Star-chamber, that is laid by, it was not altogether ſo regular in all things: and then, we are not in a thing barely criminal, but in a caſe of life; and not in the caſe of life ordinarily, but in a caſe wherein a party is accuſed of Treaſon, wherein the Statute doth provide that there ſhall be two Witneſſes (as I conceive) to ſwear to the ſame thing, by which you would bring him within it; otherwiſe they ſtand as ſingle Witneſſes every one apart. I have heard of a caſe (I have not had ſo much time as to look into it) concerning Mr. Rolph, indited at Wincheſter; I will not ſo much as repeat over the Caſe upon my credit to the Court; but I take it, it was thus: Hee was indited for ſomewhat about the perſon of the King; one Witneſſe depoſed about the preſenting of a Piſtol, or that he ſaid he would; another about poiſoning, or that he ſaid he would: theſe two things did conclude in one & the ſame act; and though they concluded in one and the ſame as evidences, complicated evidences to make good one Charge, and either of them had been ſufficient, if proved by two; yet as I am informed (this is the inconvenience, upon the ſudden we cannot offer it upon the confidence of our own knowledg, which a little time would make us wholly decline the mentioning of it, or affirm it upon our credit; but this I am informed) was not held a caſe proved by two witneſſes; and if that be ſo, then I conceive theſe ſteps; the firſt will be agreed, that the proof of ſeverall Charges by ſeverall Witneſſes, againſt ſeverall Acts, will not make a proof by two Witneſſes; it muſt be a proof by two Witneſſes againſt one act: therefore the proof of any thing againſt the Act of the 17 of July 1649, and another proof of a thing done againſt the Act of the thirtieth of January 1648; and another for a thing done againſt the Act of the 2d. of Aug. 1650; here the offences are ſeverall, the Treaſons ſeverall, and the Witneſſes to either ſtand ſingly by themſelves: How the caſe of the Fact is upon the proof, I cannot tell; that is, whether this falls out to be the caſe. But again, if the Charge were ſingle, as now upon the Act of the 30 of January 1648, for proclaiming of the King, or promoting the Prince of Wales his intereſt to be King of England; we think, with ſubmiſſion, (which we ſhall leave to your judgment) that in that caſe there is a neceſſity of two Witneſſes to ſpeak to one thing; and not one to ſupply one part, and another to ſupply another: That ſhall be as much as I ſhall ſay concerning that; and I could wiſh that wee had had ſo much time as to look into it, to inquire what the truth of that caſe was which was tryed at Wincheſter, as I take it. Now for the other matter, that is, Whether Miſpriſion of Treaſon, concealment of Treaſon be Treaſon? if that be not inſiſted upon.
Att. Gen.
No, no.
Mr. Hales.
Under favour, the law is, That concealment of Treaſon is not Treaſon; but if that be not inſiſted upon, then the queſtion of the fact is, whether there be any more then a proof of a concealment, or of a Miſpriſion of treaſon; which if ſo be it be not, I can ſay no more.
Att. Gen.
Truly (my Lord) I did intend to ſpeak to that of M. Loves caſe, and as of his making, but not now of his making, but as he hath made it formerly; ſurely, it is a great deal of patience and favour you have afforded him, that for matter of fact and law you have heard it all over again: As for that firſt, of the Competency of the Teſtimony, I ſhall remember his own diviſion; Firſt, of the Charge: Secondly, of the Witneſſes and the Teſtimony: The third, concerning Himſelf: And the fourth, his humble Propoſals to the Court. One part of his Defence was concerning the Witneſſes and Teſtimony, that he made a long defence to; and if it be not good evidence, that parties that are of the ſame robberies may not accuſe their fellow theeves, I think ſome muſt be unhanged that have been hanged: but that I ſhall not ſpeak to, for I think not that Mr. Hales his judgment leads him to it; but if they were threatned, and ſhould be made afraid of their lives, that were ſomewhat; but that is not the caſe here. The next is for two Witneſſes: I might ſay, that by the Common Law of England, one witneſſe was enough before the Law of quinto Edwardi ſexti was made; for elſe it was not needfull to be made; and Mr. Hales knowes again, that as to Triall, thoſe Lawes are repealed; but not to trouble you with theſe things, or to ſay wherein they muſt concur, I did crave the favour of you to read the Witneſſes as they depoſed, and I did tell you when it was by hear-ſay, and when upon knowledge, and when by two, three, and foure, to ſeverall acts of M. Loves own actings, two, three, foure witneſſes, I think they are number enough to accuſe, and detect a perſon of as high quality. And for the laſt, for miſpriſion of Treaſon, M. Love hath ſaid that which never came into my thoughts, that ſuch actings done by M. Love could be judged miſpriſion, he that acted with them, conſulted, and debated, and plotted, gave his judgement one way, moved to raiſe mony, received intelligence, all brought to his houſe, and tranſacted there; I would appeal to M. Hales his judgment, whether this could be miſpriſion of Treaſon, when a party acts in it, hath the meetings at his own houſe, and hath there debates of Commiſſions, and Inſtructions, and Letters, I think this goes as far beyond miſpriſion, as Treaſon is beyond miſpriſion; but ſeeing theſe are new caſes before you, you have ſpent enough of your time, I ſhall not ſpend more to argue the caſes that are not.
M. Love.
I humbly crave leave that ſeeing my councell ſome of them are rejected by the Court, as not fit to plead before you, and ſeeing another of them, M. Maynard, the neceſſity of his affairs is ſuch, he could not be here this day to plead here, and ſeeing this worthy Gentleman came here unprepared, whoſe face I never ſaw till this morning, therefore I humbly pray there may be more time and councell aſſigned me with your favour and leave, that they may fully debate the Argument before you, thoſe matters of the Law which are under his hand, and the hands of the two worthy Gentlemen rejected by you to plead here, that others may be added to M· Hales to plead the matters of Law before you, and that I may have a copy of the Charge.
At. Gen.
I hope wee have had delayes enough, it is with the Court, now wee have done.
M. Love.
And Sir, there are witneſſes here preſent that will prove that which M. Atturney-Generall thought none could prove, to wit not onelyonly generall threats, if they would not confeſſe in the generall, but promiſes of favour, and threatning of death if they would not teſtifie againſt me in particular, and I have manifold Exceptions touching the incompetency not onelyonly of number, but quality; one Witneſs ſaid, he could not in conſcience, and did not ſwear till he was threatned, nay, fined by you, and drawne out of the Court; another Witneſs had money laid to him by Cobbet, which was given his wife, which did ſeem to conceal the bribery the more; but he confeſſed himſelfe that the mony was laid down in his houſe, and given him to make uſe of, and to be the price of my blood (Sir) to teſtifie againſt me: I have Witneſſes to produce, Major Adams ſaid, he ſhould be hanged, if he did not teſtifie againſt me; for he had given information, and been in hire for many moneths together; Major Cobbet, and three other Meſſengers have come to him, and offered him preferment for four moneths together, if hee would reveale what hee calls a deſign againſt the Common-wealth, and he hath not revealed this till he had theſe promiſes of preferment; and did not declare againſt me till he was threatned by death if he did not do it; therefore I beſeech you hear what Witneſſes I can bring in to invalidate the teſtimonies of theſe men.
At. Gen.
My Lord, it ſeems I muſt be for all; now M. Love begins with the Court, that you threatned them, and puniſhed them; I appeale to all here, whether a Witneſſe brought into a Court in matter of property, and refuſe to take his Oath, whether that Court be not bound in iuſtice to puniſh him, and yet if he ſhall ſee his error, and ſubmit himſelf to do that which to juſtice belongs, then (I think) it is juſtice and mercy in you to remit him of both; and that is the caſe of this Gentleman; in conſcience, he could not ſwear againſt him, a conſcience well wrought upon; he could not in conſcience ſweare againſt him: for him it was done in the Court, and by the Court, and (I thinke) undeniably juſtified.
M. Love.
He is not under an oath to this day, he hath declared it himſelf.
At. Gen.
This is to ſatisfie other men, but it is not ſo regular, and orderly to be done; but my Lord, and the Court are pleaſed to give you a faire hearing, and proceedings, that no Exceptions may bee taken to it: there was another that was as good as his word, that hee could not finde in his conſcience to ſweare againſt Mr. Love, and that was a Miniſter, that conſcience deſerved to be rectified more than five hundred pound comes to, and perpetuall impriſonment: that man that cannot finde in his conſcience to judge him that was a godly perſon (as hee thought) and againſt him hee muſt not give witneſs, not for Treaſon, not to ſave a Common-wealth; and he hath had your ſentence, and moſt juſtly; I thinke all that was, was too little, my Lord. Then for the reſt, this is a diſcourſe to ſatisfie people, the Spectators here; for ſurely theſe are extravagancies, and totall irregularities; he hath had his time to except, and heard to except, and ſaid all that he hath ſaid now; and ſo there is nothing more to be done, but now for us to reſt in your judgments what you will do further.
M. Love.
I beſeech you, I acquainted your Lordſhip and the Court, that ſome of the Witneſſes were not well, others I could not get them here preſent, but did make offer to bring Witneſſes to prove againſt Major Adams, that he hath confeſſed himſelfe he was threatned with death if he did not inform againſt me, and he ſaid theſe words, he could not tell whether he ſhould in conſcience think rather better to be hanged then to come in againſt me; and he could ſwear only generalls, and could not ſweare that ever I did write or receive Letters: and M. Jaquel himſelf, ſince he was ſent away from the Court, hath ſaid he was not under an Oath.
At. Gen.
What courſe ſhall we hold? if you will not be regular, let the Court be regular: had you not time for to do it then? Did he not demand Indempnity for them? and rather than he would produce others to hurt themſelves, he would rather die himſelf firſt.
M. Love.
But theſe are not under a crime, I beſeech you, the Court would be tender in matters of blood.
At. Gen.
Be tender of juſtice.
L. Preſ.
I would you had been ſo too.
M. Love.
This man declares himſelf he is not under an Oath to this day, he did but put his hand upon his bttons.
L. Preſ.
Thoſe were your very words, and very uncivill and indiſcreet; you have not ſpoke at any time yet, but you have hurt your ſelf more than any body els hath, and yet your language is ſo liberall, that no man ſhall eſcape the laſh of your tongue.
Mr. Love.
I feare no man, my Lord.
At. Gen.
That is a bold word.
L. Preſ.
You have as ill Comments as any man that wears a cap; your guiltineſs appears in this you ſay; we have heard all this that you require before; thoſe very words that you ſay of this man now particularly, go to them firſt, that he was ſaying, he was not under an Oath. It was ſaid ſo again, and again, and again at that time we brought him, and before he was examined, holding up his hand, we asked him it, and he ſaid he did, and put it to him again, and again, Are you under an Oath? till at the laſt he did conclude and teſtifie he was under an Oath; I teſtifie this before all the company here, this is noiſed abroad, again by many people, the care we had of that very man you ſpeak of, you asked him three or four times then, and at the laſt upon the concluſion, he confeſſed himſelfe he was under an Oath, hee did not doe as you doe, you will ſay things are truth, but you will not ſpeake thoſe Truths before God in a teſtimoniall way, though ſome of your Witneſſes that proved, ſaid it was true in the preſence of God, what they gave under their hands; theſe men that do thus, are no better than Jeſuits in reality, though not in name. You made a Confeſſion of miſpriſion of Treaſon you ſaid, but you have confeſſed Treaſon. I will tell you who did the like in the very words almoſt that you did, and that was Father Garnet, when hee came to ſee the evidence produced ſo full againſt him by thoſe that were participes criminis, as you are, himſelfe confeſſed when hee came to the laſt, Had I thought (ſaith hee) that the State had had ſuch cleare proofe againſt mee, I would have ingenuouſly confeſſed it, and not trifled with them as I have done: So you ſaid, you did not thinke it would have been proved ſo farre as miſpriſion; but when it was proved ſufficiently in your apprehenſion, and convicted, and your counſell had informed you it could not be leſſe than miſpriſion, then you would ingenuouſly confeſſe, ſo did Garnet. The other witneſs that was threatned, it was teſtified by a worthy Captaine; I ſpeak it again, was not it debated as much as the wit of man could? did you not object that then that you do now? and did not the Court then ſatisfie you, or at leaſt ſatisfie themſelves that it was not ſo? For I tell you in that verie thing wherein you ſay he was threatned, it was told you, that the Captaine that was here then, depoſed what hee had done, and how hee had done it, and at what time it was delivered; for you were diſcovered long before that, and your Examinations taken long before that; upon this now when your Treaſon was diſcovered and declared by ſeverall Witneſſes, and that ſuch a one was in confederacy, and I think the State might ſafely promiſe him life, and reward too; for there is more in the plot yet, then is yet found out, and that ſome are like to hear of within this fortnight, that were here, which is a dangerous thing; but this you did declare, and the Court was ſatisfied, that all that was promiſed as a reward, was for diſcovering of a plot againſt the State: and that was lawfull by the Lawes of God and man. And now you bring Witneſſe; you were at firſt demanded whether you would bring them or no; and you asked indempnity for them, and the next time you denyed you would bring none; and now you are asked what you have to offer to the Court, and after all this time, what come you to doe now? to prove that that was acted here in the Court; you ſay, we threatned them; true, that we did threaten ſome, and I think we went thus far, that if he would not, we would ſet five hundred pounds fine upon his head; but he would none of that, but came in again, and delivered his knowledg. But you had another of your own Robe too that came in, and hee would not teſtifie, and why? His conſcience was tender; his ſcience was perfect enough to ſpeak againſt you; for hee was confederate with you, and hath confeſſed enough of it; but his conſcience was tender: No man can tell here whoſe conſcience is crazy, and tender; conſcience is a thing betwixt God and man onelyonly; and they that lay nothing upon their Conſciences to prove their integrity, they had as good ſay nothing before a Judg; for though wee have a Law of Conſcience in England, yet that Law is judged by rules; and therefore he, whoever he be that pretends Conſcience, there are ſo many conſciences, as there are men, and no men have power to judge of it but God; but Sir, for that cauſe that he would not for his tender conſcience, we did ſet a fine of 500 …. upon him, and ſentenced him to the Fleet til he paid it: we call not this terrifying, neither doth the law; nor any reward favour nor affection, for the diſcovery of a Traitour, is no illegall act, this wee told you before; but you muſt have it again, and again, and again; ſo that you may delay, no time ſhall be omitted by you.
Mr. Love.
I have but a few words more; your Lordſhip was pleaſed to ſay, that you could juſtifie promiſing rewards to thoſe that would diſcover, and threatning puniſhments to thoſe that would not; but you ſaid, if I could prove promiſing of rewards or threatnings to them that would not teſtifie againſt me, they ſhould be heard; now I produce not witneſſes in generall, that they were promiſed favour or threatned if they would or would not; but I offer to produce witneſſes that can witneſs againſt ſome of the particular witneſſes, that ſaid they ſhould be hanged, if they did not witneſſe againſt me; and this, as your Lordſhip promiſed, I humbly crave.
At. Gen.
Truly he will not want ſuggeſtions, he hath had his time to prove it, and one favour I ſhall beg of the Court, that this your patience to Mr. Love, your juſt favour toward him, may be no preſident hereafter; but for this, when we cloſed the Evidence Saturday was ſevennight for the Commonwealth, he had till Wedneſday following to make his Defence; for his witneſſe he offered them, you offered to receive them, he ſaid he would have none, now he comes to offer; we produce you no new witneſſe, nor offered nothing ſince Saturday was ſevennight, if we come to witneſſes again, we ſhall come to an aſperſing one another, we ſhall make it a prety endleſſe work; we have done our parts, and followed the rules of Juſtice, and Mr. Love hath had his full liberty to juſtifie, to ſay what he could, and prove what he could for himſelfe; if he neglect his own time, to his own perill be it; the Court I hope will not be guilty of it to alter the wayes of Juſtice.
Mr. Love.
I could not compell witneſſ…s, there was no Sub poenas, but they muſt come when they offer themſelves.
L. Preſ.
You were asked, and you would produce none.
Mr. Love.
They were not in a capacity to come, my Lord.
At. Gen.
There is nothing reſting more to be done, but now all being done (if you pleaſe my lord all being done) for the iſſue of the Fact, all his exceptions to the impeachments, which are matters of Law; we are now humbly craving your judgement upon this impeachment between the Keepers of the Liberty of England, and Maſter Love the Priſoner at the Bar. I now humbly demand your judgement.
Mr. Love.
I humbly pray, that ſince I never ſaw the face of this worthy Gentleman, till this morning, and ſo could have no particular advice from him, that there might be longer time allowed to this Gentleman, and an addition of three Gentlemen more, and a coppy of the Charge.
Att. Gen.
You have had more then ordinary Priſoners have had before, I will aſſure you, Mr. Love.
L. Preſ.
M. Hales you have heard a little opened of our paſſages and proceedings which you did not before, but every man elſe hath lift up his voice; you have gone over a great deal of the fact: now for matter of Law, for that of miſpriſion, that will reſt (I thinke) in the judgement of the Court; there is no miſpriſion laid, but Treaſon, and I think the Court will find …reaſon upon the proofs that are before them, they will not need to have any Argument of miſpriſion, if the Court think there is ſufficient Treaſon laid, then that Argument, we need not deſire no more time for that, and if it be miſpriſion, that the Court ſhall judge it ſo, then upon the matter there is no Charge againſt him for us to proceed upon, ſo that by that Charge, I cannot ſee what you can ground your Argument upon.
Mr. Hales.
The Charge is not only for Treaſon, but for Treaſon and other High crimes, and miſ…demeanors.
At Gen.
But not miſpriſion.
Mr. Hales.
Though the word be not in, we think it will reach it.
L. Preſ.
It will not indeed.
At. Gen.
We inſiſt upon it for the… Commonwealth, for the Charge is as it is laid.
L. Preſ.
For the two next, ſo I told M. Love before, and he ſpent two hours at the leaſt in capitulating the evidence of the State, not any thing of his own, for he gave no Witneſſes; but he did go over the whole evidence of the State from point to point, and made, I think, himſelf (as he ſaid) the Exceptions that were made againſt them; theſe he went over, though we might have ſhut him up at the firſt: for him to ſumm up that which was the duty of the Court, when he had no evidence, to ſumm up the Evidence of the State, which wee might not have let him: but this he did; and it is our part to examine the Evidences, and the nature of them, and what the nature of the thing is, and how many Witneſſes are to every point: whether there be two Witneſſes to a point or no, cannot fall under diſpute of law, it is matter of fact.
Mr. Hales.
It is true, we are here only to do that duty that your Lordſhip injoyns us to (my Lord.) It is true, for us to diſpute whether this evidence proveth ſuch a thing or no, haply it may not belong to us to do that: But thus far, if your Lordſhip think fit, this may haply be allowable (with ſubmiſſion to the Court) that is, whether, if the proofs be admitted, this man poſitively proves thus, the o…ther man proves poſitively thus; whether that theſe two proofs do make a proof of one fact, haply (if your Lordſhip ſhall ſo think fit) there may be ſomewhat of Law in that; that is, whether it make a double Teſtimony within the Statute of Primo and Quinto: For (with ſubmiſſion to your Lordſhip) the Statute of Primo and Quinto is not repealed as to point of Teſtimony; it is repealed as to the place from whence the triall is to come; but not in point of Witneſſes, therein it may come in queſtionleſſe (if your Lordſhip ſhall think fit:) But truly, I have not ſeen one word of the evidence from the beginning to the end; and if ſo be that any matter ſhould riſe, that the Court ſhould think fit, as well as proper for me to offer in the defence of this Gentleman, I muſt profeſſe I cannot, unleſſe I had ſeen the things; for I have not ſeen one word.
L. Preſ.
For ſeeing the Evidence further then memory, you nor no man elſe ought to know, though wee have given leave to write; and therefore though wee have given leave to take notice of them, yet that is more then ever any Court did, or we need to have done, but onelyonly to truſt to their own memories: but in that you ſpeak of now, for you to have day to argue, when you are not able to ſay, nor we neither, that there is any ſuch thing. Did you ever hear ſuch a thing, to pray day to argue that you do not know poſitively it is ſo?
Att. Gen.
We have ſpent a great deal of time, and all that can be ſaid will be but to run a round: What is to be done, is your own conſultation among your ſelves.
L. Preſ.
Withdraw your priſoner.
Mr. Love.
I beſeech you, allow me time for Councell.
The Court adjourns.