then he began to speak, and some others of the bench interrupted him, sometimes they speaking two or three at a time, and a hoise amongst the officers of the Court; but the Judge said, we may give you liberty till the next sessions, but we may chuse; and therefore we will try

you now.

Crook. I bade the people take notice of their promise, that I should have liberty to speak, saying, See now you be as good as your words.

Judge. The law of England is not only just but merciful, and therefore you shall not be surprized, but shall have what justice the law allows—-—(Interruption.)

Crook. I remember what the judge said even now, that the law of England was a merciful law, that the Court had said before, they might, if they would, give us liberty till the next sessions, but they would not; and the maxim of the law also is, Suminum Jus est 'summa Injuria;' therefore I hope your practice will make it good, that it is a merciful law, and not to execute Summum Jus, &c.' upon me, and thereby condemn yourselves out of your own mouths.

Judge. Jury, give in your Verdict.

Crook. Let me have liberty first to speak, it is but few words, and I hope I shall do it with what brevity and pertinency my understanding will give me leave, and the occasion requires; it is to the point in these two heads, viz. matter of law and matter of conscience: to matter of law I have this to say, first, as to the statute itself, it was made against papists, occasioned by the Gunpowder-Plot; and is entituled, For the better discovery and sup

pressing of popish recusants: but they have liberty, and we are destroyed, what in you lies -(Interrupted by the Judges and disturbance of the Court.)-As to conscience, I have something to say, and that is, it is a tender thing, and we have known what a thing it is to offend it, and therefore we dare not break Christ's commands, who hath said, Swear not at all;' and the apostle James said, 'Above all things, my brethren, swear not- -(interrupted) the Court calling again to the executioner to stop my mouth, which he did accordingly with his dirty cloth as aforesaid, and bis gag in his hand.

Judge. Hear the Jury: who said something to him, which was supposed to give in the Verdict according to his order, for they were fit for his purpose, as it seems, they beginning to lay their heads together before he had spoke any thing to them, only upon his words.

Judge. Crier, make silence in the Court; then the Recorder taking a paper into his hand read to thispurpose, viz. The Jury for the king do find that John Crook, John Bolton, and Isaac Grey are Guilty of refusing to take the Oath of Allegiance, for which you do incur a Premunire, which is 'the forfeiture of all your real estates during life, and your personal estates for ever, and you to be out of the king's protection, and to be imprisoned during his pleasure; and this is your Sentence.'

Crook. But we are still under God's protection.

Recorder. Adjourn the Court; which was done accordingly, and we remanded to Newgate, where we remain prisoners.

THE Commission of Oyer and Terminer being read, and proclamation made, the grand jury were sworn: whose names are, Arthur

Kelyng's Report of this Case is as follows: "Memorandum, That at the sessions at Newgate, Dec. 11, 14 Car. 2, Tho. Tong, Geo. Philips, Francis Stubbs and several others, were indicted for High Treason, for compassing the king's death, and the overt acts laid in the Indictment, were assembling themselves together, and consulting and agreeing to destroy the king, Ac ad easdem proditiones perim'plendas,' the consulting to seize Whitehall, where the king was resident.

"1. And in this case, it was resolved by all the judges, that the meeting together of persons, and consulting to destroy the king, was of itself an overt act to prove the compassing the king's death.

"2. It was resolved that where a person

VOL. VI.

Jourdan, John Freestone, Thomas Fawson, Thomas Coney, George Compere, Isaac Rutter, Chris. Rigby, Rowland Steed, William knowing of the design does meet with them, and hear them discourse of their traitorous designs, and say or act nothing; this is High Treason in that party, for it is more than a bare concealment, which is Misprision, because it sheweth his liking and approving of their design; but if a person not knowing of their design before, come into their company and hear their discourses, and say nothing, and never meet with them again at their consultations, that concealment is only Misprision of High Treason. But if he after meet with them again, and hear their con sultations, and then conceal it, this is High Treason. For it sheweth a liking, and an approving of their design; and so was sir Everard Digby's Case, who in the Powder Treason Q

Standen, John Worth, John Rigby, Leonard Staples.

met with the Traitors, and heard their design, but upon the evidence it was not proved that he said any thing, or acted any thing, and he had Judgment of High Treason.

"3. It was resolved that some of those persons who are equally culpable with the rest, may be made use of as witnesses against their fellows, and they are lawful accusers, or lawful witnesses within the stat. 1 Ed. 6, 12, 5 and 6 Ed. 6, c. 11, and 1 Mar. 1, and accordingly, at the Trial of these men, some of their partners in the treason were made use of against the rest; for lawful witnesses within those statutes are such as the law alloweth; and the law alloweth every one to be a witness who is not convicted, or made infamous by some crime. And if it were not so, all Treasons would be safe; and it would be impossible for one who conspires with never so many others to make a discovery to any purpose.

"But the L. C. Baron Hale said, that if one of these culpable persons be promised his pardon, on condition to give evidence against the rest, that disableth him to be a witness against the others, because he is bribed by saving his life to be a witness, so that he takes a difference where the promise of pardon is to him for disclosing the Treason, and where it is for giving of evidence. But some of the other Judges did not think the promise of pardon, if he gave evidence, did disable him, but they all advised that no such promise should be made, or any threatenings used to them in case they did not give full evidence.

"4. Although the Lord Chief Justice Bridgeman, and some others of the Judges were of

opinion that those words of two witnesses in case of High Treason, were repealed by the stat. 1 and 2 Ph. and M. c. 10, which enacts that all trials for Treason be according to the

course of the common law: And at common

law, one witness is sufficient to a Jury, though Co. Pl. Cor. is against this opinion, yet they all agreed that if that law for two witnesses be in force, yet the same two witnesses who are to the Indictment, may be also the witnesses at the trial: And the law doth not require two to the finding the Indictment, and two others at

the trial.

"5. They all agreed that if a conspirator be examined before a privy counsellor or a justice of peace, and upon his examination without torture confess the Treason; If after at his trial he deny it, and two witnesses to prove that confession, are good evidence against him

And several Witnesses being called, there appeared William Hill, Edward Riggs, Tyler,

tion: But such confession so proved is only evidence against the party himself who made the confession, but cannot be made use of as evidence against any others whom on his examination he confessed to be in the Treason.

"6. They all agree that such a confession upon examination before a privy counsellor, though he be not a justice of peace, is a confession within the meaning of the statute; and the rather, as lord Bridgeman said, because justices of the peace were not enabled to take examination before stat. 1 and 2 P. and M. c. 13."

the Crown ch. 24, reports the matter thus:

Lord Hale in the First Part of his Pleas of

"Dec. 10, 1662. Tonge, Philips, and others were indicted for treason for compassing the king's death, the question was, whether those, that were parties in the compassing, which were not yet pardoned, nor indicted, might be produced as witnesses, namely Riggs and others; and upon conference with all the judges these points were resolved.

"1. That the party to the Treason, that confessed it, may be one of the two accusers intended two such witnesses, that were allowor witnesses in case of treason, for the statute able witnesses at common law, and so may a and was admitted to give evidence to the jury; particeps criminis be admitted as a witness, but the jury may, as in other cases, consider of the evidence and credit of the witnesses, but he is sufficient to satisfy the statute,

"2. That the confession before one of the

privy council or a justice of the peace, being voluntarily made without torture, is sufficient as to the indictment or trial to satisfy the statute, and it is not necessary, that it be a confession in court; but the confession is sufficient, if made before him that hath power to take an

examination.

Riggs, if he would discover the plot, he per"3. The king having promised a pardon to formed that part by his discovery; and this was held by all no impediment to his testimony, for the promise was not applied to witnessug against any other; but two justices [these the king promised a pardon upon condition were our author and J. Brown.] held, that if that he would witness against any others, and took upon him to give evidence, &c. that will that being acknowledged by Riggs when he make him uncapable to give evidence, because he swears for himself; but in that point the greater number were of a contrary opinion, es libro Bridgman verbatim, and I remember the consultation and resolution accordingly."

Again, in the same work, Part 2, ch. 37, hɛ says, "For my own part I have always thought, that if a person have a promise of a pardon, if he gives evidence against one of his own confederates, this disables his testimony if it be proved upon him." But see Layer's Case, ▲. D.

Godolphin, Bonfoy, and several others; who being all sworn, were directed up to the grand jury. After some hours examination of the witnesses, and consultation, the Grand Jury returned the indictment Billa Vera.

Clerk of the Peace. You good men of the eity of London, summoned to appear here this day, to inquire between our sovereign lord the king, and the prisoners that are and shall be at the bar, answer to your names, as you shall be called, every one at their first call, upon pain and peril that shall fall thereon. Good men of the ward of, &c.

Serjeant Glynne, Serjeant Maynard, his majesty's serjeant at law: sir Jeoffry Palmer, attorney-general; sir Heneage Finch, his majesty's solicitor; serjeant Keeling, his majesty's serjeant; sir Edward Turner; taking their places in court.

The Prisoners were commanded to be set to the bar.

Clerk of the Peace. Thomas Tonge, hold up thy hand; George Phillips, hold up thy hand; Francis Stubbs, hold up thy hand; James Hind, hold up thy hand; John Sellers, hold up thy hand; and Nathaniel Gibbs, hold up thy hand. Which they severally doing, their Indictment was read, the Substance whereof is as followeth, viz.

You the prisoners that were last called to 'the bar, stand indicted in London by the ' names of Thomas Tonge late of London dis'tiller, George Phillips late of London yeoman, 'Francis Stubbs late of London cheesemonger, 'James Hind late of London gunner, John 'Sellers late of London compass-maker, and 'Nathaniel Gibbs late of London felt-maker; for that you six, together with divers others 'particularly in the Indictment mentioned, and 'others not yet taken, as false traitors to 'the illustrious, serene, and most excellent 'prince, Charles the 2nd, by the grace of God, of England, Scotland, France, and Ireland, 'king, defender of the faith, &c. minding and with all their force intending the peace and tranquillity of this kingdom of England to 'disturb, and our said sovereign lord the king to death and final destruction to bring, and put, 'the 31st day of October in the 14th year of the reign of our said sovereign lord king Charles the 2nd, traitorously did compass, 'imagine and intend the killing of our said 'sovereign lord the king, and the ancient government of this kingdom of England to change;' [as in the Indictment more particularly was mentioned.].

What sayest thou, Thomas Tonge, art thou guilty of this High-Treason in manner and form as thou standest indicted, or not guilty? Tonge. Not Guilty.

Clerk. How wilt thou be tried? Tonge. By God and my country. Clerk. What sayest thou, George Phillips, art thou guilty, &c.

Phillips. I am Guilty in hearing and not discovering of it.

Clerk. How wilt thou be tried? Gibbs. By God and the country. Court. Carry up Hind to the gaol, n And the rest standing at the bar, silence was commanded.

Clerk. Thomas Tonge, George Phillips, Francis Stubbs, John Sellers, and Nathaniel Gibbs; you the prisoners that were last called to the bar, those men that you shall hear called are to pass upon trial for your several lives and deaths: if you or any of you will challenge them or any of them, you must challenge them when they come to the book to be sworn, before they be sworn.

Edmond Butler.

Tonge. I challenge him. [But afterwards admitted him.]

Clerk. Edmond Butler, Clement Punge, George Dixon, Samuel Paine, John Bagual, John Gourney, William Garler, Ralph Silverton, William Dudley, Joseph Drake, John Peake, and Robert Morrice, were severally sworn in this manner: Lay your hand on the book, look upon the prisoner; You shall well and truly try, and true deliverance make between our sovereign lord the king and the prisoners at the bar, whom you shall have in charge, according to your evidence. So help you God.

Clerk, Count these, crier, Edmond Butler; Crier. One. Clement Punge, two, &c. Twelve good men and true, stand together and hear your evidence.

Clerk. Crier, make proclamation.

Crier. O Yes! If any one can inform my lords the king's justices, the king's serjeants, or the king's attorney, before this inquest be taken, let them come forth, and they shall be heard; for now the prisoners stand at

the bar upon their deliverance: and all others that are bound by recognizance to give evidence against any of the prisoners at the bar, come forth and give evidence, or else you forfeit your recognizance. And all manner of persons that were summoned upon the jury, and have not ⚫ yet been sworn; they are discharged, and may depart the court.

Clerk. Tho. Tonge, hold up thy hand; [and so to the rest of them at the bar.] You of the jury, look upon the prisoners, and hearken to their cause; you shall understand that they stand indicted in London by the names of Tho. Tonge, late of, &c. and so in the Indictment aforementioned] who together with James Hind, who stands convicted by his own confession, and the rest also aforementioned: [and so reads the, indictment again.] Upon which Indictment they have been arraigned, and thereunto have severally pleaded, 'Not Guilty; and for their trial have put themselves upon God and the country, which country you are: Your charge is to enquire whether they be guilty of the High Treason in manner and form, as they stand indicted, or Not Guilty; if you find that they, or any of them are guilty, you shall inquire what goods and chattels, lands and tenements, they or any of them had at the time of committing the said treasons, or at any time sithence; if you find that they are not guilty, you shall inquire whether they or any of them did flee for it; if you find that they fled for it, you shall inquire of their goods, chattels, &c. as if you had found them guilty; if you find that they were not guilty, nor that they did flee, say so, and no more, and hear your evidence.

Sir Edward Turner. May it please your lordships, and you gentlemen that are sworn of this jury, the five prisoners at the bar, by the name of T. Tonge, G. Phillips, F. Stubbs, J. Sellers, and N. Gibbs, do stand indicted, for that they as false traitors, together with several other persons mentioned in the Indictment, the 31st of October last, did, in the parish of St. Michael's in the ward of Cornhill, London, assemble and meet together, consult, contrive, and design to levy war against the king, to subvert and change the government as it is now established, to depose and kill the king: and in order to effect this, they did likewise then and there agree and design to seize and take in their hands the king's royal palace called Whitehall, where the king resides. For this they have been indicted, arraigned, and all these five have severally pleaded not guilty: if we prove them guilty, you must find them so. Serjeant Maynard. Gentlemen of the jury, you have heard the Indictment read, you have heard the substance of it opened, it is short in words, but of as high consequence as any thing can be. I shall open the particulars of that Evidence, that we conceive will be made good by the oaths of Witnesses to be produced to you. You see here what the Indictment is: I shall insist upon these particulars, which I shall and make good to you: first, what open

was their design: next, what was their means of accomplishment, what encouragements they used one to another, and what colours they put upon this wicked action. For the first, gentlemen, I shall begin at the highest, higher no man can go in this world, that is, to design and compass, to contrive to put the king himself to death, to seize his person; some of them called it securing, you know the English of that, a king secured. We will go further, for we shall prove to you the person that with his own wicked hand undertook the slaughter and murder of the king: he did contrive how he might do it, sometimes when the king was performing an office of piety to visit his mother, other times when he should recreate himself by hunting: higher than this they could not go, and this they coloured over with religion. This merciful king that had pardoned his people beyond their own desires, and contented to do it; this king they would murder. Had there been no more, it had been exceeding heinous; but they went further, their malice rested not upon his person, but the family, the noble and excellent duke of York it designed to be secured likewise, and used like bis brother: not they only, they went further, the whole nobility was in design; not geirtlemen, that every one of these before you used these expressions, but they and their complices, some one and some another expression: but all joined in this, to destroy the king and his family, root and branch, that was their expression. King, his family, nobility, nay, go down to the gentry, and it ceased not there, they go to the clergy, as one of the prisoners at the bar (as you will hear) did express himself, I think it was Stubbs, That there should be never a lawn sleeve, never a sursingler should have a hole to hide his head in.

Stubbs. I never opened my mouth to that

purpose.