Imatges de pàgina
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med of it in due manner, and with the circumftances of Legal Evidence; for it's a very different and quite another thing both as to form and fubftance, what may fatisfie a Man in his private Judgment, and what is fufficient to guide and convince him in point of Law and Justice, fince that which might perfwade one as a Spectator to believe the Prifoner guilty of the Crime with which he ftands charg'd, may not in any fort be evidence to find him guilty, if he were one of his Jury.

For put the cafe, a Man is accufed of Treafon. or Felony before a proper Magistrate, and the Perfons who afterwards happen to be his Jury, are prefent at his Examination, and the Fact is not only point blank proved, but the Party Accufed confeffes it: Yet when he ftands upon his Tryal, unlefs he do there again confefs the Indictment, or the Fact be proved by fufficient Evidence, the Jury muft acquit him

that

Or thus, If a Man is Indicted for Treafon or Felony, though Twenty, or a greater number of Men, of undoubted Credit and Probity should declare upon their Words and Reputation, nay, with great affeverations and Imprecations they knew the Indictment to be true, yet if neither they nor any Body elfe will fwear to the Indictment, the Jury muft find for the Prisoner; and yet thofe Men fo feriously and folemnly declaring themselves would fufficiently fatisfie all By Standers, and even the Jury too as to their private Judgments: But their Teftimony not being fuch as the Law calls Legal Evidence, it cannot affect the Prifoner.

In cafe of Treafon the Law requires Two Witneffes, who muft be of good Reputation, in

different

different to the Prisoner, and their Evidence is to be clear and direct to the Fact, and void of all implication; for if they are Men of Evil Fame have Malice to the Prifoner, or are Bribed, Swear doubtfully, either as to the Time, Place, or Manner of the thing; any of thefe renders their Teftimony invalid.

It is granted, That from any thing in the Act of Attainder it cannot be objected, That the Two Houfes had not before them fufficient and Legal Evidence of the Dukes being then in open Hofti lity, it being needlefs to exprefs it, because they are fuppofed not to proceed without it; But it is notorious that all the Evidence they were then poffeft of, was a Letter fent to King James in the Name of the Mayor of Lyme, and a Printed Declaration under the Name of the Duke of Monmouth.

As to the Letter of the Mayor of Lyme, Firft there was no proof who wrote it. Secondly, The Letter declared him that wrote it to be in great diforder at the inftant of writing it. Thirdly, It gave an account of not above Sixty Perfons that were come on Shoar with the Duke. And Fourthly, That upon their approach he fled out of Town, and believed that by that time, his House and moft of the Town was pillag'd and ranfack't.

These are fuch uncertainties as would render it infufficient to be Evidence in a much lefs cafe, for it being not proved, who wrote it, it might in conftruction of Law, be rather look't upon as his that deliver d it, than to be fent by Mr. Mayor: But had it been proved to be his; yet the diforder he own'd he was in renders the purport of his Letter of very little credit; or if he had been more

compofed,

compofed, the coming of Sixty Perfons only into the Town, was no great indication of their Hoftility, having not offer'd violence to any Body, or if they had been a far greater number, yet for ought he knew they were retir'd to their Ships, and gone away, because he ran out of Town upon their approach. Befides this there was nothing exprefs'd in the Letter; wherefore he did believe, that fuch disorders were then committed in the Town; for he neither faw, nor heard of any Man that had receiv'd the leaft injury whileft he ftay'd, nor had the Duke then declared for what intent he came. The people of the place might perhaps flock to fee the Duke, yet that could be no Evidence of an intended outrage, it being no new thing in England for the People to crow'd together, when an Eminent Perfon is to be feen, and efpecially on account of the Duke. Befides, as his Difpofition did make him averfe to commit any inhumanity, fuch as was fuggefted by the Letter, fo in point of prudence it highly beho. ved him to treat the place as obligingly as was poffible, for it had been the falfeft step imaginable to have done the leaft violence to any body: So that this part of the Letter deftroys the Credit, which the reft of it might otherwife have ob tain'd: And take it altogether is fo weak and fri volous, that a Letter found in the Streets would amount to as good Evidence in any cafe as this could; for åt beft hand it could not be of greater weight than to corroborate a Legal Evidence. To allow a Paper ftanding alone to be good evidence cannot be fafe; and must be very dangerous if fuch as this may pafs, becaufe that evidence will not be wanting, when a turn is to be ferv'd.'

As

As to the Printed Declaration, It paffed indeed under the Dukes Name, but there was no proof, that he drew it, approv'd it, order'd it to be Printed or Difpers'd, or that he ever faw it, or was privy to it. It was read in the House of Lords by the Kings Command, or else it had been a fecret to them, as well as to the World, that there was fuch a thing; for as that was the firft time that it was heard of, fo not any more of those Prints came publickly abroad, and not one Man of a Million that either faw or heard the Contents of that Print; and for that reason, it's not altogether improbable, but that that Declaration was a Contrivance of the Court, and fhamm'd upon the Duke of Monmouth. But to let that pass, That which makes a Man guilty of Treafon or any other Crime is his Privity or Confent to it, and that not being proved, it could no more render the Duke Criminal of that Declaration, than it could him that cafually heard it read: For if the Printing of a Treafonable Paper in a Mans Name, will make him anfwerable for it, then no Man can be fafe longer than he is out of the thoughts of his Enemies, or they are not arrived to that pitch of Villany as knowingly to deftroy an Innocent Man.

Take then these things together, and fee how precariously every Man holds his Life and Honour, if fuch things as they (I mean the Mayors Letter and Printed Declaration) may pafs for Evidence, for what can then be more eafie than to fham any Man out of his Life, and all that is dear to

him

But had the Evidence been as full and as clear as it could, or ought to be in fuch Cafes, yet it is of

the

the Effence of the Juftice of England, that the Party accus'd should be heard, or have fufficient time affign'd him, fo as that it must be his own fault, if he do not appear and make his defence This is the Law not only of this, but in all Conftitutions where the Government is not Defpotick or Arbitrary. For there cannot be a greater Badge of Slavery, than that Men may be condemn'd without being heard to their Accufation: In the time of Henry VIII. Cromwell Earl of Essex, being then a great Man, and out of defign to destroy fome, whom he knew not well how to ruine otherways; contrived and promoted a Law for a Summary way of Tryal, fo as that a Man might be judg'd without being heard; but as it fell out he perished by the Snare that he had layd for others, for he was condemn'd without being heard to his charge, and he was the only Man that was toucht by that Law, for his cafe made it fo odious, that immediately upon it, it was repealed, as being unjuft, and inconfiftent with the Juftice of this Government.

God the Righteous Judge of all the Earth, though he knows what we can fay in our defence, will hear us before he condemns us, for otherwife his Sentence would not appear to be juft. The Law in cafe of Blood proceeds by flow steps, because Blood when fpilt cannot be gathered up again; for it is a Maxime in our Law, that no delay is too great when Life is concern'd; the Law defires that every Man fhould prove innocent, and does fuppofe he is fo till he is found to be otherways by his Peers, and for that reason it is that a Judge may not give the Prifoner at the Bar reproachful Language, till the Jury has found

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