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med of it in due manner, and with the circumstances of Legal Evidence ; for it's a very different and quite another thing both as to form and subItance, what “may satisfie a Man in his private Judgment, and what is sufficient to guide and convince him in point of Law and Justice, since that which might perswade one as a Spectator to believe the Prisoner guilty of the Crime with which he stands charg'd, may not in any fort be evidence to find him guilty , if he were one of his Jury.
For put the case, a Man is accused of Treason or Felony before a proper Magistrate, and the Perfons who afterwards happen to be his Jury, are present at his Examination, and the Fact is not only point blank proved, but the Party Accuted confesses it : Yet when he stands upon his Tryal, unless he do there again confess the Indictment, or the fact be proved by lufficient Evidence, the Jiry must acquit him
Or thus, if a Man is Indicted for Treason 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 that they knew the Indictment to be true, yet if neither they nor any Body else will swear to the Indictment, the Jury must find for the Prisoner ; and yet those Men fo feriously and folemnly declaring themselves would sufficiently satisfie all By-Standers, and even the Jury too as to their private Judgments : But their Testimony not being such as the Law calls Legal Evidence, it cannot affect the Prisoner.
In case of Treason the Law requires Two Witnesses, who must be of good Reputation, in
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 Prisoner, or are Bribed, Swear doubtfully, either as to the Time, place, or Manner of the thing; any of these renders their Testimony invalid.
It is granted, That from any thing in the Act of Arrainder it cannot be objected, That the Two Houses had not before them lufficient and Legal Evidence of the Dukes being then in open Hofti lity, it being needless to express it, because they are supposed not to proceed without it ; But it is notorious that all the Evidence they were then pofseft of, was a Leiter 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, First there was no proof who wrote it. Secondly, The Letter declared him that wrote it to be in great disorder at the instant of writing it. Thirdly, It gave an account of not above Sixty Persons 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 most of the Town was pillag‘d and ranack't.
These are such uncertainties as would render it infufficient to be Evidence in a much less case, for it being not proved, who wrote it, it might in construction of Law, be rather look's upon as his that deliver d it, than to be sent by Mr. Mayor: But had it been proved to be his ; yet the disorder he own'd he was in renders the purport of his Letvery little credit ; or if he had been more
composed, the coming of Sixty Persons only into the Town, was no great indication of their Hoftility, having pot 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. Besides this there was nothing express'd in the Letter; wherefore he did believe, that such disorders were then committed in the Town; for he neither law, nor heard of any Man that had receiv'd the least injury whilest he stay'd, nor had the Duke then declared for what intent he came. The people of the place might perhaps flock to see the Duke, yet that could be no Evidence of an intended outrage, it being no new thing in England for the People to crowd together, when an Eminent Person is to be seen, and especially on account of the Duke. Besides, as his Disposition did make him averse to commit any inhumanity, such as was suggested by the Letter, so in point of prudence it highly beho. ved him to treat the place as obligingly as was pollible, for it had been the falfest step imaginable to have done the least violence to any body: So that this part of the Letter destroys the Gredit, which the rest of it might otherwise have obtain d : And take it altogether is so weak and frivolous, that a Letter found in the Streets would amount to as good Evidence in any case as this could; for at best hand it could not be of greater weight than to corroborate a Legal Evidence. To allow a Paper standing alone to be good evidence cannot be safe ; and must be very dangerous if such as this may pass, because that evidence will
to be ser v’d.'
As to the Printed Declaration, It passed indeed under the Dukes Name, but there was no proof, that he' drew it, approv'd it, order'd it to be Printed or Dispers’d, or that he ever saw it, or was privy to it. It was read in the House of Lords by the Kings Command, or else it had been a secret to thein, as well as to the World, that there was such a thing ; for as that was the first time that it was heard of, so 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 alto. gether improbable, but that that Declaration was a Contrivance of the Court, and shamm'd upon the Duke of Monmouth. But to let that pass, That which makes a Man guilty of Treason 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 casually heard it read: For if the Printing of a Treasonable Paper in a Mans Name, will make him answerable for it, then no Man can be safe longer than he is out of the thoughts of his Enemies, or they are not arrived to that pitch of Villany as knowingly to destroy an Innocent Man.
--Take then these things together, and see how precariously every Man holds his Life and Honour, if-such things as they (I mean the Mayors Letter and Printed Declaration) may pafs for Evidence, for what can then be more easie than to sham 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 such cases, yet it is of
the Essence of the Justice of England, that the Par. ty accus'd should be heard, or have sufficient time assign'd him, so 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 Constitutions where the Government is not Despotick or Arbitrary. For there cannot be a greater Badge of Slavery, than that Men may be condemn'd without being heard to their Accusation : In the time of Henry VIII. Cromwell Earl of Efex, being then a great Man, and out of design to destroy some, 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 case made it fo odious, that immediately upon it, it was repealed, as being unjust, and inconsistent with the Justice of this Government.
God the Righteous Judge of all the Earth, though he knows what we can say in our defeace, will hear us before he condemns us, for otherwise his Sentence would not appear to be just. The Law in case of Blood proceeds by flow steps, becaufe Blood when spilt 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 desires that every Man should prove innocent, and does suppose 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 Prisoner at the Bar reproachful Language, till the Jury has found