see the Register, fol. 165. in Felony, where the judgment always is suspendatur per collum; yet the party may be beheaded, which is no part of the Sentence [Parl. 8. E. 3.] So was the duke of Somerset in the time of Edw. 6. for felony: So was the lord Audiey, 7 Car. 1. for felony (Rape.) Queen Katherine Howard for treason, Hen. 8. and Jane Gray primo Maria. The countess of Salisbury, being attainted for treason, Anno 1541, was beheaded 32 Hen. 8. See 3 Co. Inst. p. 211, 212. A Copy of the PAPER delivered to the Sheriff. "Gentlemen, Friends, and Neighbours, "It may be expected that I should say something at my death, my birth and education being near this place. My parents instructed me in the fear of God, and 1 now die of the reformed religion, always being instructed in that belief, that if Popery should return this nation, it would be a great judgment. I die in the expectation of pardon of my sins, Whereupon his majesty was pleased to sign puted righteousness of Jesus Christ, he being and acceptation with the Father, by the im the following Warrant : the end of the law for righteousness to every one that believes. Ithank God through Jesus Christ, I depart under the Blood of Sprinkling, which speaketh better things than the Blood of Abel, God having made this chastisement an ordinance to my soul. "J. R. "Whereas we are informed that Alicia Lisle has received Sentence of death for high treason at the sessions of Oyer and Terminer, and gaol-delivery, held at our city of Winchester, for harbouring of John Hicks a rebel, and that the sentence is to be executed upon her the second of September next, by burning her alive: And whereas the said Alicia Lisle has humbly petitioned us to alter the manner of the said execution, by causing her head to be severed from her body: We, being graciously pleased to condescend to her request, have thought fit hereby to signify our will and pleasure accordingly. And our further will and pleasure is, that you deliver the head and body to her relations to be privately and decently interred: And for so doing this shall be your warrant.-Given at our court at Windsor, the 31st day of August 1685, in the first year of our reign. SUNDERLAND." "To our trusty and well-beloved the High- judgment for hanging was the legal ordinary "I therefore conclude, till I shall be better informed, that the prerogative now under consideration, founded in mercy, and never in any age complained of, is part of the common law. "Lord Coke, in one of the passages I have cited, after admitting that in the cases be mentioneth the execution did vary from the judgment, concludeth, "Judicandum est legibus แ non exemplis." The rule is true, but the mis "I did as little expect to come to this place on this occasion as any person in this nation; therefore let us learn not to be high-minded, but fear the Lord: The Lord is a Sovereign, and will take what way he sees best to glorify himself by his poor creatures; therefore do humbly desire to submit to his will, praying him, that in patience I may possess my soul. My crime was entertaining a nonconformist minister, who is since sworn to have been in the late duke of Monmouth's army. I am told, if I had not denied them, it would not have affected me. I have no excuse but surprise and fear; which I believe my jury must make use of to excuse their verdict to the world. "I have been told, the court ought to be counsel for the prisoner, instead of which, there was evidence given from thence; which, though it were but hearsay, might possibly affect my jury. My defence was such as might be expected from a weak woman: but such as it was, I did not hear it repeated again to the jury. But I forgive all persons that have done me wrong, and I desire that God will do so likewise. "I forgive colonel Penruddock, though he told me, he could have taken those men before they came to my house. As to what may be objected, that 1 gave it under my hand that I had discoursed with take lieth in the application of it; for immemorial usage, founded in mercy and never complained of, is undoubtedly sufficient in this as in every other case, to determine what is or is not part of the common-law." Foster, 267. See too East's Pleas of the Crown, chap. 5. s. 96. Roger Coke tells us that whether the sentence was just or not, the punishment was unjust, for though the king may pardon or mitigate the punishment of any crime against him, as to pardon treason or to mitigate the execution to beheading, which is part of the sentence, yet he cannot alter the punishment into any other than the law prescribes." 2 Detection, 339, 340. Nelthorp, that could be no evidence to the court or jury, it being after my conviction and sentence. tice of the King's-bench, and chief commissioner of Oyer and Terminer and gaol delivery, within the said county, was convicted, attainted, "I acknowledge his majesty's favour in al- and executed for High Treason: May it theretering my sentence; and I pray God to pré-fore please your most excellent majesties, at serve him, that he may long reign in peace, and the true religion flourish under him. "Two things I have omitted to say, which is, that I forgive him that desired to be taken from the Grand Jury to the petty jury, that he might be the more nearly concerned in my death. Her attainder was afterwards reversed 1st of William and Mary. Primo Gulielmi & Mariæ, A. D. 1689. An ACT for anuulling and making void the attainder of Alicia Lisle, widow. Whereas Alicia Lisle, widow, in the month of August, in the first year of the reign of the late king James the Second, at a session of Oyer and Terminer, and gaol delivery, holden for the county of Southampton, at the city of Winchester in the said county, by an irregular and undue prosecution, was indicted for entertaining, concealing and comforting John Hicks, clerk, a false traitor, knowing him to be such, though the said John Hicks was not, at the trial of the said Alicia Lisle, attainted or convicted of any such crime: And by a verdict injuriously extorted and procured by the menaces and violences, and other illegal practices of George lord Jefferies, baron of Wem, then Lord Chief Jus "Granger, in his Biographical History of England, vol. 4, p. 272, says that he had seen the humble petition of Triphena Lloyd and Bridget Usher, daughters of the said Alicia Lisle, That it be declared and enacted by the authority of this present parliament: And be it enacted by the King and Queen's most excellent majesties, by and with the advice and consent of the Lords spiritual and temporal, and Commons in this present parliament assembled, and by the authority of the same, that the said conviction, judgment and attainder of the said Alicia Lisle be, and are hereby repealed, reversed, made and declared null and void to all intents, constructions and purposes whatsoever, as if no such conviction, judgment or attainder had ever been had or made; and forfeiture of honours, dignities, lands, goods, that no corruption of blood or other penalty or or chattels, be by the said conviction or attainder incurred: any law, usage or custom to the contrary notwithstanding,+ (in a book printed in 1687) a dedication to lord Jeffryes, by the titles of earl of Flint, viscount Wycombe, and baron Wem.' But, as in this bill he is stiled lord Jeffryes; it is certain he was never in full possession of those ho nours; though, perhaps, a patent for that purpose might have been preparing for him, when that dedication was published, just before the revolution. And yet, as late as the 8th day of June, 1688, in the warrant signed by him, and other privy counsellors, for committing the seven bishops to the Tower; he is only called George lord Jeffryes, baron of Wem." Hatsell As to the form of bills of attainder, see some observations in a note to vol. 9, p. 996, of this Collection. $32. Trials of JOHN FERNLEY, WILLIAM RING, ELIZ. GAUNT,“ and HENRY CORNISH,† esq. at the Old Bailey, for High Treason 1 JAMES II. A. D. 1685. Monday, Oct. 19, 1685. AT the Sessions-House, in the Old-Bailey, London, the court being met, and proclamation *See what Burnet says of her in the Note to Lady Lisle's Case, p. 300, of this volume. See the Trial of him and others for a Riot, &c. vol. 9, p. 187, of this Collection, "Some base men tried to save themselves by accusing others. Goodenough, who had been under-sheriff of London when Cornish was sheriff, offered to swear against Cornish; and also said, that Rumsey had not discovered all he knew. So Rumsey to save himself joined with Goodenough, to swear Cornish made for attendance, the proceedings were as follow: Clerk. Set John Fernley to the bar. [Which was done.] guilty of that for which the lord Russell had suffered. And this was driven on so fast, that Cornish was seized on, tried, and executed within the week. If he had got a little time, the falshood of the evidence would have been proved from Rumsey's former deposition, which appeared so clearly soon after his death, that his estate was restored to his family, and the witnesses were lodged in remote prisons for their lives. Cornish at his death asserted his immocence, with great vehemence; and with Cryer. O yes, All manner of persons are commanded to keep silence, upon pain of imprisonment. [Which he did.] Thou standest indicted by Cryer. John Fernley, hold up thy hand. the name of John Fernley. "Middlesex. “The jurors for our sovereign lord the king upon their oaths do present, That John Fernley, of the parish of St. Mary Matfellon, other wise White-Chapel, in the county of Middlesex, barber, as a false rebel and traitor against the most illustrious and most excellent prince king James the second, by the grace of God of England, Scotland, France, and Ireland, king, and his natural lord, not having the fear of God in his heart, nor his due obedience any wise regarding, but being moved and seduced by the instigation of the devil; and his faithful duty and natural obedience which a true and loyal subject ought to have towards his said lord the king, and by law ought to observe, utterly withdrawing; and intending with all his endeavours the peace and tranquillity of this kingdom of England to disturb, and war and rebellion against our said lord the king to incite and move, and the government of our said lord the king in this kingdom of Eugland to subvert, and our said lord the king from his title, honour, and regal and imperial crown of this his kingdom of England to depose and deAugust in the year of the reign of our sovereign prive, and our said lord the king to death and utter destruction to bring; the 20th day of lord James the second, by the grace of God of England, Scotland, France, and Ireland, king, defender of the faith, &c. the first, and divers other days as well before as after, at the parish Chapel, in the county of Middlesex, falsely, of St. Mary Matfellon, otherwise called Whitemaliciously, devilishly, and traiterously, with divers rebels and traitors to the jurors aforesaid unknown, did conspire, imagine, and intend our said sovereign lord the king, now his supreme and natural lord, not only of his royal kingdom of England, to deprive and depose, state, title, power, and government of this his but also the same lord the king to kill and murder, and the ancient government of this kingdom of England to change, alter, and amongst the subjects of our lord the king totally subvert, and a miserable slaughter throughout all this his kingdom of England to rebellion against our lord the king to procure, cause and procure; and an insurrection and promote, and assist: And the same his most. wicked, most inhuman, and most devilish treasous and conspiracies, purposes and traitorous John Fernley, as a false traitor, then and there, imaginations to fulfil and to effect, he the said viz. on the said 20th day of August, in the first as aforesaid, at the parish aforesaid, in year of the reign of our said lord the king, the the county aforesaid, well knowing one James Burton to be a false traitor, and as a false traithe death and utter destruction of our said lord tor traitorously to have conspired and imagined the king, and war and rebellion against our said lord the king within this kingdom of Engthe jury unknown) to have levied and stirred land traitorously (with divers other rebels to "P,; he the said John Fernley afterwards, viz. the reign of our said lord the king, now the first on the said 20th day of August, in the year of aforesaid, at the parish aforesaid, in the some acrimony complained of the methods taken to destroy him. And so they gave it out, that he died in a fit of fury. But Pen, who saw the execution, said to me, there appeared nothing but a just indignation that innocence might very naturally give. Pen might be well relied on in such matters, he being so entirely in the king's interests. He said to me, the king was much to be pitied, who was hurried into all this effusion of blood by Jefferies's impetuous and cruel temper. But, if his own inclinations had not been biassed that way, and if his priests had not thought it the interest of their party to let that butcher loose, by which so many men that were like to oppose them were put out of the way, it is not to be imagined, that there would have been such a run of barbarous cruelty, and that in so many in-county aforesaid, the said James Burton in the stances." Burnet. "July 20th 1685 Richard Goodenough, formerly under sheriff of London, outlawed for high treason on account of the fanatic conspiracy, and one of the rebels in the west, being taken in Devonshire, was this day brought to town; he hath been before the council, and doth, as is said, make a free and a large confession. "Nov. 28, 1685. Nathaniel Wade, Richard Goodenough and James Burton, were brought to the King's bench bar, and pleaded his majesty's pardon to them for their outlawry of treason, and all other crimes to the 4th of July last, which was allowed, and they remanded again to Newgate till his majesty's pleasure be further known." Narcissus Luttrell's MS. Brief Historical Relation in All Souls Library. mansion-house of him the said John Fernly, situate in the parish and county aforesaid, knowingly, secretly, wickedly, devilishly, and traitorously, did harbour, conceal, comfort, sustain, and keep; and then and there, for the comforting, sustentation, and maintenance of the said James Burton, the said John Fernley meat and drink to the said James Burton maliciously and traitorously did give and deliver, and did cause to be given and delivered, against the duty of his allegiance, against the peace of our said lord the king, his crown and dignity, and also against the form of the statute in the like case made and provided, &c." Clerk. How sayest thou, John Fernley, art thou guilty of the high treason whereof thou standest indicted, or not guilty? Fernley. Not guilty. Clerk. Culprit, how wilt thou be tried ? Fernley. By God and my country. [Which was : Set William Ring to the bar. Thou standest indicted by the name of William Ring, of the parish of St. Clement's Danes, in the county of Middlesex, taylor. of our said lord the king that now is, aforesaid, at the parish and county aforesaid, well know→ ing Joseph Kelloway and Henry Lawrence to be false traitors, and as false traitors traitorously to bave conspired and imagined the death and final destruction of our said lord the king, and war and rebellion against our said lord the king within this his kingdom of England, traitorously, with divers other traitors to the jurors unknown to have levied, and raised, and stirred up. And he the said William Ring afterwards (to wit) Middlesex. The jurors for our sovereign the said 20th day of July, in the first year of lord the king do present upon their oaths, That the reign of our said sovereign lord the king William Ring, late of the parish of St. Cle- aforesaid, at the parish aforesaid, the said Joment's Danes, in the county of Middlesex, seph Kelloway and Henry Lawrence, in the taylor, as a false traitor against the most illus- dwelling-house of him the said William Ring trious and excellent prince James the second, situated in the parish and county aforesaid, by the grace of God of England, Scotland, knowingly, secretly, wickedly, devilishly, and France, and Ireland, king, and his natural traitorously, did harbour, conceal, comfort, lord, not having the fear of God in his heart, sustain, and maintain; and then and there, for nor the duty of his allegiance any ways weigh- the comforting, sustaining, and maintaining of ing, but being moved and seduced by the in- the said Joseph Kelloway and Henry Lawstigation of the devil, and the true, due, and na- rence, he the said William Ring meat and tural obedience which true and faithful sub- drink to the said Joseph Kelloway and Henry jects of our said lord the king towards our said Lawrence maliciously and traitorously did give lord the king should and of right ought to bear, and deliver, and did cause to be given and dewholly withdrawing; and with his whole livered, against the duty of his allegiance, strength intending the peace and common against the peace of our said sovereign lord the tranquillity of this kingdom of England to dis-king, his crown and dignity, and against the quiet, molest, and disturb, and war and rebel- form of the statute in this case made and prolion against our said lord the king within this vided, &c. his kingdom of England to incite and stir up, and the government of our said lord the king in this his kingdom of England to subvert, and our said lord the king from his title, honour, and regal name of his imperial crown of this his kingdom of England to depose and deprive, and our said lord the king to death and final destruction to bring and put, the 20th day of July, in the first year of the reign of our sovereign lord James the second, by the grace of God of England, Scotland, France, and Ireland, king, defender of the faith, and divers other days and times, as well before as after, at the parish of St. Clement's Danes, in the county of Middlesex, falsely and maliciously, devilishly, and traitorously, with divers other rebels and traitors to the jurors unknown, did conspire, imagine, and intend, our said lord the king, our supreme and natural lord, not only from his state, title, power, and government of his kingdom of England to deprive and depose, but also our said lord the king to kill and put to death, and the ancient government of this kingdom of Eugland to change and alter, and wholly to subvert; and a miserable slaughter among the subjects of our said lord the king throughout this whole kingdom of England to cause and procure; and insurrection and rebellion against our said lord the king to procure, move and assist: and -his said most wicked and devilish treasons and traitorous conspiracies, compassings, imaginations, and purposes aforesaid to fulfil, effect, and perfect, he the said William Ring, as a false traitor, then and there, to wit, the said 20th day of July, in the said first year of the reign VOL. XI. How sayest thou, William Ring, art thou guilty of the high treason whereof thou standest indicted, or not guilty?-Ring. Not guilty. Clerk. Culprit, how wilt thou be tried? Ring. By God and my country. Clerk. God send thee a good deliverance. Set Henry Cornish to the Bar. Henry Cornish, hold up thy hand. Mr. Cornish. My lord, I have been confined without any notice given me until Saturday about noon of my trial. My lord, I do hope, seeing I appear before your lordships and this honourable bench who have known some thing of my conversation, that you will be pleased to consider me, and grant me what is customary, and commonly done to persons in my circumstances. Mr. Jones. Mr. Cornish, if you please you shall have your time of speaking hereafter, but now you are only to plead without any more ado. Cornish. My lord, I beseech you hear me a little; I have been so confined. Lord Mayor. Mr. Cornish, you must ob serve the rules of the court. Cornish. My lord, I hope I shall be allowed what is customary in such cases. Lord Mayor. What is it you would have? Cornish. My lord, I do desire, if your lordship will please to consider me Mr. Jones. Would you not be arraigned, Mr. Cornish? After you are arraigned and have pleaded, you may speak. 2 C Cornish. Let me tell your lordship what my ease is: Is it reasonable not to have aboye half a day's time for preparation for my trial, and no counsel allowed me? Recorder. (Sir Thomas Jenner.) Nor ought, without leave of the court, or by his majesty's special appointment. Cornish. I have not had a friend to come to me, but in the presence of major Richardson. Recorder. None have in your circumstances. Cornish. My lord, ought not I to have a copy of the pannel? It is a thing never denied. Recorder. It hath been denied very often.* Cornish. My lord, it is a matter wherein my life is concerned; and therefore I hope your lordship will hear me. Mr. Jones. After you are arraigned you may speak, and put off your trial if you can. Cornish. My lord, I cannot go from this before I possess your lordship with a right understanding of it; it is beyond precedent: no such precedent, that any man should be kept with that strictness I have been. Recorder. Mr. Cornish, I wonder you will say so I tell you there is no man accused of your crime but is so kept. Cornish. If your lordship pleases to allow me a little time, I do not question but I can very well satisfy your lordship, and this honourable court, that I am a very innocent person. Recorder. You will have your proper time for that, but now you must plead, that you may hear the particulars of your charge, and have an opportunity to make out your innocence; for we must keep the same method with you we do with all other persons in your circumstances; and therefore you must plead as other persons do. Sir James Smith. You know the way of the court, Mr. Cornish; you must plead. Mr. Jones. If you will not plead, I will move the court to record your standing mute. Cornish. I have known that this court hath heard what the prisoner hath to say at the bar; and I have more to say, perhaps, than any man that ever stood at this bar. Recorder. Mr. Cornish, when you have pleaded, you have time to speak for yourself. Clerk. Henry Cornish, hold up thy hand. [Which he did." Thou standest indicted by the name of Henry Cornish. "That Henry Cornish, late of the parish of St. Michael Bassishaw, London, merchant, as a false traitor against the most illustrious prince Charles the Second, late king of England, Scotland, France, and Ireland, defender of the faith, then his natural lord, not having the fear of God in his heart, not weighing the duty of his allegiance, but moved and seduced by the instigation of the devil, and the cordial love, and true, due and natural obedience, which a true and faithful subject of our late sovereign lord the king towards our late sovereign lord the king should and of right ought to bear, altogether withdrawing; and minding, and with all his strength intending, the peace and common tranquillity of this kingdom of England to disquiet, molest, and disturb, and war and rebellion against our late sovereign lord the king, within this kingdom of England to stir up, move, and procure; and the government of our said late sovereign lord the king of Mr. Jones. Will you, or will you not, Sir, without any more ado? The law gives you advantage, you may challenge any body;this kingdom of England to subvert, change, there are fourscore returned, honest men, and you may challenge who you please. Cornish. Alas! my lord, what can I do? Counsel. He disputes out of time; he is to be arraigned. Recorder. Come, Mr. Cornish, you must plead. Cornish. I did understand last night his majesty was graciously pleased to refer these matters, as to my trial, to my lords the judges; and, my lord, I do hope that the judges, when they hear this matter, that I shall have some time allowed. Recorder. Pray, Mr. Cornish, take the rule of the court, your business is now to plead; when you have pleaded, what you have to offer for the putting off your trial may be heard then. *"It was indeed denied to Stephen Colledge, [See vol. 8, pp. 579, et seq. 587.] but it was allowed lord Russell," [See vol. 9, p. 587.] Note to former Edition. See, too, Algernon Sydney's Case, vol. 9, p. 824. But now as to this, See st. 7 W. 3. c. 3. 7 Ann..c. 21. and alter, and our said late sovereign lord the king from the title, honour, and kingly name of the crown imperial of this kingdom of England to depose and deprive; and our said late sovereign lord the king to death, and final destruction to bring and put: the 30th day of May, in the 35th year of the reign of our said sovereign lord the king, and divers other days and times, as well before as after, at the parish of St. Michael Bassishaw, London, falsely, maliciously, devilishly, and traitorously, with divers faise traitors to the jurors unknown, did conspire, compass, imagine, and intend, our said late sovereign lord the king, his supreme and natural lord, not only of his kingly state, title, power and government of this kingdom of England to deprive and throw down; but also the said late king to kill and put to death, and the ancient government of this his kingdom of England to change, alter, and altogether subvert, and a miserable slaughter amongst the subjects of our late lord the king through this kingdom of England to cause and procure, and insurrection and rebellion against our said late lord the king to procure, promote, and assist: |