men, and wise men fools, and both of them knaves. The colour of this precious balm is bright and dazzling, and being applied privately to the fist, in decent manner, and a competent dose, infallibly performs all the said cures, and many others not fit here to be mentioned. Probatum est." 6 and the jury will expect that you should have positive evidence against him. Now granting your lordship should have conjectural evidence that he did cause it to be printed and published, that this man did write it, is, I say, very uncertain, for there is no positive evidence. What a man may have in his private thoughts of it, is not enough: But, whether secundum allegata et probata,' it shall be alledged and proved, that this man was the author of it. Now, my lord, I say, I must submit it to your lordship, I say, that as to the causing it to be printed, or the causing it to be published, or that this individual paragraph was writ by him in order to its being printed or published; my lord, I say, there is but remote and conjectural evidence, and an angry Papist might contrive this way to have an innocent Protestant found guilty. People. Hem L. C. J. You see what a case we are in, gentlemen; you see what a sort of people we are got among. Go on sir Francis. I know there are some things that do amply malice in themselves. Truly, my lord, I am upon a tender point, and know not how to express myself. I say, supposing it should fall out that this man writ this book, and he might have some little extravagancies in his head in writing, whether this man did it maliciously to scandalize the government, as the information says, is a question. Truly, my lord, there is many an indiscreet act a man may be guilty of, that cannot be called a malicious act; and that is the second thing. There must be evidence that this man did it maliciously, or that he did it with a design to scandalize the government. If you be of opinion that it is otherwise, that is in your lordship's breast; we are of the negative, and we say we can't prove a negative. But if you find him innocent I suppose there will be no cause to complain of him afterwards, for he had no malice in his heart. Sir Fr. Winnington. May it please your lordship, and you gentlemen of the jury, I am counsel in this cause for the defendant: And the question is, whether or no we must take the Information as it lies? And truly, for the first part of it, whether there was a plot or no, I do not intend to make exceptions; for I believe there was one, and I do intend to take it as in the information. Gentlemen, we are to proceed now to this other question: which is, my lord, Whether or no this defendant, that is, Carr, did falsly and maliciously,' and with ⚫ design to scandalize the government,' cause to be printed and published this false libel that is in the information. Now truly, my lord, we that are for the defendant, say we are not guilty. My lord, we very well know how Sir Fr. Winnington. With your lordship's leave penal a thing it is for a man to be the author I have one thing to put to your lordship. The of a libel that relates to the scandal of the go-information says, 'falsè, illicitè et maliciosè."' vernment. And, tny lord, whether this defendant be guilty of this, or no, we must submit that to your lordship's and the jury's consideration. They have produced two witnesses, that is to say, the printer and his man. Now, my lord, there hath been going out for some time, A Weekly Packet of Advice from Rome; and I did ask the witnesses (for the information points at one paragraph, and puts the paragraph in hæc verba)-I did ask him whether or no he did send, or whether the matter that he sent is that contained in this information. That he could not swear: but must be left in point of evidence, it being, we allow, a very penal matter. The second witness and the first witness likewise say, there was a boy but whether that boy came by his master's direction, he does not know. I asked him if ever his master sent the boy; he does not know, he says, that he sent him. But the last witness says, divers were had from the hands of Carr; but whether it was the thing that is now com plained of, there is the question, and that is in the dark For, by your lordship's leave, I do not understand that ever this man was complained of to any public magistrate for writing this book; for it was thought he was a satirist against Popery, and thought to be very well liked on till this fault was found with it; and it may be very justly; whether or no we be guilty of this, is uncertain: For we know in the age we live in, there are too many shams put upon men; and who knows but that the Papists that might have an ill-will to this Mr. Carr, that hath been no friend to them, might shuffle in this paragraph, by that means to have justice come upon him? I would not contrive against common evidence, where a man is guilty to the public; but we know there are abundance of artifices in this age to abuse men. For this purpose I hope your lordship VOL. VII. Mr. Williams. My lord, it can never be supposed that a good man, and a good subject, should do an ill action. If he be a very good subject, if he be upon a square in every respect, a person that loves his king, and loves the government in church and in state; if he be such a person, he cannot be thought guilty. My lord we will prove him to be such a man, and I hope the gentlemen will believe us. Call Mr. Sutton, Mr. Ayliffe, and Mr. Ambler. Sutton. I know him very well. Mr. Williams. How long since have you known him? Sutton. Two or three years. Mr. Williams. Does he go to church or meet ing? Sutton. He hath been with me at church often. 4 C Mr. Recorder. Does he receive the sacrament according to the manner of the church of England? Sution. I was never with him at the sacra ment. Mr. Williams. Is he one of them you call dis senters. L. C. J. Did he ever discourse with you concerning this book? Sutton. My lord, I have often spoken to him. L. C. J. Has he disowned he was the author. Sutton. He has sometimes. L. C. J. How do you believe it was upon that discourse? Sutton. I do not think he is able to write such a book. L. C. J. That is not the question, answer me what I ask. Sutton. It did seem something like his writing, methought. L. C. J. Did it seem by his answer to your discourse with him? Recorder. Pray tell us, did you look upon him to be the author? L. C. J. By the discourse you had with him, how did it appear upon that discourse? Pray tell us plainly and clearly, how you do think, by the discourse you had with him concerning this pamphlet, whether he was the author or no? Sutton. My lord, about a year, or a year and half since, I did ask him whether this book were licensed? He told me it was licensed by Mr. L'Estrange; but he did not tell me he was the author. L. C. J. How did it seem by his discourse. Sutton. I did apprehend he might write it. Sir Fr. Winnington. My lord, but the question is, whether he wrote this paragraph. Mr. Ambler. Mr. Williams. Mr. Ambler, pray do you acquaint my lord, do you know Mr. Carr? Ambler. Yes, sir. L. C. J. How long have you known him? Sir Fr. Winnington. Of what conversation is he, and how affected to the government? Ambler. He went to church with me. Sir Fr. Winnington. Do you look upon him as a man well affected to the government? Do you think he would maliciously write any thing to scandalize the government? Just. Jones. How do we know how Mr. Ambler understands the government? Recorder. Mr. Ambler, had you any dis course with him about the Packet of Advice? Ambler. Never in my life. Recorder. Did you ever hear of the book? Ambler. Yes, sir. Recorder. Upon your oath, did you look upon him to be the author? Ambler. The common report was, that Mr. Carr was. Mr. Ayliffe. Ayliffe. Yes, sir. Mr. Williams. Is he a conformable man to the government in church and state? Does he go to hear common-prayer? Ayliffe. I have seen him at church and divine service. Recorder. Did he behave himself reverently there? Ayliffe. Yes, Sir. L. C. J. Do you think he writ this? Sir Fr. Winnington, My lord, it seems he was accounted the author of the books; but whether of this particular one in the information, we conceive not proved. Recorder. If we should not do right, we disclaim that service we owe to the crown, and that respect we owe to the government as honest men and as true protestants, and as much against papists as any man whatsoever. I shall endeavour to give the world satisfaction that this man is guilty of this offence. My lord, for any man to come and pretend that we must prove that a man is malicious; or because that a man writes against the papists, he must never therefore be convicted of malice, surely is a strange argument. And I wonder to hear any man that pretends to reason, men of sense, and conscience, and understanding, so out of their common sense and understanding, as to make that go as an argument. Gentlemen, the things themselves bespeak their malice. For so we in our common discourse, when we bring our common actions (of which you have heard a number), if in case any man call a man thief: we say he does falsly, maliciously, and scandalously call a man thief: If we prove he called him thief, the very thing does intimate he does it falsly, scanda lously, and maliciously; therefore the thing itself is a sufficient indication of the malice and depravity of it. There is no man but may know in plain English what is the meaning of these words; it is as plain as can be in the world: We must debauch our understandings, and be as great Doltheads as they would make all men that will not be of their party, if we don't plainly see into the meaning of these words, that justice is to be bribed with money." In the next place, gentlemen, we do not come and say, that the information lies against these very particular words; that is a mistake of the did cause to be printed and published a book, information. But the information is, That he in which among others there were such words as these; though if they had been the very words themselves, the very words have been proved. Now, There is no better proof under the heavens, than the proof we have offered. The printer himself, he comes here and says, That Carr did acknowledge himself the author, and he did generally publish the book; I appeal if you do not believe it. This they would now come and excuse; for they are glad to make a rascal of any of their party, if they can Mr. Williams. Mr. Ayliffe, do you know Mr. but save a man that is guilty. But things come Carr? out with much difficulty and much straitness; and I must say, if ever any thing were an instance of popery, then that man is one of the Jesuitedest fellows that ever was; for he does cant so like them, that a man can't tell how to govern himself. Who was it that should write these things? Truly, he had discoursed with him about the matter. Who sent the boy? Do you know? Truly I can't tell: And a wonderful great snuffling and canting before he comes to the business. Besides, what can there be more plain than the proof-pieces before the publishing? The other man says, that he was the man that fetched pieces from Carr's own hand, and that he always looked upon it that all did come from Carr. | 500/., which may be 5s, a piece had discharged him of, if they had been as free of their purses as they are of their noises and acclamations; So that in truth they are only violent against the government whilst they can make shouts and noises, but if it comes once to deliver a man from a penal sum, they will let hun rot in gao!. For so Harris sent to me, that his party had all forsaken him, and no man would give him any thing. And this is for those hummers, those brave fellows that seem to espouse a cause, and yet leave their party in distress. But let them go away with this, that they prove themselves hereby enemies to the government, and false to that interest and men that they Now every man that knows any thing of seem to espouse; that come only here to affront printing, knows this, that after it hath first taken a court of justice with their shouts and noises, the press, it is always carried back again to the and will not relieve their party: For this is the author, to see whether it be done according to complaint of Harris, and the disparagement of his mind; and after that it comes to the public all men that come to espouse it. This cause, view. And that this man, Carr, is the author, the truth of it is, I did not look upon to be of Mr. Sutton and the rest of his witnesses, if they this nature and moment, when it was opened. speak according to conscience, they themselves For though there are in this very paper upon looked upon this very man to be the author. which the information is grounded, words maliTheir own witnesses looked upon it so. It was cious and reflective enough; yet they were not not only the private opinion of these men, but so apparently appropriated, that a man might the general report of all. So that, my lord, observe an extraordinary design in them. This had it not been necessary to the support of the I thought; but really the case is altered even government, I should have scarce troubled my-by those men. For I will tell you, Harris is self to give your lordship and the jury this trouble. But I must say, and I do believe, that there is no man whatsoever, that stands to have vices of this nature convicted and punished. but desires the protestant religion may be supported to the utmost, and that popery may be suppressed. But I say, whoever it is, that after this evidence, who is bound by his oath to go according to evidence, shall acquit this man, he must be a man of a humining conscience in deed. Sir Fr. Withins. I shall hint one thing to your lordship in this case: That it is an unlike ly thing that a papist should set out this Pacquet at this time. For then, my lord, how came it to pass that Mr. Carr had none came out that week; for his is a Weekly Intelligence? If Mr. Carr's had come out, and this likewise, there had been some pretence for this: But since there came out but one, that the papists set out this is unlikely. They have not pretended to bring in any body else as the author; but their own witnesses say, and they themselves say, he was looked upon as the author. Those things that are done against the government, are never done in the face of the govern ment. L. C. J. Really, gentlemen, I thought not that this had been a cause of that moment that now I find it. For their very disturbance hath altered it from Mr. Carr's to a public concern. The noise which they make, this way that these people use, that with their shouts and noise attend the cause, hath quite spoiled it: As in the case of Harris.* But those people thatdid then attend him, leave following him in a gaol for * See ante, p. 932. poor, and his keeping in prison is principally occasioned from the manner of the reception of his punishment, which he calls his pardon. And therefore these fellows, these buinmers, let them all know, whenever they come to espouse a cause of public concern against the government, they spoil it; and when they are taken, then they ruin one another. And this is like to be so, for none will help them with a groat. And this is the misfortune of that unfortunate man Harris, that he hath no place of mercy left him from the king, because he was attended with such a rabble as these people are, that have made a noise here, and yet will give him no help or assistance when he wants it: And let them know, it hath turned this man's cause into a public cause, because here are people that do espouse it, and the government is hereby concerned much more than by any one action that this Carr could have done. I have said so much more of this, that I might shew you to what a sad case this is brought from what at first it was. For if it had passed without such a noise, as you see how they express themselves, I should not have thought much matter in it; and though you had convicted him, I should have thought a better sentence might have served the turn: but they have undone Carr, if you find him guilty; and so it is likely to prove, whenever there is popular attendance upon public causes that concern the government. The present case it stands thus: Mr. Carr, here is an information brought against him for publishing a printed pamphlet called, The Pacquet of Advice from Rome, and in it there are recited some particulars, which were observed to you before, which was not well done; but yet not so insolently done as some perhaps do conceit. The question is, Whether he was the author or publisher of this: you hear he is thought the author, but say his counsel, it is not plain; and that is true. But it seems by their own witnesses, to any man's understanding, that they looked upon him as the author. But then, is he the author and publisher of this particular book? I had rather Mr. Carr, with all his faults about him, and his hummers, should go away with applause, and have him found not guilty, than do him wrong in one circumstance; for I come to try causes according to the truth of fact; I come not to plead on one side nor another; not to condemu men that are innocent, nor to acquit them if they be guilty. Now it remains for you to consider what proofs you have, as to this particular book against which the information lies; and that is the printer himself, who is one of the best sorts of evidence that can be had: for you very well know that evidences of fact are to be expected according to the nature of the thing. That is, forgery is not to be proved so plainly, as to expect witnesses as you do at the sealing of a bond; for men do not call witnesses when they forge a thing. Therefore in things of that nature we are fain to retreat to such probable and conjectural evidence as the matter will bear. I believe some of you have been of juries at the Old Bailey, and that even for men's lives, you have very often not a direct proof of the fact, of the act, or of the actual killing; but yet you have such evidence by presumption, as seeins reasonable to conscience. If there be a known case in men's lives, certainly that should govern in offences, and especially when offences are of a nature that reflect upon the Government. As for those words, illicitè, maliciosè, unlawful; for that I must recite what Mr. Recorder told you of at first, what all the judges of England have declared under their hands. The words I remember are these: When, by the king's command, we were to give in our opinion what was to be done in point of the regulation of the press; we did all subscribe, that to print or publish any newsbooks or pamphlets of news whatsoever, is illegal; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law for an illegal thing. Suppose now that this thing is not scandalous, what then? If there had been no reflection in this book at all, yet it is illicitè, and the author ought to be convicted for it. And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever, without authority. So as he is to be convicted for it as a thing illicitè done, not having authority. And i will assure you, if you find any of those p ⚫papers, I shall be more merciful in the consideration of their punishment, if it be inoffensive. But if so be they will undertake to print news foolishly, they ought to be punished, and shall be punished if they do it without authority, though there is nothing reflecting on the government as an unlawful thing. The reason is plain: so fond are men in these days, that when they will deny their children a penny for bread, they will lay it out for a pamphlet. And it did so swarm, and the temptations were so great, that no man could keep two pence in his pocket because of the news. But still they never repented of laying out their money, till they found there was nothing against the government. This is not worth a farthing, there is nothing of treason in it, we will not give a farthing for it. Therefore this book, if it be made by him to be published, it is unlawful, whether it be malicious or not. Now for the matter, the subject matter. What, doth Carr think he hath too much wit to fool us that are to try the malice? It was sillily writ, if he did not believe we understood it, and that were very intolerable in us; I hope I speak plain: That is, the sort of books that he writ; it must be with an intent people should know what reflections he made; and shall all mankind know, and shall they that try the cause not know it? If you find him guilty, and say what he is guilty of, we will judge whether the thing imports malice or no. Sir Francis Winnington hath told you there are some things that do necessarily imply malice in them. If this thing doth not imply it, then the judges will go according to sentence; if it doth, so that it concerns not you one farthing, whether malicious or not ma licious, that is plain. Now, there remains only one thing, that is, Whether or no he was the publisher of this book? For that we have this evidence. The printer tells you, he was the person that they looked upon to be the author of this book, that he sent this book to be printed by his boy. The printer saith, that he often discoursed with him, and he took it for granted. His boy brought it. To what purpose? To be printed. The printer's servant says, they looked upon him as the author, and I have fetched sheet by sheet, several sheets from his own hand. I will do right in the case, be it what it will, let him escape or not. Say his counsel, Had you this particular paper from him? I urge this as clearly, as their own counsel have objected. For that you must consider, whether he is the author of the book. You must take evidence in this case, as you do all the year long; that is, in other cases, where you know there is an absolute certainty that the thing is so: for human frailty must be allowed; that is, you may be mistaken. For you do not swear, nor are you bound to swear here, that he was the publisher of this book; but if you find him guilty, you only swear you believe it So. God help juries, if so be in matter of fact they should promise otherwise. They cannot swear it. Now the question is, Whether you have evidence enough here to swear he was the publisher: for this is the main thing, to prove that he is so. Now the printer tells you that he knew the man; that he had frequent converse with him about it, and that he took it for granted. Now consider, when a man talks at this rate, he does not say be was, but that he took it for granted; he does not as much as say he is. They will own he writ several sheets of this book; then, why not all this book? Now we come to the more principal matter of fact, according to reason and the probable evidence of things. That this person is taken to be the author, and that it was his boy that brought these papers to be printed. If you cannot say he sent him, you can give no verdict while you live, if you expect that. The printer says, he had been often discoursing with him; that his boy brought them, and that he knew no other person in the world that had any pretensions to be the author, and if he were the author, no doubt but he is the publisher. Whether or no any body else had an hand in this, we do not know. If you are satisfied in your consciences that you believe he is not the author, you must acquit him. If you are satisfied it is not he, you must find him Not Guilty. So that as you are honest men and wise, as I believe you are; if you believe he was not the publisher of this pamphlet, that he did not send his boy to have it printed, but that he came of his own head, you must find him Not Guilty. The Jury went from the bar, and nigh an hour after returned, and brought him in Guilty. L. C. J. You have done like honest men. men. See the Proceedings against the Judges, infra. 268. The Trial of JOHN GILES, at the Old Bailey, for assaulting and attempting to murder John Arnold,* esq.: 32 CHARLES II. A. D. 1680.† THE sessions began on Wednesday the 7th | day of July 1680. The ninth day Mr. John Giles was brought to the bar to be tried; and there pretended that he had witnesses at Monmouth, who could testify very material things for him, aud therefore prayed the court to put off his trial until the next sessions. Then the court asked him his witnesses names, and what they could say? Which he then declared to the court. Upon which Mr. Arnold, being present and prosecutor (Tam pro Domino From the Journal of the Commons it appears that this Mr. Arnold had been very active against the Papists. From a pamphlet, intitled, "The Trial of John Giles, at the Sessions-House in the Old Bailey: Held by Adjournment from the 7th day of July, 1680, until the 14th day of the same month: The Adjournment being appointed on purpose for the said Giles his Trial, for a barbarous and inhuman attempt, to assassinate and murder John Arnold, esq. one of the Justices of Peace for the county of Monmouth, and now a member of the honourable House of Commons, made public by virtue of an Order of the Lords Spiritual and Temporal, in parliament assembled: London, printed by Thomas James, for Randal Taylor, and by him sold at his house near Stationers Hall, 1681." "By virtue of an order to me granted by the Lords Spiritual and Temporal in parliament assembled, dated on Thursday the 28th of Oct. 1680; I do appoint Randal Taylor, near Stationers Hall, to print this Trial of Mr. John Giles, and that no other person or persons presume to print the same. Jo. COMBE." London, Oct. 14, 1680.' N.B. It appears from the Lords' Journal, that it was stated on the behalf of Combe, that he had carefully taken in Short Hand this Trial, and also those of Lord Castlemaine, Elizabeth Cellier, and Henry Care. Rege, quam pro seipso),' the court asked his consent, and what he could say why the trial should not be put off; that so all the world might hereafter say, That Mr. Giles had all the favour that he could reasonably desire, and what the court could in justice shew him, and that no manner of excuse might be left him. After which Mr. Arnold, in a very pertinent speech, declared part of the fact and also of the proceedings before his wounding, as it had occurred between him and Mr. Herbert; and of his favourable and just proceedings against Mr. Herbert, and also against John Giles, after the fact was committed; and declared that Giles had sufficient notice of his trial; but notwithstanding he did submit himself to the judgment of the court. Thereupon the court advised a minute or two's space; it was ordered, That the court should be adjourned until the Wednesday following; by which time Mr. Giles might send to Monmouth, and have what witnesses brought up he could get. And the day appointed being come, and the court being sat, proclamation was made ac cording to custom. Then the following jury were called and sworn, viz. Christ. Plucknet, William Dodd, Anthony Nurse, John Burton, Nathan Godwin, George Wood, James Par tridge, Lawrence, Wood, John Bradshaw, William Withers, Edward Proby, Rich. Bromfield. Who according to the form of law, were charged to enquire, Whether the prisoner were guilty of the following indictment upon which he had been arraigned, and had pleaded Not Guilty? Cl. of Cr. The Jurors of our lord the king, upon their oaths, do present, That John Giles late of the parish of St. Dunstan in the West, in the county of Middlesex, gentleman, not hav ing God before his eyes, but being moved and seduced by the instignation of the devil, contriving, and maliciously, by a most wicked conspiracy, with divers other malefactors to the |