The Fifth Day's Proceedings, July 1, 1651

These Exceptions following signed by Mr. Love's Counsel, were delivered this morning by Mr. Love's Solicitor into the Court, sitting in the Painted Chamber.

Exceptions to the Charge of High Treason, and other High Crimes, and Offenses, exhibited to the High Court of Justice, by Edmund Prideaux Esq., Attorney General for the Commonwealth of England, against Christopher Love, Clerk: And Matters of Law humbly presented to the said High Court, according to the Direction of an Order hereunto annexed. For this Order, see the foregoing page. First: The Charge is, That Christopher Love as a false Traitor, and Enemy to the Commonwealth of England, and out of a Traitorous and wicked Design, to stir up a new and Bloody War, and to raise Insurrections, Sedition and Rebellion within this Nation, in several days and times, that is to say, in the years of our Lord God 1648, 1649, 1650, 1651, at London and in diverse other places within this Commonwealth of England, and elsewhere, together with William Drake, and diverse other persons, did traitorously combine, confederate, and complot together, to stir and raise Forces against the present Government of this Nation, since the same has been settled in a Commonwealth and Free State, without a King and House of Lords, and for the subversion and alteration of the same. The Act of the 17th of July 1649 is, That if any person shall maliciously or advisedly plot, contrive or endeavor to raise forces against the present Government, or for the subversion or alteration of the same; and shall declare the same by open deed, that every such offense shall be Treason. Exception 1: The words Maliciously or Advisedly are left out of the Charge. 2: That the words of the Act are omitted, which are, Plot, Contrive or Endeavor. 3: It is not Treason within the Act to plot, contrive, or endeavor, to stir up or raise Forces against the present Government, or for the subversion or alteration of the same, unless the same be declared by some open deed. But the Charge is, That Christopher Love did combine, confederate, and complot, to stir and raise up Forces against the present Government, etc., and it is not charged that the said Christopher Love did declare the same by any open deed. Secondly, Whereas the said Christopher Love is by the said Articles charged, that for the Subversion, and alteration of the same, and to carry on the said traitorous Design, that he did Traitorously and Maliciously declare, publish, and promote the eldest Son of the late King to be King of England (meaning this Commonwealth) without the consent of the people in Parliament, first had, and signified by Authority or Ordinance to that purpose. The Act of the 30th of January 1648 is, that no person do presume to proclaim, publish, or any way promote Charles Stewart, son of the late King Charles, commonly called, the Prince of Wales, or any other person, to be King, or chief Magistrate of England, by color of Inheritance, Succession, Election, or any other claim whatever. Exception: It is not expressly charged that the same was done after the said Act made, neither does the Charge pursue the words or intent of the Act. Thirdly: The Charge is, that to accomplish the said traitorous and wicked design, the said Christopher Love, on several days and times in the years aforesaid, at London etc., together with William Drake and other persons, did traitorously and maliciously invite, aid and assist the Scots, being Strangers, to invade this Commonwealth of England, and has adhered to the Forces of the Enemies raised against the Parliament. The Act of the 17th of July 1649 is, that if any person shall procure, invite, aid or assist any Foreigners or Strangers to invade England or Ireland; or shall adhere to any forces raised by the enemies of the Parliament or Commonwealth, or Keepers of the Liberties of England; every such offense shall be taken to be Treason. Exception 1: That it is not alleged in his Charge who in particular were the Strangers that were invited to invade England. 2: That it is not alleged, that at the times of the invitation, aid and assistance laid in the Charge, the Scots were strangers. 3: That it is not alleged particularly in the Charge, to the Forces of what enemies raised against the Parliament, Christopher Love did adhere. 4: It charges the Prisoner for a treasonable assistance in some years that were before the said Act of the 17th of July 1649 was made. 5: To advance the said traitorous and wicked design, is uncertain to what design it shall have reference, several charges of treason being before expressed. Fourthly: The Charge is, That Christopher Love, diverse days and times between the twenty-ninth of March 1650 and the first day of June 1651, at London etc., did traitorously and maliciously give, hold, use and maintain correspondence and intelligence by letters, messages, instructions or otherwise, prejudicial to this Commonwealth, with Charles Stewart son of the late King, with the late Queen his mother, and with Henry Jermin, Henry Piercy, and diverse other persons being of Council and abiding with Charles Stewart. By the Act of the 26th of March 1650, the matters charged herein are only prohibited, but are not made Treason. Exception 1: That this charge is mislaid, being charged to be done traitorously. 2: The charge is uncertain, being alleged in the disjunctive (or otherwise) and shows not in what other manner. Fifthly: The Charge is, That Christopher Love, within the times, and at the places aforesaid, did traitorously and maliciously use, hold and maintain correspondence and intelligence with diverse persons of the Scottish Nation; that is to say, with the Earl of Argyle, and others of the Scottish Nation, and with diverse other persons of other Nations, whom Christopher Love well knew to adhere to the said Scottish Nation in the War against the Parliament. The Act of the second of August 1650 is, that all and every person that shall use, hold or maintain any correspondence or intelligence with any person or persons of the Scottish Nation, residing in Scotland, without the license of the Parliament, the Council of State, or the Lord General: or with any person or persons of the Scottish or any other Nation whom they shall know to adhere to the Scottish Nation in this War against the Parliament. Exception 1: That it is not laid, that the persons of the Scottish Nation mentioned in the charge, were residing in Scotland, nor expressly alleged that they did adhere. 2: That it is not averred that such correspondence was held without the license of Parliament, Council of State, or the Lord General, nor in what war the correspondence or intelligence was held. 3: It is not laid with what particular persons of any other nation adhering to the Scottish Nation, correspondence or intelligence was held; nor of what Nations. 4: This correspondence and intelligence is not laid to be after the fifth of August 1650 mentioned in the said Act of the second of August 1650, but refers to a time preceding that Act. Sixthly: The Charge is, That Christopher Love, within the times and at the places before mentioned, did traitorously and maliciously abet, assist, countenance and encourage both the Scottish Nation, and diverse other persons adhering to them in this War, against the Parliament. And did send and convey, or cause to be sent and conveyed, Moneys, Arms, Ammunition, and other Supplies to Scotland and other places, and to the said Titus, etc., in confederacy against this Nation, without license of the Parliament of England, or Council of State, or General of the Army. The Act of the second of August 1650 is, that no person shall abet, assist, countenance or encourage the Scottish Nation, or any other person or persons adhering to them in their war against the Parliament and Commonwealth of England; or shall go, or send, or cause to be sent etc., any money, Horse, Arms, Ammunition, or other Supplies into Scotland etc., or to any person under their power, or in confederacy with them against this Nation, without the license of the Parliament of England, Council of State appointed by their authority, and of the Captain General of the Parliament's Forces as aforesaid. Exception 1: That there are no particular persons named, who were abetted, assisted, countenanced, or encouraged, neither of the Scottish Nation, nor of any other persons adhering to them. 2: In the Charge, the sending of money, etc., is laid to be done without the license of the Parliament of England, or of the Council of State, or General of the Army. The words of the Act are, without the license of the Parliament of England, or Council of State appointed by their Authority, or of the Captain General of the Parliament's Forces. 3: The time to which this refers, is between the twenty-ninth of March 1650 and the first of June 1651, and so it takes in the time between the twenty-ninth of March 1650, and the second of August 1650, which is before the making of the Act. Seventhly: The charge is, That the said Christopher Love, at the times and places before mentioned, did Traitorously, and Voluntarily relieve the said Silas Titus, and one Sterks a Scotchman, which then were and yet are under the power of the Scottish Nation, and in Arms against the Parliament of England, with Moneys, Arms, and Ammunition. By the Act of the 26th of March 1650, the matters charged herein, are only prohibited, but not made Treason. Exception 1: That this Charge is mislaid, being charged to be done Traitorously. 2: It is laid to be at the times before mentioned, whereas there are several times before mentioned; so as it is uncertain to which of those times this Charge relates. 3: And of these times sundry of them are laid to be in several years before the making of the Act upon which this Charge is grounded. Allegations by Christopher Love touching the matters and proof upon the Charge. Though I do not conceive any sufficient proof is made of the Charges against me, yet I shall be ready to make it appear upon proof. That one of the principal witnesses has deposed against me upon promise of reward, and upon menace of punishment. That one has received extraordinary rewards for his deposing. That diverse of the witnesses against me have been by their own confession detected of contributing of supplies and assistance, sending and receiving letters, contrary to the late Acts. That no two lawful witnesses produced prove any one Treasonable fact. That no witness does depose further than concealment, or misprision of Treason at the most. Christopher Love. As this case is stated, we conceive these questions may arise. 1: Whether in this case these be lawful and sufficient witnesses, as by law is required. 2: Whether here be two lawful witnesses. 3: Whether any concealment of Treason be Treason within the late Acts. We have not seen any authentic copies of the Charge or Evidence; but upon the copies we have seen, we humbly conceive fit to tender these matters and Exceptions to the consideration of this High Court. And we shall be ready to speak to them, or any of them, or to any other matters arising upon the case, as we shall receive further directions. Matthew Hales. John Archer. Thomas Waller.

After the Court had received the precedent exceptions, and were sat in Westminster Hall, Mr. Love was commanded to the Bar.

When Mr. Love appeared at the Bar, he desired the Court that his counsel might be heard to these exceptions. And when Mr. Archer and Mr. Waller, who were of his counsel, appeared in Court, the Court demanded of them, whether they were of Mr. Love's counsel? They answered, they did understand they were assigned to be of his counsel by the Court; then the Attorney General demanded of them, whether or no they had subscribed the Engagement; they answered, they had not done it; and spoke further to this purpose, that they were by the Court assigned to be of Mr. Love's counsel, and were sent for into the Court, and in obedience to that they had appeared, and were ready to speak, if they might be heard. It was demanded of them by the Court, whether or no they would subscribe the Engagement? They answered, that they desired time to consider of it: and so withdrew.

After they had withdrawn, Mr. Love moved the Court that Mr. Hales, another of his counsel, might be sent for.

Upon the coming in of Mr. Hales, the Lord President said.

L.P.: You come as counsel for Mr. Love, the gentlemen that were here, are brought into an incapacity of doing him service that way; we asked them whether they have engaged: we doubt not you, but tell you the reason why we did it.

Mr. Hales.: My Lord, I have done it.

L. Pres.: Therefore you are assigned.

Mr. Hales.: I had very late notice of this business, it was Saturday night late before I had notice of it, and the next day was not a day to think of those things. Yesterday was Monday, and the most part of that day I spent in looking over those things that had been (I think) presented to your Lordship and the Court; we did not know what command your Lordship would put upon us, whether you would admit us to speak, and to what you would admit us to speak, and when you would admit us to speak. It is impossible (my lord) I must deal plainly, I confess it is impossible for me, in a business of this great consequence, to undertake to speak anything for the present, till such time as I know your Lordship's directions, and this was that we acquainted this gentleman with as soon as ever I saw him, and the first time that ever I saw him, which was but this day.

Att. Gen.: I think that Mr. Hales has put somewhat under his hand.

Mr. Hales.: We have done so.

Att. Gen.: In fact you must stand single, the other two are set aside, it must be you only, I suppose Mr. Hales knows what he is to speak to.

Mr. Hales.: Truly we know what we are to speak to, but to speak upon such a business on such a sudden, when we did not know what directions the Court would give, that I could not undertake, and I think Master Attorney will not press it upon us, it were a hard case if he should.

Att. Gen.: Mr. Hales knows as well as any man what is to be done in these cases, none better than himself, the Court uses not to assign counsel to pick flaws, but those that are just exceptions, and the Court is doubtful too, how they will allow counsel to debate them, and stand to the judgment of the Court. I suppose he comes to speak to that that the party has alleged.

Mr. Hales.: It is true, we do so: but Mr. Attorney General knows likewise, that when matters of law are assigned, that there is some reasonable time, we expect not long, but some reasonable time is assigned also for the parties to prepare themselves, for truly otherwise I should not do that duty I owe to the Court and my Client, if I should speak ex improviso, in such a manner as I have done; for the first time I saw anything of it, was on Saturday night, between eight and nine of the clock.

L Pres.: Though that was the first sight of this paper, as it is now set down, it was not the first notice you had to be of his counsel, but himself has declared it here long ago, that the former paper was by your advice.

Mr. Hales.: No (my lord) if he did so, I will plead not guilty.

L. Pres.: I will not say your name, but when he gave us in his paper, before this, the last day, you said it was the advice of your counsel.

Mr. Love.: Not Mr. Hales.

L. Pres.: Then perhaps we shall ease you a great deal: that that is under your hand, is very short, and we shall ease you of some of that too; and you know that upon all assignments in the Upper Bench and common Law, when they first open it, they show some causes upon which they will argue it, and when you have had time already, now show something that may be worthy of it, and we will consider of it.

Att Gen.: Before he speak (my lord) I desire that he will give it under his hand positively, not queries but positive, that this in his judgment he thinks fit to be matter of law, and to be argued.

M. Hales.: My Lord, we think that these things are such.

L. Pres.: Then you must upon the first sight open it so far, that it may be your judgment.

At. Gen.: But not suffer it to be debated unless you think it doubtful.

M. Hales.: We are here assigned counsel for him, and if your Lordship will please to give us that time that may be convenient for us to do our duty for him, if not, we shall do but your Lordship wrong, and our Client wrong if we should speak.

L. Pres.: You may have some convenient time, but you must open it now, that we may judge what time is proportionable; if you will not open it, that this is the point you will argue upon, we can say nothing.

M. Hales.: Then the reading of that which we have exhibited to the Court, will be as much as possibly I shall be able to do at this time, for we have had no copy of the Charge.

L Pres.: Nor must have.

M. Hales.: And we have taken a copy at random, according as it has been offered to us by those that have taken notes, and we have presented upon those Notes, and we have applied ourselves to M. Attorney for a copy of the Charge, and he conceived that it was not fit for him to do it without direction of the Court; but for a copy of the Charge when Exceptions are taken, it is usual to have it granted; and for us to speak and spend your lordships time upon matters that are contained in a Charge, whereof for my own part I never heard, and which is usual upon Exceptions offered to be granted, it would be very—

L. Pres.: It is an excellent thing to speak to men of understanding; did you ever know an Indictment in this nature, a copy of it delivered upon the prisoner's prayer?

M. Hales.: Indeed, I have known it very often.

L. Pres.: He shall, as his memory serves him, speak to the substance, but to have a copy of the Charge, I take it, you have not known.

M. Hales.: Thus far I have known it, I have been commanded to be of counsel with persons that have been impeached of treason by the Parliament, I know that the Archbishop of Canterbury, when he was impeached of treason, had a copy of his Charge, that I know he had; I know this is the usual course, that if a person takes Exceptions to a matter contained in an Indictment, though it is true, he shall not have the copy of the whole Indictment, yet he shall have a copy of so much upon which his Exception grows; that has been done, and will not be denied; but for the other matter, I know that in the Archbishop of Canterbury's case there was a copy of the whole Charge granted, and the like was done in the case of the Lord Strafford.

At. Gen.: I shall give that answer a little more than I did, Parliamentary proceedings are no rule for other Courts to walk by; besides (my lord) you sit here upon a known published Law, and the offence charged is against those Laws: I believe M. Hales well remembers, that both my lord of Strafford's case, and the Archbishop of Canterbury's case were both of them for many several facts several times a long time committed, which several facts being judged by Parliament, were judged to be treason not against any settled positive Law: And for Strafford's case, you know how the judgment, at last was given by Act of Parliament, King, Lords and Commons. And for the Archbishop of Canterbury's case, you know what the several complaints against him were, many of them not treason, but so many of them together, that in Parliament they thought fit to judge him guilty of treason; but those privileges are not to be paralleled, he knows very well it was not against such, and such, and such a law, to make those offences treason. Having given thus much favour, I may say, to the Prisoner, that he may by memory exhibit his Exceptions, he has done it, if you judge that those Exceptions are worth the debating, be worthy of it, you may (as M. Hales says) give directions for so much to be given him, otherwise (for my part) I did never give it to any; but those that have been in my place before, did never give it but by immediate Warrant from the King, or the Parliament now, but for so much as the Court thinks fit, for so much as concerns the Exceptions.

Sir Tho. Witherington.: For that that M. Hales objects to the Indictment, it stands with a great deal of justice; for if a prisoner lays hold of part of an Indictment, and says there is a mistake in it, there is reason it should be so, because the Court must judge it whether it be so or not, therefore there is necessity of it that there should be a copy of so much; but I think he never knew that all the Indictment was, but that part, and that is of necessity for the Court, that they may see whether the Exceptions accord with the Indictment or no; if there be any Exception to an Indictment, if that Exception remains not as a doubt or question, there shall be no copy of so much of the Indictment given: if he shall raise a doubt that there is any doubt in law, or any question and variance between the Acts and the Charge, if he shall raise any such doubt, then I think according to the old law he may have that part of the Charge; but we desire he may raise some doubt to the Court.

M. Hales.: My Lord, we have raised the doubts, and we are ready to deliver in those that we conceive to be Exceptions to the Charge, if we be over-ruled in them, we have no more to say; but if your lordship upon the view of these things we have offered, think them worthy to be spoken to before your Lordship, then surely that is agreeable with that very rule which the Council of the State is pleased to state; that is, that in case we allege that which the Court shall think fit for us to debate before them, that then we may have that whereby it may appear whether we debate upon that which is, or is not.

At. Gen.: M Hales says he has given them in, but I have seen none of them, my lord.

L. Pres.: Whether their memory be perfect or imperfect, that we shall help you with, and then I will tell you what you were best do, for time goes away: we will before you take it, take the several Statutes and the Charge, and your Exceptions, and compare them altogether before you, and you shall except to every one as you go.

At. Gen.: I desire the exceptions may stand as they are.

L. Pres.: Aye, but he shall see whether there be any material variance between the Notary and the Charge.

At. Gen.: That Notary was upon favour too, Mr. Love will acknowledge it.

Mr. Love.: I do with all thankfulness acknowledge it, my lord.

At. Gen.: I desire it may be no precedent for after-times.

The Clerk.: If you please, read your Exceptions.

M. Hales.: My lord, we begin with the first, and these are the Exceptions: We take it that Charge is grounded upon the Act of the 17th of July, 1649, and we take some Exceptions to that first part of the Charge, that is, concerning what offences shall be adjudged treason.

L. Pres.: Read your Exceptions, and then you shall hear the Charge.

M. Hales.: Our exceptions are these; first, that whereas the words of the Act are, that if any person shall maliciously, and advisedly plot, contrive, or endeavor to stir up, or raise forces against the present government, or for the subversion or alteration of it, that the words maliciously or advisedly, are left out of the charge, which we conceive are material words.

At. Gen.: Read.

M. Barnard the Clerk.: That he the said Christopher Love, as a false traitor and enemy to this Commonwealth, and Free-State of England, and out of a traitorous and wicked design to stir up a new and bloody war, and to raise insurrections, seditions, and rebellions within this nation, did several days and times, in the several years of our Lord, 1648, 1649, 1650, 1651, at London and in various other places within this Commonwealth of England, and elsewhere, together with William Drake late of London Mercer, Henry Jermin late of London Esquire, Henry Piercy late of London Esquire, Richard Graves late of London Esquire, Edward Massy late of London Esq., John Gibbon late of London Gentleman, etc. and other their accomplices yet unknown, did traitorously and maliciously combine and confederate themselves together, and plot, contrive, and endeavor.

At. Gen.: What say you M. Hales?

M. Hales.: Now we find what the inconvenience is of coming to put in our exceptions, when we have not a clear copy of the charge, and that was the cause why we did subjoin this, that in case any mistake arise by mistake of the copies, that we may amend: it is true, we find maliciously is in.

At. Gen.: Traitorously will be enough.

M. Hales.: I think not, that is over; for if it be maliciously alleged, that is over. Then the next thing we except to, is, he traitorously combined, confederated, and complotted together; it is true, there is plot in it, but there wants the words contrive and endeavor, but that is not the principal matter we stand upon.

The Clerk.: They are in.

M. Hales.: Then that is answered too. The next exception that we take to the charge is, that the Act upon which this part of the charge is grounded, says, that he must manifest it by an overt act, by an open deed; now we say, there is (as we conceive) nothing charged upon him in pursuance of this Act, that is, there is no overt, or open deed laid in the charge, for the words of the Act are so, that if any man shall maliciously plot, contrive, and endeavor to stir up, or raise forces against the present government, and shall declare the same by open deed, that then every such offense shall be treason.

At. Gen.: If M. Hales has read the copy of the charge as it was taken, I think he finds various of them in the charge of open acts.

M. Hales.: The business is not whether there be open deeds, but whether they are applied to this Act, or be substantive charges of themselves.

At. Gen.: I would ask him, whether that open act must be in the indictment, or in the evidence?

M. Hales.: In the indictment; it must be expressly laid in the indictment, or else it is no good indictment.

At. Gen.: But for that, that we may not dispute upon those things, my lord, there are the several charges against the several Acts; there are several open acts that are laid in the indictment, and (I think) if he look upon it, he will find that they are laid to every one of them, and relate and refer to every one of them.

S. Tho. Wither: There is writing of letters, contributing of money, and receiving of messages.

Mr. Hales.: That will appear by the subsequent parts of the charge.

L. Pres.: The subsequent parts of the charge will make that appear, for if he did lend money, etc. if they be really there, we shall hear it by and by.

M. Hales.: I take it, that the law is very plain, that the Act must be mentioned in the indictment.

At. Gen.: But we will not debate that when we are express in the thing, we are not so tied to form, as to pin them to every word of it.

The Clerk.: And further to carry on and accomplish the said wicked practice and design; he the said Christopher Love, various days and times between the 29th of March 1650, and the first of June in the year of our Lord 1651, at London and other places as aforesaid, did traitorously and maliciously give, hold, use and maintain correspondence and intelligence by letters, messages, instructions, and otherwise.

L. Pres.: These are open acts.

Mr. Hales.: Then favor us in this, we take it that between this, and the first charge, there comes a particular charge, that relates to Charles Stewart, that is intervening between the first charge, and this that is now read, or else we are mis-informed by the prisoner; and if there be so, then we think our exceptions will take place.

S. Tho. Wither.: It is all contained in one indictment, and then that which explains the overt act follows afterwards, as a distinct thing in the indictment, and so it was in my Lord Cobham's case in that indictment, and in my Lord of Essex his case.

L. Pres.: He may make overtures.

M. Hales.: We confess it; but we suppose it very certain, that both as this Act is penned, and as the Act of — is penned, which are much at one, as to the manner of penning them, there is of necessity an overt act to be laid to make good that general charge; that, we conceive, will be plain; and that is admitted and agreed by the Lord Cook in his collections of the Pleas of the Crown, fol. 12-13, where he says, the indictment of the Earl of Somerset, in the time of Edward the 6th, and all other of the like form, were against law, because he said, that he did not follow the words of the act, and that he did it per apertum factum, and shows not what that open deed was; that was not a good indictment, for the fact must be set forth in the indictment; that must be done. Then the question is, whether this be so done here or no? We conceive by this charge it is not so done here, upon this ground; we say, there follows after this a particular charge concerning his promotion of Charles Stewart; and then subsequent to that, there follows this that the court has now read; we say, that in this case here is not a charge of an overt act, neither by the one nor by the other; there is not a charge by the former, because that is a distinct treason made distinctly treasonable by another act; and therefore that which is made a distinct charge of treason by another act, shall not be an overt act within the former: that is one thing we say. And another thing we say is this, that in this case, the second, that is that which the court has been pleased to direct to be read to us concerning his holding correspondence, that shall not be an overt act relating to the first charge; for it is an uncertain relation: for there be two designs mentioned before, the one is a design contained in the first charge, the other a design contained in the second charge, for the promoting of Charles Stewart; and we say, the third shall not be coupled up to the former, because it is a distinct charge of treason in itself, and because it is uncertain to which it relates; for it refers not more to the first charge than to the second concerning the promoting of Charles Stewart, that is called the Prince of Wales.

L. Pres.: For this, I take it for the present, that the charge is founded upon four statutes, if he lay the offence against the first, second, third, and fourth, and he shall come and conclude it without relation to any particular of these treasons, he did thus and thus by letters and correspondences, that will relate to them every one, though it come but in the conclusion; and though the statutes be various, yet the indictment is but one, and he may put in this of the overtures in one place sufficiently, to be a sufficient overture to every one; and therefore though to one of them there should be no overture in it at all, but valet ut valere potest, it will hang upon so much, as it will bear an overt act, and then you will not deny but that those words are overtures.

M. Hales.: It is true, they are so, but yet still we conceive this third, which we call the third charge, that is concerning holding correspondence, the third or fourth, I cannot tell which it is, but it is one of them; we say, that that is not an overt act applied to the first charge: when we come to the substance of that charge as it stands by itself, then our exceptions will rise upon it, as it stands singly by itself; but we conceive that shall not be a supplemental charge to make good that first charge, that is concerning endeavouring to subvert the state as it stands established, it shall not be used as an overt act to make good the first charge; when we come to that particular charge, that is concerning the maintaining of correspondence, whether it be a good substantive charge of itself, then we shall offer our exceptions to that; but in the mean while we are but upon debate of the first, whether the first contains such a charge, as by the Act of the 17th of July, 1649, is required.

At. Gen.: My Lord, we are heard before you concerning it, Mr. Hales will find that after all these laws are repeated, and after all his offences against those laws are repeated, it is concluded that all are against the several Acts of Parliament, in such cases made and provided; if Mr. Hales will single them, [reconstructed: t]he impeachment does not, but relates to all of them; and, I think, that in this way of impeachment we are not tied to those very nice and strict formal rules upon indictments, but if substance does appear, it does appear to you, my Lord, that in substance the acts are pursued, and that upon the whole impeachments there are, even this that is required, the expression of an open deed, an overt act, those are laid, and it will be acknowledged by Mr. Hales, that they are in themselves sufficient, being thus expressed and concluded, that those several practices and designs, and treasons, are against the form of the several statutes, in that case made and provided, not in relation to the 17th of July, nor the 2nd of August, but to all of them; and I believe that all of these facts, all of this treason, all of this design, whether with the Scotch nation, or members of the Scotch nation, or those adhering to the Scots nation, had all but one foundation, the subversion of this present government, that was the foundation and treason of the whole, that was it that was intended; for to bring one in, and not to cast out the other, would have done no good; but upon the whole, that was the treason; and upon all these circumstances and open deeds, and designs, the sum, though it be a treason to hold correspondence, though it be a treason to promote Charles Stewart, though it be a treason to do other things, yet the treason is in this, the Scots nation to come in with intent to subvert the government, Charles Stewart to be made king to subvert the government: so that the grand work, at heart, at root, was the subversion of the present government; and as for that, I wish heartily for Mr. Love's sake, there were not so many open deeds expressed by him.

S. Tho. Wither.: Mr. Hales speaks of the Charge, the words are these; And further to carry on and accomplish the said traitorous and wicked Practice and Design, he, the said Christopher Love (now this I take to be the overt Act) divers days and times between the 29th of March 1650, and the first of June 1651 at London and divers other places; as aforesaid, did Traitorously and Maliciously, use, and hold correspondence and intelligence by letters (those are open acts) Messages, Instructions and otherwise, to the prejudice of the Commonwealth; and these are laid within the time, and not a distinct Charge, as Mr. Hales would infer: but they do directly set forth an overt act done by Mr. Love.

Mr. Hales.: Is it your Lordships pleasure I should reply any thing, because I come utterly unprovided for it, I must profess.

At. Gen.: We may give him this, and one or two more.

L. Pres.: Go on Master Hales, if you have that that is material for another reply, do; but take this, Master Hales, I take it very strong both in Grammar and Logic too, as well as in Law, that when all the whole charge is radically and fundamentally but one Treason, though there be many branches of it, the Charge has knit them altogether, and made but one act of so many complicated Treasons as here are, and when he comes to the latter end, if some of them were De facto, not by an overt deed published, yet if he come and prove that it was so done by the proofs, that there was correspondence, and these things De facto done, and that charge De facto done, you cannot break it there, to say that this fact did not reach to all; for if there be any one, it is sufficient; but here it is to all, even to that one that you speak of.

At. Gen.: My Lord I shall read a word to Mr. Hales, Al which Treasons and Traitorous and Wicked practices and designs of him, the said Christopher Love, were, and are to the apparent hazard of the public peace of this Commonwealth and Free State, Parliament and people of England (Mr. Hales finds not these in any Indictment) and to the manifest breach, contempt, and violation of the laws of this land, and contrary to the form of divers Statutes and Acts of Parliament in such case made and provided, in general, my Lord.

M. Hale.: We conceive, under favor, and we think that it cannot be denied, that such a conclusion will not serve the turn.

At. Gen.: No, not in an Indictment.

Mr. Hale: If there be a substantial part of the Charge omitted, that ought to be alleged in fact, it is not the conclusion, that contrary to the form of the Statutes in this case made and provided, will help it. My Lord, (I come unprovided) the case of my Lord Dyer, that known case upon an Indictment for Recusancy, or for a willful or knowing harboring of a Jesuit, or Priest: Says my Lord Dyer, It is not enough to say, he did harbor him contrary to the form of the Statute, but he must say, he did it knowingly: he must allege and pursue the substantial words of the Act of Parliament. And so again, an Indictment for absenting from Church; it is not enough to say, he did it contrary to the form of the Statute: but that he did it obstinately. Therefore that general conclusion, that this was to the hazard of the Commonwealth (it is true, it is an ill thing for any man to do such a thing that is to the hazard of the Commonwealth) but those words serve not the Statute neither: and then to say at the conclusion, Contrary to the form of divers Statutes, that will not help it, under favor, in case of an Indictment. Then Mr. Attorney makes a difference between the case of an Indictment, and this Charge. I conceive that in this case there is no difference; the matter is the same, the one concerns the life of a person, and so does the other; the offence is the same, the one is a charge of high Treason, and so is the other. It is true, those formalities that concern the manner of the Trial, those (it is true) are laid by, because here is no Jury to come before your Lordship; but your Lordship tries upon the hearing of the testimony, and according to things alleged and proved: But for other matters that especially are substantially required by the Act of Parliament, we conceive that those shall be supplied no more by an intendment in case of a Charge before your Lordship, then in case of an Indictment for Treason: To this I shall say no more, but leave a word or two to your Lordships judgment. For the other thing (we are still but upon the first Charge, the first Article) it has first of all been insisted upon, that an overt act is not necessary to be alleged, because supplied by the words of the conclusion, Contrary to the form of the Statute: To that I have answered, I conceive, it is not, nor can it be supplied, because it is a substantial thing in the very words and bowels of the Act, and cannot be supplied by a general conclusion. Then it has been said by Sir Thomas Withrington the States Serjeant, that in this case those subsequent matters and charges shall be an overt act within the Statute; that is that which he has read to you; It is in the fourth Article (as I take it) That Christopher Love, divers times between the 29 of March 1650 and the first of June 1651, did traitorously and maliciously hold and use correspondence and intelligence by letters and messages. But that cannot be; I may say it, that is not a sufficient manifestation of an overt Act, because there do precede it these particular Charges of Treason within particular Acts of Parliament; why then, if so be (to maintain his design, for the carrying on of his design aforesaid) this should be said to relate to the first design, why not to the second design, of promoting Charles Stewart to be King? And why not to the third design? So that where there are three several designs before, all made Treason by the Acts of Parliament, that cannot be an overt act to make good the first part of the Charge, with submission to your Lordships judgment. And then another thing we say, That this Charge which Sir Thomas would carry up to the first Charge, and make it as an enforcing and overt act within the first Charge, that cannot be, for this other reason; because it is charged as a traitorous distinct act in him. Now we have this learning delivered by Sir Edward Cook in his Comment upon this, in the 25th year of Edward the Third: That is, where there are several acts made Treason; the one is an act for levying of war: Now there the case was Treason against the person of the King, Queen, Prince, etc. that one part shall not be an overt act in case of Indictment, shall not be construed as an overt act for the making good of another part; because where all are made equally traitorous, and all are charged as equally traitorous, we think, with submission, those parts shall not be made an overt act to another Treason. So when here is a Treason made by the Act of the 17 of July, and another by a subsequent Act, that which is charged as a Treason in the subsequent Act, shall not be said to be an overt act for the making good of the former: if the former be not a Treason able to maintain and support itself, this subsequent act shall not serve as a bolster to uphold it, and to supply that which is laid as a distinct treason of itself. Now these are the three things we insist upon: First, That an overt act is necessary to be laid. Secondly, That it is not supplied by the general conclusion, nor can it be. Next of all, that this act that is here laid to be done, traitorously to hold correspondence and intelligence, it refers no more to the first design, than to the second or to the third design, which are charged as three distinct Treasons; and this is charged as a distinct and positive Treason of itself, and therefore shall not be carried over as a supplement to another.

Att. Gen.: We granting that an overt act is necessary to be expressed; grant it should be so, but no more but in evidence: and then granting in the next place, that the general conclusion will not be sufficient to maintain it, when it is requisite an open deed should be expressed. Then for the third, I cannot be of his judgment in this way of impeachments; but as we see one person may commit four or five treasons, and one act may be an offence against four or five Acts of Parliament; and this is the truth: for where the several acts are repeated, that (my Lord) are those laws against which this treason, and this treasonable practice and design is laid to be; then follows the several enumerations of those practices, designs, and open acts of his now applied by us. But Mr. Hales would take them and apply them to one singly; but I observe to your Lordship, that those open acts of his are offences by an open act against the several Acts of Parliament; but it serves his turn for his Client to apply them so: but I hope you will not apply them so; but when they come between the offences, and the overt acts follow it, and the conclusion upon the whole, that all those treasonous and wicked practices and designs are against the several Acts of Parliament: And if there be an open act so expressed in the impeachment, that in law is an open act, suppose it should be required to be expressed; if there be an open act, then I hope you will be satisfied when it has been well proved; if it be expressed in the Indictment an open act, that I hope will satisfy your judgments and consciences; especially when open acts shall appear to you to be an offence against the Acts of Parliament. I shall leave this to your judgment, and trouble you no further; and you will find in its place whether it be requisite or not.

L. Pres.: That that Mr. Hales said, if it were a thing of absolute necessity in an Indictment, then the conclusion will not help; if the thing were of absolute necessity there charged, and not charged contra formam Statutis, will not do it: but if I understand it right, it is fully laid in this Charge, that he did by open and overt acts do the thing; it is laid so; the words of open act are not, but the value; that is, that he did by writing, by words, by messages, by money; and these are really overt acts, though he did not call these overt acts; these are laid fully in the Charge: and then, if they be laid fully in the Charge, and we satisfied in the full proof of that Charge, that we have heard overt acts to maintain it, then I think this cannot come within any of those cases, that when an essential thing is left out of an Indictment, there the conclusion will not help: this I conceive so far. Then the next, What method or order this can be, by setting down the Statutes, and then withal these overt acts of letters, of messages, of money, will reach to every one of the qualities, that these Treasons are manifested by this act; but if it were a treason of such a nature, that none of these could reach to the manifestation of it, then you say well; but when these words reach to the manifestation of every charge laid in the Charge, then it is effectual and real, and the conclusion is sufficient.

Att. Gen.: Before he goes to the next, I shall crave your direction in it; for I profess, my Lord, to you, that I in drawing the Impeachments, take not myself to be so strictly tied to the forms of Indictments in letters and syllables; and the forms I have taken and do take, are those that have passed heretofore, and I follow them; and till I receive your direction to the contrary, I take not myself bound but to express the substance of that which is laid to his charge, by which he may know his Offence, and give an answer: But to forms, and quiddities, and niceties, I conceive I was not bound to that.

Mr. Hales.: I press not forms, nor quiddities, nor niceties in this business. The next is, concerning the charge of promoting the Prince of Wales.

Att. Gen.: No, there is no such thing in it, your copy is amiss again; read it.

Mr. Hales.: Our Exception is this, (we have been but upon the first all this while, I take it so) the next is, That he did treasonously publish the son of the late King of England, to be King of England (meaning this Commonwealth) without the consent of the people in Parliament first had or signified by ordinance to that purpose. I think we shall not trouble your Lordship much with that; for if that be as our copy is; it is true, it is not well laid; but if it be never so well laid, I conceive, as I am informed, there is nothing of that endeavoured to be proved.

Att. Gen.: That we leave to the Court, Mr. Hales.

Mr. Hales.: Then the next is, that to accomplish the said treasonous and wicked design, Christopher Love did at several days in the years aforesaid, treasonously and wickedly advise the Scots. Our exception to that is this, There is a treasonable assistance charged in some of the years that were before the making of the Act that did prohibit it.

At. Gen.: And afterwards too, Mr. Hales.

Mr. Hales.: It lays it in some of the years before the making of the Act, and that is sufficient to invalidate this Charge.

The Clerk.: And further to carry on and accomplish the said treasonous and wicked practice and design, he the said Christopher Love, several days and times in the respective years aforesaid, at London and divers other places within this Commonwealth of England, and elsewhere as aforesaid, together with the said William Drake, Henry Jermin, and others their accomplices aforesaid, did treasonously and maliciously invite, aid, and assist the Scots, being foreigners and strangers, to invade this Commonwealth of England, and has adhered to the forces raised by the enemies of the Parliament and Commonwealth aforesaid, and Keepers of the Liberties of England as aforesaid.

At. Gen.: You will find this in a Statute before this.

Mr. Hales.: Not before the 17 of July 1649, and then your Charge is repugnant, you charge us for an offence which is precedent to the statute.

At. Gen.: For that, you go and take them and pick them; but we lay them all together: there were Treasons he committed in 1648, and that which I pitch upon still is this (that Mr. Hales thought was waved) that this man did not promote the interest of Charles Stewart late King, or that he had not endeavored a subversion of this Government; I lay that against this Act made in 1648. Then by consequence to maintain that, he did it to promote his interest, and to subvert the Government; and there was a law in 1648 that did inhibit that; there is a law inhibits the calling in of strangers; and it follows by that, that he who calls in strangers may promote the interest of Charles Stewart too; and that foundation is to this purpose, that he did promote him to have been King of England: and you know what he expressed to you, what tenderness of conscience he had to take care that he might not go elsewhere.

Mr. Hales.: If it be so, then we must desire, that part of the charge may be read.

At. Gen.: I have not charged them, nor until I receive command, shall I vary from what I have received formerly, that I shall charge this to be against this, and that against that; but I have laid down the Acts of Parliament that have made things Treason, and the offenses severally, and upon the whole conclude that these are treasons against several Acts of Parliament severally; if one or all together serve turn, I hold it well enough. If you put me to every one of them particularly, I must have more time, and better Clerks to draw the Indictments.

Mr. Hales.: Still the same objection meets (with submission to the Court and Mr. Attorney, the same objection meets) with them; we say then, he will make this a kind of an additional Charge to the first, or to the second, or to both; but we know not to which.

Att. Gen.: Yes.

Mr. Hales.: But we say that that is not sufficient, upon these reasons, because it is a charge of treason in itself, and therefore shall not be made an additional and supplemental charge to make out another. And then we say, that this is uncertainly charged, whether you will make it supplemental to the first charge of Treason, that is, the endeavoring of the subversion of the Commonwealth; or to the second charge of Treason, which is a distinct charge of treason, of the promotion of the interest of Charles Stewart.

Att. Gen.: I cannot divide them.

L. Pres.: Are not these as perfect as before? Does not the subversion of this Commonwealth promote the interest of Charles Stewart? And does not the promotion of Charles Stewart subvert the interest of this Commonwealth? If he has laid it, that he did both of these by assuming it, by a double or multiplied act, and all these multiplied acts are but one subversion; if I subvert it by one, or by 20 acts, both of them are the same in nature; for the subversion of the one, is the bringing in of the other; and the bringing in of the one is the subversion of the other; and so they are relatives fully one to the other, and there cannot be more expressed in the Charge than this: And notwithstanding all these acts, though that act has made the Treason, cannot it be by another act? You may prosecute by virtue of this subsequent act, anything that was understood to be general treason by the law of the Land.

Mr. Hales.: My Lord, this is that we insist upon. It is true, we do conceive, though the promotion of the interest of Charles Stewart is not consistent with the preservation of the interest of the Commonwealth; yet every destruction of the interest of the Commonwealth is not therefore a promotion of the interest of Charles Stewart; for then there could be no Treason against the Commonwealth, but it must be a promotion of the others interest. Now there may be a Treason against the Commonwealth without the promotion of the others interest. I urge it to this purpose, to make it appear, that they are several Charges bottomed upon several Acts, and therefore the reference here made to promote the design aforesaid, is uncertain to which it shall relate; it may fall out the party may be guilty upon the first Article; it may fall out, he is not guilty upon the second Article, and then it is uncertain to which article it relates, that he is guilty of, or not guilty of: and here may be the consequence of it, then you will make a Treason, which to this third clause is a Substantive, and contained in itself, to be an overt act to another charge of Treason, and that you cannot do: you cannot make a Treason which is so charged, to be an overt act, or exposition, or a declaration of that which is contained in the former, like that case I instanced in before, of the 25 of Edward the 3rd, That no man shall go about to destroy the person of the King, nor to raise war against his people: so that we use it not in any other reference, but only to explain and bring the reason of that ancient Law to this Law: In that case a man cannot charge the overt act of going about to destroy his person, which is a distinct Treason of itself, to be an overt act to the Charge of Levying war, which is another distinct Treason: And if he allege, such a one did go about to destroy the Prince, or the Consort of the King, or the King, and to make the levying of war to be an overt act to it, this he cannot do; because though it is true, it might be an overt act to it, yet notwithstanding, it being made a distinct treason, it cannot be an overt act to another treason: and so here, this very assisting and inviting of forces is made a distinct treason; and so if you take it substantively, it is insufficiently laid; and if relatively, you may not do so, because it is a treason of itself, and shall not be brought in relation to another treason laid before it.

Att. Gen.: For that, I hope Mr. Hales will leave me to that liberty I have, that is, that if one act be an offence against several Acts, I may aggravate it so, as to make him know it is so; and I take it for an aggravation of his offence, when he has offended against so many several Laws, which he has done; and that I may have liberty to say so, though perhaps that subversion of this Government is not in every respect a promoting of the interest of Charles Stewart; but the subversion of this Government, as it is here laid in this indictment, is a promotion of the interest of Charles Stewart: and so it is here. And I have done now with that.

L. Pres.: Then (Mr. Hales) I will add a word, because that you did put the case of a man destroying the person of a King, and levying of war; if it be laid, those very acts, if they be laid as a continued, or a medium, or an enterprise, that he had taken up a war to destroy the person of the King; those words in one sense, if it had been laid solitarily by itself, and destroying the King in another; but if he showed that by levying of war he endeavored it, then the denomination is from the end in that place; and though they be two treasons substantively, yet when they are laid as one continued act, they are but one: and so it is in this case; all these, though there are several statutes, and several treasons, these multiplied acts make up but one complete in the conclusion: if there want one of these, if there be sufficient in the other, it is treason enough, and too much too (I would it were not so) if they be laid in subordination, as all these are, every one of them further to promote this, and to promote that; so they are laid in promotion of it to every one; and then they are contiguous, and depend one upon another, and are substantive, and so substantial, as that they may be relatives one to another, and so are these.

Att. Gen.: The next, Mr. Hales.

M. Hales.: The next is the 4th Charge; and that is, concerning holding correspondence by letters and messages, with Charles Stewart and the late Queen his mother; we say, that this part of the Charge is ill laid also; it is laid in nature of a felony by the Act, and laid to be done traitorously in the Charge; and that is a substantial (not a mere formality, but a substantial) mistake; for if so be a woman be indicted of petty treason because it is proditoria, yet in truth it amounts but to felony; now in case where she is an accessory to a felony, the indictment is naught: if a man be accused that he did traitorously such an action, which in itself amounts but to a felony, that charge is naught; and so it is here, it is mislaid: for by the act of the 26 of March 1650, the matters therein charged are not made treason, at most but capital; but we think it only prohibited, and then we say it is an uncertain charge: and so it is, under favour; for though the act says, No man shall hold correspondence by letters, messages, or otherwise; yet when we come to inform upon it, or to indict upon it, it is not enough to say, He held correspondence by letters, messages, or otherwise; but if you will ground your deed upon that Act, you must show what that otherwise is, and that is the exception to that part of the Charge.

The Clerk.: And further to carry on the said traitorous and wicked practice and design, he the said Christopher Love divers days and times, between the 29 of March, 1650, and the first of June 1651, at London and other places, as aforesaid, did traitorously and maliciously give, hold, use, and maintain correspondence and intelligence by letters, messages, instructions and otherwise.

Mr. Hales.: Or otherwise was our notes, then that is out of doors, but our exception is, that it is alleged to be done traitorously.

L. Pres.: And the Statute says it shall be Treason.

M. Hales.: No it says not so, the Act lays it only in nature of a felony, and in the Charge it is laid to be done traitorously, and so the Charge is mislaid.

At. Gen.: I confess it is expressed so in the 26 of March 1650, and it is not said what the offence is, but I conceive in the first place, that by the law of England, he that holds correspondence with a Traitor, will go very near it, my Lord; and then I humbly conceive, that still he going upon the first Act, it is laid to be with Charles Stewart, and the Queen and Council with him (I think) it is a promoting of his interest; he to hold a correspondence with him, whom the Parliament has said, you shall in no case promote his interest.

Mr. Hales.: I must be bold still a little, to crave Mr. Attorney's favor, to reply upon him in this kind of way, for I have not had time.

At. Gen.: You have had more time than I, for I heard not of it till now.

Mr. Hales.: We say, the Charge is not good because it is made felony only by the Act, and laid in the Charge to be done traitorously; and then we say, that Charge is uncertain to what design it relates; if it relates to the business concerning the promoting of Charles Stewart's interest, if it be so, we conceive it is not proved; for the proof I mention not, but that is not insisted upon, that Master Love did promote the interest of Charles Stewart, contrary to the Act of Parliament, that (I think) is not insisted upon.

Att. Gen.: O yes.

Mr. Hales.: I conceive, no.

Att. Gen.: I conceive very much otherwise, Mr. Hales.

Mr. Hales.: I desire that Charge once more may be read concerning the promoting the interest of Charles Stewart.

The Clerk.: And the better to carry on and accomplish the said traitorous and wicked practice and design, he the said Christopher Love, with the said William Drake, etc. (since the death of Charles Stewart, late King of England, who for his notorious treasons, and other tyrannies and murders by him committed, in the late unnatural and cruel wars, was by authority derived from the Parliament, justly condemned to death, and executed) several days and times, in the respective years aforesaid, at London aforesaid, and sundry other places within this Commonwealth and since this Nation was settled in the way of a Commonwealth or a Free State, as aforesaid, did traitorously declare, publish, and promote Charles Stewart, eldest son to the late King, to be King of England.

Mr. Hales.: We are informed, that there is nothing of any particular act of his, concerning that; but we have nothing to do with the Fact, but we conceive that no subsequent thing by way of construction or interpretation, shall make a publishing and promoting in such a manner as this is, it must be such a thing as expressly publisheth and promotes him to be the chief Magistrate of England, according to the words of the Act, and not by way of dilation; we say, this is not a thing to be applied to serve the turn, upon this reason; we say, that the holding of correspondence and intelligence with Charles Stewart, eldest son to the late King, it cannot be coupled on to the promotion of the interest of Charles Stewart to be King of England, seeing that is but by way of interpretation to bring it within the first part of the Act.

Att. Gen.: For that I shall crave your direction.

L. Pres.: It is not interpretative, but positive.

Att. Gen.: But I shall crave your pleasure, whether I shall in my impeachments afterwards put in all my evidence; what is charged, and evidence proves, that you will judge upon I hope.

Mr. Hales.: then the next part of the Charge, and that is the fifth, that he did hold correspondence with divers persons of the Scots nation; our Exception to that is plain, we conceive, that part of it is not well laid neither, it is not laid in pursuance of the Act of Parliament, as our notes are, this is that we say, that it is not expressly alleged, that they were persons residing in Scotland, as our notes are.

Att. Gen.: Like enough so, Sir.

The Clerk.: And further to carry on and accomplish the said Traitorous and Wicked Design, he the said Christopher Love, several days and times in the respective years aforesaid, at London aforesaid, and divers other places within this Commonwealth of England and elsewhere, as aforesaid, did Traitorously and Maliciously hold and maintain, correspondence and intelligence with divers persons of the Scots Nation, namely with the Earl of Argile, Lowden, Louthian, Bayly, Belcarris, and divers other persons of the Scots, and other Nations, whom he well knew to adhere to the Scots Nation in this war against the Parliament and Commonwealth of England.

Mr. Hales.: This we conceive, is not a good charge, for the words of the Act of the 2nd of August 1650, upon which this is grounded, are, that no man shall hold correspondence with the Scots Nation residing in Scotland.

Att. Gen.: You were best read further, Mr. Hales.

Then Mr. Hales read part of that Act, beginning at these words, [Be it Enacted, Ordained, and declared by this present Parliament] and ending with these words, [Without the allowance, license, &c.

Mr. Hales.: It is true, there is no residing; for that yet comes not home, we conceive, to part of the Charge; there are two parts of the Charge, the one, That he did maintain correspondence with divers of the Scottish Nation, and with divers other persons of divers other Nations, whom he well knew to adhere to the Scots Nation in this war against the Parliament. As to the first, that is out of doors; then here is no full charge of holding any correspondence with any of the Scots Nation; for that part of the Charge rests upon this, that it must be with holding of correspondence with any such persons as are residing in Scotland, and with any other person residing there. Then as to the other part —

L. Pres.: It is a continued speech, not with the Scots nor any other.

Mr. Hales.: Then here is another thing in it, that it is not averred that such correspondence and intelligence was held without the license of Parliament.

Att. Gen.: You are mistaken in that, your notes are not true.

The Clerk.: And he the said Christopher Love, within the times, and at the places before mentioned, did Traitorously assist, encourage, without the special license of the Council of State, or Parliament, or Captain General of the Parliaments Forces.

M. Hales.: We say then, these are two distinct Charges, and grounded upon two distinct parts of an Act, but there is this more in it, which we conceive is not to be answered, with submission, under favour, it is said he did it within the times aforesaid, the times that are aforesaid, are between the 29 of March 1650, and June 1651; now this Act whereby this is made traitorous or Treasonable, takes not place till the 5th of August 1650, so that it might be done within the times aforesaid, that is, between the 29 of March 1650, and June 1651, and yet not contrary to the Act of the 2nd of August, which was 1650.

S. Tho. Wither.: We lay it within all the times aforesaid, and, I suppose, the matter of the evidence has told you the times, which now we are not to dispute.

Mr. Hales.: Whatever is done between the 29 of March 1650, and the 2nd of August 1650, is not done contrary to the Act of the 2nd of August 1650, upon which Act this Charge is grounded; there is a time between them, and between the time of exhibiting of these Articles: whatever is said to be done between the 29 of March 1650, and the exhibiting the Articles is not said to be done after the 2nd of August 1650; for if it be done between the 29 of March and the 2nd of August it is done within the time aforesaid, that is, between the 29 of March 1650 and June 1651, and yet not done contrary to the Act of the 2nd of August, because done before the Act came forth.

Att. Gen.: Though Mr. Hales will not consent to it, we will strike out the 29th of March, and then he will not deny but that is good enough, with that stricken out, before the first of June 1651. Whether it be not good enough, and no time laid before it?

Mr. Hales.: No indeed, it is not good enough.

At. Gen.: Why not? it is after the offence committed.

Mr. Hales.: Because it may as well be before the Act as after the Act.

At. Gen.: If we lay it after the offence committed, I suppose it is well enough, and the wisest will think so; lay it to be the first of June 1651; suppose it were in September before, it is good enough.

Mr. Hales.: If you lay it upon the first of June, it is a year, before it is not good enough.

Att Gen.: That which Mr. Hales insists upon, he may say it is before the first of June 1651 so long since, but in a just and reasonable interpretation, when we insist upon that law that makes it Treason to hold it after such a time, and we say that before the first of June 1651 he did commit Treason in holding correspondence, and sending provisions of war before that Law, though it were before the second of August, 1650, that were not against that Law.

M. Hales.: Still we say, that contrary to the form of the Statute, or contrary to the form of the Law, which is but the conclusion, shall not supply that which is material to be alleged: now when here is an act laid to be done, certainly it is material, to allege that it is done in such a time as may appear to be after the time of the prohibition of it to be done; the prohibition runs to the second of August, 1650, that no man after the fifth of that August shall do such an act; then it must be laid to be an act done after the fifth of that August; but it is not laid so here, but laid so as may be intended to be done before the fifth of August; for here is a time laid between the 29th of March, 1650, and the time of the exhibiting the Articles which is in June, 1651, and that he did this within the time aforesaid; now he that says he did it the 30th of March, says he did it within the time aforesaid, and yet says not that it is within the Act.

Sir Tho. Withrington.: We have given an answer to that, we have laid it within, and without the time, that it is within the time, the witness does prove it, and Mr. Hales speaks not to what we have proved, and cannot speak to it.

Mr. Hales: The proof shall never supply the insufficiency of the Charge; for we may as entirely offer you an Exception to this matter, after you have heard the proof, as before you have heard it; for it stands now as upon the Charge singly, so that it shall not be supplied out of matter that appears in the proof, but it must be considered whether the Charge can supply itself or not; for that which is allegable against the Charge before the proof made, is allegable as well afterwards; if it were not good before the proof, the proof shall not be supplemental to it; for upon that reason, if an Indictment did want time, or certainty, then after the party were heard upon his Defense, it might be said when this Exception was taken to the Indictment, all this might appear upon the Evidence, but that will not supply the defect of the Indictment.

At. Gen.: I am sure we have laid it late enough, the first of June, 1651, before that time, and Mr. Hales his Exception is still upon that way of proceedings upon Indictments; he must have that positive and strict certainty in it in each particular, I must give it that answer still, that if you do in these cases put me to it, to express every particular circumstance of every particular fact, and every particular time, and that it must conduce in the conclusion of it, I must make you Impeachments that will not be fit for you to read nor hear; but under favor, if that it contains in it in this way of Charge that convenient certainty, that convenience that may put the prisoner to the knowledge of it, and to prove it; for this relates not singly, for if I should go that way Mr. Hales has labored to draw me, that is to take every one of these severally, and that I must make a distinct Charge upon one, and upon the other, and a distinct Evidence upon one, and upon the others, I conceive these run quite through all the laws every one of them; had I confined this now between the 5th of August 1650 and June 1651, then what had become of all the laws before that time? Therefore to make them relative to all, I have expressed such a time as may relate to all; for had I confined it singly upon this or that act, whereas I humbly conceive, that these acts and these offenses of Mr. Love are relative to more than one Act of Parliament, and go to several acts; and therefore I cannot confine myself to one act, and say, it was done at such a time, and there limit it and let it die; but my endeavor has been, and upon this particular we debated it, when we did draw it, we put it so, that the several acts may have the several effects, and Mr. Love's Treasons look upon every one of them, and they upon every one of his Treasons, and as his offenses run through, and against all the acts, so must our laying it upon him run, and the evidence also; and though we took care to lay it back far enough, that was to the first of June, 1651, and so laid it high enough to the other that it might reach the rest, and in this way we are not tied so to express it in every particular, as other Indictments run.

M. Hall Att. of the Duchy.: He would charge it upon the times between the 29th of March, and the 1st of June, that be not the times that we have expressed in this, for it is that within the times aforesaid we have positively laid, that it was in the year 1651; for we have laid before that in the year 1648, 1649, 1650, 1651, then in the times aforesaid, we have positively laid, that this fact was done in the year 1651, which of necessity must be since that Act concerning the Scots was made, and that I conceive is an express positive time mentioned in the Charge, and gives a full answer to that objection; for it is not within such a time, but in the year 1651.

M. Hales.: That Charge is within the times aforesaid, which is last mentioned, between March 1650 and 1651.

Mr. Hall.: That we shall submit to the Court, whether in the same times aforesaid, shall not relate to all the times before-mentioned, as well as the particular times he has picked out; for we mention that in the year 1651 these things were done.

At. Gen.: For that I have given you that which is the general answer, if I be put to it, whereas Mr. Love had transgressed against those several Acts of Parliament, we have put it so, that we conceive his offenses run through them all, and so we have laid them, and I hope we are not upon those niceties, that we must express the direct days and times, as Indictments run, but here is enough to make him know his offenses.

L. Pres.: I conceive it is much better as it is too, and more obvious to every understanding, and their interpretation, than as you would have it, a great deal; for the necessities of the day it is not material, that you will agree, nor the week if they lay a time so many months before, or after, if the proof come and fall within the compass of the Charge, as the proof is laid, so is the fact, the proof determines whether it were within the times without the Law, or within the times aforesaid; for it is not within that time, and every of them, but within the times generally laid, all those acts were done, and those must be laid in particular, which was at one time, and one at another, which were two years a brewing, and are by the proofs laid in general, that is best to say, one fact was done at one time, and another at another time, and at such a time, and not at such a time, it can be no man's judgement to be so laid in an Indictment or Charge, but they must be laid thus in general, and the Evidence must make it particular, that it was within the times that are laid, as when there are no times, as from March to June and August, and after if they be both laid, if the fact be within such a time that is within the law, all the other is out of doors.

M. Hales.: My Lord, thus if it please your Lordship, I think with submission to your Lordship's judgment, that in such a case it is not in the proof to make good a Charge; if the Charge do not contain a sufficient certainty, it is not in the proof to make it good. My Lord, I insist now upon the necessity of a day to be precisely laid; I know (though it is true, it has been otherwise held in some cases) yet, in a case of this nature, the day is now material, for now we are upon an Act of Parliament: As now, if so be the Statute of the 29th of Elizabeth enacts that every man that shall knowingly entertain a Jesuit, that that man shall be a Traitor, shall stand guilty of Treason; if so be a man would say in an Indictment that such a man between the 28th of November, in the 28th year of the Queen, and the 28th of December in the 29th year of the Queen, did entertain such a Jesuit, this Indictment would be naught, not upon the uncertainty of the day, but because it takes in a time which is not prohibited by the Statute, the Indictment may be true that he did receive a Jesuit within that time, and yet that he did not receive him contrary to the form of [reconstructed: the St]atute, and to say in the conclusion contrary to the form of the Statute will not help it, for that is our objection, that it is not done contrary to the form of the Statute, because it takes in such a time, as that it might be done before the Statute came forth; we say, that when there is a time laid between the 29th of March 1650, and June, 1651, and that within that time he did do thus, and thus, that there is the fault, it does over-reach the time of the prohibition of the Statute, for anything appears to the Court, the Court may find the Indictment or Information true, that he did it within this time, that is, between the 29th of March 1650, and June, 1651, and yet for all that, the party not in fault to be impeached, because he might not do it contrary to the Act, for he might do it between the 29th of March, 1650, and June, 1651, and yet do it before the Act came forth, which was in August, 1650.

M. Hall.: My Lord, I conceive M. Hales has not answered that I alleged; but now if there were no other times mentioned in all the Charge, but only between the 29th of March and June, 1651, then it were somewhat; but when the times are expressed before, though that it was in the year 1651, and then we say in the times aforementioned, I conceive that in the times aforesaid shall relate expressly to that time in the year, 1651, and then it must be within the Act.

M. Hales.: That cannot be, that will make the Charge worse.

L. Pres.: That I conceive you are upon is this, the very letter of the Charge; for you say at this time that is laid, he could not be a Traitor, and you join it with a time in which he might be a Traitor; this (you say) they lay in the Indictment, that he did in such a time of March, and afterwards, and at that time there was no law to prohibit it, and so that could not be a crime against him, and this, you say, no proof will help it, I take it, M. Hales, this is the substance; but if this be thus laid, and the proof does come in, this is very essential in my judgement, when upon the matter, if this be as you see it appears upon the face of the thing, that the proof must go to that time within the Law, and therefore that will not vitiate at all such an Indictment, if it were so as you say; but I take it, that this being complicated with more Laws, as I said before, though he were not guilty upon this, yet in the conclusion he is found guilty of that which is as to other offences.

Attorney General: I shall say but this, we all know that a time is expressed but for formality, and that time that is expressed is not material, so it be laid far back enough; but if I lay it in June, and prove it in June twelve months, it is time enough for this, as your Lordship was saying: that which I do say, is, that I cannot confine not this very act that is supposed to be, and yet not laid to be against that Act of the 2nd of August 1650, from this clause in express terms, not singly. But that which I humbly insist upon is this, that never a one of these offences singly transgresses one single law, but is an offence against several laws. I conceive, I had done myself and the Commonwealth wrong, had I limited it to any one; for his complying with the Scots, and joining with them, and contributing with them, and receiving intelligence, it is more than against that single Act; it is promotion of his interest, and subversion of the government, and against every one of the laws. And therefore, I conceive, I had not done right to the place I am entrusted with, if I should have laid it singly; but he is indicted, that as a false traitor he has done these things; that is the preamble: and then we instanced the particulars, and give a time, which time he will acknowledge is not positively necessary to be true, that that time must be the day the fact was committed, but if it be before, it is enough. But he infers, because this seems to be an offence within the Statute of the 2nd of August 1650, and is laid between the 29th of March 1650, and the first of June 1651, and so whether this can relate to that Act; and by evidence you know it is afterwards; but this being an offence against several laws, I cannot charge it to be against one law: but the art is now, as Mr. Love began, to take it asunder, and singly, and then it is nothing; and Mr. Hales takes it singly. It is not against this, nor against this; but it is against every one of them, and not against this singly, but against the rest of them.

S. Tho. Wither: My Lord, it cannot be contrary to the form of the Statute, unless it be done after the time, so that the conclusion shows it was laid within the time, but for that case, as Mr. Hales instanced in, he puts a case of one Act of Parliament, we are now upon offences against several Acts of Parliament, in that case of retaining a Jesuit, he is a traitor by the Act of the 29th of Elizabeth, so that if he lays it between the 28th of the Queen, and the 29th, if the Jury find that he did retain him knowingly on the 10th of May 29th, then it will not be denied, but that it is an offence against the Statute.

Mr. Hales: But still we say the indictment is naught in that case, because it takes in a time which was before the Act came forth, so that the party might do it within the time expressed in the indictment, and yet not do it contrary to the Act, and this is our case.

Attorney General: My Lord, you have heard us for that.

Mr. Hales: The last thing is concerning contribution to Silas Titus, and Sterks a Scotchman; and to that we have the same exception, that that is not made treason by any Act of Parliament, and therefore it is mislaid to be done traitorously, for the Statute of the 26th of March 1650, only prohibits it, and so makes it penal, but not treason. But then we say again, it is laid very uncertainly too; that is, at the times before mentioned; if Mr. Attorney of the Duchy's constructions should stand, that is, that the times before mentioned refer to the time past, then he may refer to a time before the Act. But we conceive the thing itself is not treason by the Act, but only prohibited; and we conceive, under favour still, that by way of reduction to any of the former charges, this shall not be made as an instance or an overt act by way of reduction to any of the former charges, because it is charged particularly to be traitorously done, because there are several charges of treason before, and that which Mr. Attorney was pleased to observe upon another occasion, that in this case the charge is against several Acts of Parliament, it is true, but though it be against several Acts of Parliament, yet it must bind and pinch upon one; for we say, one treason is not to be made an instance to another, and so to be made accessory, and depending, and accidental to another, and then we say in this case, that this being not a treason in itself, and being as uncertain to which of the former treasons it is applied, it cannot be well laid, nor well applied, that is, to the last, that he did voluntarily relieve Silas Titus, it is not made treason.

Attorney General: It is against the Act of the 2nd of August, 1650, in express words: read the impeachment.

The Clerk: And further to carry on and accomplish the said traitorous and wicked practice and design, he the said Christopher Love within the times, and at the places last aforesaid, did traitorously and voluntarily relieve the said Silas Titus, Edward Massie, Colonel Bamfield, one Mason late of London Gentleman, and one Sterks late of London Gentleman, who then were, and yet are under the power of the Scottish Nation in arms against the Parliament and Commonwealth of England, with monies and ammunition. Which treasons and traitorous and wicked practices and designs of him the said Christopher Love, were and are to the apparent hazard of the public peace of the Commonwealth, and Free-State, Parliament and People of England, and to the manifold breach, contempt, and violation of the laws of this land, and contrary to the form of diverse statutes and Acts of Parliament in such case made and provided.

Mr. Hales: Then we say, it is uncertainly alleged, and uncertainly laid: but we take it, it is not within the words of the Act, we desire that Act may be read.

The Clerk: That shall from and after the 5th of August, 1650, use, hold, and maintain any correspondence, etc.

Mr. Hales: Then this is not within this Act, because that this is concerning sending to persons that are in Scotland, I observe not that it is charged that they were in Scotland.

Attorney General: Or shall abet, assist, countenance or encourage the Scottish Nation, or any other person or persons adhering to them in their war against the Commonwealth: What think you of relieving, is not that abetting and encouraging?

M. Hales.: It should be laid so then, I desire that part of the Charge may be read again.

The Clerk.: And further to carry on, &c.

M. Hales.: My Lord, we think this is not fully charged according to the Act.

At. Gen.: I will read you another of the 26. of March 1650.

M. Hales.: That makes it not treason.

At. Gen.: It comes very near it, but I insist upon it, it is under the other, relieving them with money, buying of arms.

Mr. Hales.: Still the same exception lies upon it, within the times aforesaid, which certainly cannot be acknowledged.

At. Gen.: We acknowledge the same exception; and the same answer lies to it, that of the 26. of March 1650. it is, he shall suffer death, and upon this it is treason upon both together, we cannot divide them, but must express them so.

Mr. Hales.: Under favour, the one makes it felony, and the other a treason.

At. Gen.: But it is a deadly one.

L. Pres.: If a statute law makes a thing felony that was not felony, or recites a thing that is felony, and says it shall be punished with death, being a petty larceny, therein you say well; but if the statute recites that that is treason in itself actually, and says, that they that do these things shall suffer death, according to the nature of that offence that is formerly recited, and limits it so in the recital, if the recital be treason in the beginning, and then say, that that traitor shall suffer death without mercy.

M. Hales.: We have showed our reasons in the case, my lord, it is as much as we can say upon this sudden concerning this charge; there are some other things that are mentioned here by Mr. Love, as how far forth there be sufficient witnesses, admitting the charge were good; how far forth the witnesses are sufficient in themselves; and then whether here be two concurring witnesses to any one act, and whether any thing be more proved than misprision of treason, and concealment of treason; these are things Mr. Love takes upon him in fact to say: And now for those, when the case is made, we shall be ready to speak to these things; for truly it is sudden and new to me, for these matters came not to my knowledge till this morning after eight a clock; that is, concerning the last paper he offers to your Lordship, and that is, exception to witnesses, proof, and matter of the proof, whether the bare concealment (for thus it is stated to us, the concealment) of any thing that is treason whether that be treason or no in the party that conceals it; these are things that if we were prepared for, we should speak to. First, we conceive by the statute of primo & quinto Elizabethae, there is a necessity in this proceeding before your Lordship to have two lawful and sufficient witnesses. Next of all, we think, that if these witnesses be such as he has stated them to be; which whether they be or no, we know not, for we are utterly unacquainted with the evidence, yet we should think they are no sufficient witnesses; and then admitting they were sufficient witnesses, yet if so be one witness speaks to one fact, another to another, we conceive these are not sufficient witnesses within the statute, not sufficient to convict him. And then, if that which they have witnessed be nothing that amounts to treason, perhaps committed by others, that makes him not guilty within the acts. If we had time to understand, and digest, and consider, what were the matters that are alleged, we should be able to say somewhat to it. My Lord, that which we have said, we have said of a sudden, and so it appears because we had not that clear understanding of the charge as otherwise we might have had, and so have saved much of your time.

Att. Gen.: For that that has been said suddenly by Mr. Hales, I shall suddenly give it this answer, he has had more time than I, he has said from Mr. Love and not from himself: he says when the case is made; I think it will appear then that these exceptions have been made to the court, that the witnesses have not been competent neither in quality nor number, they have been spoken to; for the witnesses, the exception to the quality because they were of the same gang, they had a hand in the same treason, that was the exception, I think that will not be allowed to be a legal exception, they are persons that (as Mr. Love pretended) had a hand with him in this fact, and therefore they should not be competent witnesses; that I shall appeal to Mr. Hales's judgment, before conviction and upon a proceeding, whether they may not discover (and after conviction) if they be Approvers. For the next, for two witnesses; when the case is made, you will find one, two, three, four, five, six, and to most of them two, three and four, for so I may make bold to say, for so I read them to you the last day. And then for the last exception, that was for the concealment of treason, it is far from it, for I know not what a concealment Mr. Love may intend, I am sure Mr. Hales will not think that a concealment to run on one, two, or three years, and run on, and send letters; that when he acts along with them, and has the meetings at his house continually; moves them to receive money, and contribute; I think he was the highest actor among them, for the meetings were continually at his house, the advices were there resolved upon debates, there he gave his advice one way, and they another way; I think he will not think this is but misprision of treason; and we never did charge it, nor intend it so, but went a little higher.

Mr. Hales.: If that be declared to be insisted upon, that the non-revealing of treason, though it be a month or two, or a year or two, can be no treason, then we have done with that question; for then it will rest singly upon the fact before your Lordship, whether there be any thing more proved, than such a concealment, then it is true, we are discharged of that question. But then concerning the proof, if Master Attorney will please to admit, that the proofs are such as Master Love has stated in this paper —

Att. Gen.: That I shall not do before hand, but to debate upon the proof, I shall crave your Lordship's directions; I have gone over them already, and it has been trouble enough to me, if it be your Lordship's pleasure I must go over the proof again, I shall submit to you, but not to him.

L. Pres.: Mr. Hales, there is no witnesses that have been heard, but they have been of the said confederacy, that was one Exception Mr. Love made; it was debated at the producing, and over-ruled, and I believe your judgement will go well with us, that it was no Exception. Another was, that they have been promised rewards, that was likewise moved, and over-ruled, the Court was of opinion that they may do it; that if there be a Treason, and there be many correspondents in it, and one out of remorse, as some of these did say, that when they had been there they did not like their ways, but went from them, and came to them no more; if this man, or any other man afterwards shall come and reveal this, it is in the power of the State either to reward him with money, and to promise him life too, if he shall faithfully do it; and this we say, is a stronger case than the case of an Approver, which afterwards when they became Approvers, they must confess the Fact, and say they are guilty of the Fact plainly, and openly, and yet then they are good witnesses to discover this, as it was plotted in hell, for this was no other, though they had a visor upon them, which was no otherwise; I say, if any one will discover such; in fact perhaps it was offered to Master Love himself, if he would have done it: I believe there was some overtures made to him; but this is law too, by the law of this land, which is the law of God; for we have no law practised in this land, but is the law of God, and so did the Lawyers maintain it before the King in Henry the Eighth's time, the Popes, Legates, and chief Archbishops, and Bishops of England, and did then prove it to them, that there was no law practised in England but the law of God, which our Ministers are loath to touch, and busy themselves to study, but study the Ceremonial Laws of the Jews, which are Mortua Mortifera, which are not to be practised by any other Nation, till they be established by a law; and that which is the law of God in this land, that has so much preserved it, these they are wilfully ignorant of, and say, it is civil; but I say, his Christian law: and therefore never distinguish in a Christian Nation, that the laws are Moral and Ecclesiastical, with that feigned distinction; but all the laws of this Nation are Christian, and stand with Evangelical Truth, as well as with natural reason, and they are founded upon it; and therefore, Master Hales, we are here now to go on by these laws, which are the laws of God, and we must walk in them, as we would walk to Heaven. And for that you speak of now, Mr. Attorney has answered all the Exceptions every one, and I think for that matter of Fact, every one of them particularly. Mr. Love did take his Exceptions too, and they were over-ruled. Now to come, whether these are lawful witnesses over again, when it is in matter of Fact, and over-ruled by the judgement of the Court, Master Hales will not think that is regular. And then, whether there be two to one point or not, that is another of your Exceptions; that I take it (Master Hales) is not matter of law, but for the Judges to consider of it; that which should be matter of law, is this, whether that single proofs, some to one, and some to another, joined all together do issue out all this Treason; we want not precedents for that, for this is a heterogeneous Treason, every particular that these Statutes make a Treason, they are all of them complicated, he has gone through them all in his act, and we must pass through them all in our judgments: though every one is particular Treason, had it been singularly laid by itself; yet now being laid as one concatenated Treason, they all of them make but one. For the next, for that of misprision, he is not charged here with misprision at all, but direct Treasons; and if it be but misprision, we shall not for misprision judge him a Traitor upon this Charge; but then, what is in his judgment misprision? If this be nothing but a concealment, I think that the Court upon the Evidence will judge that it is more than a bare concealment, and whether Mr. Hales will think if I be a promoter, and concealer from one to another, and have so many continued meetings, whether two or three years together acting with them, and concealing them, for it is not a bare concealment, but a complicated Act; for if it were but a bare notion of it, we should have much ado to prove it, but (I think) the Court is satisfied, it is more than notion.

S. Tho. Wither.: I shall speak a word to that Mr. Hales moved last, whether you will be pleased to hear any more of councils, in these three particulars; for, under favor, these three particulars concerning the witnesses, concerning their quality and number, and the treason itself, these are matters of another kind of nature than all the rest he insisted upon, for the rest are mere matters of law, upon the formality, and insufficiency of the charge; these questions of the witnesses, are questions that are mixed, for they depend upon the matters in fact, and cannot be otherwise stated. Now Mr. Love, though he had no counsel appeared before, yet he had in his defense all these objections too; as of the incompetency of them, because they were participes criminis, and for that I think (under favor of your Lordships judgment) he had a full and a clear answer to it, in case of an approver, he is particeps criminis, and accuses men that are participes criminis, yet that man even ex merito justitia, he shall be pardoned, says our law, and therefore that objection that is made against the witnesses, that they are promised rewards and pardon, that is no objection, for in that case the approver shall have his pardon, ex merito justitiae. Then for the other point, that is, whether by two witnesses in such a plot or no, to prove a treasonable act, that is, consisting merely upon the matter of fact, that I shall not take upon me to repeat, you have heard it; but this I said then, and this I humbly offer now, that if there be two witnesses, though they concur not in the same individual act, yet if they concur in two acts, concurring to the same treason, they prove the same treason; if one prove the sending of letters, and another the sending of money, I take it these are two witnesses, though they speak of two distinct acts; but in our proof we have gone on to two witnesses, three or four in most points. But then for the misprision of treason, we did apprehend that, that which Mr. Love himself has confessed, is treason itself; but Mr. Love is pleased to make his own collection upon his own confession, for I confess my presence and silence after these meetings and consultations; but this I take to be misprision of treason. To this I replied, we took it to be treason itself, for our books say, a man must not sleep, nor look, back, but go presently to a magistrate to reveal it; but when a man will not only sleep upon it, but keep it back, and act in it, this is more than misprision. But our charge is for a treason itself, and truly treason comprehends a misprision of treason in it, but this point I think neither will come in question now; for we say and charge, that it is a treason itself, not misprision; and that collection Mr. Love makes, it is his own, but the judgment is yours, whether it be a treason or not.

Mr. Hales.: If it be your Lordships pleasure we shall speak, we are ready to say what we can in the shortness of time; but if it be not your Lordships pleasure, we shall not say it.

At. Gen.: If your Lordship please to declare what he should speak to.

Mr. Hales.: These points, I shall only mention them, I cannot argue them now. This is that I conceive; first of all, according as the case is stated, that is, whether a person menaced, that he shall lose his life if he discover not a particular person, and that he shall have his life if he do discover him; whether such a person be a competent witness or no?

Att. Gen.: Hear a word, I appeal then to you, whether any such person were produced before you?

Mr. Hales.: First we only go upon what supposition Mr. Love makes.

Mr. Love.: I humbly crave leave to that effect, to prove that particular.

At. Gen.: No, not now, Sir.

Mr. Hales: We conceive such a person is not a competent witness: then that is out of the case, it should seem, Sir. Truly, then the case that is put concerning an Approver, comes not to the question, under favor; for though it is true, an approver at Common law, might be an accuser; yet we are not now upon a proceeding at the Common law, when we talk of witnesses now; but we are upon a proceeding how far forth warranted for the witnesses, by the statute of the first and fifth of Edward the Sixth: so that what is said concerning an Approver, comes not to this question; he that may be a competent witness at Common law, he is not a competent witness upon those statutes, for the words of the statute are expressly, that he shall be a lawful and a sufficient witness: and if so be that such a case were now, it is not to sample this case that is before you, with the case of an Approver, which is a bare accusation at Common law, and where the jury likewise are to have other evidence; for either the defendant may wage his battle, or put himself upon his country; and then it is at the pleasure of the jury whether they will believe the Approver or no: but by the Act of the first and fifth of Edward the Sixth, it is expressly said, There shall be two sufficient witnesses in case of Treason; so that that has made an alteration of what was in the Common law before; one witness was enough before, now two witnesses are requisite: and we conceive, the words lawful and sufficient conclude such persons: if there be not any such, we are not to say we know, or know not: but if so be any person is drawn to make such a testimony for the preservation of his life, and shall make such an expression, we think, that though it is true, he is a person that is attainted, yet he is a person that is thus drawn, and we think he is not such a witness as is intended, especially in such a case as this is, where the trial of the fact is before your Lordship, which is both jury and judge, to try the fact, and determine the law; and therefore perhaps here will be a more rigorous expectation who should be, and who should not be a sufficient witness, than in case it were a bare trial by jury; there may be those exceptions alleged against a witness when the trial is as now it is, that may not be when a trial is by a jury; and therefore if so be that a party be thus drawn to testify for the preservation of his life, we think that this is not such a lawful and sufficient witness as is required in such a case. Next of all, it is said in the paper, that they have detected themselves, being parties of as deep a guilt as the person that is accused: I will not dispute that at this time; for it is not the case, whether a person that is a plotter and confederate with one that commits Treason, may be a witness; but when a person is detected by lawful Authority, before the charge exhibited, whether such a person who is so detected, whose life is in the hands of the State, be one of these competent witnesses, we must leave it to your judgment in that, but we think he is not a competent witness; for there is not a bare accusation of a person, but (as the case is stated to us) by a person that should be examined and confess himself guilty of those things whereof Mr. Love is impeached, and that before the charge is exhibited. My Lord, the next matter is concerning the plurality of witnesses, the number of them, we think, under favor, with submission, that in this case, suppose the charge had been singly upon one act of Treason, we conceive, that in that case there is a necessity of two persons to prove that charge: If the charge be upon several acts of Treason, be the charge so; yet if you will bring them within any one of the acts, you must have two witnesses to bring them within that act: For suppose a man were indicted of Treason heretofore for levying of war, and another Treason for adhering to the enemies, and another Treason for counterfeiting of the coin, or those kind of things; these are several Treasons, though they are all put into one Information, and perhaps may be put, in case of necessity, into one Indictment, as here are several acts put into one charge. But now a proof of Treason within one of the Acts by one witness, and a proof of a Treason within another of the Acts by another witness, will not be esteemed and accounted a proof by two witnesses; for it must be a proof, not that he is within the charge, but within that part of the charge upon which he is to be arraigned; and here is not a proving each distinct part of the charge by two witnesses, as the Statute requires. And then to come nearer, suppose the charge were but upon one act, as that he held correspondence with the Scots, and did invite them, etc. I conceive that in this case, under favor, that that particular act with which you will charge him to be a Traitor within any one law, must be proved by two witnesses. The Star-chamber course I know what it was, that in case there were one general charge, and then it did descend to several particulars, one witness would serve for one, and another to another, and a third to a third, and these should make up two witnesses to convict the party; but we are not now in a proceeding of Star-chamber, that is laid by, it was not altogether so regular in all things: and then, we are not in a thing barely criminal, but in a case of life; and not in the case of life ordinarily, but in a case wherein a party is accused of Treason, wherein the Statute does provide that there shall be two witnesses (as I conceive) to swear to the same thing, by which you would bring him within it; otherwise they stand as single witnesses every one apart. I have heard of a case (I have not had so much time as to look into it) concerning Mr. Rolph, indicted at Winchester; I will not so much as repeat over the case upon my credit to the Court; but I take it, it was thus: He was indicted for somewhat about the person of the King; one witness deposed about the presenting of a pistol, or that he said he would; another about poisoning, or that he said he would: these two things did conclude in one and the same act; and though they concluded in one and the same as evidences, complicated evidences to make good one charge, and either of them had been sufficient, if proved by two; yet as I am informed (this is the inconvenience, upon the sudden we cannot offer it upon the confidence of our own knowledge, which a little time would make us wholly decline the mentioning of it, or affirm it upon our credit; but this I am informed) was not held a case proved by two witnesses; and if that be so, then I conceive these steps; the first will be agreed, that the proof of several charges by several witnesses, against several acts, will not make a proof by two witnesses; it must be a proof by two witnesses against one act: therefore the proof of anything against the Act of the 17 of July 1649, and another proof of a thing done against the Act of the 30th of January 1648; and another for a thing done against the Act of the 2nd of August 1650; here the offenses are several, the Treasons several, and the witnesses to either stand singly by themselves: How the case of the fact is upon the proof, I cannot tell; that is, whether this falls out to be the case. But again, if the charge were single, as now upon the Act of the 30 of January 1648, for proclaiming of the King, or promoting the Prince of Wales his interest to be King of England; we think, with submission, (which we shall leave to your judgment) that in that case there is a necessity of two witnesses to speak to one thing; and not one to supply one part, and another to supply another: That shall be as much as I shall say concerning that; and I could wish that we had had so much time as to look into it, to inquire what the truth of that case was which was tried at Winchester, as I take it. Now for the other matter, that is, Whether Misprision of Treason, concealment of Treason be Treason? if that be not insisted upon.

Att. Gen.: No, no.

Mr. Hales.: Under favour, the law is, that concealment of treason is not treason; but if that be not insisted upon, then the question of the fact is, whether there be any more than a proof of a concealment, or of a misprision of treason; which if so be it be not, I can say no more.

Att. Gen.: Truly (my Lord) I did intend to speak to that of Mr. Love's case, and as of his making, but not now of his making, but as he has made it formerly; surely, it is a great deal of patience and favour you have afforded him, that for matter of fact and law you have heard it all over again. As for that first, of the competency of the testimony, I shall remember his own division; First, of the charge: Secondly, of the witnesses and the testimony: The third, concerning himself: And the fourth, his humble proposals to the court. One part of his defense was concerning the witnesses and testimony, that he made a long defense to; and if it be not good evidence, that parties that are of the same robberies may not accuse their fellow thieves, I think some must be unhanged that have been hanged: but that I shall not speak to, for I think not that Mr. Hales his judgment leads him to it; but if they were threatened, and should be made afraid of their lives, that were somewhat; but that is not the case here. The next is for two witnesses: I might say, that by the Common Law of England, one witness was enough before the Law of quinto Edwardi sexti was made; for else it was not needful to be made; and Mr. Hales knows again, that as to trial, those laws are repealed; but not to trouble you with these things, or to say wherein they must concur, I did crave the favour of you to read the witnesses as they deposed, and I did tell you when it was by hearsay, and when upon knowledge, and when by two, three, and four, to several acts of Mr. Love's own actings, two, three, four witnesses, I think they are number enough to accuse, and detect a person of as high quality. And for the last, for misprision of treason, Mr. Love has said that which never came into my thoughts, that such actings done by Mr. Love could be judged misprision, he that acted with them, consulted, and debated, and plotted, gave his judgment one way, moved to raise money, received intelligence, all brought to his house, and transacted there; I would appeal to Mr. Hales his judgment, whether this could be misprision of treason, when a party acts in it, has the meetings at his own house, and has there debates of commissions, and instructions, and letters, I think this goes as far beyond misprision, as treason is beyond misprision; but seeing these are new cases before you, you have spent enough of your time, I shall not spend more to argue the cases that are not.

Mr. Love.: I humbly crave leave that seeing my counsel some of them are rejected by the court, as not fit to plead before you, and seeing another of them, Mr. Maynard, the necessity of his affairs is such, he could not be here this day to plead here, and seeing this worthy gentleman came here unprepared, whose face I never saw till this morning, therefore I humbly pray there may be more time and counsel assigned me with your favour and leave, that they may fully debate the argument before you, those matters of the law which are under his hand, and the hands of the two worthy gentlemen rejected by you to plead here, that others may be added to Mr. Hales to plead the matters of law before you, and that I may have a copy of the charge.

At. Gen.: I hope we have had delays enough, it is with the court, now we have done.

Mr. Love.: And Sir, there are witnesses here present that will prove that which Mr. Attorney General thought none could prove, to wit not only general threats, if they would not confess in the general, but promises of favour, and threatening of death if they would not testify against me in particular, and I have manifold exceptions touching the incompetency not only of number, but quality; one witness said, he could not in conscience, and did not swear till he was threatened, nay, fined by you, and drawn out of the court; another witness had money laid to him by Cobbet, which was given his wife, which did seem to conceal the bribery the more; but he confessed himself that the money was laid down in his house, and given him to make use of, and to be the price of my blood (Sir) to testify against me: I have witnesses to produce, Major Adams said, he should be hanged, if he did not testify against me; for he had given information, and been in hire for many months together; Major Cobbet, and three other messengers have come to him, and offered him preferment for four months together, if he would reveal what he calls a design against the Commonwealth, and he has not revealed this till he had these promises of preferment; and did not declare against me till he was threatened by death if he did not do it; therefore I beseech you hear what witnesses I can bring in to invalidate the testimonies of these men.

At. Gen.: My Lord, it seems I must be for all; now Mr. Love begins with the court, that you threatened them, and punished them; I appeal to all here, whether a witness brought into a court in matter of property, and refuse to take his oath, whether that court be not bound in justice to punish him, and yet if he shall see his error, and submit himself to do that which to justice belongs, then (I think) it is justice and mercy in you to remit him of both; and that is the case of this gentleman; in conscience, he could not swear against him, a conscience well wrought upon; he could not in conscience swear against him: for him it was done in the court, and by the court, and (I think) undeniably justified.

Mr. Love.: He is not under an oath to this day, he has declared it himself.

At. Gen.: This is to satisfy other men, but it is not so regular, and orderly to be done; but my Lord, and the Court are pleased to give you a fair hearing, and proceedings, that no exceptions may be taken to it: there was another that was as good as his word, that he could not find in his conscience to swear against Mr. Love, and that was a Minister, that conscience deserved to be rectified more than five hundred pound comes to, and perpetual imprisonment: that man that cannot find in his conscience to judge him that was a godly person (as he thought) and against him he must not give witness, not for treason, not to save a Commonwealth; and he has had your sentence, and most justly; I think all that was, was too little, my Lord. Then for the rest, this is a discourse to satisfy people, the spectators here; for surely these are extravagancies, and total irregularities; he has had his time to except, and heard to except, and said all that he has said now; and so there is nothing more to be done, but now for us to rest in your judgments what you will do further.

M. Love.: I beseech you, I acquainted your Lordship and the Court, that some of the Witnesses were not well, others I could not get them here present, but did make offer to bring Witnesses to prove against Major Adams, that he has confessed himself he was threatened with death if he did not inform against me, and he said these words, he could not tell whether he should in conscience think rather better to be hanged than to come in against me; and he could swear only generals, and could not swear that ever I did write or receive Letters: and M. Jaquel himself, since he was sent away from the Court, has said he was not under an oath.

At. Gen.: What course shall we hold? If you will not be regular, let the Court be regular: had you not time for to do it then? Did he not demand Indemnity for them? And rather than he would produce others to hurt themselves, he would rather die himself first.

M. Love.: But these are not under a crime, I beseech you, the Court would be tender in matters of blood.

At. Gen.: Be tender of justice.

L. Pres.: I would you had been so too.

M. Love.: This man declares himself he is not under an oath to this day, he did but put his hand upon his [reconstructed: buttons].

L. Pres.: Those were your very words, and very uncivil and indiscreet; you have not spoke at any time yet, but you have hurt yourself more than any body else has, and yet your language is so liberal, that no man shall escape the lash of your tongue.

Mr. Love.: I fear no man, my Lord.

At. Gen.: That is a bold word.

L. Pres.: You have as ill comments as any man that wears a cap; your guiltiness appears in this you say; we have heard all this that you require before; those very words that you say of this man now particularly, go to them first, that he was saying, he was not under an oath. It was said so again, and again, and again at that time we brought him, and before he was examined, holding up his hand, we asked him it, and he said he did, and put it to him again, and again, Are you under an oath? Till at the last he did conclude and testify he was under an oath; I testify this before all the company here, this is noised abroad, again by many people, the care we had of that very man you speak of, you asked him three or four times then, and at the last upon the conclusion, he confessed himself he was under an oath, he did not do as you do, you will say things are truth, but you will not speak those truths before God in a testimonial way, though some of your witnesses that proved, said it was true in the presence of God, what they gave under their hands; these men that do thus, are no better than Jesuits in reality, though not in name. You made a confession of misprision of treason you said, but you have confessed treason. I will tell you who did the like in the very words almost that you did, and that was Father Garnet, when he came to see the evidence produced so full against him by those that were participes criminis, as you are, himself confessed when he came to the last, Had I thought (says he) that the State had had such clear proof against me, I would have ingenuously confessed it, and not trifled with them as I have done: So you said, you did not think it would have been proved so far as misprision; but when it was proved sufficiently in your apprehension, and convicted, and your counsel had informed you it could not be less than misprision, then you would ingenuously confess, so did Garnet. The other witness that was threatened, it was testified by a worthy Captain; I speak it again, was not it debated as much as the wit of man could? Did you not object that then that you do now? And did not the Court then satisfy you, or at least satisfy themselves that it was not so? For I tell you in that very thing wherein you say he was threatened, it was told you, that the Captain that was here then, deposed what he had done, and how he had done it, and at what time it was delivered; for you were discovered long before that, and your examinations taken long before that; upon this now when your treason was discovered and declared by several witnesses, and that such a one was in confederacy, and I think the State might safely promise him life, and reward too; for there is more in the plot yet, than is yet found out, and that some are like to hear of within this fortnight, that were here, which is a dangerous thing; but this you did declare, and the Court was satisfied, that all that was promised as a reward, was for discovering of a plot against the State: and that was lawful by the laws of God and man. And now you bring witnesses; you were at first demanded whether you would bring them or no; and you asked indemnity for them, and the next time you denied you would bring none; and now you are asked what you have to offer to the Court, and after all this time, what come you to do now? To prove that that was acted here in the Court; you say, we threatened them; true, that we did threaten some, and I think we went thus far, that if he would not, we would set five hundred pounds fine upon his head; but he would none of that, but came in again, and delivered his knowledge. But you had another of your own robe too that came in, and he would not testify, and why? His conscience was tender; his knowledge was perfect enough to speak against you; for he was confederate with you, and has confessed enough of it; but his conscience was tender. No man can tell here whose conscience is troubled, and tender; conscience is a thing between God and man only; and they that lay nothing upon their consciences to prove their integrity, they had as good say nothing before a Judge; for though we have a law of conscience in England, yet that law is judged by rules; and therefore he, whoever he be that pretends conscience, there are so many consciences, as there are men, and no men have power to judge of it but God; but Sir, for that cause that he would not for his tender conscience, we did set a fine of [reconstructed: £500] upon him, and sentenced him to the Fleet till he paid it: we call not this terrifying, neither does the law; nor any reward, favor, nor affection, for the discovery of a traitor, is no illegal act, this we told you before; but you must have it again, and again, and again; so that you may delay, no time shall be omitted by you.

Mr. Love.: I have but a few words more; your Lordship was pleased to say, that you could justify promising rewards to those that would discover, and threatening punishments to those that would not; but you said, if I could prove promising of rewards or threatening to them that would not testify against me, they should be heard; now I produce not witnesses in general, that they were promised favor or threatened if they would or would not; but I offer to produce witnesses that can witness against some of the particular witnesses, that said they should be hanged, if they did not witness against me; and this, as your Lordship promised, I humbly request.

At. Gen.: Truly he will not want suggestions, he has had his time to prove it, and one favour I shall beg of the Court, that this your patience to Mr. Love, your just favour toward him, may be no precedent hereafter; but for this, when we closed the Evidence Saturday was sevennight for the Commonwealth, he had till Wednesday following to make his Defence; for his witnesses he offered them, you offered to receive them, he said he would have none, now he comes to offer; we produce you no new witnesses, nor offered nothing since Saturday was sevennight, if we come to witnesses again, we shall come to an aspersing one another, we shall make it a pretty endless work; we have done our parts, and followed the rules of Justice, and Mr. Love has had his full liberty to justify, to say what he could, and prove what he could for himself; if he neglect his own time, to his own peril be it; the Court I hope will not be guilty of it to alter the ways of Justice.

Mr. Love.: I could not compel witnesses, there was no Subpoenas, but they must come when they offer themselves.

L. Pres.: You were asked, and you would produce none.

Mr. Love.: They were not in a capacity to come, my Lord.

At. Gen.: There is nothing resting more to be done, but now all being done (if you please my lord all being done) for the issue of the Fact, all his exceptions to the impeachments, which are matters of Law; we are now humbly craving your judgement upon this impeachment between the Keepers of the Liberty of England, and Master Love the Prisoner at the Bar. I now humbly demand your judgement.

Mr. Love.: I humbly pray, that since I never saw the face of this worthy Gentleman, till this morning, and so could have no particular advice from him, that there might be longer time allowed to this Gentleman, and an addition of three Gentlemen more, and a copy of the Charge.

Att. Gen.: You have had more than ordinary Prisoners have had before, I will assure you, Mr. Love.

L. Pres.: M. Hales you have heard a little opened of our passages and proceedings which you did not before, but every man else has lifted up his voice; you have gone over a great deal of the fact: now for matter of Law, for that of misprision, that will rest (I think) in the judgement of the Court; there is no misprision laid, but Treason, and I think the Court will find Treason upon the proofs that are before them, they will not need to have any Argument of misprision, if the Court think there is sufficient Treason laid, then that Argument, we need not desire no more time for that, and if it be misprision, that the Court shall judge it so, then upon the matter there is no Charge against him for us to proceed upon, so that by that Charge, I cannot see what you can ground your Argument upon.

Mr. Hales.: The Charge is not only for Treason, but for Treason and other High crimes, and misdemeanors.

At Gen.: But not misprision.

Mr. Hales.: Though the word be not in, we think it will reach it.

L. Pres.: It will not indeed.

At. Gen.: We insist upon it for the Commonwealth, for the Charge is as it is laid.

L. Pres.: For the two next, so I told M. Love before, and he spent two hours at the least in going over the evidence of the State, not any thing of his own, for he gave no Witnesses; but he did go over the whole evidence of the State from point to point, and made, I think, himself (as he said) the Exceptions that were made against them; these he went over, though we might have shut him up at the first: for him to sum up that which was the duty of the Court, when he had no evidence, to sum up the Evidence of the State, which we might not have let him: but this he did; and it is our part to examine the evidence, and the nature of them, and what the nature of the thing is, and how many Witnesses are to every point: whether there be two Witnesses to a point or no, cannot fall under dispute of law, it is matter of fact.

Mr. Hales.: It is true, we are here only to do that duty that your Lordship enjoins us to (my Lord.) It is true, for us to dispute whether this evidence proves such a thing or no, perhaps it may not belong to us to do that: But thus far, if your Lordship think fit, this may perhaps be allowable (with submission to the Court) that is, whether, if the proofs be admitted, this man positively proves thus, the other man proves positively thus; whether that these two proofs do make a proof of one fact, perhaps (if your Lordship shall so think fit) there may be somewhat of Law in that; that is, whether it make a double Testimony within the Statute of Primo and Quinto: For (with submission to your Lordship) the Statute of Primo and Quinto is not repealed as to point of Testimony; it is repealed as to the place from where the trial is to come; but not in point of witnesses, therein it may come in questionless (if your Lordship shall think fit:) But truly, I have not seen one word of the evidence from the beginning to the end; and if so be that any matter should rise, that the Court should think fit, as well as proper for me to offer in the defence of this Gentleman, I must confess I cannot, unless I had seen the things; for I have not seen one word.

L. Pres.: For seeing the Evidence further than memory, you nor no man else ought to know, though we have given leave to write; and therefore though we have given leave to take notice of them, yet that is more than ever any Court did, or we need to have done, but only to trust to their own memories: but in that you speak of now, for you to have day to argue, when you are not able to say, nor we neither, that there is any such thing. Did you ever hear such a thing, to pray day to argue that you do not know positively it is so?

Att. Gen.: We have spent a great deal of time, and all that can be said will be but to run a round: What is to be done, is your own consultation among your selves.

L. Pres.: Withdraw your prisoner.

Mr. Love.: I beseech you, allow me time for Counsel.

The Court adjourns.