258 



Be cords of the Rising in the West, A.D. 1655. 



particularly Mr. Norbury was council for col. Lilburn, and the now judges 

 Nicholas and serjeant Maynard were council for capt. Rolph, when he was ac- 

 cused for treason against the king.* 



13. If the judges require it, give the exceptions in writing, but expunge what 

 makes against us, if seen, and still obtain council and urge Humphrey Stafford's 

 cause in the 1st of Hen. VII. for precedent. 



14. If after arguing the case by council, or before, the judge overrule the 

 plea, then insist upon the same plea to the jury, and put it upon their con- 

 sciences, that God hath made them our judges, to judge between us and the 

 judges ; and that if we be found guilty, by the jury our blood will lie upon the 

 jury, and the judges be acquitted; but if the jurors find us not guilty, the jurors 

 are innocent, if we die. 



15. If the jury seems fearful to clear us absolutely tell them the judges have 

 overruled them 1 ; that it is the safest for the jury to find a special verdict, which 

 leaves the point in law to all the judges, whether or no it is treason, whereby 

 also the jurors will leave all the danger that can follow, and all the bloodshed 

 on the judges. 



16. Tell the jury that they are now to judge whether or no we have committed 

 treason ; and if they judge that to be treason, which is no treason, our blood will 

 be upon them ; and there can be no treason, nor ever was in England, but such 

 as is made so by the common law, or act of parliament. 



17. Let every prisoner allow of one juror whom another person hath challenged, 

 and challenge him, whom another prisoner hath allowed, whereby every one of 

 us shall have almost a distinct jury for himself, which juries possibly will differ 

 in their opinions, at least it will puzzle the prosecutors to get so many several 

 juries ; therefore let every prisoner have pen and ink ready to note the names of 

 the several jurors for several persons, who for one, and who for another. f 



18. They cannot indict and try us all in one day, as it is in Kelloway, fol. 159, 

 6, which the lord chief justice Rolle declared to be law in the case of the 

 Portugal ambassador's brother. J 



19. If they indict us for felony, we may say it is no felony, except it be done 

 with a felonious intent ; and the country knows, we did not intend to steale, but 

 only to borrow the horses which is usual now-a-days, and as the soldiers did now 

 at London and elsewhere, who came against them ; and the sheriff of the county 

 was present, when divers horses were seized, and did himself seize some, which 

 were none of ours. 



20. Also ask the prosecutor upon the trial, whether he can take his oath, that 

 we took the horses with a felonious intent ; and if he will not swear it, then ask 

 the jury, whether they can take it upon their oaths we stole the horses, where 

 the prosecutor himself will not swear it.§ 



* Of Col. Lilburn' s trial there is but a note of what happened at the first sitting. Though counsel 

 were assigned, Mr. Norbury and Serjeant Maynard, neither of them appeared in Court. — 5 Howell's 

 St. Trials, 407. 



Of Rolph's trial for a plot against King Charles the First's life at Carisbrook, there is only, as far 

 T am aware, the notice in Clarendon, who expressly says that though he had " two councill" assigned 

 to him, it was contrary to the law and custom of those cases.— XI. Clarendon, 198. 



+ Ingenious, very. X The case of Don Pantaleone Sa. — 5 Howell's St. Trials, 461. 



\ No doubt there must be a felonious intent to constitute a felony ; and of this the jury are the 

 judges. If Colonel Penruddock had been indicted for a felony or stealing of the horses taken from 

 Salisbury, he would have been most probably acquitted. 



