They then told him, that the general report | attend, may be taken: Your lordship will very was, that the king and council had referred it much oblige your lordship's humble servant, to his lordship; but his lordship would take no FRANCIS JENKES." notice of that likewise, but said, the king would advise with the judges when they came to town. His lordship withdrew from them; and they left word with his secretary, That Mr. Jenkes looked upon himself to be his lordship's prisoner.

upon what authority others had done it: and" law, and could not be denied; and that he in short, refused to grant either that or the "had only taken time till he had acquainted other writs. "his lordship with it."

After all these denials of right, Mr. Jenkes , resolved to sit still, with the satisfaction, that his ill success was not imputable to the injustice of his cause; but to the pleasure or fear of those that had the power of making it other wise and with patience to expect it till the term should set open the prison-doors; which will not brook the denial of a Habeas Corpus, thongh a long vacation must.

No further address was therefore made to either of their lordships; but themselves, after they had taken the pleasure of denying him, were pleased to condescend to intercede for him for, as we heard by very credible information, the Lord Chief Justice went to the Lord Chancellor and told him, "That the "writs demanded of him, were according to

The Lord Chancellor directed him to the Lord Treasurer for further advice; who sent him to the king. As soon as his majesty un derstood, that what was demanded was the subject's Right, he immediately commanded that the laws should have their due course, which their lordships had stopped: and accordingly he was bailed.*

He was afterwards, in 1683, tried with Thomas Pilkington, Henry Cornish, esqrs. and others, for a riot at Guildhall, and fined 500 marks.

* It has been said, and seems probable, that this case contributed to the passing of the Habeas Corpus Act stat. 31 Car. 2, c. 2.

238. The Trial of JAMES MITCHEL,* in Scotland, for attempting the Murder of Dr. James Sharp, Archbishop of St. Andrews, and wounding the Bishop of Orkney: 29 CHARLES II. A. D.

1677.

JAMES Mitchel being indicted for an attempt to murder the archbishop of St. Andrews, in July 1668, was committed 1674 prisoner to the Tolbooth at Edinburgh; whereupon the

*The attempt upon archbishop Sharp is thus related by Burnet:

Lord Commissioner and the Lords of the privycouncil appointed a committee to examine him, viz. Lord Linlithgow, Preses (President): Hatton, treasurer depute; Dundonald, Ress, but nothing followed on them. On this occasion it was thought proper, that he should be "A strange accident happened to Sharp in called to court, and have some marks of the July 1668, as he was going into his coach in full king's favour put on him. He promised te daylight, the bishop of Orkney being with him. make many good motions: and he talked for A man came up to the coach, and discharged a while like a changed man and went out of a pistol at him with a brace of bullets in it, as his way, as he was going to court, to visit me the bishop of Orkney was going up into the at my parsonage house, and seemed resolved coach. He intended to shoot through his cloak to turn to other methods."-Afterwards, reat Sharp, as he was mounting up: but the bul-lating the history of the year 1678, he says: let stuck in the bishop of Orkney's arm, and shattered it so, that, though he lived some years after that, they were forced to open it every year for an exfoliation. Sharp was so universally hated, that, though this was done in fuil daylight, and on the high street, yet nobody" offered to seize the assassin. So he walked off, and went home, and shifted himself of an odd wig, which he was not accustomed to wear, and came out, and walked on the streets immediately. But Sharp had viewed him so narrowly, that he discovered him afterwards, as shall be mentioned in its proper place. I lived then much out of the world: yet I thought it decent to go and congratulate on this occasion. He was much touched with it, and put on a shew of devotion upon it. He said with a very serious look, My times are wholly in thy hand, O thou God of my life. This was the single Expression savouring of piety, that ever fell from him in all the conversation that passed between him and me. Proclamations were issued out with great rewards for discovering the actor:

Things being in great disorder, by reason of the numbers and desperate tempers of those who were intercommoned, [Letters of intercommuning, similar to the Aquæ et ignis interdictio' of the Roman law, concluded thus We command and charge all our licges and subjects, that none presume to reset, (receive) supply, or intercommune with any of the foresaid our rebels, nor furnish them with meat, drink, house, harbour, or victuals; nor any other thing useful or comfortable to them; not have any intelligence with them by word, writing, message, or otherwise, under the pain of being repute and esteemed art and part with them in the crime foresaid, and to be pursued therefore with all rigour." 4 Laing's Hist. of Scotland, 74 Note.] Sharp pretended he was in great danger of his life; and that the rather, because the person that had made the attempt on him was let live still. Upoa this I must tell what had past three years be fore this. Sharp had observed a man that kept shop at his door, who looked very par

and Murray, justiciaries; Craigy, Collington, "My indictment I take up in these two par &c. When he was brought before the com- ticulars: first, as they term it, rebellion and mittee, he was persuaded to make acknowledg-treason, anent which I answered to my Lord ment of the fact; a relation whereof is thus Chancellor in committee, that it was no regiven by himself, bellion, but a duty which every one was bound

rowly at him always as he passed by: and he fancied, he was the man that had shot at him six years before. So he ordered him to be taken up, and examined. It was found, he had two pistols by him, that were deeply charged, which increased the suspicion. Yet the man denied all. But Sharp got a friend of his to go to him, and deal with him to make a full confession: and he made solemn promises, that he would procure his pardon. His friend answered, he hoped he did not intend to make use of him to trepan a man to his ruin. Upon that, with lifted up hands, Sharp promised by the living God, that no hurt should come to him, if he made a full discovery. The person came again to him, and said, if a promise was made in the king's name the prisoner would tell all. So it was brought before the council. Lord Rothes, Halton, and Primerose were ordered to examine him. Primerose said it would be a strange force of eloquence, to persuade a man to confess, and be hanged. So Duke Lauderdale, being the king's commissioner, gave them a power to promise him his life. And as soon as these Lords told him this, he immediately kneeled down, and confessed the fact, and told the whole manner of it. There was but one person privy to it, who was then dead. Sharp was troubled to see so small a discovery made: yet they could not draw more from him. So then it was considered, what should be done to him. Some moved the cutting off his right hand. Others said he might learn to practise with his left hand, and to take his revenge; therefore they thought both hands should , be cut off."-This cruelty was spared by means of a coarse jest of Lord Rothes, "and" proceeds Burnet," when the truth of the promise now given was afterwards called in question, this jest was cailed to mind, and made the whole matter to be remembered. But Primerose moved, that since life was promised, which the cutting off a limb might endanger, it was better to keep him prisoner during life in a castle they had in the Bass, a rock in the mouth of the Frith: and thither he was sent. But it was thought necessary to make him repeat his confession in a court of judicature: Laing says the justiciary court was instructed secretly to pronounce a sentence for the amputation of his hand] so he was brought into the justiciary court, upon an indictment for the crime, to which it was expected he should plead guilty. But the judge, who hated Sharp, as he went up to the bench, passing by the prisoner said to him, Confess nothing, unless you are sure of your limbs as well as of your life. Upon this hint he, apprehending the danger, refused to confess: which being reported to the council, an act was past mentioning the promise and his confession, and

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adding, that since he had retracted his confession, they likewise recalled the promise of pardon: the meaning of which was this, that, if any other evidence was brought against him, the promise should not cover him: but it still was understood, that this promise secured him from any ill effect by his own confession. The thing was almost forgot after four years, the man being in all respects very inconsiderable. But now Sharp would have his life. So duke Lauderdale gave way to it: and he was brought to Edinburgh in order to his trial. Nisbit, who had been the king's advocate, and was one of the worthiest and learnedest men of the age, was turned out. And Mackenzie was put in his place, who was a man of much life and wit, but he was neither equal nor correct in it: he had published many books, some of law, but all full of faults; for he was a slight and superficial man. Lockhart was assigned counsel for the prisoner. And now that the matter came again into peoples memory, all were amazed at the proceeding. Primerose was turned out of the place of lord register, and was made justice general. He fancied orders had been given to raze the act that the council had made: so he turned the books, and he found the act still on record. He took a copy of it, and sent it to Mitchell's counsel: that was the prisoner's name. And, a day or two before the trial, he went to duke Lauderdale, who, together with Sharp, lord Rothes, and lord Halton, were summoned as the prisoner's witnesses. He told him, many thought there had been a promise of life given. Duke Lauderdale denied it stiffly. Primerose said, he heard there was an act of council made abont it, and he wished that might be looked into. Duke Lauderdale said, he was sure it was not possible, and he would not give himself the trouble to turn over the books of council. Primerose, who told me this, said his conscience led him to give duke Lauderdale this warning of the matter, but that he was not sorry to see him thus reject it. The trial was very solemn. The confession was brought against him, as full evidence to which Lock, hart did plead, to the admiration of all, to shew that no extrajudicial confession could be allowed in a court. The hardships of a prison, the hopes of life, with other practices, might draw confessions from men, when they were perhaps drunk, or out of their senses. He brought upon this a measure of learning, that amazed the audience, out of the lawyers of all civilized nations. And, when it was opposed to this, that the council was a court of judicature, he shewed, that it was not the proper court for crimes of this nature, and that it had not proceeded in this as a court of judicature. And he brought out likewise a great deal of

to have performed in joining with that party, thing in them, but a short compend of the and 1st. in the year 1656, Mr. Robert Lighton moral law, only binding us to our duty towards being then Primar in the college of Edinburgh, God and towards men in their several stations; before our laureation, tendered to us the Na- and I finding, that our banished king's interest tional Covenant, and Solemn League and Co- lay wholly included therein, and both coronavenant; upon mature deliberation, I found no- tion and allegiance oaths, &c. and they being learning upon those heads. But this was over- was remembered. Yet duke Lauderdale still ruled by the court, and the confession was stood to it, that the promise could only be for found to be judicial. The next thing pleaded interceding with the king for his pardon, for him was, that it was drawn from him upon since the council had not the power of pardonhope and promise of life: and to this Sharp ing in them. Lord Kincardin acted in this the was examined. The person he had sent to part of a christian to an enemy. Duke LauMitchell gave a full evidence of the promises derdale had writ to him, he being then serving he had made him: but Sharp denied them all. for him at Court, that he referred the account He also denied he heard any promise of life of Mitchell's business to his brother's letters; made him by the council: so did the lords in which the matter was truly related, that upon Lauderdale, Rothes, and Halton, to the aston- promise of life he had confessed the fact; and ishment of all that were present. Lockhart he concluded, desiring him to ask the king, upon that produced a copy of the act of coun- that he would be pleased to make good the cil, that made express mention of the promise promise. These Letters I saw in lord Kingiven, and of his having confessed upon that. cardin's hand. Before the trial he sent a biAnd the prisoner prayed that the books of shop to duke Lauderdale, desiring him to concouncil, which lay in a room over that insider better of that matter, before he would which the court sat, might be sent for. Lock- upon oath deny it: for he was sure he had it hart pleaded, that since the court had judged under his, and his brother's hand, though be that the council was a judicature, all people could not yet fall upon their letters. But dute had a right to search into their registers; and Lauderdale despised this. Yet, before the exe the prisoner, who was like to suffer by a con- cution he went to his house in the country, and fession made there, ought to have the benefit there found the letters, and brought them in of those books. Duke Lauderdale, who was in with him, and shewed them to that bishop. the court only as a witness, and so had no All this made some impression on duke Labright to speak, stood up, and said, he and those derdale: and he was willing to grant a reprieve, other noble persons were not brought thither and to refer the matter to the king. So a peto be accused of perjury; and added, that the tition was offered to the council. books of council were the king's secrets, and spoke for it. But Sharp said, that was upon that no court should bave the perusing of the matter the exposing his person to any man them. The court was terrified with this, and that would attempt to murder him, since favour the judges were divided in opinion. Prime- was to be shewed to such an assassin. Then rose, and one other, was for calling for the said duke Lauderdale, in an impious jest, Let books. But three were of opinion, that they Mitchell glorify God in the grass market, which were not to furnish the prisoner with evidence, was the place where he was to be hanged. but to judge of that which he brought. And This action, and all concerned in it, were looked here was only a bare copy, not attested upon at by all people with horror. And it was such oath, which ought not to have been read. So, a complication of treachery, perjury, and cruelty this defence being rejected, he was cast and as the like had not perhaps been known. Ye condemned. Duke Lauderdale had a chaplain, Hickes, afterwards Dean of Worcester, who published a false and partial relation of this matter, in order to the justifying of it. Primerose not only gave me an account of this matter, but sent me an authentic record of the trial, every page signed by the clerk of the court; of which I have here given an abstract. This I set down the more fully, to let my readers see to what a height in wickedness nien may be carried, after they have once thrown off good princeples. What Sharp did now to preserve himself from such practices was probably that which, both the just judgment of God and the enflamed fury of wicked men, brought b two years after to such a dismal end."

"As soon as the court broke up, the lords went up stairs, and to their shame found the act recorded, and signed by lord Rothes, as president of the council. He pretended, he signed every thing that the clerk of council put in the book without reading it. And it was intended to throw it on him. But he, to clear himself, searched among his papers, and found a draught of the act in Nisbit's hand. So, he being rich, and one they had turned out, they resolved to put it upon him, and to fine him deeply. But he examined the Sederunt in the book, and spoke to all who were there at the board, of whom nine happened to be in town, who were ready to depose upon oath, that when the council had ordered this act to be drawn, the clerk of the council desired the help of the king's advocate in penning it, which he gave him; and his draught was approved by the council. And now lord Rothes's jest

And be

Of this dismal end his account is this: "When a party of furious men were riding through a moor near St. Andrews, they saw the arch-bishop's coach appear: he was coming from a council day, and was driving home: be