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Then, my lord, admit it to be so, yet you any man that stands in his way ; I do not unsaw Mr. Bethel was not the person that first derstand that to be law. If any man had began this disturbance : Now, if the other beaten Mr. Bethel, he might have beaten him party had been indicted and tried, as indeed it again in his own defence; but there was no bad been much more fit they should, we could such thing, Mr. Bethel saw no disturbance have proved much against them.

himself, but was informed of it, and so became And as to the fact, and manner of what Mr. too officious; though he was sheriff of London, Bethel did, it was no more than coming in a yet he was not an officer there; for he was not civil manner, asking whether he had a right a constable there; and it was a constable's to poll; when he said no, he took him civilly office, and he only could have seized bim; and by the arm and led him down ; and this is a not a constable neither, unless he had seen the justifiable assault, being the nature of the king's peace broken.—And as to what Mr. thing required a necessity of somewhat of Thompson saith, that it is impossible that such action in it.' I appeal to you of the jury, whe- an election should be carried on without some ther there be any cause for this indictment, or bustle. It is true, in a crowd, men justling colour of reason for you to find it ?

one another, and by accident strike apother Holt. Gentlemen of the jury, you have down, it is no battery: But is it necessary for heard the evidence on both sides, and the ques. Mr. Bethel to thump a man on the breast ? Is tion is, Whether in your consciences, you it necessary for Mr. Bethel to beat a man with can disbelieve eight witnesses, that swear his cane ? 'Is it necessary for Mr. Bethel to positively to the battery, and believe those wit- give a man twenty blows? Is it necessary for nesses that did not see it? If you acquit Mr. Mr. Bethel to pluck a man's coat off his back? Bethel, you must necessarily convict eight Is it necessary to an election? It is not necespersons of perjury: But if you do not find for sary; and so being not necessary, is not by Mr. Bethel, the other witnesses cannot be con law justifiable. Gentlemen, as Mr. Thompson victed of perjury; for how can men swear saith, it is a case of example ; I say, so too ; (though they were there all the time) that they and it is fit persons that will do such things, did not see > Possibly they might be very should be inade an example. honest men, and present at the time, and yet not Justice Pyrs afterwards summed up the see Mr. Bethel strike, and so not swear toit: But evidence, and told the jury (as Mr. Holt the our witnesses swear very true ; I hope you will counsellor for the king had before well observed) be guided by sense and conscience, and not by that they were to bave regard to the positive affirspectators humours, and apprehensions, that mative evidence, Mason having sworn positively come here and hiss in a court of justice. Now, to several blows that were struck by Mr. Beeight witnesses swearing it, I do appeal to the thel, and that eight witnesses had sworn in the court, whether in matters of this nature one affirmative, and that though there were seren witness for the affirmative, be not more valid witnesses produced by Mr. Bethel, which were than many of the negative?

on the negative part; yet they were to observe, They take notice of the impossibility, and that the law did not allow of those negative why, because they swear, as they say, at an evidences. But for that so many had sworn in extravagant rate, that Mr. Bethel give him the affirmative, that they saw a thing done, and twenty blows.

as many swear that they saw it not; he could Gentlemen, if Mr. Bethel will beat a man not tell what to say, but to leave it to the jury, extravagantly, it is not extravagancy to swear it. saying, that one affirmative was better than Now, Mason's evidence is confirmed by all the forty negative oaths. rest produced, and no contradiction : If one So the Jury went out, and in a very short swear to ten, and another to two, and another time were pleased to find the indictment, and to three, is this inconsistent ? No, gentlemen, brought Mr. Bethel in Guilty. it is evident those men swear cautiously and fearfully; for if otherwise, they could swear Then Mr. Bethel's counsel moved in arrest to as many as twenty, as Mason bath done. of judgment, for that no indictment lay for the Who is the best judge, he that felt the blows, words, and the court for that reason staid the or they that swear there was not one given ? judgment, as to that part of the indictment, He that felt them, I am sure.-Gentlemen, it and gave judgment only as to the assault and was in a crowd, it is possible they may not see battery, and fined Mr. Bethel five marks. all; yet their evidence is a concurring cir- Upon which, the counsel for the king moved to cumstance.

have him taken into custody, until he paid the Next I come to the point of law, how a man tine ; which he presently paid and was disAlat is a candidate at an election, can beat charged,

283. Proceedings at the Old-Bailey, upon a Bill of Indictment

for High Treason, against Anthony Earl of SHAFTESBURY, 33 CHARLES II. November 24, A.D. 1681.


The Oath.


The Grand Jury :

L. C. J. (Pemberton.) Gentlemen of the Sir Samuel Barnardiston, John Morden, Jury, we are all met here, in one of the most Thomas Papillon, John Dubois, Charles Hearle, solemn assemblies of this nation ; it is upon Edward Rudge, Humphrey Edwin, John the execution of justice upon such as shall be Morrice, Edmund Harrison, Joseph Wright, found offenders, and Guilty of the breach of the John Cox, Thomas Parker, Leonard Robinson, king's laws. Thomas Shepherd, John Flavell, Michael

This commission by which we sit, and Godfrey, Joseph Richardson, William Emp- you are summoned, doth in its nature extend to son, Andrew Kendrick, John Lane, John all offences whatsoever, against the laws of

the land, treasons, misprisions of treasons, felovies, and all other crimes and offences

against the king and bis government, such as · Fou shall diligently enquire, and true are vulgarly called Pleas of the Crown; they o'presentments make of all such matters, articles all fall under, our cognizance and your enquiry • and things, as shall be given you in charge, as in a general manner.. But I must tell you,

of all other matters and things as shall come there is a particular occasion for this commis* to your own knowledge, touching this present sion at this time. His majesty having infor• service ; the king's counsel, your fellows and mation of some evil traiterous designs against ' your own, you shall keep secret ; you shall his person and government, has thought it to • present no person for hatred or malice ; | direct a due examination of them, and that the • neither shallyou leave any one unpresented, for persons may be brought to condign punish

fear, favour or affection, for lucre or gain, or ment who shall be found Guilty thereof. You any hopes thereof; but in all things you must not therefore expect any general and shall present the truth, the whole truth and formal charge from me : Truly, I came hither • nothing but the truth, to the best of your this morning, with an apprehension that • knowledge. So help you God.'

had your directions given you before, by the *“A bill of indictinent was presented to their oath they were bound to make true prethe grand jury against lord Shaftesbury. The sentments of what should appear true to them: jury was composed of many of the chief citi. And therefore, if they did not believe the evizens of London. The witnesses were exa- dence, they could not find a bill, though sworn mined in open court, contrary to the usual to. A book was writ to support that, in which custom: The witnesses swore many incredible both law and reason were brought to confirm things against him, mixed with other things it: It past as writ by lord Essex, though I unthat looked very like his extravagant way of derstood afterwards it was writ by Somers, who talking. The draught of the association was was much esteemed and often visited by lord also brought as a proof of his treason, though Essex, and who trusted himself to him, and it was not laid in the indictment, and was writ the best papers that came out in that time. proved only by one witness. The jury re- It is true, by the practice that had generally turned · Ignoramus' upon the bill. Upon this prevailed, grand juries were easy in finding the court did declaim with open mouth against bills upon a slight and probable evidence. But these juries ; in which they said the spirit of it was made out, that the words of their oath, the party did appear, since men even upon and the reason of the law seemed to oblige oath shewed they were resolved to find bilis or them to make no presentments but such as they "Ignoramus,' as they pleased, without regarding believed to be true. On the other hand a prithe evidence. And upon this a new set of ad- vate ill opinion of a witness, or the looking on dresses went round the kingdom, in which a matter as incredible, did not seem to warrant they expressed their abhorrence of that as- the return of an · Ignoramus: That seemed to sociation found in lord Shaftsbury's cabinet ; belong to the jury of life and death. The and complained, that justice was denied the chiet complaint that was made in the addresses king; which were set off with all the fulsom was grounded on their not finding the bill on rhetoric that the penners could varnish them the account of the draught of the association : with. It was upon this occasion said, that the And this was in many respects very unreason. grand jury ought to find bills even upon dubious able. For as that was not laid in the bill, so evidence, much more when plain treason was there was but one witness to prove it ; nor did sworn ; since all they did in finding a bill was the matter of the paper rise up to the charge only to bring the person to his trial, and then of high treason. And now Dugdale and Turtbe falshood of the witnesses was to be de- bervile, who had been the witnesses upon tected. But in defence of these · Ignoramus? whose evidence lord Stafford was condemned, juries it was said, that by the express words of being within a year detected, or at least susu

Recorder ; for it is our usual way, not to come under your enquiry of a Grand Inquest, imuntil the juries are sworn in this place, and panpelled by virtue of such a commission at their directions given them ; but since I find large ; nor must you expect I should acquaint it otherwise, I take it to be my duty to say you with all the crimes that you may enquire something to you, but shall not go about now of as such an Inquest. to make any such formal charge, as in com- I shall content myself so far, as on the sudmissions of this nature is wont to be done ; den I can recollect my thoughts, to acquaint nor to give an account of all offences that fall you with the nature of those bills ; with the pected of this villany, I could not but reflect on hired a ship called the Abigail, and victualled what he said to me, that he was confident I her for the master and ten men, and such other should see within a year that the witnesses passengers as he should take in. would be found to be rogues." 1 Burnet, 508. “ In thiş number, one Mr. John Booth, de

sired that he and his family might accompany " Colledge's blood was too mean a sucrifice the captain to Carolina, which was agreed to; to appease the offending ghosts of the martyred but the captain being under several disappointRoman saints, and was but an inlet to spill nobler ments, and the charges of the ship's lying in the blood; therefore upon the Sist of August he river four months, unsupportable, he was arwas executed ; and upon the 24th of Novem- rested and thrown into the Compter; from ber following, 1681, the earl of Shaftesbury had whence he removed himself to the King'sa bill of High-Treason at the sessions of the bench. The captain's necessities were equal, Old Bailey, London, preferred against him. or more than those of the Irish evidence ; but

"Upon the 20th of April 1679 the king after the captain (at least as he supposed) had no he had sent the duke into Holland, dissolved need of a pardon, for any thing designed against his old privy-council, and chose a new one, the king and government, as the Irish evidence whereof the earl of Shafteshury was president; had; so the first attempt upon him was to hire and in parliament declared the ill effects he had bim to give evidence against my lord of Shaftesfound of single councils and cabals, and there-bury, fore had made choice of this council; which, «i If Empson and Dudley were so zealous to next to the advice of his great council of par- fill Henry the Seventh's coffers, by straining the liament (which he would often consult in all his penal laws to utmost rigour, as the vogue went, weighty and important affairs) be would be ad- Graham, Baynes, and Burton, were as zealous vised by this privy-council ; and to take away to pack juries, and procure evidence for carryall jealousy that lie was infíuenced by Popishing on this black design. councils, he had sent his Brother beyond sea. “Upon the 8th of October, Baynes made

"But now, quanto mututus! No more par- his first attack upon the captain, and told him liements so long as this king lives. The coun- that he had been lately with Mr. Graham, who cil

, whose advice, next the parliament, he would had a great interest with my lord H. and that take, is now dissolved, and the president's life the captain could not but know much of my is sought for ; the duke of late sent away, that lord Shaftesbury's designs, and that he had be might not influence the king's councils, now a desired opportunity to discover them; is now returned, and governs all, and made and urged the captain noi to deny the proffer, high commissioner of Scotland, where, at this and that he need not fear his getting a pardon; time, he is contriving the destruction of the but the captain was constant that he knew nonoble earl of Argyle, whilst his brother is doing thing of any such design. By this time Booth that of my lord of Shaftesbury, and both act was a prisoner in the King's-bench, as well as their parts under the veil of sacred justice, the captain ; and upon the 11th, Booth atBut how to bring the eart of Shaftesbury upon tacked the captain, and told him he might have the stage, was matter of great enquiry, other 5001. per annum, or 10,0001. if he would disevidence besides Irish, and those Colledge had cover what he knew of my lord Shaftesbury's so batiled, could scarce he found, and this evi- design against the king, and that the captain dence 'twas feared, would no more prevail upon should appear at court, and have assurance of a London Grand Jury, than before it did when it from persons of honour ; but this wrought the bill was preferred against Colledge. not upon the captain neither. Upon the 13th

". Captain Henry Wilkinson was a Yorkshire Baynes, Booth, and Graham renewed the progentleman who having served king Charles I. mises Baynes and Booth had made, and that in his wars, and been very instrumental in the he should have the king's promise for the restoration of king Charles II. being falien saine, and his royal word for a reward for his into decay (a fate usually attending the cavaliers sufferings; and that Graham was sent by some who served either of those kings) was for his of the council to bring the captain to the king, sufferings, integrity and honesty, preferred by and that he had an order for it. But all would the earls of. Craven and Shaftesbury to be Go- not do; for the captain was resolved

not to go vervor of Carolina, and one of his sons to be to Whitehall, if he could help it. Upon the Surveyor General of it, and another a register. ) 14th Booth told the captain, that Mr. Wilson Captain Wilkinson made use of the little stock my lord Shaftesbury's secretary, (who was a he had left, and such credit, as he could pro- prisoner in the Gate-house) had sent to the cure, to fit himself upon this account, and council

, that he would come, and discover all enquiry whereof, you shall at present, upon man: Other crimes, as felonies, riots, tresthis occasion, be troubled, and your duty con- passes, and things of that nature, they may cerning this enquiry. I hinted to you at first occasion disorders and troubles in a state or that they are matters of High Treason, which a kingdom ; but I must tell you, treason strikes is a crime of the greatest and highest nature of at the root and life of all: It tends to destroy any crime that can be committed against the very government, both king and subjects, he knew, and therefore he urged the captain his wife was as much tempted to have it so, as to have the honour of being the ħrst discoverer, the captain was ; so the captain's only advanceand that to the former promises the captain ment was to be remanded to prison. should have 500l. per annum settled on bin “ However, it was resolved that my lord in Ireland by the duke of York : But all to no Shaftesbury should be prosecuted, and so upou purpose.

the 24th of November a bill of High-Treason “Upon the 15th, Booth and Baynes, attacked was preferred against him to the great inquest the captain again ; The captain asked Baynes at the sessions house in the Old Bailey: and why he was so urgent for his testimony ; Baynes proved a true prophet, though Booth Baynes answered, That as yet they had none swore to the captain's command of fifty men, but Irish evidence, which would not be be- to be a guard to my lord; for the jury neither lieved ; but if the captain came to it he was believed him nor the evidence so baffled at Col. not blemished in his credit ; and then Baynes ledge's trial, nor the Irish evidence added to told him, if he would not go, he had a Ha- that, and so returned an · Ignoramus' upon it

. beas Corpus from my lord chief justice Pem- “ Suetonius, in the life of Tiberius, says, he berton, to carry him to Whitehall.

never could have made such ravages upon “ In the afternoon the captain was carried the Roman empire, and exercised such cruel. by his Habeas Corpus to Whitehall, and exa- ties, if he had not been backed by an officious mined in the secretary's otfice by my lord Con- and flattering senate, which carried the face way, and secretary Jenkins; and in his exa- of justice in it: And though it be evident, mination, in comes the king into the office, as that for near eighty years, these three kings of before he had done into the dutchess of Ports- the Scottish race had been endeavouring to esmouth's chamber, when my lord H. came to tablish an arbitrary and tyrannical government kiss her hand; and there the king told the cap- over this nation, yet except king James the first

, tain he had served his father and him faithfully, who if his necessities had not forced him, would and hoped he would not now decline his obedi- | bave never had a parliament after the first; and ence; to which the captain answered he never who by bis own authority created so many deserved to be suspected. Then the king told monopolies, and benevolences, and in the parhim he had not the opportunity to serve bis liament of the 12th and 18th years of his reiga, friends, but hoped he might: Then the king without any colour of justice, imprisoned so examined him what he knew of my lord Shaf- many worthy gentlemen, without the benefit of tesbury having a design aganist his person ; Habeas Corpus's, for their debates in parliabut the captain upon his oath denied that he ment; yet these other two pretended to raise knew any thing, so the king left him to the far- their tyrannies under the form of justice, and ther examination of secretary Jenkins. therefore Charles the First, after he for 15

“ But this business did not stay here ; for years together, had not only exceeded bis fathe captain was carried into another room, where ther in granting monopolies, and raising money were present the king, my lord chancellor, by loans, benevolences, coat and conduct money; the lord chief justice Pemberton, and several but also in taking the customs without grant of other of the nubility, with Graham, Baynes parliament, and such as were never granted and Booth; where my lord chancellor was by parliament ; and in further raising ship very sharp upon the captain, and put several money, and imprisoning the members of par questions to him, which he could not answer, liament without benefit of their Habeas Corand told the captain, there were two sorts of pus's; yet he thought best to do it by such advancements, and that the captain was like judges as he should make : So this king, in to come to his trial before the lord Shaftesbury. the executions of Fitzharris and Colledge • The business

was, Booth had sworn that would have the colour of justice by a form of the captain had a commission from my lord law, for which there was no law. Shaftesbury, for a troop of fifty men, to be • But as the knights of Malta could make my lord's guards against the king, and that knights of their order for eight pence a piece

, Booth was listed in it: This Booth had sworn, yet could not make a soldier or seaman: So but was so unfortunate in it, as to swear this these kings, though they could make what was when the parliament was at Oxford, at judges they pleased, to do their business

, you which time the captain was making his pre- could not make a grand jury, from whom ile parations for his intended government of Caro- judges in all criminal cases between the king lina : but whether the king believed the cap- and subject must take their measures : These tain or Booth, is unknown ; but it stopped here, grand-juries in London are returned by the and the captain was no higher advanced upon sheriffs, and the sheriffs are chosen by the Booth's oath, nor could be prevailed upon to be livery. a witness against my lord Shaftesbury, though " This difficulty, after my lord Shaftesbury's

and the lives, interests and liberties of all, and | variety of opinions concerning treason, and therefore has always been looked upon as a there were many disputes about it, what should

crime of the most notorious nature that can be be treason, and what not; and therefore it was * whatsoever, and accordingly punishments have thought fit, by the wisdom of our ancestors, i been appointed for it of the highest and severest to have a law to declare treason ; and by the

extremity. There was at common law great statute of the 25th of Ed. 3, there was a plain Case, put the court to their trumps, and at pre- A daring pilot in extreunity;

(high. sent a stop to their proceedings : The assis. Pleas'd with the danger, when the waves went tance of the duke of York was necessary, but He sought the storm; but, for a calin unfit, at this time he was busy in Scotland, as before would steer too nigh the sands, to boast his wit. said.” 2 Royer Coke's Detection, 308. Great wits are sure to madness near ally'd,

Anencomiastic account of Shaftesbury printed And thin partitions do their bounds divide; in the Harleian Miscellany, vol. 5. p. 368, Else why should he, with wealth and honour under the title of “ 'A brief account of many

blessid, " memorable passages of the life and death of Refuse bis age the needful hours of rest?

" the earl of Shaftsbury,” &c. concludes Punish a body which he could not please ; 1 tbns :

Bankrupt of life, yet prodigal of ease? " I shall give one memorable passage said | And all to leave wbat with his toil he won, Da to have passed between the earland some of the To that unfeather'd, two-legg'd thing, a son;

popish lords, soon after his commitment; the Got while bis soul did huddled notions try, story is this: meeting accidentally with one of And born a shapeless lump, like Anarchy. the popish lords, he was asked by him, "What In friendship false, implacable in hate;

his lordship did there, and that he little Resolv'd to ruin, or to rule the state. *** thought to have his good company?' to which To compass this, the triple bond he broke ;

the earl of Shaftsbury replied, • That he had The pillars of the public safety shook ; ** lately been sick of an ague, and was come

And fitted Isr'el for a foreign yoke : there to take some Jesuits powder. It was then seiz'd with fear, yet still affecting fame, said, during the whole time of his lordship Usurp'd a patriot's all-atoning name :

being in the Tower, he remained very cheer- So easy still it proves, in factious times, ca: ful

, beyond what could have been expected from With public zeal to cancel private crimes. a person labouring under such extreme pains How safe is treason, and how sacred ill, and diseases.

During the earl's imprisonment, Where none can sin against the people's will! many made it their business to detract and Where crowds can wiuk, and no offence be vilify him; and it was their mode to drink his known, health at an hempen string, and call him Since in another's guilt they find their own! * Tory Tapskin,” (alluding to the tap which Yet fame deserv'd no enemy can grudge ; had been applied upon the breaking out of an The statesman we abhor, but praise the judge. ulcer), and king of Poland!' (It was a stand- In Isr’el's courts, ne'er sac an Abethdio ing joke anong the opponents of Shaftsbury, with more discerning eyes, or hands more that he hoped to be chosen king of Poland at the vacancy, when John Sobieski was elected.) Unbrib’d, unsought, the wretched to redress, After the earl's trial, it is reported he arrest- Swilt of dispatch, and easy of access. And one Baines, one of the witnesses, for a con

Oh! had he been content to serve the crown spiracy, also several others; but, being not With virtues, only proper to the gownsuffered to have his trial against them in Or had the rankness of the soil been freed London and Middlesex, he remitted the same From cockle, that oppressid the noble seedtill another opportunity.”

David for bim his tunesul harp had strung, " Shaftesbury, afraid of a trial, offered, if the And Heav'n had wanted one immortal song. king pleased, to go and live in Carolina. The

But wild ambition loves to slide, not stand, Lord Chamberlain was for the king's hearken

And fortune's ice prefers to virtue's land." ing to him." Macpherson's Life of king * James the Second, written by himself. See

“ A martial hero, first, with early care, is the Introduction to the Case of lord Clarendon, Blown, like a pigimy by the winds, to war; vol. 6, p. 291, of this Collection.

A beardless chief, a rebel ere a man;

his hatred to his prince began. North is very acrimonious against Shaftes- Next this, (how wildly will ambition steer!) bury. Dryden, too, is very severe upon him, A vermin, wriggling in th’usurper's ear. though with some qualification :

Bart'ring his venal wit for sums of gold, “ A Dame to all succeeding ages cors’d; He cast himself into the saint-like mould; For close designs and crooked counsels fit, Groaa'd, sigh'd, and pray'd, while godliness was Sagacious, bold, and turbulent of wit;

gain, Restless, unfix'd in principles and place,

The loudest brgpipe of the squeaking train. In pow'r unpleas'd, impatient of disgrace :

But, as 'uis hard to cheat a juggler's eyes, A fiery soul, which, working out its way,

His open lewdness he could ne'er disguise. Fretted the pigmy body to decay,

There split the saint ; for bypocritic zeal And o'er-inform the tenement of clay.

Allows no sins but those it can conceal.

clean ;



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