Then, my lord, admit it to be so, yet you saw Mr. Bethel was not the person that first began this disturbance: Now, if the other party had been indicted and tried, as indeed it had been much more fit they should, we could have proved much against them.

And as to the fact, and manner of what Mr. Bethel did, it was no more than coming in a civil manner, asking whether he had a right to poll; when he said no, he took him civilly by the arm and led him down; and this is a justifiable assault, being the nature of the thing required a necessity of somewhat of action in it. I appeal to you of the jury, whether there be any cause for this indictment, or colour of reason for you to find it ?

any man that stands in his way; I do not understand that to be law. If any man had beaten Mr. Bethel, he might have beaten him again in his own defence; but there was no such thing, Mr. Bethel saw no disturbance himself, but was informed of it, and so became too officious; though he was sheriff of London, yet he was not an officer there; for he was not a constable there; and it was a constable's office, and he only could have seized him; and not a constable neither, unless he had seen the king's peace broken.-And as to what Mr. Thompson saith, that it is impossible that such an election should be carried on without some bustle. It is true, in a crowd, men justling one another, and by accident strike another 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. Bethel, you must necessarily convict eight persons of perjury: But if you do not find for Mr. Bethel, the other witnesses cannot be convicted of perjury; for how can men swear (though they were there all the time) that they did not see? Possibly they might be very honest men, and present at the time, and yet not see Mr. Bethel strike, and so not swear to it: But our witnesses swear very true; I hope you will be guided by sense and conscience, and not by spectators humours, and apprehensions, that come here and hiss in a court of justice. Now, eight witnesses swearing it, I do appeal to the court, whether in matters of this nature one witness for the affirmative, be not more valid than many of the negative?

They take notice of the impossibility, and why, because they swear, as they say, at an extravagant rate, that Mr. Bethel give him twenty blows.

Gentlemen, if Mr. Bethel will beat a man extravagantly, it is not extravagancy to swear it. Now, Mason's evidence is confirmed by all the rest produced, and no contradiction: If one swear to ten, and another to two, and another to three, is this inconsistent? No, gentlemen, it is evident those men swear cautiously and fearfully; for if otherwise, they could swear to as many as twenty, as Mason hath done. Who is the best judge, he that felt the blows, or they that swear there was not one given? He that felt them, I am sure.-Gentlemen, it was in a crowd, it is possible they may not see all; yet their evidence is a concurring cir

cumstance.

Next I come to the point of law, how a man
at is a candidate at an election, can beat

Mr. Bethel to pluck a man's coat off his back? Is it necessary to an election? It is not necessary; and so being not necessary, is not by law justifiable. Gentlemen, as Mr. Thompson saith, it is a case of example; I say so too; and it is fit persons that will do such things, should be made an example.

Justice Pyrs afterwards summed up the evidence, and told the jury (as Mr. Holt the counsellor for the king had before well observed) that they were to have regard to the positive affirmative evidence, Mason having sworn positively to several blows that were struck by Mr. Bethel, and that eight witnesses had sworn in the affirmative, and that though there were seven witnesses produced by Mr. Bethel, which were on the negative part; yet they were to observe, that the law did not allow of those negative evidences. But for that so many had sworn in the affirmative, that they saw a thing done, and as many swear that they saw it not; he could not tell what to say, but to leave it to the jury, saying, that one affirmative was better than forty negative oaths.

So the Jury went out, and in a very short time were pleased to find the indictment, and brought Mr. Bethel in Guilty.

Then Mr. Bethel's counsel moved in arrest of judgment, for that no indictment lay for the words, and the court for that reason staid the judgment, as to that part of the indictment, and gave judgment only as to the assault and battery, and fined Mr. Bethel five marks. Upon which, the counsel for the king moved to have him taken into custody, until he paid the fine; which he presently paid and was discharged,

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.

You shall diligently enquire, and true presentments make of all such matters, articles and things, as shall be given you in charge, as of all other matters and things as shall come to your own knowledge, touching this present service; the king's counsel, your fellows and your own, you shall keep secret; you shall present no person for hatred or malice; neither shallyou leave any one unpresented, for fear, favour or affection, for lucre or gain, or any hopes thereof; but in all things you shall present the truth, the whole truth and nothing but the truth, to the best of your 'knowledge. So help you GOD.'

L. C. J. (Pemberton.) Gentlemen of the Jury, we are all met here, in one of the most solemn assemblies of this nation; it is upon the execution of justice upon such as shall be found offenders, and Guilty of the breach of the king's laws.

This commission by which we sit, and you are summoned, doth in its nature extend to all offences whatsoever, against the laws of the land, treasons, misprisions of treasons, felonies, and all other crimes and offences against the king and his government, such as are vulgarly called Pleas of the Crown; they all fall under, our cognizance and your enquiry in a general manner.. But I must tell you, there is a particular occasion for this commission at this time. His majesty having infor mation of some evil traiterous designs against his person and government, has thought fit to direct a due examination of them, and that the persons may be brought to condign punishment who shall be found Guilty thereof. You must not therefore expect any general and formal charge from me: Truly, I came hither this morning, with an apprehension that you had your directions given you before, by the

"A bill of indictment 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 examined in open court, contrary to the usual custom: The witnesses swore many incredible things against him, mixed with other things that looked very like his extravagant way of talking. The draught of the association was also brought as a proof of his treason, though it was not laid in the indictment, and was proved only by one witness. The jury returned Ignoramus' upon the bill. Upon this the court did declaim with open mouth against these juries; in which they said the spirit of the party did appear, since men even upon oath shewed they were resolved to find bilis or Ignoramus,' as they pleased, without regarding the evidence. And upon this a new set of addresses went round the kingdom, in which they expressed their abhorrence of that association found in lord Shaftsbury's cabinet; and complained, that justice was denied the king; which were set off with all the fulsom rhetoric that the penners could varnish them with. It was upon this occasion said, that the grand jury ought to find bills even upon dubious evidence, much more when plain treason was sworn; since all they did in finding a bill was only to bring the person to his trial, and then the falshood of the witnesses was to be detected. But in defence of these Ignoramus' juries it was said, that by the express words of

dence, they could not find a bill, though sworn to. A book was writ to support that, in which both law and reason were brought to confirm it: It past as writ by lord Essex, though I understood afterwards it was writ by Somers, who was much esteemed and often visited by lord Essex, and who trusted himself to him, and writ the best papers that came out in that time. It is true, by the practice that had generally prevailed, grand juries were easy in finding bills upon a slight and probable evidence. But it was made out, that the words of their oath, and the reason of the law seemed to oblige them to make no presentments but such as they believed to be true. On the other hand a private ill opinion of a witness, or the looking on a matter as incredible, did not seem to warrant the return of an Ignoramus:' That seemed to belong to the jury of life and death. The chief complaint that was made in the addresses was grounded on their not finding the bill on the account of the draught of the association: And this was in many respects very unreason. able. For as that was not laid in the bill, so there was but one witness to prove it; nor did the matter of the paper rise up to the charge of high treason. And now Dugdale and Turbervile, who had been the witnesses upon whose evidence lord Stafford was condemned, being within a year detected, or at least sus

Recorder; for it is our usual way, not to come until the juries are sworn in this place, and their directions given them; but since I find it otherwise, I take it to be my duty to say something to you, but shall not go about now to make any such formal charge, as in commissions of this nature is wont to be done; nor to give an account of all offences that fall

pected of this villany, I could not but reflect on what he said to me, that he was confident I should see within a year that the witnesses would be found to be rogues." 1 Burnet, 508. "Colledge's blood was too mean a sacrifice to appease the offending ghosts of the martyred Roman saints, and was but an inlet to spill nobler blood; therefore upon the S1st of August he was executed; and upon the 24th of November following, 1681, the earl of Shaftesbury had a bill of High-Treason at the sessions of the Old Bailey, London, preferred against him.

under your enquiry of a Grand Inquest, impannelled by virtue of such a commission at large; nor must you expect I should acquaint you with all the crimes that you may enquire of as such an Inquest.

I shall content myself so far, as on the sudden I can recollect my thoughts, to acquaint you with the nature of those bills; with the

hired a ship called the Abigail, and victualled her for the master and ten men, and such other passengers as he should take in.

"In this number, one Mr. John Booth, desired that he and his family might accompany the captain to Carolina, which was agreed to; but the captain being under several disappointments, and the charges of the ship's lying in the river four months, unsupportable, he was arrested and thrown into the Compter; from whence he removed himself to the King'sbench. The captain's necessities were equal, or more than those of the Irish evidence; but the captain (at least as he supposed) had no need of a pardon, for any thing designed against the king and government, as the Irish evidence had; so the first attempt upon him was to hire him to give evidence against my lord of Shaftes

"If Empson and Dudley were so zealous to fill Henry the Seventh's coffers, by straining the penal laws to utmost rigour, as the vogue went, Graham, Baynes, and Burton, were as zealous to pack juries, and procure evidence for carrying on this black design.

66

Upon the 20th of April 1679 the king after he had sent the duke into Holland, dissolved his old privy-council, and chose a new one, whereof the earl of Shaftesbury was president; and in parliament declared the ill effects he had found of single councils and cabals, and there-bury. fore had made choice of this council; which, next to the advice of his great council of parliament (which he would often consult in all his weighty and important affairs) he would be advised by this privy-council; and to take away all jealousy that he was influenced by Popish councils, he had sent his Brother beyond sea. "But now, quanto mutatus! No more parliaments so long as this king lives. The council, whose advice, next the parliament, he would take, is now dissolved, and the president's life is sought for; the duke of late sent away, that he might not influence the king's councils, is now returned, and governs all, and made high commissioner of Scotland, where, at this time, he is contriving the destruction of the noble earl of Argyle, whilst his brother is doing that of my lord of Shaftesbury, and both act their parts under the veil of sacred justice. But how to bring the earl of Shaftesbury upon the stage, was matter of great enquiry; other evidence besides Irish, and those Colledge had so baffled, could scarce he found, and this evidence 'twas feared, would no more prevail upon a London Grand Jury, than before it did when the bill was preferred against Colledge.

"Captain Henry Wilkinson was a Yorkshire gentleman who having served king Charles I. in his wars, and been very instrumental in the restoration of king Charles 11. being falien into decay (a fate usually attending the cavaliers who served either of those kings) was for his sufferings, integrity and honesty, preferred by the earls of Craven and Shaftesbury to be Governor of Carolina, and one of his sons to be Surveyor General of it, and another a register. Captain Wilkinson made use of the little stock he had left, and such credit, as he could procure, to fit himself upon this account, and

Upon the 8th of October, Baynes made his first attack upon the captain, and told him that he had been lately with Mr. Graham, who had a great interest with my lord H. and that the captain could not but know much of my lord Shaftesbury's designs, and that he had now a desired opportunity to discover them; and urged the captain not to deny the proffer, and that he need not fear his getting a pardon; but the captain was constant that he knew nothing of any such design. By this time Booth was a prisoner in the King's-bench, as well as the captain; and upon the 11th, Booth attacked the captain, and told him he might have 500l. per annum, or 10,000l. if he would discover what he knew of my lord Shaftesbury's design against the king, and that the captain should appear at court, and have assurance of it from persons of honour; but this wrought not upon the captain neither. Upon the 13th Baynes, Booth, and Graham renewed the promises Baynes and Booth had made, and that he should have the king's promise for the samme, and his royal word for a reward for his sufferings; and that Graham was sent by some of the council to bring the captain to the king, and that he had an order for it. But all would not do; for the captain was resolved not to go to Whitehall, if he could help it. Upon the 14th Booth told the captain, that Mr. Wilson my lord Shaftesbury's secretary, (who was a prisoner in the Gate-house) had sent to the council, that he would come, and discover all

enquiry whereof, you shall at present, upon this occasion, be troubled, and your duty concerning this enquiry. I hinted to you at first that they are matters of High Treason, which is a crime of the greatest and highest nature of any crime that can be committed against

he knew, and therefore he urged the captain to have the honour of being the first discoverer, and that to the former promises the captain should have 500l. per annum settled on himn in Ireland by the duke of York: But all to no purpose.

"Upon the 15th, Booth and Baynes, attacked the captain again; The captain asked Baynes why he was so urgent for his testimony; Baynes answered, That as yet they had none but Irish evidence, which would not be believed; but if the captain came to it he was not blemished in his credit; and then Baynes told him, if he would not go, he had a Habeas Corpus from my lord chief justice Pemberton, to carry him to Whitehall.

"In the afternoon the captain was carried by his Habeas Corpus to Whitehall, and examined in the secretary's office by my lord Conway, and secretary Jenkins; and in his examination, in comes the king into the office, as before he had done into the dutchess of Portsmouth's chamber, when my lord H. came to kiss her hand; and there the king told the captain he had served his father and him faithfully, and hoped he would not now decline his obedience; to which the captain answered he never deserved to be suspected. Then the king told him he had not the opportunity to serve his friends, but hoped he might: Then the king examined him what he knew of my lord Shaf tesbury having a design aganist his person; but the captain upon his oath denied that he knew any thing, so the king left him to the farther examination of secretary Jenkins.

man: Other crimes, as felonies, riots, trespasses, and things of that nature, they may occasion disorders and troubles in a state or a kingdom; but I must tell you, treason strikes at the root and life of all: It tends to destroy the very government, both king and subjects, his wife was as much tempted to have it so, as the captain was; so the captain's only advancement was to be remanded to prison.

"However, it was resolved that my lord Shaftesbury should be prosecuted, and so upou the 24th of November a bill of High-Treason was preferred against him to the great inquest at the sessions house in the Old Bailey: and Baynes proved a true prophet, though Booth swore to the captain's command of fifty men, to be a guard to my lord; for the jury neither believed him nor the evidence so baffled at Colledge's trial, nor the Irish evidence added to that, and so returned an Ignoramus' upon it.

"Suetonius, in the life of Tiberius, says, he never could have made such ravages upon the Roman empire, and exercised such cruel. ties, if he had not been backed by an officious and flattering senate, which carried the face of justice in it: And though it be evident, that for near eighty years, these three kings of the Scottish race had been endeavouring to es tablish an arbitrary and tyrannical government over this nation, yet except king James the first, who if his necessities had not forced him, would have never had a parliament after the first; and who by his own authority created so many monopolies, and benevolences, and in the parliament of the 12th and 18th years of his reign, without any colour of justice, imprisoned so many worthy gentlemen, without the benefit of Habeas Corpus's, for their debates in parlia ment; yet these other two pretended to raise their tyrannies under the form of justice, and therefore Charles the First, after he for 15 years together, had not only exceeded his father in granting monopolies, and raising money by loans, benevolences, coat and conduct money; but also in taking the customs without grant of parliament, and such as were never granted by parliament; and in further raising ship money, and imprisoning the members of parliament without benefit of their Habeas Corpus's; yet he thought best to do it by such judges as he should make: So this king, in the executions of Fitzharris and Colledge, would have the colour of justice by a form of law, for which there was no law.

"But this business did not stay here; for the captain was carried into another room, where were present the king, my lord chancellor, the lord chief justice Pemberton, and several other of the nobility, with Graham, Baynes and Booth; where my lord chancellor was very sharp upon the captain, and put several questions to him, which he could not answer, and told the captain, there were two sorts of advancements, and that the captain was like to come to his trial before the lord Shaftesbury. "The business was, Booth had sworn that the captain had a commission from my lord 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, yet which time the captain was making his pre- could not make a grand jury, from whom the parations for his intended government of Caro-judges in all criminal cases between the king" lina: but whether the king believed the captain or Booth, is unknown; but it stopped here, and the captain was no higher advanced upon Booth's oath, nor could be prevailed upon to be a witness against my lord Shaftesbury, though

and subject must take their measures: These grand-juries in London are returned by the sheriffs, and the sheriffs are chosen by the livery.

"This difficulty, after my lord Shaftesbury's