declaration made of what was treason, and what not: By that law, For any one to com* pass, imagine, or intend, the death of the king' Whoring to scandal gives too large a scope : The wretch turn'd loyal in his own defence, writes: "I am quite glad I have little to do with Shaftesbury; for as to making him a real patriot, or friend to our ideas of liberty, it is impossible, at least in my opinion. On the other hand, he is very far from being the devil he is described. Indeed, he seems to have been strictly a man of honour, if that praise can be given to one destitute of public virtue, and who did not consider catholics as fellow creatures; a feeling very common in those times. Locke was probably caught by his splendid qualities, his courage, his openness, his party zeal, his eloquence, his fair dealing with his friends, and his superiority to vulgar corruption. Locke's partiality might make him, on the other hand, blind to the indifference with which he (Shaftesbury), espoused either monarchical, arbitrary, or republican principles, as best suited his ambition; but could it make him blind to the relentless cruelty with which he persecuted the papists in the affair of the popish plot, merely, as it should seem, because it suited the purposes of the party with which he was then engaged? -You know that some of the imputations against him are certainly false: the shutting up the Exchequer, for instance. But the two great blots of sitting on the Regicides, and his conduct in the popish plot, can never be wiped off. The second Dutch war is a bad business, in which he engaged heartily, and in which (notwithstanding all his apologists say,) he would have persevered, if he had not found the was cheating him." 6 for I will give you no more of that statute, nor concerning the sense thereof, than may be for your purpose now, I say, by that law, to compass, imagine, or intend the death of the king, and to declare it by overt-act, or to levy war against the king,' were declared (amongst other things in that statute mentioned) to be High Treason: And this hath obtained for law among us ever since; and by that standing law, nothing is to be accounted treason, but what is therein particularly declared so; but upon many emergent occasions, there hath been several other laws, as the case bath required now and then, for to declare and bring other particular crimes within the compass of treasons: So there was a law made in queen Elizabeth's reign for enacting several crimes to be treasons, during her life; which was made upon the occasion of the inveterate malice of the Roman Catholics against her and her government; and so there hath been in other king's reigns upon other occasions. Amongst the rest, it was thought fit, by the parliament assembled here, in the 13th year of this present king, to make a particular law for the enacting and declaring several crimes to be treasons, during this king's life; they had great grounds, and too much occasion for it, and so they express it in the preamble of that law. The wounds which the then late treasons dom, were then still bleeding, ripe and scarcely had made, that had so far obtained in this king. closed; many traiterous positions, and many seditious principles were spread, and had o tained and gained footing among the people f this kingdom; and the parliament had reason to believe that where they had been so malicious. ly bent against the king and his family, and had taken off his father, and maintained so long and dangerous a war against him, almost to the utter destruction and extirpation of him, and all his good subjects, and of his, and all our interests, properties and liberties, and had almost destroyed a flourishing kingdom; here they had reason, I say, to be careful, to prevent the like mischiefs for the future; therefore, gentlemen, they did think fit to make a new law for this purpose; and whereas the law before was, that it should be treason, to compass, imagine, or intend the death of the king, so as it were declared by overt-act; now they thought it woul be dangerous to stay till an overt-act should declare the intention: for when they had seen such malicious and evil designs against the king and supreme authority; and that they had prevailed so far, as to murder one king and banish another; and had gone a great way in the destruction of the government of this kingdom, absolutely to root it quite out; they had reason then, as much as they could, to prevent the designs before they should grow full ripe, and vent themselves in overt-acts; therefore, it was enacted by that statute, made in the 13th year of this king's reign, "That if any one should compass, imagine, or intend the death of the king or his destruction, or any bodily harm that might tend to his death, or destruction, or any maiming or wounding his person, any restraint of his liberty, or any imprisonment of him; or if any should design or intend to levy any war, against him, either within the kingdom, or without; or should design, intend, endeavour, or procure any foreign prince to invade these his dominions, or any other of the king's dominions, and should signify or declare this by any writing, or by any preaching or printing, or by any advised, malicious speaking, or words, this shall be high treason." Now this hath altered the former law greatly, especially in two cases: first as to levying of war; the intention was not treason before, unless it had taken effect, and war had been actually levied and then as to the designing and compassing the king's death, that was not treason, unless it was declared by an overt-act: as to the imprisoning, or restraining of the liberty of the king, they of themselves alone were not high treason: but now by this, law these are made treason,--by this law, during his majesty's life; and the very designing of them, whether they take effect, or not take effect, though it be prevented (before any overt-act) by the timely prudence of the king and his officers-though it should be timely prevented, that there is no hurt done, yet the very design, if it be but uttered and spoken and any ways signified by any discourse: this, gentlemen, is made treason by this act; and this hath wrought very great alteration in the case of treason now; formerly it was said, and said truly enough, that words alone would not make treason; but since this act, gentlemen, words, if they import any malicious design against the king's life and government, and traiterous intention in the party, such words are treason now within this act : and this act was made with great prudence, and with great care take off that undue liberty that men had taken to themselves; in those times of licentiousness, people had taken to themselves an undecent and undue liberty to vent all their seditious and malicious minds one to another, without any restraint at all: therefore now, gentlemen, you must consider, that words if they signify or purport any traiterous intention or design in the party, either against the king or his government; either to restrain his liberty or imprison him, or to do him any bodily hurt, or any crime of that nature; this is treason within this act of parliament. Look ye, gentlemen, now as to the indictments that shall be brought before you, you are to consider these things: 1. Whether the matter contained in them, and which you shall have in evidence, be matter of treason within the former, or this act of parliament? And here, if you doubt of it, then you must advise with us that are commissionated by his majesty, to hear and determine these crimes; and in matters of law we shall direct you: and you are to enquire if there be two witnesses that shall testify the matters in evidence to you; for without two witnesses, no man is to be impeached within these laws; but if there be two witnesses that VOL. VIII. shall testify to you matters to make good the indictments, then you have ground to find the indictments. But I must tell you, as to this case of two witnesses, it is not necessary that they should be two witnesses to the same words or to words spoken at one time, or in the same place; that is not necessary if one be a witness to words that import any traiterous design and intention, spoken at one time, and in one place; and another testify other seditious and traiterous words spoken at another time, and in another place; these two are two good witnesses within this statute, and so it hath been solemnly resolved by all the judges of England, upon a solemn occasion. Look ye, gentlemen, I must tell you, That that which is referred to you, is to consider,. whether, upon what evidence you shall have given unto you, there be any reason or ground for the king to call these persons to an account, if there be probable ground, it is as much as you are to enquire into: you are not to judge the persons, but for the honour of the king, and the decency of the matter, it is not thought fit by the law, that persons should be accused and indicted, where there is no colour nor ground for it; where there is no kind of suspicion of a crime, nor reason to believe that the thing can be proved, it is not for the king's honour to call men to an account in such cases: therefore you are to enquire, whether that that you hear be any cause or reason for the king to put the party to answer it. You do not condemn, nor is there such a strict enquiry to be made by you as by others, that are sworn to try the fact, or issue: a probable cause, or some ground, that the king hath to call these persons to answer for it, is enough, gentlemen, for you to find a bill, it is as much as is by law required. Gentlemen, you must consider this, That as it is a crime for to condemn innocent persons, so it is a crime as great to acquit the guilty; and that God that requires one of them, requires both; so that you must be as strict in the one, as you would be in the other. And let me tell you, if any of you shall be refractory, and will not find any bill, where there is a probable ground for an accusation, you do therein undertake to intercept justice; and you thereby make yourselves criminals and guilty, and the fault will lie at your door. You must consider, gentlemen, you are under a double obligation here to do right; you are under the obligation of Englishmen, as we are all members of one great body, of which the king is head; and you are engaged, as Englishmen, to consider, that crimes of this nature ought not to go unpunished: then you have an oath of God upon you, you are here sworn to do according to what the evidence is. Now therefore, if you have two witnesses of words that may import a treasonable design or intention in any of those parties, against whom you shall have indictments offered to you, you are both bound by the law of nature, as you are members of this body; and by the law of God, as you have taken an oath upon you, for to find those bills. 3 D Gentlemen, compassion or pity is not your province, nor ours in this case; there is no room for that, in enquiries of this nature; that is reserved to an higher and superior power, from which ours is derived: Therefore, gentlemen, I must require you to consider such evidence as shall be given you, and to be impartial, according to what you shall hear from the witnesses, if you have ground, upon what evidence you shall have given you, to believe that there is any reason or cause for the king to call the persons named in such indictments, as shall be tendered to you, to answer for what is objected against them therein, you are to find those bills; that is all that I shall say to you; only pray God to direct you in your enquiry, that justice may take place. [Then a Bill of High-Treason was offered against the Earl of Shaftesbury; and sir Francis Withins moved, That the evidence might be heard in court.] L.C.J. Gentlemen of the jury, you hear it is desired by the king's counsel (and that we cannot deny) that the evidence may be publicly given, that it may not be hereafter in the mouths of any ill minded persons abroad, to scatter any mistakes or untruths up and down; or to slander the king's evidence, or to say any thing concerning them that is not true: Therefore, we cannot deny this motion of the king's counsel, but desire that you will take your places, and hear the evidence that shall be given you. [The Jury then desired a copy of their oath, which the court granted, and then they with drew. After some little time they returned, and then the clerk called them by their names.] Foreman. My Lord Chief Justice, it is the opinion of the jury, that they ought to examine the witnesses in private, and it hath been the constant practice of our ancestors and predecessors to do it; and they insist upon it as their right to examine in private, because they are bound to keep the king's secrets, which they cannot do, if it be done in court. L. C. J. Look ye, gentlemen of the jury, it may very probably be, that some late usage has brought you into this error, that it is your right, but it is not your right in truth: For I will tell you, I take the reason of that use for grand ju ries to examine the witnesses privately and out of court, to comply with the conveniences of the court; for generally upon such commissions as these are, the business is much; and at gaol deliveries there are a great many persons to be indicted and tried, and much other work besides, of other natures to be done: And if at such times, we should examine all businesses publicly in the court, it would make the business of these commissions of a wonderful great length and cumbrance. Therefore the judges, for the conveniency of the matter, have allowed, that witnesses should go to the jury, and they to examine them; not that there is any matter of right in it; for without question, originally all evidences were given in court: The jury are officers and ministers of the court, by which they enquire, and evidence sure was all given in court formerly; and the witnesses still are always sworn in court, and never otherwise. And, gentlemen, I must tell you, it is for your advantage, as well as for the king's, that it may be sure, that you comply with your evidence, that you do nothing clandestinely; therefore it is for your advantage that this is done, and the king likewise desires it. Now I must tell you, that if the king requires it of us, and it is a thing that is in it's nature indifferent, we ought to comply with the king's desire to have it examined in court; you shall have all the liberty that you can have in private; what question soever you will have asked, yourselves shall ask it, if you please, and we will not cramp you in time, nor any thing of that nakind of reason why this evidence should not be ture. Therefore, gentlemen, there can be no given in court. What you say concerning keeping your counsels, that is quite of another nature, that is, your debates, and those things, there you shall be in private, for to consider of what you hear publicly. But certainly it is the best way, both for the king, and for you, that there should, in a case of this nature, be an open and plain examination of the witnesses, that all the world may see what they say. in Foreman. My lord, if your lordship pleases, I must beg your lordship's pardon, if I mistake any thing, it is contrary to the sense of what the jury apprehend. First, they apprehend that the very words of the oath doth bind them, says, That they shall keep the counsel's, and their own secrets:* Now, my lord, there it *The Foreman, by himself, lays his hand on the book, and the marshal administers to him the following oath : "My lord, or sir, (as the Foreman's name may be), you, as foreman of this grand inquest for the body of this county of A. shall diligently enquire, and true presentment make of all such matters and things as shall be given you in charge: The king's counsel, your fellows, and your own, you shall keep secret: You shall present no one for envy, 'hatred, or malice; neither shall you leave 'any one unpresented for fear, favour, or af fection, or hope of reward; but you shall present all things truly as they come to your knowledge, according to the best of your understanding: So help you God.' 6 "The rest of the grand jury, by three at a time, in order, are sworn in the following manner: "The same oath which your foreman hath taken on his part, you and every of you, shall well and truly observe and keep on your part: So help you God.' Crown Circuit Companion. In the "Book of Oaths" p. 206, the Oath of great Inquest' is thus stated: "Ye shall truly enquire, and true presentment make of 跑 can be no secret in public; the very intimation of that doth imply, that the examination should be secret; besides, my lord, I beg your lordship's pardon if we mistake, we do not understand any thing of law. Mr. Papillon. Your lordship is pleased to say, that it hath been the common usage and practice; sometimes, my lord, we have heard that that hath been the law of England, that hath been the custom of England: If it be the ancient usage and custom of England, that hath never been altered from time to time, and hath continued so, we desire your lordship's opinion upon that; as we would not do any that may be prejudicial to the king, so we would not do the least that should be prejudicial to the liberties of the people; if it be the ancient custom of the kingdom to examine in private, then there is something may be very aprejudicial to the king in this public examination; for sometimes in examining witnesses in private, there come to be discovered some persons guilty of treason, and misprision of treason, that were not known, nor thought on before. Then the jury sends down to the court, and gives them intimation, and these men are presently secured; whereas, my lord, in case they be examined in open court publicly, then presently there is intimation given and these men are gone away. Another thing that may be prejudicial to the king, is, that all the evidences here, will be foreknown before they come to the main trial upon issue by the petty jury; then if there be not a very great deal of care, these witnesses may be confronted by raising up witnesses to prejudice them, as in some cases it has been: Then besides, the jury do apprehend, that in private they are 'all such things as you are charged withall on the queene's behalf, the queene's councell, your owne, and your fellowes, you shall well and truly keepe; and in all other things the truth present: So help you God and by the 'contents of this booke.' At the end of a pamphlet entitled, “Observations on the Duty and Power of Juries, London, printed 1796, reprinted 1798," is given the following Appendix: "At the second sessions, held at the Old Bailey 12th Jan. 1796 in the mayoralty of Mr. Alderman Curtis, The King v. Crossfield, Smith, Higgins, and Le Maitre for HighTreason. The Solicitor of the Treasury, acting for the Attorney-General, requested to be admitted during the examination of the witnesses on the above indictment; but the grand jury, after debating upon the matter some time, determined, that, consistently with their Oath, no person, however exalted his station, could, if not a witness upon the occasion, be present whilst the jury were making their inquest into the charges in any indictment. The Solicitor therefore, was not admitted." See the Note to the Case of the Regicides, vol. 5, p. 972 of -this Collection. more free to examine things in particular, for the satisfying their own consciences, and that without favour or affection; and we hope we shall do our duty. L. C. J. Look ye, Mr. Papillon, it is reasouable that we should give you our advice in this case: I must tell you, if you had considered of what I had said before, I thought I had obviated these objections: First, as to what you do say that you are bound to conceal your counsels, and the king's secrets,that is very true; as to your counsels, that is, your debates, you are bound to conceal them: As to the king's secrets, so long as he will have them kept secret, you are bound to keep them so too; but it doth not deprive the king of the benefit of having it. public, if he have a desire for it; you don't break your oath, if the king will make it public; you do not make it public; 'tis the king does it. Then as to that that you do say, that you apprehend the common usage of the kingdom to be a law; that is true, Mr. Papillon, in some sense; a constant and uninterrupted usage goes for a law among us; but I thought I had told you before, that both of ancient and latter times there have been examinations of the witnesses in court, in cases of this nature; and we are not without precedents of it every year, every term, continually from time to time, evidence is heard in court by the grand jury; it is as usual a thing with us, as any thing, if it be desired, nothing more frequent, or more common: I never heard it denied, or stood upon by any grand-jury, in my life, till of late here; you may be instructed with a thousand precedents, for I am sure it is a common and ordinary case, upon such occasions, if desired, to hear the evidence in court. Look ye, gentlemen, as to that care that you have of the king's affairs, the king has reason to take it well that you are so careful for them; and that you are so mindful of his concerns, he hath a great deal of reason to think well of you for it: And, gentlemen, consider this, that his majesty's counsel have certainly considered of this evidence, before they brought this to a public enquiry; or else it would be know what the witnesses can say; for though a hard thing if they should come raw, and not you are the jury to hear the witnesses, yet you must consider, that the king's counsel have examined whether he hath cause to accuse these persons, or not; and, gentlemen, they understand very well, that it will be no prejudice to the king to have the evidence heard openly in court; or else the king would never desire it. Foreman. My lord, the gentlemen of the jury desire that it may be recorded, that we insisted upon it as our right; but if the court over-rule, we must submit to it. L. C. J. Here are enough persons to take notice of it; to make records of such things, is not usual; it is not our business here to record every thing, that every man will desire to be recorded: We can record nothing but what is in order to the proceedings, but notice enough is taken of it; you need not fear but that there will be witnesses enough. L. C. J. (North). Gentlemen, I must say something to fortify what my Lord Chief Justice has said: If any of us had been of a different opinion, we would have spoken it; the same thing was stood upon, and discoursed on the last sessions, and then all the judges were of this opinion, and in what all the judges agree to, you should acquiesce. I must tell you from my own experience; where the king will, he ought to have it kept secret: I have not known it done publicly in the orderly course of business; but I have often known where it hath been desired by those which prosecute for the king, that evidence hath been given openly; and I never knew it denied: If any of my brothers think otherwise, I desire they would speak; but, I tell you, as to my experience, this is the case. Sheriff P. I desire the witnesses may be kept out of the court, and called one by one. L. C. J. It is a thing certainly, that the king's counsel will not be afraid of doing; but Sheriffs do not use to move any thing of this nature in court, and therefore 'tis not your duty, Mr. Sheriff, to meddle with it. Sheriff P. It was my duty last time, my lord, and appointed. Att. Gen. (Sir Rob. Sawyer) You were acquainted 'twas not your duty last time, and you appear against the king. Then the Indictment was read. (London ss.) "The jurors of our sovereign lord the king, upon their oaths present, that Anthony earl of Shaftesbury, late of the parish of St. Martin's in the Fields, in the County of Middlesex, as a false traitor against the most illustrious, and most excellent prince, our sovereign lord Charles the 2nd by the grace of God, of England, Scotland, France, and Ireland, king, his natural lord, the fear of God in his heart not having, nor weighing the duty of his allegiance; but being moved and seduced by the instigation of the devil, the cordial love, and true, due, and natural obedience, which true and faithful subjects of our said sovereign lord the king, towards him our said sovereign lord the king, should, and of right ought to bear, wholly withdrawing, and with all his strength intending the peace and common tranquillity in this kingdom of England, to disturb, and war and rebellion against our said sovereign lord the king, to stir up and move, and the government of our said sovereign lord the king, within this kingdom of England, to subvert, and him our said sovereign lord the king, from the title, honour, and regal name of the imperial crown of his kingdom of England to depose and deprive, and him our said sovereign lord the king to death and final destruction to bring and put, the 18th day of March, in the 33d year of the reign of our sovereign lord Charles 2, now king of Engand divers other days and times, as well before as afterwards, in the parish of St. Mary le Bow, in the Ward of Cheap, London, traiterously compassed, imagined, and intended the death and final destruction of our said sovereign lord the king, and the ancient government of his kingdom of England, to change, alter, and wholly to subvert, and him our said sovereign lord the king, from the title, honour, and kingly name of his imperial crown of this kingdom of England to depose and deprive, and war and rebellion against our sovereign lord the king, to move and levy within this kingdom of England; and his said most wicked treasons, and traiterous compasses, imaginations and purposes aforesaid, to fulfil and perfect, he the said Anthony earl of Shaftesbury, as a false traitor, with divers armed men, subjects of our said sovereign lord the king, then being, maliciously, traiterously and advisedly, did provide and prepare then to be aiding to him the said earl of Shaftesbury, to fulfil and perfect his treasons aforesaid. And his said wicked treasons, traiterous compasses, imaginations and purposes, the sooner to fulfil and perfect, he the said Anthony earl of Shaftesbury as a false traitor, with one John Booth, and other subjects of our said lord the king, then and there traiterously assembled, met and consulted; and the same wicked treasons, and traiterous compasses, imaginations and purposes aforesaid, then and there to the said John Booth, and other persons, to the jury unknown, in the hearing of divers liege subjects of our sovereign lord the king, then and there present, openly, publicly, maliciously, traiterously and advisedly did say and declare, and to persuade and induce the said John Booth to be aiding and assisting in his said treasons, compasses, imaginations, and purposes, he the said Anthony earl of Shaftesbury, as a false traitor, maliciously, advisedly, and traiterously, the said 18th day of March, in the 33d year of the reign of our said sovereign lord the king, at the parish and ward aforesaid, within the city of London aforesaid, falsely, advisedly, subtilly, maliciously and traiterously said, asserted and declared, that in a short time the parliament was to sit at Oxford, and that he the said Anthony earl of Shaftesbury had inspected the elections, and considered the inclinations and dispositions of the generality of the members of parliament elected; and that he the said Anthony earl of Shaftesbury was satisfied that the parliament would insist upon three matters, (to wit) The bill of exclusion against the Duke of York; the abolishing the act of parliament of the 35th of queen Elizabeth, and the passing of a new bill for uniting the protestant dissenters; with divers other good and wholesome bills. To which he the said Anthony earl of Shaftesbury was certain that the king's majesty would refuse to give his royal assent; and therefore be the said Anthony earl of Shaftesbury did expect that there would be a division between the king's majesty and the parliament; and that many noble lords and worthy members of the Lower House did con |