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declaration made of what was treason, and for I will give you no more of that statute, nor what not: By that law, · For any one to com- concerning the sense thereof, than inay be for pass, imagine, or intend, the death of the king' your purpose now, I say, by that law, to com
pass, imagine, or intend the death of the king, Whoring to scandal gives too large a scope : and to declare it by overt-act, or to levy war Saints must not trade; but they may interlope. against the king, were declared amongst Th’ungodly principle was all the same, other things in that statute mentioned) to be
But a gross cheat betrays his partner's game. High Treason : And this hath obtained for law Besides, their pace was formal, grave, and slack; / among us ever since ; and by that standing His nimble wit outran the beavy pack : law, nothing is to be accounted treason, but Yet still he found his fortune at a stay, what is therein particularly declared so; but Whole droves of blohckeads choaking up his upon many emergent occasions, there hath They took, but not rewarded, bis advice; (way: been several other laws, as the case bath re. Villain and wit exact a double price.
quired now and then, for to declare and bring Pow'r was his aim; but thrown from that pre- other particular crimes within the compass et
treasons : So there was a law made in queen The wreich turn'd loyal in his own defence, Elizabeth's reign for enacting several crites And malice reconcil'd him to his prince. to be treasons, during her life ; which was Him, in the anguish of his soul, he serv'd, made upon the occasion of the inveterate Rewarded faster still than he deserv'd.
malice of the Roman Catholics against her Bebold him now exalted into trust,
and her government; and so there hath been His counsels ost convenient, seldom just. in other king's reigos upon other occasions. E'en in the most sincere advice he gave,
Amongst the rest, it was thought fit, by the He had a grudging still to be a knave.
parliament assembled here, in the 13th year of The frauds he learnt in hisf anatic years, this present king, to make a particular law for Made him uneasy in his lawful gears : the enacting and declaring several crimes to be At best, as little honest as he could,
treasons, during this king's life; they had And, like white witches, mischievously good. great grounds, and too much occasion for it
, To his first bias, longingly, he leans,
and so they express it in the preamble of that And rather would be great by wicked means." law. The wounds wbich the then late treasons
Mr. Fox in a letter to Serjeant Heywood had made, that bad so far obtained in this king. writes :
dom, were then still bleeding, ripe and scarcely
closed ; many traiterous positions, and many “ I am quite glad I have little to do with seditious principles were spread, and bad eb Shaftesbury ; for as to making him a real tained and gained footing among the people di
patriot, or friend to our ideas of liberty, it is this kingdom ; and the parliament had reasca impossible, at least in my opinion. On the to believe that where they had been so maliciousother hand, he is very far from being the devil ly bent against the king and his family, and bad he is described. Indeed, he seems to have taken off his father, and maintained so long and been strictly a man of honour, if that praise dangerous a war against bim, almost to the uter can be given to one destitute of public virtue, destruction and extirpation of him, and all bis and who did not consider catholics as fellow good subjects, and of his, and all our interests, creatures; a feeling very common in those properties and liberties, and had almost destimes. Locke was probably caught by his troyed a flourishing kingdoin ; here they had splendid qualities, his courage, his openness, reason, I say, to be careful, to prevent the like his party zeal, his eloquence, his fair dealing mischiefs for the future ; therefore, gentlemen
, with his friends, and his superiority to vul- they did think fit to make a new law for this gar corruption. Locke's partiality might purpose ; and whereas the law before was, that make him, on the other band, blind to the in- it should be treason, to compass, imagine, or difference with which he (Shaftesbury), es intend the death of the king, so as it were de poused either monarchical, arbitrary, or re- clared by orert-act; now they thought it would publican principles, as best suited his ambi- be dangerous to stay till an overt-act should tion; but could it make him blind to the re- declare the intention : for when they had seen lentless cruelty with which he persecuted the such malicious and evil designs against the papists in the affair of the popish plot, merely, king and supreme authority; and that they had as it should seem, because it suited the purposes prevailed so far, as to murder one king and baof the party with which he was then engaged? nish another; and had gone a great way in the -You know that some of the imputations destruction of the government of this kingdom, against him are certainly false: the shatting absolutely to root it quite out; they had reason up the Exchequer, for instance. But the two then, as much as they could, to prevent the great blots of sitting on the Regicides, and his designs before they should grow full ripe, and conduct in the popish plot, can
never be wiped vent themselves in overt-acts; therefore, it was off. The second Dutch war is a bad business, enacted by that statute, made in the 13th year in which he engaged heartily, and in which of this king's reign, " That if any one should (notwithstanding all his apologists say,) he compass, imagine, or intend the death of the would have persevered, if he had not found the king or his destruction, or any bolily harm that g was cheating him.”
might tend to his death, or destruction, or any
maiming or wounding his person, any restraint shall testify to you matters to make good the of his liberty, or any imprisonment of him ; or indictments, then you have ground to find the if any should design or intend to levy any war, indictments. But I must tell you, as to this against him, either within the kingdom, or case of two witnesses, it is not necessary that without ; or should design, intend, endeavour, they should be two witnesses to the same words or procure any foreign prince to invade these or to words spoken at one time, or in the same his dominions, or any other of the king's do place; that is not necessary: it one be a minions, and should signify or declare this by witness to words that import any traiterous deany writing, or by any preaching or printing, sign and intention, spoken at one time, and or by any advised, malicious speaking, or words, in one place; and another testify other this shall be high treason.”
seditious and traiterous words spoken at Now this hath altered the former law greatly, another time, and in another place; these two especially in two cases : first as to levying of are two good witnesses withiu this statute, and War; the intention was not treason before, un- so it hath been solemnly resolved by all the less it bad taken effect, and war had been ac, judges of England, upon a solenin occasion. tually levied : and then as to the designing and Look ye, gentlemen, I must tell you, That compassing the king's death, that was not trea- that which is referred to you, is to consider, son, unless it was declared by an overt-act: whether, upon what evidence you shall have as to the imprisoning, or restraining of the li- given unto you, there be any reason or ground berty of the king, they of themselves alone for the king to call these persons to an account, were not high treason : but now by this, if there be probable ground, it is as much as you law these are made treason,-by this law, are to enquire into you are not to judge the during his majesty's life; and the very de persons, but for the honour of the king, and the signing of them, whether they take effect, or decency of the matter, it is not thought fit by not take effect, though it be presented (before the law, that persons should be accused and inany overt-act) by the timely prudence of the dicted, where there is no colour por ground for king and his officers-though it should be time. it; where there is no kind of suspicion of a ly prevented, that there is no hurt done, yet crime, nor reason to believe that the thing can the
very design, if it be but uttered and spoken be provedl, it is not for the king's honour to call and any ways signified by any discourse: this, men to an account in such cases: therefore you gentlemen, is made treason by this act; and are to enquire, whether that that you hear be this hath wrought very great alteration in the any cause or reason for the king to put the case of treason now; formerly it was said, and party to answer it. You do not condemn, nor said truly enough, that words alone would not is there such a strict enquiry to be made by you make treason ; but since this act, gentlemen, as by others, that are sworn to try the fact, or words, if they import any malicious design issue: a probable cause, or some ground, that against the king's life and government, and the king hath to call these persons to antraiterous intention in the party, such words are swer for it, is enough, gentlemen, for you to treason now within this act : and this act was find a bill, it is as much as is by law required. made with great prudence, and with great care Gentlemen, you must consider this, That as it to take off that undue liberty that men bad is a crime for to condemn innocent persons, so taken to themselves; in those times of licen it is a crime as great to acquit the guilty ; and tiousness
, people had taken to themselves an that God that requires one of them, requires undecent and undue liberty to vent all their both ; so that you must be as strict in the one, seditious and malicious minds one to another, as you would be in the other. And let ine tell without any restraint at all: therefore now, you, if any of you shall be refractory, and will gentlemen, you must consider, that words if not find any bill, where there is a probable they signify or purport any traiterous intention ground for an accusation, you do therein under. or design in the party, either against the king take to intercept justice ; and you thereby make or his government; either to restrain his liberty yourselves criminals and guilty, and the fault or imprison bim, or to do him any bolily hurt, will lie at your door. You must consider, genor any crime of that nature; this is treason tlemen, you are under a double obligation here within this act of parliament.
to do right; you are under the obligation of Look ye, gentlemen, now as to the indict- Englishmen, as we are all members of one Inents that shall be brought before you, you are great body, of which the king is head; and to consider these things: 1. Whether the mat- you are engaged, as Englishmen, to consider, ter contained in them, and which you shall have that crimes of this nature ought not to go unin evidence, be maiter of treason within the punisheil: then you have an oath of God upon former, or this act of parliament ? And here, if you, you are here sworn to do according to what you doubt of it, then you must advise with us the evidence is. Now therefore, if you have that are commissionated by his majesty, to hear two witnesses of words that may import a treaand determine these crimes; and in matters of sonable design or intention in any of those law we shall direct you: and you are to enquire parties, against whom you shall have indict. if there be two witnesses that shall testify the ments offered to you, you are both bound by the matters in evidence to you; tor without two law of nature, as you are members of this body; witnesses, no man is to be impeached within and by the law of God, as you have taken ar these laws; but if there be two witnesses that oath upon you, for to find those bills,
Gentlemen, compaseion or pity is not your ; evidences were given in court: The jury are province, nor ours in this case, there is no officers and ministers of the court, by which room for that, in enquiries of this nature; that they enquire, and evidence sure was all given is reserved to an higher and superior power, in court formerly; and the witnesses still are from which ours is derived : Therefore, gen- | always sworn in court, and never otherwise. tlemen, I must require you to consider such And, gentlemen, I must tell you, it is for your evidence as shall be given you, and to be im- advantage, as well as for the king's, that it partial, according to what you shall hear from may be sure, that you comply with your evithe witnesses, if you have ground, upon what dence, that you do nothing clandestinely ; evidence you shall have given you, to believe therefore it is for your advantage that this is that there is any reason or cause for the king done, and the king likewise desires it. Now! to call the persons named in such indictments, must tell you, that if the king requires it of us, as shall be tendered to you, to answer for what and it is a thing tbat is in it's nature indifferent, is objected against them therein, you are to we ought to comply with the king's desire to find those bills; that is all that I shall say to have it examined in court; you shall bave all you ; only pray God to direct you in your en- the liberty that you can bave in private ; what quiry, that justice may take place.
question soever you will have asked, yourselves [Then a Bill of High-Treason was offered shall ask it, it you please, and we will not against the Earl of Shaftesbury; and sir Fran-cramp you in time, nor any thing of that nacis Withins moved, That the evidence might kind of reason why this evidence should not be
ture. Therefore, gentlemen, there can be no be heard in court.]
given in court. What you say concerning L.C. J. Gentlemen of the jury, you hear keeping your counsels, that is quite of anoit is desired by the king's counsel (and that we ther nature, that is, your debates, and those cannot deny) that the evidence may be publicly things, there you shall be in private, før to given, that it may not be hereafter in the consider of what you hear publicly. But cermouths of any ill minded persons abroad, to tainly it is the best way, both for the king, and scatter any mistakes or untruths up and down; for you, that there should, in a case of this or to slander the king's evidence, or to say any nature, be an open and plain examination of thing concerning thein that is not true: There- the witnesses, that all the world may see what fore, we cannot deny this motion of the king's they say. counsel, but desire that you will take your Foreman. My lord, if your lordship pleases, places, and hear the evidence that shall be given I must beg your lordship's pardon, if I mistake
in any thing, it is contrary to the sense of what
the [The Jury then desired a copy of their oath, that the very words of the oath doth bind them,
jury apprehend. First, they apprehend which the court granted, and then they with it says, "That they shall keep the counsel's
, drew. After some little time they returned, and then the clerk called them by their names.]
• and their own secrets :'* Now, my lord, there Foreman. My Lord Chief Justice, it is the ** The Foreman, by himself, lays his hand opinion of the jury, that they ought to examine on the book, and the marshal 'administers to the witnesses in private, and it bath been the him the following oath : constant practice of our ancestors and predeces- My lord, or sır, (as the Foreman's name sors to do it; and they insist upon it as their may be), you, as foreman of this grand inright to examine in private, because they are quest for the body of this county of A. shall bound to keep the king's secrets, which they diligently enquire, and true presentment make cannot do, if it be done in court.
of all such matters and things as shall be L. C. J. Look ye, gentlemen of the jury, given you in charge: The King's counsel
, it may very probably be, that some late usage your fellows, and your own, you shall keep has brought you into this error, that it is your secret: You shall present no one for envy, right, but it is not your right in truth: For I will • hatred, or malice; neither shall you leave tell you, I take the reason of that use for grand ju any one unpresented for fear, favour, or afries to examine the witnesses privately and out of fection, or bope of reward; but you shall court, to comply with the conveniences of the 'present all things truly as they come to your court; for generally upon such commissions knowledge, according to the best of your unas these are, the business is much ; and at gaol derstanding : So help you God.'. deliveries there are a great many persons to be “ The rest of the grand jury, by three at a indicted and tried, and much other work be- time, in order, are sworn in the following sides, of other natures to be done : And it'at such times, we should examine all businesses “ • The same oath which your foreman bath publicly in the court, it would make the business • taken on bis part, you and every of you, of these commissions of a wonderfulgreat length • shall well and truly observe and keep on your and cumbrance. Therefore the judges, for the part: So help you God.'” conveniency of the matter, have allowed, that Companion. witnesses should go to the jury, and they to In the “ Book of Oaths” p. 206, the Oath examine them; not that there is any matter of of great Inquest is thus stated : • Ye shall right in it; for without question, originally all truly enquire, and true presentment make of
can be no secret in public ; the very intimation more free to examine things in particular, for of that doth imply, that the examination should the satisfying their own consciences, and that be secret ; besides, my lord, I beg your lord without favour or affection; and we hope we ship's pardon if we mistake, we do not un- shall do our duty. derstand any thing of law.
L. C. J. Look ye, Mr. Papillon, it is reaMr. Papillon. Your lordship is pleased to souable that we should give you our advice in say, that it hath' been the common usage and this case: I must tell you, if you had conpractice ; sometimes, my lord, we have heard sidered of what I had said before, I thought I that that hath been the law of England, that had obviated these objections : First, as to what hath been the custom of England : If it be the you do say that you are bound to conceal your ancient usage and custom of England, that counsels, and the king's secrets,that is very true; hath never been altered from time to time, and as to your counsels, that is, your debates, you hath continued so, we desire your lordship’s are bound to conceal them: As to the king's seopinion upon that, as we would not do any crets, so long as he will have them kept secret, that may be prejudicial to the king, so we you are bound to keep them so too; but it doth would not do the least that should be prejudicial not deprive the king of the benefit of having it to the liberties of the people ; if it be the an- public, if he have a desire for it; you don't cient custom of the kingdom to examine in pri- break your oath, if the king will make it vate, then there is something may be very public; you do not make it public; 'tis prejudicial to the king in this public examina- the king does it. Then as to that that tion; for sometimes in examining witnesses in you do say, that you apprehend the common private, there come to be discovered some usage of the kingdom to be a law; that is true, persons guilty of treason, and misprision of Mr. Papillon, in some sense; a constant and treason, that were not known, nor thought on uninterrupted usage goes for a law among us; before. Then the jury sends down to the but I thought I had told you before, that both court, and gives them intimation, and these of ancient and latter times there have been men are presently secured; whereas, my lord, examinations of the witnesses in court, in cases in case they be examined in open court pub- of this nature; and we are not without precedents lidly, then presently there is intimation given of it every year, every term, continually from and these men are gone away. Another thing time to time, evidence is heard in court by the that may be prejudicial to the king, is, that all grand jury; it is as usual a thing with us, as any the evidences here, will be foreknown before thing, if it be desired, nothing more frequent, they come to the main trial upon issue by the or more common: I never heard it denied, or petty jury ; then if there be not a very great stood upon by any grand-jury, in my life, till deal of care, these witnesses may be confronted of late here; you may be instructed with a by raising up witnesses to prejudice them, as thousand precedents, for I am sure it is a com
in some cases it has been : Then besides, the mon and ordinary case, upon such occasions, jury do apprehend, that in private they are if desired, to hear the evidence in court.
Look ye, gentlemen, as to that care that you all such things as you are charged witball on have of the king's affairs, the king has reason to *the queene's behalf, the queene's councell, take it well that you are so careful for them; your owne, and your fellowes, you shall well and that you are so mindful of his concerns, and truly keepe, and in all other things the he hath a great deal of reason to think well truth present: So help you God and by the of you for it: And, gentlemen, consider this, coutents of this booke.'
that his majesty's counsel have certainly conAt the end of a pamphlet entitled, “ Obser
sidered of ihis evidence, before they brought vations on the Duty and Power of Juries,
this to a public enquiry; or else it would be London, printed 1796, reprinted 1798,” is
a hard thing if they should come raw, and not given the following Appendix:
know what the witnesses can say ; for though
you are the jury to hear the witnesses, yet you " At the second sessions, held at the Old must consider, that the king's counsel have Bailey 12th Jan. 1796 in the mayoralty of Mr. examined whether he hath cause to accuse Alderman Curtis, The King v. Crossfield, these persons, or not; and, gentlemen, they Smith, Higgins, and Le Maitre for High- understand very well, that it will be no prejuTreason. The Solicitor of the Treasury, act- dice to the king to have the evidence heard ing for the Attorney-General, requested to be openly in court; or else the king would never admitted during the examination of the wit- desire it. pesses on the above indictment; but the grand Foremun. My lord, the gentlemen of the jury, after debating upon the matter some time, jury desire that it may be recorded, that we determined, that, consistently with their Oath, insisted upon it as our right; but if the court ho person, however exalted his station, could, over-rule, we must submit to it. if not a witness upon the occasion, be present L. C. J. Ilere are enough persons to take whilst the jury were making their inquest into notice of it; to make records of such things, the charges in any indictment. The Solicitor is not usual ; it is not our business here to
was not admitted.” See the Note record every thing, that every man will deto the Case of the Regicides, vol. 5, p. 972 of sire to be recorded : We can record nothing
but what is in order to the proceedings,
therefore, this Collection.
but notice enough is taken of it; you need before as afterwards, in the parish of St. Mary not fear but that there will be witnesses le Bow, in the Ward of Cheap, London, traiterenough.
ously compassed, imagined, and intended the L. C. J. (North). Gentlemen, I must say death and final destruction of our said sovereign something to fortifywhat my Lord Chief Justice lord the king, and the ancient government of his has said : If any of us had been of a different kingrtom of England, to change, alter, and opinion, we would have spoken it; the same wholly to subvert, and him our said sovereign thing was stood upon, and discoursed on the lord the king, from the title, honour, and kingly last sessions, and then all the judges were of name of bis imperial crown of this kingdom of this opinion, and in what all the judges agree England to depose and deprive, and war and reto, you should acquiesce. I must tell you from bellion against our sovereign Łurd the king, to my own experience; where the king will, he move and levy within this kingdom of Eng. ought to have it kept secret: I have not known land ; and his said most wicked treasons, and it done publicly in the orderly course of busi- traiterous compasses, imaginations and purness; but I have often known where it hath poses aforesaid, to fulfil and perfect, he the been desired by those which prosecute for the said Anthony earl of Shaftesbury, as a false king, that evidence hath been given openly ; traitor, with divers armed men, subjects of ou and I never knew it denied : If any of my bro- said sovereign lord the king, then being, mathers think otherwise, I desire they would liciously, traiterously and advisedly, did prospeak; but, I tell you, as to my experience, vide and prepare then to be aiding to him the this is the case.
said earl of Shaftesbury, to fultil and perfect Sheriff P. I desire the witnesses may be his treasons aforesaid. And his said wicked kept out of the court, and called one by one. treasons, traiterous compasses, imaginations L. C. J. It is a thing certainly, that the and purposes, the sooner to fulfil and perfect
, king's counsel will not be afraid of doing; but he the said Anthony earl of Shaftesbury as a Sheriffs do not use to move any tbing of this false traitor, with one John Booth, and other nature in court, and therefore 'tis not your duty, subjects of our said lord the king, then and there Mr. Sheriff, to meddle with it.
traiterously assembled, met and consulted; Sheriff P. It was my duty last time, my and the same wicked treasons, and traiterous lord, and appointed.
compasses, imaginations and purposes aforesaid, Att. Gen. (Sir Rob. Sawyer) You were ac- then and there to the said John Booth, and quainted 'twas not your duty last time, and you other persons, to the jury unknown, in the appear against the king.
hearing of divers liege subjects of our sore. Then the Indictment was read.
reign lord the king, then and there present,
openly, publicly, maliciously, traiterously and (London ss.) “ The jurors of our sovereign advisedly did say and declare, and to persuade lord the king, upon their oaths present, that and induce the said John Booth to be aiding Anthony earl of Shaftesbury, late of the and assisting in his said treasons, compasses, parish of St. Martin's in the fields, in the imaginations, and purposes, he the said Ancounty of Middlesex, as a false traitor against thony earl of Shaftesbury, 'as a false traitor, the most illustrious, and most excellent prince, maliciously, advisedly, and traiterously, the our sovereign lord Charles the 2nd by the said 18th day of March, in the s3d year of grace of God, of England, Scotland, France, the reign of our said sovereign lord the king, at and Ireland, king, his natural lord, the fear the parish and ward aforesaid, within the city of of God in his heart not having, nor weighing London aforesaid, falsely, advisedly, subtills
, the duty of bis allegiance ; but being moved maliciously and traiterously said, asserted and and seiluced by the instigation of the devil, declared, that in a short time the parliament the cordial love, and true, due, and natural was to sit at Oxford, and that be the said Anobedience, which true and faithful subjects of thony earl of Shaftesbury had inspected the our said sovereign lord the king, towards him elections, and consilered the inelinations and our said sovereign lord the king, should, and dispositions of the generality of the members of right ought to bear, wholly withdrawing, of parliament elected; and that he the and with all his strength intending the peace said Anthony earl of Shaftesbury was satisfied and common tranquillity in this kingdom of that the parliament would insist upon three England, to disturb, and war and rebellion matters, (to wit) The bill of exclusion against against our said sovereign lord the king, to stir the Duke of York; the abclishing the act of up and inove, and the government of our said parliament of the 35th of queen Elizabeth, sovereign lord the king, within this kingdom of and the passing of a new bill for uniting the England, to subvert, and him our said sovereign protestant dissenters; with divers other good lord the king, from the title, honour, and regal and wholesome bills. To which he the said name of the imperial crown of his kingdom Anthony earl of Shaftesbury was certain that of England to depose and deprive, and him the king's majesty would refuse to give his our said sovereign lord the king to death and royal assent; and therefore he the said Anthony final destruction to bring and put, the 18th day earl of Shaftesbury did expect that there would of March, in the 330 year of the reign of our be a division between the king's majesty and the sovereign lord Charles 2, now king of Eng: parliament ; and that many noble lords and 1.!! divers other days and times, as well worthy members of the Lower House did con