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D. Mac. No, I cannot be positive in it. Ity. No, not the same discourse.
Mr. Papillon. Who was by ?

Mr. Papillon. The words that you spoke of, D. Muc. There was Mr. Ivy.

when was that? Mr. Papillon. Nobody but Mr. lvy ?

Ivy. That was after the sitting of the pärD. Mac. Nobody but Mr. Ivy and my bro- liament at Oxford. ther.

Mr. Pupillon. About what time was it? Mr. Pupillor. Where was it?

Ivy. It was about the latter end of March or D. Mec. It was in his own dining room. the beginning of April. Mr. Papillon. Were none of his servants in Mr. Papillon. When did you make inforthe room_D. Mac. Not that I know of. mation of this ?

Mr. Papillon. Are you sure none of his ser- Ivy. I cannot be positive in that neither. tants were there?-D. Mac. Not that I know of.

Mr. Papillon. Before my Lord's conimitMr. Papillon. Did you hear any thing else ment or after ?-Ity. A while before. at any other time?-D. Mac. No.

Mr. Papillon. To whom did you give it? Mr. Papillon. Nor in any other place ? Iny. To the secretary of state. D. Mac. No.

Foreman. Who was present when my lord Mr. Papillon. When did you give in this in- Shaftesbury spake those words ? formation?

Ivy. Both the Macnamarras, as I remem. D. Mac. I gave it in a good while ago ; Sir, ber. I cannot be positive.

Foreman. Who else? Mr. Papillon. Was it before my lord was Ivy. Truly, I do not remember any else committed ?-D. Mac. Yes a great while. privy to our discourse ; neither am I certain,

Mr. Papillon. To whom did you give it? that both the Macnamarras were there ; one D. Mac. I gave it to the secretary of state. of them was there I am sure of it. : Jury. Cannot you remember how long it Foreman. What was the reason you conwas before?

cealed this information so long ? Had you no D. Mac. No, I cannot at the present. inducement to make it at that time? How came Mr. Papillon. Which of the secretaries ? you to do it then and not before ? What was D. Mac. Secretary Jenkins.

the reason? You say it was the latter end of Mr. Papillon. My lord, I only propose, whe- April and May; my lord was not committed ther we may not ask whether he had not a par- for a good while after ; here was two months don? For it would be satisfaction to us, for time?

Ivy. I am not certain how long a time it L. C. J. North. Look you here, gentlemen, was before, but I made it as soon as I could. when the prisoner makes exceptions to the wit- Poreman. I ask you whether you know any Desses, then it is proper, but here are no excep-thing either of words or treasonable actions, or tions to the witnesses.

any thing of my lord Shaftesbury, spoken or Mr. Papillon. My lord, we make no excep- acted at any other time or place ? tions, but we must satisfy our consciences, my Ivy. No, I have declared what I know as to lord, that we must do, and that is very much, the particulars. as we find the credibility of the witnesses. L. C. J. North. Gentlemen, what do you

Bernard Dennis mean that he should have a pardon for ? Mr. Papillon. Mr. Dennis, in the morning Mr. Papillon. For crimes.

you told me something about the discourse L. C. J. North. You must not ask him to you had with my lord Shaftesbury, tell me accuse himself.

when it was? Mr. Papillon. If he hath a pardon he is in Dennis. It was in April, four or five days tátu quo : suppose, my lord, some of them after the parliament was dissolved at Oxford. have been guilty of poisoning, some of felony, Mr. Papillon. In the beginning ? some of robbing on the highway, we do but Dennis. In March, after the parliament was ask them if they be pardoned ?

dissolved at Oxford. L.C. J. Norih. A man must not be impeach- Mr. Papillon. It was in March, and where? ed but where he may answer for it.

Dennis. In his own house, here in this town, Mr. Papillon. My lord, if you do not give four or five days after the parliament was disus leave, we must forbear then.

solved at Oxford, immediately after he came L. C. J. North. I do not think it proper to home, I do not think be was at home three 味,

days before. Edward Ivy.

Mr. Papillon. Who was present with you

then ? Mr. Papillon. The discourse that you had Dennis. There was in the room Mr. Shepwith my lord Shaftesbury, when was it, at what pard, his gentleman.

Mr. Papillon. Who else? kay. It was a little after the sitting of the Dennis. Some of his servants, his pages 1 parliament at Oxford.

suppose, but whether they did hear this or no, 1 Mr. Papillon. Was it more times than one cannot tell

. loy. Yes, Sir, several times.

Mr. Papillon. Did my lord whisper it, or Mr. Papillon. All the same discourso? speak out?

some reason.

ime ?

VOL. VIII.

3 G

Dennis. My lord is not a man of an high Dennis. He said, we should all Irishme voice, but of mediocrite voice.

conform ourselves to a commonwealth, and by Mr. Papillon. Did he whisper it in your ear? that we should get our estates again, Dennis. No, I was just by him.

Mr. Papillon. I ask you if this is all you Mr. Papillon. Who was in the room be- have to say ? sides ? --Dennis. Nobody, only his servants. L. C. J. Do you remember any more?

Mr. Papillon. When did you make this in- Mr. Pupillon. More than you said in the ormation?

morning? Dennis. I made it in the month of June.

Dennis. He said he would extirpate the Mr. Papillon. In the month of June ? king, and make England a commonwealth, and Dennis. Yes, Sir.

that we were fools and silly folks that did not Mr. Papillon. Before my lord was com- comply ourselves to their factious party, and mitted, or after?--Dennis. Before.

that we should get our estates, and that he Mr. Papillon. Who did you make it to ? would get me a black gown and benefice in the Dennis

. I made my information to the se- mean time ; and when all things were done, cretary of state.

he would prefer me to a better ; and not only Mr. Papillon. Which of them?

myself, but all that were of my name, and Dennis. Secretary Jenkins.

would stick to me. Mr. Papillon. Why did you conceal it so Mr. Pap: Is this all ?-Dennis. This is all. long ?

Mr. Pap. Then you have nothing more? Dennis. Because I was in the city so long. Dennis. I never spake to him but in his

Mr. Papillon. Did you ever go about to own house. muster your 400 men you had in Ireland, I Mr. Papillon. All your kindred are papists

, ask you whether you did or no?

are not they ? Dennis. Upon my word I did advise some of Dennis. No, Sir, I cannot say so, but most them to be ready.

of them are. Mr. Papillon. And did you provide them L. C. I. (North.) Who can say that? Thai with arms?

question nobody can answer. Dennis. Not I, Sir, I was not able to do it. L. C. J. Look ye, gentlemen, now you Mr. Papillon. What religion are you of? have asked these questions, you had best gay Dennis. I am a protestant.

and consider what evidence is delivered, and Mr. Papillon. How long have you been a weigh well all those things that have been protestant ?

said to you; and you must consider your duty ; Dennis. I have been a protestant since Fe- you are to enquire here, whether it be fitting bruary last. And this I must confess, that for the king to call my lord Shaftesbury to when I was in Spain and France, my resolution question upon this account of treasonable words

. was to be a protestant.

Mr. Pap. My lord, we desire, before we go, Mr. Godfrey. Mr. Dennis, pray who was in that either the law may be read, or we may the room when you were there?

bave the statute book up with us. Dennis. The earl of Shaftesbury, Sir.

L. C. J. The statute book was never denied Mr. Godfrey. Who else?

[ay. desired] but you shall have the law read Dennis. Mr. Sheppard.

here: First the statute of the 25th of Edward Mr. Godfrey. Who else?

the 3d, and then this last statute. Dennis. I cannot name them.

L.C. J. (North.) I would say one thing beL. C. J. Mr. Godfrey, when another man cause I observed that some of you asked the asks a question, you should consider what is question, whether the parliament did not desaid, and not ask the same question over and bate about an Association ? Whether it re; over again.

lated to that paper or no, I am not certain ; I Mr. Papillon. In what place in his house ? hope you will consider that paper well ; for

Dennis. In his own chamber, in the great my part, I must needs say for myself, I heard chamber, I do not know whether you call it of' it, but I never heard it read before, and the hall or the parlour.

never heard the contents of it; but it seems to Mr. Papillon. Was it above stairs ?

me to shew what those officers were to do, for Dennis. Yes, it was above stairs, my lord the ends of this Association ; and one of those does not use to speak with any below stairs.. ends, as I remember (gentlemen, I refer you

Mr. Papillon. Is this all that you know? to the paper, and hope you will consider it, you Have you heard my lord say any treasonable are men of understanding) I thought that ohe words in any other place, or at any other time? of those ends was to destroy the mercenary

Dennis. In the long gallery at his own forces in and about the cities of London and house, at another time.

Westminster, and that the government was to Mr. Pup. Why did not you say so before ? be by the major part of the members of par

Dennis. I did say so before. In the long liament in the sitting of parliament, not withthe gallery he told me he would have a common king, but the major part of the members of wealth in England, and extirpate the crown parliament. Gentlemen, I may mistake

, of England and the king of England. for I profess I speak only out of memory;

Mr. Pap. Is that all Speak all your know, but it seems to me to be of great consequence, ledge

and there is great matter to be presunod upon

6

it, it being found under lock and key in his / jury; which were formerly equally vague ani study: But I suppose my lord Shaftesbury uncertain, but are now settled by several aeis may give an account of it, but there is great of parliament. However, they are usually presumption upon it; it doth not import to be gentlemen of the best figure in the county. As an Association by act of parliament.

many as appear upon this panel, are sworn upon Att. Gen. When the parliament was pro- the grand jury, to the amount of twelve at the rogued or dissolved, then the major part of the least, and not more than twenty three; that members in each county engage themselves to twelve may be a majority. Which number, follow their command and obey their order. as well as the constitution itself, we find exact

L. C. J. (North.) Gentlemen, I hope you will ly described, so early as the laws of Ethelred. cousider your oaths, and give all things their Eseant seniores duodecim thani, et praefectus due weight.

cum eis, et jurent super sanctuarium quod L.C. J. Will you have the statute read ? 'eis in manus datur, quod nolint ullum innge Jury. We will read it above.

centem accusare, nec aliquem noxium ceThe Jury withdrew to consider the evidence, (according to Hoveden) the process of electing

lare.'. In the time of king Richard the first and returned the bill Ignoramus : Upon which the grand jury, ordained by that prince, was the people fell a hollowing and shouting.*

as follows: four knights were to be taken All. Gen. My lord, let it be recorded this from the county at large, who chose two more hollowing and booping in a court of justice. out of every hundred; which two associated to

themselves ten other principal freemen, and Upon the acquittal of Wm. Stone, who was those twelve were to answer concerning all tried for High Treason, January 29, 1796, particulars relating to their own district. This (See the Case, post.), some persons in court number was probably found too large and in. clapped their hands and huzzaed. Whereupon convenient; but the traces of this institution one Richard Thompson, who had been ob- still remain, in that some of the jury must be served by lord Kenyon, C. J. to take part in summoned out of every hundred. This grand this irregular, indecorous, and contemptuous jury are previously instructed in the articles of conduct, was by bim fined in the sum of 201. their inquiry, by a charge from the judge who and compelled forth with to pay the same. presides upon the bench. They then with[See, too, 1 Blackst. Comm. 126.] It may be draw, to sit and receive indictments, which noticed, that in the cases of lord Shaftesbury are preferred to them in the name of the king, now before us, of Thompson, Pain, and Fare- but at the suit of any private prosecutor; and well, A. D. 1682 ; and of the Seven Bishops, they are only to hear evidence on behalf of the A. D. 1688, infra, no punishment was inflicted on prosecution: for the finding of an indictment is the persons who violated the decorum of the only in the nature of an inquiry or accusation, court, though in the first of these cases Dal- which is afterwards to be tried and determined ; rymple (Memoirs, part 1, book 1, p. 4) tells and the grand jury are only to inquire upon us

, on the authority, as he says, of a letter in their oaths, whether there be sufficient cause the Paper Office from sir Leoline Jenkins to to call upon the party to answer it. A grand the prince of Orange, of'date 25th November, jury however ought to be thoroughly persuad1681: “ The acclamations in court for Shaftes- ed of the truth of an indictment, so far as their bury's acquittal lasted an hour;" and upon evidence goes; and not to rest satisfied merely the last occasion, Reresby tells us, that with remote probabilities: a doctrine, that "Westminster-hall, the Palace-yards, and might be applied to very oppressive purposes.” all the streets about, were thronged with an 4 Blackst. Comm. 302. infinite people, whose loud shouts and joyful acclamations, upon hearing the bishops were Christian's Note. But query, whether a grand

See also 4 Blackst. Comm. 126, and Mr. acquitted, were a very rebellion in noise, though very far from so, either in fact or intention." jury should not require for the finding of an And Henry, the second earl of Clarendon says, would satisfy them that he was guilty (See the

Indictment such proofs as if uncontradicted " there was a most wonderful shout, that one would have thought the hall had cracked.”

Stat. 5 Eliz. c. 1.); and this this not merely for the sake of the person accused, but also for

the sake of public justice, which may be de“ The sheriff of every county is bound to evidence is collected. This case of lord

feated by proceeding to trial before sufficient return to every session of the peace, and every Shaftesbury gave occasion for the publication general gaol delivery, twenty-four good and of a spirited and learned tract

, intitled " The Lawful men of the county, some out of every Power and Duty of the Grand Jaries of Eng.

Security of Englishmen's Lives, or the Trust, bundred, to inquire, present, do, and execute all those things which on the part of our lord land explained according to the fundamentals the king shall then and there be commanded tions of the same made in Parliament by

of the English government, and the Declarathem. They ought to be freeholders, but to what amount is uncertain : which seems to be many statutes." casus omissus, and as proper to be supplied by In 1 Fountainhall's Decisions, 188, (Case of the legislature as the qualifications of the petit James Douglas, July 11th, 1682,) is a passage

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in which notice is taken of the London Igno- Souls' Colledge, Oxford, have relation to the ramus Juries. It seems to shew that these Juries of London and Middlesex : Ignoramus findings had very extensive influence, and in other respects it may be found having some time since arrested Mr. Cradock,

May 9th, 1682. The lord Shaftesbury to be neither unamusing nor uninstructive:

mercer, in Pater-Noster Row, in an action “ The king's Advocate finding he had mis- of Scandalum magnatum for 5,000l, damages taken bimself, raged and swore and railed at for words spoken, Mr. Cradock by his counsel sir David Thoirs; and studied to irritate the moved the Court of King's-bench, the first criminal lords against him, as if he had day of this term for the changing the venue, harangued to reproach the court and their that the trial might be in an indifferent interlocutor; and denied that all probation county, and not in London or Middlesex; it needed to be in presence of the assize, was put off till the 5th inst. and then put off so as to be re-itèrated ; and instanced, till the 10th, at which day the defendants where one is persued for forging false writes, counsel produced several affidavits, that his all that is produced to the jury, is only lordship had constantly resided in London or the lords of session their decreet of improba- Middlesex, and particularly at this time, in tion, whereon, without leading the witnesses London. That he had been concerned in trade which were the ground of that decreet, the in the city, was free thereof, and particularly assize instantly finds him guilty, though there also of the Skinners' Company, of which Mr. be no more there but the clerk's assertion; and Sheriff Pilkington was master; and that there he threatened the assizers with an assize of was great intimacy between him and the said error, if they became like the seditious · Igno- sheritfs; for which reasons the deponents beramus Juries' at London; and that he would lieved the defendant could have no indifferent infallibly prosecute them, and get them severe trial : they also cited several precedents, in ly punished, as he had done lately with some which venues had been changed in the case of cleansing assizers of Somervil of Urats, in Scandalum magnatum, and therefore prayed it 1681; and if there were any need, ex super- might be so in this. On the other side, the abundanti,' he would yet lead the clerk of the counsel for his lordship urged, that the action court and his servant John Anderson, and the was brought in the right place where the words lords on the bench, as witnesses, that they all were spoken; and that his lordship, as a nobleheard the pannel confess the fact, and saw him man, had the privilege to lay his action where subscribe that paper ; and it was yet time, he would, and spoke several things against the seeing in criminalibus nunquam concluditur. affidavits: but the court were unanimously of But the maxim is nunquam contra reum,' opinion, that an indifferent trial could not be and so is in favours of the pannel, that his de- bad in London or Middlesex, and therefore or fences are receivable at any time. If he had dered it to be in another county, and gave bis led that probation in due time, the assize would lordship the choice of which he would; on have been rendered inexcusable, and would which the lord Shaftesbury (who was then in have had no pretence whereupon to have court) said he would rather let his action fall eleansed him. But this being omitted; when than try it elsewhere, whereon the court told they inclose, the most of them were merchants him, that that confirmed them in their opi. and writers in Edinburgh: They considered nion.” with themselves, that though the evidences of his burning that chamber were great, so that

· May 131h. The lord Shaftesbury having few doubted of its truth, yet seeing he was to brought a writ of conspiracy against Mr. Gralay down his life on another account, viz. for ham, principal of Clifford's-inn, and laid it in his murder, (so he was not to escape,) and that London; the said Mr. Graham having mored all the design here was a covetous inhancing of once or twice the court of King's-bench that his estate, and defrauding his poor sisters there the venue might be laid in another county, it of; and that they by the Advocate's oversight came on again the 16th to be debated, when had a latitude to find it not sufficiently proven the defendant's counsel, who were Mr. Atterto them; they upon thir narrow grounds do ney General, Mr. Solicitor, sir George Jefby their verdict cleanse and assoilzie bin from feries, sir Francis Withins, and Mr. Sanders

, Nie whole contents of the libel of treas. The and Mr. North produced several affidavits in Advocate stormed and swore he would have his behalf, viz. that what he did in relation to them all imprisoned, (yet he nev. raised a

the indictment of his lordship was by order of summons of error against them ;) and fined sided in and about the city of London, for se

the king's counsel ; that the plaintif bad reand declared infamous; and that the next assizers he should chuse, should be Linlith- veral years past, and had thereby contracted a gow's soldiers, to curb 'the fanaticks. But great interest, that he had great dealings in thir transports of passion were smiled at, and

the city, and was free of the Company of Skiowere judged of no great service to his majesty's he was intimately acquainted with him, and

ners, whereof that sheriff was Master; that government.”

that if any of the witnesses who were against The following passages extracted from Nar- his lordship at bis indictment, should in this eissus Luttrell's Ms. " Brief Historical Rela- ease appear for the defendant, they would eertion of State Affairs," in the library of Au tainly be knocked on the head, they narrowly

escaping it then, and then the defendants' own | London, as if he intended there to intluence the oath, that if any such conspiracy was, it arose city against the court. Soon after his return, in the county of Surrey, and not where the one Bryan Haynes came to him and assured him action was laid : the plaintiff's counsel insisted he could give great light in the matter of sir that the action was well laid, and it being a Edmundbury Godfrey's murder, if he might local action, it could not be altered from the bave bis pardon. The earl endeavoured to get place where the plaintiff had laid it: but the one, but it could not be obtained. Haynes being court, on consideration of the whole matter, taken and carried before the council, hoped to thought the defendant could have no indifferent get favour, by accusing the earl of attempting trial in London or Middlesex, and therefore to suborn him to do it; and on the information ordered the venue to be changed; but gave of this Irish evidence, the lord Shaftesbury was his lordsbip leave to lay it in any other county. apprehended at his house in Aldersgate street,

“ The 16th, also, Mr. Samuel Harris and and on the 2d of July committed to the Tower, Mr. Richard Janeway, came to be tried at had waited on the earl to Oxford (among other

for high-treason; and capt. Wilkinson, who Guildhall, in London ; the first for printing and friends and followers) was now tempted to publishing that treasonable and seditious libel called • Treason in Grain;' for which Fitzharris charge this upon his sordship, as a design of was hanged; the other for publishing seditious sedition and treason : but Wilkinson, though a

news: the evidence was pretty plain, but prisoner for debt in the King's-bench, resisted • especially against the first, yet the jury were

all their temptations and offers, and would not

be drawn in to be an evidence. The earl, after i pleased to find them both Not Guilty.

his commitment, presented several petitions for “Mr. Sheriff Bethel having some time since a trial, or bail, according to the Habeas Corpus brought an action of scandal against one act; but he could not be heard till November * Mr. Harvey, for saying of him that he the 24th, and then a bill of high-treason was

should speak these words, that rather than preferred to the grand-jury at the Sessions 'the old king should have wanted an exe- house in the Old-Bailey. Ár. Blaithwaite and cutioner, he would have done it himself," Mr. Gwynne swore, That the papers produced Mr. Harvey having moved the Court of Ex. in court were taken in the lord Shaftesbury's chequer to change the venue from London to house : and sir Leoline Jenkins deposed, That any other county for want of an indifferent one of them, which was a project of an associatrial, it was the 20th ordered accordingly. tion, was the same paper, unaltered, that Mr. “ May 29th. The earl of Shaftesbury Sir John Hawles) was no manner of evidence

Blaithwaite gave him. But this writing (saith brought a Scan. Mag.against Mr. Justice War. cup, Mr. Ivy, and others of the Irish evidence, of treason, admitting what the witnesses swore and laid it in London; but they, by their coun

as to the finding of it, to be true; because it sel moving the Court of King's-bench, to cuted by the earl of Shaftesbury, or by his

was not proved that it was composed or prosechange the venue (on the same reasons as Cradock, Graham, &c. had done before) they

order. Two Macnamarras and one Booth, had it granted accordingly."

swore, That capt. Wilkinson was to have been

captain of a troop of horse in the army which April, 1683. This Lent Assizes, at the the lord Shaftesbury was to raise. One Turtown of Derby, which Mr. Baron Gregory bervile swore, That the lord Shaftesbury said went, there was a bill preferred against one for about February last, that there was little good being a priest, into the Grand-jury; who were to be done to the king, as long as bis guards knights of the new order of Addressers and were about him. One Smith gave evidence, violent Tories, but they were pleased to return that the earl should say, if the king should thereon · Ignoramus ; but the judge knowing offer any violence to the parliament at Oxford, the evidence to be plain, sent them out to con- he would meet with a strong opposition. And sider of it again, which they did, and brought one Haynes swore to these words spoken by the in Ignoramus' again. Upon this, the judge earl

, the duke of Buckingham has as much told them, for the satisfaction of the country, right to the Crown, as any Stuart in England. he would examine the witnesses in open court, But the jury (of whom sir Samuel Barnardiston which being done, the same jury, upon the was fore-man) considered of the depositions same evidence on which they found before of capt. Wilkinson, made before the king, giving Iwo · Igyoramuses,' found now Billa Vera.'” a large account of the intrigue carried on by Kennett, after relating the fate of Colledge, the earl; and knew Booth to be a fellow of in.

Booth, to engage him to be an evidence against proceeds thus;

famous character, who had been condemned " It was proposed to make an example of a for clipping and coining: nor had they reason peer as well as of a poor commoner; My lord to believe any thing said by Turbervile, Smith, Shaftesbury was a person most odious to the or Haynes ; and there was so much of their court, and the more so, because his lordship falshoods and of their designs to perjure them(with several other peers) had entered a protes- selves, proved against them in Colledge's trial, tation against the Lords rejecting the impeach- that they therefore brought in an Ignoramus. ment of Pitzharris ; and upon the dissolution Upon which sir John Hawles makes this reof the parliament, returned immediately to mark; the grand-jury (though some of them

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