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to be one : That if the king did not consent to | kind of suspicion of the crime committed by several acts of parliament and other things, them, as the court said, (which last matter was they were to purge the guards and court of never assigned as a reason of finding a bill by several persons; and though the captain told the grand jury before) but I take the reason of bin that first, afterwards he heard the earl say a grand jury to be this, that no man for a capithe same things, particularly about a week or tal matter shall ever be questioned by the'king, ten days before the parliament sat at Oxon, he unless a grand jury take it on their oaths that gave some intimation of this to Walter Banes, they believe the matter of the accusation true; and then writ it down, and sent it to the coun- I put an emphasis on the words questioned by cil sealed in a cover. Tarbervile swore, that the king. the lord Shaftesbury said about February, It is true, it is generally said that the busin there was but little good to be done with the ness of a grand jury, in capital matters, is in king as long as the guards were about him. favorem vitæ; but that taken simply is not Smith testified a great deal of discourse between true, for then what reason can be assigned him and the lord Shaftesbury of something said why a man shall be arraigned on an appeal of reflecting on the king; and that he should say, murder, robbery, or the like, which touches that if the king should offer any violence to the his life, as much as an indictment of those parliament at Oxford, he would meet with a crimes, without having the matter of the strong opposition, for that the gentlemen who appeal first found to be true by a grand jury ? came out of the country, came well provided But the true reason of a grand jury is the vast with horse and arms to oppose, and that they inequality of the plaintiff and defendant, which might lawfully do it, if he offered any violence in an melictment'is always between the king to them whilst they sat. Haynes swore, that and his subjects; and that doth not hold in an the earl said if the king did not give Haynes appeal, which is always between subject and his pardon, he and others would raise the king subject : and therefore the law in an indom against him ; that Haynes gave the earl dictment hath given a privilege to the de: an exact account of transactions since king fendant, which it hath done in no other proseCharles the First's coming to the crown, and cution, on purpose, if it were possible, to make that the earl said the duke of Buckingham had them equal in the prosecutions and defence, as much right to the crown as any Stuart in that equal justice may be done between both. England. John Macnamarra said, the earl It considers the judges, witnesses, and jury are said, the king was Popisbly affected, and took more likely to be influenced by the king than the same methods his father did, which brought the defendant; the judges as having been his father's head to the block, and they would made by him, and as it is in his power to turn bring his thither; and this was said in the pre- them out, punish, or prefer, or reward them sence of Ivey, and he thought of his brother ; higher; and though there are no just causes andsaid, the king deserved to be deposed as much for them to strain the law, yet there are such as king Richard the Second. Dennis Macna- causes, which in all ages have taken place, marra likewise testified the last words, and and probably always will. This was the reason that it was the latter end of March, or begin- of running prerogative so high in the judgmert ning of April. Ivey said, the earl said, it the of high-treason before the stat. of Ed. 3, that king denied Haynes a pardon, they would rise no man, as that statute says, knew what was upna him and force him to give one, and that not high-treason: This was the reason of exthey designed to depose him and set up another pounding that statute oftentimes between the
Bernard Dennis said, he had a making of it, and the making of the statute of great deal of discourse with the earl, who bid queen Mary, that people were at as great a him speak to his friends in Ireland to be in a loss, till the last statute, as they were before readiness to assist the Commonwealth of Eng- the making of the first; and even since the land, for they intended to have England under statute of queen Mary, the exposition on the a. Commonwealth, and extirpate the king and statute of Ed. 3, has been so extravagant and
various, that people are at this day as much at Then the court told the jury the indictment a loss to know what is not high-treason, as was grounded on the statute of king Charles they were before the statute of Ed. 3. Nor the Second, but they ought to consider both of was it, nor is it, possible, but that the great that statute, as also the 25th of Edward 3. power of enriching, honouring, rewarding,
The question is, Whether the grand jury and punishing lodged in the king, always had, ought to have found the bill on this evidence. and yet must have an influence on the witnesses First it ought to be considered, what the duty and jury; and therefore it is that the law has of a grand jury is; and I think it is not what ordered, that at the king's prosecution, no man the Chief Justice (sir Francis Pemberton,) said, shall be criminally questioned, unless a grand to consider only whether there be probable jury, upon their own knowledge, or upon ground for the king to call the person accused the evidence given them, shall give a verto an account, much less do I think that the dict, that they really believe the accusation reason of finding a bill by the grand jury was for the honour of the king, or (lecency of the I own, of late days, they have said the duty matter, lest persons accused should be called of the grand jury is to find, whether the accuto an aecount by the king where there is no sation be probable or no. But that saying is
in his stead.
warranted by no positive law, or ancient autho- present at any criminal prosecution ; and the rity; and therefore the duty of the grand jury jury knew by Colledge's trial, and by Wi. must be founded in the oath administered to kinson's depositions before the king, that the them, which is as strict as the oath adminis- evidence of all the witnesses produced, except tered to the petit jury: and to say the truth, what were to the paper, was questioned, but the verdict of the petit jury takes credit from even that was afterwards quitted by the court, the verdict of the grand jury ; which is not only when it would not be swallowed by the grand the reason of the difference in the names of the jury: for afterwałds the court told them, that two juries, but is likewise the reason why an if they of their own knowledge knew any thing attaint for a false verdict doth not lie against a against the witnesses, they might consider of petit jury.
it, but not of what they were credibly informed The oath of the grand jury, is, “ To present by others. And, besides the credibility of the the truth, the whole truth, and nothing but witnesses, the possibility or probability of the " the truth:' The oath of the petit jury is, thing sworn is to be considered by the grand
well and truly to try, and true deliverance jury; an impossible thing they ought not to make, between the king and the prisoner at believe, though sworn to by never so many " the bar, &c.' which signifies the same thing credible witnesses, and a very improbable thing as to present the truth, &c. It is true, some they cannot positively on their oaths șwear they reasons have been offered, which, if consider- believe. ed, are words without sense; as that the pre- And not only the fact, but what the crime sentment of the grand jury is but in order to of the fact alledged in the Bill of Indictment, bring the prisoner to his trial, and he not be the grand jury, as far as they are capable of fore the grand jury to make his defence him- judging matter of law, ought to consider; $ self: but that can be no reason why probabili- they were told in the charge given them. 1: ties should satisfy the jury, because it doth not true, if they were ignorant in the law, and answer the design of the law, which will have the court in their directions misled them, as if a man convicted by the positive oaths of two the court should tell them stealing a horse is juries, consisting of more than twenty four, in high-treason, and the grand jury find it acall indictments.
cordingly, it is excusable in the grand jury, Next, why is a grand jury, composed of though punishable in the court. But wrong more substantial and understanding men than directions by the court, in finding a faci a petit jury, if their business be mere formality, where there is no evidence, do not excuse the or a matter of less weight than the business of jury. a petit jury? In the last place, why less evi- Now, to examine the matter in hand by these dence is required to convict a man in his ab- rules, could any person who knew my lord sence, than is required to convict bim if pre- Shaftesbury, or that had heard of, or believed sent ?' It is far from an argument, that less his character to be what it was, believe that it was evidence is required to couvict ove if absent, possible for him to discourse with the witnesses than it present, that it seems to me that more at the rate they swore, to some of them at the evidence should be required to do it. Men tirst, to others of them the second time he saw may, and often do inake very fair stories in the them; to discourse of matters of policy with absence of a person accused, that when present, Booth at one time, and afterwards with he easily answers; and there being no positive Haynes, and afterwards with Macnamarta, law for the direction of a grand jury in that fellows of so little sense, that he would have matter, a grand juryman is excusable, nay, been ashamed to have entertained them in the it is his duty to give a verdict according to the meanest office about him ; and yet, as they plain understanding of the words of his oath, pretended, he makes them his privadoes in the which is to present the truth, as far as he is con- secret, of not so much what he would have vinced of it; and that truth must be found ac- had them, but of what he intended himself cording to his knowledge, or as it is represented to do? to him by witnesses.
Who could believe any thing Turbervile
, And as for the witnesses, they must be per Smith, or Haynes sbould say, where there was sons of credit; and all persons are supposed to so much of their falshood,
and of their designs be so, unless the grand jury know the contrary, to swear falsly, proved against them in Color have been so credibi, informed. It is true, ledge's trial ; Or of Ivey, and the three Maca grand jury ought not to believe coffee-house namarra's after that trial, who though they stories, or light stories; but common fame by were not produced at it, because the king's credible persons, which is Vor Populi, ought counsel by Colledge's notes saw he was able to to prejudice them against a witness, so as to falsify them, yet some witnesses in that trial disbelieve him: and it is no answer to say, as proved their design of swearing falsly? the Chief Justice in this case said, that the Who could believe Booth's story of listing credibility of the witness is not to be considered so many men under Wilkinson, to be at my by the grand jury, because the king is not lord Shaftesbury's dispose at Oxon, atter Colpresent to defend the credit of his witnesses : ledge's trial, and after what Wilkinsou had testhough the fact in that case was not true, for tified to the king and council
, though the king's attorney, solicitor and counsel were proved to the grand-jury? present, and I think the king is no otherwise A judge indeed cannot take notice of apy.
thing not proved (though he may and ought to was of another opinion in the lord Russel's be a witness, if he knew any thing material of trial. the matter tried before him and others) ; but a And that this indictment was on that statute, grand-jury may take notice of any thing they was expressly said to the grand jury, and upon know or believe. The passages at Colledge's good reason ; for the court in their charge trial were pretty notorious, being authentically said, that the intention of levying war, or depublished by Fra. North, and the examination signing to imprison the king, was not treason, of Wilkinson by as authentic a paper.
till the statute of Charles the Second ; though It was unaccountable, that the witnesses con- in the lord Russel's trial it was held to be treacealed what they heard the earl speak so long, son by the statute of Edw. 3, and therefore the of which none of them pretended to give any time of the treason committed was material to reason ; nor was it any excuse to those who be found by the jury. signed a petition to the city, in which they As for the writing found in the earl's study, suggested they were tempted to swear against it was no manner of evidence of treason, ad their consciences, to say they knew not what mitting what the witnesses swore as to the findwas in the petition : He that sets his hand to a ing it to be true; because it was not proved thing as if he assented to it, but doth not, is a that it was prosecuted or composed by the earl man of falshood. Suppose one sets his hand of Shaftesbury, or by his order, and that piece to a bond, said to be sealed and delivered, not hav- of evidence was in that particular a mere ori. ing seen it sealed and delivered, is not he guilty ginal. of little less than forgery? But admitting those In Fitzharris's case, it was proved the libel witnesses had sworn truth, yet the jury ought was composed by his direction ; Colonel Sidnot to have found the bill; for they ought to ney's book was proved to be like his hand, it find the bill true according to all the material was pretended that Colledge said he was the circumstances of it, as well as the substance of author of the Raree-Shew, and no example of it , which was High-treason. One material cir- this evidence was ever made use of before. cumstance of it was, that it was said to be Neither was it evidence of treason as to the
High-treason within the statute of Charles 2. matter, for there was not one word against the . And that made another circumstance of the present king, but his successor, if he should be i indictment material, which was the time when such a person.
that treason was committed ; because by that It is true, one of the king's counsel said that statute the prosecutions of treason on that sta- one passage in it was that they would join to detute ought to be within six months after it is stroy the mercenary forces about London, and committed, and the indictment ought to be thence inferred it was downright levying war within three months after the prosecution'; and against the king and his guards; whereas there is be being imprisoned in July, and the bill sug- not any such word or thing in the paper as he gesting that the supposed treason was committed pretended to cite: and if it had been in the pathe 18th of March before, and divers other per, it would have been but evidence of a treason times, both before and after, which might be within the statute of the late king. And then interpreted to have been after the prisoner's the time of writing it ought to have appeared ; commitment; had the jury found the bill as and if that had been cleared, yet for the above laid, they had found the treason to have been reasons it was no evidence: and the grand-jury, committed, pot only within the time the prose- though some of them afterwards smarted for cution by that statute ought to be, but also with it upon other pretences, did like honest under
in the time the indictment ought to have been standing gentlemen ; and had they done other· preferred; whereas in truth the earl had been wise, to avoid the ignominy of being called,
imprisoned above three months before the in- though in truth it was an honour to be, an dictment preferred, and there was no evidence Ignoramus jury, they had justly deserved the
any treason committed by him after his im- reproach which since have lighted on other prisonment, and therefore the finding the bill juries, such as Mr. Cornish's, and the like.
as lajd had been injurious, to bring a man in And having spoken of this Ignoramus jury, for e question for his life on that statute, whereas by which, two of them, if not more, were after law he ought not to have been.
wards upon other pretences severely handled ; Por it was resolved in Colledge's case, that I think fit to say something of the sufferings
the prosecution for treason on that statute of one, for being in a preceding Ignoramus i qught to be within six months, and the indict-jury, because it was a mere novelty; and that
meat within three months, though the court was Mr. Wilmer.
« Sir ;
284. The 'Trial of the Earl of ArgyLE,* in Scotland, for Treason :
33 CHARLES II. A.D. 1681. [The Account of this Trial published in former
was earnest to know, was at first, I thought,
so plain, that I needed not, and grew after. Editions appears to bave been extracted from “ The CASE of the Earl of AR
wards so exceedingly mysterious, that I
could not, for some time, give you so perfect “ GYLE: or, an exact and full Account of
an account of it, as I wished : but this time “ his Trial, Escape, and Sentence. As " likewise a Relation of several Matters of
being still no less proper, the exactress of iny " Fact, for better clearing of the said Case:”
narrative will, I hope, excuse all delays.
“ The design against him being now so clear, contained in a volume, entitled, “ State Tracts, being a further Collection, &c.
and the grounds founded on so slender, that from the year 1660 to 1689,” published
to satisfy all unbiassed persons of his intein London in 1692; which Case I con
grity, there needs no more, but barely to rejecture was written by sir Janies Stewart
present matter of fact; I should think
shame to spend so ma'y words, either on ar(See 4 Laing's llistory of Scoiland, 119,
guments, or relation, were it not lest to edition of 1804). The Introduction to this “ Case" is as follows:
strangers some mystery might still be sus. pected to remain concealed : and therefore
to make plain what they can hardly believe, EDINBURGH, May 30, 1682.
though we clearly see it. The Case of the late earl of Argyle, which, " At his royal highness's arrival in Scotland, the even before the process led against him, you earl was one of the tirst to wait upon him,
He was the son of Archibald marquis of for the service that was expected from the other Argyle, who at Scone, in the year 1650, placed parts of the test. There was a hot debate upos the crown upon the head of Charles the 2nd, the imposing it on all that might elect or be and who, as Laing expresses it, had reason elected members of parliament: it was said, afterwards to complain that his own head was that was the most essential of all the privilege the ungenerous forfeit. (See the proceedings of the subjects, therefore they ought not to be against him, A. D. 1661, vol. 5, p. 1369, of limited in it. The bishops were carnest for this Collection; in the Note to which, p. 1372, this, which they thought would secure them reference is by an error of the press made tv for ever from a Presbyterian parliament. It p. 347 instead of p. 437, of the 3rd volume of was carried in the vote: And that made many Laing's History of Scotland.]
of the court more zealous than ever for car
rying through the act. Sorne proposed that “ The main business of this parliament was there should be two tests : One for papists with the act concerning the new test that was pro- higher incapacities : And another for preshyposed. It bad been promised in the beginning terians with milder censures. But that was reof the session, that as soon as an act for main jected with much scorn, some making their taining the succession should pass they should court by saying, they were more in danger have all the security that they could desire for from the presbyterians than from the papists: the Protestant religion. So, many zealous men And it was reported that Paterson then bishop began to call for some more effectual security of Edinburgh, said to the Duke, that he for their religion : upon which a test was pro- thought the two religions, popish and proposed for all that should be capable of any testant, were so equally stated in his mind, that office in church or state, or of electing or being a few grains of loyalty in which the proteselected members of parliament, that they tants had the better of the papists turned the should adhere firmly to the Protestant reli- balance with him. Another clause in the bill gion; to which the court party added, the was liable to great objections ; all the royal condemning of all resistance in any sort, or family were excepted out of it. Lord Argyle under any pretence, the renouncing the Cove- spoke zealously against this: He said, the only nant, and an obligation to defend all the king's danger we could apprehend as to popery was
, rights and prerogatives, and that they should if any of the royal family should bappen to be never meet to treat of any matter civil or ec- perverted : Therefore he thought it was better clesiastical but by the king's permission, and to have no act at all than such a clause in it: never endeavour any alteration in the govern- Some few seconded him: But it was carried ment in church or state: and they were to without any considerable opposition. The swear all this according to the literal sense of nicest point of all was, what definition or the words. The test was thus loaded at first standard should be made for fixing the sense of to make the other side grow weary of the mo- so general a term, as the protestant religion. tion and let it fall, which they would willingly Dalrymple proposed the confession of faith have done. But the duke was made to appre- agreed on in the year 1559, and enacted in 1567, hend, that he would find such a test as this which was the only confession of faith that had prove much for his service: so it seems, that then the sanction of a law. That was a book so article of the Protestant religion was forgiven worn out of use, that scarce any one in the
and until the meeting ofbur last parliament, i and his bighness's service, but it had not sat the worid believed, the earl was as much in many days when a change was noticed in bis highness's favour, as any intrusted in his bis highness, and the earl observed to decline majesty's affairs in this kingdom.
in his highness's favour. • When it was resolved, and his majesty moved " In the beginning of the parliament, the earl
to call the parliament, the earl was in the was appointed one of the Lords of the Articountry, and at the opening of it, he ap- cles, to prepare matters for the parliament,
pieared as forward as any in his majesty's, and named by his highness to be one of whole parliament had ever read it: None of the at least doubtful; though it was found to be bishops had, as appeared afterwards. For much more moderate in many points, than these last 30 years the only confession of faith could have been well
expected considering the that was read in Scotland, was that which the heat of that time. There was a limitation put assembly of divines at Westminster, A. D. 1648, on the duty of subjects in the article, by which had set out, which the Scottish Kirk had set up they were required not to resist any whom God instead of the old one: And the bishops had had placed in authority in these words, “while left it in possession, though the authority that they pass not the bounds of their office:' And in enacted it is annulled. So here a book was made another they condemn those who resist the the matter of an cath, (for they were to swear supreme power doing that thing which apthat they would adhere to the protestant re- pertaineth to his charge. These were propoligion, as it was declared in the confession of sitions now of a very ill sound : They were faith as it was enacted in the year 1567,) that also highly offended at the great extent of the contained a large system of religion, that was prerogative in the point of supremacy, by not so much as known to those that enacted it: which the king turned bishops out at pleasure Yet the bishops went all into it. Dalrymple, by a letter. It was hard enough to bear this : who had read it, thought there were proposi- But it seemed intolerable to oblige men by tions in it, which being considered better of oath to maintain it. The king might by a would make the test be let fall : For in it the proclamation put down even episcopacy itself, repressing of tyranny is reckoned a duty in- as the law then stood : And by this oath they cumbent on good subjects. And the confes would be bound to maintain that. Al meetvion being made after the Scots bad deposed ing in synods, or for ordinations, were herethe queen regent, and it being ratified in par- after to be held only by permission : So that lainent after they had forced their queen all the visible ways of preserving religion de. Mary to resign, it was very plain what they pended now wholly on the king's good pleawho made and enacted this confession meant sure ; And they saw that this would be a very by the repressing of tyranny. But the duke and feeble tenure under a popish king. The being his party set it on so earnestly, that upon one tied to all this by oath seemed very hard. day's debate the act passed, though only by a And when a church was yet in so imperfect a majority of seven voices. There was some state without liturgy or discipline, it was a appearance of security to the protestant reli- strange imposition to make people swear never gion by this test : But the prerogative of the to endeavour any alteration either in church or çrown in ecclesiastical matters had been raised state. Some or all of these exceptions did run so so high by duke Lauderdale's act, that the generally through the whole body of the obliging all people to maintain that with tie clergy, that they were all sbaking in their rerest of the prerogative, might have made way solutions. To prevent this, an explanation was for every thing. All ecclesiastical courts sub- drawn by: bishop Paterson, and passed in sisted now by this test only upon the king's council. It was by it declared, that it was not permission, and at his discretion.
meant that those who took the test should be "* The parliament of Scotland was dissolved bound to every article in the confession of faith, soon after this act passed : And Hyde was sent but only in so far as it contained the doctrine down from the king to the duke immediately upon w..ich the protestant churches had settled upon it. It was given out, that he was sent by the reformation: And that the test did not cut the king to press the duke upon this victory off those rights, which were acknowledged to to shew, that what ill usage could not extort have been in the primitive church for 300 years from him he would now do of his own accord, after Christ : And an assurance was given, that and return to the church of England. I was the king intended never to change the governassured, that my lord Halifax had prevailed ment of the church. By this it was pretended with the king to write to liim to that purpose : that the greatest difficulties were now removed. The letter was writ, but was not sent: But lord But to this it was answered, that they were to Hyde had it in charge to manage it as a message. swear they took the oath in the literal sense of Aow much of this is true I cannot tell : One the words. So that, if this explanation was thing is certain, it it was true it had no effect. not conform to the literal sense, ihey would be . As soon as the test with the confession of perjured who took it upon this explanation.
was printed, there was a universal mur- The imposers of an oath could only declare the muring among the best of the clergy. Many sense of it : But that could not be done by any
against the swearing to a system made up other, much less by a lower authority, such as of so inany propositions, of which some were the privy council's was confessed to be. Yet