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to be one: That if the king did not consent to several acts of parliament and other things, they were to purge the guards and court of several persons; and though the captain told him that first, afterwards he heard the earl say the same things, particularly about a week or ten days before the parliament sat at Oxon, he gave some intimation of this to Walter Banes, and then writ it down, and sent it to the council sealed in a cover. Turbervile swore, that the lord Shaftesbury said about February, there was but little good to be done with the king as long as the guards were about him. Smith testified a great deal of discourse between him and the lord Shaftesbury of something said reflecting on the king; and that he should say, that if the king should offer any violence to the parliament at Oxford, he would meet with a strong opposition, for that the gentlemen who came out of the country, came well provided with horse and arms to oppose, and that they might lawfully do it, if he offered any violence to them whilst they sat. Haynes swore, that the earl said if the king did not give Haynes his pardon, he and others would raise the kingdom against him; that Haynes gave the earl an exact account of transactions since king Charles the First's coming to the crown, and that the earl said the duke of Buckingham had as much right to the crown as any Stuart in England. John Macnamarra said, the earl said, the king was Popishly affected, and took the same methods his father did, which brought his father's head to the block, and they would bring his thither; and this was said in the presence of Ivey, and he thought of his brother; and said, the king deserved to be deposed as much as king Richard the Second. Dennis Macnamarra likewise testified the last words, and that it was the latter end of March, or beginning of April. Ivey said, the earl said, if the king denied Haynes a pardon, they would rise upon him and force him to give one, and that they designed to depose him and set up another in his stead. Bernard Dennis said, he had a great deal of discourse with the earl, who bid him speak to his friends in Ireland to be in a readiness to assist the Commonwealth of England, for they intended to have England under a Commonwealth, and extirpate the king and his family.

Then the court told the jury the indictment was grounded on the statute of king Charles the Second, but they ought to consider both of that statute, as also the 25th of Edward 3.

The question is, Whether the grand jury ought to have found the bill on this evidence. First it ought to be considered, what the duty of a grand jury is; and I think it is not what the Chief Justice (sir Francis Pemberton,) said, to consider only whether there be probable ground for the king to call the person accused to an account, much less do I think that the reason of finding a bill by the grand jury was for the honour of the king, or decency of the matter, lest persons accused should be called to an account by the king where there is no

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kind of suspicion of the crime committed by them, as the court said, (which last matter was never assigned as a reason of finding a bill by the grand jury before) but I take the reason of a grand jury to be this, that no man for a capital matter shall ever be questioned by the king, unless a grand jury take it on their oaths that they believe the matter of the accusation true; I put an emphasis on the words questioned by the king.

It is true, it is generally said that the business of a grand jury, in capital matters, is in favorem vita; but that taken simply is not true, for then what reason can be assigned why a man shall be arraigned on an appeal of murder, robbery, or the like, which touches his life, as much as an indictment of those crimes, without having the matter of the appeal first found to be true by a grand jury? But the true reason of a grand jury is the vast inequality of the plaintiff and defendant, which in an indictment is always between the king and his subjects; and that doth not hold in an appeal, which is always between subject and subject: and therefore the law in an indictment hath given a privilege to the defendant, which it hath done in no other prosecution, on purpose, if it were possible, to make them equal in the prosecutions and defence, that equal justice may be done between both. It considers the judges, witnesses, and jury_are more likely to be influenced by the king than the defendant; the judges as having been made by him, and as it is in his power to turn them out, punish, or prefer, or reward them higher; and though there are no just causes for them to strain the law, yet there are such causes, which in all ages have taken place, and probably always will. This was the reason of running prerogative so high in the judgment of high-treason before the stat. of Ed. 3, that no man, as that statute says, knew what was not high-treason: This was the reason of expounding that statute oftentimes between the making of it, and the making of the statute of queen Mary, that people were at as great a loss, till the last statute, as they were before the making of the first; and even since the statute of queen Mary, the exposition on the statute of Ed. 3, has been so extravagant and various, that people are at this day as much at a loss to know what is not high-treason, as they were before the statute of Ed. 3. Nor was it, nor is it, possible, but that the great power of enriching, honouring, rewarding, and punishing lodged in the king, always had, and yet must have an influence on the witnesses and jury; and therefore it is that the law has ordered, that at the king's prosecution, no man shall be criminally questioned, unless a grand jury, upon their own knowledge, or upon the evidence given them, shall give a verdict, that they really believe the accusation

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warranted by no positive law, or ancient autho- | present at any criminal prosecution; and the rity; and therefore the duty of the grand jury must be founded in the oath administered to them, which is as strict as the oath administered to the petit jury: and to say the truth, the verdict of the petit jury takes credit from the verdict of the grand jury; which is not only the reason of the difference in the names of the two juries, but is likewise the reason why an attaint for a false verdict doth not lie against a petit jury.

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jury knew by Colledge's trial, and by Wil kinson's depositions before the king, that the evidence of all the witnesses produced, except what were to the paper, was questioned, but even that was afterwards quitted by the court, when it would not be swallowed by the grand jury: for afterwards the court told them, that if they of their own knowledge knew any thing against the witnesses, they might consider of it, but not of what they were credibly informed by others. And, besides the credibility of the witnesses, the possibility or probability of the thing sworn is to be considered by the grand jury; an impossible thing they ought not to believe, though sworn to by never so many credible witnesses, and a very improbable thing they cannot positively on their oaths swear they believe.

The oath of the grand jury, is, To present 'the truth, the whole truth, and nothing but the truth: The oath of the petit jury is, well and truly to try, and true deliverance make, between the king and the prisoner at 'the bar, &c.' which signifies the same thing as to present the truth, &c. It is true, some reasons have been offered, which, if considered, 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; so self: but that can be no reason why probabilities should satisfy the jury, because it doth not answer the design of the law, which will have a man convicted by the positive oaths of two juries, consisting of more than twenty four, in all indictments.

Next, why is a grand jury composed of more substantial and understanding men than a petit jury, if their business be mere formality, or a matter of less weight than the business of a petit jury? In the last place, why less evidence is required to convict a man in his absence, than is required to convict him if present? It is far from an argument, that less evidence is required to convict one if absent, than if present, that it seems to me that more evidence should be required to do it. Men may, and often do make very fair stories in the absence of a person accused, that when present, he easily answers; and there being no positive law for the direction of a grand jury in that matter, a grand juryman is excusable, nay, it is his duty to give a verdict according to the plain understanding of the words of his oath, which is to present the truth, as far as he is convinced of it; and that truth must be found according to his knowledge, or as it is represented to him by witnesses.

they were told in the charge given them. It is true, if they were ignorant in the law, and the court in their directions misled them, as if the court should tell them stealing a horse is high-treason, and the grand jury find it ac cordingly, it is excusable in the grand jury, though punishable in the court. But wrong directions by the court, in finding a fact where there is no evidence, do not excuse the jury.

Now, to examine the matter in hand by these rules, could any person who knew my lord Shaftesbury, or that had heard of, or believed his character to be what it was, believe that it was possible for him to discourse with the witnesses at the rate they swore, to some of them at the first, to others of them the second time he saw them; to discourse of matters of policy with Booth at one time, and afterwards with Haynes, and afterwards with Macnamara, fellows of so little sense, that he would have been ashamed to have entertained them in the meanest office about him; and yet, as they pretended, he makes them his privadoes in the secret, of not so much what he would have had them, but of what he intended himself to do?

Who could believe any thing Turbervile, Smith, or Haynes should say, where there was so much of their falshood, and of their designs to swear falsly, proved against them in Colledge's trial; Or of Ivey, and the three Macnamarra's after that trial, who though they were not produced at it, because the king's counsel by Colledge's notes saw he was able to falsify them, yet some witnesses in that trial proved their design of swearing falsly?

And as for the witnesses, they must be persons of credit; and all persons are supposed to be so, unless the grand jury know the contrary, or have been so credibly informed. It is true, a grand jury ought not to believe coffee-house stories, or light stories; but common fame by credible persons, which is Vor Populi, ought to prejudice them against a witness, so as to disbelieve him and it is no answer to say, as 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, after Col present to defend the credit of his witnesses: ledge's trial, and after what Wilkinson had testhough the fact in that case was not true, fortified to the king and council, though not the 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 any

trial.

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 the matter tried before him and others); but a grand-jury may take notice of any thing they know or believe. The passages at Colledge's trial were pretty notorious, being authentically published by Fra. North, and the examination of Wilkinson by as authentic a paper.

It was unaccountable, that the witnesses concealed what they heard the earl speak so long, of which none of them pretended to give any reason; nor was it any excuse to those who signed a petition to the city, in which they suggested they were tempted to swear against their consciences, to say they knew not what was in the petition: He that sets his hand to a thing as if he assented to it, but doth not, is a man of falshood. Suppose one sets his hand to a bond, said to be sealed and delivered, not having seen it sealed and delivered, is not he guilty of little less than forgery? But admitting those witnesses had sworn truth, yet the jury ought not to have found the bill; for they ought to find the bill true according to all the material circumstances of it, as well as the substance of ait, which was High-treason. One material cirpicumstance of it was, that it was said to be High-treason within the statute of Charles 2. And that made another circumstance of the indictment material, which was the time when that treason was committed; because by that statute the prosecutions of treason on that statute ought to be within six months after it is committed, and the indictment ought to be within three months after the prosecution; and he being imprisoned in July, and the bill suggesting that the supposed treason was committed the 18th of March before, and divers other times, both before and after, which might be interpreted to have been after the prisoner's commitment; had the jury found the bill as laid, they had found the treason to have been committed, not only within the time the prosecution by that statute ought to be, but also within the time the indictment ought to have been preferred; whereas in truth the earl had been imprisoned above three months before the indictment preferred, and there was no evidence of any treason committed by him after his imprisonment, and therefore the finding the bill as laid had been injurious, to bring a man in question for his life on that statute, whereas by law he ought not to have been.

For it was resolved in Colledge's case, that the prosecution for treason on that statute qught to be within six months, and the indictment within three months, though the court

And that this indictment was on that statute, was expressly said to the grand jury, and upon good reason; for the court in their charge said, that the intention of levying war, or designing to imprison the king, was not treason, till the statute of Charles the Second; though in the lord Russel's trial it was held to be treason by the statute of Edw. S, and therefore the time of the treason committed was material to be found by the jury.

As for the writing found in the earl's study, it was no manner of evidence of treason, admitting what the witnesses swore as to the finding it to be true; because it was not proved that it was prosecuted or composed by the earl of Shaftesbury, or by his order, and that piece of evidence was in that particular a mere original.

In Fitzharris's case, it was proved the libel was composed by his direction; Colonel Sidney's book was proved to be like his hand; it was pretended that Colledge said he was the author of the Raree-Shew, and no example of this evidence was ever made use of before.

Neither was it evidence of treason as to the matter, for there was not one word against the present king, but his successor, if he should be such a person.

It is true, one of the king's counsel said that one passage in it was that they would join to destroy the mercenary forces about London, and thence inferred it was downright levying war against the king and his guards; whereas there is not any such word or thing in the paper as he pretended to cite: and if it had been in the paper, it would have been but evidence of a treason within the statute of the late king. And then the time of writing it ought to have appeared; and if that had been cleared, yet for the above reasons it was no evidence: and the grand-jury, though some of them afterwards smarted for it upon other pretences, did like honest understanding gentlemen; and had they done otherwise, to avoid the ignominy of being called, though in truth it was an honour to be, an Ignoramus jury, they had justly deserved the reproach which since have lighted on other juries, such as Mr. Cornish's, and the like. And having spoken of this Ignoramus jury, for which, two of them, if not more, were after. wards upon other pretences severely handled; I think fit to say something of the sufferings of one, for being in a preceding Ignoramus jury, because it was a mere novelty; and that was Mr. Wilmer.

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 Editions appears to have been extracted from " The CASE of the Earl of AR"GYLE: or, an exact and full Account of "his Trial, Escape, and Sentence. As "likewise a Relation of several Matters of "Fact, for better clearing of the said Case:" contained in a volume, entitled, "State, Tracts, being a further Collection, &c. from the year 1660 to 1689," published in London in 1692; which Case I conjecture was written by sir James Stewart (See 4 Laing's History of Scotland, 119, edition of 1804). The Introduction to this "Case" is as follows:

« Sir;

was earnest to know, was at first, I thought. so plain, that I needed not, and grew after. wards so exceedingly mysterious, that I could not, for some time, give you so perfect an account of it, as I wished: but this time being still no less proper, the exactress of my narrative will, I hope, excuse all delays. "The design against him being now so clear, and the grounds founded on so slender, that to satisfy all unbiassed persons of his integrity, there needs no more, but barely to represent matter of fact; I should think shame to spend so many words, either on arguments, or relation, were it not lest to strangers some mystery might still be sus pected to remain concealed: and therefore to make plain what they can hardly believe, though we clearly see it.

EDINBURGH, May 30, 1682. The Case of the late earl of Argyle, which," even before the process led against him, you

He was the son of Archibald marquis of Argyle, who at Scone, in the year 1650, placed the crown upon the head of Charles the 2nd, and who, as Laing expresses it, had reason afterwards to complain that his own head was the ungenerous forfeit. [See the proceedings against him, A. D. 1661, vol. 5, p. 1369, of this Collection; in the Note to which, p. 1372, reference is by an error of the press made to p. 347 instead of p. 437, of the 3rd volume of Laing's History of Scotland.]

At his royal highness's arrival in Scotland, the earl was one of the first to wait upon him,

for the service that was expected from the other parts of the test. There was a hot debate upoù the imposing it on all that might elect or be elected members of parliament: it was said, that was the most essential of all the privileges of the subjects, therefore they ought not to be limited in it. The bishops were carnest for this, which they thought would secure them for ever from a Presbyterian parliament. It was carried in the vote: And that made many of the court more zealous than ever for carrying through the act. Some 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 had 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 happen 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 of our last parliament, the world believed, the earl was as much in his highness's favour, as any intrusted in his majesty's affairs in this kingdom. When it was resolved, and his majesty moved to call the parliament, the earl was in the country, and at the opening of it, he appeared as forward as any in his majesty's, whole parliament had ever read it: None of the bishops had, as appeared afterwards. For these last 30 years the only confession of faith that was read in Scotland, was that which the assembly of divines at Westminster, A. D. 1648, had set out, which the Scottish Kirk had set up instead of the old one: And the bishops had left it in possession, though the authority that enacted it is annulled. So here a book was made the matter of an oath, (for they were to swear that they would adhere to the protestant religion, as it was declared in the confession of faith as it was enacted in the year 1567,) that contained a large system of religion, that was not so much as known to those that enacted it: Yet the bishops went all into it. Dalrymple, who had read it, thought there were propositions in it, which being considered better of would make the test be let fall: For in it the repressing of tyranny is reckoned a duty incumbent on good subjects. And the confestion being made after the Scots had deposed the queen regent, and it being ratified in parliament after they had forced their queen Mary to resign, it was very plain what they who made and enacted this confession meant by the repressing of tyranny. But the duke and his party set it on so earnestly, that upon one day's debate the act passed, though only by a majority of seven voices. There was some appearance of security to the protestant religion by this test: But the prerogative of the crown in ecclesiastical matters had been raised so high by duke Lauderdale's act, that the obliging all people to maintain that with the rest of the prerogative, might have made way for every thing. All ecclesiastical courts subsisted now by this test only upon the king's permission, and at his discretion.

"The parliament of Scotland was dissolved soon after this act passed: And Hyde was sent down from the king to the duke immediately upon it. It was given out, that he was sent by the king to press the duke upon this victory to shew, that what ill usage could not extort from him he would now do of his own accord, and return to the church of England. I was assured, that my lord Halifax had prevailed with the king to write to him to that purpose: The letter was writ, but was not sent: But lord Hyde had it in charge to manage it as a message. How much of this is true I cannot tell: One thing is certain, if it was true it had no effect.

"As soon as the test with the confession of faith was printed, there was a universal murmuring among the best of the clergy. Many were against the swearing to a system made up ef so many propositions, of which some were

and his highness's service, but it had not sat many days when a change was noticed in his highness, and the earl observed to decline in his highness's favour.

"In the beginning of the parliament, the earl was appointed one of the Lords of the Articles, to prepare matters for the parliament, and named by his highness to be one of at least doubtful; though it was found to be much more moderate in many points, than could have been well expected considering the heat of that time. There was a limitation put on the duty of subjects in the article, by which they were required not to resist any whom God had placed in authority in these words, while 'they pass not the bounds of their office :' And in another they condemn those who resist the supreme power doing that thing which appertaineth to his charge. These were propositions now of a very ill sound: They were also highly offended at the great extent of the prerogative in the point of supremacy, by which the king turned bishops out at pleasure by a letter. It was hard enough to bear this: But it seemed intolerable to oblige men by oath to maintain it. The king might by a proclamation put down even episcopacy itself, as the law then stood: And by this oath they would be bound to maintain that. All meeting in synods, or for ordinations, were hereafter to be held only by permission: So that all the visible ways of preserving religion de pended now wholly on the king's good pleasure; And they saw that this would be a very feeble tenure under a popish king. The being tied to all this by oath seemed very hard. And when a church was yet in so imperfect a state without liturgy or discipline, it was a strange imposition to make people swear never to endeavour any alteration either in church or state. Some or all of these exceptions did run so generally through the whole body of the clergy, that they were all shaking in their resolutions. To prevent this, an explanation was drawn by bishop Paterson, and passed in council. It was by it declared, that it was not meant that those who took the test should be bound to every article in the confession of faith, but only in so far as it contained the doctrine upon which the protestant churches had settled the reformation: And that the test did not cut off those rights, which were acknowledged to have been in the primitive church for 300 years after Christ: And an assurance was given, that the king intended never to change the government of the church. By this it was pretended that the greatest difficulties were now removed. But to this it was answered, that they were to swear they took the oath in the literal sense of the words. So that, if this explanation was not conform to the literal sense, they would be perjured who took it upon this explanation. The imposers of an oath could only declare the sense of it: But that could not be done by any other, much less by a lower authority, such as the privy council's was confessed to be. Yet

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