283. Proceedings at the Old-Bailey, upon a Bill of Indictment for High Treason, against ANTHONY Earl of SHAFTESBURY, 33 CHARLES II. November 24, A. D. 1681. The Grand Jury: L. C. J. (Pemberton.) Gentlemen of the Jury, we are all met here, in one of the most solemn assemblies of this nation; it is upon the execution of justice upon such as shall be found offenders, and Guilty of the breach of the king's laws. SIR Samuel Barnardiston, John Morden, Hall. The Oath. You shall diligently enquire, and true 'presentments make of all such matters, articles and things, as shall be given you in charge, as of all other matters and things as shall come to your own knowledge, touching this present 'service; the king's counsel, your fellows and your own, you shall keep secret; you shall present no person for hatred or malice; 'neither shall you leave any one unpresented, for fear, favour or affection, for lucre or gain, or any hopes thereof; but in all things you 'shall present the truth, the whole truth and nothing but the truth, to the best of your knowledge. So help you GOD.' "A bill of indictment was presented to the grand jury against lord Shaftesbury. The jury was composed of many of the chief citizens of London. The witnesses were examined in open court, contrary to the usual custom: The witnesses swore many incredible things against him, mixed with other things that looked very like his extravagant way of talking. The draught of the association was also brought as a proof of his treason, though it was not laid in the indictment, and was proved only by one witness. The jury returned Ignoramus' upon the bill. Upon this the court did declaim with open mouth against these juries; in which they said the spirit of the party did appear, since men even upon oath shewed they were resolved to find bills or Ignoramus,' as they pleased, without regarding the evidence. And upon this a new set of addresses went round the kingdom, in which they expressed their abhorrence of that association found in lord Shaftsbury's cabinet; and complained, that justice was denied the king; which were set off with all the fulsom rhetoric that the penners could varnish them with. It was upon this occasion said, that the grand jury ought to find bills even upon dubious evidence, much more when plain treason was sworn; since all they did in finding a bill was only to bring the person to his trial, and then the falshood of the witnesses was to be detected. But in defence of these Ignoramus' mries it was said, that by the express words of This commission by which we sit, and all offences whatsoever, against the laws of the land, treasons, misprisions of treasons, felonies, and all other crimes and offences against the king and his government, such as are vulgarly called Pleas of the Crown; they all fall under, our cognizance and your enquiry in a general manner. But I must tell you, there is a particular occasion for this commission at this time. His majesty having information of some evil traiterous designs against his person and government, has thought fit to direct a due examination of them, and that the persons may be brought to condign punishment who shall be found Guilty thereof. You must not therefore expect any general and formal charge from me: Truly, I came hither this morning, with an apprehension that you had your directions given you before, by the their oath they were bound to make true presentments of what should appear true to them: And therefore, if they did not believe the evidence, they could not find a bill, though sworn to. A book was writ to support that, in which both law and reason were brought to confirm it: It past as writ by lord Essex, though I understood afterwards it was writ by Somers, who was much esteemed and often visited by lord Essex, and who trusted himself to him, and writ the best papers that came out in that time. It is true, by the practice that had generally prevailed, grand juries were easy in finding bills upon a slight and probable evidence. But it was made out, that the words of their oath, and the reason of the law seemed to oblige them to make no presentments but such as they believed to be true. On the other hand a private ill opinion of a witness, or the looking on a matter as incredible, did not seem to warrant the return of an Ignoramus:' That seemed to belong to the jury of life and death. The chief complaint that was made in the addresses was grounded on their not finding the bill on the account of the draught of the association: And this was in many respects very unreason. able. For as that was not laid in the bill, so there was but one witness to prove it; nor did the matter of the paper rise up to the charge of high treason. And now Dugdale and Turbervile, who had been the witnesses upon whose evidence lord Stafford was condemned, being within a year detected, or at least sus Recorder; for it is our usual way, not to come until the juries are sworn in this place, and their directions given them; but since I find it otherwise, I take it to be my duty to say something to you, but shall not go about now to make any such formal charge, as in commissions of this nature is wont to be done; nor to give an account of all offences that fall pected of this villany, I could not but reflect on what he said to me, that he was confident I should see within a year that the witnesses would be found to be rogues." 1 Burnet, 508. Colledge's blood was too mean a sacrifice to appease the offending ghosts of the martyred Roman saints, and was but an inlet to spill nobler blood; therefore upon the 51st of August he was executed; and upon the 24th of November following, 1681, the earl of Shaftesbury had a bill of High-Treason at the sessions of the Old Bailey, London, preferred against him. under your enquiry of a Grand Inquest, impannelled by virtue of such a commission at large; nor must you expect I should acquaint you with all the crimes that you may enquire of as such an Inquest. I shall content myself so far, as on the sudden I can recollect my thoughts, to acquaint you with the nature of those bills; with the hired a ship called the Abigail, and victualled her for the master and ten men, and such other passengers as he should take in. "In this number, one Mr. John Booth, desired that he and his family might accompany the captain to Carolina, which was agreed to; but the captain being under several disappointments, and the charges of the ship's lying in the river four months, unsupportable, he was arrested and thrown into the Compter; from whence he removed himself to the King'sbench. The captain's necessities were equal, or more than those of the Irish evidence; but the captain (at least as he supposed) had no need of a pardon, for any thing designed against the king and government, as the Irish evidence had; so the first attempt upon him was to hire him to give evidence against my lord of Shaftes If Empson and Dudley were so zealous to fill Henry the Seventh's coffers, by straining the penal laws to utmost rigour, as the vogue went, Graham, Baynes, and Burton, were as zealous to pack juries, and procure evidence for carrying on this black design. "Upon the 20th of April 1679 the king after he had sent the duke into Holland, dissolved his old privy-council, and chose a new one, whereof the earl of Shaftesbury was president; and in parliament declared the ill effects he had found of single councils and cabals, and there-bury. fore had made choice of this council; which, next to the advice of his great council of parliament (which he would often consult in all his weighty and important affairs) he would be advised by this privy-council; and to take away all jealousy that he was influenced by Popish councils, he had sent his Brother beyond sea. "But now, quanto mutatus! No more parliaments so long as this king lives. The council, whose advice, next the parliament, he would take, is now dissolved, and the president's life is sought for; the duke of late sent away, that he might not influence the king's councils, is now returned, and governs all, and made high commissioner of Scotland, where, at this time, he is contriving the destruction of the noble earl of Argyle, whilst his brother is doing that of my lord of Shaftesbury, and both act their parts under the veil of sacred justice. But how to bring the earl of Shaftesbury upon the stage, was matter of great enquiry; other evidence besides Irish, and those Colledge had so baffled, could scarce be found, and this evidence 'twas feared, would no more prevail upon a London Grand Jury, than before it did when the bill was preferred against Colledge. 56 Captain Henry Wilkinson was a Yorkshire gentleman who having served king Charles I. in his wars, and been very instrumental in the restoration of king Charles II. being fallen into decay (a fate usually attending the cavaliers who served either of those kings) was for his sufferings, integrity and honesty, preferred by the earls of Craven and Shaftesbury to be Governor of Carolina, and one of his sons to be Surveyor General of it, and another a register. Captain Wilkinson made use of the little stock he had left, and such credit, as he could procure, to fit himself upon this account, and "Upon the 8th of October, Baynes made his first attack upon the captain, and told him that he had been lately with Mr. Graham, who had a great interest with my lord H. and that the captain could not but know much of my lord Shaftesbury's designs, and that he had now a desired opportunity to discover them; and urged the captain not to deny the proffer, and that he need not fear his getting a pardon; but the captain was constant that he knew nothing of any such design. By this time Booth was a prisoner in the King's-bench, as well as the captain; and upon the 11th, Booth attacked the captain, and told him he might have 500l. per annum, or 10,000l. if he would discover what he knew of my lord Shaftesbury's design against the king, and that the captain should appear at court, and have assurance of it from persons of honour; but this wrought not upon the captain neither. Upon the 13th Baynes, Booth, and Graham renewed the promises Baynes and Booth had made, and that he should have the king's promise for the same, and his royal word for a reward for his sufferings; and that Graham was sent by some of the council to bring the captain to the king, and that he had an order for it. But all would not do; for the captain was resolved not to go to Whitehall, if he could help it. Upon the 14th Booth told the captain, that Mr. Wilson my lord Shaftesbury's secretary, (who was a prisoner in the Gate-house) had sent to the council, that he would come, and discover all passes, and things of that nature, they may occasion disorders and troubles in a state or a kingdom; but I must tell you, treason strikes at the root and life of all: It tends to destroy the very government, both king and subjects, his wife was as much tempted to have it so, as the captain was; so the captain's only advancement was to be remanded to prison. enquiry whereof, you shall at present, upon | man: Other crimes, as felonies, riots, tresthis occasion, be troubled, and your duty concerning this enquiry. I hinted to you at first that they are matters of High Treason, which is a crime of the greatest and highest nature of any crime that can be committed against he knew, and therefore he urged the captain to have the honour of being the first discoverer, and that to the former promises the captain should have 500l. per annum settled on hin in Ireland by the duke of York: But all to no purpose. "However, it was resolved that my lord Shaftesbury should be prosecuted, and so upon the 24th of November a bill of High-Treason "Upon the 15th, Booth and Baynes, attacked was preferred against him to the great inquest the captain again; The captain asked Baynes at the sessions house in the Old Bailey and why he was so urgent for his testimony; Baynes proved a true prophet, though Booth Baynes answered, That as yet they had none swore to the captain's command of fifty men, but Irish evidence, which would not be be- to be a guard to my lord; for the jury neither lieved; but if the captain came to it he was believed him nor the evidence so baffled at Colnot blemished in his credit; and then Baynes ledge's trial, nor the Irish evidence added to told him, if he would not go, he had a Ha-that, and so returned an Ignoramus' upon it. beas Corpus from my lord chief justice Pemberton, to carry him to Whitehall. "In the afternoon the captain was carried by his Habeas Corpus to Whitehall, and examined in the secretary's office by my lord Conway, and secretary Jenkins; and in his examination, in comes the king into the office, as before he had done into the dutchess of Portsmouth's chamber, when my lord H. came to kiss her hand; and there the king told the captain he had served his father and him faithfully, and hoped he would not now decline his obedience; to which the captain answered he never deserved to be suspected. Then the king told him he had not the opportunity to serve his friends, but hoped he might: Then the king examined him what he knew of my lord Shaftesbury having a design aganist his person; but the captain upon his oath denied that he knew any thing, so the king left him to the farther examination of secretary Jenkins. "Suetonius, in the life of Tiberius, says, he never could have made such ravages upon the Roman empire, and exercised such cruelties, if he had not been backed by an officious and flattering senate, which carried the face of justice in it: And though it be evident, that for near eighty years, these three kings of the Scottish race had been endeavouring to establish an arbitrary and tyrannical government over this nation, yet except king James the first, who if his necessities had not forced him, would have never had a parliament after the first; and who by his own authority created so many monopolies, and benevolences, and in the parliament of the 12th and 18th years of his reign, without any colour of justice, imprisoned so many worthy gentlemen, without the benefit of Habeas Corpus's, for their debates in parliament; yet these other two pretended to raise their tyrannies under the form of justice, and therefore Charles the First, after he for 15 "But this business did not stay here; for years together, had not only exceeded his fathe captain was carried into another room, where ther in granting monopolies, and raising money were present the king, my lord chancellor, by loans, benevolences, coat and conduct money; the lord chief justice Pemberton, and several but also in taking the customs without grant of other of the nobility, with Graham, Baynes parliament, and such as were never granted and Booth; where my lord chancellor was by parliament; and in further raising ship very sharp upon the captain, and put several money, and imprisoning the members of parquestions to him, which he could not answer,liament without benefit of their Habeas Corand told the captain, there were two sorts of advancements, and that the captain was like to come to his trial before the lord Shaftesbury. "The business was, Booth had sworn that the captain had a commission from my lord Shaftesbury, for a troop of fifty men, to be my lord's guards against the king, and that Booth was listed in it: This Booth had sworn, but was so unfortunate in it, as to swear this was when the parliament was at Oxford, at which time the captain was making his preparations for his intended government of Carolina: but whether the king believed the captain or Booth, is unknown; but it stopped here, and the captain was no higher advanced upon Booth's oath, nor could be prevailed upon to be a witness against my lord Shaftesbury, though pus's; yet he thought best to do it by such judges as he should make: So this king, in the executions of Fitzharris and Colledge, would have the colour of justice by a form of law, for which there was no law. "But as the knights of Malta could make knights of their order for eight pence a piece, yet could not make a soldier or seaman: So these kings, though they could make what judges they pleased, to do their business, yet could not make a grand jury, from whom the judges in all criminal cases between the king and subject must take their measures: These grand-juries in London are returned by the sheriffs, and the sheriffs are chosen by the livery. "This difficulty, after my lord Shaftesbury's and the lives, interests and liberties of all, and therefore has always been looked upon as a crime of the most notorious nature that can be whatsoever, and accordingly punishments have been appointed for it of the highest and severest extremity. There was at common law great Case, put the court to their trumps, and at present a stop to their proceedings: The assistance of the duke of York was necessary, but at this time he was busy in Scotland, as before said." 2 Roger Coke's Detection, 308. An encomiastic account of Shaftesbury printed in the Harleian Miscellany, vol. 5. p. 368, under the title of "A brief account of many "memorable passages of the life and death of "the earl of Shaftsbury," &c. concludes thus: 6 "I shall give one memorable passage said to have passed between the earl and some of the popish lords, soon after his commitment; the story is this: meeting accidentally with one of the popish lords, he was asked by him, What his lordship did there, and that he little thought to have his good company?' to which the earl of Shaftsbury replied, That he had lately been sick of an ague, and was come 'there to take some Jesuits powder.' It was said, during the whole time of his lordship being in the Tower, he remained very cheerful, beyond what could have been expected from a person labouring under such extreme pains and diseases. During the earl's imprisonment, many made it their business to detract and vilify him; and it was their mode to drink his health at an hempen string, and call him Tory Tapskin,' (alluding to the tap which had been applied upon the breaking out of an ulcer), and king of Poland!' (It was a stand ing joke among the opponents of Shaftsbury, that he hoped to be chosen king of Poland at the vacancy, when John Sobieski was elected.) After the earl's trial, it is reported he arrested one Baines, one of the witnesses, for a conspiracy, also several others; but, being not suffered to have his trial against them in London and Middlesex, he remitted the same till another opportunity." ་ "Shaftesbury, afraid of a trial, offered, if the king pleased, to go and live in Carolina. The Lord Chamberlain was for the king's hearkening to him." Macpherson's Life of king James the Second, written by himself. See the Introduction to the Case of lord Clarendon, vol. 6, p. 291, of this Collection. North is very acrimonious against Shaftesbury. Dryden, too, is very severe upon him, though with some qualification: "A name to all succeeding ages curs'd; variety of opinions concerning treason, and Refuse his age the needful hours of rest-è̟ Since in another's guilt they find their own! Unbrib'd, unsought, the wretched to redress, . * song. “A martial hero, first, with early care, Blown, like a pigmy by the winds, to war; A beardless chief, a rebel ere a man ; So young his hatred to bis prince began. Next this, (how wildly will ambition steer!) A vermin, wriggling in th' usurper's ear; Bart'ring his venal wit for sums of gold, He cast himself into the saint-like mould; Groan'd, sigh'd, and pray'd, while godliness was gain, The loudest bagpipe of the squeaking train. for I will give you no more of that statute, nor concerning the sense thereof, than may be for your purpose now, I say, by that law, to compass, imagine, or intend the death of the king, and to declare it by overt-act, or to levy war Whoring to scandal gives too large a scope : Pow'r was his aim; but thrown from that pretence, The wretch turn'd loyal in his own defence, writes: "I am quite glad I have little to do with Shaftesbury; for as to making him a real patriot, or friend to our ideas of liberty, it is impossible, at least in my opinion. On the other hand, he is very far from being the devil he is described. Indeed, he seems to have been strictly a man of honour, if that praise can be given to one destitute of public virtue, and who did not consider catholics as fellow creatures; a feeling very common in those times. Locke was probably caught by his splendid qualities, his courage, his openness, his party zeal, his eloquence, his fair dealing with his friends, and his superiority to vulgar corruption. Locke's partiality might make him, on the other hand, blind to the indifference with which he (Shaftesbury), espoused either monarchical, arbitrary, or republican principles, as best suited his ambition; but could it make him blind to the relentless cruelty with which he persecuted the papists in the affair of the popish plot, merely, as it should seem, because it suited the purposes of the party with which he was then engaged? -You know that some of the imputations against him are certainly false: the shutting up the Exchequer, for instance. But the two great blots of sitting on the Regicides, and his conduct in the popish plot, can never be wiped off. The second Dutch war is a bad business, in which he engaged heartily, and in which (notwithstanding all his apologists say,) he would have persevered, if he had not found the king was cheating him." other things in that statute mentioned) to be High-Treason: And this hath obtained for law among us ever since; and by that standing law, nothing is to be accounted treason, but what is therein particularly declared so; but upon many emergent occasions, there hath been several other laws, as the case bath required now and then, for to declare and bring other particular crimes within the compass of treasons: So there was a law made in queen Elizabeth's reign for enacting several crimes to be treasons, during her life; which was made upon the occasion of the inveterate malice of the Roman Catholics against her and her government; and so there hath been in other king's reigns upon other occasions. Amongst the rest, it was thought fit, by the parliament assembled here, in the 13th year of this present king, to make a particular law for the enacting and declaring several crimes to be treasons, during this king's life; they had great grounds, and too much occasion for it, and so they express it in the preamble of that law. The wounds which the then late treasons had made, that had so far obtained in this kingdom, were then still bleeding, ripe and scarcely closed; many traiterous positions, and many seditious principles were spread, and had obtained and gained footing among the people of this kingdom; and the parliament had reason to believe that where they had been so maliciously bent against the king and his family, and had taken off his father, and maintained so long and dangerous a war against him, almost to the utter destruction and extirpation of him, and all his good subjects, and of his, and all our interests, properties and liberties, and had almost destroyed a flourishing kingdom; here they had reason, I say, to be careful, to prevent the like mischiefs for the future; therefore, gentlemen, they did think fit to make a new law for this purpose; and whereas the law before was, that it should be treason, to compass, imagine, or intend the death of the king, so as it were declared by overt-act; now they thought it would be dangerous to stay till an overt-act should declare the intention: for when they had seen such malicious and evil designs against the king and supreme authority; and that they had prevailed so far, as to murder one king and banish another; and had gone a great way in the destruction of the government of this kingdom, absolutely to root it quite out; they had reason then, as much as they could, to prevent the designs before they should grow full ripe, and vent themselves in overt-acts; therefore, it was enacted by that statute, made in the 13th year of this king's reign, "That if any one should compass, imagine, or intend the death of the king or his destruction, or any bodily harm that might tend to his death, or destruction, or any |