should be so unfortunate as to be thought otherwise, yet we must insist, that that point which the queen's counsel insist on, to wit, that the fact attempted to be proved on the prisoner is lerying a war, is not yet so settled a point, but may deserve a further and deliberate consideration. I am sensible there is one case of the London Apprentices, which was in king Charles the second's time; there was a resolution, that that fact was levying of war, and so high treason; but I cannot but observe one thing that my lord chief baron Hale, who can never be spoke of but with the greatest esteem that may be, in the very case mentioned, that he differs with the other judges, and that he was of opinion that that fact was not levying war, and he grounded his opinion upon that which we think was great reason, and that is the statute primo Mariæ 1, cap. 12. It is not printed at large in Keble, but it is in Rastall; and on view of that act, his opinion is well justified, for that act of parliament shews, that all the several facts for which the Apprentices, in king Charles the 2nd's time, were indicted, as reported in Keyling's Reports, all the several circumstances, that are in that case, were not looked upon then to be high-treason. But even in that queen's time, who had just reason to be very apprehensive of tumults and wars, is this statute made, to make the actors in such tumults guilty of felony and if such tumults did amount to levying war, and was high-treason, it is strange, that the parliament should make so unnecessary a statute as this, primo Mariæ. And before queen Elizabeth's time, no one can give an instance, that a tumult of this nature was looked upon, or adjudged as levying of war. That it was not so before the statute of 13 Eliz. is plain, because that statute seems to be made on purpose to shew it was not a capital offence, and that such tumults had not been adjudged levying war, and so not treason, before that statate of the 13th of queen Elizabeth; and for that very purpose, and to prevent such riots and tumults, was that very statute made: and the provision made by this statute of queen Elizabeth, which was a temporary law, was the reason of the resolution in the earl of Essex's case, and that statute made his insurrection be adjudged levying war and high-treason, and shews that it was necessary to have another act besides the 25 Edw. 3, to make such tumults and riots treason.

The case in Keyling's Reports, of Messenger and the others, supposing it to be law, will not warrant the adjudging this case to be treason, in regard there appears to be many circumstances in those cases in Keyling's Reports, which are not proved in this case now before your lordship. But I must needs say, the prisoner at the bar has had so little care taken of him, that I had no notice of this till 8 o'clock last night, and have not had time to look into the cases, and to be able to discharge my duty to my client as I ought; but I am sure, the gentlemen that appear for the queen have so much candour, that they will not de

sire any thing in this man's case, but what shall be a precedent in all future cases; therefore I shall state the cases relied upon for the authority of the resolution in Keyling's Reports, as well as I can, upon this short notice. The first case is in 2 Anderson, fol. 5, it was the case of the Apprentices of London and Southwark: they assemble together upon a formed design, concerted and contrived amongst them before, to break open the prisons, to kill the lord mayor, to burn his house, and to seize some arms in houses near the Tower of London. They had a trumpet before them, and a flag displayed with them, and that was adjudged to be levying war, within the 13 Eliz. I must observe, that this was an opinion not given in court, nor upon a special verdict, but given privately, and not otherwise; so that we think the authority in that case will not weigh very much, though all the subsequent cases in Popham's Reports, and Keyling's Reports, are built on the autho rity of this case, and yet the judges in this case, in Anderson's Reports, rely for that opinion on the statute of 13 Eliz. and that statute was on very great reason made to prevent the ill de-. signs then on foot by the Roman Catholics. There were many Roman Catholics then began openly to shew their aversion to the Reformation in general, and it was then, for the preservation of that good queen and her government, thought necessary to enlarge the 25th of Edw. 3, and also to make the design to levy war high treason during her life only, so that that case in 2 Anderson, was not resolved on the 25th of Edw. 3, but on the 13th of Elizabeth.

There is another case, which was the earl of Essex's, and that was relied on as an authority in Messenger's case in Keyling's Reports; but that differs from this: there was a design of the earl to have assistance from the city, and by force to remove his enemies from the queen, and with armed force to go to the queen's palace, and to her person, and an actual rising and appearing in arms accordingly. This was conspiring the death of the queen, and levying war in the most notorious manner; and this was one of the cases relied on in Messenger's case: but here, in the case now before your lordship, there is no one circumstance resembling the earl of Essex's case. There is one resolution in that case applicable to ours, and that is the resolution of the judges in the earl of Essex's case, that where people by accident came among, and were in company with the earl of Essex and his adherents, and afterwards departed upon proclamation made, they should not be guilty of the treason. In the case before your lordship, it appears, the prisoner came there by accident; and we have shewn by witnesses, he quickly left these disorderly people.

Another case relied on in Keyling's Reports, is, that in Croke Car. the case of the people that beset Lambeth-house; that was a most unjustifiable act, done in despite and in the utmost contempt of the crown and regal dignity,

and with an armed force with drums, and an armed multitude; and the resolution in that case, will be no warrant for the adjudging this case of the prisoner treason, supposing we should not be so happy as to have our witnesses believed, that we were brought in by force; for, in our case, here are no drums, nothing resembling war, but only a tumultuous rabble. The case of Bradshaw and Burton, in Popham's Reports, 122, is wholly built upon, and absolutely depends on the authority of the case in 2 Anderson; and yet in the case of Bradshaw and Burton, there was a previous agreement, to go from house to house, and to pull down all inclosures. It is true, that the putting this agreement in execution accordingly, is resolved to be high treason. We think, that that agreement and rising according to it, is more than appears in this case of the prisoner at the bar; and besides, it is a resolution in the 39th year of queen Elizabeth, when the statute of the 13 Eliz. was in force, and depends on the authority of the case I have mentioned in 2 Anderson's Reports; and in our case there is no proof that we knew any thing of this tumultuous meeting, but that by accident we fell among them. We hope, that if the jury shall think there is any colour to believe, that we have not answered by our witnesses (whose credit is not questioned) the evidence produced against the prisoner, that this point may be reserved to us; for we apprehend, that it is not settled that this case of Messenger, and the others in Keyling's Reports, is law: but supposing it should be law, yet we hope it will not affect us; for it goes upon a previous agreement, and all there were partakers of it, and willing, and outrageous actors in it, and knew of the design before executed: and there was this circumstance, that when the captain of the guards came to appease them, they asked if it was the duke of York; and when they apprehended it was the duke of York, they called out, That they cared not for the guards, and that they would come and pull down Whitehall: so that, by these declarations, it is plain, the king and his authority were aimed at. But in this case of ours, there is nothing of resisting authority charged on this man, but that he came by accident, and acted only by constraint and force, when unhappily amongst a disorderly multitude: therefore, my lord, on the whole matter, in regard we do, with submission, think, that the law is not settled by the resolutions in Keyling's Reports, but that a review thereof may be admitted, and in regard we think our case is far different, and a much better than any of the former cases, which have been looked upon or esteemed as levying war, we hope, that in case the jury should think we are guilty of any criminal act, that whether such acts be levying of war, or no, shall receive a further, and more deliberate détermination. I shall therefore take up no more of your lordship's time.

Mr. Darnell. My lord, the first time I heard from the prisoner relating to this cause, was

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last night late; and must own my opinion to be, that a longer time is necessary to encounter the authority of the Report of my lord Keyling. But, my lord, without disputing the authority of that book, we must say, this case comes far short of that resolution; for there was a plain hostility, a captain with a sword drawn, colours, two meetings to consult, and a resolution taken, a resisting and wounding the constable, and striking the officer of the guards, and their intention to pull down bawdy houses, which might be any house they thought fit to call so. As for the case of Oxfordshire, it is plain there was an arming themselves, they had put on armour to act offensively, as well as defensively; they proposed to come to London, and to have others join with them, and that case was adjudged high treason. For the general intention to pull down inclosures: where there is any resolution, that these great tu mults amount to high treason; it is on this foundation, that the design is general, and is an exercising of a regal authority, which nobody but her majesty ought to make use of. It is said in Messenger's case, that the intent must be such, and that such intent must appear by such proof as will satisfy the jury. Now, how do they offer to prove the intent of this man? If there is any thing to prove it, it is subsequent to the pulling down the first meeting-house, for it is plain he was not there till the design was so far executed, and the fire had been made an hour before he came now if he comes there, and hallooes and rejoices at it, that cannot make him guilty. I agree, that if any number of persons are going to commit high treason, and a man meets them, and joins with them in the execution of that fact, he is guilty; but if he be ignorant of their design, and hallooes and rejoices with the crowd, that will not make him guilty: and in this case, it appears, that every body that passed by the crowd that night were constrained so to do; but where such person who is got into such a tumultuous assembly, doth get off as fast as he can, this cannot be high treason, or any crime whatsoever. If the prisoner had gone to Drury-lane, and they had shewn that he did any thing there, we should have had a harder case than we hope we have; but we think there is no proof of the intention of this man to commit those facts of pulling down the meeting-houses in general, and of assisting in the execution of that intention. My lord, if our witnesses (whose credit stands unimpeached) be believed, it is impossible that he could be concerned in this design, or the execution of it, or know any thing of it, till it was executed; for it does not appear, that on any of the days, when the mob were together, that he was among them, or that he acted any thing till after the meeting-house was pulled down, and the fire made. We have shewn where he was all that day, and that it was near eleven when be came to the fire. I think we have shewn by the waterman that carried him home, that there was not room for him to bear any share

our witnesses are mistaken in saying he was there: They knew the man; they spoke with him; and they are positive to him; and they give a particular account of what he and they said, and what they saw him do; and now they say, our witnesses are mistaken. As to the hours, little is to be depended on, because people are so uncertain in their computations: It is plain they were all suppressed by twelve o'clock, so that he might stay as long as any, and yet be in bed by twelve o'clock, for by that time the guards came and suppressed them. They give an account of him till ten o'clock; I find there was no business that detained him till that time; he had nothing to do in the alehouse; he was got drunk, and he staid in this disorderly place till the time was proper for him to come out, and transact this matter. For it was about ten that one of our witnesses saw him at the meeting-house, and at the fire, and he went along with him towards Drury-lane, and there he left him: And this agrees with what his own two witnesses say; they say, they saw him by the duke of Newcastle's corner, coming from Queen's-street, and going towards the fire: It was after this, that he had hallooed them away to Drury-lane, and was again returning; it is plain by the evidence of both sides, that he was there. All that they insist on, is, that he was forced into the crowd: but how agreeable is that to the story of the witnesses that saw him bring the sconce, and carry it in procession round the fire, and throw it in? He calls Wood, who tells you he was his friend; that he had been with him all day. He tells you, that they received news that there was a fire in the Strand; that the prisoner was concerned for a gentlewoman that lived there, and that they went away immediately to assist her. Wood says, he went with him as far as Temple-bar, and there the crowd was so great, that they were forced by the torrent of people up Sheer-lane, and through Lincoln's-innsquare, and they could not get away till they were crowded through the little gate, and there they took hold of and forced him to do all that he did: We must leave that to your consideration; but we think it very extraordinary. But the other witnesses do contradict it: Ward and Giles say, that he stood and talked with her, and she told him first of this riot, and that he was then alone and nobody with him. I will not repeat the particular circumstances that have been proved; that he was there they have proved; and we have proved, that there was a general design of pulling down these meeting-houses. We cannot prove the design of any man but by his actions. If a man meet with people that have before laid a design, and he acts with them, the law says, the intention of every man there is to do what was the design of that meeting. The design was to pull down these houses, and they did execute it; and it being done by force, we think it does maintain the indictment, and that he is guilty of the fact charged on him, and we submit it to your lordship and the jury.

Sol. Gen. My lord, there are two points to be considered in this case: First, whether this tumult be a levying war, and high-treason? And in the next place, how far the prisoner may be concerned in it, whether what he has done, has made him equally guilty with the others, supposing the general design and the execution of it to be high-treason?

We take it that this design, to pull down these meeting-houses, was a general design; and being a general design, and done upon pretence of reformation, and in defiance of the law, that this is high treason, and levying war; and facts of this kind in all ages have been adjudged so. The general design is proved by what followed, by the action, by pulling them down; for we have proved that four were pulled down, and that there was an intention, or declaration that they would pull down meeting-houses. What is this design against? It is against the queen: It is levying war within the realm, which I take to be a material word in the 25th of Edw. 3. It is levying war against her sovereignty, her power and authority, in matters which she, either as concerned in the legislature, or in the executive power of the government, may reform and correct. The taking arms in defiance of any law, or to correct any abuse, or to deprive the subject of the benefit of any particular act of parliament, is levying war and bigh treason, and so adjudged by the statute of queen Elizabeth. The case of the

was long before that time; the case of inclosures was a private interest, yet the getting a number of people together, in order to throw down all inclosures, is adjudged to be high-treason; and that resolution has always been affirmed. That is the interest of private persons, and therefore will shew, that what they insist on of the other side against the queen, is of no consequence; for if it was levied against her authority, with submission that is high-treason: the taking up arms against it, though there was no immediate intention against her person, or to destroy her. Indeed it has been common to lay a design to compass and imagine the death of the queen, and the overt-act of the treason has been the proof of that design; there the compassing is the treason, and the overt-act is only the proof, and therefore a design must be laid in that case. But in cases of this nature, the levying war is the treason, and therefore the proving the levying war is sufficient, without laying any design to compass or imagine her death. Now that this is against the queen, and her sovereignty, is most plain, because it is certain these meeting-houses are tolerated by law: The Dissenters are indulged in the exercise of the wor ship of God in their own way, by the act of parliament: That act of parliament can be taken away by nothing but an equal power: in which the queen must give her assent, and it must have her concurrence. The queen has the administration of justice under her care, therefore taking up arms to destroy meetinghouses in this manner, is levying war against