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should be so unfortunate as to be thought other sire any thing in this man's case, but what shall wise, yet we must insist, that that point which be a precedent in all future cases; therefore I the queen's counsel insist on, to wit
, that the shall state the cases relied upon for the authofact attempted to be proved on the prisoner is rity of the resolution in Keyling's Reports, as Jerying a war, is not yet so settled a point, but well as I can, upon this short notice. The first may deserve a further and deliberate considera- case is in 2 Anderson, fol. 5, it was the case of tion. I am sensible there is one case of the the Apprentices of London and Southwark: London Apprentices, wbich was in king Charles they assemble together opon a formed design, the second's time; there was a resolution, that concerted and contrived amongst them before, tbat fact was levying of war, and so high to break open the prisons, to kill the lord mayor, treason; but I cannot hut observe one thing that to burn his bouse, and to seize some arms in my lord chief baron Hale, who can never be houses near the Tower of London. They had spoke of but with the greatest esteem that may a trumpet before them, and a flag displayed be
, in the very case mentioned, that he differs with them, and that was adjudged to be levywith the other judges, and that he was of opi- / ing war, within the 13 Eliz. I must observe, nion that that fact was not levying war, and he that this was an opinion not given in court, nor grounded his opinion upon that which we think upon a special verdict, but given privately, and was great reason, and that is the statute primo pot otherwise ; so that we think the authority Mariæ 1, cap. 12. It is not printed at large in in that case will not weigh very much, though Keble, but it is in Rastall; and on view of all the subsequent cases in Popbam's Reports, that act, his opinion is well justified, for that and Keyling's Reports, are built on the autho act of parliament shews, that all the several rity of this case, and yet the judges in this case, facts for which the Apprentices, in king Charles in Anderson's Reports, rely for that opinion on the 2nd's time, were indicted, as reported in the statute of 13 Eliz. and that statutes was on Keyling's Reports, all the several circum- / very great reason made to prevent the ill de stances, that are in that case, were not looked signs then on foot by the Roman Catholics. upon then to be high-treason. But even in that There were many Roman Catholics then bequeen's time, who had just reason to be very gan openly to shew their aversion to the Reapprehensive of tumults and wars, is this statute formation in general, and it was then, for the made, to make the actors in such tumults guilty preservation of that good queen and her go. of felony: and if such tumults did amount to vernment, thought necessary to enlarge the levying war, and was high-treason, it is strange, 25th of Edw. 3, and also to make the design to that the parliament should make so unneces- levy war bigh treason during her life only, so sary a statute as this, primo Mariæ. And that that case in 2 Anderson, was not resolved before queen Elizabeth's time, no one can give on the 25th of Edw. 3, but on the 13th of Elian instance, that a tumult of this nature was zabeth. looked upon, or adjudged as levying of war. There is another case, which was the earl of That it was not so before the statute of 13 Eliz. Essex's, and that was relied on as an authority is plain, because that statute seems to be made in Messenger's case in Keyling's Reports; but on purpose to sbew it was not a capital offence, that differs from this: there was a design of and that such tumults had not been adjudged the earl to have assistance from the city, and levying war, and so not treason, before that sta- by force to remove bis enemies from the queen, tate of the 13th of queen Elizabeth ; and for that and with armed force to go to the queen's pavery purpose, and to prevent such riots and lace, and to ber person, and an actual rising tumulis
, was that very statute made: and the and appearing in arms accordingly. This was provision made by this statute of queen Eliza. conspiring the death of the queen, and levying betła, which was a temporary law, was the war in the most notorious manner; and this reason of the resolution in the earl of Essex's was one of the cases relied on in Messenger's case, and that statute made his insurrection be case: but here, in the case now before your adjudged levying war and high-treason, and lordship, there is no one circumstance resemshews that it was necessary to have another bling the earl of Essex's case. There is one act besides the 25 Edw. 3, to make such resolution in that case applicable to ours, and tomults and riots treason.
that is the resolution of the judges in the earl The case in Keyling's Reports, of Messen- of Essex’s case, that where people by accident ger and the others, supposing it to be law, came among, and were in company with the will swt warrant the adjudging this case to be earl of Essex and his adherents, and afterwards treason, in regard there appears to be many cir- departed upon proclamation made, they should cumstances in those cases in Keyling's Re- not be guilty of the treason. In the case beports, which are pot proved in this case now fore your lordship, it appears, the prisoner before yoar lordship. But I must needs say, came there by accident; and we have shewn
prisoner at the bar has had so little care by witnesses, he quickly left these disorderly taken of bim, that I had no notice of this till 8 people. o'clock last night, and have not bad time to Another case relied on in Keyling's Reports, look into the cases, and to be able to discharge is, that in Croke Car. the case of the people my duty to my client as I ought; but I am that beset Lambeth-house ; that was a most sure, the gentlemen that appear for the queen unjustifiable act, done in despite and in the uthave so much candour, that they will not de- most contempt of the crown and regal dignity,
and with an armed force with drums, and an | last night late; and must own my opinion to armed multitude ; and the resolution in that be, that a longer time is necessary to encounter case, will be no warrant for the adjudging this the authority of the Report of my lord Key. case of the prisoner treason, supposing we ling. But, my lord, without disputing the au. should not be so bappy as to have our witnesses thority of that book, we must say, this case believed, that we were brought in by force; comes far short of that resolution for there for, in our case, bere are no drums, nothing was a plain hostility, a captain with a sword, resembling war, but only a tumultuous rabble. drawn, colours, two meetings to consult
, and The case of Bradshaw and Burton, in Pop- a resolution taken, a resisting and wounding ham's Reports, 122, is wholly built upon, and the constable, and striking the officer of the absolutely depends on the authority of the case guards, and their intention to pull down bawdy in 2 Anderson ; and yet in the case of Brad- houses, which might be any house they thought shaw and Burton, there was a previous agree- fit to call so. As for the case of Oxfordshire, it ment, to go from house to house, and to pull is plain there was an arming themselves, they down all inclosures. It is true, that the putting had put on armour to act offensively, as well as thiş agreement in execution accordingly, is re- defensively; they proposed to come to London, solved to be high treason. We think, that that and to have others join with them, and that agreement and rising according to it, is more case was adjudged bigla treason. For the gethan appears in this case of the prisoner at the neral intention to pull down inclosures : where bar; and besides, it is a resolution in the 39th there is any resolution, that these great tuyear of queen Elizabeth, when the statute of mults amount to high treason; it is on this ihe 13 Eliz, was in force, and depends on the foundation, that the design is general, and is authority of the case I have mentioned in 2 an exercising of a regal authority, which noAnderson's Reports; and in our case there is body but her majesty ought to make use of. no proof that we knew any thing of this tumul. It is said in Messenger's case, that the intent tuous meeting, but that by accident we fell must be such, and that such intent must appear among them. We hope, that if the jury shall by such proof as will satisfy the jury. Now think there is any colour to believe, that we how do they offer to prove the intent of this have not answered by our witnesses (whose man? If there is any thing to prove it
, it is credit is not questioned) the evidence produced subsequent to the pulling down the first meetagainst the prisoner, that this point may be re- ing-house, for it is plain he was not there till served to us; for we apprehend, that it is not the design was so far executed, and the fire settled that this case of Messenger, and the had been made an hour before he came: now, others in Keyling's Reports, is law: but sup- if he comes there, and hallooes and rejoices at posing it should be law, yet we hope it will not it, that cannot make him guilty. I agree, that affect us ; for it goes upon a previous agree if any number of persons are going to commit ment, and all tbere were partakers of it, and high treason, and a man meets them, and joins willing, and outrageous actors in it, and knew with them in the execution of that fact, he is of the design before executed: and there was guilty ; but if he be ignorant of their design, this circumstance, that when the captain of the and hallooes and rejoices with the crowd, that guards came to appease them, they asked if it will not make him guilty: and in this case, it was the duke of York; and when they appre- appears, that every body that passed by the hended it was the duke of York, they called crowd that night were constrained so to do ; but
, out, That they cared not for the guards, and where such person who is got into such a tu, that they would come and pull down Wbite- multuous assembly, doth get off as fast as be hall: so that, by these declarations, it is plain, can, this cannot be high treason, or any crime the king and his authority were aimed at. But whatsoever. If the prisoner bad gone to in this case of ours, there is nothing of resisting Drury-lane, and they bad shewn that he did authority charged on this man, but that he any thing there, we should have had a harder came by accident, and acted only by constraint case than we hope we have; but we think and force, when unhappily amongst a disorder- there is no proof of the intention of this man to ly multitude: therefore, my lord, on the whole commit those facts of pulling down the meetmatter, in regard we do, with submission, think, ing houses in general, and of assisting in the that the law is not settled by the resolutions in execution of that intention. My lord, if our Keyling's Reports, but that a review thereof witnesses (whose credit stands unimpeached) may be admitted, and in regard we think our be believed, it is impossible that he could be case is far different, and a much better than concerned in this design, or the execution of it, any of the former cases, wbicb have been look- or know any thing of it, till it was executed ; ed upon or esteemed as levying war, we hope, for it does not appear, that on any of the days, that in case the jury should think we are guilty when the mob were together, that he was of any criminal act, that whether such acts be among them, or that he acted any thing till levying of war, or no, shall receive a further, and after the meeting- house was pulled down, and more deliberate determination. I shall there the fire made. We have shewn where he was fore take up no more of your lordship's time. all that day, and that it was pear eleven wben
be came to the fire. I think we have sbewu Mr. Darnell. My lord, the first time I heard by the waterman that carried him bome, that from the prisoner relating to this cause, was there was not room for him to bear any share
in this outrage; for between the time of his | take notice of is my lord chief justice Keyling's, coming to the fire, and going home by water, which was printed with the approbation of all there is no room for bim to do any thing more, the judges of the Queen's-bench; and every than to go between those places. There is no body knows that he' was as great a judge, par. proof that he did any thing but what the mob ticularly in the crown-law, as any that went in a manner forced him to do; and perhaps it before him. And it is the opinion of all the might bave cost him his life in so tumultuous judges, excepting one, that that case is treason; an assembly, or, at least, some bodily harm, it and you see on what his opinion was founded, he had done less
that it was not high-treason, because there is a
particular act of parliament which says, that in Att. Gen. My lord, I beg leave to say a case proclamation shall be made for them to few words in answer to what has been insisted depart, those persons that do not depart on that on by the prisoner. They have insisted on proclamation shall be guilty of felony. That these three things; First, that notwithstanding act relates only to the meeting and assembly our witnesses have given that account which on a private, particular account; for if a lord you bave heard, yet they are mistaken in the enclose a waste, and the tenants rise in opposifact
, for he was not the man that they say was tion to that act, in order to redress that inconthere bringing the brass candlestick; that it venience, nobody will pretend to say, it extends was another man, a little man in his own hair, to high-treason; because it is a private incon-' and not like the prisoner, and therefore he is venience that goes no farther than that manor. not guilty of the fact charged on him. In the But at the same time that they made use of this next place, they tell you, that admitting he was distinction, it is taken notice of, that if there be. there, and that our witoesses have told you a public law, that is looked on to be the grievtruth, yet he was there unvoluntarily, and ance, and they came to redress the grievance what he has done was under a force, and there arising from that law, that is opposing the fore he cannot be looked upon to be guilty of public, and is high-treason. the treason, because, intentionally, he did not Now, to compare these cases: There was a go along with them in that design. The third design on Tuesday night declared among the is , that admitting you should believe all that mob, that on the next day they would destroy the witnesses say, that he was there, that he did all the meeting-houses thereabouts : Sure none know of this design, and acted in it, in concert will say (let their opinions be what they will), with the rest, yet this charge does not amount that destroying a meeting-house is more serto high-treason, and therefore he ought to be vice to the public, than destroying a bawdyacquitted.
house? And yet their meeting to pull down the Now, though this is the last thing mentioned, bawdy-houses was adjudged to be treason. yet it is of the most consequence, and ought to And shall they be banged for pulling down be taken notice of first ; because if he is guilty bawdy-houses, and have nothing but a fine for of the fact, yet if it does not amount to treason, pulling down' meeting-houses? Every body he must be acquitted. They tell you it is a knows they are allowed by law. The act of notorions riot, such a tumult as is not to be en- parliament that gives indulgence to the Disdured; that a punishment ought to be inflicted senters allows them to meet in those places : on those people that were concerned in it: But It were to be wished, that there were no such they insist on it, that this is not high-treason, persons that did dissent from the Church; but as charged in the indictment. Now I think it ihese places being allowed by law, it is lawis a plain proposition laid down, that whenever ful' for them to meet there. Now for people there is force used against the government; to find fault with this law, and to say, we will whenever there is a general intention to work a redress this inconvenience : thougb the public reformation; whenever there is an oppression will not throw these people into gaols for meetcomplained of, and the people nse force in ing there, we will pull down their houses about order to remedy it, and there is an assembly of their ears; this is an insolence not to be sufa multitude for that purpose, it is levying war; fered. This is assuming an authority that does for it is an opposition to the government, and not lie in the people ; every body that lives
under a government has courts of justice to My lord Coke in his comment on the statute apply to, and when any thing is acted contrary of treason, takes notice of this, and says, that if to law, the courts of justice are open; and I any go about by force to reform any thing they may defy any one to shew that there has been complain of, it is levying war; because they a denial of justice upon due application, take upon them royal authority, which is Now for people to meet together to do right against the king. The case they mention of to themselves, and to be judges and execa Bradshaw, where a great number assembled, in tioners at the same time, is never to be borne, order to settle the rate of wages, they thought but deserves the most severe prosecution; and there was not enough given
them for their la- it is a sense of this that brings this cause here. bour: They did appear in public in order to For, as to the man, I never saw him before ; redress that grievance; and that appearance nobody bears him any ill "vill; but it is known in public was looked upon to be bigh-treason. that there have been these riots and rebellions
It is not proper here, to enter into all the committed; and it is agreed that he was among "Bases that may be cited; the last book they them. This brings me to take notice whether
the civil magistrate.
our witnesses are mistaken in saying he was Sol. Gen. My lord, there are two points to there: Tbey knew the man; they spoke with be considered in this case : First, whether this him; and they are positive to him; and they tumult be a levying war, and high-treason ? give a particular account of what he and they And in the pexi place, how far the prisoner" said, and what they saw him do ; and now may be concerned in it, whether what he has they say, our witnesses are mistaken. As to dove, has made him equally guilty with the the hours, little is to be depended on, because others, supposing the general design and the people are so uncertain in their computations : execution of it to be high-treason? It is plain they were all suppressed by twelve We take it that this design, to pull dowa o'clock, so that he might stay as long as any, these meeting-bouses, was a general desigo ; and yet be in bed by twelve o'clock, for by that and being a general design, and done upon time the guards came and suppressed ihem. pretence of reformation, and in defiance of the They give an account of him till ten o'clock; I law, that this is bighi treason, and levying war; find there was no business that detained bim till and facts of this kind in all ages have been adthat time; he had nothing to do in the alehouse ; judged so. The general design is proved by he was got drunk, and he staid in this dis what followed, by the action, by pulling thema orderly place till the time was proper for him down; for we have proved that four were to come out, and transact this matter. For it pulled down, and that there was an intention, was about ten that one of our witnesses saw or declaration that they would pull down meethim at the meeting-house, and at the fire, and ing. houses. What is this design against ?.lt he went along with him towards Drury-lane, is against the queen: It is levying war withand there he left him: And this agrees with in the realm, which I take to be a material word what bis own two witnesses say; they say, ) in the 25th of Edw. 3. It is levying war they saw him by the duke of Newcastle's against her sovereignty, her power and authocorner, coming from Queen's-street, and going rity, in matters which she, either as concerned towards the fire: It was after this, that he had in the legislature, or in the executive power of hallooed them away to Drury-lane, and was the government, may reform and correct. The again returning; it is plain by the evidence of taking arms in defiance of any law, or to corboth sides, that he was there. All that they rect any abuse, or to deprive the subject of the insist on, is, that he was forced into the crowd: benefit of any particular act of parliament
, is but how agreeable is that to the story of the wit- levying war and bigh treason, and so adjudged nesses that saw him bring the sconce, and carry by the statute of queen Elizabeth. The case it in procession round the fire, and throw it in? of the
was long before that tine; He calls Wood, who tells you he was his the case of inclosures was a private interest
, friend ; that he had been with him all day. He yet the getting a number of people together
, tells you, that they received news that there in order to throw down all inclosures, is ad. was a fire in the Strand; that the prisoner was judged to be high-treason; and that resolution concerned for a gentlewoman that lived there, has always been affirmed. That is the interest and that they went away immediately to assist of private persons, and therefore will shew, that her. Wood says, he went with bim as far as what they insist on of the other side against Temple-bar, and there the crowd was so great, the queen, is of no consequence; for if it was that they were forced by the torrent of people levied against her authority, with submission up Sheer-lane, and through Lincoln’s-inn- that is bigh-treason: tbe taking up arms against square, and they could not get away till they it, though there was no immediate intention were crowded through the little gate, and there against her person, or to destroy her. Indeed they took hold of and forced him to do all that it has been common to lay a design to compass he did: We must leave that to your considera- and imagine the death of the queen, and the tion; but we think it very extraordinary. But overt-act of the treason has been the proof of the other witnesses do contradict it! Ward | that design; there the compassing is the treaand Giles say, that he stood and talked with son, and the overt-act is only the proof, and her, and she told him first of this riot, and that therefore a design must be laid in that case. he was then alone and nobody with bim. I But in cases of this nature, the lerying war is will not repeat the particular circumstances the treason, and therefore the proving the lerythat bave been proved; that he was there ing war is sufficient, without laying any design they have proved; and we have proved, that to compass or imagine her death. Now tha there was a general design of pulling down this is against the queen, and her sovereignty these meeting-houses. We cannot prove the is most plain, because it is certain these meet design of any man but by his actions. If a ing-houses are tolerated by law : The Dissen man meet with people that bave before laid a ters are indulged in the exercise of the wor design, and he acts with them, the law says, ship of God in their own way, by the acto the intention of every man there is to do what parliament: That act of parliament can b was the design of that meeting. The design taken away by nothing but an equal power was to pull down these houses, and they did in which the queen must give her assent, an execute it; and it being done by force, we it must have her concurrence. The queen ha think it does maintain the indictment, and that the administration of justice under her car he is gailty of the fact charged on him, and we therefore taking up arms to destroy meeting submit it to your lordship and the jury. houses in this manner, is levying war again
the queen, and levying war within the realm ; ! intention proved; but where it is in fact, where to invade that right which by the laws of the the fact is treason, no previous design is nekingdom these people are intitled to: For the cessary to be proved, in any case whatsoever: law has given this right. Now to take up arms the fact itself is the treason, and speaks the deto violate that right is high-treason, and is a sign; and, the man that commits treason, must stronger case than any that have been men- do it with a treasonable intention. And in the tioned and agreed to be law. The case of an lord Essex's case, it was 'adjudged, that my inclosure is a private interest; the taking arms lord Southampton, who joined with him in that to enlarge a bighway is so; to destroy bawdy- fact, which was adjudged levying war, was houses is so; to take up arms to remove a guilty of the same treason, though he did not public nuisance, which ougbt to be the parti- kpow of the design of the lord Essex, but cular care of the government, that is levying thought he meant only to remove some parti
cular enemies of his from the queen. They have insisted upon the statute of the They say, if he was there, he was only there 13th of Elizabeth, which they use as an ar- by force : as to his coming there, I think it is gument to shew that this was not treason with as fully proved as can be ; but say they, it was iu ibe statute of Edward the third ; but that not be that threw the sconce into the fire, for act was to make a conspiracy to levy war high he was at another place at that time, for that treason. But then how stood the case of the was thrown in at nine or ten o'clock, and he inclosures at that time? Several people con- was then elsewhere. I wouder this should be spired to throw down inclosures, and that was insisted upon, it being only a small variance in adjudged high treason, because it was a conspi- time: and as he was observed to do the fact, it racy to levy war; and how could that be high is not material as to the hour : therefore, untreason, it taking arms to throw down inclo- less what the women say is an answer to that sures were not so? We take it, that the case evidence, it still remains unanswered; and as in Anderson is full in point, and these cases are to what they say, we must submit it, whether affirmed by the judges in the case of Messen- it can be believed, whether they deserve that ger: so that it is the greatest authority, and credit; whether a man that stood by, and saw never to be shaken. They say the case in every thing that passed, and followed him up Anderson is a private opinion; it is the opinion the street, to the fields; whether they can de of the two chief justices, and the master of the serve that credit that this man does ; for what Rolls; the others are the opinion of all the they saw was only at the fire. They agree a judges : so that it is such an authority as never waterman did it, but it was a short man in black cap be shaken.
hair, and they saw him only by looking under This shews the foundation that there is for some people's arms; they could not discern so this necessary prosecution, that people may particularly as this man, that saw bim come see that it is not in the power of every man, ac- out of the house, and followed bin : but whecording to his own fancy, to find fault with the ther he was concerned in that act or no, is not government, and alter the laws, and deprive the material. His going from the fields, and bal. subject of any benefit he is entitled to by law, looing the people to Drury-lane, is a matter it is an invasion of the royal antbority; they they have not answered, they have given no may by the same reason fall upon a man's per evidence to answer that; and if that were so, $90, as they may pull down bis house ; and it is a sufficient evidence of his levying war; things of this nature must run into endless con- that is enough, bis saying, he would lead them, fusion, and none can be safe, unless people that and encouraging them to go with him; that, are thus guilty be brougbt to punishment. no doubt, will be a full evidence, joined with his
These authorities then being so strong, we being at the fire, which is proved by five or six hope, that, as the case stands, on the evidence witnesses ; and this is contradicted by nothing, for the queen, that the prisoner has been proved but saying, he did it by force, and if that were guilty of the charge in the indictment: for ibat fact, then certainly he would not be guilty : there was a general design, appears by wbat but on what does ibis depend ? On two wit. was done in the execution of it. The only nessess ; on Wood, whom, I think, nobody question is, whether this man was privy to any can believe, for be contradicts himself, in comprecedent design? And for this, I rely on the ing to the place, and going from it again; and lord Essex's case, in Moor's Reports, which how defective he was in every point, I doubt was settled by all the judges in England. 1 not your lordship and the jury have observed. say, that it is not necessary to prove any such But when they call their other witness, they previous intention, any more iban if a man make it clear: for if any credit is to be given sbould be so bold as to murder a judge on the to their other witness, Wood is not to be bebench, must you prove that there was any de- lieved, for he says, the prisoner left the alesiga ? Does not the blow that was yiven house to serve a friend in the Strand, and that shew the design ? And is it not high trea- he went along with him; but this is contrason in case of counterfeiting the coin dicted by the other witnesses, and it appears Must you prove an intention ? No, the trea- that he was not with him in Fleet-street, son is in the fact, and not in the intention : Cummins says, the prisoner was drunk, and Where it is in the intention, as compassing thrust about by the mob, from one to another ; the death of the queen, there must be an but he does not prove he was under any force,