if he had, they would have treated him otherwise, but they are continually justling, and playing with one another; and though other people were threatened, that does not prove that he was. They say he was drunk, that is no excuse at all. I was willing the jury should have all the circumstances before them, and therefore joined in asking that question; but it cannot be material, nor is he more or less guilty, whether he was drunk, or sober; so that we take it, there is no evidence that he was under any such force, as put him under a necessity, for his own preservation, to join with the people in this tumult. If he was not under an absolute necessity, he cannot be excused; so that it is plain, they have not answered that matter at all. And as to the two women, that never saw him before, but met him coming back to the fire; and as to the proof, that he was at home at twelve o'clock, that is no ways inconsistent with our evidence. The matter of reputation is no ways to be considered in this case: I would not say any thing more, but you hear what was the noise of the mob; and that cry and hurry that was made on this occasion, was in defiance of the justice of the nation, which was then carrying on in the most solemn manner. But we subunit it to your lordship, that this fact, this design, executed in this manner, is plainly levying war, and high treason; and the prisoner at the bar, by the evidence that has been offered, is guilty of the fact charged against him in the indict ment. Mr. Thompson. My lord, 1 would beg leave to add a very few words. As to what the gentlemen for the prisoner insist on, in point of law, that this does not amount to levying war, it has been spoke to so fully, that I will not waste your lordship's time unnecessarily; The rule of law is very plain, that wherever any number of persons shall assemble together of their own heads, without warrant, pretending a reformation of what they think an abuse, this is an invading the regal authority; and if that design is executed, it is levying war, and hightreason, in all, as well those that conspired, and were not at the execution, as those that were aiding in the execution, and were not in the conspiracy: As to what is mentioned of pulling down inclosures, if it be a particular inclosure, it is true, it is only a riot; but wherever there is an intent expressed, to pull down one, and then another, and so on, that is levying war, and high-treason. And here you have had a proof of an intent to pull down meeting-houses, and an actual execution of that design in several: Whether this man knew it or no, is not material; if he is aiding in the execution of that treason which was designed by others, he, under favour, must be guilty of treason too. And so is the case of my lord Essex, which has been mentioned; and so says my lord Coke, in the 3d report; and my lord Hale himself, in his Pleas of the Crown; And this case goes farther than that in my lord Keyling, of the bawdy-houses, for they were abuses removable by law; but these meeting-houses are so far tolerated by law, that it is not in the power (I may take leave to say) even of the crown, to commission any to suppress them. The question, my lord, as to the fact, is, Whether he has been proved to be aiding and assisting in the execution of this design? The evidence for the queen has sworn as to several circumstances; his going to the meeting-house; bringing out the sconce; carrying it to the fire; throwing it in; and going from thence to Drury lane, to pull down another meeting house, at the head of the mob, leading them on, and encouraging them to follow him; that they did follow him, and did pull down that meetinghouse. What do they say, my lord, in answer? They produce a great many witnesses, some that are inconsistent with the others, and some that do not deserve much credit. They say, we are out in point of time; that he was at the alehouse until half an hour after ten, so could not throw the sconce in the fire, as the witness swore. I must observe, that the witness was positive as to the man that be saw, and the fact: but as to the time, though he at first declared it about nine or ten, yet, when pressed as to the certainty, he answered, he could not be positive as to the time. Then they say, that the prisoner was driven to the fire, and that Wood, the witness, was with him, and saw him forced by the mob. Mrs. Giles, another of their witnesses, says, that Wood was not with him when he was going to the fire. Then, as to the innocence of his intentions, it is said, the prisoner left the ale-house, to help a gentlewoman in the Strand, upon the news of the fire; but the postillion that brought the news, came to him soon after eight, and the prisoner did not go then, but staid until after ten, so that is only a pretence of excuse, but no real one. Then they say, what he did at the fire was not as a free agent, but by compulsion: As to that, we have proved that he did not only halloo, and throw up his hat and wig, and huzza, and make processions before the fire, but that he made a soldier pull off his hat, and huzza, and do as he did, which seems to be something different from compulsion. My lord, the other facts, besides the sconce, have been proved by so many witnesses, that it is not very material, whether that be true or not; but even, as to that, the circumstance of time is so very trivial, since the witnesses would not be positive to that, there is little room for doubt of it. However, as to the rest, it is very plainly and fully proved, and we submit it to your lordship and the jury. L. C. J. Gentlemen of the Jury; Daniel Dammaree, the prisoner at the bar, stands indicted for high treason; for that he, on the first of March last, in the parish of St. Cle ment Danes, did, with a great multitude of persons, to the number of five hundred, armed with swords and clubs, raise and lery public war against the queen. 591] of the company said, That was but a bird's- for High Treason. There are two things insisted on to bring this matter to two points by the counsel of both sides: One is as to the fact, which will be proper for your consideration, to consider the particular circumstances: And the other, as to the law; how far it will amount to high treason, and that is what it is the duty of me, and the other judges here, to direct you in. I shall | first state the fact as it stands on the evidence, and then point out, as well as I can, where it will rest for your consideration; and if I mistake, I am so well assisted, that I am sure it will be set right. As to the fact; the first witness produced is Tolboy, who does not speak any the thing to charge the prisoner particularly, but bat egires an account, that upon the Tuesday, the day before this matter for which the prisoner is indicted, he passing through the Temple, saw a great number of persons that had The conducted Dr. Sacheverell to his lodgings; there he heard a discourse of pulling down the meeting-houses: Dr. Burgess's was named; and some were proposing to have i deferred until after the trial; but others would have it the next day. What the result of that discourse was, he does not know, for he made no stay; he passed through them, and left them discoursing. The next witness was Orrel: He gives a de particular account of the prisoner, and the meeting-houses he had any concern in the pulling down. He says (after he had observed something of a great mob gathered together, a night or two before), that he was at a coffeehouse, where word was brought, that they were pulling down Dr. Burgess's meeting-house; be went to see what they were doing; he was in the meeting-house three or four times, and Went to and fro. He takes notice that there was a little man in the pulpit, pulling that down, and that appears to be pretty early: That about 10 o'clock he had notice of their pulling down another meeting-house: That he went to Fetter-lane, and there was the constable insulted to such a degree, that he was forced to go off: That meeting house was pulled down, and burnt in Holborn; the materials of Mr. Burgess's were carried into Lincoln's-inn-fields, and burnt there: That thence he went round, and came into Lincoln's-inn-fields again, and He found them very busy about that fire. tells you what questions were there asked, and what instigations were used one to another: One asked, where is the lord Wharton's? And others, where is the Bank? and the cry was, To the city, to the Bank, and damn them, we will have all the meeting-houses down; and afterwards Dammaree was one of them that used that expression himself: That then he took notice, that from the middle of the fields there divided a small body, and he took notice of a pretty tall man leading them on: I was then, says he, too far off to distinguish him; but he says, he kept his eye on him, and coming nearer he found it was Dammaree: That he called on them to go to Drury-lane; and that some proposing to go to Wild-street, some 咖 The next is Collier: he says he saw Dam-, maree in Lincoln's-inn-fields, at the fire, bring the branch from the meeting-house: that he carried it three times round the fire, in a sort of procession, huzzaing, and then threw it in. He gives an account of something else that was brought there, and carried likewise about in procession. The first witness observes, that he threw up his hat and his wig both, that you may not mistake him for the man in his own black hair; and another being asked, what he had in his hand? said, He had nothing but his wig; and you will consider, whether the hair he had on then, was not the short hair that the other witnesses speak of. The next witness says, that he saw him at the fire first about nine: that he believes he was there two or three hours; and that he called upon them to go away to Drury-lane, and that he went with them that way. As to the meeting-house in Drury-lane, none say that they saw him there. Still says, that he saw Dammaree in the alley about eleven, and says, there was then a fire in the fields; and he only says, that Dammaree hallooed among the rest: but it may be material, by and bye, to consider his being in the alley about eleven; for when you consider the evidence of the women, of bringing the branch to the fire, and that the fire was dead burnt when they went away; you will then call to mind, that the bringing the branch was one of the last things. Mitchell says little more, than that he saw him hallooing, and throwing up his hat; and that it was about eleven o'clock. This therefore only confirms that he was there, and that he was in the alley. The next was Morgan: he says, that hearing of a great tumult at the meeting-house, he went thither, and found them at work, and a fire was made before he came: that Dammaree was there, in his waterman's coat, which is a circumstance all the rest do agree in that he encouraged the mob very much that he walked round the fire with the bedstead that was thrown in, and some other things were thrown in afterwards. This man asked them, what they were doing? The guards are coming, and they said, Damn the guards, and the parliament too, we are ready to face them all. When they enquired where that man was that spoke of the guards (for he was a discourager of the business) thereupon he got off, and went away. He says, he saw the doors of the meeting-house thrown in, after they had been carried in procession; and that it might be half an hour after ten, or more. The next is Eaton: he says, he saw him at the fire, and saw several things brought to the fire, but did not see him bring any thing; but Dammaree appeared as one of the principal and that Dammaree, and some others, compelled a soldier to pull off his hat, and that Dammaree spoke to him particularly; and the time he speaks of is about half an hour after ten. This is the stress of the evidence for the queen, by which, supposing that there was nothing said to oppose it, it is fully made out, that he was engaged with those other persons that did pull down Mr. Burgess's meetinghouse, and assist in carrying the things to the fire in Lincoln's-inn-fields, and burning them: that he led them away to Drury lane, and that he and others said, they would have all the meeting-houses down. There was an opposition given to the guards, and you will find that the like was done in other places. Now you are on the other hand to consider what defence is made for the prisoner, and by that, to weigh what credit you will give to this testimony on the behalf of the queen. They attempt to give an account where he was all that day, and by that they would shew, that the witnesses produced for the queen must be mistaken; because it is impossible he should be there at the time they say he was, for they undertake to shew from ten in the morning until eleven at night, where he was. And another thing they insist on is, that what he did was by force and violence; though they do not deny he was there, yet say they, he did nothing more than the queen's witnesses did: they pulled off their hats, and made the same outcries for their own safety. They say likewise, that the man was in drink; and I know not what use they would make of that, whether by way of excuse of his crime, or whether it is to shew that he could not do what he is alleged to have done. They call Allen and Pink to shew where he was in the morning; they only shew how early they began to drink and as Wood says, he continued it till after ten at night. The next is Wood, and he is material, if you can give credit to what he says: he says, he was at the Bell in Water-lane till a quarter after ten; that there came in news that there was a fire in the Strand, and that was the reason of Dammaree's going out; that be started up, and said there was a gentlewoman in the Strand that was an acquaintance of his, and he would go and help her; that thereupon he and Wood went out to assist this gentlewoman. It fell out, that as they were going through Temple-bar, there was so great a multitude that came out of the Strand, that they stopt them, and they were carried along with the stream up Sheer-lane through Lincoln's-inn, through the wicket, and there the mob seized him, and would have him along with them. I am sorry, I must needs say, that we are forced sometimes to see such men brought into a court of justice; I would not take notice of it, were it not flagrant and visible to every body's view. In the first place, it is inconsistent with itself, that he should be going along Fleet-street by the Temple at ten, or between ten and eleven, and that there should be so great a crowd, when the fire had been three hours before, as they would have it. From what place could this mob come? There is no account of any assem bly of a mob that had been that way; but if they were stopt from going along, how could they get across the street? For it was more easy to go along by the walls, than to cross the street; and how could he get into that stream? He must force himself into it first; and how could that great crowd get into Sheerlane? Then in Lincoln's-inn you are got into a large place, and in that large square, unless a man would lay hold on him, it is impossible to drive him through that narrow passage at the wicket. Then what became of him after, he cannot give any account: sometimes he went by the dead wall, sometimes by Sheer-lane, and sometimes by Chancery lane. Then he is asked where they seized Dammaree? He says against the dead wall: I believe every body knows there is no dead wall until you come to Lincoln's-ion-fields, and that he who turned on the left-hand from the mob could not see them seize him there. But all that he says is overthrown by the other witnesses, for they contradict him as to his going to assist this gentlewoman; no, he staid an hour after the news: nay, that you may have an instance of the uncertainty of the computation of time, that witness, which is Bishop, says, the news was brought him at half an hour past eight, and that he staid until half an hour past ten; and then being asked, how long after the news was brought he went away, he says, about an hour: and this is an instance that people are not exact in giving an hour on such occasions. Fucard came next: he says only that he was in drink. But that part of Wood's evidence, whereby he would have you believe that he went in kindness to help the gentlewoman, is contradicted by Bishop; for he said. they had a supper after the news of the fire; and the postillion says, that he staid an hour at least. Ward and Giles give this account: that he was at Giles's shop in Fleet-street about half an hour after ten, which is about the time that he went away from the Bell: that he staid there till three quarters of an hour after; but they both contradict Wood, for he says he went with Dammaree; but they say, he was not with him. She gives this account: that they heard there was a fire in Lincoln's-inn-fields long before this; that they heard of it about 8 o'clock, and that about that time they saw two men with irons, which they said were the irons of the pulpit; and he says, that he knew them; which does prove that the business. She was asked, how she knew him to be the same man? and I think she gives a good account of it. She takes notice of one thing that some asked him, who he was for? He did not make answer that he was for High Church or Sacheverell, or any thing of that; but gave a civil answer: You see who I am for, I am for the queen. Cummins says, that he saw a waterman in the queen's coat, and that he saw him receive a blow on his head for not taking off his hat; and that he saw him pushed to and again; and that he seemed to be very drunk; and this he mentions to be about eleven o'clock. The next are Reading and Prince; they came together, and went together: they say, they saw the sconce brought by a short man in his own black hair, and that this man had on a waterman's coat with a badge, but they could not distinguish it; they could not distinguish the colour of the coat, but bis hair was black, and he a little man; and though they were not near him, yet they were near Dammaree soon after. About three quarters of an hour after, going homewards, they went towards Queenstreet, and there they met Dammaree (that was about eleven) coming from Queen-street, and going to the fire. It seems they had some talk with him, and he kissed one of them, and they are sure that this is the man, and there they find him at eleven. Cummins saw him at the fire at eleven, and he was with Mrs. Giles three quarters of an hour after ten. These women say, when they observed this short man, they were without the mob: when they came to the fire, there was a great mob about it; and as you have heard from others of the witnesses, that there were some thousands, you may imagine them some hundreds. They were behind the mob, and he a short man: and they were asked how they could see or observe him? They say, they discovered him as they looked under the arms of some of the people. You will have some regard to this evidence by-andbye. The next is Walker, who is a waterman, and says, he took up Dammaree at half an hour after eleven, for he took notice of the clock; and there is reason to think, that while he was waiting in his boat, he might observe the clock: he therefore, I believe, may be relied on. He says, he carried him cross the water, and set him down at, or near home; and therefore you may believe he did no more. Hales says, that she met him at the Strandbridge near eleven; there could not be much difference in that time. Harbins says, she met him with Hales, and it was about eleven. This is the evidence as to the facts: they have called others to give an account of his reputation; and as of the one side his reputation is not attempted to be shaken before this time, so they have brought witnesses to prove him a firm man to the Church and Queen, and a peaceable man. He took notice of the proceedings of Dr. Sacheverell, and as one of the witnesses says, he wished that Sermon had not been printed, and then we had not had this bustle; and that shews, in that instance, an inclination not to be engaged in such a mob as this. They shew other instances of his pressing seamen for the queen; and this is the strength of the evidence on the other side. As to the use they would make of the difference in point of time, I would observe, that it is difficult to set that right among his own witnesses; and it is almost impossible to be exact to half an hour. For Giles says, that he came to her shop at a quarter after ten, and the other witnesses say, he did not leave the alehouse till half an hour after ten: but this is no objection. It is not to be expected that people should be so exact upon such an occasion; therefore how does this oppose the evidence of the other side? If they had not brought some witnesses themselves to prove he was there, they might as well have used it as an argument to prove he was not there at all. For they have given an account of him till eleven; but you must consider what credit is to be given to some of their own witnesses, that prove he was there; and then you must consider what weight is to be laid on the variance of time, when all lies in the compass of about two hours. You observe too, that they give no account where he bad been when he came from towards Queenstreet; for if it be true that he was ill used for not pulling off his hat, how comes he to be coming back again to the same fire? Therefore consider how far they are to be reconciled; for if there is a way to reconcile them all, that will be an inducement to you to believe they all speak right. Collier says, he saw him bring the branch, that it was pretty near the time of his going away to Drury-lane, and it was not long before the time that the women went away, and met him coming back again: so that though it was begun to be rifled at eight o'clock, yet by the evidence of the women, it appears that the branch was thrown in between ten and eleven; and that is consistent with the time that he left Mrs. Giles. Then if that be so, what is there that contradicts it? Nothing but a computation in time, and an easy supposition sets that right. If they mistook but half an hour, or an hour, it sets all right; and it is easy in such a hurry to mistake it.* Orrel says, that Dammaree led the mob towards Drury-lane through Great Queen-street; then, when he had done his work there, and the guards had dispersed them, he comes back again, and the consequence is, that those two women should meet him. This falls in with what the witnesses say, that he led them towards Queen-street about eleven, and they say, they met him coming from that way back again, about eleven; and they do not pretend to give any account of him that way, though it might have been as easy for him to do it, as to give an account of himself in Lincoln's-inn-fields. And if this man was only forced to throw up his hat and huzza, and got from them as soon as he could, bis nearest way to Strand-bridge was not by Great Queen-street; and then how comes he to come back again? But if he set them on in Drury-lane, it was then very proper for him to come back and visit his friends that he had left in Lincoln's-inn-fields, and see how the work he left them to do went on. Then the time that the waterman carried him over is right; that after all was done, he should go home; but it does not appear which way he went, and he might do all these things charged, and yet go home at that time. As to his defence that he was forced, there is only Wood and the man that went to see his apprentice. Cummins only saw him receive a blow for not pulling off his hat; and says, he was shoved about by the mob: but it is plain, he was one of them that forced the soldier to huzza and pull off his hat, and there is nothing to contradict that. They take notice of bis being in drink; it is reasonable to think it was so, but that is not to be any excuse at all: I believe a great many of those people might be in drink, and that is a fit preparation for such enterprizes as these; when men are going to act so contrary to law, they ought to prepare themselves for it by drink, and a little more might carry them to any other houses; nay, might carry them to St. James's. If a man be guilty of a crime of so great consequence, it is no excuse that he is in drink: it is a crime that he is in drink; but he was not so far disordered, but he knew what he was about: he could lead them to Drury-lane, tell them that he would have all the meeting-houses down, and use proper words to encourage them: therefore that drink, that does not disable him from In Purchase's Case, the Chief Justice seems to lay rather more stress upon such a variance. doing mischief, must not be an excuse for doing it.* As to his reputation, I ought to take notice to you what I think is the nature of that sort of evidence, and the proper weight that is to be given to it. When a man is accused of any crime that is wicked or dishonest, and it is not fully proved upon him, but it is in doubt; then his reputation is of great moment, because it is not to be thought that a man of a good reputa tion would be guilty of such a crime as carries slander with it. But you will consider, in the first place, that that is not to prevail against positive evidence, if you believe the witnesses; if so, a man must always escape the first crime he is guilty of. But there is another unfortu uate circumstance I must observe, that we are in a time when many people were led into a belief, that doing these actions was a com. mendable thing; that it was a shewing their zeal to the queen and the church; and I doubt not, but many of them that were concerned in this matter were poor mistaken men that thought they were doing their duty, and what did well become them. And if that be the case, then his reputation and good behaviour before is of no consideration. * See vol. 7, p. 150. Leach's Hawk. Pl. Cr. book 1, ch. 1, s. 6. Paley (Principles of Moral and Political Philosopby, b. 4, chap. 2,) has some casuistical learning on the guilt of drunkenness, in so far as it subjects the drunkard to the hazard of committing crimes, which in a state of sobriety he would not commit. comments on a representation of Eschines, Fielding (Tom Jones, book 5, chap. 9,) thus that drunkenness exhibits the character of the mind, as a mirror exhibits the features of the countenance: "Nothing is more erroneous than the common observation, that men, who are ill-natured and quarrelsome when they are drunk, are drink, in reality, doth not reverse nature, or very worthy persons when they are sober: for create passions in men, which did not exist in them before. It takes away the guard of reathose symptoms, which many, when sober, son, and consequently forces us to produce have art enough to conceal. It heightens and passion which is uppermost in our mind,) so inflames our passions, (generally indeed that that the angry temper, the amorous, the generous, the good-humoured, the avaricious, and all other dispositions of men, are in their cups heightened and exposed.” This Case of Dammaree was referred to in the Trial (March, 1737, before the Court of Justiciary in Scotland) of William Maclauchlan, for being one of the Porteous mob (Mac-Laurin, 633,) wherein the excuse of drunkenness was alleged, and authorities from the civil law cited as to the point. See also Barrington's Observations on Statutes made 2do vulgo primo Jacobi: Blackst. Comm. book 4, chap. 2, s. 3. |