by the case of several persons in Oxfordshire rising to pull down inclosures in general, resolved accordingly; in which case it was also resolved, that if any persons rise and assemble fensive acts by the Jury, not the judge. Thus certain treasonable consultations, or outrageous acts of riot may be presumed by a Jury to shew an intention of levying war, if they were continned; which yet in the first instance, and of themselves would not amount to levying war. There might likewise be some small and feeble efforts made, from which a Jury might infer an intention of rebellion, though they might not be in their nature capable of being executed according to the intention. "Secondly, because it assumes the unjust and ill-founded constructions of this article of the statute of Treasons, (which derive their only authority from the questionable decisions) to have made the just and true construction of that law; and then applies this as the law, to the fact of the intention, before it is so found by the Jury. "The prosecution of the Apprentices seems to have proceeded according to my mode of reasoning: For if the contrary doctrine had prevailed, their conduct would have been held to be levying war itself. Yet the indictment against them was confined to the statute of the Queen; and the judges decided upon the intention, which it made treason, from that conduct. Whereas, according to Kelyng, they might have been indicted upon the statute of Edward the third. But the course then taken by the Attorney General, and the resolution of the judges, are a stronger proof of the rule of law than the reasoning of Kelyng. He urges the same arguments in pp. 20, 21, 22, of his Reports, against the opinion of Coke before mentioned, who holds the case of Bradshaw and Burton not to be treason by the statute of Edw. 3. Such artificial deductions of guilt are too dangerous to be followed. together with intent to levy war, the justices of the peace and sheriffs may use force to suppress such rebels, without any special commission or warrant, and this by the common-law. during his practise at the bar, and is noticed in abstract in the proper section of his comnon-place book, which I have seen. "The following is the report of Cro. Car. 583. termini, was indicted and arraigned before "Thomas Bensted, die Jovis post clausum in Southwark, wherein all the justices and special Commissioners of Oyer and Terminer barons were in commission and present. At tices it was resolved, First that going to Lamwhich time upon conference with all the jusbeth house in warlike manner, to surprise the Archbishop, who was a Privy Counsellor, (it being with drums and a multitude, as the indictment was, to the number of 300 persons) was Treason.'. "It is not said of what species of treason, and is as good for the first clause of the sta tute, as the second. Foster in treating of another point of this case (p. 345,) says it was for levying war, but does not refer to his authority. "The rest of the report relates to other matters; but shews a strange negligence in the reporter, who was one of those judges. He makes one of the points resolved, to arise out of a statute; whereas it was a case in the Year Book: And the statute referred to was not in force, if the application were just. On one of of their judgment. [Pp. 344, 5. See also 1. those likewise Mr. Justice Foster disapproves Hal. P. C. p. 269, and the note there.] The learned judge, among his objections to this case, takes no notice of the one which weighs strongest with me, viz. That the Ship Money judges were not fit to be trusted with the determination of constructive treason, or of any point of constitutional law, in the year 1640, or in which the Court and archbishop Laud were parties. I appeal to lord Clarendon's History for this part of their characters. "The next case is Bensted's, reported in Cro. Car. 583, for a tumult at archbishop Laud's palace in 1640, designed against his life, when he was of the Privy Council. It is [For the Case of Ship Money, and the opinions not necessary for me to argue against this case, of the judges thereon, see vol. 3, p. 825, of this because that has been already done by higher Collection. Whitelocke, in his Memorials, A. D. authority. Mr. Justice Foster takes pains to 1636, has the following passage respecting Croke: prove it deficient, and formally rejects it. "Judge Croke (of whom I speak knowingly) [Disc. pp. 211, 213, 345.] He is so far on was resolved to deliver his opinion for the king, my side in this argument. Yet to me it seems and to that end had prepared his argument: as reasonable in its principles as any of the Yet a few days before he was to argue, upon foregoing, and perhaps better intitled to rank discourse with some of his nearest relations, as a precedent; because of later date, and and most serious thoughts of this business, and founded, as we may presume, on a considera- being heartened by his lady, who was a very tion of them. Then by not depending on a good and pious woman, and told her husband temporary statute, it becomes a more direct upon this occasion, That she hoped he would decision upon the statute of Edward the third. do nothing against his conscience, for fear of Nor can I see why it should be less respected any danger or prejudice to him, or his family; than Messenger's case, if that is to hold; for and that she would be contented to suffer the Judges of the latter expressly approved of want, or any misery with him, rather than it. Sir Matthew Hale refers to it without cen- be an occasion for him to do, or say any sure, [1. Hal. P. C. 141, 152.] and with as thing against his judgment and conscience. much respect as to the rest. It happened-Upon these and many the like incourage. law, arm themselves, to suppress riots, rebellions or resist enemies, and endeavour themselves to suppress such disturbers of the peace: But they said the most discreet way was for every one And see Popham's Reports, p. 121 and a resolution of all the judges, 39 Eliz. That any justice of the peace, sheriff, or other magistrate, or any other subject of the king, may, by the commonments, but chiefly upon his better thoughts, he suddenly altered his purpose and arguments; and when it came to his turn, contrary to ex-bably let us into the true reason and motives pectation, he argued and declared his opinion against the king." See the Cases of Dammaree and others, and of George Purchase, A. D, 1710; and the Notes to those Cases.] "This tumult is mentioned by the archbishop in his Diary, in general terms. He speaks of 500 persons there. Lord Clarendon says some thousands. Whitelock, treating of it more like a lawyer, considers the judgment to have depended on the circumstance of warlike manner with a drum. [The following is Foster's account of this Case: the archbishop in pieces. These circumstances, could we come at them, would pro of the rising, and consequently into the reason and grounds of the opinion of the judges: for if it did appear by the libel or by the cry of the rabble at Lambeth-house, that the attempt was made on account of measures the king had taken or was then taking at the instigation, as they imagined, of the archbishop; that the rabble had deliberately and upon a public invitation attempted by numbers and open force, to take a severe revenge upon the privy-counsellor for the measures the sovereign had taken or was pursuing; if this may be supposed to be the case, I think the supposition is not very foreign, the grounds and reasons of the resolution would, in my opinion, be sufficiently excumstance of the drum into the case. Upon such a supposition, the case came within the reason of Talbot's case 17 R. 2, cited by Hale, and I think too within the rules laid down in the two preceding sections. But without the help of some such supposition, I see nothing in the case, as stated by the report, which can amount to High-Treason."] "It was adjudged in the 16 Charles 1, a season of great agitation, that going to Lambeth-plained, without taking that little trifling cirhouse in a warlike manner to surprize the archbishop, who was a privy-counsellor, it being with drums and a multitude to the number of 300, was Treason. "This is a very imperfect account of an insurrection which hath found a place in the best histories of that time. The tumult happened on Monday the 11th of May 1640 about mid-night. On the Thursday following the special commission, under which the judges sat, was opened and proceeded upon; and Benstead a ring-leader in the tumult was convicted, and within a very few days afterwards executed. "It is not easy from the short note of the case given by the reporters to collect the true grounds of this resolution: but the history of the times will enable us to form a probable conjecture concerning them. "On the 5th of May the parliament was dissolved to the general dissatisfaction of the nation: and, which greatly increased the illhumour of the people, the convocation was, by a new commission, impowered to continue sitting, notwithstanding the dissolution of the parliament. And the blame and odium of both these unpopular measures were laid upon the archbishop. "On Saturday the 9th of that month a paper was posted up at the Exchange exhorting the apprentices to rise and sack the archbishop's house upon the Monday following; and accordingly on that very day an attempt was made upon Lambeth-house by a rabble of some thousands, with open profession and protestation, that they would tear the archbishop in pieces. "It were to be wished, that the full import of the libel posted at the Exchange, in consequence of which the attempt was made, had been set out; and also that we were informed what was the cry among the rabble at the time of the attempt, more than that they would tear "The case of Messenger for pulling down bawdy houses, is the next in order of time, and the most extraordinary of all these constructions of the law. It happened in 1668, and is reported at length by Chief Justice Kelyng, who presided at the trial. The following is the construction of the statute of treason, established on this occasion, viz. That a tumultuous rising of four or five hundred persons some of whom have clubs and swords, with a green apron borne on a pole for an ensign, led by one with a drawn sword, who cry Down with the bawdy-houses, and proceed to pull them down tumultuously, and beat a constable who op poses them, is levying war against the king, and high treason within the statute of treasons. Eleven judges, upon full consideration of a special verdict, were of this opinion, contrary to that of Sir M. Hale then Chief Baron, who was the only dissentient. The ruling opinion was founded upon the cases and authorities before related. The statute 13, 14 Cha. 2, of the same sort as that of 13 Eliz. does not appear to have been resorted to upon this occasion. The Chief Justice states their resolution in these words, "This rising with intent to pull down bawdy-houses in general, or to break open prisons in general and let out prisoners, and putting their intention in execution by force, any of these instances is a levying war against the king, and high treason at common law, within the declaration of the statute 25 Ed. 3." "If any of the arguments before urged against the former cases, have induced the reader to to attend and assist the justices in such case, move counsellors, or to any other end pretendor other ministers of the king in doing it: Anding reformation on their own heads without Coke, Pl. Cor. 9. If any levy war to expulse strangers, to deliver men out of prison, to redoubt of their authority, he will not be inclined to respect the present, which was founded upon them. It seems likewise to be as obscure as to its external history, as that of Bensted, which for this defect is specially objected to by Mr. Justice Foster. "The title which it bears in the State Trials is thus, "The Trials of P. M. &c. for high treason, in tumultuously assembling themselves in Moorfields, and other places, under colour of pulling down bawdy-houses." In Kel. 70, it is "on pretence to pull down bawdy-houses and break open prisons, and set prisoners at liberty." The Chief Justice in summing up to the Jury says, "These people pretend their design was against bawdy-houses." "The account of the trial begins thus, "Upon Easter Monday last, the usual time for the apprentices liberty for their civil recreations, a rude multitude of people met together in Moorfields, where being so assembled, they were instigated by some factious persons among them; who, to colour their design, insinuated into the rabble the pulling down of bawdy-houses. Under which colour of reforming bawdy-houses, they at length raised a great hubbub, and so increasing in their disorders in a tumultuous manner, committed many notorious crimes." If we may rely on the short account given of the speech of the king's counsel, they made little or no mention of pulling down bawdyhouses, but most of the falling upon the king's officers and beating them, and breaking the prison and letting out prisoners. The evidence shews that the cry of the mob was, Down with the red coats,' as well as 'Down with the Bawdy-houses,' and the most prevailing; and if the king did not give them liberty of 'conscience, that May day must be a bloody day;' and that they would come and pull Whitehall down,' (at that time the king's residence.) warrant, this is a levying of war against the king. because they took upon them royal authority. fair to argue, that there was something more in this case than the forensic accounts of it import; and that it may have been considered to be an insurrection against the government; at that time become unpopular on account of the recent disgrace of the Dutch war, and the loose manners of the court. The cry for liberty of conscience, may lead to one cause of the disturbance. The king had then lately issued a proclamation upon the address of parliament, against conventicles, which woefully disappointed the dissenters: For they had flattered themselves with hopes of indulgence, after the earl of Clarendon's fall, which was then recent. The earl's great enemy, the duke of Buckingham, become chief minister, is said to have encouraged them in these hopes. Perhaps this riot was the first outward shew of public discontent, and therefore was thought to require suppression with extreme rigour. The Chief Justice seems to have been actuated by some such principle. "The state of men's minds within so few years after the Restoration, of the Cavaliers especially and their connections, who had suffered severely from popular assemblies, and still felt the smart of their oppression, should be taken into the account. Most of the judges had been of the suffering party. The Chief. Justice had the character of a violent Cavalier; an excusable fault in one who had suffered under the Usurpation. But I am afraid he carried this quality too far, and exercised his power arbitrarily. He was accused in the House of Commons, in the year next before this trial, of fining jurymen, and brought to answer for it at their bar. Yet he was only censured in the committee, by a vote which was never confirmed by the House. [9 Com. Journ. 85, 37.] The above circumstances may have operated in part, to bring about the decision of "Upon seeing sir Philip Howard at the head this case. But such a decision ought not to of the guards, they took him for the Duke of have outlived its generation. It will not bear York, and were on that account more irritated, the scrutiny of cool reflection, and is unworthy and threw stones at him. The Chief Justice of appearing as a precedent under that happy dwells upon these circumstances, in his address administration of justice which we have enjoyto the Jury. Other parts of his speech deserve ed since the Revolution; and more especially consideration-asAfter all this trouble we under the government of the house of Hanover, have had in this nation, it is a sad thing that a which that glorious event procured to us. It number of giddy-headed people must gather is fit only for the Star-chamber, and such mitogether under pretence of reformation, to dis-nisters and magistrates as a race of Tudors turb the peace of the nation again.' And and Stuarts would employ to pervert the again, This thing is of desperate consequence. We must make this for a public example: There is reason we should be very cautious. We are but newly delivered from rebellion; and we know that that rebellion first began under the pretence of religion and the law For the devil hath always this vizard upon it.' In his own report he uses similar expressions. "These circumstances being considered, it is laws. "Sir Matthew Hale's learning and eminence confirm this observation with the force of legal argument and authority. His opinion is worth that of a host of his brethren. He differed from them in this judgment; and if weight and not number will establish truth, his rea soning must prevail. His argument is modestly stated by himself thus, [1 Hale H. P. C. And Moor's Reports, pag. 620, 621. in the case of the earl of Essex, in which, amongst other things, it was resolved, that his attempt with force to remove the queen's counsellors was High-Treason and likewise that the earl of Southampton, who adhered to him, although he knew of no other purpose of the earl of Essex, but a private quarrel against some of the queen's servants, yet this was treason in him, the act of the earl of Essex being rebellion and treason; and so it was also resolved that all those who went with him out of Essex house in aid of him, it was Treason in them whether they knew any thing of his intent or not. And Cro. part 1. 583, in Benstead's case, it was resolved by all the Judges, that going to Lambeth-house in warlike manner with drums, and a multitude, as in the Indictment, to the number of three hundred, &c. to surprize the archbishop, who was a privy counsellor, was treason. And, 2dly, It was resolved that the justices of Oyer and Terminer may sit, enquire and try prisoners all in one day. 3dly, It was resolved, that the breaking of a prison, wherein traitors were in durance, and causing them to escape, was treason, although the parties did not know that traitors were there. And so to break a prison whereby felons escape, this is felony, though they do not know them to be in prison for such offence. Note, That resolution as to breaking a prison where felons, &c. are, must (as I think) be intended only where the intent was only to break open one prison, and no more; for if the design was to break open prisons in general, and they put that in execution as to one prison, that is High Treason according to the books before cited; but then on the evidence it must be proved that their intent was such, and by such proof as satisfieth the jury. After this Resolution in general, we went to consider the particular cases as they were found upon the several special verdicts; and thereupon it was agreed by all of us, except the Chief Baron, who said he doubted on the main; that as to Messenger and Beasley in the first verdict, and to Cotton in the second special verdict, and as to Limerick in the fourth special verdict, that the matter, as it was found against these four, was high treason in them 134.] He dissented, "First, because it seemed but an unruly company of apprentices. Secondly, because the finding To pull down bawdy-houses, might reasonably be intended two or three particular bawdy-houses; and the indefinite expression should not, in materiá❘ odiosa, be construed either universally or generally. Thirdly, because the statute 1 Mar. c. 12, though now discontinued, makes assemblies of above twelve persons, and of as high a nature, only felony. And that not without a continuance together an hour after proclamation made; as namely an assembly to pull down, &c.—And the statute 3, 4 Ed, 6, c. 5, is to the same purpose.""" * See vol. 1. p. 1333. all, and accordingly they had judgment, and were executed: but as to Appletree in the first special verdict, and as to Latimer in the third special verdict, there was difference in opinion amongst us, whether the verdict was sufficiently found against them to judge it high-treason or not. For besides the Chief Baron, who was against all, my brother Atkins, Tyrell, Windham, and Wylde, held that the verdict was not sufficient against those two, for to give judgment that they were guilty of treason; because, they said, it was not expressly found that they were aiding and assisting. But myself, brother Turner, Twisden, Archer, Raynsford, and Moreton, thought the verdict, as it was found against them, to be as full and plain as any of the rest. For first, as to Appletree, the verdict first finds in general, that the number in the indictment were assembled, as in the indictment, with an intent to pull down bawdyhouses: that Beasley led them as their captain; that Messenger had a green apron upon a staff, which he flourished as colours; and then that Appletree, the person now in question, was amongst them both the days, and was the first that struck at Peverell the constable, and was amongst them at Burlingham's house at Saffron-Hill, and pulled part of that house down, and the next to it, and struck at one that admonished him to be quiet; so that here are several acts of force found to be actually committed by him in pursuance of their design, and then there is no need to find him to be aiding and assisting for that clause, we said, was only necessary to be found where the jury find a person was there among them, and find no particular act of force done by him, but only his presence, there it is necessary that they find he was present aiding and assisting. And for the same reasons we held the verdict to be full also against Latimer, because it was first found that the multitude was assembled, as in the indictment, on pretence of breaking prisons and releasing prisoners in general, which is agreed by all (except the Chief Baron Hale) to be treason; and then they find that Latimer was amongst them, and active in breaking open the prison at Clerkenwell (where prisoners, some for felony, and others were let loose), and that he was with the rest in the prison after it was broken open, and so an act fixed upon him. But although six of us were well satisfied in our judgments as to them, yet when I waited on the king, I acquainted him there was some difference in opinion as to those two, upon finding of the special verdict; and although the greater number of us were of opinion, that the verdict was well found as to those also, yet I intreated his majesty to make use of that difference in opinion to shew his mercy towards them, the rather because we had agreed, that as to four of them the verdict was clearly good as to proceed to judgment against them, and that I hoped would be example enough to deter others from the like practices; and besides it would appear an instance of his majesty's great mercy that he : would not proceed to the last extremity against any, where there was not a full concurrence of all his judges: which his majesty was pleased to take very graciously, and ordered me to proceed accordingly, and so they two were spared. But as to Green in the first special verdict, and Bacile in the third special verdict, we all agreed, that the verdict was not full enough as to them, for us to judge it treason, in them, because the verdict only finds * See 4 Burrow, 2080. that they were present, and finds no par- 228. Proceedings against the Earl of ORRERY, on an Impeachment of High Crimes and Misdemeanors: 21 CHARLES II. A. D. 1669. November 25, 1669. À PETITION of sir Edward Fitzharris, bart. Mr. Garroway moves to bave the point of time asserted when these things were done: if the Petitioners had concealed it long, then his majesty was in danger. The Petitioners were then called in, and affirmed the words spoken and things done, since the Act of Indemnity. Colonel Sandys moved it to be taken into consideration; and attributed our misfortunes to monies so disposed of. Sir R. Carr moves that the treasonable words may be read, and the gentlemen of the long robe may give their judgments what they amount unto. Serj. Maynard. The charge is general, treason and misdemeanor. He thinks the words are treason. 25 Edw. 3rd, is the measure of treason. Sir Fr. Goodrick. ders. Lord Cavendish takes him down to the OrNot proper to launch into any thing that is not in the business before us. Mr. Edw. Seymour. The charge had not been brought against lord Orrery, if one had been brought against the duke of Ormond. Sir R. Howard. The earl of Meath came to acquaint him with his business, which he will tell you more of hereafter-Moves that the business may be prosecuted, and that if lord Orrery cannot come he may be brought in a chaise. What way would you go, pray resolve on presently: on 25 Edw. 3rd he cannot be accused; if on 13 Car. 2, it lies at their doors that so long have concealed it. Sir Tho. Lee. Common fame has made these two great lords enemies. He hopes, by their falling out, the king and his subjects may be the better for it. Sir R. Temple thinks the words are a misprision of the king's government: words though not treason, may he evidence of treason; if they do design to perpetrate some treason, they are treason: would have the Petitioners called in, to know whether they have two witnesses to prove these words. By too long silence, they might have time to execute their treason. you conclude it treason, the person must hear his charge read in his place, and his answer, and then withdraw. Words make not a treason, but this is by act 25 Edw. 3rd. Mr. Edw. Seymour. We have found that a Sir Job Charlton cites Pine's case, That the The charge of high treason in the House of Commons, is a remedy for the gout. Wonders that ́king was a fool, and unfit to govern.' the words have been called in question, re- Irish Friar at Lisbon, who said, "He would come This had over to kill king James,' was guilty of treason. flecting on the duke of Ormond.' Mr. Swynfin would be informed how you never been brought in question, if those had been silenced-Would have him summoned; will proceed, in order to information where He must first but if he cannot come, would have his charge he may be tried, the treasonable words being said to be spoken in Ireland. sent him. be heard, and witnesses must be examined. The words may be treason, or not treason, according to circumstance: Thinks it a parliamentary way to appoint some short time for examination of witnesses, and then call it what you will, and draw up the charge. Colonel Sandys. Would know who the persons are Seymour mentions. Sir R. Howard. No discourses of well or ill men should come before us, when a person is accused. It is a hard thing these words should have been concealed thus long; no man can make this treason by 25 Edw. 3. Mr. Garroway would not have him committed, but heard in the house: would have the * Neither the Petition nor the Articles of Petitioners give security to prosecute, and the member likewise be secured to appear. Impeachment are entered in the Journals. VOL. VI. 3 N |