these Objections First as to that that you do say that you are bound to Conceal your Councels and the Kings secrets that is very true as to your Councels that is your Debates you are bound to conceal them As to the Kings secrets so long as he will have them kept secret you are bound to keep them so too but it doth not deprive the King of the benefit of having it publick if he have a desire for it you don't break your Oath if the King will make it publick you don't make it publick 't is the King does it Then as to that that you do say that you apprehend the common usage of the Kingdom to be a Law that is true Mr. Papillon in some sence a constant and uninterrupted usage goes for a Law among us but I thought I had told you before that both of ancient and later times there have been Examinations of the Witnesses in Court in Cases of this nature and we are not without presidents of it every Year every Term continually from time to time Evidence is heard in Court by the Grand-Jury it is as usual a thing with us as any thing if it be desired nothing more frequent or more common I never heard it deny'd or stood upon by any Grand-Jury in my life till of late here you may be instructed with a thousand presidents for I am sure it is a common and ordinary case upon such occasions if desired to hear the Evidence in Court Look ye Gentlemen as to that care that you have of the Kings affairs the King has reason to take it well that you are so careful for them and that you are so mindful of his concerns he hath a great deal of reason to think well of you for it And Gentlemen consider this that His Majesties Council have certainly considered of this Evidence before they brought this to a publick Enquiry or else it would be a hard thing if they should come raw and not know what the Witnesses can say for though you are the Jury to hear the Witnesses yet you must consider that the Kings Council have Examined whether he hath cause to accuse these persons or not and Gentlemen they understand very well that it will be no prejudice to the King to have the Evidence heard openly in Court or else the King would ne're desire it Foreman My Lord the Gentlemen of the Jury desire that it may be Recorded that we insisted upon it as our Right but if the Court o're rule we must submit to it L. C. J. Here are enough persons to take notice of it to make Records of such things is not usual it is not our business here to record every thing that every man will desire to be Recorded We can Record nothing but what is in Order to the Proceedings but notice enough is taken of it you need not fear but that there will be Witnesses enough L. C. J. North. Gentlemen I must say something to fortifie what my Lord Chief Justice has said If any of us had been of a different opinion we would have spoken it the same thing was stood upon and discoursed on the last Sessions and then all the Judges were of this opinion and in what all the Judges agree to you should acquiesce I must tell you from my own experience where the King will he ought to have it kept secret I have not known it done publiâ—kly in the orderly course of business but I have often known wherâ—… hath been desir'd by those which Prosecute for the King that Evidence hath been given openly and I never knew it deny'd If any of my Brothers think otherwise I desire they would speak but I tell you as to my experience this is the case Mr. Sheriff P. I desire the Witnesses may be kept out of the Court and called one by one L. C. J. It is a thing certainly that the King's Council will not be afraid of doing but Sheriffs do not use to move any thing of this nature in Court and therefore 't is not your Duty Mr. Sheriff to meddle with it Sheriff P. It was my Duty last time my Lord and appointed Mr. Att. Gen. You were acquainted 't was not your Duty last time and you appear against the King Then the Indictment was Read London ss THE Jurors for our Soveraign Lord the King upon their Oaths present that Anthony Earl of Shaftsbury late of the Parish of St. Martins in the Fields in the County of Middlesex as a false Traytor against the most Illustrious and most Excellent Prince our Soveraign Lord Charles the Second by the Grace of God of England Scotland France and Ireland King his Natural Lord the fear of God in his heart not having nor weighing the Duty of his Allegiance but being moved and seduced by the Instigation of the Devil the Cordial Love and true due and natural Obedience which true and faithful Subjects of our said Soveraign Lord the King towards him our said Soveraign Lord the King should and of right ought to bear wholly withdrawing and with all his strength intending the Peace and common Tranquillity in this Kingdom of England to disturb and War and Rebellion against our said Soveraign Lord the King to stir up and move and the Government of our said Soveraign Lord the King within this Kingdom of England to subvert and him our said Soveraign Lord the King from the Title Honour and Regal Name of the Imperial Crown of his Kingdom of England to Depose and Deprive and Him our said Soveraign Lord the King to death and final destruction to bring and put the 18th day of March in the Three and thirtieth year of the Reign of our Soveraign Lord Charles the Second now King of England and divers other days and times as well before as afterward in the Parish of St. Mary Le-Bow in the Ward of Cheap London Trayterously compassed imagined and intended the Death and Final Destruction of our said Soveraign Lord the King and the ancient Government of his Kingdom of England to change alter and wholly to Subvert and Him our said Soveraign Lord the King from the Title Honour and Kingly Name of his Imperial Crown of this Kingdom of England to Depose and Deprive and War and Rebellion against our said Soveraign Lord the King to move and levy within this Kingdom of England and his said most wicked Treasons and Trayterous compasses imaginations and purposes aforesaid to fulfill and perfect he the said Anthony Earl of Shaftsbury as a false Traytor with divers Armed men Subjects of our said Soveraign Lord the King then being maliciously trayterously and advisedly did provide and prepare to be aiding to him the said Earl of Shaftsbury to fulfill and perfect his Treasons aforesaid And his said wicked Treasons Trayterous compasses imaginations and purposes the sooner to fulfill and perfect he the said Anthony Earl of Shaftsbury as a false Traytor with one John Booth and other Subjects of our said Lord the
against the King and Supreme Authority and that they had prevailed so far as to Murder one King and Banish another and had gone a great way in the destruction of the Government of this Kingdom absolutely to root it quite out They had reason then as much as they could to prevent the Designs before they should grow full ripe and vent themselves in Overt-Acts therefore it was Enacted by that Statute made in the 13th year of this Kings Reign That if any one should Compass Imagine or Intend the Death of the King or his Destruction or any bodily harm that might tend to his Death or Destruction or any Maiming or Wounding his Person any Restraint of his Liberty or any Imprisonment of him or if any should design or intend to Levy any War against him either within the Kingdom or without or should design intend endeavour or procure any Foreign Prince to Invade these his Dominions or any other of the Kings Dominions and should signifie or declare this by any Writing or by any Preaching or Printing or by any advised malicious speaking or words this shall be High-Treason Now this hath altered the former Law greatly especially in two Cases First as to Levying of War the Intention was not Treason before unless it had taken effect and War had been actually Levied And then as to the Designing and Compassing the Kings Death that was not Treason unless it was declared by an Overt-Act And as to the Imprisoning or Restraining of the Liberty of the King they of themselves alone were not High-Treason but now by this Law these are made Treason by this Law during his Majesties Life And the very designing of them whether they take effect or not take effect though it be prevented before any Overt Act by the timely Prudence of the King and his Officers though it should be timely prevented that there is no hurt done yet the very design if it be but utter'd and spoken and any ways signified by any discourse this Gentlemen is made Treason by this Act and this hath wrought very great alteration in the case of Treason now formerly it was said and said truly enough that Words alone would not make Treason but since this Act Gentlemen Words if they import any malicious design against the Kings Life and Government any Trayterous intention in the party such words are Treason now within this Act And this Act was made with great Prudence and with great Care to take off that undue Liberty that men had taken to themselves in those times of Licentiousness people had taken to themselves an undecent and undue liberty to vent all their Seditious and Malicious minds one to another without any restraint at all Therefore now Gentlemen you must consider that Words if they signifie or purport any Trayterous intention or design in the party either against the King or his Government either to restrain his Liberty or Imprison him or to do him any bodily hurt or any Crime of that nature this is Treason within this Act of Parliament Look ye Gentlemen now as to the Indictments that shall be brought before you you are to consider these things 1. Whether the Matter contained in them and which you shall have in Evidence be Matter of Treason within the former or this Act of Parliament And here if you doubt of it then you must advise with us that are Commissionated by his Majesty to Hear and Determine these Crimes and in Matters of Law we shall direct you And you are to enquire if there be two Witnesses that shall testifie the Matters in Evidence to you for without two Witnesses no man is to be Impeached within these Laws but if there be two Witnesses that shall testifie to you Matters to make good the Indictments then you have ground to find the Indictments But I must tell you as to this case of two Witnesses it is not necessary that they should be Two Witnesses to the same words or to words spoken at one time or in the same place that is not necessary If one be a Witness to words that Import any Trayterous design and intention spoken at one time and in one place and another testifie other Seditious and Trayterous Words spoken at another time and in another place these two are two good Witnesses within this Statute and so it hath been solemnly resolved by all the Judges of England upon a solemn occasion Look ye Gentlemen I must tell you That that which is referr'd to you is to consider whether upon what Evidence you shall have given unto you there be any reason or ground for the King to call these persons to an account if there be probable ground it is as much as you are to enquire into You are not to Judge the persons but for the Honour of the King and the Decency of the Matter it is not thought fit by the Law that persons should be Accused and Indicted where there is no colour nor ground for it where there is no kind of suspition of a Crime nor reason to believe that the thing can be proved it is not for the King's Honour to call Men to an Account in such cases Therefore you are to enquire whether that that you hear be any cause or reason for the King to put the Party to answer it You do not Condemn nor is there such a strict Enquiry to be made by you as by others that are sworn to try a Fact or Issue A probable cause or some ground that the King hath to call these persons to answer for it is enough Gentlemen for you to find a Bill 't is as much as is by Law required Gentlemen you must consider this That as it is a Crime for to condemn Innocent persons so it is a Crime as great to acquit the Guilty and that God that requires one of them requires both so that you must be as strict in the one as you would be in the other And let me tell you If any of you shall be Refractory and will not find any Bill where there is a probable ground for an Accusation you do therein undertake to intercept Justice and you thereby make your selves Criminals and Guilty and the fault will lye at your Door You must consider Gentlemen you are under a double Obligation here to do Right you are under the Obligation of English-men as we are all Members of one great Body of which the King is Head and you are engag'd as English-men to consider That Crimes of this Nature ought not to go unpunish'd Then you have an Oath of God upon you you are here sworn to do according to what the Evidence is Now therefore if you have two Witnesses of Words that may import a Treasonable Design or Intention in any of those Parties against whom you shall have Indictments offer'd to you you are bound both by the Law of Nature as you are Members of this Body and by the Law of God as you have taken
an Oath upon you for to find those Bills Gentlemen Compassion or Pity is not your Province nor ours in this case there is no room for that in Enquiries of this nature that is reserv'd to an higher and superiour Power from which ours is deriv'd Therefore Gentlemen I must require you to consider such Evidence as shall be given you and to be impartial according to what you shall hear from the Witnesses if you have ground upon what Evidence you shall have given to you to believe that there is any reason or cause for the King to call the persons named in such Indictments as shall be tender'd to you to answer for what is objected against them therein you are to find those Bills that is all that I shall say to you only pray God to direct you in your Enquiry that Justice may take place Then a Bill of High-Treason was offer'd against the Earl of Shaftsbury and Sir Francis Withens moved That the Evidence might be heard in Court L. C. J. Gentlemen of the Jury You hear it is desired by the King's Council and that we cannot deny that the Evidence may be publickly given that it may not be hereafter in the Mouths of any ill-minded persons abroad to scatter any Mistakes or Untruths up and down or to slander the King's Evidence or to say any thing concerning them that is not true Therefore we cannot deny this motion of the King's Council but desire that you will take your places and hear the Evidence that shall be given you The Jury then desired a Copy of their Oath which the Court granted and then they withdrew After some little time they returned and then the Clerk called them by their Names Foreman My Lord Chief Justice it is the opinion of the Jury that they ought to Examine the Witnesses in private and it hath been the constant practice of our Ancestors and Predecestors to do it and they insist upon it as our Right to Examine in private because they are bound to keep the King 's Secrets which they cannot do if it be done in Court L. C. J. Look ye Gentlemen of the Jury it may very probably be that some late usage has brought you into this Error That it is your Right but it is not your Right in truth For I will tell you I take the reason of that use for Grand Juries to Examine the Witnesses privately and out of Court to comply with the Conveniencies of the Court for generally upon such Commissions as these are the business is much and at Gaol-Deliveries there are a great many persons to be Indicted and Tried and much other Work besides of other natures to be done And if at such times we should examine all Businesses publickly in the Court it would make the business of these Commissions of a wonderful great length and cumbrance Therefore the Judges for the conveniency of the matter have allow'd That Witnesses should go to the Jury and they to Examine them not that there is any matter of Right in it for without question Originally all Evidences were given in Court the Jury are Officers and Ministers of the Court by which they enquire and Evidence sure was all given in Court formerly and the Witnesses still are always sworn in Court and never otherwise And Gentlemen I must tell you 'T is for your Advantage as well as for the King 's that it may be sure that you comply with your Evidence that you do nothing clandestinely therefore 't is for your advantage that this is done and the King likewise desires it Now I must tell you That if the King require it of us and it is a thing that is in its Nature indifferent we ought to comply with the King's desire to have it examin'd in Court you shall have all the liberty that you can have in private what Question soever you will have ask'd your selves shall ask it if you please and we will not cramp you in Time nor any thing of that Nature Therefore Gentlemen there can be no kind of reason why this Evidence should not be given in Court What you say concerning your keeping your Councels that is quite of another Nature that is your Debates and those things there you shall be in private for to consider of what you hear publickly But certainly it is the best way both for the King and for you that there should in a case of this nature be an open and plain Examination of the Witnesses that all the World may see what they say Foreman My Lord if your Lordship pleases I must beg your Lordship's pardon if I mistake in any thing it is contrary to the sence of what the Jury apprehend First They apprehend that the very words of the Oath doth bind them it says That they shall keep the Council's and their own Secrets Now my Lord there can be no Secret in publick the very intimation of that doth imply that the Examination should be secret besides my Lord I beg your Lordship's pardon if we mistake we do not understand any thing of Law Mr. Papillon Your Lordship is pleased to say That it hath been the common usage and practice sometimes my Lord we have heard that that hath been the Law of England that hath been the Custom of England If it be the ancient usage and custom of England that hath never been alter'd from time to time and hath continued so we desire your Lordship's Opinion upon that as we would not do any thing that may be prejudicial to the King so we would not do the least that should be prejudicial to the Liberties of the People if it be the ancient Custom of the Kingdom to Examine in private then there is something may be very prejudicial to the King in this publick Examination for sometimes in Examining Witnesses in private there come to be discover'd some persons Guilty of Treason and Misprision of Treason that were not known nor thought on before Then the Jury sends down to the Court and gives them intimation and these men are presently secur'd whereas my Lord in case they be Examined in open Court publickly then presently there is intimation given and these men are gone away Another thing that may be prejudicial to the King is that all the Evidences here will be foreknown before they come to the main Tryal upon issue by the Petty-Jury then if there be not a very great deal of care these Witnesses may be confronted by raising up Witnesses to prejudice them as in some cases it has been Then besides the Jury do apprehend that in private they are more free to Examine things in particular for the satisfying their own Consciences and that without favour or affection and we hope we shall do our duty L. C. J. Look ye Mr. Papillon it is reasonable that we should give you our advice in this case I must tell you if you had consider'd of what I had said before I thought I had obviated
Destroy him if he come into England or the Dominions thereof and seek by force to set up his pretended Title and all such as shall Adhere unto him or raise any War Tumult or Sedition for him or by his Command as publick Enemies of our Laws Religion and Country To this end we and every one of us whose hands are here under-written do most willingly bind our selves and every one of us unto the other joyntly and severally in the Bond of one firm and loyal Society or Association and do promise and vow before God That with our joynt and particular Forces we will oppose and pursue unto Destruction all such as upon any Title whatsoever shall oppose the Just and Righteous Ends of this Association and Maintain Protect and Defend all such as shall enter into it in the just performance of the true intent and meaning of it And left this just and pious work should be any ways obstructed or hindered for want of Discipline and Conduct or any evil minded persons under pretence of raising Forces for the service of this Association should attempt or commit Disorders we will follow such Orders as we shall from time to time receive from this present Parliament whilst it shall be sitting or the Major part of the Members of both Houses subscribing this Association when it shall be Prorogued or Dissolved and obey such Officers as shall by them be set over us in the several Countreys Cities and Burroughs until the next meeting of this or another Parliament and will then shew the same Obedience and Submission unto it and those who shall be of it Neither will we for any respect of Persons or Causes or for Fear or Reward separate our selves from this Association or fail in the Prosecution thereof during our Lives upon pain of being by the rest of us prosecuted and suppressed as Perjur'd Persons and Publick Enemies to God the King and our Native Countrey To which Pains and Punishments we do voluntarily submit our selves and everyone of us without benefit of any Colour or Pretence to excuse us In Witness of all which Premisses to be inviolably kept we do to this present Writing put our Hands and Seals and shall be most ready to accept and admit any others hereafter into this Society and Association Sir Fr. Withins This Paper is very plausibly penned in the beginning and goes a great way so but in the last clause but one there they come to perfect levying of War for they do positively say they will obey such Officers as either the Parliament or the major part of them or after the Parliament is dissolved the major part of those that shall subscribe this Paper shall appoint they will obey all such Officers Foreman Pray what date is this Paper of Sir Fr. Withins It was after the Bill for the Exclusion of the Duke of York for it says that way failing they would do it by force Foreman There is no hand to it at all Sir Fr. Withins No none at all One thing I had forgot That they would joyn to destroy the Mercenary Forces about London which is down-right levying of War against the King and his Guards Mr. Sanders The design of it is pretended to oppose Popery and Arbitrary power and destroy the Papists but that doth not seem so much in its self but when you have heard the Evidence you will hear who were the Papists that were to be destroyed by this Army John Booth Jury He has stood in the face of the Court all this while L. C. J. When did Mr. Booth come down Jury He was here before we went up my Lord and hath been here ever since L. C. J. Look ye Gentlemen they tell you he was carried away and came down but now Mr. Booth No my Lord I came down but now Mr. Shepherd My Lord we desire a List of their Names that we might know who is here and who is not Mr. Godfrey This man hath been here all this while and all the others may be here for ought that I know Sir Fr. Withins In the first place give an account what discourse you have had with my Lord Shaftsbury L. C. J. Speak out that the Jury may hear you Booth I will speak as loud as I can In the month of January about the middle of January last I was introduc'd into my Lord Shaftsbury's acquaintance by one Captain Henry Wilkinson I say I was introduc'd into my Lord Shaftsbury's acquaintance by one Captain Henry Wilkinson This Captain Wilkinson is a Yorkshire Gentleman he has known me above twenty years and he and I have had familiar conversation a long while so waiting upon my Lord Shaftsbury our first business that we went about was Captain Wilkinson did pretend to receive a Commission from my Lord Shaftsbury and some others of the Lords Proprietors of the Palatinate of Carolina to be their Deputy-Governor and he told me the prospect of that Journey was like to be very hopeful and that his interest was good and that he could procure me a Commission and such a number of Acres for quality and quantity as I did desire and he said he did not design to go over immediately in his own person but he would send his eldest Son and his youngest Son and if he went he would return again as occasion should serve I consented to him in all this and we discours'd it divers times together and we went to my Lord Shaftsbury on purpose to receive Commissions in order to this purpose The first time I went there was the Earl of Craven Peter Colbert one Archdell a Quaker I thought him a Quaker because he kept his Hat on when the rest of the Lords stood bare in civility to him We discours'd the thing about Carolina After this and before Captain Wilkinson and I had several discourses about the juncture of Affairs in these times tho I knew him to be an old Royallist and one that served his Majesty and his late Father very much in the Wars yet being under great disappointments of Preferments at Court and missing the Reward he expected from the King his heart was turned another way and he had repented himself of those Services he had done for the King and was become a man of another Opinion and there was some inducements upon me that I was inclin'd to the same opinion so he express'd himself to my Lord and so from one thing to another we went on in discourse and related the several Parliaments and the Proroguing them and the Disappointments of the People and the fear of Popery and Arbitrary Power and this was not done once nor twice nor ten times for I cannot enumerate them for we kept a continual Club and convers'd together familiarly near three quarters of a year After this first acquaintance with my Lord Shaftsbury at his house I did frequently go with Captain Wilkinson and between Christmass and March four or five times and I observed this that when we
Gentlemen that came out of the Country were well provided with Horse Arms and Men to oppose him and that they might lawfully do it if the King offered any Violence to them whilst they sat and that the Nation stood by them and that they did represent the Nation and that for his part he and all his Friends would do it to the utmost of their Power and as Old as he was he would be one that would oppose it to his power My Lord said I we can expect nothing but Confusion from this Parliament in this Nature for then we shall be involved in another Civil-War nothing else can put an end to our Miseries or make this Nation a settled Nation but a Civil-War Then my Lord said I by this means wee shall make an end of Monarchy or else inslave the Nation to Popery for ever No doubt of one say's he but we are sure of one for the Nation is of our side and the City you know how they are and where ever they Strike I am sure the Nation will and this I 'le stand and dye by This is the substance of what I have to say against my Lord Shaftsbury and upon the Oath I have taken I am sure I have not added a Word One Word more I have to say 'T is reported I have been hired and Suborn'd I do admire why this City of London where there are as worthy men and as great Lovers of the King and Government as any in the World should say any such thing I was never Suborn'd by them nor never took a farthing of their money nor never took a farthing of the King in my life L. C. J. Who supposes it Mr. Smith 'T is in print my Lord 't was in the Book that came out last night it is suppos'd my Lord for it is in print L. C. J. I had reason to expect that there was no such objection Brian Haines Mr. Sanders Give your knowledge of what discourse you have heard concerning my Lord Shaftsbury Mr. Haines Sir I have heard him Villifie the King very often and he told me about the Narrative that I made about Sir Edmond-Bury Godfrey's death Mr. Ivey and I went to him one day and he spoke to me of it and I desired him not to expose my person to the King's Anger for I was sure he would never grant a pardon to any man that impeached the Earl of Danby Say's he Do not fear if he doth not grant you a pardon he makes himself the Author of the Plot and say's he the Earl of Essex my Lord Maxfield and I wee do all resolve if you put in writing we will go to the King and beg a pardon of his Majesty for you and if he doth not grant it we will raise the whole Kingdom against him for say's he he must not expect to live peaceably in his Throne if he doth not grant it For he makes himself author of the Plot. My Lord said I he hath dissolved so many Parliaments for the sake of the Earl of Danby and prorogued so many Parliaments therefore he will never grant me this Pardon Say's he doe not fear 't is the best pretence we can have in the world and if you will but put in writing and let me read it that I may give my opinion of it the work is done and if he doth not do it we are prepar'd to raise Arms against him I was with him another time after I made this Narrative and he told me the two Mr. Godfrey's were with the King at Windsor and begged a pardon of his Majesty for me but the King would not grant it but if he be an honest man let him lye at my mercy let him come in and declare what he knows Said I I would not have your Lordship expose my cause in these day's This is the best time for it in the world say's he if he doth not do it he can't expect to be long King of England Pray my Lord said I what shall I do in the mean time I will go beyond Sea said I. No sayes he don't leave the Kingdom he dares as well be hang'd as meddle with you I desir'd him a second time not to expose me to the King's fury and I prayed him to help me to a little money to go beyond Sea for I was sure I could not be safe in England Sayes he Have a care of your self but sayes he he dares as well be hang'd as meddle with you Then I was in close conference with him one day and I gave him so exact an account of all Transactions from King Charles the First 's Reign the commencement or coming to the Crown to this very day that he was mightily satisfied finding by me that I was a Traveller he was mightily pleased and free with me Pray my Lord what Model do you take or intend to do Sayes he Do you not think but there are Families in England that have as great pretences to the Crown as the King Sayes he there is the Duke of Bucks in the right of his Mother she was descended from Edward one of the Edwards and in her Right he claimes the Barony of Ross he hath as great a Right to the Crown of England as ever any Stewart of them all Jury Speak that again Mr. Haines I was in Conference with my Lord Shaftsbury one day and I gave him an exact account of all Transactions and I asked what they did intend to do with the Government if they pull'd the King down Sayes he Do you think there are no Families in England that have as much pretence to the Crown as any of the Stewarts I know none my Lord sayes he there is the Duke of Bucks that is descended of the Family of the Plantagenets he named some of the Edwards and in her right he should have the Barony of Ross and in her Right he has as good a Title to the Crown of England as ever any Stewart had John Macnamarra Sworn Sir Francis Withins Pray give an account to the Jury of what discourse you have had with my Lord Shaftsbury John Macnamarra My Lord I was with my Lord Shaftsbury a little before he went to Oxford before the Parliament sat there and my Lord told me at that time that he would take care together with those that were with him at Oxford for the Witnesses that were concerned in the Popish Plot. Mr. Harrison Speak out pray Sir John Macnamarra My Lord told me he would take care with those that were with him for the Witnesses that were concern'd in the Popish Plot after my Lord went to Oxford I writ him a Letter giving his Lordship to understand That whereas his Lordship was pleased to promise that he would take care of the Witnesses that he would be pleased to take care of me as well as the rest of the Witnesses after my Lord came home from Oxford I went to him to see what was done His Lordship was pleased