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A55942 The proceedings at the Sessions House in the Old-Baily, London on Thursday the 24th day of November, 1681 before His Majesties commissioners of Oyer and Terminer upon the bill of indictment for high-treason against Anthony Earl of Shaftsbury : published by His Majesties special command. Shaftesbury, Anthony Ashley Cooper, Earl of, 1621-1683.; England and Wales. Court of Oyer and Terminer and Gaol Delivery (London and Middlesex). 1681 (1681) Wing P3564; ESTC R21380 51,935 51

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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
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