Siâ—… John Duncomb In the Afternoon of the same day the Earl of Shaftesbury was visited by Prince Rupert with divers other great Lords at Exeter House where they gave his Lordship Thanks for his Faithful and Honourable Discharge of that great Employment Thus this mighty Minister who had to the universal satisfaction of all good Men been raised to that degree of Interest in his Masters favour without a murmur laid all his Honours at his Masters Feet and was observed not to abate of the chearfulness of his Temper upon the loss of his honorary Employment I shall conclude this part with a touch of this Earl's Character which saith His choice Sagacity Strait solv'd the Knot that subtle Lawyers tied And through all Foggs discern'd th' oppressed side Banish'd delays so this noble Peer Became a Star of Honor in our Sphere A needful Atlas of our State c. The 16th of Feb. 1676. The Honourable Earl of Shaftesbury was sent a Prisoner to the Tower by Order of the House of Lords There were at the same time committed the E. of Salisbury and the L. Wharton The Form of the Warrant for their Commitment was as followeth Ordered by the Lords Spiritual and Temporal in Parliament Assembled That the Constable of His Majesties Tower of London His Deputy or Deputies shall receive the Bodies of James Earl of Salisbury Anthony Earl of Shaftesbury and Philip Lord Wharton Members of this House and keep them in safe Custody within the said Tower during His Majesties pleasure and the pleasure of this House for their High Contempts Committed against this House And this shall be sufficient Warrant on that behalf To the Constable of the Tower J. Browne Cler. Par. The 27th and 29th of Jan. 1677. The E. of Shaftesbury was brought to the King's-Bench-Bar upon the Return of an Alias Habeas Corpus directed to the Constable of the Tower where the Council for the Earl prayed that the Return might be filed and the Friday following appointed for Debating the sufficiency of the Return and my Lord was remanded until that day On Friday the Earl was brought into Court again and his Council argued the Insufficiency of the Return After Mr. Williams Mr. Wallop Mr. Smith had shewed divers weighty Reasons in behalf of the Earl that that Court might relieve him they were opposed by the Solicitor General and the Attorney General who brought divers Instances why that Court could not discharge a person Committed by Parliament whereupon the Earl of Shaftesbury is said to have spoke to this purpose My Lords I did not intend to have spoken one word in this business but something hath been objected and laid to my Charge by the King's Council Mr. Attorney and Mr. Solicitor that enforceth me to say something for your better satisfaction They have told you that my Council in their Arguments said That this Court was greater than the House of Peers which I dare to Appeal to your Lordships and the whole Court that it was never spoken by them I am sure it was not by any direction of mine What is done by my Council and by me is that this is the most proper Court to resort unto where the Liberty of the Subject is concerned The Lord's House is the Supream House of Judicature in the Kingdom but yet there is a Jurisdiction that the Lord's House does not meddle with The King's Council hath mentioned as a wonder that a Member of the Lord's House should come hither to diminish the Jurisdiction of the Lords I acknowledge them to be Superiour to this or any other Court to whom all Appeals and Writs of Errour are brought and yet there are Jurisdictions that they do not Challenge and which are not natural to them or proper for them They claim not to meddle in Original Causes and so I might mention in other things and I do not think it a kindness to any Power or Body of Men to give them some Power that is not natural or proper to their Constitutions I do not think it a kindness to the Lords to make them Absolute and above the Law for so I humbly conceive this must do if it be adjudged that they by a General Warrant or without any particular Cause Assigned do Commit me or any other man to a perpetual and indefinite Imprisonment And my Lords I am not so inconsiderable a person but what you do in my Case must be Law for every man in England Mr. Attorney is pleased to say I am a Member of the Lord's House and to lay weight on the word Member It is true I am one of them and no man hath a greater Reverence or Esteem for the Lords than my self but my Lords I hope my being a Peer or a Member of either House shall not lose my Priviledge of being an English man or make me to have less Title to Magna Charta or the other Laws of English Liberty My Opinion is not with one of my Council who argued very learnedly that the Passing an Act by the King 's Royal Assent can make a Session because the usual promise was not in it It was without any Instruction of mine to mention that point The King's Council tells your Lordships of the Laws and Customs of Parliament and if this were so I should submit but this Case of mine is primae Impressionis and is a new way such as neither Mr. Attorney nor Mr. Solicitor can shew any President of and I have no other Remedy or place to Apply to than the way I take Mr. Attorney confesseth that the King's pleasure may Release me without the Lords If so this Court is Coram Rege this Court is the proper place to determine the King's pleasure This Court will and ought to Judge of an Act of Parliament void if it be against Magna Charta much more may Judge an Order of the House that is put in Execution to deprive any Subject of his Liberty And if this Order or Commitment be a Judgment as the King's Council affirms then it is out of the Lords hands and properly before your Lordships as much as the Acts which were lately Passed which I presume you will not refuse to Judge of notwithstanding that the King's Atorney General saith this Parliament is still in being I take it something ill that Mr. Attorney tells me I might have Applied elsewhere My Lord I have not omitted what became my Duty toward the King for besides the Oath of Allegiance I took as a Peer or an English man there is something in my Breast that will never suffer me to depart from the Duty and Respect that I owe him but I am here before him he is alwaies supposed to be here present and he alloweth his Subjects the Law My Lord They speak much of the Custom of Parliament but I do affirm there is no Custom of Parliament that ever their Members were put out of their own Power and the Inconveniencies of it will be endless Mr.
in Parliaments and have found Oppression and Tyranny supported by such strong hands that they could not prevail to secure their Countries Lives and Liberties by wholsom Laws they have often made their Protestations against the Injustice and Oppression and forewarned the people of their danger In like manner we who have been duly chosen by the people to be Members of the Parliament that should now have met and have an undoubted Right to Meet Sir and Vote in Parliament although we are Oppressed by Force of Arms and shut out of the usual place of Parliament Sitting yet having Hearts sensible of that highest Trust reposed in us and being filled with Cares for the Church and Common-wealth which with grief of heart we behold bleeding we do hold our selves bound in duty to God and our Country to declare unto the People of England their and our woful condition and the most evident danger of the utter Subversion of Religion Liberty Right and Property We believe the Rumour is now gone through the Nation that Armed men employed by the L. P. have prevented the free Meeting and Sitting of the intended Parliament and have forcibly shut out of doors such Members as he his Council supposed would not be frighted or flattered to betray their Country and give up their Religion Lives and Estates to be at his Will to serve his Lawless Ambition But we fear that the Slavery Rapines Oppressions Cruelties Murthers and Confusions that are comprehended in this horrid Fact are not so sensibly discerned or so much laid to heart as the case requires and we doubt not but as the common practice of the Man hath been the Name of God and Religion and formal Fasts and Prayers will be made use of to colour over the Blackness of the Fact We do therefore in faithfulness to God and our Country hereby Remonstrate First That whereas by the Fundamental Laws of this Nation the People ought not to be bound by any Laws but such as are freely consented uâ—…to by their chosen Deputies in Parliament and it is a most wicked Usurpation even against the very Laws of Nature for any man to impose his Will or Discretion upon another as a Rule unless there be some Pact or Agreement between the Parties for that intent And whereas by the Mercy of God only in preserving this Fundamental Law and Liberty the good People of England have beyond memory of any Record preserved their Estates Families and Lives which had otherwise been destroyed at the will of every wicked Tyrant and by keeping this only as their undoubted Right they have been kept from being brutish Slaves to the lusts of their Kings who would otherwise have despoiled them of their Persons Lives and Estates by their Proclamations and the Orders of themselves and their Council Now the L. P. hath by force of Arms invaded this Fundamental Right and Liberty and violently prevented the meeting of the peoples chosen Deputies in Parliament and he and his Council boldly declare That none of the Peoples Deputies shall meet in Parliament unless they agree to the measure of their Fantasies Humours and Lusts. They now render the people such Fools or Beasts as know not who are fit to be trusted by them with their Lives Estates and Families But he and his Council that daily devour their Estates and Liberties will judge who are fit to counsel and advise about Laws to preserve their Estates and Liberties Thus doth he now openly assume a power to pack an Assembly of his Confidents Parasites and Confederates and to call them a Parliament that he may from thence pretend that the People have consented to become his Slaves and to have their Persons and Estates at his Discretion And if the people shall tamely submit to such a Power who can doubt but he may Pack such a Number as will obey all his Commands and consent to his taking what part of our Estates he pleaseth and to impose what Yoaks he thinks fit to make us draw in They know it to be the undoubted Right of the People to trust whom they think fit and as much the Right of every man duly chosen and trusted to meet and Vote in Parliament without asking their Leave or begging their Tickets And although there have been frequent Secret Designs for many years to subvert Religion Liberty and Property in this Nation and to that end the Designs of Tyranny have attempted to destroy sometimes the Being sometimes the Power Priviledges and Freedom of Parliaments yet the Mercy of God hath almost miraculously preserved the Being Priviledges and Authority of Parliaments and therein Religion Liberty and Property until the time of the Lord Protector But now he hath assumed an Absolute Arbitrary Soveraignty as if he came down from the Throne of God to create in himself and his Confederates such Powers and Authorities as must not be under the cognizance of the peoples Parliaments His Proclamations he declares shall be binding Laws to Parliaments themselves he takes upon him to be above the whole Body of the people of England and to judge and censure the whole Body and every Member of it by no other Rule or Law than his pleasure as if he were their Absolute Lord and had Bought all the people of England for his Slaves Doubtless he would pretend only to have conquered England at his own Expence and were there as much Truth as there is Falshood in that pretence yet he could not but know that the Right of the peoples Deputies to their Antient Powers and Priviledges would remain good against him as against their publick capital Enemy Whom every man ought to destroy until by some agreement with the the Body of the people in Parliament some sort of governing Power in him were submitted unto that hereby he might cease to be a publick Enemy and Destroyer and become a King or Governour according to the conditions accepted by the people and if he would so pretend he could not be so discharged from his publick Enmity by any Conditions or Agreement made with a part of the Peoples chosen Deputies whilst he shut out the other part for no part of the Representatives Body are trusted to consent to any thing in the Nations behalf if the whole have not their free Liberty of Debating and Voting in the Matters propounded If he would pretend no higher than to be our Conqueror who for Peace and his own safety's sake was content to cease from being a publick Enemy and to be admitted a Governor he would not compass those ends by forcibly excluding as now he does whom he pleases of the Representative Body of the People who were to submit to him on the Peoples behalf therefore he either takes upon him to be such a Conqueror as scorns the Peoples acceptance of him by their Representative as their Governour and fears not to remain a publick Enemy or else he takes himself to be such an unheard of Soveraign that against him the
the Earl of Arlington and the Lord Clifford were promoted To his happy Councils do both King and Kingdom owe for the happy Conduct of things for divers years so that now he seemed to be incorporate into the heart of his Prince the Events of his Advices were commonly agreeable to what he at first proposed so that it may be said of him as was spoken of Polibius that as Scipio so the King seldom miscarried in any thing that was carried on by his Advice so that at length he seemed to be the Royal Oracle In fine such was the Opinion which his wise Administration had gained that as he sate in one of the highest places in his Masters favour so he was preferred to the highest Trust of Honour in the Kingdom he was made Chancellor of the Exchequer and afterwards Lord High Chancellor of England about the beginning of the Year 1672. Now was the Kings Conscience as it were entrusted to his care and management this was the highest Orb a Subject was capable to move in but with what Sagacity Honour and Integrity he acquitted himself in that great Employment the Transactions of the Court of Chancery at that time can best witness Justice ran in an equal channel the cause of the Rich did not swallow up the Rights of the Poor he that was oppressed found Relief and the Oppressor a Rebuke suitable to his crime the usual delays of that Court were much abated and all the Transactions thereof were managed with the greatest Judgment and Equity As an Instance of his constant adhering to the Interest of his Master and the commune Bonum or Weal of the publick you may take a copy of his Thoughts from that excellent Speech made by him in favour of the Subject in the Exchequer Jan. 24. 1673. at Baron Thurland's taking the Oath a copy whereof follows Mr. Serj. Thurland The King of his Grace and Favour hath made choice of you to be one of the Barons of the Exchequer he designed to place you in a Court of more profit though not of more Dignity but your own Modesty and Virtue hath chosen this Court where you thought you could serve the K. best And I could not omit to mention it here to your Honour it being the greatest Instance of a good man that he had rather be found serviceable than rich His Majesty hath had large proof of your former services besides he takes you upon the credit of that Recommendation that hath justly the best place with him I mean his Royal Brothers Some few things it is fit I should here mention to you and leave with you as Admonitions or rather Remembrances In the first place you are to maintain the Kings Prerogative and let not the Kings Prerogative and the Law be two things with you For the Kings Prerogative is Law and the principal part of it and therefore in maintaining that you maintain the Law The Government of England is so excellently interwoven that every part of the Prerogative hath a broad mixture of the Interest of the Subject the ease and safety of the people being inseparable from the greatness and security of the Crown In the next place let me advise you that you acquaint your self with the Revenue as also with the ancient Records Precedents and Practices of this Court for want of which knowledge I have seen this Court a most excellent Common Pleas when at the same time I could not say so much for it as an Exchequer In the third place let me recommend to you so to manage the Kings Justice and Revenue as the King may have most profit and the Subject least vexation Raking for old Debts the number of Informations Projects upon Concealments I could not find in the 11 years Experience I have had in this Court ever to advantage the Crown but such proceedings have for the most part delivered up the Kings good Subjects into the hands of the worst of Men. There is another thing I have observed in this Court which I shall mind you of which is when the Court hearkens too much to the Clerks and Officers of it and are too apt to send out process when the Money may be raised by other ways more easie to the people I do not say that the Kings Duty should be lost or that the strictest course should not be taken rather than that be but when you consider how much the Officers of this Court and the Undersheriffs get by process upon small summs more than the Kings Duty comes to and upon what sort of people this falls to wit the Farmer Husbandman and Clothier in the Country that is generally the Collector Constable and Tythingman and so disturbs the industrious part of the Nation you will think it fit to make that the last way when no other will serve Give me leave also to mind you of one thing more which is in your Oath That the Kings needs ye shall speed before all other that is the business of the Revennue of the Crown you are to dispatch before all other and not turn your Court into a Court of Common Pleas and let that justle out what you were constituted for In the last place let me conclude with what concerns all my Lords the Judges as well as you let me recommend to you the Port and way of Living suitable to the Dignity of your place and what the King allows you There is not any thing that gains more Reputation and Respect to the Government than that doth and let me tell you Magistrates as well as Merchants are supported by Reputation His particular Application to prevent any misunderstanding between the King and his Parliament is very obvious to any that shall but look into his Speeches to the Parliament during his Chancellorship and with how great concern he still vindicated his Masters Actions He acquitted himself in all the great Emergencies of this High Employment with that universal Applause and satisfaction as seldom happens to men in such an envied station The vilest of his Detractors not being able to fasten any Imputation upon his conduct in those great and weighty Trusts he was advanced to So little of self appeared in his Actions that it may be modestly affirmed of him he made his own Interest strike sail to the publick and his care for others seemed more than for himself and at the time of his highest Elevation he would not neglect the meanest Suitors that applied themselves to him Thus having gradually traced the Advancement of this great Minister to the highest pitch of Honor where he appeared sicut Luna inter Stellas minores I shall now take notice of his Relinquishment of that High Employment and what other contingencies have happened to him since About November 1673. His Majesty was pleased to send for the Lord Chancellor to White-Hall where he resigned the Great Seal of England to His Majesty and was dismist from being Under-Treasurer of the Exchequor which place was conferred on
Gentry a learned Clergy and an understanding worthy People but yet we cannot think of England as we ought without reflecting on the condition thereof They are under the same Prince and the influence of the same Favâ—…urites and Councils When they are hardly dealt with can we that are Richer expect better usage For 't is certain that in all absolute Governments the poorest Countries are always most favourably dealt with When the ancient Nobility there cannot enjoy their Royalties their Shrievaldoms and their Stewardies which they and their Ancestors have possessed for several hundreds of years but that now they are enjoin'd by the Lords of the Council to make deputations of their Authorities to such as are their known Enemies can we expect to enjoy our Magna Charta long under the same persons and Administration of Affairs If the Council-Table there can imprison any Nobleman or Gentleman for several years without bringing him to Trial or giving the beast Reason for what they do can we expect the same Men will preserve the Liberty of the Subject here My Lords I will confess that I am not very well vers'd in the particular Laws of Scotland but this I do know that all the Northern Countries have by their Laws an undoubted and inviolable Right to their Liberties and Properties yet Scotland hath out-done all the Eastern and Southern Countries in having their Lives Liberties and Estates subjected to the Arbitrary Will and Pleasure of those that govern They have lately plundered and harased the richest and wealthiest Countries of that Kingdom and brought down the barbarous Highlanders to devour them and all this almost without a colourable pretence to do it Nor can there be found a Reason of State for what they have done but that those wicked Ministers designed to procure a Rebellion at any rate which as they managed was only prevented by the miraculous hand of God or otherwise all the Papists in England would have been armed and the fairest opportunity given in the just time for the execution of that wicked and bloody design the Papists had and it is not possible for any man that duly considers it to think other but that those Ministers that acted that were as guilty of the Plot as any of the Lords that are now in question for it My Lords I am forced to speak this the plainer because till the pressure be fully and clearly taken off from Scotland 't is not possible for me or any thinking man to believe that good is meant us here We must still be upon our guard apprehending that the Principle is not changed at Court that those men that are still in place and Authority have that influence upon the mind of our excellent Prince that he is not nor cannot be that to us that his own Nature and Goodness would incline him to I know your Lordships can order nothing in this but there are those that hear me can put a perfect cure to it until that be done the Scottish Weed is like death in the pot Mors in Olla But there is somthing too now I consider that most immediately concerns us their Act of Twenty two thousand men to be ready to invade us upon all occasions This I hear that the Lords of the Council there have treated as they do all other Laws and expounded it into a standing Army of Six Thousand Men. I am sure we have Reason and Right to beseech the King that that Act may be better considered in the next Parliament there I shall say no more for Scotland at this time I am afraid your Lordships will think I have said too much having no concern there but if a French NobleMan should come to dwell in my House and Family I should think it concerned me to ask what he did in France for if he were there a Felon a Rogue a Plunderer I should desire him to live elsewhere and I hope your Lordships will do the same thing for the Nation if you find Cause My Lords Give me leave to speak two or three words concerning our other Sister Ireland Thither I hear is sent Douglas's Regiment to secure us against the French Besides I am credibly informed that the Papists have their Arms restor'd and the Protestants are not many of them yet recovered from being the suspected Party The Sea-Towns as well as the In-land are full of Papists That Kingdom cannot long continue in the English hands if some better care be not taken of it This is in your Power and there is nothing there but is under your Laws Therefore I beg that this Kingdom at least may be taken into consideration together with the State of England for I am sure there can be no safety here if these Doors are not shut up and made sure Some few daies after this Speech the King was pleased to make a great Alteration in his Council and to appoint the Right Honourable Anthony Earl of Shaftesbury President thereof About the 18th of April 1679. His Majesty was pleased to declare the Dissolution of the Late Privy Council and for Constituting a New one The Lords of the Council not to exceed Thirty besides the Princes of the Blood which His Majesty may at any time call to the Board being at Court and the President and Secretary of Scotland which are uncertain The Names of that most Honourable Council were His Highness Prince Rupert William Lord A. B. of Canterbury Heneage Lord Finch L. Chancellor Anthony Earl of Shaftesbury Lord President of the Council Arthur Earl of Anglesey Lord Privy Seal Christopher Duke of Albermarle James Duke of Monmouth Master of the Horse Henry Duke of Newcastle John Duke of Lauderdale Principal Secretary of Scotland James Duke of Ormond L. Steward of the Houshold Charles Lord Marquess of Winchester Henry Earl of Arlington L. Chamberlain of the Houshold James Earl of Salisbury John Earl of Bridgwater Robert Earl of Sunderland one of His Majesties Principal Secretaries of State Arthur Earl of Essex first L. Commissioner of the Treasury James Earl of Bath Groom of the Stable Thomas Lord Viscount Falconberg George Lord Viscount Hallifax John Lord Bishop of London Daniel Lord Roberts Henry Lord Hollis William Lord Russel William Lord Cavendish Henry Coventry Esq one of His Majesties Principal Secretaries of State Sir Francis North Knight L. Chief Justice of the Common Pleas. Sir Henry Capell Knight of the Bath first Commissioner of the Admiralty Sir John Ernby Knight Chancellor of the Exchequer Sir Thomas Chicheley Knight Master of the Ordnance Sir William Temple Baronet Edward Seymour Esquire Henry Powle Esquire This great Change put men upon various Discourses and Apprehensions suitable to their respective Dispositions and Inclinations but the most sober both of the Parliament and others hoped now to see the Popish Plot wholly Eradicated especially considering the daily fresh Discoveries that were brought before the Council and Parliament the last of which was of no long continuance for about June 1679.
and detestable practices of those evil minded persons against his Life and in how dreadful a condition would the Nation have been if through the means of these or such like Witnesses the guilt of shedding Innocent Blood should have been drawn upon us where would the rage of the Papists have ended had they succeeded in this their horrid attempt Aboâ—…t the 29th of July 1681. the Right Honourable Anthony Earl of Shaftesbury was apprehended at his own House by a Serjeant at Arms and carried before the King and Council and after some Examination he was committed to the Tower upon a charge of High Treason the Right Honourable the Lord Howard having been committed before upon an Information that he had assisted in contriving Mr. Fitz-Harris's Libel and Stephen Colledg and Mr. Rouse having likewise been committed about the 25th of the same Month. It is said that some days after his Lordships commitment that as he was taking the Air in the Tower meeting accidentally with one of the popish Lords he was asked by him what his Lordship did there and that they little thought to have had his good companâ—… to which the E. of Shaftesbury replied that he had lately been very ill of an Aguâ—… and was come there to take some Jesuits Powder It was said thaâ—… during the whole time of his Lordships consinement in the Tower he appeared to be very chearful and that many times he assumed a Courage and Vivacity beyond what could have been expected from a person labouring under such violent pains and diseases as is well known his Lordship is frequently troubled withal And now that we may not omit to you with what other Methods and Designs they endeavoured to fasten the black Hellish figure of a Traitor on this loyal Peer it will not be improper to take notice of a passage in the Trial of Mr. Fitz Harris where Mr. Everard upon Oath affirms that Mr. Fitz-Harris had told him that horrid Libel was to have been fathered upon the Protestant Nonconformists and when Collonel Mansel had deposed that Sir William Waller had said the design of Fitz Harris's Libel was against the Protestant Party Mr. Attorney General replied we believe it The Protestant Party And how far this Peer was to have been concerned in that will further appear if we take in what Sir William Waller affirmed at the said Trial that Mr. Fitz-Harris had told him there were two Parliament Men which frequented my Lord Shaftesbury's whom his Lordship did not suspect that came and sounded him and then returned to the French Ambassadour and acquainted him with all they could discover On Thursday the 24th of Novem. 1681. the great Affair for which the Lord Shaftesbury was committed to the Tower was tried at the Sessions House at the Old Bayly It may be excusable if we be the more particular and large in this matter and insert so much of the said Trial as may be needful to satisfie the World of the fairness and equity of the Proceedings of the Kings Court in that Affair and we shall be somwhat the larger because all persons into whose hands this Book may come may not have seen what was printed of that Trial. The Grand Jury that were to make enquiry both in behalf of the King and the Earl were persons of unstained Loyalty and Integrity and persons so considerable for their Estates and â—…ortunes that such a Jury hath seldom been empanelled upon the like occasion The Names of the Grand Jury were as followeth Sir Samuel Barnardiston John Morden Thomas Papillion John Dubois Charles Hearle Edward Rudge Humphrey Edwin John Morrice Edmund Harrison Joseph Wright John Cox Thomas Parker Leonard Robinson Thomas Shepheard John Flavâ—…l Michael Godfrey Joseph Richardson William Empson Andrew Kendrick John Lane John Hall The Oath You shall diligently enquire and true presentment make of all such Matters Articles and Things as shall be given you in charge as of all other Matters and Things as shall come to your own Knowledge touching this present service The Kings Council your Fellows Council and your own you shall keep secret you shall present no person for Hatred or Malice neither shall you leave any one unpresented for Fear Favour or Affection for Lucre or Gain or any hopes thereof but in all things You shall present the Truth the whole Truth and nothing but the Truth to the best of your knowledg So help you God My Lord Chief-Justice gave a large and learned charge to the Jury wherein he first opened to them the Nature of their Commission and the extent of it which reached to all Offences whatsoever against the Law of the Land as Treasons Misprisions of Treasons c. He told them he would at present acquaint them with the nature of those Bills they were then like to be troubled with and their Duty concerning that Enquiry He told them they were matters of High-Treason a crime of the greatest and highest nature that could be committed against man other crimes as Fellonies Riots 〈◊〉 and 〈◊〉 of that nature 〈◊〉 〈◊〉 â—…ders and troubles in a State oâ—… 〈◊〉 dom but he told them 〈◊〉 struck at the Root and Life of 〈◊〉 It tended to destroy the very Government King and Subjects and the Lives Interest and Liberties of all and therefore haâ—…â—…een always looked upon as a crime of the mâ—…st notorious nature that caâ—… be whatsoever and accordingly Puâ—…shments have been appointed â—…or it of the highest and severest extremity He told them our Ancestors thought it Wisdom to enact and declare what should be accounted Treason and enumerated several Acts of that nature at length he came to an Act made the 13. of this present King That if any one should câ—…pass imagine or intend the Death of the King or his Destruction or any bodily harm that should 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 Forein Prince to Invade these hâ—…s Dominions or any other of the King's Dominions and should sâ—…gnifie 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 He told them the Intention of Levying War was not Treason before this Act unless it had taken Effect and War had been actually Levyed and then as to the Designing and Compassing the King's Death that was not Treason unless it was declared by an Overt Act As to the Imprisoning or Restraining the Liberty of the King they of themselves were not High Treason but now by this Law they were made so during His Majesties Life and the very designing of them whether it take Effect or no 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 uttered and spoken and any waies signified by any Discourse that this was made Treason by this Act. Formerly it was said and said truly That words alone were not Treason but that since this Act words that import any Malicious Design against the King's Life or Government any Traiterous Intention in the Party such words are Treason now within this Act. Then as to the Indictments that were to be brought before them he advised them to consider 1. Whether the matter contained in them and which were to be given in Evidence were matter of Treason within the former or the latter Act of Parliament and if they doubted they were to enquire of the Court and they should be directed as to matter of Law And they were to examine whether the matters Evidenced to them were Testified by two Witnesses for without two Witnesses no man could be Impeached within those Laws If one man should swear to words that importâ—… 〈◊〉 〈◊〉 〈◊〉 Dâ—…sign or Intention 〈◊〉 〈◊〉 〈◊〉 time and in one place and another Testifie to Traiterous words spoken at another time and another place that these were two good Witnesses which had been solemnly resolved by all the Judges of England upon a solemn occasion 2. That they were to enquire whether upon what Evidence should be given them there should be any reason or ground for the King to call the persons to account if there were probable ground it was as much as they were to enquire into He urged pretty much to this purpose and then told them Compassion or Pity was neither their Province nor his that there was no room for that in Enquiries of such a nature that it was reserved to a Higher and Superiour Power from whence theirs was derived Therefore he required them to consider such Evidence 〈◊〉 should be given them and prayed God to direct them in their Enquiry that Justice might take place Then a Bill of High â—…son reason was offer'd against the E. of â—…esbury and Sir Francis Withcâ—… moved that the Evidence might be heard in Court Then the Lord Chief Justice told the Jury that the King's Council desired and they could not deny it that the Evidence might be publickly given and prayed them to take their places and hear the Evidence that should be given The Jury desired a Copy of their Oath which the Court granted and then withdrew after some time they returned and then the Clerk called them by their Names Then the Foreman gave the L. C. J. an account that it was the Opinion of the Jury that they ought to Examine the Witnesses in private and it hath been the constant practice of our Predecessors to do it and they insisted upon it as their Right to Examine in private because they were bound to keep the K's Secrets which could not be done if the Examination were in Court Whereupon the L. C. J. told 'em that perhaps some late usage had brought them into that Errour that it was their Right that the Witnesses were alwaies sworn in Court and surely he said Evidence was alwaies given in Court formerly That it was for their advantage as well as the King 's that nothing might be done clandestinly that by their keeping Counsel was meant keeping secret their own private Debates To which the Foreman replied That he begg'd his Lordships pardon if he were in a mistake The Jury apprehend they were bound by the very words of their Oath to Examine in private for it says They shall keep the King 's Secrets and their own Counsels That there could be no Secret in publick Then Mr. Papillion spoke to this purpose That they had heard that what had been the Custom of England had been the Law of England and if it had been the Antient Usage and Custom of England that had never been altered from time to time Divers other Arguments were used on both sides but at last the Court denied a private Examination then the Foreman told the Court that the Jury desired it might be Recorded that they had insisted upon it as their Right but if the Court over-ruled it they must submit This was likewise refused by the Court. Then Sheriff Pilkington desired that the Witnesses might be put out of Court and called in one by one but he was refused it and told it was not his Duty And Mr. Attorney General said he appeared against the King However it was afterward granted to the Jury Then was Read the Indictment against Anthony Earl of Shaftesbury for High Treason against His Majesty which being too long here to insert we are forced to omit The Jury desired a â—…ist of the Witnesses Names but they were told they would have them Endorsed on the back of the Indictment when that was delivered to them Then the Foreman acquainted the Court that the Jury desired a Copy of the Warrant by which the Earl of Shaftesbury was Committed because there might several Questions depend upon it But my Lord Chief Justice answered That was not in the power of the Court to grant for that it was in the hands of the Lieutenant of the Tower which he kept for his Indemnity and they could not demand it of him upon any terms Then Mr. Papillion moved that they might hear what the Witnesses had to give in Evidence one by one and that after the Jury might withdraw to consider what proper Questions to ask them and after might come down again which the Court granted Then all the Witnesses were ordered to go out of the Court and to be called in one by one This done Will. Blithâ—… Esq was produced and a Paper delivered in Mr. Blithwayt gave account that that Paper was put into his hands by Mr. Gwin Clerk of the Council who had seized it amongst others in my Lord Shaftesbury's house and that he had took that and others out of a Velvet Bagg which Mr. Gwin had lockt up in the great Trunk Then Mr. Gwin testified that he had the great Hair Trunk in my Lord Shaftesbury's house when he was sent there to search for Papers by Order of the Council the second of July my Lord as soon as he came there delivered him the Keys and said He would seal them up with his own Seal but afterwards sent Mr. Gwin word if he pleased he might put his own Seal that he had taken a note how he had parted several parcels of Papers that there were several sorts of them in the great Hair Trunk and there was a Velvet Bag into which he had put some Papers that were loose in my Lord's Closet above Stairs that he had put his Seal upon the Trunk and being sent another way had put it into the Custody of Mr. Blithwait The Lord Chief Justice asked Mr. Gwin whether all the Papers in the Velvet Bag were in my L. Shaftesbury's Closet and whether there was nothing in that Bag but what he had taken in