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for High Treason. It is unhappy, indeed, that these mistakes | are propagated; but it is monstrous to see how people may be misled; that they should fall foul on the Dissenters, and pult down the meeting-houses, when they are rather the obIf they are not satisjects of pity than anger. fied with the established Church, which is the best in the world, and they lose the benefit and advantage of that excellent constitution, they are to be pitied for their mistake: but why should any one be angry, because they do a prejudice to themselves? But this matter having been under the consideration of the Jegislature, and there being a law that allows them the liberty of serving God in their own way; since that liberty is allowed them, why should any body be concerned that they enjoy it? And why should their meeting-houses be pulled down? But Dr. Sacheverell at that time (I would not reflect on him; he has undergone a censure in another place) when he had fallen foul on the Toleration, and represented it as an encouragement to schism, and a ground of danger to the Church, those people that thought him a confessor for the Church, thought they could do no less than pull down those meeting-houses, which were the seminaries of schism. And this doctrine of Non-Resistance, which is cried up in all cases to be the doctrine of the Church, this doctrine is to be propagated by Resistance; these people will resist, to shew they are not for resisting, and oppose the queen's guards in vindication of that doctrine that nobody ought to resist: but it shews that when a madness is got among the people, they cannot think as they ought to do, and many unaccountable things will be done; and therefore he might think it no blemish to his reputation: and Dr. Sacheverell, that has been condemned for those things by the parliament, and stands convicted of being guilty of them, some people having made it honourable to him, others thought it might be an honour to them too, to demolish meeting-houses, and to raise seditions and riots, which are not to be borne in a civilized country; for nobody knows where popular tumults will end.*·

tion all the cases that relate to this matter)— They insist that this is not levying war; and on this ground, that he was not proved to be at the meeting-house in Drury-lane, but only at the fire at Dr. Burgess's; and if he was only at one place, one instance would not make it levying war. If, say they, there had been a general intention, it would have gone hard with him; there was an intention the night before, and Mr. Burgess's was only mentioned; and it is not certain that there was a general de sign to pull down the rest. Nay, he was not there, and it was by accident that he came to Lincoln's-inn-fields, and he was but at that one place; and they take notice of some cases, especially that about the bawdy-houses, and that the lord-chief-justice Hale differed from the rest of the judges.t

This is a matter that has been often under consideration: the act of the 25th Edward the 3rd, which is the great law for declarations of treason, declares what shall be adjudged treason: compassing or imagining the death of the king, and levying war against the king, are two distinct species of treason. Now they say, that nothing was designed against the queen. the levying war against the queen, was there meant only of a war against the queen's person, it would have been idle to mention it in that act, because they had before made the compassing her death to be treason.

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does more Now he that levies war, pass and imagine the king's death; therefore it has been always ruled, that where there is an actual levying of war, which concerns the person of the king, they lay the treason to be the compassing the death of the king, and give a proof of it by levying war. But there is another levying of war, which is not immediately There is a vast against the person of the king, but only between some particular persons.†

* See Luders' Considerations on the Law of High Treason. + Ibid.

"Constructive levying of war is in truth more directed against the government than the This being then the matter of fact on both person of the king; though in legal construcsides, and what there is in fact, and in pre- tion it is a levying war against the king himsumption; give me leave to take notice what self. This is when an insurrection is raised to the law is in this case. For it has been insisted reform some national grievance, to alter the eson by the counsel for the prisoner (and I must tablished law or religion, to punish magistrates, do them right, they have taken into considerato introduce innovation of a public concern, to obstruct the execution of some general law by other purpose which an armed force, or for any usurps the government in matters of a public and general nature. On the trial of lord George Gordon, the court of King's-bench declared their unanimous opinion that an attempt, by intimidation and violence to force the repeal of a law, was a levying war against the king. The statute in question was the 18 Geo. 3, c. 60, for relieving Roman Catholics from certain penalties; and the treasonable act given in evidence against the prisoner, was the assembling a great multitude of people, and encouraging them to surround the two Houses of

"It must be admitted, that the object of a great riot or insurrection, comparatively trivial in its origin, may so far vary by its success, continuance, or other circumstances, as to assume a decided tone of resistance to the person of the king and his government, and so become an overt act of compassing his death. For it is a kind of natural or necessary consequence, lord Hale observes, that he who attempts to subdue the king cannot intend less than his death and such, he adds, has always been the miserable consequence of such a contest." East's Pleas of the Crown, chap. 2, sect. 9.

8

Trial of Daniel Dammaree,

difference between a man's going to remove an
annoyance to himself, and going to remove a
public nuisance, as the case of the bawdy-
houses and the general intention to pull them
down all is the treason: for if those that were
concerned for them would defend them, and

Parliament, and commit different acts of violence there and elsewhere, with a view to intimidate them to a repeal of the statute. Insurrections of this nature, though not levelled directly against the person of the king, are yet an attack upon his regal office, and tend to dissolve all government, society, and order. The king is bound in duty to enforce the acts of the legislature, and uphold their authority: any resistance, therefore, to these, must, in its consequences, extend to the endangering of his person and government, by involving the state in a general distraction; on which account this species of treason falls properly within the clause of levying war against the king. Upon this principle the Yorkshire and Northumberland rioters, who opposed the militia laws, were convicted of high treason; and several of them were executed. But under this branch a bare conspiracy to levy such a war is not treason, unless the war be actually levied; in which case the conspirators, as well as the actors, would be all equally guilty.

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the others would pull them down, there would be a war immediately.

In the case of inclosures, where the people of though they have come with a great force to a town have had part of their common inclosed, throw down that inclosure, yet that is not levy

case as reported, which amounted to hightreason.

verally, for that they, with a multitude of peo"Dammaree and Purchase were indicted seple, to the number of 500, armed and arrayed war, &c. It appeared that during Dr. Sachein a warlike manner, &c. did traiterously levy verell's trial in 1709, the rabble, who had attended him from Westminster, to his lodgings in the Temple, continued there together for a short time, crying, among other cries of the day, 'Down with the Presbyterians.' At length meeting-houses; and thereupon the cry be a person unknown proposed to pull down the came general,

houses; and some thousands immediately Down with the meeting. moved towards a meeting-house of Mr. Burgess, Dammaree, a waterman, putting himself at the a Protestant Dissenting minister; the defendant head of them and crying, Come on, boys; I will lead you; down with the meeting-houses.' They soon burnt Mr. Burgess's; after which "Of the same nature is an assembling toge-ing-houses: and hearing that the guards were they agreed to proceed to the rest of the meetther for the purpose of destroying all meeting- coming to disperse them, they agreed for the houses, or all bawdy-houses, under colour of greater dispatch to divide into several bodies, reforming a public grievance; or an insurrec- and to attack different houses at the same time; tion to reduce by force the general price of vic-many of which were that night in part demotuals, to inhance the common rate of wages, to lished, and the materials burnt in the streets. level all inclosures, to expel all foreigners, to Dammaree put himself at the head of one of release all prisoners, or to reform by numbers, these parties, and demolished a meeting-house or an armed force, any real or imaginary griev-in Drury-lane, still crying that they would ance, of a public and general nature, in which the insurgents have no peculiar interest. Against such insurrections magistrates, sheriff's, and indeed all private persons, may use force to suppress them without any special commission, in the same manner as they may oppose foreign enemies coming hostilely into the kingdom.

All the

pull them all down that night.' While the materials of this house were burning in the street, Purchase, who had not, for aught ap. peared, taken part in any prior outrage, came up to the fire very drunk, and with a drawn sword in his hand encouraged the rabble, and incited them to resist the guards, who just "It was adjudged in Benstead's case, that saulting the commanding officer and others, then came up to disperse them; he himself asgoing in a warlike manner to Lambeth-house with his weapon; and calling to the rabble, to surprise the archbishop of Canterbury, who was a privy counsellor, it being with drums cause; I will fight the best of them.' Come on, boys, I will lose my life in the and a multitude of 300 persons, was treason. judges present agreed that Dammaree was The true ground of this resolution Mr. Justice guilty of the treason charged; for there was a Foster considers to have been, that the attempt rising with an avowed intention to demolish all was made on account of measures which the meeting-houses in general, which was carried king had taken or was then pursuing, at the into execution as far as they were able. It was instigation, as the rabble imagined, of the arch-a declaration by the rabble against the Act of bishop; in consequence of which they had deliberately, and upon a public invitation, attempted by numbers and open force to revenge themselves upon the privy counsellor for the acts of the sovereign. Perhaps it would be stating it more correctly to say, that it was an attack upon the king and his government in the person of his privy counsellor: but without the help of some such supposition the same learned judge thought there was nothing in the

Toleration, and an attempt to render it ineffectual by numbers and open force. Dammaree was accordingly convicted. opinion among the judges present at the trial; case of Purchase, there was some diversity of In regard to the because it did not appear that he had any coucern in the original rising, or was present at, except his behaviour at the bonfire in Druryor active in any of the outrages of that night, lane, whither he came by mere accident for

ing of war; but if any will go to pull down all inclosures, and make it a general thing to reform that which they think a nuisance, that necessarily makes a war between all the lords and the tenants. A bawdy-house is a nuisance, and may be punished as such; and if it be a particular prejudice to any one, if he himself should go in an unlawful manner to redress that prejudice, it might be only a riot; but if he will set up to pall them all down in general, he has taken the queen's right out of her hand: he has made it a general thing, and when they are once up, they may call every man's house a bawdy-house; and this is a general thing, it affects the whole nation.

Now to come to this instance. If you believe the evidence, Dammaree was concerned in pulling down two meeting-houses: he was not present at Drury-lane, that is, he was not proved to be there: but if he set others on to do it, it is his doing, and he as much pulled down that meeting-house in Drury-lane, as if he had pulled it down with his own hands. Besides, they tell you his declaration, that he would have all of them down. Again, these gentlemen do not seem to deny, but if the intention were general, it would be levying war: if it were general, where would it end? And it is taking on them the royal authority; nay, more, for the queen cannot pull them down till the law is altered: therefore he has here taken on him not only the royal authority, but a power that no person in England has.* It coucerns all that are against the meeting-houses on one side, and all that are for them on the other, and therefore is levying-war.

They said, they would desire this point to

aught appeared to the contrary. The jury therefore, by direction of the court, found a special verdict to the effect already mentioned. All the judges, on consideration, agreed in the guilt of Dammaree; and all but three held the same opinion in respect to Purchase; because the rabble were traiterously assembled, and in the very act of levying war when he joined them, and encouraged them to proceed, and assaulted the guards who were sent to suppress them. All this being done in defence and support of persons engaged in the very act of rebellion, involved him in the guilt of that treason in which the others were engaged. The ground of the opinion of the three dissenting judges was, because it was not directly found that he aided and assisted the traitors; though they agreed that the mob were continuing their act of treason when Purchase joined them. But from what I have before stated, this does not seem necessary, if the party be found to bave done any act towards the execution of the traitorous design. For whoever joins deliberately in the execution of any unlawful act, must abide the consequences at his peril." East's Pleas of the Crown, chap. 2, sect. 17.

* See Luders' Considerations on the Law of High Treason, &c. ch. 2, p. 68, as quoted in the present case, p. 531, Note. VOL. XV.

be reserved to them on the account of the opinion of the lord chief justice Hale: But I believe this matter has been so often settled, that it would be strange for us to depart from such a settled rule of law; for these are only the same arguments that were offered by the lordchief-justice; and he offered the same arguments that were used in queen Elizabeth's reign? but it was then held to be treason, and has been held so ever since. His objection made them consider it then, and they did so; and I suppose they will not expect that it should have more weight out of their mouths than out of his. It was then settled, and has been taken for law at all times since, so that it is not a matter now to be called in question. And as to the statute of 13 Eliz. the intention to levy war surely is not an intention to do a thing, which when it is done, is not levying war.

Thus the matter stands in point of law: I take it to be clear that it is levying war, if you take him to be guilty of being at one of the meeting-places, and leading them, and tempting them to another. Whether that is true, or not, is what must be left to your consideration. You have heard what has been said, and what difficulties arise in point of time, and on the other proofs: If you are of opinion, that he was present at Lincoln's-inn-fields, and did encourage them, and acted any otherwise than by force; if you believe he led, or invited them to another place, and pulled down that, then you will find him guilty of high treason. If you think he was not there, or was under a compulsion, then he will not be guilty. As for his being drunk, whether he was so or not, ought not to influence one way or other.

Cl. of Arr. Officer, take care of the jury. Lay your hand upon the book. (Which he did.)-You shall well and truly keep every one sworn of this inquest together in some private and convenient room, without meat, drink, candle, or lodging. You shall not suffer any person whatsoever to speak to them, or any of them, neither shall you yourself speak to them, until such time as they have delivered up their verdict, unless it be to ask them, whether they be agreed of their verdict? So help you God.

Then the prisoner was taken away, and the jury withdrew to the room provided for them, and after about an hour's consultation, agreed upon a verdict; and coming into court, were called over.

Cl. of Arr. Gentlemen of the Jury, answer to your names. Sir Edward Gould.

Sir Edward Gould. Here. (And so of the rest.)

Cl. of Arr. John Collis.

John Collis. Here.

Cl. of Arr. Gentlemen, are you agreed of your verdict?-Omnes. Yes.

Cl. of Arr. Who shall say for you?
Omnes. Our Foreman.

Cl. of Arr. Set Daniel Dammaree to the bar. (Which was done.)

Cl. of Arr, Daniel Dammaree, hold up thy

2 R

Trial of Daniel Dammaree."

hand. (Which he did.) Gentlemen of the
Jury, look upon the prisoner. How say you,
is he guilty of the high treason, whereof he
stands indicted, or Not Guilty?

Foreman. Guilty.

Cl. of Newgate. Look to him, keeper.
Guilty of high-treason.

Cl. of Arr. What goods or chattels, lands
or tenements had he at the time of the high-
treason committed, or at any time since?

Foreman. None, to our knowledge.

Cl. of Arr. Then hearken to your verdict, as the Court has recorded it. You say that Daniel Dammaree is Guilty of the high-treason whereof he stands indicted, and that he had no goods or chattels, lands or tenements, at the time of the high-treason committed, or at any time since, to your knowledge: And so you say all. Omnes. Yes.

Cl. of Arr. Gentlemen of the Jury, the Court discharges you, and thanks you for your service. Cryer, make proclamation.

Cryer. Yes, O yes, O yes. All manner of persons, that have any thing more to do at this general sessions of the peace, sessions of Oyer and Terminer, and gaol-delivery of Newgate, holden for the city of London, sessions of Oyer and Terminer, and gaol-delivery of Newgate, holden for the county of Middlesex, may depart hence for this time, and give their attendance here again to-morrow morning at eight of the clock.

GOD save the QUEEN.

On Saturday the 21st of April, 1710, being the last day of the sessions, the lord mayor, and Mr. Serjeant Richardson, who acted as deputy-recorder, in the absence of sir Peter King, knt. recorder of the city of London, with several aldermen and justices of the peace for the county of Middlesex, came into court about six in the evening, and the Court being resumed, the prisoner, together with Sampson Archer, convicted the same sessions, for stealing a horse, was brought to the bar, to receive judgment; When the Court proceeded thus:

Čl. of Arr. Daniel Dammaree, hold up thy hand. (Which he did.) You have been indicted for high treason, in levying open war within this kingdom, against her majesty; you have pleaded Not Guilty, and have put yourself for trial upon your country, which country have found you Guilty: What can you say for yourself, why the Court should not pronounce judgment against you, to die according to law? Dammaree. My lord, I ask pardon of the queen and the law, which I confess myself to have offended in a very vile and unjustifiable manner, and humbly beg that my case may be favourably represented to her majesty; having no dependance but on her royal mercy.

Serj. Richardson. Have you any thing to offer by yourself, or counsel, which may be of service to you in arrest of judgment? Dammaree. No, my lord.

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hand.-(Which he did.) You have been in-
Cl. of Arr. Sampson Archer, hold up thy
dicted for feloniously stealing a bay gelding,
the property of William Birch: You have
upon your country, which country hath found
pleaded Not Guilty, and put yourself for trial
you Guilty: What can you say for yourself,
judgment against you to die according to law?
why the Court should not proceed to give
Archer. It is my first fact, and I pray that I
may be transported.

Serj. Richardson. Is that all you have to say?
Archer. Yes, my lord.

Cl. of Arr. Then, Cryer, make proclamation.
commanded to keep silence while judgment is
Cryer. O Yes. All manner of persons are
giving, upon pain of imprisonment.

Serj. Richardson. You that are the prisoners capital offences, of which you have been seveat the bar, you have passed your trials for rally indicted: You have had patient hearings: One of you has had the assistance of counsel and indulgence you could, in reason, desire or of great skill and ability, and all the liberty wish for; but your guilt was so plain and evi dent, that every one that heard your trials must admit, that you stand justly convicted by the verdict of your country. Your crimes, as they are various in their natures, so they subject tences have this fatal similitude, that they both you to different punishments; but your senterminate in death: Which, though terrible in its nature, must of absolute necessity be inflicted is rebelliously broke, or private property noby the civil magistrate, where the public peace toriously invaded. Without these penal sancvernment should subsist in any nation; and how tions it is impossible that order and good gomovingly soever your present melancholy situation may plead for pity and compassion, yet the good of the whole, and the protection of the innocent, are considerations of much higher importance: And you have the less to offer for yourselves, since the nature of the crimes you have committed is such, as that they must be the effects of very vicious principles, or extralence to a body of people, whom the law bas vagant passions: One of you hath offered viothought fit to tolerate: and your manner of proceeding was attended with such desperate circumstances of terror and mischievousness, innocent neighbourhood, when to your own as threatened destruction and desolation to an malicious actions you added the fury of an element more cruel and merciless than yourself. You have indeed endeavoured to excuse yourself by pleading that your crime was the effect of drinking, which is a much weaker defence than your fellow prisoner makes, who says, he robbed out of necessity. Neither of these cases degree, much less will it excuse high-treason, will justify a breach of the law in the least or felony. The necessitous person, indeed, has a fairer claim to pity than the drunkard; for the latter voluntarily weakens his reason, and

Serj. Richardson. Then call upon the other inflames his passions, and by that very action prisoner.

is guilty of an offence against common decency,

he severed from your body, and your body divided into four quarters, to be disposed as the queen shall appoint. And the Lord have mercy upon your soul.'

And you Sampson Archer, having been convicted of felony, with the benefit of clergy:* the judgment of the law upon you is, and it is awarded by the Court:

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That you return from hence to the place 'from whence you came, and that from thence you be conveyed to the place of execution; where you are to be hanged by the neck until you are dead; and the Lord have mercy on your soul.'

and the laws of the land; while it is possible the misfortunes of the other may be unavoidable, though they are too often the consequences of idleness, extravagance, and debauchery. We live in a trading country, and, I believe, there are few instances where a man in health, and of an honest character, may not earn the bread of industry, and eat it in security. It was for this purpose, for the security of the innocent, that the very laws were made by which you are now to suffer: And as these laws are founded upon an higher institution, even the laws of God, you will do well to consider yourselves as offenders against the laws of your Maker, and accountable not only for these crimes, but for every action of your lives, at a higher tribunal, at which you are likely to appear in a short time, perhaps in a few days. Upon these con- Serj. Richardson. As for seeing your wife siderations, the lenity of our constitution gives and children, that we do not deny you'; but we a short respite to persons in your deplorable cannot allow them to be alone with you, becircumstances; and this city provides a clergy-cause it may occasion an escape. man, whose profession and experience enable him to advise, and assist you in making a proper preparation against your approaching change; to which important preparation I shall dismiss you, having first discharged the Court of the duty incumbent upon it, by pronouncing the several sentences the law has appointed.

You Daniel Dammaree, having been convicted of high-treason, the judgment of the law is, and the Court doth award:

That you be carried from hence to the place 'from whence you came, and from thence be drawn upon a hurdle to the place of execu tion, where you shall be hanged by the neck until you are almost dead, and being alive, 'you shall be cut down, your privy members 'shall be cut off, and your bowels taken out, ' and burnt before your face: that your head

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Dammaree. My lord, I desire my wife and children may have liberty to come and see me in prison, in the absence of the keeper.

Dammaree. My lord, if any other minister will be so kind as to visit me in my distress, I hope it will be permitted. It is

Serj. Richardson. Ay, by all means. a liberty that, I think, was never refused. You shall have all the favour that is usually shewn to persons in your condition.

Then the prisoner was taken away, and the Court proceeded to the other business of the sessions; and afterwards adjourned to Wednesday the 25th of May following.

Upon the Report of the prisoners' Cases to the queen, they both were reprieved; and some time after Dammaree received her most gracious pardon.

So in the former edition.

444. The Trial of FRANCIS WILLIS, a Footman, at the Sessions House in the Old-Bailey, for High Treason, in levying open War against her Majesty, in the Kingdom, under Pretence of pulling down Meeting Houses : 9 Anne, a. d. 1710*.

DOMINA REGINA versus WILLIS.

Die Veneris Vicesimo die Aprilis Anno Do-
mini et Regine prædicto.
THE Court being resumed, as in the Trial of
Dammaree, and the same judges being present,
Cl. of Arr. Middlesex cryer, make pro-
clamation.

Cryer. O Yes, O Yes; you good men of the county of Middlesex, summoned to appear here this day, to try between our sovereign lady the queen, and the prisoners that shall be at the bar, answer to your names as you shall be called, every man at the first call upon pain and peril shall fall thereon.

Then the Jury that were returned on the pannel, were all called over, and the appearances of all those that answered to the call, were recorded.

Cl. of Arr. Set Francis Willis to the bar. (Which was done.)

Cl. of Arr. Francis Willis, hold up thy hand. (Which he did.)

Cl. of Arr. You the prisoner at the bar, these good men, whom you shall hear called, and do now personally appear, are to pass between our sovereign lady the queen and you, upon trial of your life and death. If there fore you will challenge them, or any of them, your time is to speak to them as they come to the book to be sworn, and before they be

See the Cases immediately preceding and sworn. following.

Willis. My lord, I desire that none of the

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