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It is unhappy, indeed, that these mistakes tion all the cases that relate to this matter) are propagated; but it is monstrous to see how Tbey insist that this is not levying war; and people may be misled; that they should fall on this ground, that he was not proved to be at foul on the Dissenters, and puit down the the meeting-house in Drury-lane, but only at meeting-houses, when they are rather the ob- the fire at Dr. Burgess's; and if he was only jects of pity than anger. If they are not satis at one place, one instance would not make it fied with the established Church, which is the levying war. If, say they, there had been a best in the world, and they lose the benefit and generals intention, it would have gone hard advantage of that excellent constitution, they with bim; there was an intention the night are to be pitied for their mistake: but why before, and Mr. Burgess's was only mentioned; should any one be angry, because they do a and it is not certain tbat there was a general de prejudice to themselves ? But this matter sign to pull down the rest. Nay, he was not having been under the consideration of the there, and it was by accident that he came to legislature, and there being a law that allows Lincoln's-inn-fields, and he was but at that one them the liberty of serving God in their own place; and they take notice of some cases, way; since that liberty is allowed them, why especially that about the bawdy-houses, and should any body be concerned that they enjoy that the lord-chief-justice Hale differed from it? And why sbould their meeting-houses be the rest of the judges.f. pulled down? But Dr. Sachererell at that This is a matter that has been often under time (I would not reflect on bim; he has consideration: the act of the 25th Edward the undergone a censure in another place) when he 3rd, which is tbe great law for declarations of bad fallen foul on the Toleration, and repre. treason, declares what shall be adjudged treason: sented it as an encouragement to schism, and a compassing or imagining the death of the king, ground of danger to the Church, those people and levying war against the king, are two dis. that thought him a confessor for the Church, tinct species of treason. Now they say, that thought they could do no less than pull down nothing was designed against the queen. If those meeting-houses, wbich were the semina- the levying war against the queen, was there ries of schism. And this doctrine of Non-Re meant only of a war against the queen's person, sistance, which is cried up in all cases to be the it would have been idle to mention it in that act, doctrine of the Church, this doctrine is to be because they bad before made the compassing propagated by Resistance; these people will her death to be treason. resist, to shew they are not for resisting, and Now he that levies war, does more than com. oppose the queen's guards in vindication of that pass and imagine the king's death; therefore doctrine that nobody ought to resist : but it it has been always ruled, that where there is shews that when a madness is got among the an actual levying of war, which concerns the people, they cannot think as they ought to do, person of the king, they lay the treason to be and many unaccountable things will be done; ihe compassing the death of the king, and give and therefore he might think it no blemish to a proof of it by levying war. But there is anobis reputation : and Dr. Sacheverell, that has ther levying of war, which is not immediately been coodemned for those things by the parlia- against the person of the king, but only between ment, and stands convicted of being guilty of some particular persons. There is a vast them, some people having made it honourable to him, others thought it might be an honour to * See Luders' Considerations on the Law of them too, to demolish meeting-houses, and to High Treason. raise seditions and riots, which are not to be † Ibid. borne in a civilized country; for nobody knows # “ Constructive levying of war is in truth where popular tumults will end.*.
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 him. sumption ; 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, to them right, they have taken into considera. to introduce innovation of a public concern, to
obstruct the execution of some general law by *“ It must be admitted, that the object of aan armed force, or for any other purpose which great riot or insurrection, comparatively trivial usurps the government in matters of a public in its origin, may so far vary by its success, and general nature. On the trial of lord George continuance, or other circumstances, as to as- Gordon, the court of King's-bench declared sume a decided tone of resistance to the person their unanimous opinion that an attempt, by of the king and his government, and so become intimidation and violence to force the repeal of an overt act of compassing his death. For it a law, was a levying war against the king. is a kind of natural or necessary consequence, The statute in question was the 18 Geo. 3, c. lord Hale observes, that he who attempts to 60, for relieving Roman Catholics from certain subdue the king cannot intend less than his penalties; and the treasonable act given in death, and such, he adds, has always been the evidence against the prisoner, was the assemmiserable consequence of such a contest." bling a great multitude of people, and encouEast's Pleas of the Crown, chap. 2, sect. 9. raging them to surround ihe two Houses of difference between a man's going to remove an the others would pull them down, there would annoyance to bimself, and going to remove a be a war immediately. public nuisance, as the case of the bawdy. | In the case of inclosures, where the people of houses : and the general intention to pull them a town have had part of their common inclosed, down all is the treasop: for if those that were though they bave come with a great force to concerned for them would defend them, and throw down that inclosure, yet that is not levy
Parliament, and commit different acts of vio- case as reported, which amounted to highlence there and elsewhere, with a view to inti. treason. midate them to a repeal of the statute. Insur-! « Dammaree and Purchase were indicted serections of this nature, though not levelled di- | verally, for that they, with a multitude of peo. rectly against the persou of the king, are yet ple, to the number of 500, armed and arrayed an attack upon bis regal office, and tend to dis in a warlike manner, &c. did traiterously lety solve all government, society, and order. The war, &c. It appeared that during Dr. Sacheking is bound iu duty to enforce the acts of the verell's trial in 1709, the rabble, who had atlegislature, and uphold their authority: any tended him from Westminster, to his lodgings resistance, therefore, to these, must, in its con in the Temple, continued there together for a sequences, extend to the endangering of his short time, crying, among other cries of the person and governinent, by involving the state day, “Down with the Presbyterians.' At length in a general distraction; on which account this a person unknown proposed to pull down the species of treason falls properly within the meeting houses; and thereupon the cry beclause of levying war against the king. Upon came general, Down with the meeting. this principle the Yorksbire and Northumber- bouses ;' and some thousands immediately land rioters, who opposed the militia laws, were moved towards a meeting-house of Mr. Burgess, convicted of bigh treason; and several of them a Protestant Dissenting minister; the defendant were executed. But under this branch a bare Dammaree, a waterman, putting himself at the conspiracy to levy such a war is not treason, head of them and crying, Come on, boys; I unless the war be actually levied ; in which will lead you; down with the meeting-houses.' case the conspirators, as well as the actors, They soon burnt Mr. Burgess's; after which would be all equally guilty.
they agreed to proceed to the rest of the meetOf the same nature is an assembling toge. ing.houses: and hearing that the guards were ther 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 nigbt in part demo. tuals, 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 gries- in Drury-lane, still crying that they would ance, of a public and general nature, in which pull them all down that night.' While the the insurgents have no peculiar interest. Against materials of this house were burping in the such insurrections magistrates, sheriffs, and street, Purchase, who had not, for aught ap. indeed all private persons, may use force topeared, taken part in any prior outrage, came suppress them without any special commission, up to the fire very drunk, and with a drawu in the same manner as they may oppose fo. sword in his hand encouraged the rabble, and reigo enemies coming hostilely into the king- incited them to resist the guards, who just dom.
tben came up to disperse them; he himself as. " It was adjudged in Benstead's case, that saulting the commanding officer and others, going in a warlike manner to Lambeth-house with his weapon; and calling to the rabble, to surprise the archbishop of Canterbury, who | Come on, boys, I will lose my life in the was a privy counsellor, it being with drums cause; I will fight the best of them.' All 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-bouses 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 de- Toleration, and an attempt to render it joeftecliberately, and upon a public invitation, at. tual by numbers and open force. Dammarec tempted by numbers and open force to revenge was accordiogly convicted. In regard to be themselves upon the privy counsellor for the case of Purchase, there was some diversity of acts of the sovereign. Perhaps it would be opinion among the judges present at the trial; stating it more correctly to say, that it was an because it did not appear that he had any conattack upon the king and his government in cern in the original rising, or was present al, the person of his privy counsellor: but without or active in any of the outrages of that night, . the help of some such supposition the same except bis behaviour at the bonfire in Drury. learned judge thought there was nothing in the lane, whither he came by mere accident for
ing of war; but if any will go to pull down all be reserved to them on the account of the opiinclosures, and make it a general thing to re- nion of the lord chief justice Hale : But I be. form that which they think a nuisance, that lieve this matter has been so often settled, that recessarily makes a war between all the lords it would be strange for us to depart from such anil the tenants. A bawdy-house is a puisance, a settled rule of law; for these are only the and may be punished as such ; and if it be a same arguments that were offered by the lordparticular prejudice to any one, if he himself chief-justice; and be offered the same argushould go in an unlawful manner to redress ments that were used in queen Elizabeth's that prejudice, it might be only a riot ; but if reign ? but it was then held to be treasop, and he will set up to poll them all down in general, has been held so ever since. His objection he has taken the queen's right out of her hand made them consider it then, and they did so ; he has made it a general thing, and when they and I suppose they will not expect that it are once up, they may call every man's house should have more weight out of their mouths a bawdy-house; and this is a general thing, it than out of his. It was then settled, and has affects the whole nation. .
been taken for law, at all times since, so that it Now to come to this instance. If you be is not a matter now to be called in question. liere the evidence, Dammaree was concerned And as to the statute of 18 Eliz, the intention in pulling down two meeting-houses: he was to levy war surely is not an intention to do a not present at Drury-lane, that is, he was not thing, which when it is done, is not levying war. proved to be there : but if he set others on to Thus the matter stands in point of law: I do it, it is his doing, and he as much pulled take it to be clear that it is levying war, if you down that meeting-house in Drury-lane, as if take him to be guilty of being at one of the he had pulled it down with his own hands. meeting-places, and leading them, and temptBesides, they tell you bis declaration, that being them to another. Whether that is true, or would bave all of them down. Again, these gen- | not, is what must be left to your consideration.' temen do not seem to deny, but if the intention You have heard what has been said, and what were general, it would be levying war:, if it difficulties arise in point of time, and on the were general, where would it end? And it is other proofs: If you are of opinion, that he taking on them the royal authority ; nay, was present at Lincoln's-inn-fields, and did more, for the queen cannot pull them down till | encourage them, and acted any otherwise than the law is altered : therefore he has here taken by force; if you believe he led, or invited them on bim not only the royal authority, but a to another place, and pulled down that, then power that no person in England has.* It con- | you will find him guilty of high treason. If cerns all that are against tbe meeting-houses you think he was not there, or was under a on one side, and all that are for them on the compulsion, then he will not be guilty. As for other, and therefore is levying-war.
bis being drunk, whether he was so or not, They said, they would desire this point to ought not to influence one way or other.
augbt appeared to the contrary. The jury Cl. of Arr. Officer, take care of the jury. therefore, by direction of the court, found a Lay your band upon the book. (Which he Special verdict to the effect already mentioned. | did.) -You shall well and truly keep every one All tbe judges, on consideration, agreed in the sworn of this inquest together in some private guilt of Dammaree; and all but three held the and convenient room, without meat, drink, saine opinion in respect to Purchase; because candle, or lodging. You shall not suffer any the rabble were traiterously assembled and in person whatsoever to speak to them, or any of the very act of levying war when he joined them, neither shall you yourself speak to them, them, and encouraged them to proceed, and | until such time as they have delivered up their assaulted the guards who were sent to suppress verdict, unless it be to ask them, whether they them. All this being done in defence and sup | be agreed of their verdict? So help you God. port of persons engaged in the very act of re | Then the prisoner was taken away, and the bellion involved him in the guilt of that treason jury withdrew to the room provided for them, in which the others were engaged. The and after about an bour's consultation, agreed ground of the opinion of the three dissenting upon a verdict; and coming into court, were judges was, because it was not directly found called over. that he aided and assisted the traitors; though Cl. of Arr. Gentlemen of the Jury, answer they agreed that the mob were continuing to your names. Sir Edward Gould. their act of treason when Purchase joined them. Sir Edward Gould. Here. (And so of the But from what I have before stated, this does rest.) pot ser
if the party be found to cl. of Arr. John Collis. have done any act towards the execution of the John Collis. Here. traitorous design. For whoever joins delibe. Cl. of Arr. Gentlemen, are you agreed of rately in the execution of any unlawful act, your verdict?-Omnes. Yes. bust abide the consequences at his peril.” | Cl. of Arr. Who shall say for you ? .. East's Pleas of the Crown, chap. 2, sect. 17. Omnes. Our Foreman.
* See Luders' Considerations on the Law of Cl. of Arr. Set Daniel Dammaree to the High Treason, &c. ch. 2, p. 68, as quoted in bar. (Which was done.) the present case, p. 531, Note.
cl. of Arr. Daniel Dámmaree, hold up thy VOL. XV.
& 2 R .
band. (Which he did.) Gentlemen of the Cl. of Arr. Sampson Archer, hold up thy Jury, look upon the prisoner. How say you, hand. - (Which he did.) You have been in is he guilty of the high treason, whereof he dicted for feloniously stealing a bay gelding, stands indicted, or Not Guilty ?
the property of William Birch: You have Foreman. Guilty.
pleaded Not Guilty, and put yourself for trial Cl. of Newgate. Look to him, keeper. | upon your country, which couotry hatb found Guilty of bigb-treason.
you Guilty: What can you say for yourself, Cl. of Arr. What goods or chattels, lands why the Court should not proceed to give or tenements bad he at the time of the high- 1 judgment against you to die according to law! treason committed, or at any time since ?
Archer. It is my first fact, and I pray that I Foreman. None, to our knowledge.
may be transported. Cl. of Arr. Then hearken to your verdict, Serj. Richardson. Is that all you have to say?
corded it. You say that Archer. Yes, my lord. Daniel Dammaree is Guilty of the high-treason Cl. of Arr. Then, Cryer, make proclamation. whereof be stands indicted, and that he had no | Cryer. O Yes. All manner of persons are goods or chattels, lands or tenements, at the commanded to keep silence while judgment is time of the higb-treason committed, or at any giving, upon pain of imprisonment. time since, to your knowledge: And so you Serj. Richardson. You that are the prisoners say all. Omnes. Yes...
at the bar, you have passed your trials for "Cl. of Arr. Gentlemen of the Jary, the capital offences, of which you have been sereCourt discharges you, and thanks you for your rally indicted : You bave bad patient bearings: service. Cryer, make proclamation.
One of you has had the assistance of counsel Cryer. O Yes, O yes, O yes. All manner of great skill and ability, and all the liberty of persons, that have any thing more to do at and indulgence you could, in reason, desire or this general sessions of the peace, sessions of wislı for; but your guilt was so plain and evi. Oyer and Terminer, and gaol-delivery of New. dent, that every one that heard your trials must gate, holden for the city of London, sessions of | admit, that you stand justly convicted by the Oyer and Terminer, and gaol-delivery of New. | verdict of your country. Your crimes, as they gate, holden for the county of Middlesex, may I are various in their patures, so they subject depart hence for this time, and give their at. | you to different punishments; but your sentendance here again to-morrow morning at tences have this fatal similitude, that they both eight of the clock.
terminate in death : Which, though terrible in God save the QUEEN.
its nature, must of absolute necessity be inflicted
by the civil magistrate, where the public peace · On Saturday the 21st of April, 1710, being is rebelliously broke, or private property nothe last day of the sessions, the lord mayor, toriously invaded. Without these penal sancand Mr. Serjeant Richardson, who acted as |tions it is impossible that order and good godeputy-recorder, in the absence of sir Peter vernment should subsist in any nation, and how King, knt. recorder of the city of London, movingly soever your present melancholy siwith several aldermen and justices of the peace tuation may plead for pity and compassion, yet for the county of Middlesex, came into court | the good of the whole, and the protection of about six in the evening, and the Court being the innocent, are considerations of much higher resumed, the prisoner, together with Sampson importance: And you have the less to offer for Archer, convicted the same sessions, for stealing yourselves, since the nature of the crimes you a horse, was brought to the bar, to receive have committed is such, as that they must be judgment; When the Court proceeded thus : the effects of very vicious principles, or extra
Cl. of Arr. Daniel Dammaree, bold up thy | vagant passions : One of you hath offered viohand.-(Which he did.) You have been in lence to a body of people, whom the law has dicted for high treason, in levying open war thought fit to tolerate: and your manner of within this kingdom, against her majesty; you proceeding was attended with such desperate bave pleaded Not Guilty, and have put your- | circumstances of terror and mischievousness, self for trial upon your country, which country as threatened destruction and desolation to an have found you Guilty: What can you say for innocent neighbourhood, when to your own yourself, why the Court should not pronounce malicious actions you added the fury of an elejudgment against you, to die according to law ? ment more cruel and merciless than yourself.
Dammaree. My lord, I ask pardon of the You have indeed endeavoured to excuse yourqueen and the law, which I confess myself to self by pleading that your crime was the effect have offended in a very vile and unjustifiable of drinking, which is a much weaker defence manner, and humbly beg that my case may be than your fellow prisoner makes, who says, be favourably represented to ber majesty; having | robbed out of necessity. Neiu
robbed out of necessity. Neither of these cases no dependance but on her royal mercy.
will justify a breach of the law in the least Serj. Richardson. Have you any thing to degree, much less will it excuse higb-treason, offer by yourself, or counsel, which may be of or felony. The necessitous person, indeed, has service to you in arrest of judgment ?
a fairer claim to pity than the drunkard ; for Dammaree. No, my lord.
the latter voluntarily weakens his reason, and Serj. Richardson. I'hen call upon the other inflames his passions, and by that very aetion prisoper,
is guilty of an offence against common decency, and the laws of the land, while it is possible, he severed from your body, and your body the misfortunes of the other may be unavoidable, divided into four quarters, to be disposed as though they are too often the consequences of the queen shall appoint. And the Lord have idleness, extravagance, and debauchery. We mercy upon your soul.' live in a trading country, and, I believe, there And you Sampson Archer, having been conare few instances where a man in health, and of victed of felony, with the benefit of clergy :* ad honest character, may not earn the bread of the judgment of the law upon you is, and it is industry, and eat it in security. st was for this awarded by the Court: purpose, for the security of the innocent, that That you return from bence to the place the very laws were made by which you are from wbence you came, and that from thence now to suffer: And as these laws are founded you be conveyed to the place of execution ; upon an higher institution, even the laws of where you are to be hanged by the neck until God, you will do well to consider yourselves as you are dead; and the Lord have mercy on offenders against the laws of your Maker, and your soul.' accountable not only for these crimes, but for Dammaree. My lord, I desire my wife and every action of yonr lives, at a bigher tribunal, cbildren may have liberty to come and see me at which you are likely to appear in a short in prison, in the absence of the keeper. time, perbaps 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 Dammaree. My lord, if any other minister bim to advise, and assist you in making a will be so kind as to visit me in my distress, I proper preparation against your approacbing hope it will be permitted. change; to wbicb important preparation I shall Serj. Richardson. Ay, by all means. It is dismiss you, having first discharged the Court a liberty that, I think, was never refused. of the duty incumbent upon it, by pronouncing | You shall have all the favour that is usually the several sentences the law has appointed. shewn to persons in your condition.
You Daniel Dammaree, having been convicted of bigb-treason, the judgment of the Then the prisoner was taken away, and the law is, and the Court doth award :
Court proceeded to the other business of the That you be carried from hence to the place sessions; and afterwards adjourned to Wednesfrom whence you came, and from thence be day the 25th of May following. drawn upon a hurdle to the place of execu. Upon the Report of the prisoners' Cases to tion, where you shall be hanged by the neck the queen, they both were reprieved ; and some until you are almost dead, and being alive, time after Dammaree received her most grayou shall be cut down, your privy members | cious pardon. shall be cut off, and your bowels taken out, and burnt before your face: that your head
* 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 dersus Willis.
1 Then the Jury that were returned on the
rapnel, were all called over, and the appear. Die Veneris Vicesimo die Aprilis Anno Do
ances of all those that answered to the call, mini et Reginæ prædicto..
were recorded. THE Court being resumed, as in the Trial of Cl. of Arr. Set Francis Willis to the bar, Dammaree, and the same judges being present, -(Which was done.)
Cl. of Art, Middlesex cryer, make pro- Cl. of Arr. Francis Willis, hold up thy clamation.
band.-(Which he did.) Cryer. O‘Yes, O Yes; you good men of C l. of Arr. You the prisoner at the bar, the county of Middlesek, summoned to appear these good men, whom you shall hear called, here this day, to try between our sovereign and do now personally appear, are to pass belady the queen, and the prisoners that shall between our sovereign lady the queen and you, at the bar, answer to your names as you shall upon trial of your life and death. If there. be called, every man at the first call upon pain fore you will challenge them, or any of them, and peril shall fall thereon,
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.
Willis. My lord, I desire that none of the