persuade

the public

of Lord Shaftes

CHAPTER IX.

Lord Shaftesbury's attempts to obtain his freedom under the Habeas Corpus Act.-Their Failure. He indicts Warcup and his agents for Perjury.-Attempts of the Court to bribe Witnesses to accuse him.-Captain Wilkinson.—Trial of College, the Protestant joiner-succeeded by that of Shaftesbury. The Grand Jury ignore the bill against him.—Joy of the Country at his Acquittal.

A.D. 1681. As soon as Lord Shaftesbury was committed to Attempts to the Tower, the popish party exerted themselves to spread among the public a persuasion of his guilt. For this purpose, letters from unknown hands, and without names, were sent to several persons, exhorting them to secure and convey away their papers. The following is a copy of one of these letters.

bury's guilt.

66

"MR. GIBBS,

My Lord Shaftesbury being just committed to the Tower, and Sir Thomas Player under examination before the king and council, and seve

ral warrants out against several of our dearest A.D. 1681. friends, and now all like to be discovered, I was desired by his lordship to give warning to all his friends, and particularly those in Wapping, to secure all papers and things, &c.; of which I desire you to give notice to so many as you can think, that they nor you may be surprised: being in more haste than ordinary, have only time to subscribe myself,

"Yours in all secrecy,

"Whitehall, July 2, 1681.

"J. T.

"Your name is in the list with others of your neighbours."

Warcup

against

tesbury.

Lord Shaftesbury had been committed only Justice upon general informations, which were procured employed by, and taken before, Justice Warcup, a person Lord Shafwho, by several infamous proceedings, had long rendered his name and character justly hateful to the public. In the year 1666, a complaint had been preferred against him by Lord Arlington for making use of his name without his knowledge in a scandalous transaction; and, the truth of the accusation being proved, the king in council had ordered him to be committed to

A.D. 1681. the Fleet. He was at the same time put out

Lord Shaf

tesbury's applications to the

of the commission of lieutenancy, banished for ever from the court, and the Duke of York declared that he would dismiss him from his service. In a few weeks, however, upon Warcup's submission to Lord Arlington, and asking pardon on his knees, he was discharged from prison, and soon restored to be a justice of the peace. To this man, who was ready to execute any scheme of iniquity, was entrusted the procuring of witnesses, and their instruction as to what they were to allege against Lord Shaftesbury.

When the sessions of oyer and terminer for London began at the Old Bailey, July the 7th, sessions at 1681, his lordship, who had been kept ignorant

the Old

Bailey.

of the crimes sworn against him, petitioned the court, agreeably to the habeas corpus act, that he might be brought to his trial, or bailed; and on the last day of the same sessions, as no indictment had been preferred or proceedings entered into against him, he moved by his counsel that he might be bailed, or set at liberty, according to law. This the Lord Chief Justice Pemberton refused, under pretence that the Tower of London was not within the limits of the commission granted to the court of sessions.

Lord Shaftesbury, being unwilling that this

denial should become a precedent for eluding the
habeas corpus act, made, at the next sessions at

the Old Bailey, September the 5th, 1681, by an-
other petition, a second claim of right; and set
forth that he was still wrongfully detained a
prisoner, and therefore prayed to be tried or
set at liberty according to law; and there being
as yet no indictment, or any kind of proceeding
against him, on the last day of the sessions he
moved again by his counsel to be released. But
the Chief Justice Pemberton refused it as before,
and for the same reason;'
;134 though Sir Patience
Ward, who was then lord mayor, declared it to
be his opinion that the Earl of Shaftesbury was
entitled to his discharge, and said he left it to
the chief justice to answer for the refusal.

Lord Shaftesbury, determined to continue his claim, exhibited, at the next sessions at the Old Bailey, October the 10th, a third petition, to the same effect with the two former; and, though still there was no indictment, the Chief Justice Pemberton refused to bail or set him at liberty.

134 Pemberton well deserves to share that immortality of infamy which attaches to the names of Scroggs and Jefferies. The seventh volume of the State Trials affords dreadful proofs of his readiness to sacrifice the victims who were brought before him either to king or people.

A.D. 1681.

He is re

peatedly denied relief by Judge Pemberton.

A.D. 1681. To obviate the pretence that the Tower of He applies London was not within the limits of the city, the earl at every one of these sessions petitioned at Hicks's likewise, in the same manner, the justices of the

in the same manner to the sessions

Hall,

without

success.

Bills of indictment

against Warcup

and others.

peace at the sessions held for Middlesex at
Hicks's Hall; where they always have a commis-
sion to inquire of any matters committed in the
county of Middlesex, though they never read it,
except it be required by some particular occasion:
but Sir William Smith, who ruled the bench
there, positively refused to read the commission,
or to grant
him any relief,

At the sessions held at the Old Bailey, September the 5th, 1681, four bills of indictment were offered against Edmund Warcup the justice, John Smith, John Macnamara, and Bryan Haynes, for subornation of perjury. The witnesses to these indictments were all in the court, that they might be sworn in order to their attending the grand jury. The court being informed by the clerk of the sessions that such bills were delivered to him, the chief justice, as is usual, called for the witnesses to be sworn; but one of the king's counsel standing up, and speaking privately to him, he ordered the indictments to be laid aside till the next day. The solicitor