that carried the curtain; for the man that carried the curtain had a green coat and brass buttons. Att. Gen. Are you an acquaintance of Grove's? Fletcher. Yes; I live in the same house. Att. Gen. Was it Good-Friday at night, after he had been at Newgate, that he told you this?-Fletcher. Yes. Att. Gen. Did you ask him any questions about the prisoner; or did he tell you of himself? Fletcher. He told me he had been at Newgate to see Mrs. Miles's man: I asked if he said any thing? He said no; that is not the young man that I saw with the curtain. Mr. Darnell. The account I have of Grove, is, that he was a tradesman, and broke, and now lives by gaming. L. C. J. If you have any thing to examine to his reputation, you will do well to call your witnesses to it. Grove, what do you say to this? Grove. When I came from Newgate, I thought it was the man; and I told him no such thing: I told every body I spoke with, that I believed it was the man. L. C. J. Did you tell him that you believed the man that had the curtain was in a green coat?-Grove. No, not that night. Mr. Darnell. Did you tell him so at any time? Grove. Yes; but that was the Wednesday night; but when I went to Newgate, he had a blue coat; but I always believed him to be the same man. L. C. J. Did he tell you he had a green coat on that night he had been at Newgate, or before?-Fletcher. It was before. L. C. J. I understood you, that when he came back from Newgate, he told you he had nothing to say to this man, for that the man that had the curtain had a green coat and brass buttons? Fletcher. He said he could not be positive, for that man had a green coat and brass buttons. L. C. J. Did he tell you that night that he had a green coat and brass buttons? the fire there was a man in a green livery, who was very active there: pray tell us, was you at the fire in Holborn, and who did you observe there? Holgate. My lord, about half an hour after ten I was at a neighbour's house, I heard there was a mob, and the meeting-houses were burning; upon that I went from thence, to my wife, and told her the meeting-houses were pulled down, and burning in Holborn; if you will go, I will see what they are doing. There I saw a great many boys bringing wood and boards, and throwing them into the fire: and at the fire I saw a footman in a green livery and red buttons, and red stockings; I saw him jumping, and very jolly. I will not be positive that he is our neighbour's footman that is since gone off, but I did see a footman in a green livery at the fire in Holborn, at Leather-lane end. Mr. Darnell. What did you see him do? Holgate. I saw him jumping and waving his hat. Mr. Darnell. What sort of man was he? Holgate. Much such a sort of man as the prisoner. Mr. Darnell. Did you know the footman that is gone off?-Holgate. Yes. Mr. Darnell. Did you see the prisoner at the fire? Holgate. No; I am sure I should have known him, if I had seen him. Mr. Darnell. Did you stay any time at the fire in Holborn? Holgate. I did not stay two moments, but went up to Hatton-Garden, and there I saw a great many with their clubs and staves, crying out Sacheverell; one gave me a stroke on the head, and asked me, why I did not pull off my hat? L. C. J. Why should you know the pri soner at the bar, if he had been there, and not know the man in green, who was your ac quaintance too? Holgate. My lord, I was at a distance. L. C. J. Would not the same distance have hindered you from knowing the other? Mr. Darnell. My lord, I desire to call a witness or two to the manner of life of this Fletcher. I cannot tell whether it was that Grove. night. Mr. Darnell. You say once he told you he had a green coat and brass buttons: what did he say when he came from Newgate? Fletcher. He said he could not be positive, for that he had a blue coat on. Just. Tracy. Did you, after you came from Newgate, say, you could not be positive he was the man? Grove. I did tell him I could not be positive. Mr. Thomson. Did you tell him you believed him to be the man? Grove. Yes; I said I did believe it, but I would not swear it was he. Then Holgate was sworn. Then Thomas Clark was sworn. Mr. Darnell. Do you know Mr. Grove? Mr. Darnell. What became of him afterwards? Clark. He went somewhere down to the water-side, to some place; but what it was I do not know. Mr. Darnell. What does he do now? Clark. I cannot tell; but they say he works with his uncle: I know nothing of him; but Mr. Darnell. We call him, to shew that at he never had a good character in his life. Mr. Darnell. How does he employ himself? Clark. He is given to playing, as I have heard say. Mr. Darnell. Do you know any thing particularly? : Clark. No, indeed; I never took so much notice of him but for the prisoner, I have known him two years, and never saw any hurt of him in my life. Then Ward was sworn. Mr. Darnell. Do you know this Grove? Mr. Darnell. What do you know of him? Ward. He was a baker in Hatton-garden; I knew him several years: I know him to be a gamester. Mr. Darnell. What instances can you give of his gaming? Ward. He has played with me for one. Mr. Darnell. What do you know of his play? Does he live by it? Ward. I cannot tell whether he lives by it or no; but he has been by relation a great gamester. Mr. Darnell. Do you know of any body's servant that suffered by him?-Ward. No. Mr. Darnell. What sort of games did he play at?-Ward. At dice. Att. Gen. Do you reckon yourself a game ster?-Ward. No. Att. Gen. Did you ever know that man play with any but yourself? Ward. Yes, at the Bell tavern in Gray'sinn-lane. Att. Gen. How often did you know him play there?-Ward. But once. Att. Gen. How long ago was that? Mr. Darnell. Do you know the prisoner? Mr. Darnell. How long have you known him?-Ward. Two years. Mr. Darnell. How has he behaved himself? Ward. A very honest young man as can come into a house, by all relations that I ever heard of him. Then Farrington was sworn. Mr. Darnell. How long have you known him? Farrington. I knew him when he lived in Chancery-lane. Mr. Darnell. What do you know of his behaviour? Farrington. A very civil young man; he used to fetch drink at my house: I never heard him swear, or knew him guilty of any ill, Then Mr. Miles was sworn. Mr. Darnell. Pray, Sir, what account do you give of the prisoner? Miles. He has lived in our family two years: he has always behaved himself well, and soberly, and was addicted to no ill. Sol. Gen. Was you at home that night? Mr. Darnell. My lord, we will not trouble your lordship with any more witnesses; we hope we have well accounted for the time he was out of his mistress's house, for that seems to be all that sticks upon him, that his being out so long might give room for him to be concerned in this tumult: but by the witnesses it appears, that the curiosity of seeing a mob, which he had never seen before, might take up some part of his time; and the two fires being so near, that he could not go from one, without seeing the other, engaged him to go to them both. There was a friend too that met him, with whom he walked up and down the street an hour; but we think it shews that he was not a ringleader, or aiding or assisting in pulling down the meeting houses, for that witness says, they were then carrying the materials, and the fire was lighting at the time when they were together; and that he parted with him, in order to go home, but his curiosity carried him to see that fire that was then lighting, that he might carry an account of it. But upon the main question, we must humbly insist, that there is no evidence to fix it upon the prisoner. There are not two witnesses to any overt-act for the same treason, nor do those witnesses ascertain it to be the prisoner; for now it appears a little plainer, that his first charge was against a footman in a green livery: he declared it was a footman in green with brass buttons; and when he came to Newgate to see this man, he believes him to be the same man; that is the most of his evidence; but when he came home then to his companion, that he lived in the house with, he believed it was not the same man, and he could not swear it was the same man, because he had a blue coat; and now he would carry his belief so far as to believe, that he then had a blue coat, with black buttons; and surely, nobody could mistake a blue coat with black buttons, for a green coat with brass buttons: whatever may be supposed of the colour of blue by firelight, altering by that light towards a green, yet it cannot turn black buttons into brass ones. Supposing the person whom Grove pretends to accuse were here, yet there are not two witnesses to an overt-act, for it is only confirmed by the confession which is proved by Lunt; but we hope the prisoner is not the person that had the colours, and therefore there is no evidence to make him guilty. We cannot differ from the resolution in the books in Messenger's case, much less with your lordship's resolution yesterday; but the case is entirely man, different between the waterman and this for there it did appear that he carried the branch, and threw it into the fire; that from thence, he hallooed, and led a party, and offered to be their captain, to Drury-lane, and in that manner he took upon him to lead them, and did lead them; but there is not any one instance of that nature here, there is not any one witness that proves him to be in a meetinghouse, or to have done any thing there, or to have gone from one to another. If he had joined with them at the first fire, and gone in with them in what they were doing, yet we must insist, that it would not make him guilty of high treason. In the case in king Charles the second's time, it was apparent they were all in the design; the verdict found that they assembled; that they armed themselves; that they chose a captain; that when the government thought fit to interpose to suppress them, they struck at the officer, threw stones at the captain of the guards, expressed their resolutions of going to Whitehall, and shewed what their intent was; but no design is proved against this man, and nothing to make it agree with that case: but those persons that were by all the judges acquitted from that treason; we think the evidence was much stronger against them, than what is offered against this man : for in the case of Beadle, he was proved to be among them; and when the officer pursued him, he turned about, and cried to the people to face about, and not to leave him: and though it appeared he was in the design, and called to the rest to resist in his defence, yet he was agreed not to be guilty of high treason, because he was not aiding in pulling down the houses; which in those matters wherein the judges gave their opinion, made it high treason: but as to Green in the first special verdict, and Beadle, they agreed, the verdict was not full enough to convict them. L. C.J. The jury found the evidence, but did not find the fact which might have arose from that evidence; but if they had found, as the consequence of that evidence, that they were aiding and assisting, they would have been guilty. And though the court thought there was reason for the jury to have said so, yet they not having said it, the court could not say it for them. Mr. Darnell. My lord, we say there is no intention proved against him, nor assisting in doing that which is the crime, in pulling down the second meeting-house: And as for the first, that was pulled down, and burning, before he came; so that he could not assist in that. Willis. I desire Lunt may be asked, If he saw me carry any thing to the fire? Lunt. I did not see him carry any thing. Willis. Did he see any of the mob take notice of me? Lunt. There was nobody with him, or that took notice of him: He went from the fire, after he had spoke those words, very quietly. L. C. J. Victor, was you by Mr. Lunt when you saw the prisoner carry the timber? the L. C. J. You did not see him bring it out of the meeting house, did you? Victor. No, I did not. Sol. Gen. Mr. Lunt, was Victor by you when the prisoner spoke to you? Lunt. He stood lower than me: We filled up the door-way: My hand was on the side of the door: Every now and then the mob would strike at me, as they went by, and were carrying the wood from the meeting to the fire; they would huzza, and cry, You dog, who are you for? Mr. Victor and I stood so about half an hour: I stood there before the fire was lighted, and till the guards came. Sol. Gen. How often did you see the prisoner during that time? Lunt. But once; and that was when he spoke those words to me. Sol. Gen. Was Victor by you then? Sol. Gen. Then set up Victor again. Pray Sir, about this timber: You say you saw him with some timber on his back; who was by at that time? Was Lunt by? Victor. I do not know whether he was at the door, or in the shop. Mr. Thomson. Was he coming that way from the meeting with the timber? Victor. Yes. Mr. Darnell. Can you take it on your oath, that the man that spoke to Mr. Lunt was the man that carried the timber? Victor. No, I cannot. Att. Gen. My lord, we think the proof is sufficient; and notwithstanding any thing that has been said by the counsel for the defendant, it stands unimpeached, and it is clear, that the prisoner is guilty of this treason. The evidence of both sides makes it appear, that upon this day there was an insurrection of the people, in order to pull down the meeting-houses, and that they executed their design by pulling down several at that time. Mr. Darnell does not deny but that, in point of law, all those people that were gathered together, to execute this design, are equally guilty of high treason: So that the question is only, whether this prisoner was one of those people that were gathered together? That which he insists upon is, that though this man was there, yet no proof is made that he was aiding towards the carrying on this design; therefore we think what our witnesses say is consistent, and not impeached by what was said of the other side. The first witness that we called, though he was not acquainted with the prisoner, yet he says, there was a man in a blue livery, that was so remarkable in leading the mob, with a curtain on a pole, that he could not but take notice of it; and that when he went to Newgate, to see the prisoner, he took him to be the same man that carried the colours; and though he cannot be so positive as to swear directly, yet he now believes it is the same man, though he cannot be positive. I am sure I should be very far from pressing any thing further than the nature of the evidence will bear: therefore I hope I do not misrepeat what he says: Therefore it leaves it somewhat uncertain, yet, whether the prisoner at the bar was the man that carried those colours? But that which puts this out of dispute, and makes it clear that this is the man, is Lunt's evidence, who now appears not to be an enemy to the prisoner: He tells you, that that night the prisoner told him, that they had made him captain of a party that night; that he had made colours of a curtain, and that we had burnt the clock. Now it is very strange, that if he was not concerned in carrying this curtain, that he should talk of a curtain and colours, and say, that he had made colours of a curtain. If he was not the man, it is unhappy that he should, within an hour after he was observed by our witnesses, say, that he was the man they had chosen; and that he had made a colours of a curtain; and that they had burnt the clock. It is not to be imagined he would have said such a thing, if he had not been the man that the others saw carrying it; therefore, putting these two witnesses together, (who are persons that no ways appear to be concerned to bring this man to justice more than any other) and it makes it plain and clear, that this is the man that flourished the colours. If so, then it is plain this is one evidence; and I agree, it is necessary that there should be another witness to prove some fact, and the testimony of one witness will not be enough, therefore we have produced Victor, that personally knew this man. He says, he saw him with a piece of timber on his shoulders; that he saw him throw it into the fire; and that he saw that man go afterwards and speak to Lunt, and Lunt told him who he was. It is of consequence to all governments, to make every body, that is any ways aiding in these disorders, equally guilty; for it is impossible to tell who begins in these cases: You may know who carries on these things, but you cannot tell who begins them; therefore it will not be sufficient for them to rely on, that be was sent by his mistress at that time, for that is all that was proved, that he was sent out to see where the fire was, and his being sent out for that purpose will not make him the less guilty, if he did join with them, and aid them in what was done: For if men are met together to do an unlawful act, and those that do not know it join with them, they are guilty; therefore whether he knew of that meeting, or was only sent out by his mistress, yet if it is proved that he did join, and aid and assist those that were engaged in that treason, he is equally guilty. As to what was said by Prior, who was his companion, that appears to be just at his being sent out by his mistress to VOL. XV. enquire: He told this man, that he was sent out to get intelligence, but you see, that though he was asked to stay and drink with this man, he would not, but left him, and what he did then, he could not tell; it is therefore likely that he afterwards went to this business that he was afterwards unhappily engaged in. As to what they insist on, that they have called witnesses to invalidate the testimony of Grove, that he made some mistake about the colour of his clothes, that is no great matter to be relied on; for blue and green, by candlelight, are pretty much of the saine cast, especially at a transient view; but you see the view he had was sufficient to know his face, but the light of the fire occasioned another cast upon his clothes, therefore his thinking it to be green when it was blue, will make no difference: and though he does not speak positively, but speaks with caution, and not as a man would do, that was prejudiced, and came to take away a man's life: though he says he cannot positively say this is the man, yet he says he does really think it is. As to the witnesses that prove he had a misfortune, and broke, that may be many an honest man's misfortune to fail in a way of trade: I do not see that they do impeach his credit at all: though they talk of his playing, I do not find but one man that has seen him play, and most people do some time or other : I do not find that he has swerved, or done any thing foul; but we must submit the matter of fact to the consideration of the jury: I believe the matter of law is agreed: 1 believe there was a notion in the world, that it was only a riot, for which they might be fined, and the like, but the law is now agreed; and as to the fact, we must submit it to your lordship's directions. Sol. Gen. I think Mr. Darnell does agree, that if there was a general intention to pull down meeting-houses, it would be rebellion and high treason. I take it, that it was so, is as fully proved as is possible, by having so many pulled down, and by such a multitude of people as were got together for that purpose: for it cannot be thought, that the people that were at one house intended to pull down that, and those that were at the other houses intended to pull down them only; but it must be a general intention to pull down meeting-houses in general; we think, therefore, the general intention is proved, therefore what Tolboy says does not confine it: for though he says, what they declared was only in regard to Mr. Burgess's meeting-house, yet that does not take off from the evidence of what passed the next day, when the several meeting-houses were pulled down; and the fact, without that evidence, shews the particular intention; and the mob that were at Lincoln's-inn-fields, swore, Damn them, they would have them all down; and accordingly they went away to another, and pulled that down; therefore, that there was a general intention, is sufficiently proved, and that this man did act in that intention. We 2 T think it is sufficiently proved, that he was at two of them; but if it had been but one, it had been the same case. But they object, that this is not a legal evidence; for, say they, the statute restrains it, and says, that no confession can be given in evidence, and the evidence of Lunt, without it, will not do; and Grove's not swearing positively to the man, without the help of Lunt, will not be a legal evidence, so as to prove an overt-act. This is the strength of the objection in point of law and God forbid that we should insist on any thing but what is legal evidence: it is justice to him, not to offer any such thing, as it is to the crown, to insist on what is legal evidence, to bring him to punishment. The words of the Act are, That no person shall be indicted, tried, or attainted of high treason, whereby corruption of blood may be made, or of misprision of such treason, but by the oaths and testimonies of two lawful witnesses, either both to the same overt-act, or one to one, and the other to another overt-act of the same treason, unless the party willingly, in open court, confess the same, &c. Now in this case, here are two lawful witnesses. Grove is a lawful witness, he is capable of being a witness; whether what he says is sufficient for the proof of the point, must be left to the consideration of the jury. If there are two legal witnesses, to which there are no legal objections, it is sufficient; whether what they swear is sufficient to prove the fact, is of another consideration; but there is not one word in the Act to restrain a confession from being given in evidence: he shall not be convicted on a trial, without two lawful witnesses; that is the thing that is provided for, and it was to exclude a precedent that had been settled in Tong's case, in my lord chief justice Keyling's Reports, an evidence of confession only, that was proved by two witnesses, and that was the occasion of making this law, that his confession alone should not be sufficient, without an overt-act. This was the reason and ground of making that Act of Parliament, but it was not designed to exclude all confessions. That was evidence at law, and always must be so: that evidence that comes out of a man's own mouth, was always allowed. The design of the Act was to exclude confessions from having the force of a conviction, unless it were in a court of record, and to prevent a confession proved by two witnesses, from being a sufficient ground for a conviction. A confession is a considerable evidence, and in many cases clears a thing beyond contradiction; and in this case it shews how necessary it is; for when things are transacted in the dark, and it is impossible for strangers to give a clear description of persons, surely the confession of a man himself is the most proper evidence in the world, and the most satisfactory. This then being a lawful evidence, it stands clear of that objection here are two witnesses to the overtact, and this evidence of Lunt is not excluded, but this confession of the party is lawful to be given in evidence. This being the state of the matter, how stands Trial of Francis Willis, it then? It is agreed he was at the bonfire in [644 Holborn; he was sent out for that purpose: the fire was seen at his mistress's house, and he there was a man there in a blue livery, is proved was sent out to enquire after the matter. That by several people, and it is proved that he had cannot tell whether he was in blue or green, a blue livery. Grove says he saw a man, he not know whether he was in blue or green, but with a standard in Holborn: he says, he does he took him to be a man of that size, and he supposes him to be the man. But here is still a doubt, whether this is the man that carried the standard; and how is that cleared? Now this, with submission, is cleared by the man himself, if that be evidence, which we insist upon it it is. This declaration to Lunt, that he had made colours of a curtain, and that he was chose captain of a party, that does explain it, and is not answered by any thing they have oftumult in Leather-lane, Victor swears, that he fered to the contrary. As to his acting in the saw him with a piece of timber on his shoulder, and that he carried it, and threw it into the fire. Lunt, as to every thing he speaks, is clear: he proves that he spoke some words to him; and as to what Victoi says, he is as clear, that he tion then will be, where he had this wood! had the wood and threw it in. The only queswhether he had the wood which he threw into house, from any other place? They give the fire, made of the materials of the meetingyou some evidence, that he was going home quietly; and that they parted about eleven at Brook's-market: but it is plain, he did not go home till just twelve, for so all the family agree; so that that time is to be accounted for, which he might have spent at this bonfire, and in this tumult. There is another man to answer the business of what they call the High Church standard: he says, there was a man in a green livery which he saw, and thought he knew him, but could not be positive, because he was at a distance; but if it had been this man, he believes he should have known him; but there the other. The man in the green livery, he is as little reason for him to know the one as says, is run away, but he says nothing as to the brass buttons; and it is easy to mistake between green and blue. is reasonable; these are circumstances which I shall not urge the evidence further than it But supposing the man to be concerned in this will be under the consideration of the jury. manner, acting as the queen's evidence have proved, it will be high treason within the case tinguished by what Mr. Darnell offered. He in my lord Keyling's Reports, and is not disstruck at the guards; so here was leading, for says, there was leading and arming, and they nobody denies but they had a standard: the only question is, whether the prisoner carried they were led, and hallooed away to Drury. it ? and in the other mob in Lincoln's-inn-fields, lane. And as to the Case of Beadle, which he done by him; besides, the verdiet was defecwould compare it to, there was no act that was |