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and that therefore, after they have made a weak that must have destroyed the holy religion you shoot, they soon witber and come to pothing. profess, had it taken effect,
It is well your lordship has given an oppor- Nothing now remains, but tbat I pronounce tunity of doing the government right, on the upon you that sentence which the law ordains, subject of your surrender at Preston.
and which sufficiently shews what thoughts How confidently bad it been given out by our ancestors bad, of the crime of which your the faction, that the surrender was made on as- lordship is now convicted : viz. surances, at least hopes insinuated of pardon : 1
That you George Earl of Wintoun return to Whereas the truth appears to be, that fear was.ch
I the prison of the Tower from whence you came: the only motive to it; the evil day was deli
from thence you must be drawn to the place ferred ; and the rebels rightly depended, fewer
of execution; when you come there, you must
of execut would die at last by the measures they elected, I her than if they had stood an assault: They were
"be hanged by the deck, but not till you be
ere dead; for you must be cut down alive, then awed by the experienced courage, discipline,
usapine your bowels must be taken out, and burnt be.
your and steadiness of the king's troops; and by the fore vont
fore your face; then your head must be se superior genius and spirit of his majesty's com- . manders over those of the rebels, so that in
'vered from your body, and your body divided
1 into four quarters; and these must be at the truth they were never flattered with any other
er king's disposal.' And God Almighty be mer.
in terms, than to surrender as rebels and as
ful to your soul! traitors; their lives only to be spared till his majesty's pleasure should be known.
Serjeant at Arms. O Yes! Our sovereign It was indeed a debt due to those brave com- lord the king strictly charges and commands manders and soldiers (to whom their king and all manner of persons to keep silence, upon country owe more than can be well expressed), 1 pain of imprisonment. that their victory should be vindicated to the
Then the Lord High Steward stood up un. present and future ages from untrue detraction, and kept from being sullied by the tongues of
covered, and declaring there was nothing more to rebels and their accomplices, when their arins
be done by virtue of the present commission,
broke the staff, and pronounced it dissolved; And could no longer hinder it.
then leaving tbe chair, came down to the woolIt is hard to leave this subject without shortly observing, that this engine which sets the world
pack, and said, Is it your lordships' pleasure to on fire, a lying tongue, has been of prodigious
adjourn to the House of Lords ? use to the party of the rebels, not only since Lords. Ay, ay. and during the rebellion, but before, while it
And then the House adjourned to the chamber was forming, and the rebels preparing for it.
of parliament, and the Lords and others re. False facts, false bopes, and false characters, have been the greater half of the scheme they
: turned in the same order they came down. set out with, and yet seem to depepd upon, The earl of Wintoun was carried back to
It has been rightly observed, your lordship's the Tower, from whence he afterwards made his Answer does not so much as insist, with any escape. clearness, on that, which only could excuse your being taken in open rebellion ; that you was forced into it, remained so under a force, Soon after the termination of this trial, Caril and would have escaped from it, but could and others were attached in consequence of a not.
complaint wbich had been made (Ap. 13th, If you had so insisted, it has been clearly | 1710) to the House of Lords, of a printed proved, that had not been true; for your lord. paper intituled, • An Account of the Trial of the ship was active and forward in many instances, earl of Wintoun, which began on the 15th, and and so considerable in a military capacity ended the 19th of March, 1716, mentioned to among your fellow-soldiers, as to command a be printed for S. Popping, at the Black Raven, squadron.
in Paternoster-row, 1716, price two-pence.' These and other particulars have been ob. It appears that Curll suffered more than the served by the managers of the House of Com- | others. On the 17th of April the House was mons, and therefore I sball not pursue them informed that he was in custody. It was not
until May 8th, that he presented a petition 10 But conclude this introduction to the sen- the House, expressing his iguorance of their tence, by exhorting your lordship, with perfect standing order, and his hearty sorrow for his charity, and much earnestness, to consider, offence, and praying, “ in regard he bad a fathat now the time is come when the veil of par: mily, which must inevitably be ruined unless tiality should be taken from your eyes it must the House have compassion on bim, that be be so when you come to die), and that your may be discharged from his confinement." lordship should benceforward think with clear. On the 11th he was brought to the bar, where pess and indifference (if possible), which must having on bis knees received a reprimand from produce in you a hearty detestation of the high the Lord Chancellor for his offence, he was discrime you bave committed ; and being a Pro- | charged out of custody, paying his fees.. testant, be very likely to make you a sincere While Curll was in custody, the House penitent, for your having engaged in a design, caused to appear before them (Play 2nd), o
account of the publication in a newspaper of | yet he was out of town and never saw the same, “ Ao Abstract of the Protest against the Bill for till it was printed;" and withdrew: and thererepealing the Triennial Act,” the two printers upon he was discharged from any farther atand publishers of the newspaper, and the per- tendance. The other two persons pleaded ig. son who furnished the copy of the article in norance of the order of the House, begged question. The House did not treat them with forgiveness, and promised never to offend again. much severity. One of the publishers said, They on their knees were at the bar repri" that though his name was put to the said paper, manded by the Lord Chancellor,and discharged.
451. The Trial of Francis FRANCIA, a Jew, at the Old-Bailey, for
High-Treason : 3 GEORGE I.* A. D. 1717.
FRANCIS FRANCIA having been formerly l L. C. Baron. That which you assign is no arraigned upon the Indictment found against cause. him for bigh-treason, and having pleaded Not |
(Then sir Dennis was sworn upon a Voir Guilty, was on Tuesday the 22d of January | brought to the bar to receive bis trial.
Dire, with respect to his freehold; as all the Clerk of Arraignments. You the prisoner at
others were, before they were either challenged, the bar, these men that you shall hear called,
or sworn in chief.)t and personally appear, are to pass between Sir J. Jekyll. Sir, have you a freehold in our sovereiga lord the king and you, upon this city ?t-Sir D. Dutry. Yes, trial of your life and death. If therefore you ! Sir J. Jekyll. To wbat value ? will challenge tbem, or any of them, your Sir D. Dutry. About ten pounds a year. time is to challenge them as they come to the Prisoner. My lords, there has been a suit book to be sworn, and before they be sworn. depending between us. Cl. of Arr. Sir Dennis Dutry, bart.
Att. Gen. If they talk of a suit, they must Prisoner. Are you a freeholder in this city? prove it by record. Sir Dennis Dutry. Yes.
Prisoner. His name is Dennis ; and they Sir J. Jekyll. My lord, we that are coun-----sel for the king, desire, that those wbo are + « If the cause of challenge touch the discalled may be asked that question; whether honour or discredit of the juror be shall not they have freehold (or copyhold) of ten pounds be examined upon his oath,” [See Peter per ann. or not; before they are sworn in chief ? Cook's case, vol. 13, p. 334,] “ but in other
Att. Gen. (Sir Edward Northey.) We supcases be shall be examined upon bis oath to pose the prisoner will ask that question; and inform the triors.” Co. Lit. 158, b. Upon therefore we desire that it may be asked of which passage lord Coke's learned commenevery one as they come to the book.
tator Mr. Hargrave, observes, “ This is one Mr. Ward. It is a challenge on both sides. I instance of the examination called à voir dire ;
L. C. Baron. (Sir Thomas Bury.) They for as a witness is on a voir dire to try an obonght to be sworn whether they bave a free- jection to his competency to give evidence, so hold or not, if they would excuse themselves. a juror may be sworn in like manner to try
Mr. Hungerford. I bave nothing to offer the cause of challenge to him. It is thought against it. In case the king's counsel think fit to take notice of this ; because in some of fit to proceed in that method, we concur in it. our books, the voir dire is described, as if I should have moved it myself, if they had not. confined to the challenge of a witness, and
Att. Gen. It was in the trial of the rebels. only used to distinguish such a partial swear
Prisoner. He bas had a quarrel with me; ing of a witness from swearing of him in chief.” and there was a suit depending between us Mr. Hargrave also notices that in this case, about seven years ago : and I challenge him and that of Mr. Townley (in this Collection for cause.
20 Geo. 2,) the challenges not being to the Att. Gen. He may challenge him peremp- favour' were examined into by the court withtorily, if he will. But if he challenges bim out triors. As to more concerning the voir for cause he must prove it.
dire, see Peake's Law of Evidence as referred Prisoner. Sir Dennis will not deny it. to, vol. 13, p. 334, and lord Lovat's Case in
L. C. Baron. If you challenge him, you this Collection (A.D. 1747) as cited by Mr. must prove your challenge. Do you challenge Peake. As to the distinction between comhim for cause, or perero ptorily?
petent' and 'credible' as applied to witnesses, Prisoner. For cause.
see lord Mansfield's judgment in Windham
0. Chetwynd, 1 Burrow; also Abrahams 0. * See East's Pleas of the Crown, chap. 2, Bunn, Burrow 2251 ; Bent 0. Baker, 3 T. s. 66, and the MSS. there cited. Leach's Rep. 27. Hawk. Pl. Cr. book 2, chap. 25, s. 140. See Hawk, Pl. Cr. book 2, c. 43, ss. Foster 11, 241.
12, 24. VOL. XV.
have given me a pannel with barbarous Latin. / Prisoner. I must do what you order ; but I In my copy of the pannel, he is returned by the think it very hard. Then I challenge him, name Pionysius; that is not the same name. Cl. of Arr. Sir John Scott, kpt.
Mr. Ward. The prisoner observes, that in | Prisoner. I challenge bim. the pannel he is returned by the name of Dio. Cl. of Arr. Sir Daniel Wray, kpt. nysius, when his name is Dennis.
Prisoner. I do not except against him. (Then - Sir J. Jekyll. He is to have a copy of the he was sworn.) pannel; but it is not to be put into English Cl. of Arr. Sir W. Chapman, kut. for him.
Prisoner. I challenge him. -Mr. Ward: But we say; that is not Latin Cl. of Arr. Joseph Webb. for Deonis.
Prisoner. I challenge bim. - Sir J. Jekyll. Sure no one will argue, but. Cl. of Arr. Robert Adams. that Dionysius is the proper Latin name for Prisoner. Were you upon the grand jury, Dennis.
that found the Indictment against me? L.C. Baron. You offer no cause of chal Adams. No. lenge.
Prisoner. I challenge him. 'Prisoner. I hope I prove his name is re Cl. of Arr. Robert Ashurst. turned in the pannel Dionysius.
Prisoner. I cballenge him. . L. C. Baron. It is so; and that is Latin for Cl. of Arr. Joseph Bishop. Dennis.*
Prisoner. I challenge bim. Prisoner. No, it is not. Dennis is a saint Cl. of Arr. Thomas Boucher. 'in France, and Dionysius is a saint in Italy. Prisoner. I challenge himn.
They are two different names, and of different Cl. of Arr. Joseph Brooksbank.
Prisoner. I challenge bim.
Cl. of Arr. John Child. Prisoner. I allege that we fell out about Prisoner. I challenge him. seven years ago : and that his pame is not
Cl. of Arr. Joseph Chamberlain. (He was * Dionysius, as it is wrote in the pannel. And sworo.)
in my former pannel be was put down Knight, cl. of Arr. Jolin Casebert. *and in this Baronet.
Prisoner. He was upon the grand jury that L. C. Baron. These things are nothing, ex- found the Bill against me; and I challenge cept the suit; and that you must prove, I him for that cause.
Mr. Hungerford. As to the distinction of the Cl. of Arr. Robert Wood. 'two saints, I do not meddle in it. But I sup- Prisoner. I challenge him. pose sir Dennis can tell whether he is a knight Cl. of Arr. Isaac Cailovell. or a baronet. But as to the saints, whether the Prisoner. He don't write his name as it is nominal ones abroad, or the pretended ones at in the pannel. I could never find this gentle. home, 1 let them alone.
man out by all the enquiry I could make. Prisoner. You allowed this challenge the L. C. Baron. What is the mistake? last time.
* Prisoner. It is wrote in the pannel o con. Att. Gen. You challenged him peremp sonant, and he spells his name with a . And 'torily.
it is in the pannel a single l, and he writes it Mr. Ward. He was stiled knight in the last with a double u. pannel.
L. C. Baron. That does not appear to us! (Then Mr. Cailovell being asked, said he You must either challenge him peremptorily, wrote his name with a v consonant, as in the or be must be sworn.
pannel; but with a double ll.)
L. C. Baron. That does not alter the prodan. * To this Latinity perhaps is applicable anciation. It is the same name. observation which was made in the case of Prisoner. I challenge him. Layer, that it is more admissible in Westmin. Cl. of Arr. Thomas Daris. (He 93 * ster-ball than in Westminster school. The sworn.)
French, in their obstinate affectation of cor Cl. of Arr. John Dodson, esq. .rupting the orthography and pronunciation Prisoner. I challenge bim. of all foreign names, ancient and modern, I Cl. of Arr. William Dewick. believe always pervert Alonvoies and Dionysius Prisoner. I challenge him. ' into Denys; and thus an antagonist of Burnet, Cl. of Arr. William Dell. in an unlucky display of second hand learning, Prisoner. I challenge him. was misled into a reference to the authority Cl. of Arr. John Davis. (He was sworo.) of Denys of Halicarnasse, Query as to the Cl. of Arr. Joseph Emmes. (He was propriety upon any occasion of applying to sworo.) English names the properties of other lan. Cl. of Arr. John Farr. (Be was sworn.) guages from which they are supposed to be cl. of Arr. Thomas Gouge. derived, or into which they are supposed to be Prisoner. I challenge him. translated.
Cl. of Arr. Thomas Geering.
Prisoner. I challenge him.
ner in Newgate, may be sent for ; and may be Cl. of Arr. Joseph Goddard.
near me during my trial., Prisoner. I challenge bim.
· L. C. Baron. What is be in Newgate for? | Cl. of Arr. Robert Gill.
Prisoner. For a fiue. - Prisoner. I challenge him.
L. C. Baron. Then he may be sent for. Cl. of Art. Henry Greenway. ; Prisoner. I challenge him for cause. He
| Which was done accordiogly. is returned upon the pannel Greenway, and Cl. of Arr. Francis Francia, hold up your bis "name is Greenaway: that is a different hand. (Wbich he did.) name.
· Gentlemen, you that are sworn, look upon Sir J. Jekyll. How are you usually called; the prisoner, and hearken to his cause. Greenway, or Greenaway ?
"He stands indicted by the name of Francis m Greenaway. I am most commonly called | Francia, of London, merchant: for tbat he beGreenaway.
ing a subject of our most sereve lord George, (Then he was set aside.) .
king of Great Britain, France and Ireland, de
fender of the faith, &c. not having the fear of Cl. of Arr. John Glasbrook. (He was God in bis heart, nor weighing the duty of his sworn.)
allegiance ; but being moved and seduced by Cl. of Arr. John Goodlad.
the instigation of the devil, as a false traitor Prisoner. I challenge him.
against our said lord the king, bis supreme, Cl. of Arr. John Gore.
true, natural, lawful and undoubted lord ; withPrisoner. I challenge him,
drawing that cordial love, and true and due Cl. of Arr. Henry Ankey,
obedience, fidelity and allegiance, which every Prisoner. I challenge him.
subject of our said lord the king towards him Cl. of Arr. Lawrence Hatsell.
ought to bear; and designing, and traitorously Prisoner. I challenge him.
intending, the government of these kingdoms, El. of Arr. Robert Hackshaw.
under our said lord the king duly and happily Prisoner. I challenge him.
established, to change and subvert; and our Cl. of Arr. Benjamin Hooper.
said lord tbe king from the title, honour, royal Prisoner. I challenge him.
estate, empire and government of these kingCl. of Arr. Jonathan Hicks.
doms to depose; and our said lord the king to Prisoner. I challenge bim.
death and final destruction to bring ; and the Cl. of Arr. Jeremiah Jennings.
person in the life of king James the second, Prisoner. I challenge bim.
pretended to be prince of Wales, and after the Cl. of Arr. Thomas Jordan.
death of the said late king pretending to be, Prisoner. I challenge him.
and taking upon himself the stile and title of Cl. of Arr. William Kent. (He was sworn.) king of England, by the name of James the Cl. of Arr. Richard Levitt, esq.
third, to the crown, royal estate and dignity of Prisoner. I do not except to him.
king, and to the government of this kingdom Sir J. Jekyll. I challenge him for the king. to advance: the first day of September, in the Cl. of Arr. James Lamb.
second year of the reign of our said Jord the Prisoner. I challenge him.
king, and at several days and times as well beCl. of Arr. Thomas Lingard. (He was fore as after, falsely, maliciously, devilishly, Sworn.)
and traitorously did compass, imagine aod inCl. of Arr. Stephen Lee. (He was sworn.) tend our said lord the king, now and then bis Cl. of Arr. Jobn Lane, esq.
supreme, true, natural, lawful and undoubted Prisoner. I challenge bim.
lord, from the title, honour, royal estate, emCl. of Arr. John Lane.
pire and government of these kingdoms to dePrisoner. I challenge him.
pose, and to death and to final destruction to Cl. of Arr. Richard Lindsey.
put and bring; and the said person, in the life Prisoner. I do not except to him.
of the said king James the second, pretended Sir J. Jekyll. I challenge him for the king. to be prince of Wales, and since the death of Cl. of Art. John Mahew. (He was sworn.) | the said late king pretending to be, and taking Cl. of Arr. Henry Mallett. (He was sworn.) upon bimself the stile and title of king of EngThen they were counted ; and the twelve
land, by the pame of James the third, to the
crown, royal estate and dignity of king, and to sworn were:
the empire and government of this kingdom, to Sir Daniel Wray, kot. John Glasbrook, | exalt. And that he the said Francia, to acJoseph Chamberlain, William Kent,
complish and bring about the said treason, and Thomas Davis, Thomas Lingard, traitorous and devilisb intention, did trajtorousJohn Davis, Stephen Lee, .
ly meet, propose, consult, conspire and agree Joseph Emmes, John Mahew,
with divers other traitors, to ihe jurors une John Farr, Henry Mallett. known, to raise insurrection, rebellion and war
within this kingdom, against our said lord the Then proclamation was made, as is usual in
kiug, and in favour of the said person, in the those cases.
| life of the said king James the second, prePrisoner. I pray that George Flint, a priso- tepded to be prince of Wales, and since the
death of the said late king taking upon himself against bis majesty, and in favour of the Prethe stile and title of king of England, by the tender. And that he did solicit men, arms and name of James the third. And that he the ammunition, from certain foreigners and others said Francis Francia, for the more effectual in France, to assist bim in that rebellion. And completing and perfecting the said treason and that he did write, and cause to be written seve. traitorous intention, did propose, consult, con- ral letters, intimating this resolution, and respire and agree with divers other traitors, to the questiog the assistance of such foreigners and jurors unknown, to require, solicit and procure, others. from divers foreigners and others, in the king. The Indictment charges further, that be dom of France, arms, ammunition and money, wrote and composed such letters, and caused to assist and help in the said war. And that be them to be wrote and composed; and procured the said Francis Francia did traitorously com- them to be sent and delivered for that purpose. pose and write, and caused to be composed and And this, gentlemen, is laid to have been by written, several traitorous letters, notifying the him done, contrary to the duty of his allegiintentions and resolutions of him the said Fran- ance, against the peace of our sovereign lord cis Francia, and the said other traitors, to move the king, his crown and dignity, and against and levy the said war ; and requiring aid in the forın of the statute in that case provided. the said war of the said foreigners, and other Gentlemen, to this Indictment the defendant persons then in France. And the said letters bas pleaded that he is Not Guilty. If upon so composed and written, and caused to be calling our evidence for the king, we shall composed and written, did traitorously send, prove this case upon him ; it will become your and caused to be sent to parts beyond the seas, duty to find bim Guilty of the Charge. to be delivered to the said foreigners, and other persons in France, and caused and procured Sir J. Jekyll. May it please your lordship, them to be delivered accordingly, against the and you gentlemen of the jury, I am of coundaty of his allegiance, against the peace of our sel with his majesty : and, gentlemen, it is my said lord the king, his crowu and dignity, and part to open to you the substance of the Charge against the form of the statute in that case against the prisoner at the bar; and the nature made and provided.”
of the evidence we shall offer to prove that Upon this Indictment he hath been arraiga- Charge... ed, and bath thereunto pleaded Not Guilty: The prisoner stands indicted of the first speand for his trial bath put himself upon God and cies of bigh treason, mentioned in that ancient his country ; which country you are. Your statute 25 Edw. 3, that is, compassing and imacharge is to enquire, wherber he be guilty of gining the death of the king. this bigh treason whereof he stands indicted, or The overt acts alleged in the indictment, to not guilty ? If you find that he is guilty, you manifest that traitorous design of the prisoner, are to enquire what goods or cbattels, lands or are three: tenements, he had at the time of the high trea. He is cbarged with consulting and conspirson committed, or at any time since. If you ing, with other traitors, to levy war against the find him not guilty, you are to enquire whether king, in favour of the Pretender to his majesty's he fled for it. If you find that he fled for it, | crown : you are to enquire of his goods and chattels, as! With conspiring and agreeing to solicit and if you had found him guilty : if you find bim procure assistance, from foreigoers, and others not guilty, nor that be did fly for it, you are 10 in France, to carry on that war: say so, and no more; and hear your evidence. And further with writing traitorous letters,
nutifying his and his accomplices resolution Mr. Cowper, jun. May it please your lord. I to levy that war; and requiring the beforeship, and you gentlemen ihat are sworn : the mentioned assistance; and sending those letprisoner at the bar, Francis Francia, stands in ters into foreign parts for that purpose. dicted of high treason; in intending to alter | These are undoubted overt-acts of the bighand subvert the government of these realms, treason charged apon bim. happily established under his majesty king! To make good this Charge, we shall sbew, George; to depose his majesty, to bring him that about three or four years since, there was to death, and to place the Pretender upon his a correspondence begun between the prisoner throne.
and abbot Builer, an ecclesiastic of CamThe Indictment sets forth, that for this pur- bray. That correspondence began on the pose the prisoner, the first of September, in the occasion of a law suit in England; wherein second year of the reign of his present ma- | one Mrs. Butler a relation of that abbot was jesty, and at several other days and times, at concerned ; which was recommended to the London in your county, traitorously com prisoner's care. But some time after (a gentlepassed and imagined to depose and kill his must man, whose name it will be necessary to mebsacred majesty, and to place the Pretender on tion in the pr«seciition of this cause) Mr. Klarvey his throne.
of Coinbe, took upon bim to make use of that And that for the more effectual performing correspondence, in order to transmit and resuch his intentions, he did meet, propose, con ceive letters to and from that abbot: and also sult and agree with several other traitors, to to the duke D'Aumont, by the means of the raise rebellion and war within this kingdom, prisoner.