Smith. I made a remark of this writing, as he sat dressing himself.

*

Prisoner. Who was it that carried the book
and papers to the office, you or Wilcox?
Smith. I myself.

How

Prisoner. I know that to be false.
soon did you go out of town after you had
lodged me ?-Smith. In a day or two.
Prisoner. Did
you not
Smith, No; not that day.
that moment?
go
Prisoner. To whom did you deliver them?
Smith. To Mr. Horatio Walpole.

Prisoner. Did you take no more books?
Smith. There were several books in your
house, but I do not remember that I carried
any of them away but this.

Mr. Hungerford. Did the prisoner own to you, that the letters wrote in that book were wrote by him?

Smith. Hesaid, That is the copy-book of my letters to my correspondents abroad.

Then Mr. Horatio Walpole was sworn.

Sir J. Jekyll. Pray, Sir, will you give the Court and the Jury an account of this book and those letters; and how, and when they were brought to you?

Walpole. I remember the warrant for seizing the prisoner was dated the 19th of September, and that the day after Mr. Smith and Mr. Wil cox came into my room, and delivered to me a copy-book and a parcel of letters, which they said they took at Francia's house. them and kept them by themselves, to be proI took duced when my lord Townshend should call for them. I remember that night Mr. Buckley came into my room, and I desired him to sit down and look them over with me; and accordingly he and I looked into them. next day my lord Townshend sent for the priThe soner, and I carried in the same book and letters, and laid them upon the table, and particularly the letters, they were laid open, and my lord examined the prisoner about them. They were wrote in French, and directed to the prisoner. My lord asked him, whether he knew the hand of those letters, and turned them all over, and shewed him the directions, saying, are these directed to you? He owned it. He owned that he received them. My lord asked him again, is this your book? He answered, it is; some of the letters are entered by me, and some by my son.

Trial of Francis Francia,

[916 Walpole. I remember all these letters to be the same that I received from Smith. Att. Gen. After the prisoner had been examined, what became of the letters?

Walpole. I took them back again. 1 kept hend had occasion to use them, which was the them under lock and key, till my lord Towns same night that my lord examined the priso ner; then I took them back, and I constantly kept them till I went to Holland for the Dutch troops, and then I delivered them to Mr. Buckley.

Prisoner. And you can swear these are the same letters that were delivered to you. By what mark? You swear very home. What mark did you put upon those letters, that you can swear to them?

Mr. Ward. Pray, Sir, when they were in your
vered out?-Walpole. I am sure.
custody, are you sure they were never deli-

Mr. Ward. Do you remember one Jones, the gun-maker, on the other side the water, when he was under examination? Are you sure they were not delivered out by mistake to him?

Walpole. I do not know that they were. Mr. Hungerford. Did you put any mark on those letters?

Walpole. No, I put no mark on them. them to be the same? Mr. Hungerford. Then bow can you know

remember the hand, and dates, and directions. Walpole. I perused them several times. I Mr. Hungerford. Then probably you remember the number too?

Walpole. No, I do not remember the num ber.

Mr. Ward. Are you sure these are all the letters that were brought to you?

Walpole. No; there are not all the letters.
Att. Gen. We shall now call Mr. Buckley.

Then Mr. Buckley was sworn.

book and these letters, and acquaint the Court
what you know of them.
Att. Gen. Pray, Mr. Buckley, look upon this

seized, 1 came into Mr. Walpole's room. He Buckley. My lord, the day the prisoner was told me he had received that book and those letters that were seized at the prisoner's house, him. I did so. and desired me to sit down and read them with pole went to fetch the Dutch troops, he deliAfterwards, when Mr. Walvered this book and these letters into my hand. Afterwards, my lord Townshend directed me to look into them, and see which contained passages, which I did accordingly out of several sages most criminal, and to extract such pasthen I can tell you whether they are the same. of them. I will look over them again, and Prisoner. By what mark? Then several letters were shewn to Mr.Wal- of several of them. Buckley. I can tell you by that which is stronger than pole. any mark, I copied passages out

Sir J. Jekyll. Were they all the same letters that were brought to you by Mr. Smith? Walpole. The same.

Sir J. Jekyll. Pray look upon this book; is

this the same book?

Walpole. I am sure this is the book: this is the same book that Smith delivered to me, and said he took it at Francia's house.

George Francia's name in large church text, at the end of the book.-Former Edition.

(Then he looked over the letters one by one.)

Walpole, and I know it certainly; for that
I had every one of these letters from Mr.

and was the channel in which the correspondence was conveyed; and that the pretence of it was a law-suit, but that the design of it was in favour of the Pretender; and that when they talked of the party, the Pretender was meant; and that they expected him to be soon here. Having reason to rely on this information, I drew a warrant to seize the prisoner and his papers. I had indeed before sent an order to stop all letters that came from France directed to Francia, by which I received a confirmation of the intelligence which had been before given me. Upon the issuing out the warrant, the prisoner was seized, and his letters were brought to Mr. Walpole.

appear

The next day I sent for the prisoner to be examined, and ordered Mr. Walpole to bring me the papers, and sent for the prisoner in. The letters that Mr. Walpole brought in, were láid open upon the table, and the book lay by them. I asked him whether he knew the hand, and whether those letters were not for him? He owned the letters, but said he could not help what was in those letters, and that what others wrote to him could not make him guilty. As for what I have wrote (said he) I appeal to my book. That is my book, I appeal to that for my innocency. He did not obstinate, and I remanded him; and at night I sent for him again, and Mr. Secretary Stanhope was with me; 1 had in that time looked into more of the letters, I saw several initial letters of people's names, I asked him the meaning of them; and he gave me the account contained in this examination.* sition to tell me all he knew; he gave me an He seemed in a dispoaccount how this correspondence began, and was carried on; and then he came to explain the initial letters that were in those letters that were taken upon him, and in several other letters that I had intercepted. I remanded him again that night, having taken his examination in my hand.

Trial of Francis Francia,

[920

brought me were laid there, and I saw him take them back again.

whether you heard that declaration read over to Mr. Ward. I desire to ask your lordship, him?

Lord Townshend. I dare say I did.

himself from signing it, till he had read it Mr. Ward. Did he not endeavour to excuse himself?

Lord Townshend. I do not remember that, I siguing it; but I am sure it could not be be do not know that he made any difficulty of cause he was refused to read it.

Prisoner. Was not there any reluctancy in me to sign it?

Have not I answered that already.
Lord Townshend. What do you mean?
Prisoner. Did not you offer me some money
to sign it?

thing of so much infamy. After he had been Lord Townshend. I hope you cannot say a examined, he complained to me of the misery he was reduced to, that his wife and family must starve, and represented himself as if he nothing to hope for, or any room to expect any were at a loss for a supper: I told him he had favour, but by making a clear confession. He starving; I do not certainly know whether it went on begging, and said that his wife was was the very night that he signed his confession in pure alms, and because he begged so hard, or not; but I am sure it was not for that, but

I

three, four, or five guineas, I know not which, put my hand in my pocket, and gave him in charity; and it was what I never could reand begged so hard. He said his brother fuse any man that applied to me in that manner, would not look upon him, because he was taken up for high-treason, and he desired me to give him something in charity, which I did.

Prisoner. I desire to ask you, whether you ever bestowed on any body else the like charity? mination you ever gave five guineas to before? Pray my lord, name the man under your exa[At which there being a laugh round the

A second examination was taken upon Mr. Harvey's letter; (which examination and the letter thereto annexed was shewn to his lord-Court.] ship.)

This is the very letter on which I examined him; he owned to me how he came to stop the letter, and not to forward it, and explained all those figures to me very distinctly. He protested that he knew no more, and made solemn protestations that he had said all he knew, and I was almost convinced he had; but in the consequence, I had reason to think he had not. But these two examinations were taken before me, one I signed alone, and the other Mr. Secretary Stanhope signed with me. As to the first, I believe Mr. Secretary Stanhope was gone out of the room before it was signed.

Sir J. Jekyll. I desire to ask your lordship, whether all the letters that were brought by Mr. Walpole were laid upon the table at the time of the prisoner's examination?

Lord Townshend. All that Mr. Walpole

Referring to the Original Examination.

life; you did not answer me.
Prisoner. I must not be laughed out of my

Court?
L. C. Baron. Propose your question to the

five guineas to besides me?
Prisoner. I desire to know who he ever gave

L.C. Buron. My lord says it was out of

charity.

body under his examination the sum of five Prisoner. And that he never refused any guineas?

L. C. Baron. He does not say so; he says, be never could refuse his charity to people that begged as you did.

Prisoner. I had less need to beg than some others.

Mr. Ward. I have but one question more to trouble your lordship with, which my instructions lead me to; and that is, whether at the time when this examination was signed by the prisoner, he was not told of its being for some

1

for High Treason.

921]
particular purpose, but that it should not be
binding to him?

Lord Townshend. He did desire that it might
not be made use of against him; I told him that
depended on his behaviour, if he was ingenuous,
if he dealt frankly and fairly, and declared all
the truth, I would do all in my power that he
should have mercy; I do not know whether it
is proper to give my reasons why I am con-
vinced he did not deal candidly; but on the
perusal of the letters, I found he was not a
bare conveyer of them, or came by chance to
the knowledge of what he explained in them,
but that he was wrote to, as one of the ma-
nagers: On that I sent to him again, and told
him plainly, he must know more of it. He
stood it out that he did not, and then I sent
him to Newgate: Soon after he was committed,
his wife came, as Mr. Buckley informed me,
and acquainted him that she was persuaded, if
she could see her husband, that she could pre-
vail with him to discover the whole: On that
I gave directions to put him into the mes-
senger's hands again, which was done; about
a morning or two after, one Curtis, who was in
the same messenger's house, brought a letter to
the office, which he had found dropped by this
man's bed-side. It was directed to his wife,
and the subject was to bid her not afflict herself,
for he found better company in Newgate than
be expected, that the better half of them were
in upon the government account; that he had
said nothing of Mr. Harvey that could hurt
him, nor could he; that the government had
nothing against Mr. Harvey, but a general sus-
picion that he was against the government,
which three parts in four of the nation were;
and that he himself laughed at any thing the
government could do against him the prisoner :
When I found a man write in his stile, I could
not but think he had not dealt ingenuously.

Mr. Hungerford. I would propose to the judgment of the Court, whether it is proper to give evidence of the substance of a letter without offering the letter itself.

Just. Pratt. This comes in answer to Mr. Ward's question. He asked my lord Townshend, whether there was not some promise that this confession should not be made use of against the prisoner? His lordship gives this account, and justifies himself, how he came to make use of it, and gives this as the reason.

Mr. Hungerford. But to give an account of the substance of a letter without producing it, I apprehend, is not according to the rules of evidence.

Sir J. Jekyll. If the counsel for the prisoner desire the letter to be read, it shall be read.

Att. Gen. Do you insist upon the reading of it?

Mr. Ward. If you will read it in the proper time, you may.

Mr. Hungerford. If in the course of the evidence the letter is not read, I do not press it.

Then Mr. Horatio Walpole was called again, and the Letter was shewed to him.

Att. Gen. Pray, Sir, will you give an account what you know of this letter, and how it came to your hands?

Walpole. This letter Curtis brought to me, and I made this mark* on it: He told me it was found in Francia's chamber near his bed. side, and this is the letter.

Mr. Ward. There is nothing proved yet of
its being the prisoner's hand, its being found by
his bed-side will not affect him.

Then Mr. Buckley was called again, and the
Letter was shewed to him.

Sol. Gen. Pray, look upon this paper, and
tell us whose hand-writing you take it to be?
Buckley. I never did see the prisoner write
but once, and that was upon my being sent to
him to take a confession he seemed unwilling
to make; and then I sat by him while he was
writing.

Sol. Gen. How long did he write then? Buckley. About an hour, and I read it over. Sol. Gen. Do you believe this to be his hand-writing?

Buckley. I not only saw him write then, but I have read a great deal in this book, which Mr. Walpole told me was taken at the pri soner's house, therefore being used to the writing in this book, and to what I saw him write, for those reasons, and no other, I believe this paper to be his writing.

Mr. Denton. Are not the letters of your name on this letter?

Buckley. Yes: when Mr. Walpole put into my hands all the letters, my lord bid me single out those that were fit to be extracted, and I did mark them that were extracted, and always kept them in my hands till Mr. Walpole returned, and then I delivered them to him: Those letters that I extracted, I marked; some other letters that were intercepted by my lord Townshend I did not mark, because they came to me at other times.

Mr. Denton. Did you mark that letter?
Buckley. Yes.

Mr. Ward. Can you be positive that it is the prisoner's hand?-Buckley. No.

Mr. Ward. Do you rely on the writing in the book?

Buckley. By that, and by what I did see him write, from thence it is that I conclude this to be his hand.

Mr. Hungerford, He attempts to prove his hand by two inducements, one that he saw him write, and the other is the book; therefore let him fix on those parts of the book, that he takes to be the prisoner's hand, and to be like this

letter.

L. C. Baron. The book is not material; it is enough for a man to say, that he saw another write for an hour together, and then that he believes this to be his hand.

Mr. Hungerford. If that was the single foundation it was something; but he makes another foundation also.

* Shewing a mark upon the Letter.

Trial of Francis Franeia,

[924 Says Mr. Hungerford then that letter ought a letter which was found by his bed-side. to be produced.

Just. Pratt. We are going out of the way, the question is, whether this shall be read? In order to that, the method is to prove, that the witness is acquainted with the prisoner's handwriting, and believes this to be his writing. He than that my lord observed so upon that letter, Mr. Hungerford. If the account is no more tells you he saw him write for an hour. He there is no great harm in reading it: But I am gives you a further reason, that it is like some Tetters in the book. If that were laid out of contents of a letter is insisted upon, and restill in your judgment, whether, when the the case, the other would be sufficient without it.peated, that upon memory only, the letter itMr. Hungerford. A man makes two things self ought not to be produced? the foundation of his judgment, his seeing him write, and the similitude of hands in the book, the most conclusive evidence would be, the similitude of the hand in the book, which others may judge of as well as himself.

L. C. Baron. That is no evidence at all; similitude of hands is no evidence.*

Mr. Hungerford. I am far from thinking it is, or that there is yet any evidence at all. Do you believe this to be his hand, only from your having seen him write, or from what you have

observed in the book also?

Buckley. I say that from my having seen him write, and my having seen the entries in the book, I believe this to be his hand.

Just. Pratt. If you had never seen the book, but had seen him write for an hour; could you collect from thence that this was his haud?+

Buckley. No, I would not affirm it.

Mr. Hungerford. Then it is with us, and makes it necessary to look into the book.

Att. Gen. How came you to apprehend any one part of the book to be Francia's writing more than the other?

Buckley. By my eye-sight, and comparing it with this letter.

Att. Gen. Is it from your knowledge of seeing him write?

Buckley. Yes; and this writing being like this book.

Sir J. Jekyll. I desire this matter may be considered how it stands; my lord Townshend is examined touching the confession of the prisoner, and was asked, whether there was not hopes of mercy given him? My lord said there were, upon his making a frank discovery; but he tells you the prisoner was not entitled to mercy, because he had not made such a discovery, and then gives an account of this letter: I thought the counsel for the prisoner appealed to that letter, and would have had it produced to check the evidence given by my lord.

Just. Pratt. Since it is gone thus far, I think it would be proper to clear this matter.

Prisoner. I desire to know where Mr. Buckley saw me write for an hour together? Buckley. It was in the messenger's house. Just. Tracy. My lord Townshend was giving an account in answer to a question proposed by the prisoner's counsel, and gave his reason why he did not think the prisoner was frank. I did not think so (says he) because of

*As to this, see Sidney's Case, vol. 9, p. 817. + See the Seven Bishops' case, vol. 12, p. 305. Hawk. Pl. Cr. book 2, c. 46, s. 52.

Then

Curtis was sworn.

Sol. Gen. Look upon that letter; whose hand-writing is it?

Curtis. I believe it is Mr. Francia's.
Sol. Gen. Have you seen him write?
Curtis. Yes.

writing ?-Curtis. Yes.
Sol. Gen. And do you believe it to be his

quainted with the prisoner?

Mr. Ward. How long have you been ac

Curtis. While he was in the messenger's hands.

Mr. Ward. How often did you see him write?-Curtis. Several times.

Mr. Ward. Was you in custody at the same time when he was?-Curtis. Yes.

Sol. Gen. Where did you find this letter?
Curtis. In his chamber, by his bed-side.

Mr. Hungerford. I do not hear that he gives with his writing, that he can distinguish it an account, whether he is so well acquainted any others?

from

Curtis. He told me it was a letter that he had wrote to his wife.

Att. Gen. The letter is in French: we have

a translation of it; we must desire that the interpreters who translated it may be sworn.

Then Mr. Bowyer and Mr. Ozell were both

sworn.

Mr. Cowper. Did you translate the letter? Bowyer. I did, and afterwards I compared it with Mr. Ozell.

Mr. Cowper. Is that a true translation of the

original letter?

tion of it, allowing for the difference of lanBowyer. I did make a true, genuine trauslaguage and stile.

Mr. Cowper. Was it the best and most ex-
act translation yon was able to make?
Bowyer. Yes.

this translation with the original ?
Mr. Cowper. Mr. Ozell, have you compared

Ozell. Yes, and I believe it to be a true

translation.

[Note. That the original letter was deliverthat the translation was reading; and Mr. ed into the prisoner's hand during the time Flint, who was permitted to stand in the bar near the prisoner, assisted him in comparing method was observed, when the translations of the original with the translation. The like and when the letters wrote by him were read the letters received by the prisoner were read; out of the copy-book, the copy-book was shewn to him.]