17] for High Treason. it may be, his answering the question may sub- | ject him to several penalties; at least he is liable to prosecution upon several acts of parliament that are very penal; and therefore it is by no means to be asked. Freind. My lord, I pray only that he may answer the question. L. C. J. No man is bound to answer any question that tends to make him accuse himself, or subject him to any penalties. Freind. My lord, I do with submission desire it, and it is no great matter for him to say whether he be a Papist or Protestant. L. C. J. If it be no great matter, then why do you insist upon it? But perhaps it may be a great matter in the consequence of it to him; a man, therefore, is not obliged to answer any such questions. Freind. I beseech your lordship, let him answer the question. L. C. J. You have my opinion; if you will, you shall have the opinions of the rest of the judges: my opinion is, That the question ought not to be answered. L. C. J. Treby. Since your lordship's pleasure is, that we should deliver our opinions upon this point, I must declare, I am of the same opinion, that no man is bound to answer any questions that will subject him to a penalty, or to infamy. If you should ask him, whether he were a deer-stealer, or whether be were a vagabond, or any other thing that will subject him to punishment, either by statute or by common-law, whether he be guilty of a petty larceny, or the like, the law does not oblige him to answer any such questions.* Freind. Well, I hope the jury will consider it, that he will not answer the question; and therefore they are to take it for granted that he is so. L. C. J. Treby. And now to this present purpose, to ask a man whether he be a Popish Recusant, is to subject him to danger: for when you ask him that question, if he were not bred up in that religion, then for him to own himself of that religion now, is to own as great a crime as that you are charged with. If it were not so, but he was always bred in that religion, yet there are very great penaltics that he is subject to, as, the confiscation of two third parts of his estate, and several other things that he may be liable to, if he should disclose that upon his answer to the question, which without this discovery could not be proved, perhaps. We must keep the law steady and even between the prisoner and the witness. Just. Nevil. I am of the same opinion, it does subject him to a penalty; and unless he will voluntarily answer it of himself, I think it cannot be demanded of bim: for he may subject himself to a prosecution by it. Just. Rokeby. I think, it is not a question * See much matter concerning this in | obligation to answer it, because it may tend to (Then Captain Porter was sworn.) Sol. Gen. Mr. Porter, do you know sir John Capt. Porter. Yes, Sir. Sol. Gen. Pray then will you give my lords Porter. My lord, about the latter end of Att. Gen. When was the second meeting? Porter. That was at Mrs. Mountjoy's. Alt. Gen. But I ask you when it was? How Forter. I believe it was about a fortnight long after the first? after, or so. Att. Gen. What was that meeting for? Porter. The second meeting was to confirm the first. Captain Charnock informed me, that he was to go within three or four days, and therefore desired to have a meeting before he went. Att. Gen. What discourse was there at that second meeting? What occasion was there for it? Porter. Capt. Charnock desired the meeting once more before he went, to see whether we all kept our resolution. Sol. Gen. Pray, what do you know of sir John Freind's agreeing to raise a regiment of horse? Porter. I know nothing of that matter, but what I have heard several people 'alk; but I have heard him say, he would be as ready as any man, whenever the king came; and I have heard from capt. Charnock, and from sir Wil liam Perkyns, that he had a commission to be a colonel of horse. Att. Gen. Pray, Sir, upon that second meeting, who were present? Porter. I told you, Sir, the prisoner at the bar was present at both meetings. Sol. Gen. Who else were there? Porter. My lord of Ailesbury, sir William Perkyns, capt. Charnock, and I cannot tell whether my lord Montgomery and Mr. Goodman were there; Mr. Cook and myself were there; but the prisoner at the bar I am sure was there. Sol. Gen. Pray, capt. Porter, will you remember and recollect yourself, who were at the first meeting? Porter. I have named them already, Sir. Porter. My lord of Ailesbury, my lord Montgomery, sir John Freind, sir William Perkyns, sir John Fenwick, capt. Charnock, Mr. Cook, and myself; we dined there, and after dinner Mr. Goodman came in. Att. Gen. Pray, Sir, when did you see Mr. Charnock after this, and what discourse had you with him about his journey, and the success of it? Porter. I never saw him till 3 or 4 days after our riot business in Drury-lane, upon the account of which I had been a prisoner in Newgate. Alt. Gen. Well, and what did he say to you? Porter. He told me that he had been in France, but that king James told him, the French king could not spare so many men that year; and withal, that he had been with sir John Freind, and the several other persons, with messages from the king; but I do not know whether he had been there or no, only as he told me, that he had been, and brought that answer. Att. Gen. Pray now tell us, what other meetings you have had about this matter this winter? Porter. I was once with sir George Barcley and sir John Freind, at the Nag's-head in St. James's-street; I cannot tell what discourse they had; they whispered among themselves. Att. Gen. Who else was there? Porter. There was sir George Barcley, sir William Perkyns, myself, Mr. Ferguson, and one Humes. L. C. J. Where was that, do you say? street. Att. Gen. Was there any body else there that you can remember? Porter. Capt. Charnock came in after dinner, but I cannot say he dined there. Att. Gen. And who else do you remember? Porter. There came in one Harrison after dinner; he is a reputed Romish priest, and goes by the name of Johnson. Mr. Mountague. Pray, capt. Porter, what was that meeting for? Porter. They had several whisperings | among themselves, but what they discoursed of I cannot tell. Mr. Mountague. Pray, did sir John Freind say any thing that you heard at that meeting? Porter. Sir George Barcley did say, that some people that were not so violent had written over into France to stop this business; upon which, said I, I hope you will have no letter to-night. Upon which sir John Freind said, is there any thing that is hid behind the curtain? If there be, I am not fairly dealt withal; I will proceed no further. Att. Gen. If sir John Freind has a mind to ask him any questions, he may. L. C. J. Pray, capt. Porter, let me ask you this question, Did all that were present at the first meeting, at the King's-head in Leadenhall-street, agree to send Mr. Charnock into France to the late king? Porter. Yes, my lord. L. C. J. All of them? Porter. Yes; we desired captain Charnock to answer to the king for us that we would meet him at the head of 2,000 horse. L. C. J. Did sir John Freind agree to it? Porter. Yes, I do positively affirm he did. L. C. J. Then the second meeting, which, you say, was at Mrs. Mountjoy's, what was said then? Porter. We did agree all, That capt. Charnock should go on with the message that was resolved upon at the first meeting,, and we would go on with the business; and he said he would go away in two or three days. Att. Gen. Will sir John Freind ask him any questions? Freind. I will only ask him, if they have done, whether he has any thing more to say? Porter. No, Sir. L. C. J. The king's counsel have done with him. | Freind. Then, my lord, I will hear all they can say, and when I have heard the whole evidence, I shall know how to answer to it. L. C. J. Before you go, captain Porter, I would ask you, what answer Mr. Charnock brought back from France? Porter. I say, I did not meet with captain Charnock, until after I came out of Newgate for the riot business; and then he told me, he had been there, and he had acquainted the several gentlemen with the messages he had brought from king James, who thanked them for their kindnesses; but the French king could not spare so many men that year. Sol. Gen. Then the next that we call is Brice Blair (Who was sworn.) Pray, Sir, do you know the prisoner at the bar, sir John Freind ? Capt. Blair. Yes, my lord; and I am very sorry to come on such an account as I do now against him. I am sorry for it with all my heart Att. Gen. Well, Sir, pray will you give an account what you know of sir John Freind's having a commission from the late king to be a colonel of horse, and when it was, and how? Pray tell my lord and the jury the whole matter. Blair. All that I can say to this business is written in my paper, and I refer to my paper. Att. Gen. You must not refer to your paper, Sir, you must tell all what you know. L. C. J. He may look upon any paper to refresh his memory. Blair. I did see the commission, Sir, and I did read it. Att. Gen. What commission was it, Sir? Blair. It was a commission from king James to sir John Freind. Att. Gen. Where did you see it, Sir? Blair. I saw it in his lodgings at the Strand, when he lived near the Strand, in Surrey street. Att. Gen. Who shewed it you? Blair. It was for raising a regiment of borse. Att. Gen. When was it that you did see it? How along ago was it? Blair. It is well near two years ago, or thereabouts, as I remember. Alt. Gen. Who was to have been colonel of that regiment? Blair. He was nominated to be colonel of it himself in the commission. you? Did you engage any to serve under you? Blair. What? I myself, Sir, do you mean? Att. Gen. Yes, I do. Blair. Yes, Sir, I did. Att. Gen. Can you name any of them? Blair. Yes, Sir, if I make use of my paper. Sol. Gen. You may make use of your paper to refresh your memory. Blair. There is a paper of names that I gave in before the council. L. C. J. Mr. Baker, have you his paper there? Let him see it to refresh his memory. Mr. Baker. I have none of the papers, my lord; they are all sent before the council. Att. Gen. Pray, Sir, can you tell who was to have been your lieutenant in your troop? Blair. One Mr. Bertham. Mr. Mountague. You say, Sir, you were constituted lieutenant-colonel; pray, who constituted you, and made you so? Blair. I had only a promise of it from sir John Freind. Att. Gen. Pray, did you lay out any monies for sir John Freind? or did he ever pay you any money afterwards? Blair. Yes, I have had several small sums of money from sir John Freind. Att. Gen. Pray, what was it for? Blair. It was to drink with the men that L. C. J. Who was the commission di- belonged to the regiment, and encourage rected to ? Blair. It was directed to him, to sir John Freind. L. C. J. Well, and what was done upon it? Who were to be the officers? Blair. He promised me to be his lieutenantcolonel; and I had the same from Mr. Harrison, and there were several letters that I saw, that came from my lord Melford and secretary Caroll, who were with king James. Att. Gen. What other officers were there appointed? them. Att. Gen. Pray, did Mr. Piggott pay you any sums of money? and by whose order? Blair. Yes, he paid me first 201. and afterwards he paid me another 201. Att. Gen. By whose order was that, Sir? Blair. It was by the order of sir John Freind. Att. Gen. Pray, Sir, How do you know that sir John Freind ordered him to pay it you? Blair. Because it was the money that Piggott had received to repay sir John Fremd what he had advanced for the furthering of Parker's escape out of the Tower. Blair. There was one Richardson was to be one of his captains, and there was one Mr. Fisher was to be another, and one Hall ano- Att. Gen. How do you know that he adther; Fisher was to be his eldest captain, andvanced any money for procuring Parker's one capt. Evans was to be his captain-lieutenant, and one captain Vernatti was to be another. Att. Gen. Do you remember who was to be his major? Blair. No, Sir, I think I cannot be positive as to that. I spoke to capt. Barnesley, that had been a lieutenant in king James's service, to be a lieutenant, and sometimes he accepted, and sometimes he refused it. Att. Gen. Pray, what did you do as lieutenant-colonel upon this matter? Blair. I endeavoured all I could to get officers for them, and to raise troops. I endeavoured to get what men I could myself. Sol. Gen. Pray what did you do? What officers did you procure for him? Blair. I told you Vernatti and Fisher, and one Mr. Hall that lives at Deal. Att. Gen. What troops did you get under 2 escape? Blair. He told me so himself. Att. Gen. How much did sir John Freind say he advanced for that purpose? Blair. He told me 100%. Att. Gen. How did he tell you he was to be paid it again? Blair. He told me that king James ordered. the payment of it at France, when Piggott went over, which was immediately afterwards; and I had of that, first 207. and afterwards 201. by the order of sir John Freind. Sol. Gen. Pray, Sir, did sir John Freind tell you what Piggott had received in France? Blair. Yes, he said Piggott had received 100%. in France; and he did not pay it him, but if I could get 201. of him, he would allow it. Att. Gen. Pray about what time was it that the first 20%. was received? Blair. I have set it down in my paper; Att. Gen. But cannot yon tell about what Blair. It was about last May or June, the Att. Gen. When was the last 207. paid? Mr. Cowper. Pray, Sir, Who was by when Blair. Mr. Piggott paid me the last 57. of it, Sol. Gen. Pray, do you know any thing of Blair. Yes; he told me he had a letter from Sol. Gen. How long ago was that? Sot. Gen. I don't ask you the precise day, Blair. Yes, I believe it might be there- Freind. My lord, I desire he may speak L. C. J. Repeat it to him again. Friend. My lord, I shall answer to all this Sol. Gen. Pray, had you at any time any Sol. Gen. Pray tell what that was. Blair. He told me he was to bring him in Sol. Gen. You say that Slater was to com- Blair. Yes, and it was to be an independent Att. Gen. I think you say, that he and you Blair. Yes, we did so. Att. Gen. Pray what discourse had you Blair. I called him aside, and desired to affairs. Att. Gen. What was it that you told him Blair. This last horrid thing, the conspiracy Mr. Cowper. Was it before it broke out that Blair. Yes, it was shortly before it broke out.、 Att. Gen. What discourse had you then, Blair. He took me in his coach to St. Mar- Blair. We were to sculk up and down; and Att. Gen. Is that sir John Freind's own Att. Gen. Then put it in. Give it hither. Sol. Gen. Pray, what have you heard sir Blair. I heard him say, that he believed Sol. Gen. For what purpose? Blair. To be in readiness upon the descent. Att. Gen. Pray, Sir, look upon that letter; Blair. It means Harrison alias Johnson, Att. Gen. Pray, what was that letter written Blair. It was about the last 20l. that I was Att. Gen. Is that sir John Freind's hand? Alt. Gen. Have you seen sir John Freind Blair. Yes, I have seen him write, and I Att. Gen. Then we desire it may be read. Whether he saw sir John Freind write that letter? L. C. J. What say you, did you see him Blair. No, my lord; it came to my lodging. n Cl. of Ar. reads: For Captain Blair, These. "Sir; Tuesday Morning. "You may much wonder you have not received an answer of yours before now: I have been afflicted with the gout in my hand and foot, that I have not been able to put pen to paper; (I thank God) I am somewhat better, and do hope to be in London a Thursday next, about the hour of twelve, at Jonathan's coffeehouse, if the weather do not prevent me; if it do, I shall not come before Monday following: I do desire you for to meet me about that hour; for it is not convenient for to write a note to Mr. H. for some reasons I shall give you when I see you. I wish you good health. I am, Sir, your affectionate friend and servant, "JOHN FREIND." Juryman. Pray, Sir, what date is it of? Cl. of Ar. It has no date but Tuesday morning. Att. Gen. Did sir John Freind meet you on the Thursday, according to this letter? Juryman. My lord, I desire he may be asked, How this letter came to him, whether by the penny post, or how? Blair. I don't know, I believe it was by a porter: it came first to me when I was in bed, and my wife brought it up to me. Att. Gen. Pray, Sir, answer my question. Did sir John Freind afterwards meet you at Jonathan's coffee-house, according to this letter?-Blair. Yes, Sir, he did. Att. Gen. And did you there speak about the business that's contained in that letter? Blair. Yes, Sir; and accordingly I had the order. Att. Gen. What order? Blair. Au order for the 201. Sol. Gen. Captain Blair, do you remember that you dined with sir John Freind near the Exchange, in January last? Blair. Yes, I think I did, Sir. Sol. Gen. What discourse was there between Sol. Gen. Do you know one capt. Ridley? Sol. Gen. Was he at any time present when you and the prisoner at the bar were together? Freind. My lord, I cannot hear a word he says. L. C. J. Here is a great noise indeed, and he, it seems, is not well, and speaks but low; pray, order silence in the court. [Which was done by Proclamation.] L. C. J. Look ye, sir John Freind, he speaks of a letter that you sent to him that bears date some Tuesday morning, that you would be in town, and meet him at Jonathan's coffee-house upon Thursday following, at twelve o'clock; and that letter was read, and he says he met Blair. Yes, my lord. L. C. J. What was done there, when you L. C. J. But you say he gave the order to Att. Gen. Was the 201. paid you afterwards?-Blair. Yes, Sir. Att. Gen. Who paid it? Blair. Mr. Piggott; he paid me the last 5/. of it before sir John Freind's face. L. C. J. Was this the first 201. or the last, do you say?--Blair. It was the last. L. C. J. What was this money paid for? Blair. I believe it was to support me to go about the business of the regiment. L. C. J. You believe; that's not enough: but are you sure it was so? Blair. Yes, I am sure it was for that. L. C. J. Had you ever demanded money of him before?-Blair. Yes, I had. L. C. J. For what was that money that you demanded? Blair. It was to drink with the men that were brought in; to cherish, and keep them together. L. C. J. To what purpose were those men kept together? Blair. They were for his regiment. Sul. Gen. Pray, had sir John Freind any occasion to pay you any money upon any other account? Blair. No, Sir, not out of that 1007. Mr. Cowper. You do not understand the question. Had you any dealings with sir John Freind, but about this matter concerning the regiment?-Blair. No, never in all my life. Att. Gen. Well, Sir, do you remember your meeting with sir John Freind when one Ridley was there? "Blair. Yes, it was at the chop-house. Att. Gen. Give an account what passed there. Blair. Mr. Ridley said, a gentleman was lately gone over to France, about ten days before; and Mr. Ridley said, he was a very sensible gentleman, a Roman Catholic, an ancient man, about threescore years of age, what he was, I can't tell he said, he believed he should bring the last orders. Att, Gen. What did sir John Freind say? |