much in favour with sir John Freind, was, to have been another lieutenant-colonel; for, said sir John Freind, I have a mind to him to be my lieutenant-colonel, and though you are so too, yet it is no matter if we have two in this regiment; at which Blair took very great offence, and expressed as much to sir John Freind; whereupon sir John Freind told him, it should not be so, but said he would make another provision for Mr. Slater; that he should be a captain of an independent troop, that should be composed of non-swearing parsons, and that shall satisfy him. And sir John Freind did intrust captain Blair with the providing of men, and managing of them. And captain Blair tells you, he was at a great deal of charge, and laid out diverse sums to caress them, and keep them together; and wanting money to proceed in that affair, he came to sir John Freind, and made great complaints, that he wanted money to carry on the design, by obliging the men to keep together, and therefore pressed sir John Freind to furnish him with some money; says sir John, There is 100/. due to me, because I laid down 100l. to further the escape of colonel Parker, and Piggott has received it, and had directions to pay it me, but I cannot yet get it. You shall have 201. out of that 100%. if you can get it. Well, but how is that 20l. to be had? It seems there was one Harrison or Johnson a priest, who had some interest in this Piggott, and he was to help him to it; and thereupon the 207. was actually paid the latter end of June or the beginning of July last. This 201. be swears he did receive upon that account, by the direction of sir John Freind, to be so employed as you have been told. Then captain Blair had occasion for more money, which was some time after Michaelmas last, which was to be employed as the former was: and he was very importunate to obtain it of sir John Freind: at length he did obtain it, as he tells you, and the manner how. He produces a letter under sir John Freind's own hand, which seems to be an answer to a letter that captain Blair had sent to him before, he thinks it to be his own hand, for he is acquainted with his hand-writing. But that is not all to prove it his hand, for the contents of the letter are remarkable, which are about the payment of money to Blair: The letter bears date on a Tuesday morning, and is directed to captain Blair; and a porter brought it, as he thinks, to his house; and thereby it was appointed that they should meet on Thursday next at Jonathan's coffee-house about the hour of twelve. And accordingly captain Blair came to Jonathau's coffee-house, where he accordingly met with sir John Freind, aad there was Harrison the priest, and Piggott, and there he does receive a sum of money upon the same account: So that now the proof of this letter does not depend barely upon the knowledge of the hand, but the contents of it; and the subsequent meeting at the time and place mentioned in the letter, is a great evidence that it was sir John Freind's hand writing, and more money is proved to be actually paid in the presence of sir John Freind, which is the most material part of the evidence. And you are told further, that as sir John Freind and captain Blair were going together in a coach, from Jonathan's coffee-house to St. Martin's-legrand, there was a discourse between them: and sir John Freind said, For his part be would not stir till such time as the Toulon fleet was come about, and joined with the Brest fleet. That he did think he was in danger of being apprehended when it came about, and therefore captain Blair was to sculk till then, as he bimself told him he would do, but yet he should get what men he could. And this is a great argument of his being concerned in the intended invasion, and that his making preparation for his regiment had relation to the French invasion which was expected. It seems, two years ago, there being a great intimacy between Blair and sir John Freind as appears by all the evidence, Blair was acquainted with this design. For you are told of the letter that was writ by him to king James, which he shewed to captain Blair, and it was concerning his regiment; he says, that sir John Freind owned he writ that letter himself, that Blair did read the letter, and finding it so well penned, he said that he thought Ferguson had a hand in it, at which sir John Freind was angry; but Blair says, the letter was concerning the regiment of which sir John Freind was colonel. Then, gentlemen, you have Bertham called to prove, that Blair did tell him, that he was to be his lieutenant colonel, which was long before there were any thoughts of any discovery of this intended invasion, and before the discovery of the plot of assassination, which sir John Freind did own he had some knowledge of, but he disliked it, and said it would ruin king James's affairs. So that, gentlemen, I think this is the sum and substance of the evidence that has been given upon this occasion against sir John Freind, to induce you to believe him to be guilty of this crime with which he now stands charged. But now you are to consider what sir John Friend says on behalf of himself. In the first place, he makes an objection against the credit of all these witnesses, that they are not to be believed, because, says he, they are known or reputed to be Roman Catholics and Papists, and their consciences and their oaths are large, especially when they think they can do an injury to any Protestant; and therefore they are not to be allowed as witnesses, at least their credit is not sufficient to induce a jury to believe them. At first indeed, he urged there was a statute and a law that did disable them from being witnesses; but I must tell you there is no such statute, nor indeed is their being Papists any diminution at all to the credit of their testimony: ¡For Papists are legal witnesses, and though there are severe laws to, punish them for their non-conformity to the church of England, and for other their Popish practices; yet I know of no law that renders them infamous, or incapable of being witnesses. For you are to consider Papists are Christians, and swear by the same evangelists that Protestants do; and as for that supposition, that they look upon Protestants as Heretics, and can have a dispensation for any oaths that they take against them; you are to consider, as it has been very well observed by the king's counsel, that they are never like to obtain any dispensation or pardon, if they should forswear themselves to defeat the designs of the Popish party; and therefore it is a very inconsiderable objection, and in this case hath no weight. But then he does insist upon it, that captain Blair is not to be believed; and there are two objections be makes against him. First, that he did deny that he knew any thing of the plot. For Blair being upon this occasion brought prisener to the Gate-house, and afterwards, upon a discourse of some news in the Flyingpost, wherein it was mentioned that captain Blair had confessed all, and made a full discovery, and thereupon he should say, he was innocent of the plot, and knew nothing of it. You, gentlemen, are to consider the weight of this objection. First, suppose he had said so, it might be, he was not willing (as he was not obliged) to own it, and would not confess it at that time, and to those persons. It was not his interest and prudence to be too open; and therefore it does not follow, but because a man would not trust others with his confession, but denied his knowledge of a plot when there was no occasion for him to own it, that now he swears it positively, therefore he should swear falsely. But secondly, captain Blair, who was called for the vindication of himself, and his testimony, has upon his oath declared to you, that he did not say he knew not any thing of the plot, but did deny any concern in, or knowledge of the assassination. Now this business for which sir John Freind is tried, is not for being a party in the designed assassination, but of a design with force to depose the king, and restore king James. Then as to the other matter that was upon Friday night last; Courtney the witness says, that he came to captain Blair's chamber, and took notice of his being to be a witness at Hicks's-hall the next day, and said, I pray God direct you; and he says his wife, then present, said it was against his conscience, and he seemed to be in very great trouble about it, and owned as much. But now captain Blair himself, being examined upon his oath, does deny positively, that either he or she said any such thing as that it was against bis conscience: He says, that Courtney got in to bim on purpose to surprize him, and he was aware of it, and his design being to keep himself free from all company, he gave directions to the keeper (as the keeper himself swears) to let no body come to him but his wife; and Mr. Courtney intruded himself upon him. Besides, gentlemen, you are to consider the probability of that which Mr. Courtney saith: When a man is to be a witness the next day upon a bill of indictment before a grand jury, that he should be so indiscreet, as to tell any body he was going to swear against his conscience, is strange and very unaccountable. You are therefore to consider of this whole matter, what evidence captain Blair has given, and the import of it, and the weight and credibility of that evidence which is given against him. Then sir John Freind insists upon another matter: Says he, I am a Protestant, and it is not likely that I that am a Protestant should conspire with Papists against Protestants; and for that he has called eight witnesses, who tell you they have known him, some twenty years, some more, others ten, and that they have frequently conversed with him, and never knew that he was ever popishly affected, and they have been frequently in his company since the Revolution, and they never knew that at any time he reflected upon the government; nay, I think one said, that once he did reprove a man for talking undecently of the govern ment; that he used constantly to go to church four or five years ago (though there is no account of that since.) And particularly there is one Mr. Lupton that was his chaplain, and he tells you he was in his house; and there he read the common-prayer in the family since the Revolution, and prayed for the king, and the late queen, and sir John Freind was often present at the prayers, and particularly when he prayed for the present king, and the late queen; but he says he himself has been gone thence five years, and has been little conversant with him since. There is another witness tells you, be has been in sir John Freind's company divers times, whom he believes to be a Protestant of the church of England, and hath had a discourse concerning the present government; and that sir John Freind said, that though he could not take the oaths, and thereby conform to the go. vernment, yet he was resolved to live quietly under it; and would not engage in any manner of plot, for he that catched him in the corn should put him in the pound. This is the sum and substance of the evidence on both sides; and you, gentlemen, are to consider the weight of this part of his defence too, whether it be a sufficient answer to the evidence given against him, and has weight enough to out-balance what the witnesses for the king have sworn? For although he was a Protestant, yet it is plain he had no great liking to the government; and therefore would not take the oaths; and though he was present at the common prayer, when the king and queen were prayed for, yet whether be joined in those prayers is very uncertain. There are a great many, who are not very well affected to the present government, that come to church, and are present at the public prayers; but it may be a very great doubt, whether they join in their prayers for the present government or no; his conscience that scruples the taking the oaths, might scruple that too; but whether sir John Freind's being a Protestant, and his declaring he would never be in a plot, be a sufficient proof, that therefore he never was in one; and that his former discourse of that kind should discredit these witnesses, that have sworn he has been so much concerned in a Plot, you are to consider; and comparing the weight and nature of the evidence on the one side, and the other, it must be left to your determination. | numbers with force to make some reformation of their own beads, without pursuing the methods of the law, that is a levying of war, and treason, but the purposing and designing it is not so. But if there be, as I told you, a purpose and design to destroy the king, and to depose him from his throne, or to restrain him, or have any power over him, which is proposed or designed to be effected by war that is to be levied, such a conspiracy and consultation to levy war, for the bringing this to pass, is an overtact of high-treason. So that, Gentlemen, as to that objection, that he makes in point of Then there is another thing that he did in-law, it is of no force, if there be evidence sufsist upon, and that is matter of law. The ficient to convince you, that he did conspire to statute of the 25th Ed. 3, was read, which is levy war for such an end.* the great statute about treasons; and that does Gentlemen, the evidence you have heard contain divers species of treason, and declares what it is, you may consider the weight of it, what shall be treason. One treason is the and the circumstances that do attend it; and compassing and imagining the death of the likewise the answers that have been given by king; another is the levying of war: Now, the prisoner to invalidate that evidence, and to says he, here is no war actually levied; and a prove the improbability of what they have tesbare conspiracy or design to levy war does not tified against him. You have heard, I say, come within this law against treason. Now the evidence on the one side, and on the other: for that, I must tell you, if there be only a If you are not satisfied, that what the witnesses conspiracy to levy war, it is not treason: but have sworn is true, that sir John Freind did if the design and conspiracy be either to kill the engage in such a design for such a purpose, king, or to depose him, or imprison him, or put then you are to acquit him; but on the other any force or restraint upon him, and the way side, if you believe that sir John Freind is and method of effecting of these, is by levy-guilty of what the witnesses have deposed ing a war, there the consultation, and the conspiracy to levy a war for that purpose, is high-treason, though no war be levied : For such consultation and conspiracy is an overtact proving the compassing the death of the king, which is the first treason mentioned in the statute of the 25th of Ed. 3. For the words of that statute are; That if any man shall compass or imagine the death of the king. Now because a man designs the death, deposition or destruction of the king, and to that design, agrees and consults to levy war, that this should not be high-treason, if a war be not actually levied, is a very strange doctrine, and the contrary has always been held to be law. There may be a war levied without any design upon the king's person, or endangering of it; which, if actually levied is high-trea son; but a bare designing to levy war, without more, will not be treason. As for example; if persons do assemble themselves, and act with force in opposition to some law, which they think inconvenient, and hope thereby to get it repealed; this is levying a war and treason, though purposing and designing it is not so: So when they endeavour in great 6 "Rising with force to pull down all inclosures, to expel strangers, to pull down bawdy-houses, is levying of war, and treason: but a bare purposing and designing to raise such a force, for such a purpose, is not treason." Note to former Edition. As to this, see the case of Peter Messenger and others in this Collection, vol. 6, p. 879, and the cases there referred to, together with Mr. Luders's observations thereon. against him, then you are to find him Guilty. Juryman. My lord, we desire we may have that letter with us that was produced here. L. C. J. No, no, you cannot have it by law. Juryman. May it not be left with the foreman, my lord? L. C. J. No; but you may look upon it in court before you go away, if you will. and one of them handed it to the prisoner. Then the Letter was handed to the Jury, L. C. J. Why do you do so? You should not give the prisoner the letter. Juryman. It was done to see whether it was his hand; and we desire, if there be any body here that knows his hand writing, or that saw him write it, may be produced. L. C. J. Why? Did not he own the letter to the witness afterwards? It was sworn to you he did; and that he met according to the appointment in the letter, and that money was paid. Then the Jury withdrew to consider of their * As to this matter, see East's Pleas of the Crown, chap. 2, sect. 9, and the Stat. 36 G. 3, c. 7, s. 36. The doctrine of constructive Treason is much agitated in numerous cases in this Work. See, in particular, the Case of lord Russell, vol. 9, p. 577, and the discussions to which it gave rise, vol. 9, p. 695, et seq.; the Case of lord George Gordon, A. D. 1780, and those of Hardy and Horne Tooke, a. D. 1794. See, also, Mr. Luders's Considerations on the Law of High Treason in the article of Levying War. verdict, and an officer was sworn to keep them | John Freind is guilty of the high-treason according to law, till agreed; and about a whereof he stands indicted, but that he had no quarter of an hour afterwards they returned goods, nor chattels, lands nor teneinents, at into court, and the prisoner was brought to the time of the high-treason committed, or at any time since, to your knowledge. the bar. Clerk of Arr. Gentlemen, answer to your names. Thomas Clark Mr. Clark. Here. (And so did all the rest of the twelve.) Cl. of Arr. Gentlemen, are you agreed of your verdict?-Jury. Yes. Cl. of Arr. Who shall say for you? Cl. of Arr. Sir John Freind, hold up thy hand, (which he did). Look upon the prisoner: how say ye, is he Guilty of the hightreason whereof he stands indicted, or Not Guilty?-Foreman. Guilty, my lord. Cl. of Arr. What goods or chattels, lands or tenements had he at the time of the hightreason committed, or at any time since ? Foreman. None, to our knowledge. L. C. J. Jailor, look to him, he is found L. C. J. Discharge the jury. Cl. of Arr. Gentlemen, the court discharges you, and thanks you for your service. L. C. J. Then we had best to adjourn the court till to-morrow morning. Cl. of Arr. Cryer, make proclamation. Cryer. Oyez, oyez, oyez! All manner of persons that have any thing more to do, at this general Sessions of the Peace, Sessions of Oyer and Terminer, holden for the city of London; and Gaol-delivery of Newgate, holden for the city of London and county of Middlesex, may depart hence for this time, and give their attendance here again to-morrow morning at seven o'clock; and God save the King. Then the prisoner was carried back to Newgate, and was brought the next day to the bar to offer what he had to say for stay of judg Cl. of Arr. Then hearken to your verdictment; and afterwards received sentence of as the court has recorded it. You say that sir death as a traitor. guilty of high-treason. 385. The Trial of Sir WILLIAM PARKYNS, knt. at the Old-Bailey, for High Treason: 8 WILLIAM III. A.D. 1696.* Tuesday, March 24, 1696. Then the Jury that were returned in the pannel were all called over, and the appearances THIS day the Trial of Sir William Parkyns, of those who answered to the call were reknt. came on at the Sessions-House, Old-corded. Bailey, for High-Treason. Cl. of the Ar. Cryer, make Proclamation. Cryer. O yes, O yes, O yes. All manner of persons that have any thing more to do at this general sessions of the peace, sessions of Oyer and Terminer, holden for the City of London; and Gaol-delivery of Newgate holden for the City of London and county of Middlesex, and were adjourned over to this day, draw near, and give your attendance, for now they will proceed to the Pleas of the Crown for the same city and county and God save the King. Ci. of Ar. Middlesex. Cryer, make proclamation. Cryer. O yes, You good men of the county of Middlesex, summoned to appear here this day, to try between our sovereign Lord the king, and the prisoner that shall be at the bar, answer to your names as you shall be called, every man at the first call, upon pain and peril shall fall thereupon. * See East's Pleas of the Crown, chap. 2, sect. 8, 9, and the authorities there cited. See too, in this Collection, the cases of sir Henry Vane, vol. 6, p. 119, of Messenger and others, vol.6, p. 879; of Whitebread and others, vol. 7, p. 311; of Dammaree and others, A. D. 1710, and of Deacon, A. D. 1746. About ten of the clock the Judges, (to wit,) the Lord Chief Justice Holt, the Lord Chief Justice Treby, and Mr. Justice Rokeby, came into the court. Cl. of Ar. Set sir William Parkyns to the bar. (Which was done.) Sir William Parkyns, hold up thy hand. Parkyns. My lord, if you please, I humbly beg the favour of one word before I am arraigned. My wife coming to see me in my distress, sent up a trunk of linen for our use, and the sheriffs of London have seized it, and do detain it. It has linen in it, and all her necessary things, and all things have been torn from me, since I was apprehended, but what is there; I have nothing to subsist upon but what is there; for no money can I get from any body, nobody will pay us a farthing. Mr. Sheriff Buckingham. My lord, we were sent for to Mr. Secretary Trumball's office, and when we came there, there was a trunk that had been seized, as belonging to sir William Parkyns; and when we came thither it was opened, and there was in it some houshold linen, and some plate, and Mr. Secretary Trumball was pleased, after having searched the trunk, to seal it up, and deliver it to my brother and me, to be kept; and this is all we know of it. ཆ L. C. J. Holt. seized? Where was this trunk | pies sent me by sir John Freind's friends, to the Horn tavern about three or four o'clock, and delivered one of them to sir John Freind; but he had one before I delivered mine. Sh. Buckingham. We found it in the secretary's office, and it was delivered to us there, and we gave a receipt for it to bring it down again when called for; we did not seize it. L. C. J. Look ye, sir William Parkyns, your trunk was seized, I suppose, in order to search for papers. Parkyns. Yes, I believe it was; but I hope it shall be delivered back now they have found nothing in it, and I have nothing else to subsist upon but what is there. L. C. J. Is there any plate there? What is there in the trunk? Sh. Buckingham. There is some diaper and damask linen, a carpet and some pieces of plate, two or three hundred ounces of plate, for ought I know. We had it from the Secretary's office; we did not seize it. [Then the Judges consulted among themselves.] L. C. J. He ought to have his plate to sell, to support him that he may have bread. Purkyns. Will your lordship please to direct the sheriff to deliver it baek? L. C. J. Well, some care or other shall be taken in it. Purkyns. My lord, I have nothing to subsist upon, unless I can make something of what is there: I have a wife and four children, and nothing to subsist upon. L. C. J. Let your wife make application for it at the Secretary's, it cannot now be done here. Why did you not make complaint of it before? If you had, care had been taken in it. Purkyns. I was told there was a petition; for, my lord, I was a close prisoner, and they told me there was a petition; but my wife never mentioned any thing of it to me till afterwards; and they talked of an order of council that they had for the sheriff's seizing it; but when I came to enquire into it, there was no order about it, but only to search and exa mine it. L. C. J. Well, some order shall be taken about it. Sh. Buckingham. My lord, we have given a receipt to the Secretary for it. L. C. J. But he must have wherewithal to subsist and buy him-bread while he is in prison. Sh. Buckingham. My lord, I see Mr. Burleigh there, who was sir John Freind's solicitor; I would humbly move your lordship that it may be inquired into, how he came by the pannel of the jury yesterday? For it seems to reflect upon us, as if we had given the prisoner a wrong pannel. Just. Rokeby. No, I think there can be no reflection upon you; but I think it would be very proper to have the matter examined. L.C. J. Ay, let Burleigh come in. [Which he did.] Pray, how came you by the pannel which you gave to sir John Freind? Burleigh. My lord, I had three several co VOL. XIII. L. C. J. Who sent them to you, or brought them to you? Burleigh. I had them brought to me by a porter. Mr. Baker. You know you might have had it from the proper officer, for asking. Burl. I had them brought me from Sir John Freind's friends. L. C. J. Can you tell who had it from the sheriff? Burl. My lord, I know not: I had three copies sent me in a quarter of an hour's time; whence they came, I know not; the sheriff knows me, and every body else. Sh. Buck. 1 do know you, and would have you be fair in your practice. false copy is put upon him; you might have Baker. The inquiry is made, because a had a true copy if you had applied yourself right. Burl. I sent to Mr. Farringdon for it. L. C. J. The sheriff delivered it the secondary, who is the proper officer. Just. Rokeby. Sir John Freind said he had it from him yesterday. Burl. But he had one before; how he came by it, I can't tell; nor whence those came that were brought me in. Just. Rokeby. If you will not take care to go to the right place, it is nobody's fault but your own, if you suffer by it. a Burl. I was with my lady, and delivered petition for this trunk. L. C. J. But it seems it was under the conuzance of the secretary, and direction was given to go thither: some care or other must be taken in it, and shall; but go on now to arraign the prisoner. Cl. of Arr. Hold up thy hand. (Which he did.) Thou standest indicted in Middlesex by the name of sir William Parkyns, late of the parish of St. Paul Covent Garden, in the county of Middlesex, kt. For that, Whereas an open, and notoriously public and most sharp and cruel war, for a long time hath been, and yet is, by sea and by land, had, carried on, and prosecuted by Lewis the French king, against the most serene, most illustrious, and most excellent prince, our sovereign lord William the 3d, by the grace of God, of England, Scotland, France, and Ireland, king, defender of the faith, &c. During all which time, the said Lewis the French king and his subjects were, and yet are enemies of our said lord the king that now is, and his subjects, You the said sir Wiliam Parkyns, a subject of our said sovereign lord the king that now is of this kingdom of England, weil knowing the premises, not having the fear of God in your heart, nor weighing the duty of your allegiance, but being moved and seduced by the instigation of the devil, as a false traitor against the said F |