your prince, to your country, and to your selves, as to find him guilty accordingly. Mr. Couper. If your lordship pleases, spare me a word on the same side. My lord, I do not trouble your lordship out of an apprehension that there is any thing necessary to be said to the court in this matter, or for the satisfaction of the jury, but, if possible, that we might convince the prisoner at the bar, that he has had no hard measure, in this prosecution, meted to him, but that he is proved guilty of the crime of which he stands accused, and that really there is no weight at all in the defence which he has made. i

The first part of it goes to discredit one of our evidences, captain Blair, from some discourse that he would object to have passed between him and the person here produced, in the prison of the Gate-bouse. And the first part of that discourse was, upon Blair's first coming into the prison; and as to that time, the objection amounts to no more than this; that captain Blair would not confess, when he was pomped by a fellow-prisoner, that he was engaged in so horrid a design. What weight there is in such an objection, truly I cannot see, but will leave it to any man's judgment to consider, that a man, when he is freshly taken up on such an occasion, does not immediately confess his guilt to every body that meets him, may, to persons that would not have liked him for making such a confession, but perhaps would have destroyed him in prison for so doing.

The other discourse was upon Friday, the next day, I think, before captain Blair went to Hicks's-ball, to his examination; and then he intrudes himself into Blair's chamber, when he lay very ill upon the bed, accosts him with a cup of brandy in his hand, and with good adVice at the same time, that he should take great care in what he should say at Hicks's ball, and the like: and then captain Blair, it seems, did express some reluctancy in the thing he was going about, as if it were against his mind and inclination. If that were true, (though captain Blair denies it positively upon his oath) yet it was no more than, I am willing to observe for the prisoner, captain Blair did express here, when he first came into conrt; and it is no more than what is natural, since the prisoner had been his friend and intimate, and be was going to depose that against him,

which was

likely to prove fatal to him. My lord, as to another part of his defence, it cousists chiefly in this: the evidence brought to prove, that the king's witnesses are reputed Roman Catholics, and that the prisoner is a reputed Protestant of the church of England. If that be true too, all that can be rationally and fairly collected from theuce is this, that they (the witnesses I mean) when they engaged in such a black and execrable design, might be very good Papists; but I am sure it will be agreed, that the prisoner in so doing Was a very bad Protestant.

My lord, he objects to their evidence this

likewise, that, if they be papists, they may be absolved by the pope, or their priests, though they should swear falsely. Possibly that may be so, for aught I know; I confess, I am not very well acquainted with the principles of that religion but this 1 dare say, that every one, who has heard what has been sworn by them, will think it so great a disservice to the popish cause and interest, that it will be one of the last things their priests will ever absolve them of.

My lord, there is another matter the prisoner has thought fit to insist upon; he has brought two or three clergymen to depose, that whenever he discoursed with them (it seems at all times) he was talking about being in a plot, and very readily told his resolution not to be in any. It seems it still swain uppermost; his professions were made very causelessly for they all say nothing introduced them; but of his own mere motion he was always declaring he was not then in a plot, nor ever would be. I have heard, that one way, weak men and children often discover their knowledge of a secret intrusted to them, is, by a repeated and unnecessary declaring, that they know nothing of the matter.

:

My lord, in the next place for his defence, he just offered a point of law; but the court so well satisfied him in that, that I think he waved it. He alledged, that a bare conspiracy to levy war is not treason; and the court did him right in declaring (as God forbid but they should) that it is not treason: but I desire the gentlemen of the jury would consider that the prisoner at the bar is not accused barely of a conspiracy to levy war, but you are told to what end that war was to be levied, to join the late king upon his descent into this kingdom with a French power, in order to drive his majesty out of the kingdom, and to depose him from the crown; which is a killing him in the eye of the law: and that is high-treason, by whatever means they intended to effect it; whether by war, or a stab, or any other manner, it is indifferent.

In the next place, my lord, I would not take notice of another part of his defence, which had been better let alone, wherein he admits that he was present at the two meetings he is accused to have been at by Porter; but he only differs in one point, that there was nothing talked then but general and indifferent

discourse. The witnesses have sworn what

the discourse was, and you will weigh the one against the other; his affirmation of a thing unlikely in defence of himself, and what is deposed upon oath by the king's witnesses to the contrary.

My lord, there is one thing more I would take notice of, and that is the evidence of Mr. Bertham, which we do not produce as a direct evidence against the prisoner at the bar, but as a confirmation of what was sworn by Blair. And it does shew that the matter sworn by Blair, was not of late devised out of ma

lice, or otherwise, to destroy the prisoner ;

for that Blair acquainted Bertham with, and discoursed him about the principal matters of fact, that are now sworn, at least two years ago; and besides his evidence and the evi- | dence of Blair concur in this particular, that he was to be lieutenant in Blair's troop.

My lord, such a concurrence of evidence and other circumstances in this matter, greatly increase the weight of the proof against the prisoner, especially when there is nothing material alledged by him in his defence, and therefore I shall trouble your lordship no further.

L. C. J. Holt. Look ye, gentlemen of the jury, sir John Freind, the prisoner at the bar, is indicted for high treason. The treason that is mentioned in the indictment is conspiring, compassing and imagining the death and destruction of the king. To prove the conspiracy and design of the king's death, there are two principal overt-acts that are mainly insisted upon. The one is the consulting and agreeing with divers others to send Mr. Charnock into France to king James, to desire him to persuade the French king to send over forces here to assist them; who were to furnish other forces for the raising of a war within this kingdom, in order to depose the king: and accordingly Mr. Charnock was sent upon that design. The other overt-act is the prisoner's having a commission from the late king, and preparing and directing men to be levied, and to be ready to be in a regiment, of which sir John Freind was by that commission to be colonel; and this was always to assist in the restitution of king James, and in order thereunto in the deposing and expulsion of king William.

These, gentlemen, I tell you, are the two overt-acts that are principally insisted upon : and to prove sir John Freind guilty of these there are two witnesses that have been produced; the one is captain Porter, who speaks to the first, the other is captain Blair, who speaks to the second.

Captain Porter tells you, That, the latter end of May, or the beginning of June last, he and sir John Freind, and others that he men. tioned, were at the King's-Head tavern in Leadenhall-street, and there they entered into a discourse about the returning of the late king James; and they did consider among themselves which was the most effectual way, and what were the most probable means to have him restored: and thereupon it was agreed among them, that they would send a messenger into France to him, to desire him that he would solicit the French king to furnish him with 10,000 men, to be sent into England, 8,000 foot, 1,000 horse, and 1,000 dragoons; and they did agree, that when these forces were sent, consisting of this number of men, then they would be ready to meet and join them with 2,000 horse: every one of them was to furnish his quota: to which sir John Freind did expressly agree. The messenger that they agreed to send was with them in company, and heard the consult, which was Mr.

Charnock, who was lately tried and since exe cuted.

This being at that time determined, Mr Charnock intended to go upon the execution of that design, and made ready for his journey but before he went, he had a desire to mee with the company again, and have a further discourse upon this matter, to see whether they did persevere in the resolution they had s taken. There was another meeting about a week or a fortnight after, which was at Mr Mountjoy's, a tavern in St. James's street where met sir John Freind, captain Porter and divers others of the company that were before at the King's-head. And there they entered into a debate of the matter again; the question there was, Whether Mr. Charnock should be sent into France, as it was formeri agreed? And there it was again determined he should go; to which be agreed; and captain Porter says, that he did go about two of three days after.

Mr. Porter tells you farther, That about the time that Mr. Charnock came back, Mr. Porter was in prison, and he did not see him upon his first return, but afterwards he wet and spoke with him, and asked him what was the effect of his negotiation? And Mr. Charnock told him, that he had done as he was directed; that he had been with king James, and he had spoke to the French king; but the answer returned was this, That the French king-bad occasion for his forces that year to be otherways employed, and therefore he could not afford such a number of men that year; and Mr. Porter asked him whether he had been with the rest of the gentlemen, and acquainted them therewith? And he said he had. This is the substance of Mr. Porter's evidence; whereby you may perceive what the meetings were for, what resolutions were there taking, and what wasthe issue and effect of them.

The next witness is captain Blair; and his evidence goes to the other part, that is, to sir John Freind's having a commission from the late king James, and engaging him and others to be in his regiment, whereof sir John was to de colonel, and the providing of officers. And for that the evidence stands us :

Captain Blair tells ye, that about two or three years ago, he was with sir John Freind at his lodgings in Surrey-street, and there he did produce a commission that he had from king James to be colonel of a regiment of horse; he was to raise it himself, and was to appoint and provide what officers he thought fit. He says, he read the commission, and it was signed at the top James Rex, and countersigned at the bottom Melfort; this he is positive in; and farther, that sir John Freind did promise that he should be lieutenant colonel of this regiment, and also that captain Blair would get as many men as he could; and that there were other officers that were appointed in that regiment, and particularly one Fisher was brought to sir John Freind by captain Blair, to be his first captain, and one colonel Slater, who was

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 parsoas, 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 fornish him with some money; says sir John, There is 1007. due to me, because I laid don 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 1007. if you can get it. Well, but how is that 201. to be bad? 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 204. was actually paid the latter end of June or the beginning of July last. This 201. he 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 hoor of twelve. And accordingly captain Blair came to Jonathan's coffee-bouse, 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-honse to St. Martin's-legrand, there was a discourse between them: and sir John Freind said, For his part he 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 himself told him he would do, but yet he should get what men he could. Aud 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 bis 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 he makes against him. First, that he did deny that he knew any thing of the plot. For Blair being upon this occasion brought prisoner 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 deuy any concern in, or know. ledge 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 his conscience: He says, that Courtney got in to him on purpose to surprize him, and he was aware of it, and his desiga 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 be 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 cre dibility of that evidence which is given agains him.

Then sir John Freind insists upon anothe matter: Says he, I am a Protestant, and it i not likely that I that am a Protestant should conspire with Papists against Protestants; and for that he has called eight witnesses, who tel you they have known him, some twenty years some more, others ten, and that they have frequently conversed with him, and neve knew that he was ever popishly affected, and they have been frequently in his company since the Revolution, and they never knew tha 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 be 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, he has been in sir John Freind's company divers times, whom he believes to be a Protestant of the church of England, and bath 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 government, 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 he 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