412. Proceedings against KENNETH Earl of SEAFORTH, for High Treason, A. D. 1697. [Now first printed from the Records of Justiciary at Edinburgh.] [N.]..................................... 413. Proceedings against Mr. ALEXANDER PITCAIRNE, a Minis- ter of the Church of Scotland, for High Treason, and disowning, quarrelling, and impugning of his Majesty's Royal Power and Authority, and Rights and Title to the Crown, A. D. 1697. [Now first printed from the Records of Justiciary at Edinburgh.] [N.] 1450 A COMPLETE COLLECTION OF STATE TRIALS, &c. &c. SS4. The Trial of Sir JOHN FREIND,* knt. at the Old-Bailey, for High Treason 8 WILLIAM III. A. D. 1696. Clerk of Arraignments. 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, adjourned over to this day; draw near, and give your attendance, for now they will proceed to the pleas of the crown for the said city and county; and God save king William. Cl. of Ar. Make proclamation again. Cryer. Oyez, You good men of the city of London, summoned to appear here this day, to try between our sovereign lord the king and the prisoner that is to be at the bar; answer to your names as you shall be called, every man at the first call, upon pain and peril that will fall thereon. Then the petty jury were all called over, and the appearances of those that answered to the call were recorded. About ten o'clock the lord chief justice Holt, the lord chief justice Treby, Mr. justice Nevill, and Mr. justice Rokeby, came into the court; and there being a great confluence of the nobility and gentry there present, the * See Holt, 681. East's Pleas of the Crown, chap. 2, sect. 9. 17. See, also, in this Collection, some important Observations on this Case in Lord Erskine's Speech on the Trial of Thomas Hardy, A. D. 1794. And a Note to the Case of Don Pantaleon Sa, vol. 5, p. 466. VOL. XIII. prisoner was ordered to be brought to the bars which was done accordingly. Cl. of Ar. Sir John Freind, hold up thy hand. Freind. My lord, I humbly move that I may have one William Courtney (who is to be a principal witness for me at my trial, and is now a prisoner in the Gatehouse) sent for. L. C. J. (Sir John Holt.) Is he your witness, sir John? Freind. Yes, my lord, William Courtney is his name. L. C. J. Sir John, why did not you send, and desire this before? Freind. My lord, I did not hear of him while last night; and I humbly beseech your lordship, that you will please to let him be sent for. The Judges consulted among themselves. L. C. J. Look you, sir John Freind, I'll tell you, if you'll appoint your agent to come hither, you shall have an Habeas Corpus ad testificandum': but indeed you might have sent this morning, and then the writ might have been got ready. Freind. My lord, I did not know so much; for it was last night before I understood that he was to be a witness. this morning, and you should have had a warL. C. J. You might have sent last night, or rant for the writ. Freind. I assure your lordship, I did not know so much. L. C. J. Well, send your agent, or your solicitor, and you shall have a warrant for the writ. Freind. I beseech your lordship that he may be sent for, and that the messenger may make haste. L. C. J. Let your solicitor come to my clerk, and he shall have it. Freind. My lord, if you please to give a rule of court for it, I suppose it may be done presently. B L. C. J. No, no, sir John, it must be by writ; the keeper of the Gatehouse else cannot bring him. Freind. My lord, that will be a long time before it can be done; I desire nothing but that I may have him here to give his evidence for me. L. C. J. It will be got ready presently; I believe he will be here time enough for you to make use of his testimony. Freind. But, my lord, suppose he should not be here: it would be a great hindrance to me, and a great injury to my trial. L. C. J. No, no, sir John, you need not fear any thing of that nature, we are not in such haste; we will not spur you on: but the warrant shall be made; and do you make what haste you can to get the writ, and your witness brought. [The Lord Chief Justice gave order to Mr. Mason his clerk, to prepare a warrant for an Habeas Corpus, directed for the keeper of the Gatehouse, to bring William Courtney immediately hither to give evidence.] Cl. of Ar. Sir John Freind, hold up thy hand. [Which he did.] You stand indicted in London by the name of sir John Freind, late of London, knt. for that, whereas there had been for a long time, and yet is, an open, and notoriously public, and most sharp and cruel war by land, and by sea, 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 Third, by the grace of God, of England, Scotland, France, and Ireland king, defender of the faith, &c. 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 John Freind, a subject of our said Sovereign lord the king that now is, of this kingdom of England, well 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 most serene, most clement, and most excellent prince, our said sovereiga lord William the Third, now king of England, &c. your supreme, true, natural, rightful, lay ful, and undoubted sovereign lord; the cordial love, and the true and due obedience, fidelity and allegiance, which every subject of our said sovereign lord the king that now is, towards him our said sovereign lord the king should and of right ought to bear withdrawing, and intending utterly to extinguish, and contriving, and with all your strength purposing, designing, and endeavouring the government of this kingdom of England, under our said sovereign lord the king that now is of right, duly, happily, and very well established, altogether to subvert, change, and aiter, and his faithful subjects, and the freemen of this kingdom of England, into intolerable and most miserable slavery to the aforesaid French king to subdue and bring; า the first day of July, in the seventh year of the reign of our said sovereign lord the king that now is, and divers other days and times, as well before as after, at London, in the parish of St. Peter Cornhill, in the ward of Lime street, falsely, malieiously, devilishly, and traitorously, did compass, imagine, contrive, purpose, and intend our said sovereign lord the king that now is, then your supreme, true, natural, rightful, and lawful sovereign lord, of and from the regal state, title, honour, power, crown, command, and government of this kingdom of England to depose, cast down, and utterly to deprive; and our said sovereign lord the king to death and final destruction to put and bring; and the aforesaid Lewis the French king, by his armies, soldiers, legions, and subjects, this kingdom of England to invade, fight with, overcome, and subdue, to move, incite, procure, and help, and a miserable slaughter among the faithful subjects of him our said sovereign lord the king, throughout his whole kingdom of England, to make and cause; and that you the said sir John Freind to the aforesaid enemies of our said lord the king that now is, then and there during the war aforesaid, traitorously were adhering and assisting: and the same your most impious, wicked and devilish treasons, and traitorous compassings, intentions, and purposes aforesaid to full, perfect, and bring to effect; and in pro performance, and execution of that trorous adhesion, you the said sir John Frein?, ás such a false traitor, during the war aforesaid, to wit, the same first day of July, in the year abovesaid, at London aforesaid, in the parish and ward aforesaid, and divers other days and times, as well before as after, there and elsewhere in London aforesaid, falsely, maliciously, advisedly, secretly, and traitorously, and with force and arms, &c. with one Robert Charnock (late of high treason, in contriving and conspiring the death of our said sovereign lord the king that now is, duly convicted and attainted), and with divers other false traitors to the jurors unknown, did meet, propose, treat, consult, consent, and agree to procure from the aforesaid Lewis the French king, of his subjects, forces, and soldiers, then and yet enemies of our said sovereign lord the king that now is, great numbers of soldiers and armed men this kingdom of England to invade and fight with, and to levy, procure, and prepare great numbers of armed men, and troops and legions against our said lord the king that now is, to rise up and be formed, and with those enemies, at and upon such their invasion and entry into this kingdom of England, to join and unite, rebellion and war against him our said lord the king, within this kingdom of England, to make, levy, and wage, him our said lord the king so as aforesaid to depose, and him to kill and murder; and moreover with the said false traitors, the same first day of July, in the year abovesaid, at London aforesaid, in the parish and ward aforesaid, traitorously you did consult, consent, and agree to send the aforesaid Robert Charnock as a mes armed, and ready to be armed upon the account aforesaid, upon the aforesaid first day of July, in the seventh year abovesaid, at London aforesaid, in the parish and ward aforesaid, falsly, maliciously, and traitorously, did give and pay, and cause to be paid; and those soldiers and men, for the treasons, intentions, and purposes aforesaid, then and there, and long after you had in readiness. As also the same first day of July, in the seventh year abovesaid, at London aforesaid, in the parish and ward aforesaid, divers horses, and very many arms, guns, carbines, pistols, swords, and other weapons, ammunition, and warlike things, and military instruments, falsely, maliciously, secretly, and traitorously you did obtain, buy, gather and procure, and cause to be bought, gathered, obtained and procured, and in your custody had and detained, to that intent to use the same in the said invasion, war and rebellion, against our said sovereign lord the king that now is, him our said lord the king of and from the regal state, crown and command of this kingdom of England to depose, cast down and deprive, and him to kill and murder, and all the treasons, intentions, contrivances and purposes of you the said sir John Freind, as aforesaid, to fulfil, perfect, and fully to bring to effect; against the duty of your allegiance, and against the peace of our said sovereign lord the king that now is, his crown and dignity; as also against the form of the statute in this case made and provided. senger from you the said sir John Freind, and did raise, list, and retain, and did procure to be the same other traitors unknown, unto and into raised, listed, and retained; and divers sums of the kingdom of France, in parts beyond the money, in and about the raising, listing, and seas, unto James the second, late king of Eng-retaining of the aforesaid soldiers, and men land, to propose to him, and desire of him to obtain of the aforesaid French king the soldiers and armed men aforesaid, for the invasion aforesaid to be made; and intelligence and notice of such their traitorous intentions, and adhesions, and all the premises unto the said late king James the second, and the said other enemies and their adherents, to give and exhibit, and them to inform of other particular things and circumstances thereunto relating; as also intelligence from them of the said intended invasion, and other things and circumstances concerning the premises to receive, and the same to you the said sir John Freind, and the said other traitors in this kingdom of England, to signify, report and declare, in assistance, animation, and aid of the said enemies of our said lord the king that now is, in the war aforesaid, and to incite and procure those enemies the more readily and boldly to invade this kingdom of England; and the treasons and traitorous contrivances, compassings, imaginations, and purposes of you the said sir John Freind aforesaid, to perfect and fulfil; and all the premises the sooner to execute, manage and perform, you the said sir John Freind, during the war aforesaid, so as aforesaid continued, to wit, the same first day of July, in the abovesaid seventh year of the reign of our said lord the king that now is, at London aforesaid, in the parish and ward aforesaid, falsely and traitorously did procure and obtain to yourself, and did receive and accept of a certain commission or writing purporting itself to be a commission under and from the aforesaid James the second, late king of England, to constitute you, the said sir John Freind, to be a colonel of horse in the army by you and the other false traitors against our said lord the king that now is, within this kingdom of England to be levied and formed; and in pursuance of the said pretended commission by you the said sir John Freind so obtained and accepted of, and your treasons and all your traitorous intentions aforesaid the sooner to execute, perform, fulfil, and perfect, you the said sir John Freind after wards, to wit, the same first day of July, in the seventh year abovesaid, at London aforesaid, in the parish and ward aforesaid, falsely, maliciously, advisedly, secretly, and traitorously, divers soldiers, and armed meu, and ready to be armed, with force and arms, &c. to raise, and list, and war and rebellion against our said lord the king, within this kingdom of England to make and wage; and to and with the said enemies of our said lord the king, foreigners and strangers, subjects and soldiers of the said Lewis the French king, being about to invade this kingdom of England, at and upon their invasion and entry into this same kingdom, then shortly expected to be made, themselves together with you the said sir John Freind to join and unite, and in troops and legions to form, What sayest thou, sir John Freind, art thou guilty of this high treason whereof thou standeşt indicted, or not guilty? Freind. Not guilty, my lord. Cl. of Arr. Culprit, how wilt thou be tried? Cl. of Arr. God send thee a good deliver ance. Freind. I don't know any thing of it, I am as innocent as the child unborn. The Warrant for the Habeas Corpus was signed by the Lord Chief Justice Holt, and deCrown Office by his solicitor, to get the writ livered to the prisoner, who sent it away to the sealed. Freind. My lord, I have something to move, if your lordship please to hear me, and the rest of my lords the judges: That if any matter of law deth arise upon my trial, I may be heard by my counsel, that you may not destroy me without law. L C. J. Look you, sir John Freind, if any matter of law do arise at your trial, and you will tell us what that matter of law is, and the court see that it is a matter of doubt, we can, and ought, and no question shall assign you counsel; but that is time enough when such matter does arise. Freind. My lord, it is well known to your lordship, and all the court, that I am not a law-and truly try, and true deliverance make between our sovereign lord the king and the prisoner at the bar, whom you shall have in charge, according to your evidence. So help you God. Cl. of Ar. Nathan Green. Freind. I except against him. Cl. of Ar. Thomas Emms. yer; but I hope, as you are of counsel for the king as judges of law, so you will be of counsel for me; for I am not a lawyer, and cannot know whether any matter that arises be law or no; and therefore I humbly beseech your lordship to be so just and kind, as to tell me whether it be law or not law, and I submit myself to your lordship's direction. L. C. J. Sir John Freind, we are bound to tell you when any thing of that nature appears before us, and to let you have all the benefit of the law that possibly you can have; for we are obliged to be indifferent between the king and you. Freind. My lord, I don't question it. I desire also I may have pen, ink, and paper. L. C. J. Yes, yes, by all means. [And he had them.] Cl. of Arr. Crier, make proclamation. Crier. Oyez: You good men of the city of London, summoned to appear here this day, to try between our sovereign lord the king and the prisoner that is at the bar, who have been called, and made default, answer to your names, and save your issues. [Then the Defaulters were called over.] Cl. of Ar. You the prisoner at the bar, these men that you shall bear called, and personally appear, are to pass between our sovereign lord the king and you, upon trial of your life and death; if therefore you will challenge them, or any of them, your time is to speak unto them as they come to the book to be sworn, before they be sworn. Crier. Call Thomas Clark. Freind. Pray, Sir, how many may I challenge? L. C. J. Look you, Sir John, you may challenge, that is, except against 35, without shewing any cause: if you don't like them to be of the jury, you may refuse them; and as many others as you have cause to except against. Freind. My lord, I humbly beseech you, that because perhaps I may mistake in numbering, that I may have timely notice before the 35 be excepted against, or else it may occasion me a great deal of prejudice. L. C. J. Sir, the clerk shall take care of that, he shall inform you how many you challenge, and you shall receive no prejudice of that kind, or by any slip in point of form. Cl. of Ar. Cryer, call Thomas Clark. (Who appeared.) Freind. Pray, Sir, must I not see the tleman? gen L. C. J. Yes, yes, by all means. (He was shewn to him.) Freind. You may swear Mr. Clark; I do not except against him. I desire but honest gentlemen, and I shall come off, I warrant you: : I am as innocent as the child unborn. L. C. J. Swear Mr. Clark. Cl. of Ar. Hold him the book; (which was done) look upon the prisoner: You shall well Freind. I accept of him for a juryman, I have nothing to object against him. (He was sworn.) Ct. of Ar. Francis Byer. Freind. Pray let me see him (He was shewn to him). I do except against him, I challenge him. Cl. of Ar. Benjamin Dry. Freind. I accept him, I have nothing to say against him, I would have him to be a jury man. Demew. My lord, I am not a freeholder. L. C. J. Sir John, do you challenge him peremptorily, or do you challenge him for cause? Freind. My lord, I do not challenge him at all, I accept of him. Att. Gen. (Sir Thomas Trevor.) If he have no freehold, we that are for the king will except against him, for I would not have any body that is not a freeholder serve upon the jury. Cl. of Ar. Henry Hunter. Freind. Pray, my lord, is this gentleman that was called before laid aside? He is not one that I challenge. L. C. J. No, no, he is challenged by the king's counsel, as no freeholder. Freind. Then he is only set aside, I suppose; I speak it for this reason, I would not be mistaken in my number. L. C. J. Care shall be taken of all that; he is not to be reckoned as one that you challenged, he is challenged for want of freehold by the king's counsel. Cl. of Ar. What say you to Mr. Hunter? Cor. My lord, I have no freehold in London. Cl. of Ar. You challenge him, Sir, do you? Freind. I accept of him. (He was sworn.) Freind. I accept of him. (He was sworn.) Freind. I except against him, for I have him not in my pannel. L. C. J. How comes that ? Freind. I can't tell, my lord; I have been kept alone while Saturday last, only that wor |