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 Pro testants 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 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 his conscience: He says, that Courtney got in to him 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 frequent 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 government; 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 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 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 determitation. numbers with force to make some reformation of their own heads, without pursuing the methods of the law, that is a levying of war, and trea. son, 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 overt. act 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-treason; 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 * “ 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 lessenger 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. L. C. J. No; but you may look upon it in court before you go away, if you will. and one of them banded 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, e. 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 LevyingWar. verdict, and an officer was sworn to keep them according to law, till agreed; and about a quarter of an hour afterwards they returned into court, and the prisoner was brought to the bar. Clerk of Arr. Gentlemen, answer to your Thomas Clark names. 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 guilty of high-treason. Cl. of Arr. Then hearken to your verdict as the court has recorded it. You say that sir John Freind is guilty of the high-treason whereof he stands indicted, but that he had no goods, nor chattels, lands nor teneinents, at the time of the high-treason committed, or at any time since, to your knowledge. 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 judgment; and afterwards received sentence of death as a traitor. 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 of those who answered to the call were reOld-corded. THIS day the Trial of Sir William Parkyns, knt. came on at the Sessions-House, 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. -Cl. 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 peri! 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. bar. Cl. of Ar. Set sir William Parkyns to the (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, L. C. J. Holt. seized? Where was this trunk 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. pies sent me by sir John Freind's friends, to the Horn tavern about three or four o'clock, and I delivered one of them to sir John Freind ; but he had one before I delivered mine. 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. I do know you, and would have you be fair in your practice. Baker. The inquiry is made, because a [Then the Judges consulted among them-false copy is put upon him; you might have selves.] 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 back? L. C. J. Well, some care or other shall be taken in it. Parkyns. 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. 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. Burl. I was with my lady, and delivered a petition for this trunk. 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. Parkyns. I was told there was a petition; L. C. J. But it seems it was under the for, my lord, I was a close prisoner, and they conuzance of the secretary, and direction was told me there was a petition; but my wife given to go thither: some care or other must never mentioned any thing of it to me till af- be taken in it, and shall; but go on now to arterwards; and they talked of an order of coun-raign the prisoner. cil 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. 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 L. C. J. But he must have wherewithal to is, by sea and by land, had, carried on, and prosubsist and buy him bread while he is in secuted by Lewis the French king, against the prison. most serene, most illustrious, and most excelSh. Buckingham. My lord, I see Mr. Bur-lent prince, our sovereign lord William the 3d, leigh 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- 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 William Parkyns, 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, no 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 | 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 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 sovereign lord the king that now is, to rise up and be formed; and with those enemies at and upon such their invasion and entrance into this kingdom of England, to join and unite; re most serene, most clement, and most excellent prince, our said sovereign lord William the 3d, now king of England, &c. your supreme, true, natural, rightful, lawful, and undoubted sovereign lord; the cordial love, and true and due obedience, fidelity and allegiance, which every subject of our said lord the king that now is, towards him our said lord the king, should bear, and of right ought to bear, withdrawing, and utterly to extinguish, intending and contriving, and with all your strength purposing, designing and endeavouring the government of this kingdom of England, under him our said" lord the king that now is, of right, duly, hap-bellion and war against him our said sovereign pily and very well established, altogether to lord the king, within this kingdom of England, subvert, change, and alter; as also the same to make, levy, and wage; and the same our our sovereign lord the king to death and final sovereign lord the king so as aforesaid to dedestruction to put and bring and his faithful pes, and him to kill and murder. And fursubjects, and the freemen of this kingdom of ther, with the said false traitors, the same first England, into intolerable and most miserable day of July, in the year abovesaid, at the parish slavery, to the aforesaid French king, to sub- aforesaid, in the county aforesaid, traitorously. due and bring; the first day of July, in the you did consult, consent, and agree to send 7th year of the reign of our said sovereign lord the aforesaid Robert Charnock as a mesthe king that now is, and divers other days and senger from you the said sir Wm. Parkyns, times, as well before as after, at the parish of and the same other traitors unknown, as far St. Paul Covent-Garden aforesaid, in the as, and into the kingdom of France, in parts county aforesaid, falsely, maliciously, de- beyond the seas, to James the 2d, late king vilishly and traitorously did compass, imagine, of England, to propose to him, and desire contrive, purpose, design and intend our said of him to obtain of the aforesaid French king, sovereign lord the king that now is, then your the soldiers and armed men aforesaid, for the supreme, true, natural, rightful, and lawful invasion aforesaid to be made; and intelligence sovereign lord, of and from the regal state, and notice of such their traitorous intentions, title, honour, power, crown, command, and and adhesions, and all the premises to the said government of this kingdom of England, to late king James, and the said other enemies depose, cast down, and utterly to deprive; and their adherents, to give and exhibit; and and the same our sovereign lord the king, to them to inform of the said things, particulars, kill, slay, and murder; and the aforesaid Lewis and circumstances thereunto relating; as also the French king, by bis armies, soldiers, intelligence from them of the late intended inlegions, and subjects, this kingdom of Eng-vasion, and other things and circumstances land to invade, fight with, conquer, and subdue, to move, stir up, procure and aid; and a miserable slaughter among the faithful subjects of our said lord the king, throughout al! this whole kingdom of England, to make and cause; and that you the said sir William Parkyns, to the aforesaid enemies of our said ford the king that now is, then and there, during the war aforesaid, traitorously were adhering and aiding; and the same most abominable, wicked and devilish treasons, and traiterous compassings, contrivances, intentions, and purposes of yours aforesaid, to fulfil, perfect and bring to effect; and in prosecution, performance, and execution of the traiterous adhesion aforesaid, you the said sir William Parkyns, as such a false traitor, during the war aforesaid, to wit, the same 1st day of June, in the year abovesaid, at the parish aforesaid, in the county aforesaid, and divers other days and times, as well before as after, there and elsewhere in the same county, falsely, maliciously, advisedly, secretly, and traiterously, and with force and arms, 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, concerning the premises to receive, and them to you the said sir William Parkyns, 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 sovereign lord the king that now is, in the war aforesaid: and to stir up and procure those enemies the more readily and boldly this kingdom of England to invade, the treasons and traitorous contrivances, compassings, imaginations and purposes of you the said sir William Parkyns aforesaid to perfect and fulfil, and all the premises the sooner to execute, manage and perform, and the invasion aforesaid to render and make the more easy, you the said sir William Parkyns afterwards, to wit, the 10th day of February, in the year abovesaid, at the parish aforesaid, in the county aforesaid, and divers other days and times, as well before as after, there and elsewhere in the same county, falsely, maliciously, advisedly, secretly, traitorously and with force and arms, with the aforesaid Robert Charnock, and very many other false traitors to the jurors unknown, did meet, propose, treat, consult, consent and agree, him our said sovereign lord the king that now is, by lying in wait and deceit, to assassinate, kill and murder; and that execrable, |