thy gentleman (bowing to Mr. Baker, the prosecutor for the king) was with me to give me notice of my trial before. Cl. of Ar. Nathaniel Wyersdale. Freind. Sir, I do assure you I have him not in my pannel, upon my word. I challenge him. Cl. of Ar. Samuel Jackson. (He was sworn.) Freind. I accept of him. (He was sworn.) Cl. of Ar. Nathaniel Long. Freind. I accept of him. (He was sworn.) Cl. of Ar. Richard Chiswell. Freind. I challenge him.' Cl. of Ar. George Child. Freind. I accept of him. (He was sworn.) Cl. of Ar. William Walker. Freind. I accept of him. Cl. of Ar. John Wills. Freind. I challenge him. Cl. of Ar. John Hibbert. Freind. Ichallenge him. Cl. of Ar. John Pettit. Freind. I challenge him. Cl. of Ar. James Robinson. Freind. Sir, he is not in my pannel, upon my word. Cl. of Ar. He is in the original pannel. Sheriff Buckingham. My lord, here is the Original Pannel, and here's his name here; and there is not a person in this pannel, but what was originally put in, except it be about five or six at the end, and this is none of them. Freind. I challenge him. Cl. of Ar. Thomas Hollis. (He did not appear.) L. C. J. Pray, Sir John, who had you that copy from? Who gave it you? Freind. Mr. Solicitor. Mr. Trotman. My lord, he had none from me, I am sure: I received the pannel from the sheriff, but nobody, from sir John, was ever with me for a copy. Freind. My lord, my solicitor brought it to me on Saturday night. L. C. J. Who is your solicitor that gave you that copy? Freind. His name is Mr. Burleigh, my lord. L. C. J. Where is he? Let's see this Mr. Burleigh. Freind. My lord, he is gone to the Crownoffice, it seems, for the Habeas Corpus. Just. Rokeby. It is your own solicitor that has put the abuse on you, if it be so. Cl. of Ar. Thomas Hollis. (He did not appear.) L. C. J. Pray, sir John Freind, how many have you in all? Freind. In number, my lord? Would you have me tell you how many I have in number? L. C. J. Aye, in number in your copy of the pannel. Sheriff Buckingham. In the pannel there are above fourscore. Freind. I have seventy-one, my lord. [Then Thomas Hollis appeared ] Cl. of Ar. Do you challenge him, Sir? Sh. Buckingham. Pray let the Secondary produce his pannel that he had from my brother and me, and I am sure the court will find they were all named in that pannel. Mr. Trotman. My lord, I have the pannel, but they never came to me for a copy, as I expected: I had got one ready; if sir John Freind, or any person for him, had sent to me, they might have had it. Sh. Buckingham. And these people that are not in sir Jolin Freind's pannel, are none of the half-dozen that were added, when we came to the knowledge of them that they were freeholders. L C. J. When were they added, Sir? Sh. Buck. They were added on Friday in the afternoon, and it seems he never came for the pannel to the proper officer; and those that he objects against were not added, but are in the original pannel. L. C. J. Truly, I cannot see any body is to blame in this maiter but your own solicitor. Mr. Trotman. My lord, I assure you I had made a copy, and wondered I did not hear of them: I do not know where he got this copy. L. C. J. Treby. In truth, if you would not send to the proper officer for a copy, when you might have had it, you must be content with what you have; for nobody is bound to give you a copy, unless you ask for it L. C. J. Well, what say you to Thomas Hollis ? Freind. I challenge him, my lord, for he is not in my pannel. Cl. of Ar. John Sherbrook. Freind. I accept of him. (He was sworn.) Freind. He is not in my pannel, upon my word, my lord. L. C.J. I cannot help it, he is in the sheriff's panne! that is returned here. Freind. I challenge him. Gardner. My lord, I am no freeholder in the city. Just. Rokeby. Mr. Gardner, have you not lately conveyed away your freehold ? Gardner. No, indeed, my lord, I never had any. Cl. of Ar. William Prince. Freind. I accept of him. (He was sworn.) Cl. of Ar. John Simons. Freind. I challenge him. Cl. of Ar. Robert White. Freind. I challenge him. Cl. of Ar. Joseph Morewood. Freind. 1 accept him; his name is John, 1 suppose, for so it is in my pannel. Cl. of Ar. No, it is Joseph. Morewood. My name is Joseph. Freind. Well, Sir, I accept of you, I don't question but you are an honest man. [He was sworn.] Cl. of Ar. Cryer, countez. Thomas Clark. Cryer. One, &c. [So of the rest to the last.]-Cl. of Ar. Joseph Morewood. Cryer. Twelve good men and true, stand together, and hear your evidence. from France, to come and invade this kingdom; and should raise a sufficient number of men to facilitate the landing of the French: and the indictment particularly charges the prisoner at the bar with sending Mr. Charnock into France, to the late king James, to acquaint him with the design, and to desire him to proThe names of the Jury were these: Thomas cure a great number of forces from the French Clark, Thomas Emms, Henry Hunter, Tho-king, to come here, and land within this kingmas Poole, Peter Parker, Samuel Jackson, dom: and the indictment does likewise charge Nathaniel Long, George Child, William Wal-him with procuring and receiving a commisker, John Sherbrook, William Prince, and Joseph Morewood. Cl. of Ar. Cryer, make proclamation. Cryer. Oyez. If any one can inform niy lords the king's justices, the king's serjeant, the king's attorney-general, or this inquest now to be taken, of the high-treason whereof the prisoner at the bar stands indicted, let them come forth, and they shall be heard; for now the prisoner stands at the bar upon his deliverance; and all others that are bound by recognizance to give evidence against the prisoner at the bar, let them come forth and give their evidence, or else they forfeit their recognizance; and all jurymen of London that have been called, and have appeared, and are not sworn, may depart the court. Cl. of Ar. Sir John Freind, hold up thy hand. (Which he did.) You that are sworn, look upon the prisoner, and hearken to his charge: he stands indicted by the name of sir John Freind, late of London, knight (prout in the Indictment, mutatis mutandis), and against the form of the statute in that case made and provided. Upon this indictment he hath been arraigned, and thereupon hath pleaded Not Guilty, and for his trial hath put himself upon God and the country, which country you are; your charge is to enquire, Whether he be guilty of the high-treason whereof he stands indicted, or not guilty? If you find him guilty, you are to enquire what goods and chattels, lands and tenements, he had at the time of the high-treason committed, or at any time since: if you find him not guilty, you are to enquire if he fled for it: if you find that he fled for it, you are to enquire of his goods and chattels, as if you had found him guilty: if you find him not guilty, nor that he did fly for it, you are to say so, and no more, and hear your evidence. Mr. Montague. May it please your lordship, and you gentlemen of the jury: this is an indictment of high-treason, that is brought against sir John Freind, the prisoner at the bar, for associating with, and aiding the king's enemies, with a design to procure an invasion from France, and to raise a rebellion within this kingdom; and this was to depose the king, and to restore the late king James; and in order to the effecting these his wicked purposes, the indictment sets forth, That the 1st of July last, he did meet, and consult, and agree with one Mr. Charnock (a gentleman since tried, convicted and attainted of hightreason), how they should procure an army sion from the late king James, to constitute him, the prisoner at the bar, a colonel of horse; and likewise with laying out, and expending, and paying several sums of money in listing and keeping soldiers and men in pay under him, which were to be in his regiment; and with laying out several sums of money in buying arms and horses for this invasion and rebellion that was thus designed to be made, and raised within this kingdom. To this, gentlemen, he has pleaded not guilty: we shall call our witnesses and prove the fact, and we do not doubt but you will find him so. Freind. Prove this if you can; it cannot be. Att. Gen. May it please your lordship, and you gentlemen of the jury: the prisoner at the bar, sir John Freind, stands indicted of high-treason, in compassing and imagining the death of the king, and likewise in adhering to the king's enemies. Gentlemen, the overt-acts laid in the indictment to prove this treason, are these: That the prisoner at the bar did accept a commission from the late king James, to raise a regiment of horse in this kingdom, in order to join with the French when they invaded it; and there were several meetings and consultations between him and several others whom you will hear named by the witnesses; upon which it was resolved to send a messenger, one Charnock, into France, to desire the late king James to prevail with the French king to get a number of men, in all 10,000, with an assurance that they would assist him with a number of horse when he came and in pursuance of this design, the prisoner at the bar did raise men, and pay some sums of money for their subsistence, and listed, and had them in readiness; and provided horses and arms. These are the overt-acts laid in the indictment; the evidence that will be produced to you, to prove this treason, and these overt-acts, will be in this manner. Gentlemen, you will see by the evidence that there has been a design and conspiracy on foot for several years to assassinate the king's person, and to have an invasion from France at that time, by armed force here to subdue this kingdom. The prisoner at the bar, sir John Freind, I think about two years ago had a commission sent him from the late king James, to raise a regiment of horse: there was several other commissions sent likewise, but one was sent to the prisoner, which he accepted of; and in pursuance of it, he appointed several officers, and listed several men for that purpose, and expended several sums of money for the raising and subsisting of them. discoursed the matter, the people being, as they said, generally dissatisfied, and but few forces in England to oppose them. Mr. Charnock accordingly went over into France, and about a month after returned again, and acquainted them that he had told king James their resolution, and how they would assist him, and what they desired of him; and, in short, had delivered his message: but what king James told him, he thanked them very much for their kindness and readiness to assist him; but at that time the French all that summer, and so there was nothing to be done; and thereupon it rested till the last winter. Gentlemen, you will hear that his lieutenant colonel was to be one Blaire, and his major was to be one Slater; and this Slater's father was a clergyman, and he undertook to bring in a troop of clergymen that had refused to take the oaths. One of his captains was one Evans; one Richardson was another; and there were several other officers whom you will hear named by the witnesses, that were appointed, and engaged to make up the regiment. Gentlemen, you will hear further by the wit-king could not spare any forces, nor could it be nesses, that about May or June last, they have raised a considerable number of men, there were several meetings had between the prisoner at the bar and several other persons, in order to send some person over to get forces from France, to invade this kingdom. The first meeting that you will hear of, was at the Old King's-head-tavern in Leadenhall-street, and there were present the prisoner at the bar, my lord of Aylesbury, my lord Montgomery, sir John Fenwick, sir William Perkins, Mr. Charnock (who was lately condemned and executed for the design of murdering the king,) Mr. Porter, and one Cook. At that meeting you will hear what their debates were, and what their resolutions: after several debates, who they should send, they resolved to send Mr. Charnock, to go into France, to desire the late king James to get 10,000 men of the French troops to land upon our coasts, about 8,000 foot, and the rest horse and dragoons; and they did impower him in their names to assure the late king James, that they would, whenever he landed with his French troops, be ready to assist him with near two thousand horse among them. Upon this, gentlemen, Mr. Charnock undertook to go upon this message: about a week after they met again, for he was unwilling to go upon such an errand, without having a full resolution and assurance from these gentlemen that were thus engaged, that he might satisfy the late king what they would certainly do. So they met again about a week after, and that was at a tavern in St. James's-street, near sir John Fenwick's lodgings, one Mrs. Montjoy's; there was the prisoner at the bar, my lord of Aylesbury, and most of the same company that were at the meeting before: and Mr. Charnock desired to know, if they did agree to what had been proposed and resolved on before; for he was unwilling, and did not care to go without a full assurance of the performance. They did all agree, and desired that he would go with all speed, and that he should assure king James, they would be ready to meet him, if they had notice where he would land. Pray, gentlemen, observe the time when these meetings were. It was in May or June last, soon after the king was gone to Flanders; and they thought this a fit opportunity, when the king's forces were drawn out of England into Flanders, for carrying on the campaign; then was the proper time, according as they Then gentlemen, you will hear, that the last winter the design was renewed again, about January last; for sir George Barcley came over from the late king, being a lieutenant in his guards there, and then they entered into a conspiracy to assassinate the king; and that was to be done first to facilitate the invasion, which was to follow immediately upon the execution of the assassination: For they thought they could have no assurance of success in their invasion, as long as the king lived; and I hope every one will take notice, how precious that life is to us, when it is so apparent to all the world, that our enemies cannot hope for any success to their enterprizes and designs to destroy us, but by taking that life away. Gentlemen, this very conspiracy, you will hear, the prisoner at the bar was acquainted with, and privy to, even this assassination; though indeed you will hear he did not much approve of it, because he thought it would be a disservice to the late king's affairs; but he was at several meetings with Mr. Porter, and Mr. Charnock, and sir William Perkins, and several others that were conspirators in that design, and was acquainted with it, as you will hear by the evidence. Gentlemen, you will hear further, that about January last, the invasion being intended to be quickly made, the prisoner at the bar, sir John Freind, had frequent meetings with Blair, that was lieutenant-colonel, and other officers, to consider and prepare how to be in a readiness. About that time the prisoner at the bar, captain Blair, and one captain Ridley, met at a place in Exchange-alley, and there they discoursed among one another; and there Ridley said there was a considerable Roman Catholic that was sent to king James, and he would bring the last orders; and sir John Freind said he knew of it very well, it was so, and he hoped he should have them brought very quickly. At another time, the prisoner at the bar, and Blair his lieutenant-colonel, met at Jonathan's coffee-house, and the prisoner took him up in his coach, and carried him along with him, and there they had a great discourse of the affairs of the regiment. The prisoner at the bar, sir John Freind, told Blair they must be very good husbands of their money: for if the invasion should miscarry, he should not have money enough to carry on his trade, but he would take care about some officers that had not money to mount themselves; but a great many were to prepare for themselves at their own charges, and for those that were to be under them. They had likewise then some discourse about the Toulon fleet coming about, and that be thought it not advisable till the Toulon fleet came round. He said he would not put a foot in the stirrup till that were done; and that he would keep out of the way till all was in a readiness, and advised captain Blair to do so too. Gentlemen, you will find it further proved, that about May last, the prisoner at the bar paid 201. to this captain Blair, who had laid out monies in the affairs of the regiment, and this was to reimburse him what he had so laid out; and it was in this manner: You have all heard, I suppose, of one colonel Parker, who being taken upon his coming over from France, was a prisoner in the Tower, but made his escape from thence, to which escape the prisoner at the bar was privy. This escape cost 3007. as you will hear, and the prisoner laid down 1007. of it. But this was to be repaid him again: but how was it? There was one Johnson a priest, a conspirator likewise in this design of assassinating the king, and he undertook and promised, that the late king should pay this 100l. And accordingly one Piggott went over into France, and had this 1007. paid him by king James, to repay it to sir John Freind: but he thought fit to keep the money, and sir John Freind could not get it of him, and he durst not ask it, because he knew the consideration was not fit to be made public. But he told captain Blair, I cannot pay you the money out of my own pocket; but Piggott ought to pay me, who has received this money of mine. If you will prevail with Johnson, who got this money from the late king to be paid to Piggott, to persuade Piggott to pay this 201. I will allow it in part of the money he is to pay me, and you shall have it. Captain Blair did prevail with Johnson to persuade Piggott to pay this 201. and captain Blair did receive it, and sir John Freind did agree to allow it to Piggott out of the 100/. due to him. Gentlemen, at another time, about Christmas last, there was another 207. paid by sir John Freind's order and direction, by Piggott to Blair, upon the same account, by the mediation of Johnson the priest; and this was paid and allowed, as being laid out in the affairs of the regiment before, he being intrusted as lieutenant-colonel to look after the regiment. Gentlemen, I have now opened the substance of the evidence; the particulars you will hear from the witnesses themselves. If I bave opened it amiss, you will take care, when the witnesses are produced, to observe what they say, who will tell you what really was done, and will rectify any mistake of mine: for I would have no such mistake to do the prisoner at the bar any prejudice. Sol. Gen. (sir John Hawles). Gentlemen, Mr. Attorney has opened the nature and course of our evidence so fully, that I shall make no repetition of any of the particulars; but call our witnesses, and prove it in order as it hath been opened. And first, we call captain George Porter. [Who came in.] Freind. My lord, before Mr. Porter is sworn, I desire to know whether he is a Roman Catholic or a Protestant? L. C. J. Why do you desire that? Is not a Roman Catholic a witness? Though he be a Roman Catholic, that is no objection to his being a witness. Freind. My lord, I desire to ask him the question, whether he be a Roman Catholic, or no? L. C. J. Sir John Freind, it is not a proper question. Freind. My lord, a man ought to know what profession they are of, that are witnesses against him for his life. L. C. J. Will you ask him whether he be a Christian or no? Freind. My lord, I desire to know whether he be a Papist or a Protestant. Att. Gen. If Mr. Porter be willing to tell you, he may; but it is not a proper question. L. C. J. Especially before he is sworn; he is not intitled to ask any questions whatever, till he be sworn. Freind. My lord, I beseech you let me have the question answered. Sol. Gen. Sure you don't consider, that the answer to that question is to accuse himself; you don't consider the consequences of it. Freind. Pray, my lord, let me have my right. L. C. J. The question is, Whether it is your right or no? Freind. My lord, I would not trouble the court if I could help it, but my life and all is at stake, and I must make the best defence I can. L. C. J. Indeed your question is improper in itself; but if he have a mind to tell you, and answer voluntarily, he may. Freind. I humbly beg your lordship that he may answer the question. L. Č. J. I cannot see you have a right to have this question answered you. 7 Freind. Mr. Porter, you are a gentleman, and I desire you will answer, Whether you be a Roman Catholic or not? Sol. Gen. Before he does answer, I desire he may be acquainted with the danger: he was bred a Protestant, no doubt, and then turning Roman Catholic, he subjects himself to a very severe penalty. L. C. J. Sir John Freind, I told you your question was not proper to be asked. Freind. Pray, my lord, let him answer the question, it will be of great use to me in my trial; pray let me have my right. L. C. J. You shall have all the right done you that can be; but in the first place, if a man be a Roman Catholic, notwithstanding his religion, he is a good witness: and besides that, it may be, his answering the question may subject him to several penalties; at least he is liable to prosecution upon several acts of parliament that are very penal; and therefore it is by no means to be asked. Freind. My lord, I pray only that he may answer the question. L. C. J. No man is bound to answer any question that tends to make him accuse himself, or subject him to any penalties. Freind. My lord, I do with submission desire it, and it is no great matter for him to say whether he be a Papist or Protestant. L. C. J. If it be no great matter, then why do you insist upon it? But perhaps it may be a great matter in the consequence of it to him; a man, therefore, is not obliged to answer any such questions. Freind. I beseech your lordship, let him answer the question. L. C. J. You have my opinion; if you will, you shall have the opinions of the rest of the judges: my opinion is, That the question ought not to be answered. L. C. J. Treby. Since your lordship's pleasure is, that we should deliver our opinions upon this point, I must declare, I am of the same opinion, that no man is bound to answer any questions that will subject him to a penalty, or to infamy. If you should ask him, whether be were a deer-stealer, or whether he were a vagabond, or any other thing that will subject him to punishment, either by statute or by common-law, whether he be guilty of a petty larceny, or the like, the law does not oblige him to answer any such questions.* Freind. Well, I hope the jury will consider it, that he will not answer the question; and therefore they are to take it for granted that he is so. L. C. J. Treby. And now to this present purpose, to ask a man whether he be a Popish Recusant, is to subject him to danger: for when you ask him that question, if he were not bred up in that religion, then for him to own himself of that religion now, is to own as great a crime as that you are charged with. If it were not so, but he was always bred in that religion, yet there are very great penalties that he is subject to, as, the confiscation of two third parts of his estate, and several other things that he may be liable to, if he should disclose that upon his answer to the question, which without this discovery could not be proved, perhaps. We must keep the law steady and even between the prisoner and the witness. Just. Nevil. I am of the same opinion, it does subject him to a penalty; and unless he will voluntarily answer it of himself, I think it cannot be demanded of him: for he may subject himself to a prosecution by it. Just. Rokeby. I think, it is not a question that can of right be imposed upon him; he may answer it, if he will; but he is under no * See much matter concerning this in Peake's Law of Evidence, c. 3. s. 2. VOL. XIII. obligation to answer it, because it may tend to accuse himself of a crime for which he may be prosecuted, and likewise will subject him to other penalties, which the law cannot compel him to subject himself to. (Then Captain Porter was sworn.) Freind. I hope, gentlemen of the jury, you will consider this. Sol. Gen. Mr. Porter, do you know sir John Friend, the prisoner at the bar? Capt. Porter. Yes, Sir. Sol. Gen. Pray then will you give my lords and the jury an account what meetings you have had with him, where those meetings were, and when, and what passed between you, about inviting the French over hither, or for a rising here? Porter. My lord, about the latter end of May last, or the beginuing of June, we had two meetings; one was at the King's-Head, in Leadenhall-street, and the other at Mrs. Mountjoy's in St. James's-street. At the first meeting there were present my lord of Ailesbury, my lord of Montgomery, sir John Freind, sir Wm. Perkins, sir John Fenwick, Mr. Cook, captain Charnock, and myself; after dinner Mr. Goodman came in: now at both those meetings it was consulted of, and agreed, to send captain Charnock into France to king James, to desire him to borrow of the French king 10,000 men to come over hither, 8,000 foot, 1,000 horse, and 1,000 dragoons. Capt. Charnock said, he did not care to go upon a foolish message, and therefore desired to know what they would have him to acquaint king James with, and assure him of. They all agreed to meet the king whenever they had notice of his landing, with a body of 2,000 horse, of which every one in particular was to bring their quota wherever he would appoint. Att. Gen. When was the second meeting? Porter. That was at Mrs. Mountjoy's. Att. Gen. But I ask you when it was? How long after the first? Porter. I believe it was about a fortnight after, or so. Att. Gen. What was that meeting for? Porter. The second meeting was to confirm the first. Captain Charnock informed me, that he was to go within three or four days, and therefore desired to have a meeting before he went. Att. Gen. What discourse was there at that second meeting? What occasion was there for it? Porter. Capt. Charnock desired the meeting once more before he went, to see whether we all kept our resolution. Sol. Gen. Pray, what do you know of sir John Freind's agreeing to raise a regiment of horse? Porter. I know nothing of that matter, but what I have heard several people talk; but I have heard him say, he would be as ready as any man, whenever the king came; and I have heard from capt. Charnock, and from sir WilC |