swears it positively therefore he should swear falsly But secondly Capt. 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 design'd 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 Capt. Blair's Chamber and took notice of his being to be a Witness at Hick'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 seem'd to be in very great trouble about it and owned as much But 〈◊〉 Capt. 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 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 Capt. 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 converst with him and never knew that he was ever Popishly affected and they have been frequently in his Company since the Revolution and they never knew that at any time he reflected upon the Government nay I think one said that once he did reprove a Man for talking undecently of the Government that he used constantly to go to Church 4 or 5 Years ago tho' there is no account of that since And particularly there is one Mr. Lufton 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 pray'd 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 hath had Discourse concerning the present Government and that Sir John Freind said that tho' he could not take the Oaths and thereby Conform to the Government yet he was resolved to live quietly under it and would not ingage in any manner of Plot for he that catch'd him in the Corn should put him in the Pound This is the Summ 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-ballance what the Witnesses for the King have Sworn For altho' he was a Protestant yet it is plain he had no great Liking to the Government and therefore would not take the Oaths and tho' he was present at the Common-Prayer when the King and Queen were prayed for yet whether he joyned 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 Publick Prayers but it may be a very great Doubt whether they joyn in their Prayers for the Present Government or no his Conscience that scruples the taking the Oaths might scruple that too But whether Sir John Freind 's being a Protestant and his Declaring he would never be in a Plot be a sufficient Proof that therefore he never was in one and that his former Discourse of that kind should Discredit these Witnesses that have Sworn he has been so much concerned in a Plot you are to consider and comparing the Weight and Nature of the Evidence on the one side and the other it must be left to your Determination Then there is another thing that he did insist upon and that is matter of Law The Statute of the 25º Ed. 3. was read which is the great Statute about Treasons and that does contain divers Species of Treason and Declares what shall be Treason One Treason is the Compassing and Imagining the Death of the King another is the Levying of War Now says he here is no War actually Levied and a bare Conspiracy or Design to Levy War does not come within this Law against Treason Now for that I must tell you if there be onely a Conspiracy to Levy War it is not Treason But if the Design and Conspiracy be either to Kill the King or to Depose him or Imprison or put any Force or Restraint upon him and the Way and Method of effecting of these is by Levying a War there the Consultation and the Conspiracy to Levy a War for that purpose is high-High-Treason tho' no War be Levied for such Consultation and Conspiracy is an Overt-Act proving the Compassing the Death of the King which is the first Treason mentioned in the Statute of the 25th of Ed. 3d. 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-High-Treason if a War be not actually Levied is very strange Doctrine and the Contrary has always been held to be Law There may a War be Levied without any Design upon the King's Person or Endangering of it which if actually Levied is high-High-Treason but a bare Designing to Levy War without more will not be Treason As for Example * Rising with Force to pull down all Inclosures to expell 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
Kingdom of England into intolerable and most miserable Slavery to the aforesaid French King to Subdue and bring 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 Limestreet falsely maliciously devilishly and traiterously did compass imagine contrive purpose and intend our said Sovereign the 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 this whole Kingdom of England to make and cause and that you the said Sir John Friend to the aforesaid Enemies of our said Lord the King that now is then and there during the War aforesaid Traiterously were adhering and assisting and the same your most impious wicked and devilish Treasons and traiterous compassings intentions and purposes aforesaid to fulfill perfect and bring to effect and in prosecution performance and execution of that traiterous adhesion you the said Sir John Freind as such a false Traytor 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 falsly maliciously advisedly secretly and traiterously 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 Traytors 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 Traytors the same first day of July in the year abovesaid at London aforesaid in the Parish and Ward aforesaid Traiterously you did consult consent and agree to send the aforesaid Robert Chernock as a Messenger from you the said Sir John Friend and the same other Traytors unknown unto and into the Kingdom of France in parts beyond the Seas unto James the Second late King of England 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 Traiterous 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 Traytors 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 Traytorous 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 falsly and traiterously did procure and obtain to your self and did receive and accept of a certain Commission or Writing purporting it self 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 Collonel of Horse in the Army by you and the other false Traytors 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 Traiterous Intentions aforesaid the sooner to execute perform fulfil and perfect You the said Sir John Freind afterwards to wit the same First Day of July in the Seventh Year abovesaid at London aforesaid in the Parish and Ward aforesaid Falsly Maliciously Advisedly Secretly and Traiterously Divers Soldiers and Armed Men 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 did Raise List and Retain and did procure to be Raised Listed and Retained And divers Sums of Money in and about the Raising Listing and Retaining of the aforesaid Soldiers and Men 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 Traiterously 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
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 tho' Purposing and Designing it is not so so when they endeavour in great 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 Treason but the Purposing and Designing it is not so But if there be as I told you a Purpose and Design to Destroy the King and to Depose him from his Throne or to Restrain him or have any Power over him which is proposed or designed to be effected by War that is to be Levied such a Conspiracy and Consultation to Levy War for the bringing this to pass is an Overt-Act of high-High-Treason So that Gentlemen as to that Objection that he makes in Point of Law it is of no force if there be Evidence sufficient to convince you that he did Conspire to Levy War for such an end Gentlemen the Evidence you have heard what it is you may consider the Weight of it and the Circumstances that do attend it and likewise the Answers that have been given by the Prisoner to Invalidate that Evidence and to prove the Improbability of what they have testified against him You have heard I say the Evidence on the one side and the other If you are not satisfied that what the Witnesses have Sworn is true that Sir John Freind did Ingage in such a Design for such a purpose then you are to acquit him but on the other side if you believe that Sir John Freind is Guilty of what the Witnesses have Deposed against him then you are to find him Guilty Juryman My Lord we desire we may have that Letter with us that was produced here L. C. J. Holt. No no you cannot have it by Law Juryman May it not be left with the Foreman my Lord L. C. J. Holt. No but you may look upon it in Court before you go away if you will Then the Letter was handed to the Jury and one of them handed it to the Prisoner L. C. J. Holt. 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 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. Cl. of Arr. Gentlemen Answer to your Names Thomas Clark Mr. Clark Here. And so did all the rest of the Twelve Cl. of Arr. Gentlemen are you agreed of your Verdict Jury Yes Cl. of Arr. Who shall say for you Jury Our Foreman 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 High-Treason 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 High-Treason committed or at any time since Foreman None to our Knowledge Jaylor 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 Tenements at the time of the High-Treason committed or at any time since to your Knowledge L. C. J. Holt. 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 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 Goal-Delivery of Newgate holden for the City of London and County of Middlesex may depart hence for this time and give their Attendanc here again to morrow Morning at Seven of the 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 Traytor together with Sir William Perkyns who was that day Tryed Convicted and Condemned and whose Tryal will be Published with all possible speed FINIS
aforesaid Divers Horses and very many Arms Guns Carbines Pistols Swords and other Weapons Ammunition and Warlike Things and Military Instruments Falsly Maliciously Secretly and Traiterously 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 What say'st thou Sir John Freind Art thou Guilty of this High-Treason whereof thou standest Indicted or Not Guilty Freind Not Guilty my Lord. Cl. of Arr. Culpritt How wilt thou be Tryed Freind By God and my Country Cl. of Arr. God send thee good Deliverance 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 delivered to the Prisoner who sent it away to the Crown-Office by his Sollicitor to get the Writ 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 do arise upon my Trial I may be heard by my Councel that you may not destroy me without Law L. C. Just Holt. 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 Councel 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 Lawyer but I hope as you are of Councel for the King as Judges of Law so you will be of Councel 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 my self to your Lordship's direction L. C. Just Holt. 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. Just Holt. Yes yes by all means And he had them Cl. of Arr. Cryer Make Proclamation 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 at the Bar who have been called and made Default answer to your Names and save your Issues Then the Defaulters were call'd over Cl. of Arr. You the Prisoner at the Bar these Men that you shall hear call'd 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 Cryer Call Thomas Clerk Freind Pray Sir How many may I challenge L. C. Just Holt. 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 numbring 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. Just Holt. 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 Fr. Pray Sir must not I see the Gentleman L. C. J. H. Yes yes by all means he was shewn to him Fr. 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. H. Swear Mr. Clark Cl. of Ar. Hold him the Book which was done look upon the Prisoner you shall well and truly Try and true deliverance make between our Soveraign Lord the King and Prisoner at the Barr whom you shall have in Charge according to your Evidence So help you God Cl. of Ar. Nathan Green Fr. I except against him Cl. of Ar. Thomas Emms. Fr. I accept him for a Juryman I have nothing to object against him he was Sworn Cl. of Ar. Francis Byer Fr. Pray let me see him he was shewn to him I do except against him I Challenge him Cl. of Ar. Benjamin Dry. Fr. I except against him Cl. of Ar. James Demew Fr. I accept him I have nothing to say against him I would have him to be a Juryman Mr Demew My Lord I am not a Freeholder L. C. J. H. Sir John Do you Challenge him peremptorily or do you Challenge him for Cause Fr. My Lord I don't Challenge him at all I accept of him Mr. At. Gen. If he have no Freehold we that are for the King will except against him for I would not have any body that is a Freeholder serve upon the Jury Cl. of Ar. Henry Hunter Fr. Pray my Lord is this Gentleman that was called before laid aside He is not one that Challenge L. C. J. H. No no he is Challenged by the Kings Council as no Freeholder Fr. 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. H. Care shall be taken of all that he is not to reckoned as one that you Challenged he is Challenged for want of Freehold by the King's Council Cl. of Ar. What say you to Mr. Hunter Fr. I accept of Mr Hunter let him be Swore which was done Cl. of Ar. John Cox Mr. Cox My Lord I have no Freehold in London Mr. At. Gen. Then let him be set aside Cl. of Ar. George Bodington Fr. I except against him Cl. of Ar. John Hedges Fr. I except against him Cl. of Ar. You Challenge him Sir do you Fr. Yes
question I am advised that Consultation to Levy War is no Treason without Rebellion and Insurrection and inviting Men to come from beyond Sea is no Treason unless a Foreign Prince be Invited to come with his own Subjects for English Scotch and Irish are not Enemies but Rebbels and to be dealt with otherwise therefore I leave it to your Lordships for I am no Lawyer only I am advised to insist upon these things Then the Statute of the 25th of Edw. 3. about Treasons was read throughout only about the middle the Prisoner made some interruption Friend I believe this Statute is not the Statute I go upon that which I mainly insist upon is the Statute of the third of King James the First Cap. 4. Mr. J. Rokeby This is the same Statute you are Indicted upon the great Statute for Treasons and as to your Objection you last mentioned what is Treason and what is not he is not yet come to that part Friend Well then let him go on with it It was read to the end L. C. J. Holt. Now it has been read is this the Statute you wou'd have Friend There must needs be a mistake as to the Chapter it is set down the 25th of Edw. the Third but there is no Chapter L. C. J. Holt. Yes this must be the Statute it relates to Treasons and it has those words in it that what you read out of your Papers relate to Well that we may go on in order of time what Statute of King James is it that you mention Friend It is the 3d of King James 1. Cap. 4. it is upon account of tendring the Oaths appointed to be taken by that Statute and reading out of a Paper to tell the Court that they ought to have the Oaths tendred them L. C. J. Holt. That is the business of another time read the Statute Cl. of Ar. An Act for the Discovering and Repressing of Popish Recusants what part is it Friend Truly my Lord I can't tell L. C. J. Holt. It is a long Statute but if he 'll have it read it must be read all Friend My Lord I would not give the Court any trouble but it is about having the Oaths tendred to them Cl. of Ar. I believe this is the Paragraph and for the better trial how his Majesty's Subjects stand affected in point of their Loyalty and due Obedience c. A great part of the Statute was read relating to that Matter L. C. J. Holt. What else would you have read Sir John Friend Friend I only gather from thence that no Roman Catholick is capable of Swearing against a Protestant because the Pope and the Priests can absolve them from their Oaths L. C. J. Holt. Well what have you more to say Friend My Lord I only speak this as to Roman Catholicks they do not regard an Oath against a Protestant because they have their Priests that can absolve them and therefore how such a Man's Oath can weigh any thing I cannot apprehend therefore if I have omitted any thing I hope your Lordship will supply it as you are my Council for you are a Council for me as well as the King L. C. J. Holt. Yes yes I wou'd help you in any thing I could Friend My Lord I thank you I desire you to help me for I am as innocent as the Child unborn whatsoever these Men have Sworn these are hard things that are laid upon a Gentleman and no Man is safe at this rate they being Sworn by two Papists who will Swear any thing against Protestants L. C. J. Holt. Look ye Sir John Friend have you any Witnesses to produce that these two Men have any displeasure or malice against you that they should accuse you falsly Friend My Lord I am sorry I have not my Witnesses I have been so kept up that I had not time for People to come to me I had not my Council come to me before Saturday L. C. J. Holt. How hapened that Friend My Lord there was a mistake in that I think it was Friday either Friday or Saturday I had them not 'till Friday in the Afternoon I was kept so close that none were permitted to come at me On Thursday I had an Order but there was a mistake in the Order and I desired to get another Order but I could not get any body to get another Order for me to have my Friends to go and enquire into things or else I should have found out enough Witnesses Mr. Attor Gen I am sure he had an Order for Council at the same time that notice was given him of his Tryal L. C. J. Holt When was that Mr. Attor Gen. On Tuesday my Lord. L. C. J. Holt. What say you to it Mr. Baker Mr. Baker My Lord I did attend Sir John Friend on Tuesday last to give him notice of his Trial as this day and I at the same time told him if he would name his Council to me I would procure an Order for them to come to him The next Morning he was pleased to name to me Sir Bartholow Shower I took the liberty to tell him that he being so concerned at the House of Lords and at the Committees about Parliamentary business some other Persons that had named him of their Council notwithstanding Orders were procured for him to go to them as their Council yet by that means they were disappointed of him and great delay was given to the Prisoners and therefore I desired him to consider of it and to send to Sir Bartholomew Shower and any other Council that he had a mind to and know their pleasures whether they would attend him and if he would send me word I would procure an Order for them But not hearing from him I went on Wednesday to him again and he said he had sent to Mr. Northy but he would not come to him 'till he had spoke with Sir Bartholomew Shower but he would send me word that Night yet he did not But the next day came Mr. Burleigh to me to the Duke of Shrewsbury's Office and brought me the Names of the Persons that he would have assigned him of Council and immediately I procured an Order for it and away he went with it This was upon the Thursday Mr. Welden and Mr. Cresset or one of them was named in the Order I am not possitive which and Mr. Vnderhill and Mr. Burleigh were to be admitted to him Mr. Burleigh had the Order if he did not carry it to him I can't help that L. C. J. Holt. When was that Order for the Council Mr. Barker It was upon Thursday my Lord. Friend My Lord may I speak L. C. J. Holt. Yes yes what you will Friend My Lord the Reason why I had not my Witnesses was this There was a Gentleman one Colonel Cash Lieutenant to my Lord Lucas he undertook to go and put in his Name and three more one John Neale and one Philips to have an Order to go about to
Prison Captain Blair has upon his Oath declared that he did not go so far as to say he did any thing against his Conscience but only Courtney bid him take care what he swore and prest him no further He pretends he came casually into Blair's Chamber but it is plain he intruded into his Room for it is sworn by the Jaylor and Blair himself that he had given directions none should come into his Room but his Wife so that does not discountenance the evidence of Blair at all and if you do believe what our Witnesses have said Captain Porter and Captain Blair then Sir John Friend is guilty of all the Crimes that are charged upon him in this Indictment and I hope you 'll be so just to your Prince to your Country and to your Selves as to find him guilty accordingly Mr. Cowper If your Lordship pleases to 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 meeted 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 The first part of it goes to discredit one of our Evidences Captain Blair from some discourse that he would object to have pass'd between him and the person here produced in the Prison of the Gate-house 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 pump'd 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 mans judgment to consider That a man when he is freshly taken upon such an occasion does not immediately confess his guilt to every body that meets him nay to persons that would not have lik'd 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 Hick s-hall to his examination and then he intrudes himself into Blair's Chamber when he lay very ill upon the Bed and 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 Hick's-hall 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 tho Captain Blair denys 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 Court and it is no more than what is natural since the Prisoner had been his friend and intimate and he 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 consists chiefly in this the Evidence brought to prove that the Kings Witnesses are reputed Roman Catholicks 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 thence 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 tho they should swear falsely Possibly that may be so for ought I know I confess I am not very well acquainted with the principles of that Religion but this I 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 's another matter the Prisoner has thought fit to insist upon he has brought two or three Clergy-men 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 swom uppermost his professions were made very causelessly for they all say nothing introduc'd 'em but of his own meer 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 alleged 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 joyn the late King upon his descent into this Kingdom with a French power in order to drive his Majesty out of the Kingdom and 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 take notice of another part of this defence which had been better let alone wherein he admits that he was present at the 2 meetings he is accused to have been at by Porter but he only differs in one point that there was nothing talk'd 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 Kings Witnesses to the contrary My Lord there is one thing more I would take notice of and that is the Evidence of Bertram 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 malice or otherwise to destroy the Prisoner for that Blair acquainted Bertram with and
discoursed him about the principal matters of fact that are now sworn at least 2 years ago and besides his Evidence and the Evidence 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 Friend 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 Kings death there are two principal Overt Acts that are mainly insisted upon The one is the consulting and agreeing with diverse others to send Mr. Charnock into France to King James to desire him to perswade 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 Prisoners 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 Friend was by that Commission to be Collonel and this was also 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 Friend 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 that he and Sir John Friend and others that he mentioned were at the Kings-head Tavern in Leadenhall-street and there they entered into a discourse about the Returning of the late K. 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 sollicit the French King to furnish him with 10000 men to be sent into England 8000 Foot 1000 Horse and 1000 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 joyn them with 2000 Horse every one of them was to furnish his quota to which Sir John Friend 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 Tryed and since Executed 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 meet with the company again and have a further discourse upon this matter to see whether they did persevere in the resolution they had so taken There was another meeting about a week or a fortnight after which was at Mr. Montjoy s a Tavern in St. James's-street where met Sir John Friend Captain Porter and divers others of the Company that were before at the Kings 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 formerly agreed and there it was again determined he should go to which he agreed and Captain Porter says that he did go about 2 or 3 days after Mr. Porter tells you further 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 met and spoke with him and askt 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 had occasion for his Forces that year to be otherwise imployed and therefore he could not furnish such a number of men that year and Mr. Porter askt 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 taken and what was the issue and effect of them The next Witness is Captain Blair and his Evidence goes to the other part that is to Sir John Friend s having a Commission from the late King James and engaging him and others to be in his Regiment whereof Sir John was to be Collonel and the providing of Officers And for that the Evidence stands thus Captain Blair tell ye that about two or three years ago he was with Sir John Friend at his Lodgings in Surrey-street and there he did produce a Commission that he had from King James to be Collonel of a Regiment of Horse he was to raise it himself and was to appoint and provide what Officers he thougt 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 further that Sir John Friend did promise that he should be Lieutenant Collonel of this Regiment and also desired that Captain Blair wou'd 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 Friend by Captain Blair to be his first Captain and one Collonel Slater who was much in favour with Sir John Friend was to have been another Lieutenant Collonel for said Sir John Friend I have a mind to him to be my Lieutenant Collonel and tho you are so too yet it is no matter if we have two in this Regiment at which Captain Blair took very great offence and exprest as much to Sir John Friend whereupon Sir John Friend 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 Independant Troop that shall be composed of Non-swearing Parsons and that shall satisfy him And Sir John Freind did intrust Capt. Blair with the providing of Men and managing of them And Capt. Blair tells you he was at a great deal of charge and laid out diverse Summs to caress them and keep them together and wanting Money to proceed in that Affair he came to Sir J. Freind and made great Complaints that he wanted Money to carry on the Design by obliging the Men to keep