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 king dom; and should raise a sufficient number men to facilitate the landing of the French and the indictment particularly charges th prisoner at the bar with sending Mr. Charnoc into France, to the late king James, to acquain him with the design, and to desire him to pro The names of the Jury were these: Thomas cure a great number of forces from the Frenc Clark, Thomas Emms, Henry Hunter, Thoking, to come here, and land within this king mas Poole, Peter Parker, Samuel Jackson, dom: and the indictment does likewise charg Nathaniel Long, George Child, William Wal-him with procuring and receiving a commis ker, John Sherbrook, William Prince, and Joseph Morewood. Cl. of Ar. Cryer, make proclamation. Cryer. Oyez. If any one can inform my 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, mulatis 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. sion from the late king James, to constitu 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 unde him, which were to be in his regiment; an with laying out several sums of money in buy ing arms and horses for this invasion and re bellion that was thus designed to be made, an raised within this kingdom. To this, gentle men, he has pleaded not guilty: we shall cal our witnesses and prove the fact, and we d 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. Mr. Montague. May it please your lordship, and you gentlemen of the jury: this is an indictment of high-treason, that is brought Gentlemen, you will see by the evidence that against sir John Freind, the prisoner at the bar, there has been a design and conspiracy on foot for associating with, and aiding the king's ene- for several years to assassinate the king's permies, with a design to procure an invasion from son, and to have an invasion from France at France, and to raise a rebellion within this that time, by armed force here to subdue this kingdom; and this was to depose the king, kingdom. The prisoner at the bar, sir John and to restore the late king James; and in Freind, I think about two years ago had a comorder to the effecting these his wicked pur- mission sent him from the late king James, poses, the indictment sets forth, That the 1st to raise a regiment of horse: there was several of July last, he did meet, and consult, and other commissions sent likewise, but one was agree with one Mr. Charnock (a gentleman sent to the prisoner, which he accepted of; and since tried, convicted and attainted of high-in pursuance of it, be appointed several offitreason), how they should procure an army cers, 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. Gentlemen, you will bear that his lieutenant colonel was to be one Blaire, and his major was Mr. Charnock accordingly went over into to be one Slater; and this Slater's father was a France, and about a month after returned elergyman, and he undertook to bring in a again, and acquainted them that he had told troop of clergymen that had refused to take king James their resolution, and how they the oaths. One of his captains was one Evans; would assist him, and what they desired of one Richardson was another; and there were him; and, in short, had delivered his message: several other officers whom you will hear but what king James told him, he thanked Baned by the witnesses, that were appointed, them very much for their kindness and readian engaged to make up the regiment. ness to assist him; but at that time the French Gentlemen, you will hear further by the wit-king could not spare any forces, nor could it be Deses, that about May or June last, they have all that summer, and so there was nothing to rused a considerable number of men, there be done; and thereupon it rested till the last were several meetings had between the prisoner winter. 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 Jan Fenwick, sir William Perkins, Mr. Char(who was lately condemned and executed for the design of murdering the king,) Mr. Forter, and one Cook. At that meeting you will hear what their debates were, and what thar resolutions: after several debates, who they should send, they resolved to send Mr. Charnock, to go into France, to desire the late kng James to get 10,000 men of the French traps to land upon our coasts, about 8,000 foot, and the rest horse and dragoons; and they did power him in their names to assure the late King James, that they would, whenever he boded with his French troops, be ready to asem with near two thousand horse among Upon this, gentlemen, Mr. Charnock underto go upon this message: about a week or they met again, for he was unwilling to such an errand, without having a full n and assurance from these gentlemen were thus engaged, that he might satisfy te king what they would certainly do. ey met again about a week after, and that ata tavern in St. James's-street, near sir Fenwick's lodgings, one Mrs. Montjoy's; was the prisoner at the bar, my lord of bury, and most of the same company that at the meeting before: and Mr. Charnock red to know, if they did agree to what had proposed and resolved on before; for he wling, and did not care to go without assurance of the performance. They did , and desired that he would go with ali ad that he should assure king James, would be ready to meet him, if they had where he would land. Pay, gentlemen, observe the time when neelings were. It was in May or June en after the king was gone to Flanders; ey thought this a fit opportunity, when g's forces were drawn out of England Faders, for carrying on the campaign; 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 ce over from the late king, being a lieutena 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 he 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 20l. 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 300l. 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 100l. 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 207. 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 201. 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 have 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. 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 you right or no? Freind. My lord, I would not trouble the court if I could help it, but my life and all is a 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 t have this question answered you. be Freind. Mr. Porter, you are a gentleman, and I desire you will answer, Whether you 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 dont you that can be; but in the first place, if a man be a Roman Catholic, notwithstanding hi 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 parhamnent 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 bot 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 bim to punishment, either by statute or by common-law, whether he be guilty of a petty farceny, 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 at 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 wdl voluntarily answer it of himself, I think it cannot be demanded of him: for he may subjeet 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 beginning 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, be would be as ready as any man, whenever the king came; and I have heard from capt. Charnock, and from sir Wil C liam Perkyns, that he had a commission to be a colonel of horse. Att. Gen. Pray, Sir, upon that second meeting, who were present? Porter. I told you, Sir, the prisoner at the bar was present at both meetings. Sol. Gen. Who else were there? Porter. My lord of Ailesbury, sir William Perkyns, capt. Charnock, and I cannot tell whether my lord Montgomery and Mr. Goodman were there; Mr. Cook and myself were there; but the prisoner at the bar I am sure was there. Sol. Gen. Pray, capt. Porter, will you remember and recollect yourself, who were at the first meeting? Porter. I have named them already, Sir. Porter. My lord of Ailesbury, my lord Montgomery, sir John Freind, sir William Perkyns, sir John Fenwick, capt. Charnock, Mr. Cook, and myself; we dined there, and after dinner Mr. Goodman came in. Att. Gen. Pray, Sir, when did you see Mr. Charnock after this, and what discourse had you with him about his journey, and the success of it? Porter. I never saw him till 3 or 4 days after our riot business in Drury-lane, upon the account of which I had been a prisoner in Newgate. · Alt. Gen. Well, and what did he say to you? Porter. He told me that he had been in France, but that king James told him, the French king could not spare so many men that year; and withal, that he had been with sir John Freind, and the several other persons, with messages from the king; but I do not know whether he had been there or no, only as he told me, that he had been, and brought that answer. Att. Gen. Pray now tell us, what other meetings you have had about this matter this winter? Porter. I was once with sir George Barcley and sir John Freind, at the Nag's-head in St. James's-street; I cannot tell what discourse they had; they whispered among themselves. Att. Gen. Who else was there? Porter. There was sir George Barcley, sir William Perkyns, myself, Mr. Ferguson, and one Humes. L. C. J. Where was that, do you say? Porter. At the Nag's-head in St. James'sstreet. Att. Gen. Was there any body else there that you can remember? Porter. Capt. Charnock came in after dinner, but I cannot say he dined there. Att. Gen. And who else do you remember? Porter. There came in one Harrison after dinner; he is a reputed Romish priest, and goes by the name of Johnson. Mr. Mountague. Pray, capt. Porter, what was that meeting for? Porter. They had several whisperings among themselves, but what they discoursed of I cannot tell. Mr. Mountague. Pray, did sir John Freind say any thing that you heard at that meeting? Porter. Sir George Barcley did say, that some people that were not so violent had written over into France to stop this business; upon which, said I, I hope you will have no letter to-night. Upon which sir John Freind said, is there any thing that is hid behind the curtain? If there be, I am not fairly dealt withal; I will proceed no further. Att. Gen. If sir John Freind has a mind to ask him any questions, he may. L. C. J. Pray, capt. Porter, let me ask you this question, Did all that were present at the first meeting, at the King's-head in Leadenhall-street, agree to send Mr. Charnock into France to the late king? Porter. Yes, my lord. L. C. J. All of them? Porter. Yes; we desired captain Charnock to answer to the king for us that we would meet him at the head of 2,000 horse. L. C. J. Did sir John Freind agree to it? Porter. Yes, I do positively affirm he did. L. C. J. Then the second meeting, which, you say, was at Mrs. Mountjoy's, what was said then? Porter. We did agree all, That capt. Charnock should go on with the message that was resolved upon at the first meeting, and we would go on with the business; and he said he would go away in two or three days. Att. Gen. Will sir John Freind ask him any questions? Freind. I will only ask him, if they have done, whether he has any thing more to say? Porter. No, Sir. L. C. J. The king's counsel have done with him. | Freind. Then, my lord, I will hear all they can say, and when I have heard the whole evidence, I shall know how to answer to it. L. C. J. Before you go, captain Porter, would ask you, what answer Mr. Charnock brought back from France? Porter. I say, I did not meet with captain Charnock, until after I came out of Newgate for the riot business; and then he told me, he had been there, and he had acquainted the several gentlemen with the messages he ha brought from king James, who thanked then for their kindnesses; but the French king could not spare so many men that year. Sol. Gen. Then the next that we call i Brice Blair (Who was sworn.) Pray, Sir, d you know the prisoner at the bar, sir Joh Freind? Capt. Blair. Yes, my lord; and I am ver sorry to come on such an account as I do no against him. I am sorry for it with all m heart Att. Gen. Well, Sir, pray will you give a account what you know of sir John Freind having a commission from the late king to t a colonel of horse, and when it was, and how |