" they join in their prayers for the present government or no; his conscience that scruples the taking the oaths, might scruple that too; but whether sir John Freind's being a Protestant, and his declaring he would never be in 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. numbers with force to make some reformation of their own heads, without pursuing the methods of the law, that is a levying of war, and trea son, but the purposing and designing it is not so. But if there be, as I told you, a purpose and design to destroy the king, and to depose him from his throne, or to restrain him, or bave any power over him, which is proposed or designed to be effected by war that is to be levied, such a conspiracy and consultation to levy war, for the bringing this to pass, is an overt act of high-treason. So that, Gentlemen, as to that objection, that he makes in point of 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.* 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. No, no, you cannot have it by law. Juryman. May it not be left with the foreman, my lord? Then there is another thing that he did inast upon, and that is matter of law. The matute of the 25th Ed. 3, was read, which is the great statute about treasons; and that does Gentlemen, the evidence you have heard contain divers species of treason, and declares what it is, you may consider the weight of it, what shall be treason. One treason is the and the circumstances that do attend it; and compassing and imagining the death of the likewise the answers that have been given by king; another is the levying of war: Now, the prisoner to invalidate that evidence, and to says he, here is no war actually levied; and a prove the improbability of what they have tesbare conspiracy or design to levy war does not tified against him. You have heard, I say, come within this law against treason. Now the evidence on the one side, and on the other : for that, I must tell you, if there be only a If you are not satisfied, that what the witnesses conspiracy to levy war, it is not treason: but have sworn is true, that sir John Freind did if the design and conspiracy be either to kill the engage in such a design for such a purpose, king, or to depose him, or imprison him, or put then you are to acquit him; but on the other any force or restraint upon him, and the way side, if you believe that sir John Freind is and method of effecting of these, is by levy-guilty of what the witnesses have deposed ing a war, there the consultation, and the Conspiracy to levy a war for that purpose, is high-treason, though no war be levied: For such consultation and conspiracy is an overtact proving the compassing the death of the king, which is the first treason mentioned in the statute of the 25th of Ed. 3. For the words of that statute are; That if any man shall compass or imagine the death of the king. Now because a man designs the death, deposition or destruction of the king, and to that design, agrees and consults to levy war, that this should not be high-treason, if a war be not actually levied, is a very strange doctrine, and the contrary has always been held to be law. There may be a war levied without any design upon the king's person, or endangering of it; which, if actually levied is high-treabut a bare designing to levy war, without more, will not be treason. As for example; if persons do assemble themselves, and act with force in opposition to some law, which they think inconvenient, and hope thereby to get it repealed; this is levying a war and treason, though purposing and designing it is not so: So when they endeavour in great von; Rising with force to pull down all inclosures, to expel strangers, to pull down bawdy houses, is levying of war, and treason: but a bare purposing and designing to raise such a force, for such a purpose, is not treason." Note to former Edition. As to this, see the case of Peter Messenger and others in this Collection, vol. 6, p. 879, and the cases there referred to, together with Mr. Luders's observations thereon. L. C. J. No; but you may look upon it in court before you go away, if you will. and one of them handed it to the prisoner. Then the Letter was handed to the Jury, L. C. J. Why do you do so? You should not give the prisoner the letter. Juryman. It was done to see whether it was his hand; and we desire, if there be any body here that knows his hand writing, or that saw him write it, may be produced. L. C. J. Why? Did not he own the letter to the witness afterwards? It was sworn to you he did; and that he met according to the appointment in the letter, and that money was paid. Then the Jury withdrew to consider of their * As to this matter, see East's Pleas of the Crown, chap. 2, sect. 9, and the Stat. 36 G. 3, c. 7, s. 36. The doctrine of constructive Treason is much agitated in numerous cases in this Work. See, in particular, the Case of lord Russell, vol. 9, p. 577, and the discussions to which it gave rise, vol. 9, p. 695, et seq.; the Case of lord George Gordon, a. D. 1780, and those of Hardy and Horne Tooke, A. D. 1794. See, also, Mr. Luders's Considerations on the Law of High Treason in the article of Levying War. verdict, and an officer was sworn to keep them according to law, till agreed; and about a quarter of an hour afterwards they returned into court, and the prisoner was brought to the bar. Clerk of Arr. Gentlemen, answer to your 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 shail say for you ? Cl. of Arr. Sir John Freind, hold up thy hand, (which he did). Look upon the prisoner: how say ye, is he Guilty of the hightreason whereof he stands indicted, or Not Guilty?-Foreman. Guilty, my lord. Cl. of Arr. What goods or chattels, lands or tenements bad he at the time of the hightreason committed, or at any time since? Foreman. None, to our knowledge. L. C. J. Jailor, look to him, he is found guilty of high-treason. Cl. of Arr. Then hearken to your verdict as the court has recorded it. You say that sir | John Freind is guilty of the high-treason whereof he stands indicted, but that he had no goods, nor chattels, lands nor tenements, at the time of the high-treason committed, or at any time since, to your knowledge. L. C. J. Discharge the jury. Cl. of Arr. Gentlemen, the court discharges you, and thanks you for your service. L. C. J. Then we had best to adjourn the court till to-morrow morning. Cl. of Arr. Cryer, make proclamation. Cryer. Oyez, oyez, oyez! All manner of persons that have any thing more to do, at this general Sessions of the Peace, Sessions of Oyer and Terminer, holden for the city of London; and Gaol-delivery of Newgate, holden for the city of London and county of Middlesex, may depart hence for this time, and give their attendance here again to morrow morning at seven o'clock; and God save the King. Then the prisoner was carried back to Newgate, and was brought the next day to the bar to offer what he had to say for stay of judg ment; and afterwards received sentence of death as a traitor. 985. The Trial of Sir WILLIAM PARKYNS, knt. at the Old-Bailey, for High Treason: 8 WILLIAM III. A. D. 1696.* Tuesday, March 24, 1696. Then the Jury that were returned in the pannel were all called over, and the appearances THIS day the Trial of Sir William Parkyns, of those who answered to the call were reknt. came on at the Sessions-House, Old-corded. Bailey, for High-Treason. Cl. of the Ar. Cryer, make Proclamation. Cryer. O yes, O yes, O yes. All manner of persons that have any thing more to do at this general sessions of the peace, sessions of Oyer and Terminer, holden for the City of London; and Gaol-delivery of Newgate holden for the City of London and county of Middlesex, and were adjourned over to this day, draw near, and give your attendance, for now they will proceed to the Pleas of the Crown for the same city and county and God save the King. Cl. of Ar. Middlesex. Cryer, make pro clamation. Cryer. O yes, You good men of the county of Middlesex, summoned to appear here this day, to try between our sovereign Lord the king, and the prisoner that shall be at the bar, answer to your names as you shall be called, every man at the first call, upon pain and peril shail fall thereupon. * See East's Pleas of the Crown, chap. 2, sect. 8, 9, and the authorities there cited. See too, in this Collection, the cases of sir Henry Vane, vol. 6, p. 119, of Messenger and others, vol.6, p. 879; of Whitebread and others, vol. 7, p. 311; of Dammaree and others, A. D. 1710, and of Deacon, A. D. 1746. About ten of the clock the Judges, (to wit,) the Lord Chief Justice Holt, the Lord Chief Justice Treby, and Mr. Justice Rokeby, came into the court. bar. Cl. of Ar. Set sir William Parkyns to the (Which was done.) Sir Willian Parkyns, hold up thy hand. Parkyns. My lord, if you please, I humbly beg the favour of one word before I am arraigned. My wife coming to see me in my distress, sent up a trunk of linen for our use, and the sheriffs of London have seized it, and do detain it. It has linen in it, and all her necessary things, and all things have been torn from me, since I was apprehended, but what is there; I have nothing to subsist upon but what is there; for no money can I get from any body, nobody will pay us a farthing. Mr. Sheriff Buckingham. My lord, we were sent for to Mr. Secretary Trumball's office, and when we came there, there was a trunk that had been seized, as belonging to sir William Parkyns; and when we came thither it was opened, and there was in it some houshold linen, and some plate, and Mr. Secretary Trumball was pleased, after having searched the trunk, to seal it up, and deliver it to my brother and me, to be kept; and this is all we know of it. L. C. J. Holt. seized? Where was this trunk | Sh. Buckingham. We found it in the secretary's office, and it was delivered to us there, and we gave a receipt for it to bring it down again when called for; we did not seize it. L. C. J. Look ye, sir William Parkyns, your trunk was seized, I suppose, in order to search for papers. Parkyns. Yes, I believe it was; but I hope it shall be delivered back now they have found nothing in it, and I have nothing else to subsist upon but what is there. L. C. J. Is there any plate there? What is there in the trunk? Sh. Buckingham. There is some diaper and damask linen, a carpet and some pieces of plate, two or three hundred ounces of plate, for ought I know. We had it from the Secretary's office; we did not seize it. [Then the Judges consulted among themselves.] LC. J. He ought to have his plate to sell, to support him that he may have bread. Parkyns. Will your lordship please to direct the sheriff to deliver it back? L. C. J. Well, some care or other shall be taken in it. Purkyns. My lord, I have nothing to subsist upon, unless I can make something of what is there: I have a wife and four children, and nothing to subsist upon. L.C. J. Let your wife make application for it at the Secretary's, it cannot now be done here. Why did you not make complaint of it before? If you had, care had been taken in it. Parkyns. I was told there was a petition; for, my lord, I was a close prisoner, and they told me there was a petition; but my wife Bever mentioned any thing of it to me till afterwards; and they talked of an order of council that they had for the sheriff's seizing it; but when I came to enquire into it, there was no order about it, but only to search and examine it. L. C. J. Well, some order shall be taken about it. Sh. Buckingham. My lord, we have given a receipt to the Secretary for it. L. C. J. But he must have wherewithal to subsist and buy him bread while he is in prison. Sh. Buckingham. My lord, I see Mr. Burleigh there, who was sir John Freind's solicitor; I would humbly move your lordship that it may be inquired into, how he came by the pannel of the jury yesterday? For it seems to reflect upon us, as if we had given the prisoner a wrong pannel. Just. Rokeby. No, I think there can be no reflection upon you; but I think it would be Tery proper to have the matter examined. L.C.J. Ay, let Burleigh come in. [Which he did.] Pray, how cause you by the pannel which you gave to sir John Freind? Burleigh. My lord, I had three several coVOL. XIII. pies sent me by sir John Freind's friends, to the Horn tavern about three or four o'clock, and delivered one of them to sir John Freind; but he had one before I delivered mine. L. C. J. Who sent them to you, or brought them to you? Burleigh. I had them brought to me by a porter. Mr. Baker. You know you might have had it from the proper officer, for asking. Burl. I had them brought me from Sir John Freind's friends. L. C. J. Can you tell who had it from the sheriff? Burl. My lord, I know not: I had three copies sent me in a quarter of an hour's time; whence they came, I know not; the sheriff knows me, and every body else. Sh. Buck. I do know you, and would have you be fair in your practice. false copy is put upon him; you might have Baker. The inquiry is made, because a had a true copy if you had applied yourself right. Buri. I sent to Mr. Farringdon for it. L. C. J. The sheriff delivered it the secondary, who is the proper officer. Just. Rokeby. Sir John Freind said he had it from him yesterday. Burl. But he had one before; how he came by it, I can't tell; nor whence those came that were brought me in. Just. Rokeby. If you will not take care to go to the right place, it is nobody's fault but your own, if you suffer by it. a Burl. I was with my lady, and delivered petition for this trunk. L. C. J. But it seems it was under the conuzance of the secretary, and direction was given to go thither: some care or other must be taken in it, and shall; but go on now to arraign the prisoner. Cl. of Arr. Hold up thy hand. (Which he did.) Thou standest indicted in Middlesex by the name of sir William Parkyns, late of the parish of St. Paul Covent Garden, in the county of Middlesex, kt. For that, Whereas an open, and notoriously public and most sharp and cruel war, for a long time hath been, and yet is, by sea and by land, had, carried on, and prosecuted by Lewis the French king, against the most serene, most illustrious, and most excellent prince, our sovereign lord William the 3d, by the grace of God, of Eagland, Scotland, France, and Ireland, king, defender of the faith, &e. During all which time, the said Lewis the French king and his subjects were, and yet are enemies of our said lord the king that now is, and his subjects, You the said sir William Parkyns, a subject of our said sovereign lord the king that now is of this kingdom of England, well knowing the premises, not having the fear of God in your heart, nor weighing the duty of your allegiance, but being moved and seduced by the instigation of the devil, as a false traitor against the said F to the jurors unknown did meet, propose, treat, consult, consent, and agree, to procure, from the aforesaid Lewis the French king, of his subjects, forces, and soldiers, then and yet enemies of our said lord the king that now is, great numbers of soldiers and armed men, this kingdom of England to invade and tight with, and to levy, procure and prepare great numbers of armed men and troops, and legions against our said sovereign lord the king that now is, to rise up and be formed; and with those enemies at and upon such their invasion and entrance into this kingdom of England, to join and unite; re most serene, most clement, and most excellent prince, our said sovereign lord William the Sd, now king of England, &c. your supreme, true, natural, rightful, lawful, and undoubted sovereign lord; the cordial love, and true and due obedience, fidelity and allegiance, which every subject of our said lord the king that now is, towards him our said lord the king, should bear, and of right ought to bear, withdrawing, and utterly to extinguish, intending and contriving, and with all your strength purposing, designing and endeavouring the government of this kingdom of England, under him our said lord the king that now is, of right, duly, hap-bellion and war against him our said sovereign pily and very well established, altogether to lord the king, within this kingdom of England, subvert, change, and alter; as also the same to make, levy, and wage; and the same our our sovereign lord the king to death and final sovereign lord the king so as aforesaid to dedestruction to put and bring; and his faithful pose, and him to kill and murder. And fursubjects, and the freemen of this kingdom of ther, with the said false traitors, the same first England, into intolerable and most miserable day of July, in the year abovesaid, at the parish slavery, to the aforesaid French king, to sub- aforesaid, in the county aforesaid, traitorously due and bring; the first day of July, in the you did consult, consent, and agree to send 7th year of the reign of our said sovereign lord the aforesaid Robert Charnock as a mesthe king that now is, and divers other days and senger from you the said sir Wm. Parkyns, times, as well before as after, at the parish of and the same other traitors unknown, as far St. Paul Covent-Garden aforesaid, in the as, and into the kingdom of France, in parts county aforesaid, falsely, maliciously, de- beyond the seas, to James the 2d, late king vilishly and traitorously did compass, imagine, of England, to propose to him, and desire contrive, purpose, design and intend our said of him to obtain of the aforesaid French king, sovereign lord the king that now is, then your the soldiers and armed men aforesaid, for the supreme, true, natural, rightful, and lawful invasion aforesaid to be made; and intelligence sovereign lord, of and from the regal state, and notice of such their traitorous intentions, title, honour, power, crown, command, and and adhesions, and all the premises to the said government of this kingdom of England, to late king James, and the said other enemies depose, cast down, and utterly to deprive; and their adherents, to give and exhibit; and and the same our sovereign lord the king, to them to inform of the said things, particulars, kill, slay, and murder; and the aforesaid Lewis and circumstances thereunto relating; as also the French king, by his armies, soldiers, intelligence from them of the late intended inlegions, and subjects, this kingdom of Eng-vasion, and other things and circumstances land to invade, fight with, conquer, and subdue, to move, stir up, procure and aid; and a miserable slaughter among the faithful subjects of our said lord the king, throughout all this whole kingdom of England, to make and cause; and that you the said sir William Parkyns, to the aforesaid enemies of our said lord the king that now is, then and there, during the war aforesaid, traitorously were adhering and aiding; and the same most abominable, wicked and devilish treasons, and traiterous compassings, contrivances, intentions, and purposes of yours aforesaid, to fulfil, perfect and bring to effect; and in prosecution, performance, and execution of the traiterous adhesion aforesaid, you the said sir William Parkyns, as such a false traitor, during the war aforesaid, to wit, the same 1st day of June, in the year abovesaid, at the parish aforesaid, in the county aforesaid, and divers other days and times, as well before as after, there and elsewhere in the same county, falsely, maliciously, advisedly, secretly, and traiterously, and with force and arins, with one Robert Charnock, (late of High-Treason, in contriving and conspiring the death of our said sovereign lord the king that now is, duly convicted and attainted) and with divers other false traitors, concerning the premises to receive, and them to you the said sir William Parkyns, and the said other traitors in this kingdom of England, to signify, report and declare, in assistance, animation, and aid of the said enemies of our said sovereign lord the king that now is, in the war aforesaid: and to stir up and procure those enemies the more readily and boldly this kingdom of England to invade, the treasons and traitorous contrivances, compassings, imaginations and purposes of you the said sir William Parkyns aforesaid to perfect and fulfil, and all the premises the sooner to execute, manage and perform, and the invasion aforesaid to ren der and make the more easy, you the said sir William Parkyns afterwards, to wit, the 10th day of February, in the year abovesaid, at the parish aforesaid, in the county aforesaid, and divers other days and times, as well before as after, there and elsewhere in the same county, falsely, maliciously, advisedly, secretly, traitorously and with force and arms, with the aforesaid Robert Charnock, and very many other false traitors to the jurors unknown, did meet, propose, treat, consult, consent and agree, him our said sovereign lord the king that now is, by lying in wait and deceit, to assassi nate, kill and murder; and that execrable, . dom then expected to be shortly made, themselves, together with you the said sir William Parkyns, to join and unite, and into troops and legions to form, you did levy, list, and retain, and did procure to be levied, listed and retained; and those soldiers and men for the treasons, intentions and purposes aforesaid, then and there, and afterwards in readiness you had, 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. How sayest thou, sir William Parkyns, Art thou Guilty of this high treason whereof thou standest indicted, or Not Guilty? abominable and detestable assassination and killing the sooner to execute and perpetrate, afterwards, to wit, the same day and year, there traitorously you did treat, propose and consult with those traitors, of the ways, methods, and means, and the time and place where, when, which way, and how our said sovereign lord the king, so by lying in wait, the sooner might be killed and slain; and did consent, agree and assent with the same traitors, that forty horsemen or thereabouts of those traitors, and others by them and you the said sir William Parkyns to be hired, procured and paid, with guns, carbines and pistols with gunpowder and leaden-bullets charged, and with swords, rapiers and other weapons armed, should lie in wait and be in ambush our said lord the king in his coach being when he should go abroad, to attack; and that a certain and competent number of those men so armed, should set upon the guards of our said lord the king then and there attending him, and being with him, and should over-power and fight with them, whilst others of the same men so armed him our said lord the king should kill, slay, and murder; and that you the said sir William Parkyns, then and there did take upon you to provide five horses for those men which should so kill and murder our said sovereign lord the king; and also that you the said sir William Parkyns, your treasons, and all your traiterous intentions, designs | and contrivances aforesaid to execute, perpetrate, fulfil and bring to effect, afterwards, to wit, the day and year last abovesaid, at the parish aforesaid, in the county aforesaid, divers horses, and very many arms, guns, carbines, rapiers and swords, and other weapons, ammunition and warlike things, and military instruments, falsely, maliciously secretly, and traiterously did,obtain, buy, gather, and procure; and to be bought, obtained, gathered, and procured did cause, and in your custody had and detained, with that intention them in and about the detestable abominable and execrable assassination, killing, and murder of our said lord the king, and the invasion aforesaid, as aforesaid, to use, employ and bestow; and also your treasons and all your traitorous intentions, purposes, and contrivances aforesaid to exécute, perpetrate, fulfil and fully bring to effect, you the said sir William Parkyns, afterwards, to wit, the day and year last abovesaid, at the parish aforesaid, in the county aforesaid, falsely, maliciously, advisedly, secretly and traitorously, divers soldiers and men armed, and ready to be armed, after the said detestable, abominable and execrable assassination, killing, and murder of our said sovereign lord the king so as aforesaid should be done perpetrated and committed, to rise and muster, and war and rebellion within this kingdom of England to make and wage, and L. C. J. When had he notice of his trial? with the enemies of our said lord the king, Mr. Baker. On Wednesday I told him, that foreigners and strangers, subjects and soldiers he must expect to be tried this day, and withal, of the said Lewis the French king, being about that if he would name me any counsel that he to invade this kingdom of England, at and would have come to him, he should have an upon their invasion and entrance into this king-order next morning for them. Purkyns. Not Guilty. Cl. of Ar. Culprit, how wilt thou be tryed? Cl. of Ar. God send thee good deliverance. Parkyns. My lord, If your lordship pleases to favour me with a word or two. L. C. J. Aye, what say you, sir? Parkyns. My lord, I have been kept in hard prison ever since I was committed, nobody has been suffered to come to me till Friday last, then my counsel came to me; and being charged with many facts as I see in this indictment, it will be necessary to have divers witnesses to clear myself of these particulars; they are dispersed up and down, and I have had no time to look after them, and therefore 1 beg your lordship to put off my trial till another day. L. C. J. When had you first notice of your trial? Parkyns. The first notice of my trial was on Wednesday last, in the afternoon. L. C. J. That is a sufficient time of notice; sure you might have provided your witnesses, and prepared for it by this time. Parkyns. But, my lord, being kept so close prisoner, I had no opportunity for it; for it was not possible for me to get any body to come to me till Friday noon, not so much as my counsel, and then there was but two days, Saturday and Monday, (Sunday is no day for any business) and it is impossible for me to be ready in the manner that I ought to be. It is a perfect distress and hardship upon me, to be put so soon upon my trial without my witnesses, and what should enable me to make my defence; therefore I humbly intreat your lordship to put it off till another day. L. C. J. What witness do you want, sir William? Parkyns. I have divers witnesses, my lord, that can give an account where I was from time to time; but they are many of them out of town, and I have sent about every way, but cannot get them together in so short a time. |