gentlemen that served upon the jury yester- L. C. J. (Parker.) You have a right to chal- Mr. Darnell. My lord, I take it, the prisoner's intent by this motion, is to save the time of the Court. He does not intend to make any challenges, but to the jury of yesterday, whom he conceives, in some measure, to have declared their opinions upon the fact already; and therefore desires the clerk may pass over their names as they stand upon the pannel. L. C. J. Let it be so. Cl. of Arr. Thomas Nicholls, esq.-(Who appeared. Cl. of Arr. Hold Mr. Nicholls the book. You shall well and truly try, and true deliverance make between our sovereign lady the queen, and the prisoner at the bar whom you shall have in charge, and a true verdict give according to your evidence. So help you God. Cl. of Arr. Joseph Spencer.-(He appeared, and was sworn.) In like manner the other ten gentlemen appeared, and were sworn, whose names follow: JURY. Thomas Nicholls, esq. William Breakspear, Cl. of Arr. Cryer, count these.-Thomas Nicholls. Cryer. One, (and so of the rest.) Cl. of Arr. Daniel Browne. Cryer. Twelve good men and true, stand together, and hear your evidence.-Are you all sworn, gentlemen? Cl. of Arr. Cryer, make proclamation. Cryer. O Yes! If any one can inform my lords the queen's justices, the queen's serjeant, the queen's attorney-general, or this inquest now to be taken, of the high treason of which 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 Middlesex that have appeared and are not sworn, may depart the Court for this time, and give their attendance here again to-morrow morning. Cl. of Arr. Francis Willis, hold up thy hand. (Which he did.) Gentlemen of the jury, look upon the prisoner, and hearken to He stands indicted by the name of Francis Willis, late of the parish of St. Andrew, Holborn, in the county of Middlesex, his cause. Trial of Francis Willis, [616 labourer, for that he not having the fear of seduced by the instigation of the devil, &c. God before his eyes, but being moved and (prout in the indictment, mutatis mutandis), against the peace of our sovereign lady the queen, her crown and dignity, and against the form of the statute in that case made and arraigned, and thereunto hath pleaded Not provided. Upon this indictment he has been Guilty, and for his trial hath put himself upon God and his country, which country you are. he be guilty of the high-treason whereof he Your charge is to enquire, whether stands indicted, in manner and form as be stands indicted, or Not Guilty. If you find him Guilty, you are to enquire what goods the time of the bigh-treason committed, or at and chattels, lands and tenements, he had at Guilty, you are to enquire whether he fled any time sithence. If you find him Not for it: if you find that he fled for it, you are to enquire of his goods and chattels, lands and tenements, as if you had found him Guilty. If you find him Not Guilty, nor that he fled for it, you are to say so, and no more, and hear your evidence. and you gentlemen of the jury, Francis Willis, Mr. Thompson. May it please your lordship, the prisoner at the bar, stands indicted, for that he, not having the fear of God before his eyes, but being moved by the instigation of the devil, and designing to withdraw the cordial love and natural obedience, which true and faithful subjects of our sovereign lady the queen do and ought to bear towards her, and intending to dis turb the peace and common tranquillity of this rish of St. Andrew, Holborn, in the county of kingdom, on the first of March last, in the paMiddlesex, traitorously compassed and imagined to levy war, and stir up rebellion and inin this kingdom: and that he might accomsurrection against our said lady the queen withplish his said traitorous imaginations and designs, on the said first of March, and in the said great number of people, armed and arrayed in parish being assembled, with a multitude and lawfully and traitorously levy war against our a warlike manner, he did then and there unsaid lady the queen, contrary to the duty of his allegiance, against the peace of our said lady the queen, her crown and dignity.-To this Indictment he has pleaded Not Guilty.-Genand if they prove the charge, as laid in the tlemen, we shall call the evidence for the queen, Indictment, we doubt not but you will find him Guilty. T stands charged by this indictment for being one Att. Gen. My lord, the prisoner at the bar of those wicked rebellious persons, that had so little concern for her majesty, and his fellowhe assembled with a great number of other sesubjects, that upon the first day of March last, ditious and rebellious persons, to the disturbjects. It is surprising to consider, that under ance of the peace of the queen, and her subthe reign of a prince, so good as her majesty, any should be found so wicked as to be liable 3 to be charged with such a crime as this: when the courts are open and free, to punish any that offend against the laws of the land, that it should be thought necessary for such a number of people to get together, to do what is the duty of the magistrate, and for them to take upon them to punish offenders: but we know there are some that would bring all things into confusion, and the way to do it, is to proceed in this manner. It is not difficult, indeed, to know what the designs of these people were; you will hear it was pretended to be a design to pult down the meeting-houses, that is, the houses of those people that are unhappy enough to dissent from the Church. We shall shew that this was a design formed before, and resolved to be executed the first of March: that it was resolved by a great number of people met at the Temple, that the night following they would destroy the meeting-houses thereabout: that in execution of this design, there were, in several parts of this county, great numbers got together, and that they did make assaults on divers of her majesty's subjects, and did pull down many meeting-houses, gut them, as they call it, and bring the materials to their fires, and there destroy them. We shall shew that this man was not only at one, but at several of these bonfires; that he was there not as a spectator, but active, and had the vanity to be a captain of the mob; that he had got a curtain belonging to the meeting-house in Fetter-lane, that he put it upon a pole, and carried it at the head of the mob; that he came from that place to another fire in Hatton-garden, and was active in throwing the timber into the fire there. When we have proved this fact upon him, that he was concerned in this manuer, your lordship will direct the gentlemen of the jury, that this meeting together with force, to work a reformation in the state, in order to pull down the meeting-houses, that this will amount to levying war, and high treason, as it is laid in the indictment. Sol. Gen. My lord, the charge in the indictment has been fully opened, I shall only call the witnesses; and if we prove the fact, I take it to be clear, that it is levying war within the statute of the 25th of Edward the third. Then Thomas Tolboy was sworn. Sol. Gen. Pray acquaint my lord, and the jury, what you know of any design to pull down the meeting-houses. Tolboy. My lord, as I went through the Temple, on Tuesday the 28th of February, I saw there a great mob, a great many thousands, and I heard them consult of demolishing Mr. Burgess's meeting-house. Sol. Gen. What was the occasion of their being at the Temple? Tolboy. They came with Dr. Sacheverell's coach bome from Westminster. Sol. Gen. Were there any others pulled down? Tolboy. I have been informed so; but I do not know myself. Mr. Darnell. Was the talk particularly about Mr. Burgess's, or were any others mentioned ? Tolboy. Mr. Burgess's was mentioned; I do not remember any other mentioned. L. C. J. You say no other was named. Was there any discourse of meeting-houses in general? Tolboy. I do not remember any but his mentioned. Some said, we will go presently, and pull down Dr. Burgess's meeting-house; others were for deferring it till the morrow night; and others, till the event of the Doctor's trial. Then John Lunt was sworn. Att. Gen. Look upon the prisoner, and tell us if you know him. Lunt. My lord, I stood within my own door in Kirby-street, that night that the mob was, and about eleven at night, he came over-against my door, and spoke these words, They made me captain of a party to-night. Mr. Darnell. My lord, I must object against his giving in evidence what the prisoner told him. Sol. Gen. Surely it is evidence what a man says. Att. Gen. You say you know him; do you remember you saw him on Wednesday, the first of March last? Lunt. I forgot the night: it was the night the meeting-house was pulled down in Hattongarden. Att. Gen. Did you see him alone, or were there others with him? Lunt. He came right against my door, and nobody spoke to him as I saw; but he said, They had made him captain of a party that night. Att. Gen. Stay, we will call another first. Then William Grove was sworn. Att. Gen. Pray, acquaint my lord, and the jury, whether you saw the prisoner the first of March last. Grove. I never saw him till that night. I saw him with a long pole, and a curtain upon it, and he cried out A High-Church standard! He stopped several coaches, and got money from them, and made them cry, High-Church. But to swear that this is the man, I cannot. Att. Gen. How many were there together? Att. Gen. Was there any thing like colours before them? Grove. Yes, there was a curtain, and he that carried it, cried, High-Church standard! He stopped many coaches, and got money from them, and made them cry, High-Church. Sol. Gen. Whence did he bring it? Grove. From Mr. Bradbury's meeting, in Sol. Gen. When was this to be done? Tolboy. It was to be done the next night. Sol, Gen. You heard this discourse among them; was Mr. Burgess's meeting-house pull-Fetter-lane. ed down the next night?-Tolboy. Yes. Sol. Gen. Did he carry it nowhere else? Grove. I saw it nowhere but at the fire at Holborn. Mr. Darnell. Was it a laced hat, or a plain one?-Grove. I cannot tell indeed. Mr. Darnell. You say you looked hard at Sol. Gen. Was there any fire in Hatton him? garden? Grove. Yes, there were three. Sol. Gen. What were they made of? Grove. Of the materials of Mr. Taylor's meeting-house. Sol. Gen. Do you know of any others that were pulled down? Grove. Yes, Mr. Burgess's. Sol. Gen. Do you know of any others? Grove. I have heard of others, but do not know them. Att. Gen. After Willis was taken, you went to Newgate; now give an account, did you make any particular observations at the time you saw the man display the banner? Did you take any notice of him?-Grove. Yes. Att. Gen. What did you take notice of him? Grove. I took such notice, that I thought I should know him again. Att. Gen. Now, did you go to Newgate to see him ? Grove. Yes; but the place was dark, and his clothes and wig were altered. Att. Gen. What did you think of the man you saw in Newgate? Grove. I did think it was the same man. Att. Gen. Now look at him, and see whether this is the same you saw in Newgate? Grove. His clothes were so much altered, that I cannot tell. Att. Gen. Tell us, is that man the same? Grove. I never saw him but that night, and in Newgate; and it was so dark, that I cannot say this is the man. Sol. Gen. Do you remember what clothes he had? Grove. I cannot tell whether they were blue or green. Sol. Gen. Were there more that flourished colours; more than one? Grove. I saw but one. Mr. Darnell. Pray, at the time you saw that banner displayed, was there any other fire in Hatton-garden? Grove. No; I believe this was made first; and then the mob said, They would go to Mr. Taylor's. Mr. Darnell. What time was it that the fire was in Holborn ?-Grove. About ten. Mr. Darnell. What time was that in Hattongarden?-Grove. About eleven. Mr. Darnell. You say this curtain was brought out of Fetter-lane meeting. How do you know? Did you see it brought out of the meeting? Grove. No; but I saw it brought out of the lane, and the people said it came from thence. Mr. Darnell. Do you remember what coJoured coat he had on? Grove. I cannot tell; it was either blue or green. Mr. Darnell. Do you remember what sort of hat he had on?-Grove. No. Grove. Yes; but I never minded his hat. Sol. Gen. You heard people say, the curtain was taken out of Mr. Bradbury's meeting: who were they that said so? The people that were concerned in the fire, or them that stood by ?-Grove. Them that stood by, as I might. L. C. Baron. You say you went to Newgate shortly after this, to see this man? Grove. Yes, my lord. L. C. Baron. And the man that you saw there, do you believe, or do you not, to be the prisoner at the bar? Grove. Yes, I do believe it was. Mr. Darnell. Are you positive this is the man ?-Grove. No, I am not. L. C. J. When you went to Newgate, the man that you saw there, did you believe him to be the person that you saw displaying the colours?-Grove. Yes, I did. L. C. J. How long was that after you saw him at the fire?-Grove. About ten days. L. C. Baron. Pray, what makes you less knowing, or believing now, than you was then? Grove. My lord, his clothes are altered, and he has another wig on. Mr. Darnell. Pray tell us any one thing you had, to know this man by? Grove. No other instance, but that he flourished the colours. Mr. Darnell. Do you know the colour of his coat?-Grove. 1 believe it was blue. Mr. Darnell. Are you sure it was not green? Grove. I am not sure. Mr. Darnell. When you saw him in Newgate, what did you know him by? Grove. By his features, I thought he was the same man. Mr. Darnell. Pray describe any one feature you knew him by. L. C. J. It is difficult to describe a man's face, and so it is to describe his hand. If you were asked how you knew a man's hand? it would be difficult for you to describe it; and so if you were asked, how you know any man's face in court, unless there was something very particular in his face; and yet there is something in the composition of a face, by which it is known, which none perhaps but a painter can describe. Sol. Gen. You say he is altered from what he was in Newgate? Has he not the same clothes on? Grove. He has quite another dress, and another wig, he had blue clothes on there. Sol. Gen. And you say, you believe the man that bad the colours, had blue clothes? Grove. Yes, indeed I take them to be blue; but cannot be positive whether they were blue collect yourself. The man you saw in Newgate, what coat had he on? Grove. He had blue. Sol. Gen. I ask you, whether the man that flourished the colours had blue? Grove. It was blue or green. Hill. No, never; I was not there when he came in. Then Hugh Victor was sworn. Sol. Gen. Pray, acquaint my lord and the jury, what you know of the pulling down the Sol. Gen. Which of the two do you believe meeting-houses, and what concern the prisoner it to be? Grove. Indeed I cannot well tell. Sol. Gen. The man in Newgate, what kind of wig had he? Grove. A wig that fell more off from his face. Sol. Gen. What sort of wig had the man with the colours? Was it that kind of wig which the man had in Newgate? Grove. I think it was not. Sol. Gen. Do you believe this man to be him that you saw in Newgate? Grove. Indeed I cannot believe him to be the same. Sol. Gen. Pray who brought that man to you?-Grove. It was Mr. Hill, the keeper. Sol. Gen. Is he here? Let him be called. Then Mr. Hill was sworn. Att. Gen. Do you remember Mr. Grove's coming to see the prisoner in Newgate? Hill. I never saw any body come while I was there. Sol. Gen. Do you remember that he came to see any of the prisoners? Grove. Justice Blackerby's clerk came with me, and we had a quartern of brandy. Hill. I did not remember him before, but I remember Justice Blackerby's clerk came, and somebody with him. Sol. Gen. Who did you shew him? Sol. Gen. What dress was be in then? Do you remember?-Hill. No. Sol. Gen. Did you carry him to any other but the prisoner? Hill. No; there were others upon the stairs, but they were women. Sol. Gen. Was there any other prisoner? Sol. Gen. And is this the man ?-Hill. Yes. L.C. J. Do you remember what clothes he had when he first came to Newgate; or at any time after? Hill. I do not know any but them he has on; I was not in the way when he came in. Mr. Darnell. Did you go up with that man? Hill. Yes. Mr. Darnell. Did you go into the room where the prisoner was? Hill. I went to the grates. Att. Gen. When I asked you at first whether he was at Newgate, you could not remember till he refreshed your memory with a quartern of brandy. L. C. J. Are you sure you shewed him the prisoner at the bar ?-Hill. Yes. L. C. J. Did you shew him any other? Mr. Darnell. You say you never saw him in any other clothes than those he has on? | had in it. Victor. I was by at a neighbour's door, near the meeting-house in Leather-lane. Sol. Gen. Where was the mob then? Victor. They came out of Holborn to Leatherlane. Sol. Gen. Was the bonfire in Holborn made before that in Leather-lane?-Victor. Yes. Sol. Gen. That fire in Holborn, what was it made of? Victor. I cannot tell any thing of that. Sol. Gen. When the mob came into Fetterlane, what did they do? Victor. I believe I saw one hundred and fifty men there, and they were as hard at work as they could be, in breaking down the inside of the meeting-house. Sol. Gen. What did they do with the materials? Victor. I saw some of them, as I think, on that young man's back. When the thing was almost over, I went near Mr. Lunt's door, and I saw him with some boards on his shoulders. Att. Gen. Look upon him: Are you sure that is the man?-Victor. Yes. Att. Gen. What did he do? Victor. I saw upon his shoulders some wood; he carried it to the fire, and threw it in, and made an huzza; When he had done, he came up again, and spoke some words to Mr. Lunt. Att. Gen. Did that same man afterwards come up, and speak to Mr. Lunt? Victor. Yes; but what he said I cannot tell. Sol. Gen. Do you know what cloaths be had on? Victor. I do not know his cloaths, but I can remember him from a thousand: I saw him throw in the wood, and after he went from the fire, I kept my eye on him till he came up to Mr. Lunt's door, and I asked Mr. Lunt, if he knew him? He said, yes, he was Mr. Miles's man. Mr. Darnell. What did you take notice of him by? Victor. I know him by his face, though I never saw him before. Mr. Darnell. What is there remarkable in it? Victor. I observed him as he threw in the wood, and kept my eye on him till he came to Mr. Lunt's. Mr. Darnell. What cloaths had he on? Victor. He was in a livery, but what sort of a livery I cannot tell. Mr. Darnell. When did you see him again? Victor. The next night: I knew him when I saw him before the justice. Att. Gen. Are you sure, that the man you saw that night, and the next night, is the same man?-Victor. Yes. Mr. Darnell. Was it not dark? Victor. There was the light of the fire. Mr. Darnell. How far was be from it? Victor. Not so many as there had been at Mr. Darnell. Which fire was. this at? At Victor. At Hatton-garden. Sol. Gen. You say you saw him at Mr. Victor. As far as to the middle of the yard. Then Mr. Lunt was sworn. Trial of Francis Willis, [624 shall confess in open court, he shall be tried by witnesses to an overt-act. Unless the person the oaths of witnesses to an overt-act. Now to what he has done they may call witnesses; but Confessions are, in all cases, a dangerous evito what he has said, we hope they shall not. been disputed, and so is the case in Anderson, dence, and to be used very cautiously. It has them, but those which are before a magistrate? whether any examinations shall be used against Just. Tracy. It was quite otherwise in the whether he shall be convicted upon that proof case of capt. Smith. The question is only, alone? L. C. J. If you make any objection on this head, it will be proper when they close their evidence. If there is no other evidence, you may then make this objection, whether he Att. Gen. Your house, I think, is near where shall be convicted on that evidence singly. the fire was? Lunt. Yes; within three doors. Att. Gen. What time was the fire? Att. Gen. Was there a great number of people there?-Lunt. Yes. Att. Gen. What was thrown into the fire ? Lunt. I cannot tell; I did not so much as go out of my door. Att. Gen. Did you see the prisoner that night? Lunt. He came right against my door: He knew me, for I worked for his master. He came against my door, and spoke two or three words, but I gave him no answer. Att. Gen. Is this the man that Mr. Victor asked you, whether you knew him? Lunt. And as he spoke those words to me, Mr. Victor asked me if I knew him: I said, yes, he is Mr. Miles's man. My boy called him by his name, and said, What, Frank, are you among them: And that made Mr. Victor ask, if I knew him? Sol. Gen. What passed between you and him? Mr. Darnell. My lord, we humbly submit it, that what he has said, cannot be made use of against him; for the statute of the seventh of king William directs, that he shall not have any evidence given against him relating to his word; for the act directs, that after the 25th of March, 1696, no person shall be attainted of high treason whereby corruption of blood may be made, or of misprision of such treason, but by the oaths and testimony of two lawful witnesses, either, both to the same overt-act, or one to one, and the other to another overt-act of the same treason, unless the party willingly, in open court, confess the same, or stand mute, &c.* L. C. J. Where do you find in that act, that what he confesses is not to be given in evidence? Mr. Darnell. Because that act provides, that none shall be tried but upon the oaths of two * See Hawkins's Pleas of the Crown, book 2, chap. 25, s. 141, &c. chap. 46, sect. 45, and East's Pleas of the Crown, chap. 2, sect. 66. Suppose two witnesses prove an overt-act, and besides them there should be others to prove his confession, is not that act complied with, confirmation of them? It does not follow but that when some prove the fact, and others come in if there be two witnesses to overt-acts, there It does not say, that no evidence shall be given may be as many others to prove confessions; but of overt-acts. L. C. Baron. If a man confesses before a that confession of his should be proved by two magistrate that he is guilty of treason, and witnesses, it may be disputed, whether he shall be convicted on that evidence, because it is said, they have no other evidence but his confession, there must be two witnesses to an overt-act. If tion; but till then, there is no reason to object then will be a proper time to make your objec against what is now offered. book, that examinations before a magistrate Mr. Darnell. It is expressly the words of the shall be evidence, which seems to imply the negative, that others shall not be. confession was sufficient to convict? And not, Sol. Gen. The question was, whether that whether it should be given in evidence? Let us go on; if our evidence is not sufficient, you will take notice of it. ness; as if there was something in that act, Att. Gen. Mr. Darnell would stop the witor in the law, that shall restrain you from hearsurely, there is nothing that can hinder that ing what this man did confess of this fact: No, evidence. The act does not hinder any thing convict a man unless there be two witnesses to in point of evidence, when it says, you shall not the fact: It does not say you shall hear no other evidence. This indeed was mentioned in the commission, and it was lost among other case of capt. Smith: he had the French king's papers: He was shewn the parchment, and had such commission, was given in evidence. owned it, and that confession of his, that he Sol. Gen. According to this objection, he dence. He opposes our examining to the conwould exclude all confessions from being evifession of the prisoner, before he knows what it was that he did confess. Now this act was |
