never intended to exclude all evidence to confessions; all that it requires, is to have two witnesses to overt-acts. The question is not now, whether a confession shall be an evidence of an overt-act? But, whether any confession whatsoever may be given in evidence? And surely it was agreed in the case of captain Smith, that his confession, as to the circumstances, was evidence, but not as to the overtact. On the trial of Ball,* the question was whether he was an Englishman? His confession was evidence to that purpose, admitting it was not to the overt-act. We shall not call this man to prove a confession of an overt-act, but to prove his confession in general, what was the occasion of his being abroad that night, and that is proper evidence; for this tumult must be either a riot, or levying war, according to the intention of those that got together: What shall explain that intention, but the confession and declaration of the people that were got together? So that we hope we are proper to examine to this point. Mr. Darnell. I remember the case of captain Smith: I remember they brought some that knew the band of the admiral of France, to prove, that they saw his hand to the commission; but his confession was not admitted as evidence. Justice Tracy. I never knew it disputed, but a man's confession might be given in evidence. Mr. Darnell. The act says, he shall not be tried, but on the oaths of two witnesses to an overt-act, unless the party willingly, in open court, confess the same; which shews what confession it is that is to be admitted of. L. C.J. Then you say, no confession shall be given in evidence: Now, pray, what words are there in the act, that say no confession shall be given in evidence? L. C. Baron. A confession shall not supply the want of a witness; there shall be two witBesses to the treason notwithstanding: But to say it shall not be given in evidence, there is no ground for it. Att. Gen. Mr. Lunt, pray tell us what was it that passed between you and the prisoner? Lunt. All that he said to me, when he came before my door, was, that they made him captain of a party that night; that he took a piece of a window-curtain, and made it a colours, and we burnt the clock in Holborn. Att. Gen. And is this the man? Sol. Gen. Do you remember what cloaths he had on? Mr. Darnell. You did not see him do any thing?-Lunt. Nothing at all. Then Robert Cubwidge was sworn. Sol. Gen. Do you know Mr. Grove? Sol. Gen. Do you remember you went with Sol. Gen. Did you see any other prisoner but him? Cubwidge. No: We saw Dammaree and Purchase below, but no other above. Sol. Gen. What cloaths had he on then? Cubwidge. He had a blue livery on. Then William Orrel was sworn. Att. Gen. Pray acquaint the court and the jury what you know of the tumult which was the 1st of March last, in those parts where you was. Orrel. I do not know any thing of the prisoner at the bar; but when I came to the end of Fetter-lane, there was a footman in a blue livery, a clever-shaped man of his size. I saw the constable there, and said to him, Here is a great riot, I am sorry you cannot put a stop to it: Says he, Here is such a mob, we cannot suppress it: Says he, There is a footman there, I know him very well; I know whose man he is. I cannot tell who he was, but I saw a footman there huzzaing, and bidding them make haste. I went into the meeting-house in Fetter-lane, and saw the timber pulled down, and thrown into the fire. Att. Gen. You was at that meeting-house in Fetter-lane; was you at any other? Orrel. I was at Mr. Burgess's and Mr. Earl's, and at that in Black-friars: I went with the guards thither. Att. Gen. Give an account of that. Orrel. When I was in Lincoln's-inn-fields, the cry was, To the city, to the Bank. When I came to the guards, I said to the captain, For God's sake go into the city, for if they go to the Bank, we are undone; for there was a report, that they were gone into the city. I asked several persons as we went along, where is the mob? Are they gone into the city? At last I heard they were gone to the meetinghouse in Black-friars, and were pulling it down. I went directly with the guards up Fleet-lane; I headed them in the Old Bailey, and run before, and got the gates open, and told them, the queen's guards were coming: I shewed them the way to the meeting-house, and there they met the mob pulling it down. Att. Gen. Do you know of any other meeting-house that was pulled down? Was you at Mr. Burgess's? Orrel. I was in it four times: I saw it full of people: I saw the galleries and pulpit beaten in, and pulled down; and as I stood upon a board, a fellow was pulling it up, and swore, God damn that lazy fellow, what does he de there ? 2 S Trial of Francis Willis, Orrel. Yes, I was in Mr. Burgess's four times, twice in Mr. Earl's, once in Mr. Bradbury's, and at the door of Black-friars. L. C. J. What was the cry there? Orrel. Nothing but in general, Damn them, we will have them all down. Dolben's house enquired for, but they menI heard Mr. tioned my lord Wharton's and St. James's often ; believe 1 heard it called out a thou-whether blue or green he cannot tell: Somesand times: And when I was at Mr. Earl's in Drury-lane, I called out, Where is Jolly, the waterman? because I wanted to know where he was: Some said, he is gone to St. James's; others, to my lord Wharton's; No, said others, he is gone to the back-door to break it open. Mr. Darnell. You say you saw a footman at the fire; pray, what time of night was it? Orrel. About ten, or a little after. As I went from Fetter-lane, I went along with them, as they carried the wood to Holborn, (but went at a distance on the other side the way) I saw the footman at the end of the alley, as you come out of the meeting. Att. Gen. You say you was there four | it would not be high treason, otherwise than as Mr. Darnell. Was that before the fire was lighted, or after ? Orrel. It was after the fire was lighted. Att. Gen. My lord, we have done with our evidence for the queen, and submit it to your lordship. times he said it was green, sometimes blue; but being asked, he is not sure the prisoner is the man that he saw with a banner encouraging the mob. man, his evidence cannot be confirmed by Lunt, If he cannot be certain as to the for they said they would not use that confes. who only speaks of the prisoner's confession; then Grove's evidence is out of the case. They sion to fix the overt act: And if it is not so, would endeavour to support it by the officer of Newgate, who carried Grove to the prisoner; he says there was no other man in the room, and therefore it must be the prisoner who was shewed to Grove; and then, says Grove, the man I saw in Newgate, I believe to be the same I saw at the fire; so that it is altogether call Victor; he says he saw a footman carry uncertain, as to Grove's evidence. Then they some of the timber, and throw it into the fire; and Lunt is to support that evidence, by saying, and that he saw the same man talk to Lunt; that the prisoner came and talked to him; but Mr. Darnell. My lord, I am counsel for the do any thing. It is scarce to be believed, that Lunt does not pretend that he saw the prisoner prisoner, who stands accused of high-treason, Victor should take notice of his features, so as and the instance is in levying war against the to know him again, especially seeing his are queen. To make this out, the gentlemen of not very remarkable, and there was no light, the other side begun with shewing, that there but the light of the fire: And after all, he was an intention to pull down meeting-houses cannot tell you any one feature that is rein general, that was opened: To make that out, markable, nor did he take notice of his cloaths, the first witness, Tolboy, says, that as he was going through the Temple, he heard a great description of a person is a constant evidence or any thing remarkable about him. The cry among the mob, that they would go and that you meet with, in case of a robbery, or pull down Mr. Burgess's meeting-house; it the like; you have the description of the codoes not appear, that there was any more named. lour of the horse, or the man's cloaths, or some I must agree, if the design were to pull them such thing; but he does not pretend to any down in general, and he acted in that design, one circumstance to induce him to believe he I can make no question, but it would be high- is the same man, but only that he is satisfied, treason; but if the design was only to pull for reasons he keeps to himself. down Dr. Burgess's, it was only a particular the only two persons they have the least colour injury to him, he might have his remedy by an These are action for it, and the government might prose-out two he cannot be convicted; and these are to say are witnesses to any overt-act, and withcute him for a riot, but if that be the case alone, to be supported by Lunt's evidence, that the that cannot be high-treason: There must be prisoner told him they had made him a captain, a general intent to pull down houses, or inclo- and that he had made colours of a curtain, sures, and not to pull down any particular man's and that they had burnt the clock. house or inclosure. nesses, and therefore cannot be supported by the act is not sufficiently proved by two wit We think a confession, which is but a dangerous sort of evidence in all cases, and a man is not to be found guilty upon a confession; and for that reason, the statute takes care, there shall be two witnesses to an overt act: submit it, that this evidence is not sufficient We therefore to convict the prisoner. After he has given this account, the other witnesses give an account, that at some of the fires, there was a discourse of going further, and pulling down all the meeting-houses about the town; but the original intent was only to pull down one. If, at that first fire, they should také a new resolution to pull down another, that would still be a particular injury; and so if they should it never so far that way, carry But, my lord, the prisoner's case, we appre hend, is such, as will, in a great measure, excuse him from any guilt; and we hope to satisfy your lordship and the jury, that he was not concerned in this design, or in aiding or assisting those that were actors in it. The prisoner is a servant to one Madam Miles, who lives in Grevill-street, near Hatton-garden; he has lived there two years, and has been all that time, a diligent servant, and behaved himself well in the family; and I believe, all the assistance he has to enable him to make his defence, is owing to their charity, which we think is an argument of his good behaviour, that his master and mistress will interpose, and endeavour to bring him off in a thing of this kind. It was the first of March last, when this insurrection was all over the town, and they came to Holborn, and with the materials of a meeting-house they made a great fire near this lady's house: I think, about half an hour after ten was the first notice that they had at this house that there was a fire: The lady of the house was going to bed, and in ber chamher they saw so great a light, that they thought the fire was near; they called to the prisoner, and he was going to bed too; they ordered him to go and learn where the fire was, for they knew not what sort of fire it was: Upon that he went to learn what the occasion of it was. There they served him, as upon this occasion they did every body, they made them pay obedience, as they call it, and halloo, and throw up their hats. It is not to be supposed it was very readily learnt what the design was, and where they had the materials: As soon as he had informed himself, I think we shall shew, that he got out of the crowd as fast as he could, and was going home to acquaint his lady; that as he was going home, he was told there was another fire in Hatton-garden; and be thinking he did not pursue his lady's instructions without learning what this was, accordingly he struck over the way, and went into Hatton-garden, and there found it was the same design, and the materials of another meeting-house were brought thither, and burning. As soon as he had thus informed himself, he came to his lady, and informed her, that the mob was up, that they were pulling down the meeting-houses, and that he had seen two fires. After he had given this account, they ordered the doors to be shut up, and the family went to bed, and after that, he was not out of the house. Now, as to the business of the banner, there is not evidence to fix it upon him: And if we shew, that he went alone from Holborn, it must be believed, that it was some other footman, in some other livery; for if he was their captain, and carried the colours upon a pole, it was not his business, nor would they have suffered him to leave them there in Holborn, when they were going to make another fire. It is pretty extraordinary to suppose where he could get a pole to carry a banner of that kind. But if he was coming home by himself, without any mob with him, sure it is pretty extraordinary that the captain of the mob, so considerable a man as he, could go in so private a manner. We will call our witnesses, and hope the evidence will make it plain, that he did nothing but according to the commands of his mistress. Then Mrs. Brisco was sworn. Mr. Darnell. Pray, Madam, acquaint my lord and the jury, whether the prisoner has lived at any time, and how long with Mrs. Miles. Brisco. He has lived there two years next May. Mr. Darnell. In all that time, how has he behaved himself? Brisco. A very civil, honest fellow. Mr. Darnell. Did you ever know him guilty of drinking, or staying out at nights? Brisco. He has always carried himself very civilly. Mr. Darnell. Pray, at the time of this disturbance, do you know the occasion of his going out? Brisco. I was in my mother's chamber while she was going to bed, and I saw a fire, and heard a great noise; I called to my sister, who was below, and bid her send Frank to know what the matter was. Mr. Darnell. Did he go accordingly? Mr. Darnell. You say you bid her send Then Mrs. Miles was sworn. Mr. Darnell. Madam, you heard what Mrs. Brisco said, that she desired you to send Frank, the prisoner, to see what the matter was: Did you send him? Miles. My sister called to me, and said, she believed there was a fire in Holborn, and bid me send him to see; which I did. Mr. Thomson. Pray, what time was this? Miles. It was past ten; the clock had struck before my mother went up. Mr. Thomson. How much after ten might it be? Miles. Indeed I cannot tell ; but I am sure ; it was past ten. Mr. Thomson. What time was it before he came back? Miles. I believe the clock had not struck twelve, to the best of my memory. Mr. Darnell. What account did he give you when he came back? Miles. I did not see him that night. Mr. Darnell. What did he say next day? Miles. He said they had burnt the meetings: asked him if he had done any thing? He said, nothing to harm him. I Mr. Darnell. Where is Mrs. Miles's house? Miles. In Grevill-street; the back of our house looks into Furnival's-inn. L. C. J. Had not you the curiosity to know what account he brought? Miles. I was not below; my sister was. L. C. J. How came you to ask him, whe ther he had done any thing? Miles. Because next day he had notice given him that Lunt intended to swear against him: At supper I saw him look very dull; and having heard of this in the house, I asked him if he had done any thing to occasion it? He said, No, indeed. L. C. J. How long was it before he was taken up? Miles. It was Thursday night. L. C. J. I would ask Mrs. Brisco, pray what account did he give you? Brisco. I cannot be particular as to that; but only that they had burnt the meetinghouses, but he did not say that he had helped to do it. L. C. J. About what o'clock was it when he came home? Brisco. To the best of my knowledge, the clock had not struck twelve. L. C. J. Was not you impatient at his staying so long out? Brisco. It was not full two hours. L. C. J. Did you not ask him why he staid so long? Brisco. I was angry that he staid so long: I think he said, he never saw a mob in London before; and to my knowledge he was not in any of the mobs before. L. C. J. Did he give no account of what was done there? Brisco. I do not remember he did. L. C. J. Did he give you any account of the curtain he carried? Brisco. I do not remember any thing, my lord. 1 L. C. J. That is a pretty remarkable thing. L. C. J. When did you hear of it? L. C. Baron. Did you see any more fires than one, when you sent him out? Brisco. No, my lord. going to bed about ten, and one of the young ladies saw the fire, and called out to him to go and see what it was. Mr. Darnell. Was you there when he came back? Hodges. I was not there; for I had a relation that was ill, and my mistress gave me leave to go and sit up with her. Then Elizabeth Elliot was sworn. Mr. Darnell. Do you know the prisoner at the bar?-Elliot. Yes. Mr. Darnell. Do you remember the night the fire was in Holborn ? Elliot. It was St. David's day. Mr. Darnell. Was he sent out that night? Elliot. He was sent to see the fire at Holborn; my lady sent him to see if there was a fire. Mr. Darnell. Did he go out for that? Mr. Darnell. Was you there when he came back?-Elliot. Yes; I let him in. Mr. Darnell. When he came back, what did he do? Did he go to bed?-Elliot. Yes. Mr. Darnell. What account did he bring of the fire ? Elliot. I do not know what account he brought of it. Att. Gen. Was you up when he came home? Att. Gen. What o'clock was it? Elliot. The clock had not struck twelve. L. C. J. You cannot remember, it may be, the whole account he gave when he came back; but do you remember nothing of it? Elliot. No. L. C. J. Not a word ?-Elliot. No. L. C. J. Was he not asked how he came to stay so long? Elliot. No, not in my bearing. L. C. Baron. Where did you expect the fire to bed, as well as the old one? to be? Brisco. I thought it was in Holborn. Elliot. No; they staid up till he came in. L. C. Baron. Did you hear of any fire in bed before he went out? Hatton-Garden? Brisco. Yes, afterwards I did. Elliot. Yes; we were going to bed presently. L. C. Baron. But you did not know of any up so long as twelve, were there no questhere when you sent him out? Brisco. No, my lord. Then Mary Hodges was sworn. Mr. Darnell. Do you know the prisoner at the bar ? Hodges. My lord, he is my fellow-servant. Mr. Darnell. What time of night was it when your mistress sent him out? Hodges. It was past ten. Mr. Darnell. What was he sent for? Hodges. It was to see if there was a fire in Holborn. Mr. Darnell. Then the fire was burning before he went out? Hodges. Yes, my lord. Mr. Darnell. How long had it been burning? tions asked how he came to keep you up so long? Elliot. The ladies asked him, what made him stay? He said, he never saw a mob before. L. C. J. But I suppose he told you what diversion he had had there? Elliot. No; I did not hear him say any thing of it. L. C. J. He told you nothing of the fire, or the colours?-Elliot. No; nothing. L. C. J. Did not the ladies ask what that fire was? Elliot. Not in my hearing. Sol. Gen. It is strange he should be sent out to enquire after the fire, and not be asked any thing about it: was no enquiry made of the errand he was sent about? Elliot. Not in my hearing. Mr. Thomson. Had you no discourse with him-Elliot. No. Mr. Thomson. Did you talk nothing of it the next day?- Elliot. No. Sol. Gen. Did he give no account the next day, or at any time after, of what passed? Elliot. No, not in my hearing. L. C. J. What clothes was he in that night? Elliot. It is blue, with black buttons, and trimmed with black. Then Mr. Pryor was sworn. Mr. Darnell. Pray acquaint my lord and the jury, whether you saw the prisoner at the bar, any time at the fire in Holborn, and before that in Hatton-Garden? Pryor. As I was coming down Holborn, I had been at Westminster; I came to Leatherlane end, and there I light of the prisoner at the bar. Mr. Darnell. Where was you going? Pryor. I was going home to Clerkenwell: I saw Willis in Holborn: he cries out, who comes there, Mr. Pryor? Mr. Darnell. Where was Willis ? Pryor. He stood at the end of Leather-lane, and he and I walked down together along Leather-lane, to Grevill-street: he told me he lived there with Mrs. Miles. I asked him, shall we drink a mug of beer? With all my heart, says he ; but my lady has sent me out to see what the matter is: so we walked talking together as far as Brooks-market; and there were a great many people hallooing for HighChurch and Sacheverell; so we parted there, and did not go in to drink, because there was a great mob about. Mr. Darnell. You say he parted from you to go home; was any body with him? Pryor. No. Mr. Darnell. Was there any curtain, or colours, or stick?--Pryor. No. Mr. Darnell. Was there any body, or any mob, that claimed him as their captain? Pryor. No; I saw nobody speak to him. Mr. Darnell. Did you afterwards see the fire in Hatton Garden? Pryor. They were just going to light it. Mr. Darnell. What were they doing at the meeting-house in Leather-lane? Pryor. They were pulling it down, and carrying it to Hatton-Garden. Mr. Darnell. Did the prisoner carry any of it? Pryor. I did not see him carry any. Att. Gen. What time of night was this? Pryor. It was eleven, or thereabouts; J cannot tell whether it was over or under. Sol. Gen. At which end of Leather-lane did you see bim?-Pryor. In Holborn. Sol. Gen. Was not the way you walked with him, as well the way to Hatton-garden, as to Grevill-street? Pryor. It was his way as well to the one as the other. Sol. Gen. Did you leave him standing in the street, or how did you part? Pryor. We shook hands, and he said, I must go and tell my lady how it is. Sol. Gen. What time of night was it? Pryor. As nigh as I can guess, 11 o'clock. Sol. Gen. Where did you part? Pryor. Directly over-against Brooks-market. L. C. J. Where did you first see him? Pryor. At Holborn, at Leather-lane end. L. C. J. Where was the fire? Pryor. Almost over-against the end of the lane. L. C. J. What was he doing? Pryor. Nothing; only stood to look on. L. C. J. Then you went with him up Leather-lane?-Pryor. Yes. L. C. J. Where did you part with him? Pryor. At Brooks-market; we walked so far, and talked of drinking together; but when the mob were hallooing, and making such a noise, we did not go in to drink. L. C. J. Where did you talk of going in to drink? Pryor. He did not name any place, and I was a stranger there. L. C. J. How came you to walk so far as Brooks-market? Pryor. I do not know; we were talking of several things in the country. L. C. J. How came you to be out so late? Pryor. I had been carrying some glass to Westminster, and was going home again. L. C. Baron. Did he give you any account of the fire in Holborn? Pryor. He talked nothing of the fire. L. C. Baron. How far was the fire from the end of the lane? Pryor. Just at the end of it. L. C. Baron. Did you see any thing of the fire ?-Pryor. I did see it. L. C. Baron. Did he say he had been there? Pryor. No; but he said his lady sent him to see where it was. Mr. Thomson. You said he was going home, and afterwards you say you went to Brooksmarket; is that between Fetter-lane and Grevill-street, or is it beyond it? Pryor. It is beyond it. Mr. Thomson. How came he then to go beyond Grevill-street, in order to go home to his mistress? Pryor. We were talking of country affairs. Mr. Darnell. We shall call a witness to prove, that after Grove had been at Newgate to see the prisoner, he declared he did not believe him to be the same man. Then Stephen Fletcher was sworn. Mr. Darnell. Had you any discourse with Grove after he had seen the prisoner in Newgate? Fletcher. When he came from Newgate on Good-Friday at night, and had been to see the prisoner, I asked him what he said to him? Nothing, says he; for he was not the man |
