6811

for High Treason.

out provocation, fall upon this man, and attack him. As to the exactness of time, there is little weight to be laid on it, for the whole transaction does not take up above the compass of two hours. The guards came out about half an hour after ten, and before twelve the mob was dispersed. But that which you will take into consideration will be the series of the facts, and see how they stand. Orrel says, he saw the prisoner with his sword drawn, and flourish

them in the manner you have heard; and they have said nothing to impeach our evidence; what they say makes it appear he was there, and thus acting among them.

is it afterwards that pulled them down? Those that halloo and cry out for High Church and Sacheverell. What did the prisoner say when he was among them? Damn them, he was for High Church and Sacheverell; he would lose his life in the cause. It is certain these meeting-houses were pulled down, and that by those people thus assembled, and who cried out for Sacheverell, and were the friends of Sacheve. rell, and declared they would oppose all that were enemies to him, and this man cried outing it, and when the guards came, he assaulted as loud as any of them. But we do not take it that it is necessary to prove, that every man that was concerned in this matter was originally in the consult and first design; but the evidence gives an account, that he joined with them, he assisted them. If drawing his sword; if flourishing it, and calling out to them to resist the guards, and pushing at the officer of the guards, is resisting, surely there is sufficient proof against him. If a rebellious number of people are got together, and a man that knows not of it at first, will join with them, and act with them, and that which they are doing is treason, though he came in late of the day, he must deserve the same reward as those that came in early in the day.

It

Sol. Gen. My lord, the evidence given by the prisoner, and the defence made on his behalf, is so far from giving any answer to our evidence, that it renders the fact more probable than it was before: For they have proved, that he is a man likely to be concerned in such an affair; that he had been drinking all day, and fit to engage in such a matter; and that he is troublesome in his drink; which are circumengage in stances that shew the inclination of the man, and make it probable that he should this matter. The facts we take to be highThere is one thing observable in this case, treason. They say on the other side, it is not that this meeting-house was not so soon de- so, because we must prove a general intent to stroyed as Dr. Burgess's; for the fire was al- pull down all meeting-houses, and the pulling most out there, when the waterman, who is down a single one is not sufficient. I will not convicted, hallooed them to this meeting; that now dispute that point with them; for that it was burnt first, and then they came to this there was such an intention appears most plainfire, and that was much later. It appears hely by what passed that night, by the several lives in the neighbourhood of this meeting-meeting-houses that were pulled down. house; for he says he can hear them into his house: now a man that had been in the neighbourhood of such a place, and had been a good subject, if there had been a tumultuous design to pull down part of his neighbourhood, instead of joining with those people, he would have endeavoured to have hindered them from doing mischief; but instead of endeavouring to pre vent it, you find he joins with them, he draws and flourishes his sword, and acts in it more than any other person I have bad an account of. The other witnesses are to give an account where he was till five in the afternoon, and thence till eight at night; and afterwards he is sent for by Mr. Broad, and with him he stays The places he till this matter is transacted. has been at before, are the alehouse, the brandyshop, and the tavern: are not these the proper places to prepare those that are to engage in these sort of things? For whenever people go on these attempts, it is necessary to fortify themselves by strong waters and strong liquors, as he did. The witnesses that saw him there, and give an account of him, some of them say, he only held up his hand; others say, he had a sword in his hand, but it was not drawn, and he held it up only to save himself from the assault of the guards. Now the account you have is, that the guards struck with the flats of their swords, and you hear of nobody killed, nor any great harm done to any body; therefore it is not to be thought they should, with

was a general intention, or else they could not
have gone through so man in so short a time:
And it is not necessary to prove any previous
consult, for the act itself is treason: Where
the intention is the treason, there the act inust
be proved that shews it. So it is in the case of
counterfeiting the coin, nobody will say there
is any need to prove any design: That there
was such an intention is plain, by what was
committed: and any one that joins with such
a number of people who are committing treason
If he knew no-
is equally guilty with them.
thing of it till he saw them, yet if he joins with
them in an action that is treason, he will be
equally guilty with them. They say he had
not his sword drawn; that he was going home,
and he only lifted up his hand, with his sword
in his scabbard, to defend himself. But that
evidence does not interfere with what is offered
on behalf of the queen; or if it did, yet we
think our evidence is of greater credit and
weight than what they offer: For they that
encounter a man who has his sword drawn,
can never be mistaken, but deserve more credit
than those that are only passing by, and have
no danger from, or concern with him; but
this is all consistent, for Russel, and those who
say his sword was drawn, say, he came from
St. Giles's way, the others say, it was after the
mob was dispersed; and that he came up the
lane; and that he went off by Long-acre, and
they saw him no more. Now, since nobody

encouraging the people to do so. This is the most of the evidence that can be against him: then the question is, whether this, singly, can make him guilty of high treason? For if his part in the general intention be out of the case, as it must be if he came after the fact was committed, then the question will be, whether a man that comes in afterwards, by saying the worst he can say, shall make himself guilty of high

treason?

guilty of.

is not sufficient to induce the jury to believe he was concerned in the general intent to pull down the meeting-houses; there is no proof offered that he had any intention or part in that matter; nor does it appear that he was privy to it. We have shewn where he was till the time he was met by the guards. As for what was done by him then, it will not be pretended, that barely assaulting the guards is levying war; but it must be construed to be an aiding and assisting My lord, we hope the evidence on behalf of those persons in that intent to pull down the the queen is reconcileable with the evidence meeting houses. As for that, it does not ap for the prisoner; and that the evidence for the pear he had any part in it, but it was done be prisoner shall be believed, that he only defend- fore he came to them: nay, he could not be ed himself against the guards that rode up assisting to the mob; for before he came to against him: for Richardson says, he did not them, the guards were come down, and the mob see him when the guards first came there; and were soon after dispersed. The first time that that agrees with the account that Broad gave; any account is given of him is, when he came for he says he heard the guards were marching behind the grenadiers. Now can it be supposed before they came out of the tavern. Blanfield that any man that intends to head the mob agrees with the evidence that Orrel gave: says would come among the horses, and that sinhe, The mob were dispersed under the eaves gly? Whatever he said, his cursing and swearof the houses. Says Blanfield, At the time the ing, that will not make him criminal in this guards struck him, there were people under the case it appears to be a thing that was accihouses: but I do not look upon them to be the dental and done on a sudden, and was the effect chief mob, but only some women and people of his drink, and that which a man that had no looking on. And then the question is not, whe-intent of joining in the general design might be ther his sword was drawn or not, but on what occasion, and what his design was in drawing it? Our witnesses say, that when the guards struck at him, he only held up his hand to defend himself; and that might fright the horse; and he being angry at it, spurred up and struck him. It is natural to think the guards should ride up to those that were standing in the street, and enquire who they were. I do not depend on the circumstance of his being in drink, that it is any excuse; for then if a man has such a design as this, he may easily pretend himself to be in drink, and he will give himself drink enough to encourage himself to do so bold an act: but the use we make of it is to shew, that he had not any intention in this. He had drank himself too far for to have a design of joining with any party, or do any particular thing. And my lord Coke, in his Pleas of the Crown, where he is giving his opinion what is levying war against the queen, says, that the act alone is not sufficient to convict the party; but the mind is to concur in it. It is not barely doing an act that is sufficient to convict a man; for he must do it with that design. Indeed if a drunken man stabs another, it is murder; because malice is supposed where such a fact is done. But in case of high treason there must be an intention proved in the party that doth the fact. If he was in that condition at the time he came out of the tavern, and did any thing by way of encouraging them, we hope it is not such an evidence against him as will make him guilty of any part of the intention, if his mind did not concur in it.

Just. Tracy. My lord Coke says, in the Case of Oldcastle, where he was forced, and did the 'fact pro timore, that such an act could not make him guilty.

Mr. Major. My lord, we hope the evidence

Att. Gen. May it please your lordship, and gentlemen of the jury, we think that, notwithstanding any thing that has been said by the witnesses, or insisted on by the counsel, it is a plain case that the prisoner is guilty of the crime laid to his charge. They have called a great number of witnesses; and I believe their intention in that is, that you should take them by tale, and not by weighing the evidence and the force of it; for I will be bold to say, as to all the witnesses that have been produced to prove him drunk, nothing which they have said as to that point can make any alteration in the case. As to the witnesses produced for the queen, I do not find they pretend to say any thing in diminution of the credit of them; nor can they say that any one of them is likely to be biassed, or to be under a mistake; only one of them that took him to be a country gentleman, when he proved to be a bailiff. As Mr. Darnell says, God forbid that any one should have harder measure because he is a bailiff, but that he should have the same justice as any other man: but I must say, it is an easy mistake to take him for a gentleman, when it appears by the evidence, that one bailiff can go to the tavern in his coach, and the other go from thence in his chair. The counsel for the pri soner have insisted, that our evidence does not maintain the charge; for they say this rising is not high treason, if there were not a general intent to pull down meeting-houses: and we do not bring it home, to make it appear that he was privy or consenting to this design; but we desire they will consider, the first witness gives an account that a resolution was taken on Tuesday to pull down Burgess's meeting: by whom was that taken? It was by the friends of Sacheverell that came hallooing with him. Who

out provocation, fall upon this man, and attack him. As to the exactness of time, there is little weight to be laid on it, for the whole transaction does not take up above the compass of two hours. The guards came out about half an hour after ten, and before twelve the mob was dispersed. But that which you will take into consideration will be the series of the facts, and see how they stand. Orrel says, he saw the prisoner with his sword drawn, and flourishing it, and when the guards came, he assaulted them in the manner you have heard; and they have said nothing to impeach our evidence; what they say makes it appear he was there, and thus acting among them.

is it afterwards that pulled them down? Those that halloo and cry out for High Church and Sacheverell. What did the prisoner say when he was among them? Damn them, he was for High Church and Sacheverell; he would lose his life in the cause. It is certain these meeting-houses were pulled down, and that by those people thus assembled, and who cried out for Sacheverell, and were the friends of Sacheve rell, and declared they would oppose all that were enemies to him, and this man cried out as loud as any of them. But we do not take it that it is necessary to prove, that every man that was concerned in this matter was originally in the consult and first design; but the evidence gives an account, that he joined with Sol. Gen. My lord, the evidence given by them, he assisted them. If drawing his sword; the prisoner, and the defence made on his beif flourishing it, and calling out to them to re-half, is so far from giving any answer to our sist the guards, and pushing at the officer of the guards, is resisting, surely there is sufficient proof against him. If a rebellious number of people are got together, and a man that knows not of it at first, will join with them, and act with them, and that which they are doing is treason, though he came in late of the day, he must deserve the same reward as those that came in early in the day.

evidence, that it renders the fact more probable than it was before: For they have proved, that he is a man likely to be concerned in such an affair; that he had been drinking all day, and fit to engage in such a matter; and that he is troublesome in his drink; which are circumstances that shew the inclination of the man, and make it probable that he should engage in this matter. The facts we take to be high. treason. They say on the other side, it is not so, because we must prove a general intent to

It

There is one thing observable in this case, that this meeting-house was not so soon destroyed as Dr. Burgess's; for the fire was al-pull down all meeting-houses, and the pulling most out there, when the waterman, who is down a single one is not sufficient. I will not convicted, hallooed them to this meeting; that now dispute that point with them; for that it was burnt first, and then they came to this there was such an intention appears most plainfire, and that was much later. It appears he ly by what passed that night, by the several lives in the neighbourhood of this meeting-meeting-houses that were pulled down. house; for he says he can hear them into his house: now a man that had been in the neighbourhood of such a place, and had been a good subject, if there had been a tumultuous design to pull down part of his neighbourhood, instead of joining with those people, he would have endeavoured to have hindered them from doing mischief; but instead of endeavouring to pre vent it, you find he joins with them, he draws and flourishes his sword, and acts in it more than any other person I have bad an account of. The other witnesses are to give an account where he was till five in the afternoon, and thence till eight at night; and afterwards he is sent for by Mr. Broad, and with him he stays till this matter is transacted. The places he has been at before, are the alehouse, the brandyshop, and the tavern: are not these the proper places to prepare those that are to engage in these sort of things? For whenever people go on these attempts, it is necessary to fortify themselves by strong waters and strong liquors, as he did. The witnesses that saw him there, and give an account of him, some of them say, he only held up his hand; others say, he had a sword in his hand, but it was not drawn, and he held it up only to save himself from the assault of the guards. Now the account you have is, that the guards struck with the flats of their swords, and you hear of nobody killed, nor any great harm done to any body; therefore it is not to be thought they should, with

was a general intention, or else they could not have gone through so mang in so short a time: And it is not necessary to prove any previous consult, for the act itself is treason: Where the intention is the treason, there the act inust be proved that shews it. So it is in the case of counterfeiting the coin, nobody will say there is any need to prove any design: That there was such an intention is plain, by what was committed: and any one that joins with such a number of people who are committing treason is equally guilty with them. If he knew nothing of it till he saw them, yet if he joins with them in an action that is treason, he will be equally guilty with them. They say he had not his sword drawn; that he was going home, and he only lifted up his hand, with his sword in his scabbard, to defend himself. But that evidence does not interfere with what is offered on behalf of the queen; or if it did, yet we think our evidence is of greater credit and weight than what they offer: For they that encounter a man who has his sword drawn, can never be mistaken, but deserve more credit than those that are only passing by, and have no danger from, or concern with him; but this is all consistent, for Russel, and those who say his sword was drawn, say, he came from St. Giles's way, the others say, it was after the mob was dispersed; and that he came up the lane; and that he went off by Long-acre, and they saw him no more. Now, since nobody

Trial of George Purchase,

saw him home, he might go that way, and afterwards come down and join the mob, in the manner the soldiers have told you, and then he might be driven off, and come some way round again, with his sword in his scabbard: And these must certainly be different times, for those who speak of his sword being drawn, say, it was when he came from Holborn; and they that say his sword was in his scabbard, say, it | was when he came from the other way, and then there can be no contradiction between the evidence. And we take it, the law is as plain as the fact, and that it is high treason.

Mr. Thomson. My lord, I would state the objection in the utmost latitude; and yet, with submission, the facts proved on the prisoner make him guilty of high-treason. They have insisted, that there was no previous intention in this man to pull down these meeting-houses; that at that time he was in drink, and not capable to have any intention of doing any particular act whatever, and that to the aiding and assisting mens must be rea; and that he came when the meeting-house (the materials of which made the fire in Drury-lane) was pulled down, and all was over, and so neither in the first design, nor assisting at the execution of it. This, my lord, I take to be the strength of their objections. As to the previous intention, that is not necessary to be proved, and has been so lately determined, that I need not trouble your lordship to repeat any thing about it. If a man joins in an undertaking of this kind, which was general, though he comes by accident, it makes him a principal in that matter. would make use of his drunkenness, to excuse Then they him from his assisting in the design; they say, if he had not his senses, he could have no intention even to aid or assist any design. Those gentlemen know very well, that drunkenness is no excuse for any act whatever: If a man does deprive himself of his senses, and commits a fact that would be a crime in a man not in drink, it shall be construed to be his act, as much as if he had his senses. Beverly's case, in the 4th Report, is express in that point. Then they say, the meeting-house was pulled down before, and he came when all was over. My lord, I appeal to the memory of your lordship, and the jury, whether they are not mistaken in that fact: for the fire was burning when he came, and the mob about it; they were then burning the inside of that meetinghouse which they had pulled down; and if they had not been dispersed, in all probability would have gone on with their design; and he was there when the guards were endeavouring to disperse them, and prevent their going on to do further mischief, and he opposed them. They say, there was no resistance made by the mob, they were quiet; but this man did resist, he pushed at the horses, and at the men, if you will give credit to the witnesses; and he did as much as was in his power to animate and encourage the mob to resist: By his expressions, and his actions, he endeavoured to hinder the

[684

dispersing of that mob, who were executing a treasonable design. That is the aiding and assisting of them, which is his crime. Then they say, he was there accidentally, and fell in as he was going home quietly. I take that to be otherwise on the evidence; for however he might be left by Mr. Broad, he was seen coming down from St. Giles's, whereas his way home was the other way. We must submit it, my lord, whether his aiding and assisting in this manner, does not make him guilty of treason, as well as those who were executing the traitorous design.

4

Purchase stands indicted, for that he, with a L. C. J. Gentlemen of the jury, George great multitude of other persons armed, did, the first of March last, levy open war against her majesty. The evidence that has been given by the queen's counsel tends to shew a design to pull down the meeting-houses about this town, and that design executed on a great many of them: The guards coming to disperse those that were so employed, and the prisoner resisting the guards, joining with the mob, and assisting them. To prove this they produce Tolboy to give an account of a discourse, rather beginning than finished, of a design of pulling down Mr. Burgess's meetinghouse; some were for pulling it down immediately, others were for deferring it till the morrow, and others for letting it alone till the trial was over: And as they were thus talking, he left them. He calls it a resolution of pulling them down, because nobody did oppose it, only they came to any fixed resolution. The next differed about the time, but he did not stay till witness is Orrel, who gives you a very particular history of this action: He tells you, at Leonard's coffee-house he had heard that they were pulling down Mr. Burgess's meetinghouse; that he went into that meeting-house twice or thrice while they were pulling it down; that thence they went to Fetter-lane; that they had almost finished the work there; he found almost every thing there down, and they were carrying the materials to Holborn, and burning them: Thence they went to Lincoln's-inn-fields, and there they found a fire, where they were burning the materials of Mr. Burgess's meeting-house. He tells you what outcries there were there, and speaks of some that called them to Drury-lane, and a consult that was, whether they should go thither, or to Wild-street? That some that headed the mob, swore they would have all the meeting-houses down, and called them along, and leď them to Drury-lane; that when he came there he found them breaking down the door of that meetinghouse. He tells you what passed there; that he went afterwards, and met the guards, conducted them to Drury-lane, and run before them; that the horse were commanded to disperse the mob; that he saw one with a sword, and there he pushed at the horses with his that was sheltering himself under the houses, sword. His expression is, that he poked; he