years. There being a commission of bankruptcy against him, I was recommended to assist him in that commission. I did give him the best assistance I could, and I several times met him, sometimes at the Grecian coffeehouse, and sometimes at my own house. I took him for a Frenchman, he used very much to espouse the interest of the king of France, which I used to chide him for. As for parties here, I had some discourse with him, and he used to think we were a strange people to fall out among ourselves. Then Thomas Richardson was sworn. Mr. Hungerford. What do you know of the prisoner and his behaviour?* Richardson. I have known him five or six years, and I believe I have taken five or six pounds of his money. When he was sick he took a liking to me, and would not be quiet unless I came often to see him, and I used often to sit with him in an evening and bear him company, and it was a great surprize to me when I heard he was taken up, for he used often to drink a health to king George, and hoped he should get up to see him, and hoped this would be a quiet nation again. He was then so weak that he could not stir hand or foot. But he used to call me Vulcan, and bid me drink king George's health. Mr. Hungerford. How long is it since he was so weak that he could not stir hand or foot? Richardson. About a year and five or six months. And when he got abroad I then was forced to follow him for what he owed me, and I have gone after him several times to the Grecian coffee-house. L. C. Baron. Have say?-Prisoner. No. you any thing more to Sol. Gen. My lord, I must beg leave (by way of reply to what has been offered on behalf of the prisoner) to say, that this is a cause of very great concern to the king, to the royal family, and to the whole kingdom in general; and I may with justice affirm, that this day one of these two points must be determined; either that the prisoner at the bar is guilty of high treason, or that no man can, as the law now stands, be convicted of holding a foreign traitorous correspondence, if this evidence be not sufficient; for here has been the strongest evidence given of such a correspondence, as I believe ever was, or perhaps ever can be given, according to the nature of the thing. The gentlemen of the jury will consider the nature of the treason, as it is laid in the indictment; it is for compassing and imagining the death of the king; now, that rests in the imagination, and is complete in the mind; but there must be some open or public act that * See Mr. Erskine's Observations on this examination in the case of Hardy, A. D. 1794; and the Note to Dammaree's case, in the present Volume, p. 522. must appear to you in proof, to convince you that the prisoner had that imagination. There are three overt-acts laid in this indictment, and we have produced evidence sufficient for the proof of two of them, though if any one of them be proved it is enough. The first is, conspiring, consenting, and agreeing to raise an insurrec tion and rebellion within this kingdom, in favour of the Pretender; and for conspiring, consenting, and agreeing to solicit and procure from France, arms, ammunition, men and money, to aid and assist in such rebellion; and the last is for composing and writing several treasonable letters, declaring his intention and resolution to levy that war, and to raise that rebellion. The evidence that has been given is of two sorts; it consists first, of letters wrote by the prisoner himself to his correspondents in France; and secondly, of letters wrote to him by such correspondents, signifying the receipt of letters wrote by the prisoner to him, touching this traitorous design. For proof of the letters wrote by the prisoner, we have produced his copy-book of letters, wherein they are entered, proved to be part his own hand-writing, and the rest his son's; and indeed it is a surprising thing, that that copy-book should remain, which indeed is so rare a way to perpetuate the testimony of treasou, as I believe the like evidence is never to be expected again; and it is absurd to expect, when a traitor writes in a foreign country; that he should be able to produce the original letters. The proof of this copy-book to be his is beyond doubt; it is proved by his own confession, before three witnesses, and in very strong terms, 'This,' says he, is my copy-book of my letters to my correspondents abroad.' Is it possible that stronger evidence can be given? Nay, he goes farther, as a noble lord informed for when he was examining the prisoner, and the prisoner pretended that he was only a conveyer of letters, but did not write himself; says he, As to what I have wrote, I appeal to my They have you; own copy-book of letters.' brought indeed some witnesses to say, that they believe that the copy-book is not of his handwriting, though they do not tell whose you hand it is. But that is not material, nor of any weight; for copies of letters are sometimes en tered by the parties themselves, and sometimes by their servants, or others whom they ap point, and that is the same thing; but to answer that fully, the prisoner has confessed that part of this copy-book was of his own handwriting, and the rest of his son's. As to the other letters from D'Aulmay, his French correspondent, to him, which are many in number, we have given the best proof the thing is capable of; we have produced the very original letters themselves, directed to him, with the post-mark from France, found all in his custody, and confessed to be his letters which he received from France, before three witnesses. This shews evidently that there was a traitorous correspondence, and is a plain Let us examine some of his own letters, and see whether the subject matter be not treasonable. It is not to be expected that men will in these cases speak out plain; no, the treason is always to be dressed up in a cant, and many of these cases have appeared in this place. In my lord Preston's case the overt-act charged there, was sending treasonable letters to France, to give the prince of that nation an account of our strength and forces here; those letters run all in a sort of cant, and it was in that case pretended, that the meaning was uncertain, and that no body knew what to make of some of the expressions in them; but notwithstanding that, both judges and jury took upon them to understand them, and he was found guilty of high-treason. 977] for High Treason. evidence, that the prisoner sent those letters mentioned to be received in D'Aulmay's letters to him, to which these were answers, and the let ters exactly tally as to dates, circumstances and subject. If there had been but one of those letters sent to the prisoner, containing treasonable matter, it would have been misprision of treason, if he had not discovered it; but his going on with the same treasonable correspondence for months together, and in so many letters, in every one of which he charges the prisoner with writing high treason, and he preserving all those letters, concealing and keeping them close; this is a strong evidence of his approbation and assent to that treason and traitorous correspondence. And so it is in the common case, if a man meet accidentally, not In the letter of the 29th of February, knowing of the design, and light into the company of traitors, and bear their discourse and D'Aulmay writes to the prisoner, and desires say nothing, if he do not discover it, he is guilty to know some news, because the interest of his of misprision of treason only, as a bare conceal-wife and family, which, says he, is Irish, is ment; but if he comes a second time into their company, and meet them again and hear their consultations, or the same treason is proposed and talked of, and he conceals it, he is guilty of high treason; because it shews a liking and an approbation of their design, and so it was reSo here, solved in sir Everard Digby's case.* all these letters that came from D'Aulmay, and were kept up close by the prisoner, containing treasonable matter, shew his approbation of the treason, and are a strong evidence, that he sent Now see what answer D'Aulmay those letters to his correspondent D'Aulmay, to It has been said, sends back; he gives his opinion freely, and which these are answers. thinks that this intended marriage of the chethat, admitting these letters were sent by valier de St. George (which by the way exD'Aulmay to the prisoner, yet he is not answerable for what others write: that, surely, is plains who the prince in Lorrain was) with the a great mistake; for if what he writes be trea- arch-duchess, would not be a sure way to bring son, it is his duty to disclose it; and if he do his affairs to an happy issue. What was to be not, but continue to receive such letters, this is done then? Why, says he, a party-war would a clear proof of his traitorous correspondence, be much more to his advantage. Is not this and by that he makes the treason his own. They easily to be understood? Is not this partywar, a civil-war, an insurrection, a rebellion? object farther, that the prisoner was only a conveyer of Mr. Harvey's and the duke D'Au- D'Aulmay then giving his opinion, that a remont's letters; but that this is otherwise, ap-bellion was the most eligible way; what is the pears from the letters themselves, for most of prisoner's answer? Why he closes with the adthem relate to himself, and are meant of him-vice, but says, that persons of fifty or sixty thouself, and of a correspondence with him; for it appears from his own confession in bis examination proved by three witnesses, that this French correspondence held from a little before the late queen's death, till a few days before his examination; which shews that the correspondence was his own, and carried on by himself. In the next place we come to consider the exposition and meaning of these letters, whether the subject matter be treason or not; one of the counsel for the prisoner said, there was nothing in them but about dogs and horses; but that is a mistake, for those were Mr. Harvey's letters, which talked sometimes of dogs and horses; but give me leave to say, there seems even in them to be a good deal of treason, intermixt with the discourse of dogs and horses. See it cited by Holt, vol. 13, p. 208, and by Mr. East's Pleas of the Crown, c. 2, s. 7. VOL. XV. concerned in it, his wife being a Butler, and of kin to the duke of Ormond. Francia, in answer to that letter writes him word, as for news, that he heard there was a marriage in good forwardness between the prince in Lorrain and one of the arch duchesses. Let me know, says he, what there is in it, since it is essential to the interest of your wife, that is to say, that Ireland as well as England was concerned in the Pretender's marriage; for every one knows who is meant by the prince in Lorrain. sand crowns a year cannot with prudence run the hazard of losing such estates, unless more encouragement be given them: What is this but soliciting aid and encouragement from France, for an enterprize in which men of estates must run the risk of losing them? It is said persons in the plural number, not one single person, though the prisoner's counsel endeavoured to put such a colour upon it; but it is plain in a party-war many must be concerned. In his letter of the 28th of March, after be had expressed a great deal of uneasiness and impatience, the negligence and delay of this assistance from France not usual in that nation, after he had wrote again and again, and wondered the delays were so great; at last, says he, we are now to expect every thing from your *See it, vol. 12, p. 645. 3 R Pretender to invade his majesty's dominions; and when he himself has allowed this, who is to gainsay it? Can you have a better witness than himself, to the subject of his own letters, and to explain his own meaning? There have been some reflections offered which by no means ought to have been, and I think were very improper on this occasion; and it is our duty to take notice of them when they are offered. It was said, by way of reflection, that first of all, the prisoner's books and papers were seized, and then they were turned upon him, and made use of against him, as if this was illegal, unusual, and new; side the water. What can be the meaning of this, but that the designed rebellion here was to be encouraged from France? And this surely is as much as can be expected in an affair of treason, unless people were to write out plain, which is never to be expected, unless from fools and ideots, who cannot commit treason. All D'Aulmay's letters to the prisoner tally with those of the prisoner's own, and pursue the same design, though under a cant which runs through most of them, as was in the lord Preston's case. In that case there was the cant of a law-suit, as in this; but my lord chief justice Holt, and my lord chief justice Pollexfen said, that would not acquit his lord-when every body knows in those cases, there ship of treason, if the jury understood them in that sense as every body else would. And why words and letters are not to be understood in court, as every body understands them out of court, is a hard matter to be explained. can be no other evidence; and is the same that has been done in all ages past, and must be done in all ages to come. I am sure they have no reason to charge the government with inclemency; there has been shewn, even in this very case, as much clemency and tenderness as was possible. When the noble lord, my lord Townshend, had the first information of treasonable practices against the prisoner, he had been justified, if he had immediately sent his warrant and sent him to Newgate for high-treason; but instead of that, he was cautious, and was willing to be further informed before he committed him; and there fore he sends to the post-office and orders bis letters to be stopped, in which he found the treasonable correspondence confirmed; and then he was taken into the custody of a messenger only, in order to be examined. His lordship thereupon gave him all the opportunities he could desire, of throwing himself at his majesty's feet; but he grossly prevari cated with his lordship, as appears by that letter wrote to his wife; wherein he takes notice, that in Newgate they were all Tories, and the majority for the government, i. e. sent thither upon that account: "You know, says he, why I am here, which cannot be a dishonour to me, be then at ease; I have not said any thing against Mr. Harvey, nor nothing can be done to him; he can only be suspected to be the Pretender's friend." It was indeed insisted by the counsel for the prisoner, that there really was a cause recommended to the prisoner's care: that is very true; but then the distinction between this private cause, and the public cause of the Pretender, appears from many of D'Aulmay's letters; sometimes he calls it our cause, sometimes the cause of our common friend, and in a very remarkable letter of D'Aulmay's dated from Paris, 7 August, 1715, he says, the prisoner was in the right to inveigh against that indolence he reproached them with; but be persuaded, says he, it is only so in appearance. I even hope, that by this time you have convincing proofs of it, and that we make suitable returns to the good disposition on your side, and that at last, God blessing the good cause of our friend, will let him gain his suit. To explain this letter, the time is very material, for on the 20th of July before his majesty informed his parliament, that he had undoubted intelligence of the Pretender's design to invade these kingdoms from abroad. And in other letters he distinguishes between the private cause, and the cause of the Pretender, and calls it my cause. And in a letter of the 14th of September, 1715, We know already, says he, what you tell us about the cause of our friend, which will soon end to And now give me leave to take notice, that his satisfaction, or all appearances will deceive in this letter he gives a further explanation of us; and then says, as to my own cause, I this business; for he says, "According to their cannot help telling you, that my fate is very information, i. e. the Tories, though every unhappy to have to do with so dishonest a man; thing should fail, my lord Townshend could If treason be not meant by those letters, what do nothing, for affairs will be at an end in less is? Let the prisoner tell us the meaning of than a fortnight." Now the time is very mathem. Neither he, nor his counsel, have of terial, every one knows that the rebellion was fered at any other interpretation, nor have of-just then breaking out; it began in Scotland in fered to explain but one single letter in the whole packet; and that has been observed was a poor interpretation, and contrary to the very grammar and sense of the letter. But what puts this matter beyond doubt, if there could be any, about the meaning of these letters, is, that he himself tells you in his examination, in express and positive terms, that the subject matter of the letters that were to be communicated to Mr. Harvey, which are the letters now pro·duced in evidence, was the intention of the September, and in England in October following. They have called some witnesses to the prisoner's reputation, but they have not proved any thing material on that head, nor given a tolerable account of him. But if they had, it would in this case be of little or no weight; when a thing is doubtful, reputation may sway a little, but in cases where the evidence is so full and plain as in this case, it can have no signification or weight. It was observed by us, that when the treasonable corre 981] for High Treason. spondence began to be more plain and full, then the prisoner desisted from entering his letters in his copy-book; in answer to which, it was urged by the prisoner's counsel, that it was improbable it should be so, for that the correspondence was entirely interrupted for several months together, because, as they insisted in one of D'Aulmay's letters, dated 17th September. he complains he had not heard from the prisoner in three months; but that is grounded on a mistake, for the person that uses that expression is not D'Aulmay, but another person, and it is wrote in French in a postscript under D'Aulmay's letter; for in the beginning of the letter itself, D'Aulmay expressly says, he had received the prisoner's letter of the ninth instant, which shews the correspondence continued, but was too gross to enter such letters in his copy.book, or to write he says, under the same name; for now, when he has any thing material, he would write in a strange hand, and would sign it by the name of Jacques Chrêtien, and that Mr. Harvey might write under the same name too; but none of these letters appear. Thus I hope I have answered every thing that has been materially objected by the prisoner's counsel, and if you, gentlemen of the jury, do believe that the prisoner at the bar wrote these letters, the copies whereof have been produced to you, and that those letters produced from his correspondent D'Aulmay, were received by the prisoner, and that he wrote the letters therein mentioned, and that he has therein carried on a traitorous correspondence, you will acquit yourselves to your king and country, and find him guilty of the high-treason charged upon him. Mr. Cowper. My lord, it may be proper on this occasion, Mr. Solicitor having repeated the particular parts of the evidence, to take notice of some things that have appeared in general in the course of this trial: we think it of importance to the public, that this traitorous correspondence should appear in a proper light, that the deluded populace may be no longer to seek, who were the persons that incited and fomented the late unnatural rebellion. The gentlemen of the jury will observe, that our evidence begins with a secret information which was given to a noble lord who was then secretary of state, of a traitorous correspondence carried on by the prisoner and his accomplices: that information was not immediately or hastily relied upon, but orders were given that all letters, directed to Francia the prisoner, should be intercepted at the post-office; accordingly you have heard, that several foreign letters from France, directed to the prisoner, were stopped, and sent to the secretary's office; those letters fully disclosing the treason, it was thought time to issue a warrant, and send a messenger to seize the prisoner and his papers; and it is to us wonderful, that one of the counsel for the prisoner should undertake to censure that proceeding, the neglect of which must have been censured, You have heard, gentlemen of the jury, that Amongst these papers, gentlemen, you will observe, there is one letter that relates to Mr. Harvey, which is now produced because it is evidence against the prisoner Francia: he, it seems, was to manage Mr. Harvey's correspoudence, and did so for a considerable time, but at last curiosity prevailed; and it is very remarkable, by what accident that original treasonable letter happens to appear now in this place: it seems the prisoner, in breach of the trust and confidence which was reposed in him, up, and put and to gratify his curiosity, opened the letter, and finding he could not seal it it together again in that manner, but that it might be suspected he had,opened it; for that reason he himself kept the very original letter under Mr. Harvey's own hand. When that letter comes to be read, it appears to be mysterious, as to the figures and numbers made use of, instead of the names of persons, but the prisoner's examination explains it, which shews he was master of the key, and of the secret. This discovery was attended with circumstances that will have their weight, in a cause that person of this nature: when this letter found upon the prisoner is produced to the wrote it, before a committee of the lords of the council, you have heard that he was in the utmost disorder, as indeed well he might, that he expressed himself ready to disclose all that he knew; for what person being in his condition, and seeing one of his own letters, which he believed safe in the hands of his correspondents abroad, would not have believed the government masters of the rest; I dare say Francia's impertinent curiosity was then unthought of and unsuspected. I am sorry, gentlemen, to mention a particular accident, which, however, serves to shew that the correspondence was of a dangerous nature, otherwise what account can be given, that that gentleman should, in about twelve hours after, make a desperate attempt upon himself? Mr. Hungerford. My lord, I apprehend that nothing of this matter ought to be mentioned here; whatever Mr. Harvey was liable to, he discontinue entering his own letters in his is now at liberty. Mr. Cowper. I say, my lord, it had that consequence, and if it had not been a discovery of the utmost importance, if it had not been thought very dangerous in its consequence to himself, that attempt upon himself had never been made: but so it was, and it is so far ma. terial, as it was occasioned by part of that correspondence which the prisoner was employed to transmit to the conspirators in France. You have heard, gentlemen, that Francia, when he was first examined, capitulated for himself; that he promised to make a full confession, and accordingly gave in a first, and second information, which have been read to you; and I dare say, when he signed those examinations, he really intended to save himself by a discovery of his treason; but when he had taken counsel with his party and fellow-prisoners in Newgate, you find, by his letter to his wife, he changed his mind, and the expression is to this effect, "He hopes he had said nothing that could hurt either himself or Mr. Harvey, and that he laughed at any thing the government could do to himself." Your lordship has heard how artificially and maliciously it has been insinuated, that the noble lord, the secretary of state, gave some hopes of intercession to be made in favour of the prisoner; I firmly believe, no man living that knows that lord, but thinks he would have been better than his word, if the prisoner had honestly deserved it. Whatever was said upon that occasion, proceeded from the prisoner's assurances, that he would make a full confession, that was the ground and condition upon which the prisoner was told he should be recommended to mercy. But let the world judge, whether that noble lord could justify it to the king, his country, or to himself, to interpose in his favour, when he came to discover, by a letter under the prisoner's own hand, that he was resolved to conceal all that he knew surely, the condition being broke by the criminal bimself, it became the duty of the noble lord not to intercede for an obstinate offender; one, that was determined to abide every extremity, rather than do his duty, by disclosing those treasons that were latent in his breast; so that we owe the discovery which is made by the examinations to the same Providence that has brought to light the rest of the evidence in a strange and wonderful manner. | copy-book. It has been said by his counsel, can it be imagined that a man would copy and enter letters of a criminal nature? But, gentlemen, the question is, whether he has done it? And you hear it proved by three witnesses, that he owned it to be his own copy-book of letters to his correspondents abroad; so that there can remain no doubt, but that every letter in that book is a copy of the original wrote by the prisoner: whoever will observe the time when he discontinues entering his letters as formerly, which was just as the rebellion was breaking out, will think it a strong evidence, if evidence were wanting, that the letters entered, contained a criminal and trai torous correspondence. Had the correspondence been innocent, the same method would have been continued; for the rebellion had nothing to do with the sham law-suit. But as the rebellion grew nigh, it became necessary to be more express and plain, as appears by all the letters to Francia from abroad; which is the true reason be discon tinued entering his own letters. Can any body that can bear or read, doubt, but that the prisoner continued to write to his friend Payen? I think there is not one letter directed to the prisoner that does not in the first line of it acknowledge the receipt of the prisoner's, "yours of such and such a date I have received;" and some of them acknowledge the receipt of two letters from the prisoner at the same time, which shews his diligence, and proves, that he writ oftener to his correspondent than his correspondent to him. You see, gentlemen, the letters from D'Aulmay, alias Payen, to the prisoner make it manifest he went on to the last in the same traitorous correspondence; but it cannot be expected his original letters should be produced. D'Auimay's letters plainly intimate the tenour of the prisoner's: I will trouble you but with an instance or two amongst many that might be observed. Of this kind are all those letters which dissuaded the prisoner from being impatient; that give him assurance they are not dilatory; that promise him every thing will answer his expectation. All these, and many other expressions of the like kind, manifesting that he was soliciting aid from France, and that he did what in him lay to incite, promote, and encou rage an invasion from abroad, and the rebellion at home. This, gentlemen, is the nature of the evidence that has been laid before you: the discoAfter so much time has been spent, it would very was accidental, the tracing of it is strange be tedious to observe the particular passages and wonderful. Deep and secret are the counof the letters which have been given in evi- sels of traitors; and yet we see, let them be dence; only this I would observe, that when never so cautious, whatever method they may the rebellion was not so near at hand, there seems take to disguise their treason, whatever subtil to be some little caution used in penning the inventions may be used to carry on their conletters which have been read out of the copy- spiracy, yet the same Providence that has book; but as the time grew near, the corre- placed his sacred majesty upon the throne of spondence also grew more warm and open, as his ancestors, will continue to guard and promay be perceived by the letters from abroad; tect him, and to baffle the devices of his enewhich is the reason, gentlemen, you find himmies. Upon the whole matter, we think we |
