13 fage: But that King James told him, he thanked them very much for their kindnefs and readiness to affift him, but at that time the French King could not fpare any forces, nor could it be all that fummer, and thereupon it refted till the laft winter. and the reft horfe and dragoons; and they did impower him in their names, to affure the late King James, that they would, when ever he landed with his French troops, be ready to affift him with near two thousand horse among them. Upon this, gentlemen, Mr. Charnock undertook to go upon this meffage, but about a week after they met again, for he was unwilling to go upon fuch an errand, without having a full refolution and affurance from these gentlemen that were thus engaged, that he might fatisfy the late King what they would certainly do. So they met again about a week after, and that was at a tavern in St. James's Street, near Sir John Fenwick's lodgings, one Mrs. Montjoyes, there was the prifoner at the bar, my Lord of Aylesbury, and most of the fame company that were at the meeting before; and Mr. Charnock defired to know, if they did agree to what had been propofed and refolved on before; for he was unwilling, and did not care to go without a full af furance of the performance. They did all agree, and defired that he would go with all speed, and that he should affure King James, they would be ready to meet him, if they had notice where he would land. Pray, gentlemen, obferve the time when thefe meetings were. It was in May or June laft foon after the King was gone to Flanders; and they thought this a fit opportunity, when the King's forces were drawn out of England into Flanders, for carrying on the campaign, then was the proper time, according as they difcourfed the matter, the people being as they faid, generally diffatisfied, and but few forces in England to oppose them. Mr. Charnock accordingly went over into France, and about a month after returned again, and acquainted them that he had told King James their refolution, and how they would affift him, and what they defired of him, and, in short, had delivered his mef VOL. II. No. 32. Then, gentlemen, you will hear that the laft winter the defign was renewed again, about January laft: For Sir George Barclay came over from the late King, being a Lieutenant in his guards there, and then they entered. into a confpiracy to affaffinate the King; and that was to be done firft, to facilitate the invafion, which was to follow immediately upon the execution of the af faffination; for they thought they could have no affurance of fuccefs in their invasion, as long as the King lived; and I hope every one will take notice, how precious that life is to us, when it is fo apparent to all the world, that our enemies cannot hope for any fuccefs to their enterprizes and defigns to deftroy us, but by taking that life away. Gentlemen, this very confpiracy, you will hear the prifoner at the bar was acquainted with, and privy to, even this asfaffination; though indeed you will hear he did not much approve of it, because he thought it would be a differvice to the late King's affairs; but he was at feveral meetings with Mr. Porter, and Mr. Charnock, and Sir William Perkins, and several others that were confpirators in that defign, and was acquainted with it, as you will hear by the evidence. Gentlemen, you will hear further, that about January laft, the invafion being intended to be quickly made, the prifoner at the bar, Sir John Freind, had frequent meetings with Blair, that was LieutenantColonel, and other officers, to confider and prepare how to be in a readiness. About that time the prifoner at the bar, Captain Blair, and one Captain Ridley, met at a place in Exchange-Alley, and there they D difcourfed difcourfed among one another; and there Ridley faid there was a confiderable Roman Catholic that was fent to King James, and he would bring the laft orders; and Sir John Frend faid he knew of it very well, it was fo, and he hoped he fhould have them brought very quickly. At another time, the prifoner at the bar, and Blair, his Lieutenant-Colonel, met at Jonathan's Coffee-Houfe, and the prifoner took him up in his coach, and carried him along with him, and there they had a great difcourfe of the affairs of the regiment. The prifoner at the bar, Sir John Friend, told Blair they must be very good husbands of their money; for if the invalion fhould mifcarry, he should not have money enough to carry on his trade, but he would take care about fome officers that had not money to mount themfelves; but a great many were to prepare for themfelves at their own charges, and for thofe that were to be under them. They had likewife then fome difcourfe about the Thoulon fleet coming about, and that he thought it not advifeable till the Thoulon fleet came found. He said he would not put a foot in the stirrop till that were done, and that he would keep out of the way till all was in a readiness, and advised Captain Blair to do fo too. Gentlemen, you will find it further proved, that about May laft, the prifoner at the bar paid 20l. to this Captain Blair, who had laid out monies in the affairs of the regiment, and this was to reimburse him what he had fo laid out; and it was in this manner. You have all heard, I fuppole, of one Colonel Parker, who being taken upon his coming over from France, was a prifoner in the Tower, but made his efcape from thence, to which efcape the prifoner at the bar was privy. This efcape coft 300l. as you will hear, and the prifoner laid down 100l. of it. But this was to be repayed him again: But how was it? There was one Johnfon a Pricft, a conípirator likewife in this defign of affaffinating the King, and he undertook and promifed, that the late King fhould pay this 100l. And accordingly one Piggot went over in.. to France, and had this 100l. paid him by King James, to repay it to Sir John Friend: But he thought fit to keep the money, and Sir John Friend could not get it of him, and he durft not ask it, because he knew the confideration was not fit to be made public. But he told Captain Blair, I cannot pay you the money out of my own pocket, but Piggot ought to pay me, who has received this money of mine. If you will prevail with Johnson, who got this money from the late King James to be paid to Piggot, to perfuade Piggot to pay 201. I will allow it in part of the money he is to pay me, and you fhall have it. Captain Blair did prevail with Johnfon to perfuade Piggot to pay this 201. and Captain Blair did receive it, and Sir John Friend did agree to allow it to Piggot out of the 100l. due to him. Gentlemen, at another time, about Christmas laft, there was another 201. paid by Sir John Friend's order and direction, by Piggot to Blair upon the fame account, by the mediation of Johnson the Priest; and this was paid and allowed as being laid out in the affairs of the regiment before, he being entrusted as Lieutenant-Colonel, to look after the regiment. Gentlemen, I have now opened the fubstance of the evidence; the particulars you will hear from the witneffes themselves. If I have opened it amifs, you will take care, when the witneffes are produced, to obferve what they fay, who will tell you what really was done, and will rectify any mistake of mine: For I would have no fuch mistake do the prisoner at the bar any prejudice. Sol. Gen. Gentlemen, Mr. Attorney has opened the nature and course of our evi dence 1 dence fo fully, that I fhall make no repetition of any of the particulars; but call our witneffes and prove it in order as it hath been opened And firft, we call Captain George Porter, (who came in.) Friend. My Lord, before Mr. Porter is fworn, I defire to know whether he is a Roman Catholic, or a Proteftant? L. C. J. Why do you defire that? Is not a Roman Catholic a witnefs? Though he be a Roman Catholic, that's no objection to his being a witness. Friend. My Lord, I defire to ask him the queftion, whether he be a Roman Catholic or no? L. C. 7. Sir John Friend, it is not a proper queftion. Friend. My Lord, a man ought to know what profeffion they are of, that are witneffes against him for his life. L. C. J. Will you ask him whether he be a Chriftian or no? Friend. My Lord, I defire to know whether he be a Papift or a Proteftant. Att. Gen. If Mr. Porter be willing to tell you he may; but it is not a proper question. L. C. J. Especially before he is fworn, he is not entitled to afk any questions whatfoever, till he be fworn. Friend. My Lord, I beseech you let me have the queftion answered. Sol. Gen. Sure you don't confider, that the answer to that queftion is to accuse himself, you don't confider the confequences of it. Friend. Pray, my Lord, let me have my right. L. C. 7. The queftion is whether it is your right or no. Friend. My Lord, I would not trouble the court if I could help it, but my life and all is at stake, and I must make the beft defence I can. L. C. 7. Indeed your queftion is improper in itself; but if he have a mind to tell you, and aniwer voluntarily, he may. Friend. I humbly beg your Lordship that he may answer the queftion. L. C. J. I cannot fee you have a right to have this queftion anfwered you. Friend. Mr. Porter, you are a gentleman, and I defire you will answer whether you be a Roman Catholic or not. Sol. Gen. Before he does anfwer, I defire he may be acquainted with the danger: He was born a Proteftant, no doubt, and then turning Roman Catholic, he fubjects himself to a very fevere penalty. L. C. 7. Sir John Friend, I told you your question was not proper to be afked. Friend. Pray, my Lord, let him answer the queftion, it will be of great ufe to me in my trial; pray let me have my right. L. C. J. You fhall have all the right done you that can be; but in the first place, if a man be a Roman Catholic, notwithstanding his religion, he is a good witnefs And befides that, it may be his anfwering the queftion may fubject him to feveral penalties; at least he is liable to profecution upon feveral Acts of Parlia. ment that are very penal; and therefore it is by no means to be asked. Friend. My Lord, I pray only that he may anfwer the queftion. L. C. 7. No man is bound to answer any question that tends to make him accufe himself, or fubject him to any penalties. Friend. My Lord, I do with fubmiffion defire it, and it is no great matter for him to fay whether he be Papift or Proteftant. L. C. J. If it be no great matter, then why do you infift upon it? But perhaps it may be a great matter in the confequence of it to him; a man therefore is not obliged to answer any fuch questions. Friend. I beseech your Lordship, let him antwer the question. L. C. J. You have my opinion; if you will, you fhall have the opinions of the reft of of the Judges: My opinion is, that the question ought not to be answered. L. C. J. Treby. Since your Lordship's pleasure is, that we fhould deliver our opinions upon this point, I must declare, I am of the fame opinion, that no man is bound to answer any queftions that will fubject him to a penalty, or to infamy. If you should ask him, whether he were a deer-stealer, or whether he were a vagabond, or any other thing that will fubject him to punishment, either by ftatute or by common-law, as whether he be guilty of a petty larceny, or the like, the law does not oblige him to anfwer any fuch queftions. Friend. Well, I hope the jury will confider it, that he will not anfwer the queftion; and therefore they are to take it for granted that he is fo. L. C. 7. Treby. And now to this prefent purpose, to afk a man whether he be a Popish Recufant, is to fubject him to danger: For when you afk him that question, if he were not bred up in that religion, then for him to own himself of that religion now, is to own as great a crime as that you are charged with. If it were not If it were not fo, but he was always bred in that religion, yet there are very great penalties that he is fubject to, as, the confifcation of two third parts of his eftate, and feveral other things that he may be liable to, if he should difclose that upon his answer to the queftion, which without this difcovery could not be proved perhaps. We must keep the law Iteady and even between the prisoner and the witness. Juftice Nevil. I am of the fame opinion, it does fubject him to a penalty; and unlefs he will voluntarily answer it of himfelf, I think it cannot be demanded of him: For he may fubject himself to a profecution by it. Juftice Rokeby. I think, it is not a quef tion that can of right be impofed upon him; he may answer it, if he will; but he is under no obligation to answer it, because it may tend to accufe himself of a crime for which he may be profecuted, and likewife will fubject him to other penalties, which the law cannot compel him to fubject himfelf to. Then Captain Porter was fworn. Friend. I hope, Gentlemen of the Jury, you'll confider this, Sol. Gen. Mr. Porter, do you know Sir John Friend, the prifoner at the bar? Capt. Porter. Yes, Sir. Sol. Gen. Pray then will you give my Lords and the jury an account what meetings you have had with him, where thofe meetings were, and when, and what paft between you, about inviting the French over hither, or for a rifing here. Capt. Porter. My Lord, about the latter end of May laft, or the beginning of June, we had two meetings, one was at the King's Head in Leadenhall-ftreet, the other at Mrs. Mountjoye's in St. James's-ftreet. At the first meeting there were present my Lord of Aylesbury, my Lord Montgomery, Sir John Friend, Sir William Perkins, Sir John Fenwick, Mr. Cook, Captain Charnock, and myself; after dinner Mr. Goodman came in: Now at both thofe meetings it was confulted of, and agreed, to fend Captain Charnock into France to King James, to defire him to borrow of the French King ten thousand men to come over hither, eight thousand foot, one thoufand horfe, and one thoufand dragoons. Captain Charnock faid, he did not care to go upon a foolish meffage, and therefore defired to know what they would have him to acquaint King James with, and affure him of. They all agreed to meet the King, whenever they had notice of his landing, with a body of two thousand horse; of which every one in particular was to bring their quota where-ever he would appoint. Att. Gen. When was the fecond meet ing? Capt. Porter. That was at Mrs. Mountjoye's. Att. Gen. But I ask you when it was? how long after the first? Capt. Porter. I believe it was about a fortnight after, or so. Att. Gen. What was that meeting for? Capt. Porter. The fecond meeting was to confirm the firft. Capt. Charnock informed me, that he was to go within three or four days, and therefore defired to have a meeting before he went. Att. Gen. What discourse was there at that fecond meeting? What occafion was there for it? Capt. Porter. Capt. Charnock defired the meeting once more before he went, to fee whether we all kept our resolution. Sol. Gen. Pray, what do you know of Sir John Friend's agreeing to raise a regiment of horfe? Capt. Porter. I know nothing of that matter, but what I have heard several people talk; but I have heard him fay he would be as ready as any man whenever the King came And I have heard from Captain Charnock, and from Sir William Perkins, that he had a commiffion to be a Colonel of horse. Att. Gen. Pray, Sir, upon that fecond meeting, who were present ? Capt. Porter. I told you, Sir, the prifoner at the bar was prefent at both meetings. Sol. Gen. Who elfe were there? Capt. Porter. My Lord of Ailefbury, Sir William Perkins, Capt. Charnock, and I cannot tell whether my Lord Montgomery and Mr. Goodman were there; Mr. Cook and myself were there, but the prifoner at the bar I am fure was there. VOL. II. No. 32. Sol. Gen. Pray Capt. Porter, will you remember and recollect yourself, who were at the first meeting? Capt. Porter. I have named them already, Sir. Sol. Gen. Name them again then. Capt. Porter. My Lord of Ailesbury, my Lord Montgomery, Sir John Friend, Sir William Perkins, Sir John Fenwick, Capt. Charnock, Mr. Cook, and myself; we dined there, and after dinner Mr. Goodman came in. Att. Gen. Pray, Sir, when did you fee Mr. Charnock after this, and what dif courfe had you with him about his journey and the fuccefs of it? Capt. Porter. I never faw him till three or four days after our riot bufinefs in Drury-lane, upon the account of which I had been a prifoner in Newgate. Att. Gen. Well, and what did he say to you? Capt. Porter. He told me that he had been in France, but that King James told him, the French King could not fpare fo many men that year; and withall, that he had been with Sir John Friend, and the feveral other perfons, with meffages from the King, but I do not know whether he had been there or no, only as he told me, that he had been, and brought that anfwer. Att. Gen. Pray now tell us, what other meetings you have had about this matter, this winter. Capt. Porter. I was once with Sir George Barclay and Sir John Friend, at the Nag's Head in St. James's-ftreet; I cannot tell what difcourfe they had, they whispered among themselves. Att. Gen. Who elfe was there? Capt. Porter. There was Sir George L. C. 7. Where was that do you say? E |