and that therefore, after they have made a weak How confidently had it been given out by the faction, that the surrender was made on assurances, at least hopes insinuated of pardon : Whereas the truth appears to be, that fear was the only motive to it; the evil day was deferred; and the rebels rightly depended, fewer would die at last by the measures they elected, than if they had stood an assault: They were awed by the experienced courage, discipline,. and steadiness of the king's troops; and by the superior genius and spirit of his majesty's commanders over those of the rebels, so that in truth they were never flattered with any other terms, than to surrender as rebels and as traitors; their lives only to be spared till his majesty's pleasure should be known. It was indeed a debt due to those brave commanders and soldiers (to whom their king and country owe more than can be well expressed), that their victory should be vindicated to the present and future ages from untrue detraction, and kept from being sullied by the tongues of rebels and their accomplices, when their arms could no longer hinder it. It is hard to leave this subject without shortly observing, that this engine which sets the world on fire, a lying tongue, has been of prodigious use to the party of the rebels, not only since and during the rebellion, but before, while it was forming, and the rebels preparing for it. False facts, false hopes, and false characters, have been the greater half of the scheme they set out with, and yet seem to depend upon. It has been rightly observed, your lordship's Answer does not so much as insist, with any clearness, on that, which only could excuse your being taken in open rebellion; that you was forced into it, remained so under a force, and would have escaped from it, but could not. If you had so insisted, it has been clearly proved, that had not been true; for your lord. ship was active and forward in many instances, and so considerable in a military capacity among your fellow-soldiers, as to command a squadron. These and other particulars have been observed by the managers of the House of Commons, and therefore I shall not pursue them farther; But conclude this introduction to the sentence, by exhorting your lordship, with perfect charity, and much earnestness, to consider, that now the time is come when the veil of par tiality should be taken from your eyes (it must be so when you come to die), and that your lordship should henceforward think with clearness and indifference (if possible), which must produce in you a hearty detestation of the high crime you have committed; and being a Protestant, be very likely to make you a sincere penitent, for your having engaged in a design, that must have destroyed the holy religion you profess, had it taken effect. Nothing now remains, but that I pronounce upon you that sentence which the law ordains, and which sufficiently shews what thoughts our ancestors had, of the crime of which your lordship is now convicted: viz. the prison of the Tower from whence you came: That you George Earl of Wintoun return to 'from thence you must be drawn to the place ' of execution; when you come there, you must be hanged by the neck, but not till you be dead; for you must be cut down alive, then your bowels must be taken out, and burnt be. fore your face; then your head must be se'vered from your body, and your body divided into four quarters; and these must be at the ful to your soul! king's disposal.' And God Almighty be mer Serjeant at Arms. O Yes! Our sovereign lord the king strictly charges and commands all manner of persons to keep silence, upon pain of imprisonment. covered, and declaring there was nothing more to Then the Lord High Steward stood up un be done by virtue of the present commission, broke the staff, and pronounced it dissolved; And then leaving the chair, came down to the woolpack, and said, Is it your lordships' pleasure to adjourn to the House of Lords? Lords. Ay, ay. And then the House adjourned to the chamber turned in the same order they came down. of parliament, and the Lords and others re The earl of Wintoun was carried back to the Tower, from whence he afterwards made his escape. Soon after the termination of this trial, Curl and others were attached in consequence of a complaint which had been made (Ap. 13th, 1716) to the House of Lords, of a printed paper intituled, An Account of the Trial of the earl of Wintoun, which began on the 15th, and ended the 19th of March, 1716, mentioned to 'be printed for S. Popping, at the Black Raven, in Paternoster-row, 1716, price two-pence.' It appears that Curll suffered more than the others. On the 17th of April the House was informed that he was in custody. It was not until May 8th, that he presented a petition to the House, expressing his ignorance of their standing order, and his hearty sorrow for his offence, and praying, "in regard he had a family, which must inevitably be ruined unless the House have compassion on bim, that be may be discharged from his confinement." On the 11th he was brought to the bar, where having on his knees received a reprimand from the Lord Chancellor for his offence, he was discharged out of custody, paying his fees. While Curl was in custody, the House caused to appear before them (May 2nd), on account of the publication in a newspaper of "An Abstract of the Protest against the Bill for repealing the Triennial Act," the two printers and publishers of the newspaper, and the person who furnished the copy of the article in question. The House did not treat them with much severity. One of the publishers said, "that though his name was put to the said paper, yet he was out of town and never saw the same, till it was printed ;" and withdrew: and thereupon he was discharged from any farther attendance. The other two persons pleaded ignorance of the order of the House, begged forgiveness, and promised never to offend again. They on their knees were at the bar reprimanded by the Lord Chancellor, and discharged. 451. The Trial of FRANCIS FRANCIA, a Jew, at the Old-Bailey, for High-Treason: 3 GEORGE I.* A. D. 1717. FRANCIS FRANCIA having been formerly arraigned upon the Indictment found against him for high-treason, and having pleaded Not Guilty, was on Tuesday the 22d of January brought to the bar to receive his trial. Clerk of Arraignments. You the prisoner at the bar, these men that you shall hear called, and personally appear, are to pass between our sovereign lord the king and you, upon trial of your life and death. If therefore you will challenge them, or any of them, your time is to challenge them as they come to the book to be sworn, and before they be sworn. Cl. of Arr. Sir Dennis Dutry, bart. Sir J. Jekyll. My lord, we that are counsel for the king, desire, that those who are called may be asked that question; whether they have freehold (or copyhold) of ten pounds per ann. or not; before they are sworn in chief? Att. Gen. (Sir Edward Northey.) We sup pose the prisoner will ask that question; and therefore we desire that it may be asked of every one as they come to the book. L. C. Baron. That which you assign is no cause. Dire, with respect to his freehold; as all the (Then sir Dennis was sworn upon a Voir others were, before they were either challenged, or sworn in chief.)† Sir J. Jekyll. Sir, have you a freehold in this city?-Sir D. Dutry. Yes. Sir J. Jekyll. To what value? Sir D. Dutry. About ten pounds a year. Prisoner. My lords, there has been a suit depending between us. Att. Gen. If they talk of a suit, they must prove it by record. Prisoner. His name is Dennis; and they "If the cause of challenge touch the dishonour or discredit of the juror he shall not be examined upon his oath," [See Peter Cook's case, vol. 13, p. 334,]" but in other cases he shall be examined upon his oath to inform the triors." Co. Lit. 158, b. Upon which passage lord Coke's learned commentator Mr. Hargrave, observes, “This is one instance of the examination called à voir dire; for as a witness is on a coir dire to try an ob Mr. Ward. It is a challenge on both sides. L. C. Baron. (Sir Thomas Bury.) They ought to be sworn whether they have a free-jection to his competency to give evidence, so hold or not, if they would excuse themselves. a juror may be sworn in like manner to try Mr. Hungerford. I have nothing to offer the cause of challenge to him. It is thought against it. In case the king's counsel think fit to take notice of this; because in some of fit to proceed in that method, we concur in it. our books, the voir dire is described, as if 1 should have moved it myself, if they had not. confined to the challenge of a witness, and Att. Gen. It was in the trial of the rebels. only used to distinguish such a partial swearPrisoner. He has had a quarrel with me; ing of a witness from swearing of him in chief." and there was a suit depending between us Mr. Hargrave also notices that in this case, about seven years ago: and I challenge him and that of Mr. Townley (in this Collection for cause. 20 Geo. 2,) the challenges not being to the Att. Gen. He may challenge him peremp-favour' were examined into by the court withtorily, if he will. But if he challenges him for cause he must prove it. Prisoner. Sir Dennis will not deny it. L. C. Baron. If you challenge him, you must prove your challenge. Do you challenge him for cause, or peremptorily? Prisoner. For cause. 6 com out triors. As to more concerning the voir See Hawk, Pl. Cr. book 2, c. 43, ss. 12, 24. have given me a pannel with barbarous Latin. In my copy of the pannel, he is returned by the name Dionysius; that is not the same name. Mr. Ward. The prisoner observes, that in the pannel he is returned by the name of Dionysius, when his name is Dennis. Sir J. Jekyll. He is to have a copy of the pannel; but it is not to be put into English for him. Mr. Ward. But we say, that is not Latin for Dennis. Sir J. Jekyll. Sure no one will argue, but that Dionysius is the proper Latin name for Dennis. i L. C. Baron. You offer no cause of challenge. Prisoner. I hope I prove his name is returned in the pannel Dionysius. L. C. Baron. It is so; and that is Latin for Dennis.* Prisoner. No, it is not. Dennis is a saint in France, and Dionysius is a saint in Italy. They are two different names, and of different 'countries. L. C. Baron. Dionysius is Latin for Dennis. If they do not challenge him peremptorily, he must be sworn. Prisoner. I allege that we fell out about seven years ago: and that bis name is not Dionysius, as it is wrote in the pannel. And in my former pannel be was put down Knight, 'and in this Baronet. L. C. Baron. These things are nothing, except the suit; and that you must prove. Mr. Hungerford. As to the distinction of the two saints, I do not meddle in it. But I suppose sir Dennis can tell whether he is a knight or a baronet. But as to the saints, whether the nominal ones abroad, or the pretended ones at home, I let them alone. Prisoner. You allowed this challenge the last time. Prisoner. I must do what you order; but 1 think it very hard. Then I challenge him, Cl. of Arr. Sir John Scott, knt. Prisoner. I challenge him. Cl. of Arr. Sir Daniel Wray, knt. Prisoner. I do not except against him. (Then he was sworn.) Cl. of Arr. Sir W. Chapman, kut. Prisoner. I challenge him. Cl. of Arr. Joseph Chamberlain. (He was sworn.) Cl. of Arr. Jolin Casebert. Prisoner. He was upon the grand jury that found the Bill against me; and I challenge him for that cause. Cl. of Arr. Robert Wood. Prisoner. He don't write his name as it is in the pannel. I could never find this gentle man out by all the enquiry I could make. L. C. Baron. What is the mistake? Prisoner. It is wrote in the pannel con Att. Gen. You challenged him peremp-sonant, and he spells his name with a w. And torily. it is in the pannel a single l, and he writes it Mr. Ward. He was stiled knight in the last with a double l. pannel. L. C. Baron. That does not appear to us. You must either challenge him peremptorily, or he must be sworn. I *To this Latinity perhaps is applicable an observation which was made in the case of Layer, that it is more admissible in Westminster-hall than in Westminster school. The French, in their obstinate affectation of corrupting the orthography and pronunciation of all foreign names, ancient and modern, believe always pervert Aloving and Dionysius into Denys; and thus an antagonist of Burnet, in an unlucky display of second hand learning, was misled into a reference to the authority of Denys of Halicarnasse. Query as to the propriety upon any occasion of applying to English names the properties of other languages from which they are supposed to be derived, or into which they are supposed to be translated. (Then Mr. Cailovell being asked, said he wrote his name with a consonant, as in the pannel; but with a double II.) L. C. Baron. That does not alter the pronun ciation. It is the same name. Prisoner. I challenge him. Cl. of Arr. Thomas Davis. (He was sworn.) Cl. of Arr. John Dodson, esq. Cl. of Arr. John Davis. (He was sworn.) Cl. of Arr. Joseph Emmes. (He was sworn.) Cl. of Arr. John Farr. (He was sworn.) 901] for High Treason. Prisoner. I challenge him. Prisoner. I challenge him for cause. He is returned upon the pannel Greenway, and his name is Greenaway: that is a different name. Sir J. Jekyll. How are you usually called; Greenway, or Greenaway? Greenaway. I am most commonly called Greenaway. (Then he was set aside.) Cl. of Arr. John Glasbrook. (He was sworn.) Cl. of Arr. John Goodlad. ner in Newgate, may be sent for; and may he L. C. Baron. What is he in Newgate for? L. C. Baron. Then he may be sent for. Which was done accordingly. Cl. of Arr. Francis Francia, hold up your "He stands indicted by the name of Francis Francia, of London, merchant: for that he being a subject of our most serene lord George, king of Great Britain, France and Ireland, defender of the faith, &c. not having the fear of God in his heart, nor weighing the duty of his allegiance; but being moved and seduced by the instigation of the devil, as a false traitor against our said lord the king, his supreme, true, natural, lawful and undoubted lord; withdrawing that cordial love, and true and due obedience, fidelity and allegiance, which every subject of our said lord the king towards him ought to bear; and designing, and traitorously intending, the government of these kingdoms, under our said lord the king duly and happily established, to change and subvert; and our said lord the king from the title, honour, royal estate, empire and government of these kingdoms to depose; and our said lord the king to death and final destruction to bring; and the person in the life of king James the second, pretended to be prince of Wales, and after the death of the said late king pretending to be, and taking upon himself the stile and title of Cl. of Arr. William Kent. (He was sworn.) king of England, by the name of James the Cl. of Arr. Richard Levitt, esq. Sir J. Jekyll. 1 challenge him for the king. Cl. of Arr. Thomas Lingard. (He was sworn.) Cl. of Arr. Stephen Lee. (He was sworn.) Sworn were: Sir Daniel Wray, knt. John Glasbrook, Then proclamation was made, as is usual in those cases. Prisoner. I pray that George Flint, a priso third, to the crown, royal estate and dignity of against his majesty, and in favour of the Pretender. And that he did solicit men, arms and ammunition, from certain foreigners and others in France, to assist him in that rebellion. And that he did write, and cause to be written several letters, intimating this resolution, and requesting the assistance of such foreigners and others. The Indictment charges further, that he wrote and composed such letters, and caused them to be wrote and composed; and procured them to be sent and delivered for that purpose. And this, gentlemen, is laid to have been by him done, contrary to the duty of his allegi death of the said late king taking upon himself the stile and title of king of England, by the name of James the third. And that he the said Francis Francia, for the more effectual completing and perfecting the said treason and traitorous intention, did propose, consult, conspire and agree with divers other traitors, to the jurors unknown, to require, solicit and procure, from divers foreigners and others, in the kingdom of France, arms, ammunition and money, to assist and help in the said war. And that he the said Francis Francia did traitorously compose and write, and caused to be composed and written, several traitorous letters, notifying the intentions and resolutiens of him the said Fran-ance, against the peace of our sovereign lord cis Francia, and the said other traitors, to move and levy the said war; and requiring aid in the said war of the said foreigners, and other persons then in France. And the said letters so composed and written, and caused to be composed and written, did traitorously send, and caused to be sent to parts beyond the seas, to be delivered to the said foreigners, and other persons in France, and caused and procured them to be delivered accordingly, against the duty of his allegiance, against the peace of our said lord the king, his crown and dignity, and against the form of the statute in that case made and provided." the king, his crown and dignity, and against the form of the statute in that case provided. Gentlemen, to this Indictment the defendant has pleaded that he is Not Guilty. If upon calling our evidence for the king, we shall prove this case upon him; it will become your duty to find him Guilty of the Charge. Sir J. Jekyll. May it please your lordship, and you gentlemen of the jury, I am of counsel with his majesty: and, gentlemen, it is my part to open to you the substance of the Charge against the prisoner at the bar; and the nature of the evidence we shall offer to prove that The overt acts alleged in the indictment, to manifest that traitorous design of the prisoner, are three : Upon this Indictment he hath been arraign-Charge. ed, and hath thereunto pleaded Not Guilty: The prisoner stands indicted of the first speand for his trial bath put himself upon God and cies of high treason, mentioned in that ancient his country; which country you are. Your statute 25 Edw. 3, that is, compassing and imacharge is to enquire, whether he be guilty ofgining the death of the king. this high treason whereof he stands indicted, or not guilty? If you find that he is guilty, you are to enquire what goods or chattels, lands or tenements, he had at the time of the high treason committed, or at any time since. If you find him not guilty, you are to enquire whether he fled for it. If you find that he fled for it, you are to enquire of his goods and chattels, as if you had found him guilty: if you find him not guilty, nor that he did fly for it, you are to say so, and no more; and hear your evidence. Mr. Cowper, jun. May it please your lordship, and you gentlemen that are sworn: the prisoner at the bar, Francis Francia, stands indicted of high treason; in intending to alter and subvert the government of these realms, happily established under his majesty king George; to depose his majesty, to bring him to death, and to place the Pretender upon his throne. The Indictment sets forth, that for this purpose the prisoner, the first of September, in the second year of the reign of his present majesty, and at several other days and times, at London in your county, traitorously compassed and imagined to depose and kill his most sacred majesty, and to place the Pretender on his throne. And that for the more effectual performing such his intentions, he did meet, propose, consult and agree with several other traitors, to raise rebellion and war within this kingdom, He is charged with consulting and conspir ing, with other traitors, to levy war against the king, in favour of the Pretender to his majesty's crown: With conspiring and agreeing to solicit and procure assistance, from foreigners, and others in France, to carry on that war: And further with writing traitorous letters, notifying his and his accomplices resolution to levy that war; and requiring the beforementioned assistance; and sending those letters into foreign parts for that purpose. These are undoubted overt-acts of the hightreason charged upon him. To make good this Charge, we shall shew, that about three or four years since, there was a correspondence begun between the prisoner and abbot Butler, an ecclesiastic of Cambray. That correspondence began on the occasion of a law suit in England; wherein one Mrs. Butler a relation of that abbot was concerned; which was recommended to the prisoner's care. But some time after (a gentleman, whose name it will be necessary to mention in the prosecution of this cause) Mr. Harvey of Combe, took upon him to make use of that correspondence, in order to transmit and receive letters to and from that abbot: and also to the duke D'Aumont, by the means of the prisoner. |