outlawed for treason before he committed a new treason, when he went into the West, and was there with Monmouth in the late rebellion; and though, gentlemen, the very outlawry against the said Burton is enough to satisfy any man, that this man could not be ignorant that he was a traitor, for no man can imagine, when a man stands out a process till he become outlawed for high-treason, that any should be ignorant that he is guilty of treason, and that it would be very dangerous to receive a man after that, without any more evidence: but this Burton, after he was out-lawed and fled, came again, and was in arms with Monmouth in the rebellion; and after their defeat he came up to town: and Fernley, knowing he had been then in the West with Monmouth, he received him, and harboured him; and this we will prove by witnesses. First, we will shew the record of the outlawry. Clerk." An Indictment preferred against -James Burton, and divers others for high-treason, for which the said Burton and divers others stand out-lawed, by the return of SaAmuel Dashwood, esq; and sir Peter Daniel, sheriffs." This is the record itself, my lord. Counsel. Swear Mr. Ward. [Which was done. Hardisty. Upon Monday next after the feast of the country, after I had been in the army; I came home to my wife, and staid till Friday night, and on Friday night she got me a lodg ing at Mr. Fernley's; there I went about ten a-clock at night, and staid there till Sunday night, and I was taken. Just. Withins. Did you see Mr. Fernley? Burton. I saw him at dinner on Sunday, and not before. L. C. J. What acquaintance had you before? He does not keep a public house, does he he? Burton. I had been gone two years, or very nigh. L. C. J. What was the occason of your going? Burton. My wife was acquainted there. L. C. J. What was the occasion of your going away, and your absence for two years. Burton. The occasion of my going then, was, I was in the proclamation for being with | Rumbold at the Mitre-tavern within Aldgate. Just. Levinz. Fernley knew you, before, did not he?-Burton. He knew me by sight. Just. Levinz. Had you any acquaintance with him. Burton. I lived pretty near to him for a while. Just. Levinz. How near? Burton. I lived within two or three doors of him. Just. Levinz. Did he know you? Just. Levinz. You came to lodge at his Burton. Yes, an't please you. of St. Martin, Bishop, the said Richard Rum-house on Friday night? Just. Withins. Is James Burton among them? Hardisty. On Monday next after the feast of St. Michael, the said Richard Rumbold, James Burton, Richard Nelthorp, are outlawed, and every one of them is outiawedIt is November was twelve-month. Call James Burton. [Who was sworn.] Mr. North. James Burton, stand up there; do you give my lord and jury an account concerning your being in the West, and your being entertained here at Mr. Fernley's house, with all the circumstances. Burton. I came out of the West into Lon-don, on Wednesday night, from Monmouth's .army. L. C. J. What Wednesday night? Burton. Truly I have forgot the day of the month, but it was about three weeks after the rout, and I came home to my wife and staid two nights, and she was not satisfied I should be there, and went to endeavour to get a lodg. 'ing for me for two or three nights; and she went to get leave at Mr. Fernley's for me to be there two or three nights; and I went thither on Friday night, and on sabbath day in the evening I was taken there. Sol. Gen. Speak aloud, say that again. Just. Levinz. Had you no discourse till Sunday you dined together? Burton. No, not till Sunday at dinner. Just. Withins. Tell your discourse at dinner. Burton. My lord, I have forgot what altogether the discourse was; I had some discourse of the army; he knew I was in the army. L. C. J. I would have you speak the sense, so far as you remember of the discourse at thai time with him. Burton. The sense as far as I remember, was, that the army was routed. L. C. J. And that you were there? L. C. J. How came he to know you were there? Burton. I believe I told him so myself. Mr. Just. Upon your oath, did he know you fled upon the account of the proclamation before? Burton. It is like he might know it by others but not by me. L. C. J. When were you taken? What day? Burton. I was taken on Sunday in the erening: I had been four days in London; two days at home, and two days at his house. L. C. J. Did you not see him before Sunday at dinner? Burton. My lord, he was in the shop all Saturday; he is a barber. Just. Withins. You lay privately at his house all Saturday? Burton. Yes, my lord, privately. Counsel. Call Mary Burton. [Who was sworn.] Mr. North. How came this man to lodge at Mr. Fernley's house, can you give an account? and why it was? Mrs. Burton. Because I thought he was not safe at home; and having acquaintance with Mrs. Fernley, lodging pretty near, and she being a young woman, and having children, I had acquaintance, going to and fro; and we having a close house and no yard, I had the privilege of going to dry linen there, so that we had acquaintance, and a little familiarity; and being acquainted, I thought I might have entertainment there; that is all I can say. L. C. J. Were you at dinner upon Sunday? Mrs. Burton. Indeed I can't say they had any discourse, I was very ill, and laid me down upon the bed and fell asleep. L. C. J. You are upon your oath. L. C. J. What discourse was at dinner? Mrs. Burton. Whilst I was eating, I did not mind. Just. Levinz. You lived close by, why did you ask for a lodging there? Mrs. Burton. We do not live close by now, I live with my daughter. I have no house now. Att. Gen. Had you any discourse with your neighbours about that proclamation your husband went away upon? Mrs. Burton. I had not, indeed. Then Mr. Reynolds was sworn. Mr. North. Mr. Reynolds, what do you know concerning Mr. Burton's being lodged at Mr. Fernley's house? Reynolds. Towards the beginning of August last, hearing that there were several that were in the west lurked about Wapping, I took the Lieutenant of the Tower's warrant, and we had some intimation, that a suspected person lay at Mr. Fernley's house; I went on Sunday about eight o'clock at night, and took Mr. Burton in Mr. Fernley's house. Just. Withins. You took him there, did you? Reynolds. I took Burton; and Mr. Fernley being master of the house, I wished the con stable to secure him for harbouring him. Att. Gen. What did Fernley say? Reynolds. Says I, Mr. Fernley, how come you to harbour Mr. Burton that is in the king's proclamation? He is a traitor, you know. Says he, I did not know it was Mr. Burton ; but my wife desired me to lie out of the chamber where I lay before, that a friend of hers might lie there for two or three days. Att. Gen. Where did you find him? Reynolds. He was in a room up one pair of stairs, up the chimney; and while we were there, he fell down the chimney, with all the soot about him; Mr. Fernley was then one pair of stairs higher; and I desired the con Just. Levinz. She knew he was your husband, why should you lodge your husband at another house than where you lodged your-stable to go up to see for him. self? Mrs. Burton. What was it you said, my lord? Just. Levinz. Sure you would give the woman some account, why you lodged your husband at another house than where you lodged yourself. Mrs. Burton. She was not altogether a stranger, and upon the account of the proclamation there were none of them strangers. L. C. J. For whom did you ask a lodging? Mr. North. Did you speak with Mr. Fernley himself? Mrs. Burton. I did not speak with Mr. Fernley himself. Mr. North. On Sunday you saw him at dinner? Mrs. Burton. Yes, I saw him at dinner. Just. Levinz. Had you any discourse with them about the proclamation? Att. Gen. About your husband's going away upon that proclamation? Mrs. Burton. An't please you, my lord, my distress was so great, that I was hardly in my senses to discourse with any body; but, I VOL. XI. Att. Gen. Had you no discourse with him about the business of being in the army? With Fernley, I mean? Reynolds. No, my lord. L. C. J. Did you hear no discourse between Burton and him?-Reynolds. No, my lord. Just. Withins. He was very friendly, to lie out of his own chamber for him. Reynolds. They were put in two separate chambers, by the king's direction, till they were sent to Newgate. Att. Gen. Did he tell you on Sunday night that he did not know it was Burton ? Reynolds. To the best of my remembrance, Reynolds. I looked upon it as an excuse. Mr. North. What time on Sunday? Reynolds. Sunday about eight o'clock at night. He had been in bed my lord, I believe; and before we could get open the door, I believe he got out of bed, and went to get up the chimney. 2 D forbear, and not to seize him presently, till I had acquainted some magistrate; and I did think in the morning to have gone to a justice of peace, and have had him apprehended : Burton, my lord, I knew was secure, for he could not escape my hands. I had no design of concealing him; I have several eminent gentlemen to testify for my loyalty. I thank God, I never had an ill thought against his majesty in my life, only this misfortune hath befallen me upon the account of my wife. I am as innocent as a child unborn, as to any thing against the king. Sol. Gen. Gentlemen, you observe in the course of the evidence the first we produce is James Burton; now James Burton stood outlawed for treason, and as he stands outlawed he is not a competent witness: but now to take off that objection which the prisoner ought to make, but we make it for him, we shew you here a pardon whereby that outJawry is discharged, so that he stands now a very legal witness. Just. Withins. You understand, gentlemen, what Mr. Solicitor mentions? [The Pardon produced and read.] L. C. J. What say you? Fernley. My lord, I am charged for entertaining Burton. My lord, I knew nothing of him when he came into my house till Sabbath-day at dinner. I asked my wife what time Burton came in; she told me he came on Friday night. Saturday was a busy day with me, my lord; on Sunday morning I got up and went to church; when I came from church, I went up to dinner; and when I came in and saw him, I asked him, what in the name of God brought him there? It hath pleased God, said he, to preserve me hitherto; and my wife interceded so far, as to procure me a night's lodging, which I hope may be no detriment to you. I wish it may not, said I; and at dinner I asked him, how he made his escape? And he told me how he did escape. Says I, What do you mean to do? Says he, Some friends will procure me a passage beyond sea. Upon this I considered with myself, and discoursed with him about the west, and his escape out of it; and about half an hour after we had dined, one knocked at the door. Just. Levinz. What day was this? Fernley. Sabbath-day at noon, somebody knocked at the door, and they told me there was one would speak with me, and I came down, and there was one Gaunt in the shop; says he, is Mr. Burton within? May I speak with him? Yes, said I, up I went, and Gaunt with me; and when we came into the room they embraced one another, and were very glad to see one another; and Burton gave Mr. Gaunt thanks for a guinea he had sent him. Says Gaunt, Mr. Burton, I am glad to see you; I hope in a little time I shall have a passage for you beyond sea: says he, if you had been here a while sooner, you might have gone; there are some gentlemen went away a while ago. Says I to Mr. Gaunt, who were they? He told me it was major and his son, and another. Says I to Mr. Gaunt, do you hear of Ferguson? No, says he, I hear nothing of him as yet, but in a little time I may hear from him; and Burton asked, when he thought he might be going? In a day or two's time, said he. Says Burton, I have no money nor no clothes. Says he, take no care for that; so he named some gentlemen that were to go: he told him of colonel Danvers and major Wildman. Upon this discourse, within myself I did consider what way I might do his majesty a piece of service: I thought it better to L. C. J. But he plainly told , he came from the army? Fernley. He did acquaint me, my lord, he did so; as soon as I saw him, I was startled; I did look upon it as a thing sent from God Almighty; for I knew, my lord, that there was 100/. for him; I knew there was a proclamation out against him; but as for the outlawry, I knew nothing of that: a proclamation I knew there was against him, and being a poor man, there was no obligation upon me to conceal him, and ruin myself and family. L. C. J. What was the reason, you were so kind as to part with your own lodging to entertain him? Fernley. My lord, I had quitted my chamber before he came to the house. Just. Withins. It is proved you did it upon his account. Fernley. My lord, no body will offer to say that. L. C. J. That you quitted your lodging, and that he came into the same lodging is clearly proved. Fernley. My lord, my chamber was flited above a week before he came, not knowing of him, for I had no thoughts of him. L. C. J. Pray what servants have you? L. C. J. Could not you have sent out your boy when he had discoursed thus treasonably with you, but keep him in your house seven.or eight hours after you had entertained him at dinner. Counsel. Are you a constable? Fernley. I am a constable myself, and upon the account of my office I was the more secure. I was certain he could not escape my hands, and I thought to do his majesty more service. L. C. J. How could you do his majesty more service? Fernley. Gaunt told him, he would come again to him. L. C. J. When did he come to you? Fernley. About half an hour after dinner. L. C. J. But you should have seized him immediately after dinner. How came this man to take so much freedom before you that were an officer, as to talk high-treason? Fernley. My lord, I thank God, if I were to die this minute, I never harboured a thought against the king. L. C. Baron. (William Montague, esq.) LÊ you had had a loyal heart, you should have kept Gaunt, if you had any thoughts to have done it. Fernley. My lord, I will tell you why I let Gaunt go, because he promised to come again the next day L. C. J. Would you, being a constable, let a man go upon his word, that had confessed himself guilty of treason? Fernley. My lord, if I did any thing, it was ignorantly. My lord, as for Gaunt, when I knew there was a proclamation out against Danvers and Wildman, I hearing Gaunt dis coursing about their design, I thought (promising to come the next day) to know how they were to go. Just. Levinz. For God's sake, would you trust all this to your own breast! If you had had an honest intention, you would have gone to some officers, and acquainted them with it; some of the king's justices of the peace, or some of the privy-council, that such persons would be at your house the next day. L. C. Baron. By your own discourse, after you had heard all this discourse, and after Burton had told you this, you could let him go quietly to his own chamber: If you had such a design, as you say, you should have first seized Burton. Fernley. Another chamber; no, he dined in his chamber, my lord. Just. Withins. You went into another chamber from him. Have you any witnesses? Just. Levinz. They had a confidence in you, otherwise Burton and Gaunt would not have talked so freely before you. L. C. J. There was a great confidence in lodging him in your house, being a constable; no body would search a constable's house. Have you any witnesses to call? Fernley. Mr. William Rush, captain Haddock. [Who were called.] L. C.J. Did Burton's wife dine with you and him?-Fernley. Yes, my lord. L. C. J. Where did you dine? Fernley. In the chamber, my lord. L. C. J. And was this discourse concerning Monmouth's being beaten in the West, at this time of dinner? Fernley. The discourse of it? Yes, my lord, what discourse was, was at dinner. Just. Was Burton's wife at dinner, or man, you could not but be privy to; there was only you three at dinner, your husband, you, and Fernley, the prisoner at the bar: All this discourse was at dinner-time, how is it possible that you should not hear it? Just. Levina. Fernley himself owns he did discourse with your husband at dinner, that he came from the rebels in the West. Mrs. Burton. An't please you, my lord, I did not hear. As I said before, I must say again, I did not hear. Just. Withins. Nothing about Monmouth? Mrs. Burton. No, not one word, if I were to die as I stand here. Just. You were at dinner? Just. And this discourse was at dinnertime?-Mrs. Burton. I did not hear it. Just. Withins. What would you ask him, Sir? Fernley. What account can he give of my life and conversation, how I have behaved myself, and carried myself. L. C. J. What are you, Sir? What is your quality?-Rush. I am a distiller, Sir. Just Levinz. Where do you dwell? Rush. I did dwell two years ago in Wap. ping, but not now: I live now at Walthamstow.-Officer. He is a very great Whig. Just. Withins. If he be a Whig he cannot be a little one. L. C. J. How long have you lived at Waltham-stow? Rush. Two years and upwards, Sir. L. C. J. That is long before any thing that this man is charged withal. Rush. I formerly knew the man, he was a barber, and used to trim me: I always looked upon him to be a good sober man. Just. Withins. A Wapping-man! a sober Wapping-man! Rush. I hope there is a great many there. Rush. I have nothing to say to his fact: He demeaned himself always well among his neighbours; I know nothing of the fact for which he is here. Att. Gen. Did you know Burton ? Att. Gen. What was Burton? was he reputed an honest man? Rush. I never knew him otherwise; I never was in his company; I know he dwelt close by where I lived. L. C. J. And you took him to be a very honest man? Rush. Before this: He has not been so lately, it seems. He is a person I never had any company or conversation with in my life. Cryer. Captain Haddock. Officer. He won't come in, my lord. Officer. He won't come in, I can't make him come in. L. C. J. Here are none that give any testimony for you, at least will. What are you? Whittal. I dwell in Wapping, Sir. Just. Levinz. What trade are you? Whittal. A plumber. Just. Levinz. Who knows you? Whittal. I am well known there, Sir. Just. Levinz. Do you go to church? acquainted, that this James Burton was not only guilty of the late rebellion in the west, but he was likewise charged by process with being guilty of the plot at the Rye-house, and thereupon there were such proceedings by law, that he was outlawed, the record of which out Whittal. Here's Mr. Tanner knows me, the lawry hath been produced to you: so that if Clerk of the Peace. Tanner. Yes, Sir, I know him. Just. Withins. There were a parcel of them that went constantly to church trimmingly. L. C. J. Prisoner, what would you ask him? Fernley. Only to give an account how I be haved myself. Just. Withins. Well, Sir, what do you say? Whittal. All I know is, he behaved himself very well, and went to church as other neighbours did; and I never heard him speak against the government. Just. Withins. Did you know Burton ? Whittal. No, Sir, he was gone before I came to live there. L. C. J. Have you any more to say? Fernley. This, my lord, may give some account, that I had no design against the government. I am a poor man, my lord, and upon that account I owe a great deal of money: I knew there was 100. for securing Burton, there was no gain by concealing him: he was not a person could requite me, that I should harbour him, and lose 100l. which was certain for taking him: which, my lord, shews I had no design. L. C. J. No, this argues you to be a stronger confederate; and that you were so firm to your party, you would not gain 100l. though you might have it for doing your duty. Fernley. My lord, I looked upon it as sure as if I had it in my pocket. I knew nothing of him till Sabbath-day at noon, and I did not design to conceal him afterwards, any farther than to serve the king. L. C. J. You tell us a story of yourself; it is to no purpose to try any prisoner, if his say ing must be taken for evidence: We will hear what witnesses you have to produce, or if you can object to the evidence that's against you. Fernley, My lord, I own it to be true, I have declared more than the witnesses have said against me: but, my lord, I am innocent in it, God knows my heart, I had no design in it. It was but six hours I knew of him. Just. Withins. You lay out of your bed before? Fernley. My lord, not upon his account; I was a week before out of that bed, to prepare it for my wife to lie-in. L. C. J. Is your wife delivered? L. C. J. You made great haste? L. C. J. Gentlemen of the Jury, this prisoner stands indicted for harbouring and relieving one James Burton, knowing him to have committed treason. Gentlemen, you are to be there were no more, if you be persuaded that he is the person guilty, whether he were in the rebellion in the west or no, that may induce you to find this indictment, for the prisoner receiving him after the rebellion in the west, and knowing him to have committed treason, whereupon he was outlawed, it equally makes him liable to the offence wherewith he is charged. But, gentlemen, that is not all; you have express testimony from Burton himself, who it seems was acquainted with him, and who had fled from his neighbourhood, by the space of two years almost, and yet he receives this Burton into his house: I will not say, at the first time that he came into bis house, it doth appear by any evidence, that he knew him to have been in the rebellion in the west; but when he came thither upon Friday, he was so kind to him as to leave his own chamber, and to let him have that for his lodg ing, although now he gives you another excuse plainly frivolous and false, that is, a pretence of making way for his wife to lie-in, who yet is not delivered. He lies there upon Saturday night, and dines with him upon Sunday. Saturday perhaps might be a busy day, and there is no testimony at all given by any evidence of any discourse that was between them upon that day; but upon Sunday, when they dined together, Burton swears, that he did tell him that he had been in the west in the rebellion there, and he came thither for shelter. This man being acquainted with this, allowed him to dine with him, and harboured him in his house for the space of seven or eight hours more, without bringing him before any justice of peace, or any magistrate who had authority to commit him, although he had a particular authority of his own (as he was constable) for the conservation of the peace; yet he forgets his oath as well as his duty and allegiance, and suffers him still to remain there. It is true, the wife of Burton dined with them, as Burton himself says, and the woman confesses; but she was so busy at her victuals, that she can remember nothing, she did not hear that there was any discourse concerning Monmouth. But lest you should want another witness, for Burton is but one witness to that particular, you have him plainly confessing it himself, which is above a thousand witnesses; you have him confessing that Burton did acknowledge he had been in the west, and that Monmouth was routed, and yet he continues him in his house; nay more, this man doth appear to be a person in whom there was that great confidence, that another person, Gaunt, came, and he bids him come into this house, and there he discoursed of some traitors, and the means of conveying away Burton, though he had confessed it trim |