think it is sufficiently proved, that he was at two of them; but if it had been but one, it had been the same case. But they object, that this is not a legal evidence; for, say they, the statute restrains it, and says, that no confession can be given in evidence, and the evidence of Lunt, without it, will not do; and Grove's not swearing positively to the man, without the help of Lunt, will not be a legal evidence, so | as to prove an overt-act. This is the strength of the objection in point of law, and God forbid that we should insist on any thing but what is legal evidence: it is justice to him, not to offer any such thing, as it is to the crown, to insist on what is legal evidence, to bring him to punishment. The words of the Act are, That no person shall be indicted, tried, or attainted of high treason, whereby corruption of blood may be made, or of misprision of such treason, but by the oaths and testimonies of two lawful witnesses, either both to the same overt-act, or one to one, and the other to another overt-act of the same treason, unless the party willingly, in open court, confess the same, &c. Now in this case, here are two lawful witnesses. Grove is a lawful witness, he is capable of being a witness; whether what he says is sufficient for the proof of the point, must be left to the consideration of the jury. If there are two legal witnesses, to which there are no legal objections, it is sufficient; whether what they swear is sufficient to prove the fact, is of another consideration; but there is not one word in the Act to restrain a confession from being given in evidence: he shall not be convicted on a trial, without two lawful witnesses; that is the thing that is provided for, and it was to exclude a precedent that had been settled in Tong's case, in my lord chief justice Keyling's Reports, an evidence of confession only, that was proved by two witnesses, and that was the occasion of making this law, that his confession alone should not be sufficient, without an overt-act. This was the reason and ground of making that Act of Parliament, but it was not designed to exclude all confessions. That was evidence at law, and always must be so: that evidence that comes out of a man's own mouth, was always allowed. The design of the Act was to exclude confessions from having the force of a conviction, unless it were in a court of record, and to prevent a confession proved by two witnesses, from being a sufficient ground for a conviction. A confession is a considerable evidence, and in many cases clears a thing beyond contradiction; and in this case it shews how necessary it is; for when things are transacted in the dark, and it is impossible for strangers to give a clear description of persons, surely the confession of a man himself is the most proper evidence in the world, and the most satisfactory. This then being a lawful evidence, it stands clear of that objection: here are two witnesses to the overtact, and this evidence of Lunt is not excluded, but this confession of the party is lawful to be given in evidence. This being the state of the matter, how stands it then? It is agreed he was at the bonfire in Holborn; he was sent out for that purpose: the fire was seen at his mistress's house, and he was sent out to enquire after the matter. That there was a man there in a blue livery, is proved by several people, and it is proved that he had a blue livery. Grove says he saw a man, he cannot tell whether he was in blue or green, with a standard in Holborn: he says, he does not know whether he was in blue or green, but he took him to be a man of that size, and he supposes him to be the man. But here is still a doubt, whether this is the man that carried the standard; and how is that cleared? Now this, with submission, is cleared by the man himself, if that be evidence, which we insist upon it it is. This declaration to Lunt, that he had made colours of a curtain, and that he was chose captain of a party, that does explain it, and is not answered by any thing they have of fered to the contrary. As to his acting in the tumult in Leather-lane, Victor swears, that he saw him with a piece of timber on his shoulder, and that he carried it, and threw it into the fire. Lunt, as to every thing he speaks, is clear: he proves that he spoke some words to him; and as to what Victor says, he is as clear, that he had the wood and threw it in. The only question then will be, where he had this wood? whether he had the wood which he threw into the fire, made of the materials of the meetinghouse, from any other place? They give you some evidence, that he was going home quietly; and that they parted about eleven at Brook's-market: but it is plain, he did not go home till just twelve, for so all the family agree; so that that time is to be accounted for, which he might have spent at this bonfire, and in this tumult. There is another man to answer the business of what they call the High Church standard: he says, there was a man in a green livery which he saw, and thought he knew him, but could not be positive, because he was at a distance; but if it had been this man, he believes he should have known him; but there is as little reason for him to know the one as the other. The man in the green livery, he says, is run away, but he says nothing as to the brass buttons; and it is easy to mistake between green and blue. I shall not urge the evidence further than it is reasonable; these are circumstances which will be under the consideration of the jury. But supposing the man to be concerned in this manner, acting as the queen's evidence have proved, it will be high treason within the case in my lord Keyling's Reports, and is not dis tinguished by what Mr. Darnell offered. He says, there was leading and arming, and they struck at the guards; so here was leading, for nobody denies but they had a standard: the only question is, whether the prisoner carried it? and in the other mob in Lincoln's-inn-fields, they were led, and ballooed away to Drurylane. And as to the Case of Beadle, which he would compare it to, there was no act that was done by him; besides, the verdict was defec tive, in not finding the aiding and assisting; for though they found the facts, yet they did not draw the conclusion from those facts. As to what has been said to the reputation of Grove, I do not find it any ways affects him; it is not proved that he has cheated, or that he is a common gamester, or that he lives by that way. As to the reputation of the prisoner, there may be many honest men that might think they did service at this time, and he might be desired among the rest; but that is no argument why he should not be concerned in the fact: whether he was or not, is what we must submit to the consideration of the jury. Mr. Thomson. My lord, as to the matter of law, it has been fally spoken to, and that the Intention was general, is proved; the only question is, whether the prisoner was aiding, and so proved in a legal manner? I will only state how each overt-act is proved: the first act is his going with a piece of wood on his shoulder, and throwing it into the fire; that Victor swears positively. I asked, whether he was coming with it as from the meeting-house? and he said he was: as to that, it is plainly sworn upon him as to the man. The other overt-act is from Grove; there is indeed some uncertainty as to the person, Grove was not indeed very positive; he did observe a man at the fire; he could not say whether he had on a blue livery or green; but when he went to Newgate to see the prisoner, he did say he believed him to be the man. Indeed they pretend that he said something contrary to his companion; but all he said then was, that he could not be positive, but he did say, he believed him to be the man. Now there being this uncertainty, what do we call Lunt to his confession of? If we call him to prove the overt-act by his confession only, there might be some colour to object to it: but the fact is proved to be done by Grove, and we call Lunt only as to the identity of the person. He only explains what Grove had sworn before: he swore the colours were displayed, and the confession is only as to the identity of the person. As to the reputation of Grove, they did endeavour to asperse him, but I think they could not make any thing out: they do not pretend to prove any malice in him; nay, he is the rather to be credited, because he will not be positive. If he had had any malice, he would have sworn positively, but you see he will not be positive. Something was mentioned that there was a man in a green livery there, from whence they would infer, that he was the man that was thus instrumental, and that it was not the man in the blue livery; but that cannot be he, because he had red buttons and red stockings; so that that seems not to have much in it. They pretend to account for him as if he was not there, when Pryor says he met him at eleven, but he did not go home till twelve: so that we think having thus proved by Victor positively, by Grove thus circumstantiated in this man ner; the man's confession coming afterwards by Lunt, which declares him to be the man that did the fact, we think it brings it home to the prisoner. But we submit it to your lordship and the jury. Mr. Darnell. My lord, as to the matter of the confession, I think what Mr. Solicitor General says, by way of answer, will lay aside the statute of king William, for it is, in effect, to say, that if the two witnesses to an overt-act are uncertain as to the person, his confession must fix it upon him. If two witnesses will swear that a man in a blue coat did commit high treason, but are uncertain as to the man, it shall be brought home to any man in a blue coat, if he shall come and say that he did the fact; so that the confession is entirely the evidence, for the other evidence could not convict him without it. L. C. J. Do you apprehend that Grove's evidence is not to be considered by the jury? Is it only, that some man or other did display the colours? Does not his evidence go further? He says he went to see the man in Newgate, and he believes, that man that he saw there was the same: now how far that will weigh with the jury, is of another consideration: and as to the case of Beadle the fact was found there, but the jury not finding that he was aiding and assisting, the court could not supply it for them. I. C. Baron. You have laid a stress upon that which is found in the special verdict. See what the judgment of the judges was. But as to Green in the first special verdict, and Beadle in the third special verdict, we all agreed, that the verdict was not full enough, as to them, for us to judge it treason in them, because the ver dict only finds that they were present, and finds no particular act of force committed by them; and doth not find that they were aiding and assisting to the rest: and it is possible one may be present among such a rabble, only out of curiosity to see, and whether they were aiding and assisting is matter of fact, which ought to be expressly found by the jury, and not be left to us, upon any colourable implication; and accordingly those two were discharged. L. C. J. Gentlemen of the jury, Francis Willis, the prisoner at the bar, stands indicted before you, for that he, upon the first day of March last, with a great number of others, did levy public war against her majesty. The proof that has been offered by Mr. Attorney, and the counsel for the queen, has tended to shew, that there was a general design of pulling down all the meeting-houses; and that this prisoner did assist in it, did carry colours in it, and did other acts that gave assistance in it: this is what they proposed to make out against him. The evidence was first Tolboy, who says, that the day before he was going through the Temple, and there was a great mob that attended Dr. Saeheverell from his trial, and among them he heard a discourse of pulling that his boy asked him, What, Frank, are you one of them? And thereupon he said, They have made me a captain of a party; I took a down Mr. Burgess's meeting-house; he heard no other mentioned; some were for pulling it down then; others were for leaving it till the next night, and others till the event of Dr. Sa-window-curtain, and made it colours; and we cheverell's trial. What determination they came to, he does not know, for he went away; so that his evidence goes no further than proving a design to pull down one meeting-house. The next witness is Grove; he gives an account of two meeting-houses pulled down, and fires made from the materials, one in Holborn, the other in Hatton-garden; that at that fire in Holborn, he saw a man with a curtain on a pole, and he called it High-Church standard, and was active among the people; stopt coaches, and got money from those that were in them, and made them cry out as he did. As for the person, he cannot say the prisoner is he. He says he took notice of him, he was in a livery; and that he went to Newgate, and saw one, who, he cannot be positive, but he believes to be the same that he saw carrying the curtain: but whether it is the prisoner at the bar, that he cannot say: for he says he has not the same clothes, nor wig on, and that makes him doubtful. Being asked, what colour his coat was, he is not sure whether it was blue or green; but he said, he rather believed it was blue. This not being enough to bring it home to the prisoner, they call another witness, who was Hill, who shewed him the prisoner and they brought Cubwidge, who went with him; and they tell you, that the man they shewed to him in Newgate, was the prisoner at the bar; and these being laid together, it amounts to the same thing as if he had sworn against the prisoner, as he did against the man in Newgate; that is, that he believed him to be the same person that carried the colours. The next is Victor; he says, that after the fire at Holborn, they came to Leather-lane; that they got into the meeting-house there, and worked hard to pull it down, but he does not say the prisoner was in the meeting-house: but the fire they made was in Hatton-garden, and there he saw the prisoner carrying a piece of wood, and throwing it into the fire, and making an buzza. He does not say where he bad that wood; he does not say that he saw him bring it out of the meeting-house, and he did not know him at that time, but he kept his eye upon him; and not long after, he came by Mr. Lunt's door, and the prisoner spoke to Lunt: what he said, he cannot tell, but he asked Lunt if he knew him; Lunt told him he did; and when he was come so near, he does take upon him to say, that he remembers his face, and he takes him to be the same person. He was asked as to his features, but he does not go about to distinguish them; and it is difficult for a man to describe those particulars, by which a man distinguishes one from another. Then Lunt is called, and he confirms, that the prisoner was at the fire at the same time that Victor was at his door; that it was eleven at night; and that the prisoner spoke to him; burnt the clock. This they would apply to clear that which Grove speaks a little more doubtfully, when he says only, that he believes birn to be the same person as he saw in Newgate. The next witness is Orrel, and he cannot charge any thing upon the prisoner, but gives an account of the pulling down the several meeting-houses, and the several mobs that were in Lincoln's-inn-fields, Drury-lane, Holborn, and Black-friars, and their making general declarations, that they would have them all down. And thus far his evidence is material, that there was a design to pull them all down; it was publicly declared, and put in execution, as far as they had time. Actions declare the inten tions; for when it breaks out into action, then the design appears. He said something further, which is, that he saw a footman in a blue livery, that was busy at the fire, and encourag ing the people to throw the wood in. He says he was a well-made man, much of the size of the prisoner. This is the evidence produced against the prisoner; and upon that you will take notice it is made out, that there was a general design put in execution, of pulling down the meeting-houses; and that he was at one fire in Hatton Garden; and there is only the belief of the witness so strengthened as to his being at the other. On the other hand, the prisoner in his Defence tells you, that he is servant to a gentlewoman in Grevill-street; that the family being going to bed about ten o'clock, and seeing a light in the street, ordered him to see what was the matter: This was after the clock had struck ten. He went into Holborn, and saw the fire; but as he pretends, did not come near it ; and then he came back to his mistress's house; and so they insist, that they have given an account of the whole time he was out. The first witness they produced was Mrs. Brisco, who was the daughter of his mistress; she tells you the occasion of sending him out; that she observed a light, and directed him to go; and tells you the time, that he came back before the clock had struck twelve; and that she did express her anger for his staying so long. Mrs. Miles confirms the same; and being asked what ac count he gave when he came back, both they and the maids say, he gave no account of the fire; but she hearing that Lunt had something to say against him, and taking notice that he was dejected, asked him, If he had done any thing? And he said, Nothing to harm him. Hodges speaks of his going out, but not of his returning. Elliot says, she let him in, but did not hear him say any thing at all about the fire; but she says he was in a blue livery. Then they call Pryor, and he tells you, he was coming from Westminster to Clerkenwell, he saw the fire in Holborn, and at the end of Leather-lane he saw the prisoner looking on, but doing nothing, none of the mob with him; that the prisoner and he walked along Leather-lane, and it was proposed, that they should drink together, but they walking together, observed a fire making in Hatton-garden; that they walked by the street where his mistress lived, as far as Brooks-market, and there they parted, and the prisoner turned towards his mistress's house, and, as he thought, went home. Then they produce Fletcher, and he speaks as to Grove's evidence: And to take off from that credit that otherwise his testimony would have, he says, that Good Friday, at night, he told him the prisoner was not the man, for the person he saw had a green livery, and brass buttons; so he said at first: but upon enquiry a little more particularly, he did not tell him at that time that it was a green livery, but some time before: And Grove being called again, does own the same; and that he said he could not be positive, and that is what he now says, and only says, he believes him to be the same, and that he told the witness so at that time. Holgate says, that about half an hour after ten he heard of the mob, and went to see it; that he went to the fire in Holborn, and there he saw a footman in green, but he had red buttons, and the prisoner's livery was blue trimmed with black, and black buttons: But he says he saw a footman there in green, which is offered, to let you see that there might be another person that Grove did really see. Then Clark is brought to give some account of Grove; he says he kept a shop, and broke, and never had a very good character. Ward says the same; and that he was a gamester; and that it was reported he used to get his living that way: And he tells you, the prisoner is of a good reputation; and those of the family say as much of him. This is the substance of the evidence on both sides. The use that the counsel for the prisoner would make of their evidence, is first, to shew that they have given an account of his time; that he was otherwise employed than in the manner the witnesses for the queen have given an account of. Now it is certain, they have not; for they give an account only of a walk from Holborn to Brooks-market, whereas his own witnesses say he was out at least an hour and an half, so that there was time enough for him to be there: And though that witness saw him going homeward, and not to the fire, yet it is certain, he did not go home then, and that he was at the fire, because two witnesses swear he was at the fire; and it does appear that he was at both the fires. Before I state that, give me leave to say, that there is a full proof of a general design put in execution, of pulling down the meeting-houses, so any one that is aiding in that, is guilty of hightreason, though he were not privy to the first design; for in high-treason there is no such thing as accessary; all that are actors are equally guilty, and that was the case of the lord Essex: He went with some forces to remove soɩne evil counsellors, and came to the city to desire assistance; some forces he bad assembled in his own house; others joined him in the city; it was adjudged they were all guilty of high-treason, though they did not know of his design; and those that were accidentally there, and did depart, it was said, were entitled to her majesty's grace; but it is not said they were Not Guilty. So was the Case of the Bawdy-houses; yet it is not said, that any of them were the persons that formed the design of pulling them down. You are therefore to consider, that it is not enough to charge the prisoner, that he was at the two fires: It is not enough that there was time for him to do what he is charged with, but you are to consider what is proved on him that he did. You observe what is objected as to Grove, that there is a great uncertainty as to his evidence, and that his credit is not fair: He does not charge the prisoner positively, nor ever did. He differed as to the colour of his cloaths: And though it is rightly observed, that blue and green are not easily distinguished by the light of the fire, yet that is not the objection; the objection is, that the witness at first declared, he believed it to be green, and now he has told you, that he believes it to be blue, and that is not consistent, and does therefore a little concern his credit in this matter, that he has changed his evidence. Then they say, that he did not see him at the meetinghouse: He saw somebody carrying colours, and believes this to be the man; but he says, he was not near enough to distinguish his cloaths, so he might not be able to distinguish his face. But then they bring some witnesses to shew he is not a man of so clear a credit, but they do not charge any great matter upon him. As for his having broke, that may be a misfortune that may attend any man: But then they would support this by the confession he made to Lunt, who swears, that he said he made colours of a curtain. Now that may seem to give some colour to it; but I ought to take notice of the other part of his confession, that they had made him captain of a party, which does not appear to be likely; for as he was moving from one party to another, it would be very natural for the captain to have his mob with him, but it is plain he was unattended in going from one fire to another. When he was at that fire in Hatton-garden, he went away alone, as Lunt says: And they do not say that he did encourage the mob. He did throw down a piece of wood, and huzza, but he did not much encourage others. As to the piece of wood, one of the witnesses did not see it, and the other that did see it, did not see him in the meeting-house; so that it is not proved he was at either of the meeting-houses, though he was at the fires. And you may consider another circumstance, and that is, that this witness, Victor, did not know him before, nor did he know what cloaths he had on; and if he had not come nearer to him, to Lunt's door, in probability, he had not known him again; but he says, he saw him throw a piece of wood into the fire; and he says he kept his eye upon that man, and saw him come up, and speak to Lunt. Now you will consider, whether such a man might not, in a crowd, slip out of his eye, and he might take another for him; for Lunt, that knew him, says, he did not see him have any timber at all. These are the observations that, I apprehend, may be most proper for me to make to you. As for the law, if you take it that he is the man that had the colours in Holborn, and afterwards came to the other fire, and threw the piece of timber in there, he is undoubtedly guilty of high treason: Therefore you must consider, first, how far you believe he is the same that carried the colours in Holborn, and how far you take him to be concerned in pulling down the meeting house in Leather-lane. I should take notice of another thing, that there was a footman in green, at the fire in Holborn, who was very active; and that man could not mistake the colour of blue and green, because he knew the prisoner: Now that being so, it does appear there was a footman in blue, and another in green, that was active at the fire in Holborn, and one of these two, perhaps, had the colours; the question is which? Grove first says, the man that had the colours was in green, and then he says he was in blue. Now if the first be right, that he was in green, it does appear there was such an one in green: If you believe he was the person that did make use of these colours, and that he was assisting in pulling down the meeting-house in Hatton-garden, then you are to find him guilty: If you think he was not the person, you will acquit him. journed till five o'clock, when the Jury brought Then the Jury withdrew, and the Court ad in their verdict. 445. The Trial of GEORGE PURCHASE, at the Sessions House in the Old-Bailey, for High Treason, in levying War against her Majesty, in the Kingdom, under Pretence of pulling down Meeting-Houses: 9 ANNE, A. D. 1710*. Cryer. O Yes, O Yes; you good men of the county of Middlesex, summoned to appear here this day, to try between our sovereign lady the queen, and the prisoners that shall be at the bar, answer to your names as you shall be called, every man at the first call, upon pain and peril shall fall thereon. Then the Jury that were returned on the panuel were all called over, and the appearances of all those that answered to the call were recorded. Cl. of Arr. Set George Purchase to the bar. (Which was done.) Cl. of Arr. George Purchase, hold up thy hand. (Which he did.) Cl. of Arr. You the prisoner at the bar, these good men, whom you shall hear called, and do now personally appear, are to pass between our sovereign lady the queen and you, upon trial of your life and death. If therefore you will * See the two preceding Cases. challenge them, or any of them, your time is to speak to them as they come to the book to be sworn, and before they be sworn. Cl. of Arr. Thomas Sutton, esq. (Who appeared.)-Hold Mr. Sutton the book.-You shall well and truly try, and true deliverance make between our sovereign lady the queen, and the prisoner at the bar, whom you shall have in charge, and a true verdict give according to your evidence. So help you God. Cl. of Arr. John Furness. (He appeared, and was sworn.) In like manner the other ten gentlemen appeared, and were sworn, whose names follow: JURY. Thomas Sutton, esq. John Furness, John Parsons, Joseph Parsons, William Hargrave, John Meard, Edward Boswell, Richard Hazzard, Humphry Newman. Cl. of Arr. Cryer, count these.-Thomas Sutton. Cryer. One, and so of the rest. Cl. of Arr. Humphry Newman. Cryer. Twelve, good men and true, stand together, and hear your evidence. Are you all sworn, gentlemen? Cl. of Arr. Cryer, make proclamation. Cryer. O Yes; if any one can inform my lords the queen's justices, the queen's serjeant, |