the prisoner beyond the bounds of humanity and good-nature; and we humbly hope they will be of opinion with us, that though the prisoner at the bar should unhappily be found acting in this unnatural rebellion, yet as he acted under a commission from the French king, he has a right to the cartel for settling the exchange of prisoners that may be taken on either side, in the war now carried on between the two kingdoms. [Cross-examined.] Sir John Strange. I hope you believe that every person that joined with the rebels are bad men?-Hayward. Yes, Sir. Sir R. Lloyd. What business are you of?Hayward. I am a glover and leather-seller at Manchester. [After being examined, he went out of court, but was recalled.] Sol. Gen. Mr. Hayward, Pray, did you see the prisoner at the bar in Manchester? Hayward. No, I never saw the prisoner before. The evidence we have to produce in behalf of the prisoner, are only three. The first is captain Carpentier, who will prove, we hope, to your lordships' satisfaction, that colonel Town-son; who appeared, and was sworn. ley was many years in the French service, under a commission from the French king; and since his being taken at Carlisle has been constantly supplied from France; the other two, who are John Hayward and Thomas Dickinson, we shall bring to invalidate the evidence of Maddox, by shewing the badness of his character, and that he is such a man whose testimony is not to be credited. Couns. Clayton. Pray call Thomas Dickin Sir, do you know Samuel Maddox? Dickinson. Yes, Sir; he was bound apprentice to an apothecary at Manchester. And the prisoner's counsel farther observed, that the indictment was insufficient, for that they had not mentioned the day in the indictment when the treason was done, and that the glorious statute of the 7th of king Willianı 3, which was justly esteemed the bulwark of English liberty, directed, that nothing shall be given in evidence but what is inserted in the indictment; and that the time not being mentioned in the indictment when the treason was acted, is sufficient to quash it, because it might be so long past as to entitle the prisoner to the benefit of the limitation enacted in the said king's reign; and that act says, That no person shall be convicted, or suffer for high or petit treason, unless a prosecution is begun against the person who committed such treason, in three years after the commission of such treason. Counsel. Pray call Mr. Carpentier; who appeared, and was sworn. King's Counsel. Pray, what would you ask this gentleman to? Prisoner's Counsel. To prove that the prisoner had a commission from the French king, and that he was at the siege of Philipsburgh. Court. That will be against you; for no man that is a liege subject of his majesty can justify taking up arms, and acting in the service of a prince that is actually in war against his majesty. On which Carpentier was set aside, without being examined. Serj. Wynne. Pray call John Hayward; who appeared, and was sworn. 1. Serj. Wynne. Pray, Sir, do you know Samuel Maddox, and how long have you known him? Hayward. Yes, Sir, about two years. Serj. Wynne. Pray, what character doth he bear? Hayward. He bears such a very bad cha racter, that I would not believe him upon his path, Couns. Clayton. Pray, what character does he bear? - Dickinson. A very bad one. Couns. Clayton. Would you believe him upon his oath? 1 Dickinson. No, I would not, especially upon life and death. 1 Sir John Strange. For what reason do you take upon you to swear he is not to be believed upon his oath? Dickinson. I do not know particularly; but I have heard he was a very bad apprentice, and that he had wronged his master. Sir John Strange. Do you know his master? now. Sir John Strange. So, for no other reason, than because you have heard he was not a good apprentice, you take upon you to swear he is not to be believed on his oath. I suppose you have other bad apprentices in Manchester? Dickinson. Yes, there are. Att. Gen. Dickinson, Did you ever see the prisoner at Manchester at the time the rebel army was there? - Dickinson. Yes. Att. Gen. What was he doing there? Dickinson. He was colonel of the Manchester regiment. Att. Gen. What, in the Pretender's service? The evidence for the prisoner being all gone through, Mr. Solicitor General replied to what had been objected by the Prisoner's Counsel to the indictment. Mr. Solicitor Generalstood up, and made a reply to the prisoner's counsel, wherein he observed, "The first overt-act of high treason charged against the prisoner, is compassing and imagining the death of the king; the next is adhering to the king's enemies, and levying of war against his majesty's person and government; and this is founded on the statute of the 25th of Edward the third. And levying of war by one or more persons, is treason. That this war has been levied, and that acts of hostilities have been committed by the prisoner, I do not doubt but that it has been sufficiently proved to you, gentlemen of the jury; there is no occasion to prove explicitly all that is laid in the indictment; but that war has been levied against his [348 majesty, has been sufficiently proved and ad- | nel might be called over once in the prisoner's mitted by the learned counsel for the prisoner; it has been proved, likewise, that the prisoner, with a tumultuous number of rebels and traitors, did assemble in several parts of his majesty's hearing, that he might take notice who did and who did not appear; which they said would be a considerable help to him in taking his challenges.* This was done by order of the Court, dominions, and levied a cruel and destructive ❘ and the Attorney-general did not oppose it. war. The counsel on the other side would insinuate, that the crime was committed before the day laid in the indictment, therefore the day of the commission in the indictment should be inserted. But admitting it was so, this indietment is good; for in the case of sir Harry Gray, [qu. Vane. See vol. 6, p. 119], it it was the opinion of all the judges, that sir Harry was guilty, notwithstanding that the fact was committed twelve years before the indictment; and it is recent in the memory of many gentlemen of the law, that this was the case of Chandler, Layer, and Bradshaw; and so it was allowed in constructive treason, in the case of Dammaree and others,* in the reign of the late queen Anne, for pulling down of meeting-houses, and many cases of the like nature in sir Matthew Hale's Pleas of the Crown; for which several reasons, and what has been mentioned before, I humbly conceive your lordships will over-rule this exception, as having no weight." (Upon which the said motion was over-ruled by the Court.) Then my lord chief justice Lee summed up the evidence very impartially to the jury. After which the Jury consulted together in court, but not agreeing in their verdict withdrew about ten minutes, and when they returned into court, were called over by the Clerk of the Arraigns, and answered to their names. Cl. of Arr. Gentlemen of the jury, are you Cl. of Arr. Francis Townley, hold up your hand. (Which he did.) How say you? Is Francis Townley Guilty of the high-treason whereof he stands indicted, or Not Guilty?-Foreman. Guilty. Cl. of Arr. What goods and chattels, lands and tenements, had he at the time of the said high-treason committed, and at any time since, to your knowledge ?-None. Cl. of Arr. Hearken to your verdict, as the Court has recorded it; you say that Francis Townley is guilty of the high-treason whereof he stands indicted, and you say he had no goods, nor chattels, lands or tenements, at the time of the said high-treason committed, or at any time since to your knowledge, and so you say all?-Jury. Yes. Then Mr. Jones, keeper of the county gaol of Surrey, was ordered to take care of the prisoner. The following is Foster's Report : " Mr. TOWNLEY'S CASE, July 15, 1746. "His counsel moved that before any juryman should be brought to the book, the whole pan * See it, in vol. 15, p. 522. "Every juryman as he came to the book was asked, whether he was a freeholder or no. Those who answered that they had no freehold in the county, were examined upon a Voire Dire to that matter;† and on their answering that they had no freehold, were set aside. Those who answered that they had both freehold and copyhold were asked, whether both put together did amount to 10l. a-year; and if they did, that was admitted to be a good qualification, though the freehold alone was under 10l. "The Court grounded this rule on the Bill of Rights, 1 W. M. st. 2, c. 2, 4, 5. W. M. c. 24, s. 15, and the 4th and 5th W. M. compared. "The prisoner's counsel offered to call a witness to shew that he was at the time of the rebellion in the service and pay of the French king, and so intitled, as they insisted, to the benefit of the cartel for exchange of prisoners: but the Court declared that such proof is not to be admitted. It is no defence in a court of law, nor is it so much as an excuse, that he had entered into the service of an open enemy. See the Case of Æneas Macdonald.‡ "They then insisted on what they (very improperly) called the Capitulation at the surrender of Carlisle. In this likewise the Court over-ruled them. It is no sort of defence in a court of law. But to prevent misconstructions, colonel Carey was examined touching the terms upon which the surrender was made. And he swore, that the duke expressly reserved the rebels in Carlisle to be dealt with as his majesty should please. "The Court then observed, that the prisoners had received the whole benefit of the terms offered by the duke, in that they were not immediately put to the sword, [See lord Winton's trial, vol. 15, p. 806] but were reserved for his majesty's pleasure; which now appears to be, that they shall have a fair trial, and liberty to make their defence according to law. "They then insisted that the overt-acts are charged in the indictment to be committed on the 10th of October, and that all the evidence is of overt-acts subsequent to that time; and said, that however the resolutions with regard to this point may have been before the 7th W. 3, yet now, by that act, no evidence is to be giveh but of overt-acts laid in the indictment; and consequently the overt-acts must be proved in * N. B. This was done in Layer's Case, after a much longer debate than the matter de served. Foster. See in this Collection, vol. 16, p. 94. vol. 15, p. 898. In this volume. See also East's Pleas of the Crown, c. 2, 5. 3. such manner as they are laid: that in this case especially the king's counsel are not at liberty to vary in their proofs from the day laid since they have confined themselves in the indictment to one day, and have not charged (as they said in most of the precedents it is charged) that the defendant did commit the treason charged on him on the day laid, and at divers days and times, as well before as after. one of the barons of the Court of Exchequer sir Thomas Abney kut. one of the justices of the said Court of Common Pleas sir Thomas, Burnett knt. one other of the justices of the said Court of Common Pleas Charles Clarke esq. one of the barons of the said Court of Exchequer Edward Clive esq. one of the barons of the Court of Exchequer sir Thomas De Veil knt. and Peter Theobalds esq. and from thence continued by several mesne adjourn "To this Mr. Murray, the solicitor general, answered, That the 7th W. 3, makes no al-ments until Tuesday the 22nd day of July then teration with regard to this point, so as to make either time or place more material than they were before the act. The act indeed saith, That no evidence shall be given of any overtacts not laid in the indictment: but what is or is not evidence of such overt-acts, is left upon just the same foot in this respect as it was before the act; what was evidence at common law is in this respect evidence still; and as to the charging the overt-acts at divers days and times as well before as after the day particularly mentioned, he said, that the greatest part of the precedents he had seen of indictments for levying war, which is the present case, do charge the overt acts on one day only. "Sir Richard Lloyd offered to speak on the same side; but the Court told him, he need not give himself the trouble of speaking to the point, on which there could be no doubt, and over-ruled the objection."* The following Warrant was soon after sent to the Sheriff, viz. "Surrey. At a special session of Oyer and Terminer and gaol delivery of our present sovereign lord the king of and for the county of Surrey holden at the borough of Southwark in the said county on Monday the 23d day of June in the 20th year of the reign of our said present sovereign lord George the second by the grace of God of Great-Britain France and Ireland king defender of the faith and so forth before sir William Lee knt. chief justice of our said present sovereign lord the king appointed to hold pleas before the king himself sir John Willes knt. chief justice of the Court of Common Pleas sir Martin Wright knt. one of the justices appointed to hold pleas before the king himself sir James Reynolds knt. * The lord Balmerino, who had neither counsel nor witness at his trial, insisted on the same point. And the House out of their extreme tenderness in case of life, (after my lord chancellor had delivered his opinion clearly that the time is not material, provided the treason be committed before the bill found) put the question to the judges. Lord chief justice Lee delivered the unanimous opinion of the judges, that the day is not material, provided the treason be proved to have been committed before the finding of the bill. Foster. See lord Balmerino's Case in this volume ; Charnock's Case, vol. 12, pp. 1397 et seq.; East's Pleas of the Crown, c. 2, s. 60. next following and then held before the said sir William Lee sir James Reynolds sir Thomas. Abney sir Michael Foster one of the justices appointed to hold pleas before the king himself and the said Edward Clive and sir Thomas De Veil and others their fellow justices and commissioners of our present sovereign lord the king assigned by letters patent of our said present sovereign lord the king under his great seal of Great-Britain made by virtue of the statute made in this present parliament intituled An Act for the more easy and speedy trial of such persons as have levied or shall levy war against his majesty and for the better ascertaining the qualification of jurors in trials for high treason misprision of treason in that part of Great-Britain called Scotland to the said justices and commissioners above-named and others and to any three or more of them (of whom our said present sovereign lord the king willed that any of them the said sir William Lee sir John Willes sir Martin Wright sir James Reynolds sir Thomas Abney sir Thomas Burnett Charles Clark sir Michael Foster Edward Clive and sir Thomas De Veil and others in the said letters patent named and appointed should be one) to deliver the gaol of the said county of the prisoners therein being or such as shall or may be detained in the same on or before the first day of January in the year of our Lord 1746 for or on account of the hightreason mentioned in the said statute in levying war against our said present sovereign lord the king within this realm and to enquire by the oath of good and lawful men of the same. county of all such high treasons in levying war against our said present sovereign lord the king within this realm by the said prisoners or any of them or by any other person or persons who are now in actual custody for or on account of the same or who are or shall be guilty of high treason in levying war against our said present sovereign lord the king within this realm and shall be apprehended and imprisoned for the same on or before the first day of January in the year of our Lord 1746 and the same high treasons to hear and determine according to the form of the said statute." Alexander Abernethey, James Gadd, otherwise Gad, Thomas Furnivall, Christopher Taylor, Andrew Blood otherwise Blyde, are attainted on their own confession of high treason in levying war against our sovereign lord the king within this realm. Francis Townley, George Fletcher, William Brettaugh otherwise Bratter otherwise Bretter, Thomas Chadwick otherwise Chaddock, Thomas Deacon, James Dawson, John Berwick, John Saunderson, Thomas Syddall, Charles Deacon, James Willding otherwise Wheelding, David Morgan, are attainted on verdict of high treason of levying war against our sovereign lord the king within this realm. "Let the several prisoners above-named return to the gaol of the county of Surrey from whence they came and from thence they must be drawn to the place of execution and when they come there they must be severally hanged by the neck but not till they be dead for they must be cut down alive then their bowels must be taken out and burnt before their faces then their heads must be severed from their bodies and their bodies severally divided into four quarters and these must be at the king's disposal. "John Hunter is acquitted by verdict of high-treason in levying war against our sovereign lord the king within this realm and must be discharged. "Let execution be done on Wednesday the 30th day of July instant. " W. LEE, M. WRIGHT, T. ABNEY, M. FOSTER, E. CLIVE." Of the above seventeen, Abernethey, Gadd, Furnivall, Taylor, Brettaugh, Saunderson, Charles Deacon, and Willding were reprieved, and the other nine executed July 30. The prisoner Townley was executed according to his sentence on Kennington-Common, on Wednesday the 30th of July 1746. After he had hung six minutes, he was cut down, and having life in him, as he lay upon the block to be quartered, the executioner gave him several blows on his breast, which not having the effect designed, he immediately cut his throat; after which he took his head off; then ripped him open, and took out his bowels and heart, and threw them into a fire, which consumed them; then he slashed his four quarters; and put them with the head into a coffin, and they were carried to the new gaol in Southwark, where they were deposited till Saturday August 2, when his head was put on Temple-bar, and his body and limbs suffered to be buried. This unfortunate person was about 38 years of age, born near Wigan in Lancashire, of a very go good family. His uncle Mr. Townley, of Townley-hall, in Lancashire, was tried in Southwark, before judge Powis, for being in the rebellion in 1715; and though acquitted by his jury, yet not thought innocent by the public; for many of his men who were tried at other places, for going into the rebellion with him, were convicted and executed. In 1727, he went over to France, and entered himself a volunteer in the French king's service; and in 1728 obtained a commission from the king of France, and continued abroad about 15 years. He was at the siege of Philipsburg, when the duke of Berwick's head was shot off, and was near the duke at that time. He was also in the French army, when the Germans made such a sudden attack upon that quarter of the army where marshal Broglio commanded, as obliged the marshal in a terrible fright to run away without his breeches. He was likewise in several other actions and sieges, and, as was said by his friends, he always behaved well and with honour. The reason of his leaving the French service, about five years since, and coming to England, was to live some time in his own country with his friends; and when the rebel army came into England, he went and met them between Lancaster and Preston; and came with them to Manchester, where the Pretender's son gave him a commission to raise a regiment of foot, which was immediately done; and the young Pretender, on leaving him at Carlisle, gave him another commission to raise a regiment of horse. His behaviour from the first of his being taken prisoner at Carlisle, to the time of his trial, was of a piece; he frequently saying that he could not be hurt, for that he had a commission from the king of France, and so must be exchanged upon the cartel; but when he was convicted, he seemed a little more serious, and often said, he expected no mercy. He was much more reserved than many of his fellow-sufferers; and would not talk a great deal to any body but his particular friends and brother-prisoners. The morning of his execution, and even at the fatal place, he shewed no manner of signs of dread, but said he hoped he should be happy in the next world. 508. The Trial of GEORGE FLETCHER, for High-Treason, at the Court-house, St. Margaret's-Hill, Southwark, Wednesday, July 16: 20 GEORGE II. A. D. 1746. THIS day the Court, according to adjourn- before the highland rebels, but none in the ment, met at ten in the morning, where there Manchester regiment.-I saw him also at were present, the lord chief-justice Lee, Mr. Derby. justice Wright, and Mr. baron Reynolds. And also the other officers, that attended the Court the preceding day, took their seats; and proclamation being made by the cryer, he proceeded to call the jury, and ordered the keeper of the county gaol to set George Fletcher to the bar; which being done accordingly, the following gentlemen (after the prisoner had made ten challenges) were sworn in for the jury. JURY. 1. Daniel Ponton of Lambeth, starch-maker. 2. Michael Cuffe of Battersea, gardener. Prisoner's Counsel. Pray, friend, how came you to know him so particularly ? Mac Cormack. They called him capt. Dawson. [Here the counsel for the prisoner interrupted the witness, because there is one Dawson now in custody, who was an officer in the said regiment, and the prisoner's name is Fletcher.] King's Counsel. Look at the prisoner again. Mac Cormack. (Looking earnestly at him.) Though I may mistake his name, I am sure he is the person that I saw at Derby, though 3. Michael Constable of Dorking, yeoman. I cannot positively say he gave any command 4. W. Brooker of Waltou on Thames, brewer. 12. Richard Sparkes of Wonersh, yeoman. And they being all sworn, took their seats in the jury-box; and proclamation was again made for silence, whilst the indictment was reading to the prisoner. Note, The indictment was the same as that of Townley (convicted the day before), the treason being laid to be committed the same time, at the same place, and in the same manner. After the King's Counsel had opened the Charge, the following evidence was called against the prisoner. Ormsby Mac Cormack sworn. King's Counsel. Mr. Mac-Cormack, pray look upon the prisoner, and then tell the Court, and the gentlemen of the jury, what you know of him; and speak out loud, that you may be heard. Mac Cormack. The first time that I saw him, was before the rebels marched from Manchester to Derby. King's Counsel. What appearance did the prisoner make at Manchester? Did you look upon him to be an officer? Mac Cormack. He had a white cockade in bis hat, and marched as captain in the Manchester regiment. I saw the flag that belonged to the regiment flying, and the motto was, Liberty and Property, Church and King. King's Counsel. Did he march with all the rebel army? Were there any pipes playing? Mac Cormack. There were pipes playing VOL. XVIII. there as an officer. I saw him at Preston, and other places along the road, till we came to Carlisle. King's Counsel. Were you with him at Carlisle? Mac Cormack. I was at Carlisle; but he was there before I came, and there I saw him act as a captain; and when the soldiers were drawn up in the castle-yard, I saw him there, and saw arms distributed to some of the soldiers who had none. Prisoner's Counsel. Did you see him distribute any arms to any of the soldiers? Mac Cormack. I cannot say that I did. Prisoner's Counsel. Then who distributed those arms? Mac Cormack. It was a Scotch officer, who I am informed is since killed. I heard so. King's Counsel. Was not the prisoner at the bar at Carlisle when the duke was before the town? Mac Cormack. Yes, I am sure he was, and commanded as an officer; he had a white cockade in his hat, an highland plaid sash, lined with white silk, and all military accou trements that officers have. King's Counsel. Then you are certain as to his person? Mac Cormack. I am certain this is the gentleman, for he mounted the very first captain's guard that was mounted at Carlisle. I saw him at the surrender, and he was carried into the church, and made prisoner with the rest of the officers. Serj. Wynne. Are you sure he is the very man? Mac Cormack. I am very sure of it, though he has been long out of my sight. L. C. J. Consider you are upon your oath, and what you say affects his life. 2 A |