251. The Trial of THOMAS WHITE, alias WHITEBREAD*, Provincial of the Jesuits in England, WILLIAM HARCOURT, pretended Rector of London, JOHN FENWICK, Procurator for the Jesuits in England, JOHN GAVAN alias GAWEN, and ANTHONY TURNER, all Jesuits and Priests, at the Old Bailey, for HighTreason: 31 CHARLES II. A. D. 1679. ON Friday the 13th of June, 1679, at the sessions-house in the Old Bailey, the Court being met, at which all the judges of England were present; proclamation was made of silence and attention whilst the king's commission of Oyer and Terminer, and of gaol delivery were openly read; and after the usual proclamation of attendance upon the sessions, the court proceeded to call the juries impannelled, and to the trials of the prisoners, thus: Clerk of the Crown. Set Thomas Whitebread, John Fenwick, William Harcourt, John Gavan, Anthony Turner and James Corker, to the bar. Capt. Richardson. They are all on. Cl. of the Cr. Thomas White, alias Whitebread, hold up thy hand; John Fenwick, hold up thy hand; William Harcourt, alias Harrison, hold up thy hand; John Gavan, hold up thy hand; Anthony Turner, bold up thy hand; James Corker, hold up thy haud; which they all severally did. And James Corker presented a Petition to the "That about eight months since, the petitioner was committed for refusing to take the oaths of allegiance and supremacy; that he had lately received notice to prepare himself for his trial, against this present day, but that the same was afterwards contradicted; and that yesterday a gentleman informed him from the Attorney General, that a bill was found against him of high-treason, and that he was to prepare himself for his trial thereupon accordingly; and forasmuch as the petitioner is altogether ignorant of the matters charged upon him in the same, and by reason thereof is absolutely surprized, and unprepared for his defence, and divers gaol deliveries having been held since his first commitment, and he never called to his trial; he doth humbly beseech their honours, that he may not be tried till the next sessions, and that in the mean time he may have copies of such informations as are given in against him." Lord Chief Justice. (Sir William Scroggs.) Mr. Corker, have you really any witnesses, without whom you cannot make your defence? Corker. No, my lord, I have none. L. C. J. You do not understand my question? Do not you want any witnesses now, that you may have another time? See ante, p. 120. Corker. I am a stranger to the things charged upon me. L. C. J. Can you not tell, whether you have any witnesses or no? The matter is this, both for you and all the rest of you, that there may be no exception; you are upon the trial of your lives, and we upon our oaths, and therefore I speak it, if so be you have any witnesses because you pretend you are surprised, if you have really any, whereby you can make a better defence for yourselves than now, the court will incline to your request; but if you have not, then it is in vain to tarry. Corker. My Lord, I verily believe I shall have witnesses. L. C. J. As for the copy of the Indictment, it is never granted to any persons, and therefore must not be to you. L. C. J. North. You must give us clear satisfaction, that you are real in your pretences; and must give us the names of your witnesses, where they live, and let us know what they can say for you, that we may be satisfied, for such a general allegation as this, any man living may make. Recorder. (Sir George Jefferies) He was one of the ten that was appointed by the council to be tried. L. C. J. Why, you had notice a week ago? Corker. But it was contradicted the next day. Capt. Richardson. I heard Mr. Clare say that he should be tried then. Attorney General. (Sir William Jones.) He had notice together with the rest, but he was not in the first order of council for the trial of these persons; he sent to the clerk to know who were to be tried, and his name was left out; and so understood he was not to be tried. On Tuesday last I moved that he might be put into the order, and so he was, and now there is an order of council for it; but he had notice a week ago, as well as the rest. Capt. Richardson. I gave them notice that all were to prepare for their trial as this day, and in order to that, I went to the council, to see what order was taken about it, and the clerk shewed me their names, amongst which Corker was left out; and I told him Corker had notice of trial, and therefore I desired I might have an order for him too; they told me, that there was no order taken about him. Att. Gen. My Lord, I would have all the gentlemen have ail the fair play in the world; See Introduction to the Trials for the Popish therefore it be can satisfy your lordship, that Plot, ante, vol. 6, p. 1401. he can have any witnesses that he hath not now, I am content the trial should stay to another time. L. C. J. You shall hear the Indictment read, and there you will know what sort of treason it is you are charged with, and after that you will make your answer whether you have any wit nesses. Recorder. My lord, it will be necessary that I give your lordship an account of one thing. On Saturday night there came a gentlewoman to me, on the behalf of all the prisoners, and said there were some witnesses that she was under apprehensionwould not appear for the prisoners, unless they had some order; her name she told me, was Ireland, and she came in the name of all the prisoners, she said. I told her, if she would bring me a note of the witnesses names they did desire, they should have all the assistance the court could give them for the getting of their witnesses this day; but since that time I never heard of the gentlewoman, or from the prisoners. L. C. J. Mr. Corker: you will do well to take notice what you are charged withal, and afterwards tell us, if there are any witnesses that can say any thing for your defence, at your trial for those matters. lord king Charles the 2nd, at the parish of St. Giles in the fields, in the county of Middlesex aforesaid; You the said Thomas White otherwise Whitebread, John Fenwick, William Harcourt otherwise Harrison, John Gavan, Anthony Turner, and James Corker, with divers other false traitors, subjects of our said sovereign lord the king, to the jurors unknown, falsly, subtilly, advisedly, maliciously, and traiterously, did purpose, compass, imagine, and intend sedition and rebellion within this kingdom of England to move, stir up, and procure, and a miserable slaughter among the subjects of our said sovereign lord the king to procure and cause, and our said sovereign lord the king, of his kingly state, title, power, and government of his said kingdom of England, utterly to deprive, depose, cast down and disinherit, and him our said sovereign lord the king to death and final destruction to bring and put, and the government of this kingdom of England, and the sincere religion of God within the same, rightly, and by the laws of the same established at your will and pleasure to change and alter, and the state of this whole kingdom of England, through all its parts, well instituted and ordained, wholly to subvert and destroy, and Cl. of Cr. "You stand indicted by the names war, within this kingdom of England, against of Thomas White in the parish of St. Giles in our said sovereign lord the king, to levy: And the fields in the county of Middlesex, clerk, to accomplish and fulfil your said most wicked otherwise called Thomas Whitebread of the same treasons and traiterous imaginations and purparish and county, clerk; John Fenwick of the poses, you the said Thomas White otherwise same parish and county, clerk, Wm. Harcourt Whitebread, John Fenwick, William Harcourt of the same parish and county, clerk, otherwise otherwise Harrison, John Gavan, Anthony Turcalled William Harrison of the same parish and ner, and James Corker, and other false traitors county, clerk; John Gavan of the same parish against our said sovereign lord the king, to the and county, clerk; Anthony Turner of the same jurors unknown, the said 24th day of April, parish and county, clerk; and James Corker with force and arms, &c. in the parish aforesaid, of the same parish and county, clerk: For that and county aforesaid, falsly, maliciously, subyou, as false traitors against the most illustrious, tilly, advisedly, devilishly, and traitorously, did most serene, and most excellent prince Charles assemble, unite, and gather yourselves together, the 2d, by the grace of God, of England Scot- and then and there, falsly, maliciously, subtilly, land, France, and Ireland, king, defender of the advisedly, devilishly and traitorously, did conFaith, &c. your supreme and natural lord; sult, consent and agree, our said sovereign lord not having the fear of God in your hearts, nor the king to death and final destruction to bring weighing the duty of your allegiance, but being and put, and the religion of this kingdom of moved and seduced by the instigation of the England rightly, and by the laws of the same devil, the cordial love, true due and natural established, to the superstition of the Romish obedience, which true and faithful subjects of church to change and alter, and the government our said sovereign lord the king towards him of this kingdom of England to subvert; and should, and of right ought to bear, wholly that one Thomas Pickering, and one John withdrawing; and devising, and with all your Grove should kill and murder our said sovestrength intending the peace and common tran- reign lord the king; and that you the said quillity of this realm to disturb, and the true Thomas White otherwise Whitebread, John worship of God within this kingdom of Eng- Fenwick, William Harcourt otherwise Harrison, land used, and by the law established, to over- John Gavan, Anthony Turner, James Corker, throw, and the government of this realm to sub- and other false traitors against our said sove vert, and sedition and rebellion within this king-reign lord the king, to the jurors unknown, dom of England to move, stir up and procure; and the cordial love, and true and due obedience, which true and faithful subjects of our said sovereign lord the king towards him should and of right ought to bear, utterly to withdraw, put out, and extinguish, and our said sovereign lord the king to death and final destruction to bring and put, on the 24th day of April, in the 39th year of the reign of our said sovereign should therefore say, celebrate, and perform, a certain number of masses, then and there amongst yourselves agreed ou, for the soul of the said Thomas Pickering, and for that cause should pay to the said John Grove a certain sum of money, then and there amongst yourselves agreed on; and that you the suid Thomas White otherwise Whitebread, John Fer wick, William Harcourt otherwise Harrison John Gavan, Anthony Turner, and James Corker, and other false traitors to the jurors unknown, in further prosecution of the treasons and traiterous consultations and agreements aforesaid, afterwards the said 24th day of Apri! at the parish aforesaid, in the county aforesaid, falsly, subtilly, advisedly, maliciously, devilishly, and traitorously, did, severally each to the other engage yourselves, and upon the sacrament traiterously swear and promise to conceal and not to divulge the said most wicked treasons, and traiterous compassings, consultations, and purposes aforesaid amongst yourselves had, traitorously to kill and murder our said sovereign lord the king, and to introduce the Romish religion within this kingdom of England, and the true reformed religion within this realm, rightly, and by the laws of the same established to alter and change: And that you the said Thomas White otherwise Whitebread, John Fenwick, William Harcourt alias Harrison, John Gavan, Anthony Turner, and James Corker, and other false traitors to the jurors unknown, in further prosecution of your said treasons and traiterous intentions and agreements aforesaid, afterwards the said 24th day of April, at the parish aforesaid, in the county aforesaid, falsly, subtilly, advisedly, maliciously, devilishly, and traitorously, did prepare, persuade, excite, abet, comfort, and counsel, four other persons to the jurors unknown, subjects of our said sovereign lord the king, traiterously our said sovereign lord the king to kill and murder, against the duty of your allegiance, against the peace of our sovereign lord the king, his crown and dignity, and against the form of the statute in that case made and provided." | Whitebread; but you must know, that you were not put in jeopardy of your life for the same thing, for first the jury were discharged of you; it is true, it was supposed when you were indicted, that there would be two witnesses against you, but that fell out otherwise, and the law of the land requiring two witnesses to prove you guilty of treason, it was thought reasonable, that you should not be put upon the jury at all, but you were discharged, and then you were in no jeopardy of your life. Whitebread, Under favour, my lord, I was in jeopardy; for I was given in charge to the jury; and it is the case of Seyer, in 10. Eliz. he was indicted for a burglary committed the 1st of August, and pleaded to it; and afterwards another iudictment was preferred, and all the judges did declare, that he could not be indicted a second time for the same fact because he was in jeopardy of his life again. L. C. J. Surely, you were not in jeopardy, and I will shew you how you were not; suppose you had pleaded, and the jury were sworn. Whitebread. They were so in my case. L. C. J. It is true they were; but supposing that presently upon that some accident falls out, a witness is taken sick, and be feigned to be carried away; or for any reasonable cause, it should be thought fit by the court to discharge the jury of it, that they should not pass upon your life, are you in jeopardy then? L. C. J. North. I would have you be satisfied with reason, and the course of law, that other mens' lives are under, as well as yours. The oath the jury take, is, that they shall well ' and truly try, and true deliverance make,' of such prisoners as they shall have in charge; the How sayest thou, Thomas White alias White-charge of the jury is not full, till the Court give bread, art thou guilty of this High-Treason whereof thou standest indicted, or not guilty? Whitebread. My Lord, I desire to speak one word; I am advised by counsel, and I may and ought to represent it to this court, for not only my own life, but the lives of others of his majesty's subjects are concerned in it. That upon the 17th of December last I was tried upon the same indictment, the Jury was impannelled and called, I put myself into the hands of the Jury, and the evidence was brought in and examined, particularly against me, and was found insufficient, so that the Jury was dismissed without any verdict. I humbly submit myself to your lordships and this noble court, whether I may not have counsel in this point of law, to advise me, whether I may and ought to plead again the second time; for according to law, I am informed no man can be put in jeopardy of his life the second time, for the same cause. L.C. J. You say well, Mr. Whitebread. Whitebread. I speak it not for my sake only, but the sake of the whole nation no man should he tried twice for the same cause; by the same reason, a man may be tried 20 or 100 times. L. C. J. You say well, it is observed, Mr. See ante, p. 120. them a charge at the last, after evidence had; and because there was a mistake in your case, that the evidence was not so full as might be, the jury, before ever they considered concerning you at all, they were discharged, and so you were not in jeopardy; and I in my experience know it to be often done, and it is the course of law, the clerks will tell you it is frequently done here and at other places; and this is not the same indictment, and it contains further matter, than that you pleaded to before. And then if you will make this plea good that you go upon, you must alledge a record, and shew some record to make it good, and that cannot be, because there is none, and so it will signify nothing to you, as you have pleaded it. Whit. I desire the record may be viewed, it remains with you. I do only present this to your lordship and the Court, and desire I may have counsel. L. C. J. No, not at all, there is no entry made of it. Whit. I desire that counsel may advise me; for I am advised, that according to the law of the land, I ought not to plead again, and I hope your lordships will be of counsel for me. L. C. J. Look you, Mr. Whitebread, there is no entry made upon it; and the reason is, because there was no trial; and there was no trial, because there was no condemnation or acquittal: if there had been, then you had said something. Whit. That which I ask is, whether I ought not to be condemned or acquitted. L. C. J. No, it is only in the discretion of the Court. For if a man be indicted for murder, and some accident should happen, (when the witness come to prove it) that he should be taken ill, and so be carried away, should the murderer escape? Whit. That is not my case; you may do as you please. L. C. J. But we shew, that it is in the discretion of the Court to discharge the jury upon such accidents, and then the party is not in jeopardy. Whit. I have only prayed your lordship's discretion in this. L. C. J. You ought to plead, and must plead. L. C. J. North. I suppose if any of my brethren are of another opinion, than what we have expressed, they would say so. Court. We are all of your opinion. defence, because we thought it not a sufficient charge. Cl. of Cr. William Harcourt alias Harrison, how sayest thou, art thou Guilty of the hightreason whereof thou standest indicted, or Not Guilty? Not Guilty. Harcourt. Culprit, how wilt thou be tried? Cl. of Cr. Culprit, how wilt thou be tried? Cl. of Cr. God send thee a good deliverance. How sayest thou, Anthony Turner, art thou Guilty of the same high treason, or Not Guilty?-Turner. Not Guilty. Cl. of Cr. Culprit, how wilt thou be tried? Turner. By God and my country. Cl. of Cr. God send thee a good deliverance. L. C. J. Mr. Corker, you have heard the Indictment read, and what it consists of, a L. C. J. All the judges of England are of traitorous endeavour to subvert the government, the same opinion. Recorder. It is the constant practice. L. C. J. It is frequent in all places, it is no new thing.-Whit. My lord, I am satisfied. Cl. of Cr. Thomas White alias Whitebread, art thou Guilty of the high treason whereof thou standest indicted, or Not Guilty? Whit. Not Guilty. CL of Cr. Culprit, how wilt thou be tried? Whit. By God and my country. Cl. of Cr. God send thee a good deliverance. John Fenwick, art thou Guilty of the same high treason, or Not Guilty? Fenwick. Not Guilty. Cl. of Cr. Culprit, how wilt thou be tried? Fenwick. By God and my country. Cl. of Cr. God send thee a good deliverance. Fenwick. I was tried before with Mr. Whitebread, our case is the same; the only reason why (I presume) we were not proceeded against, was, because the second witness declared he bad nothing to say against us, that was Mr. Bedlow, who said, as to Mr. Whitebread and Mr. Fenwick, I have nothing to say against them; if he had given the same evidence against us, as he had done against the rest, we had been condemned, and had suffered, and so I suppose we ought to have been discharged.. L. C. J. No, it was not reasonable you should be discharged: it remains in the discretion of the Court, not to let a man that is accused of a great and capital crime escape, if there be one witness that swears expressly: do you think it reasonable such a man should go scot-free, though there wanted two that the law requires? You were not in danger, your lives were not in jeopardy. Fenwick. My lord, we were in the same danger with those three that suffered. L. C. J. No, we never let the jury go together to consider whether you were Guilty, or Not Guilty; we did prevent your making your to murder the king, to change the Protestant religion into Popery; if you have any witnesses that can be serviceable to you, as to these matters, name who they are, and where they live; if you cannot, you had as good take your trial now, as at another time. Corker. I not only have no witnesses ready, but there are substantial circumstances, which peradventure may arise, which may induce your lordship to believe me innocent, and therefore I humbly beg, I may stay some short time to consult with those that are better skilled in the law than I am. L. C. J. What do you mean to have counsel assigned you? Corker. My friends, my lord. L. C. J. Every man knows his own case best; you have been bred a scholar, and so you cannot be so ignorant as other men are: You can tell whether you have any witnesses that you think are material for your defence. Corker. That day of the 24th of April, spoken of in the indictment, I truly and really believe I was not in town that day; but I cannot positively prove it, because I heard not of it before. L. C. J. Is there any body that can testify where you were that day? Can you name any one. Corker. Yes, I believe I can name one, and that is one Alice Gaton, that is now 30 miles out of town at Tunbridge, who can prove where I did go about that time. L. C. J. I'll tell you what, if my brothers will, this woman you suppose can say something for you, we will respite your trial for to-day, send somebody for her, and we will try you to morrow. L. C. J. North. Or any other witnesses; for as to this 24th day of April, it is known to all the world to have been the day of the consult; but because you pretend a surprise, I must tell you, that Mr. Attorney, sent you notice with the rest; but because you might be led into another opinion, that the council did not order it, you have the favour to be put off till to-morrow: Get your witnesses ready if you can. L. C. J. If you have any other witnesses, or desire any order for their appearance, let us know it. Corker. I desire I may have liberty to have my trial put off till Monday. L. C. J. North. No, it cannot be. Monday is the essoign day, and the commission will be out. L. C. J. Call the Jury. Cl. of Cr. Thomas White alias Whitebread, hold up thy hand (and so as to the rest). You the prisoners at the bar, those men that you shall hear called or personally appear, are to pass between our sovereign lord the king and you, upon trial of your several lives and deaths; if therefore you or any of you will challenge them, or any of them, your time is to speak unto them as they come to the hook to be sworn, and before they be sworn. Call sir Philip Matthews. Whitebread. We challenge him. My lord, that there may not be any further trouble, it is our general petition, that none of those that were for any of the former trials may be of this Jury, they having already passed their judgment upon the evidence they have heard. L. C. J. You may challenge them. And therefore (speaking to the Clerk of the Crown) don't take any that were upon the last Jury for this cause. hold up thy hand (and so to the rest). You this cause, opened the indictment thus: May it please your lordship, and you gentle men of the Jury: the prisoners at the bar, Thomas White alias Whitebread, John Fenwick, William Harcourt alias Harrison, John Gavan and Anthony Turner, together with James Corker, stand indicted of High Treason. It is charged in the indictment, That the 24th of April, in the 30th year of the king that now is, these persons, with other traitors unknown, did purpose and conspire to stir up sedition and rebellion; to cause a miserable slaughter of the king's subjects; to depose the king of his government, and bring him to death; and to L. C. J. North. Look you, I will tell you by change the government and religion by laws es the way, you have the liberty to challenge pe-tablished, and to levy war against the king. remptorily so many. All we can do, is to give direction to the Clerk; if he do not pursue it, we do not know them, we can't tell, you must look after that. Garvan. Nor any of the former Juries; we do this that we may avoid giving your lordship any further trouble, because if we should stay upon particulars we should too much trouble the Court. Recorder. You have the books wherein are notes of all their names, by you. Then the Jury that were sworn were these twelve: Thomas Harriot, William Gulston, Allen Garraway, Richard Cheyney, John Roberts, Thomas Cash, Rainsford Waterhouse, Matthew Bateman, John Kaine, Richard White, Richard Bull and Thomas Cox. Cl. of Cr. Crier, count these: Thomas Har riot. Crier. One, &c. Cl. of Cr. Thomas Cox. Crier. Twelve good men and true, stand together and hear your evidence. Then the usual Proclamation for information was made, and the Jurymen of Middlesex summoned and not sworn were dismissed till next morning, 8 o'clock. Ch. of Cr. Thomas White alias Whitebread, And it is further charged in the indictment, |