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parish of West Hallam aforesaid, in the! County of Derby aforesaid, being within this kingdom of England, voluntarily, freely and treasonably, the 16th day of March, in the 33d year of the reign aforesaid, hath been and remained, contrary to the form of the statute in that case made and provided; and against the peace of our sovereign lord the king, his crown and dignity, &c."

Baron Street. How sayest thou, George Busby, art thou Guilty of this felony and treason whereof thou standest indicted, or Not Guilty?

Busby. This Indictment, my lord, is not full; it recites not the particular case in the statute of queen Elizabeth, viz. that I took orders beyond sea, and another point, that I am a native of the king's dominions.

The names of the petty jury sworn were, Samuel Ward, gent. Tho. Wilson, gent. John Steer, John Ratcliff, Ed. Wolmesly, gent. William Horn, gent. George Tricket, gent. Jeremiah Ward, John Roper, John Creswel, gent. Edmund Woodhead, Anthony Bowne. Then Mr. Bridges, counsel for the king, opened the Indictment.

Mr. Bridges. May it please your lordship, and the gentlemen of the jury, the prisoner at the bar, George Busby, stands indicted for high treason, as it is alledged in the Indictment, that he being born within the king's dominions, and made a priest, and having received orders by pretended authority from the see of Rome, did the 16th day of March last come into the realm of England, as it is laid in the Indictment, to Westhalllam, in the county of Derby, and there he did abide, contrary to the form of the statute; and this is laid to be traiterously done. To this be hath pleaded Not Guilty; and we Busby. How can I be made a priest in Eng-are to prove it upon him, by the king's evidence, land by the authority of the bishop of Rome, whom we are now to call. where there is no such authority?

Baron Street. You may be made a priest in England by the authority of the bishop of Rome, as well as at Rome.

Baron Street. You must plead to your Indictment as it stands.

Busby. Then, my lord, I humbly beg I may

be allowed counsel.

Baron Street. If any point in law arise, you shall be allowed counsel.

Busby. The time and place is not specified in the Indictment.

Baron Street. If that be so, it is material. But upon view of the Indictment, it was found right.

Clerk of Arraign. George Busby, hold up thy hand; art thou Guilty of this Indictment, or Not Guilty?

Busby. (then holding up his hand) said, Not Guilty.

Clerk of Arraign. Culprit, how wilt thou be tried?-Busby. By God and my country.

Clerk. God send thee a good deliverance. Baron Street. Now we will see if your objections be of any weight; you hear the Indictment read, which was ut antè, being a subject of the king's, born within this realm; you may be made a priest by the authority of Rome, in England, Ireland, or Germany, or any where else, and that will make you a priest within this

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Mr. Coombes. Gentlemen of the jury, you have heard the Indictment read and opened, you will presently have it fully proved, and highly aggravated by our evidence; for, gentlemen, we shall prove that the prisoner at the bar is not only a Popish priest, but a Jesuit, and this by his own confession; and that his name was inserted in sir William Walter's warrant, when he came down into this country to search for Jesuits: That he has held a secret and dangerous correspondence with Harcourt, Ireland, and other Popish traitors: That he has been their procurator, and disbursed and received great sums of money for them.

Gentlemen, the prisoner hath been a person highly suspected, as well as dangerous to the government, for some years; for treasonable matters of another nature than be stands indicted of, have been deposed against him upon oath at the council board, and thereupon a strict warrant to apprehend him was directed to Mr. Gilbert (a worthy gentleman and justice of peace of this county.) Mr. Gilbert, gentlemen, will presently tell you the manner of his taking him in an obscure place in the roof of one Mr. Powtrel's house at Westhallam, in this county, But here I must beg leave to digress; for I cannot but take notice of the malicious temper and base practices of this sort of men; for though Mr. Gilbert acted by virtue of a warrant from the Lords of the council, and has since received an approbation from his majesty of what he did, under the hand of a secretary of state, yet could not those people forbear to raise false and scandalous reports of, and make talse accusations against him, upon this very account: but what is it they will not do to discourage Protestant magistrates from doing their duty against them? I confess, nothing is to be wondered at since the barbarous murder of sir Edmundbury Godfrey. But to proceed, gentlemen, we shall also prove to you, that the prisoner is so little a friend even to the civil government of this nation, that he

would not suffer his nephew, Mr. Powtrel, to take so much as the oath of allegiance, which is scrupled only by the Jesuits; for I think their secular priests will generally take it. Gentlemen, the thing I have already opened, are matters of high aggravation, and come in by way of indictment. But that which in this case we rely upon is this, that the prisoner has baptized, married, confessed, and absolved, in the Popish way, that he has given the sacrament, and said mass very frequently in his Popish vestments; and for proof of this we have a cloud of witnesses.

six or seven years, though I did never know him personally, nor, to the best of my knowledge ever saw him till I apprehended him, which which was the 16th of March last, the very day on which the judges went out of Derby the last Lent assizes; the first enquiry I made after him, was occasioned by a letter and a messenger from sir Simon Degg, about. November 1678, at which time I sent a warrant to the constable at West-Hallam, to search for the said George Bushy, but he could not then he found; at that time it was reported, that he was a Jesuit, and concerned in the plot ; which I had reason to believe, because when Mr. Gray came to search Mr. Powtrel's house for some Jesuits the January following, by order from the lords of the council (in which service he commanded me to attend him), we perceived Mrs. Powtrel (who is Busby's niece) to be much troubled, and in a great passion, the cause whereof Mr. Powtrel declared to be for fear the said search was made for her uncle Busby, who, as I heard afterwards, was then in the house, though at that time he was reported to be fled.

However, the government had a jealous eye on this Busby about two years ago, as may appear by a warrant from the Lords of tho Council, which warrant I have ready, and humbly pray your lordship it may be read openly in court.

Baron Street. Let it be read.

Gentlemen you hear the prisoner is indicted upon a statute made in the 27th Eliz. * which makes it treason for any subject born to take orders from the see of Rome, and afterwards to remain in England; which law I conceive was not only made for the security of the government, but also in favour of the lay papists themselves; for though several statutes were made to keep them within the bounds of their allegiance, and to secure the government from their villainous designs; yet it was experimentally found true, that no dangers or penalties whatsoever could deter or hinder them from plotting against the state, in order to bring us back again to the slavery of Rome; whilst those juggling managers of their consciences were suffered to come amongst us; and there fore I may well call this statute, upon which the prisoner stands indicted, an act of charity to the common papists; for it was made to pre- Clerk. "Whereas information hath been vent the dangers they would otherwise run them-given to his majesty in council upon oath, That selves into, as well as the nation. It is true, in- George Busby late of West-Hallam, in the deed, gentlemen, that the lively execution of this county of Derby, is a reputed priest and Jesuit, law has (by the clemency of our princes, and good and has had a considerable part in the late connature of the government) been many times spiracy against the life of his sacred majesty, suspended, and might yet have continued in and the peace of the government; these are the shade, had not the popish priests and Jesuits therefore to will and require you to repair to roused up this sleeping lion against themselves the place aforesaid, or where ever else the said by a damnable and hellish plot against his ma- George Busby shall be found, and him to seize 'jesty's life, the true religion and well establish- and apprehend, and convey to the next countyed government of this nation; the reality of gaol, there to remain in close custody, until he which has been confirmed to us, not only by shall be delivered by the due course of law. the unanswerable evidence of Coleman's pa- And all mayors, sheriffs, justices of the peace, pers, and other loyal proofs, but also by fre- constables, and other his majesty's officers and quent proclamations, and the uniform votes and loving subjects are to be assisting unto you in resolutions of several parliaments. I may there- the execution hereof, as they will answer the fore very well borrow the words of a great contrary; for which this shall be your warman upon the like occasion, and say, that at rant. Dated at the council-chamber in Whitethis time of the day it is much better to be rid hall, the 19th day of March, 1678, Worcester, of one priest than many felons: and therefore, Clarendon, Aylsbury, H. London, Sunderland, gentlemen, if our evidence shall make good Essex, Falconbridge. the indictment, I hope you will do your king, your country, and yourselves the right to find the prisoner guilty. We shall call our evidence. Call Mr. Gilbert (who was sworn.) Pray tell my lord and the jury, what you can say concerning the prisoner at the bar.

Gilbert. My lord, I dwell within two miles of Mr. Powtrel's house at West-Hallam, the place where the prisoner was taken, and have beard that he hath been a priest in that family

"JOHN NICHOLAS," "Indorsed to Henry Gilbert, esq. at Locko, in the county of Derby."

Then Mr. Gilbert proceeded.

Mr. Gilbert. My lord, I received this order on Saturday the 22d day of March, 1678. And on Sunday afternoon I sent to Mr. John Bagnall of Derby, who was then under-sheriff, requiring him to meet me early on Monday the 24th, at Mr. Powtrel's house at West-HalThe Statute' is inserted in the Case of Brom-lam, about some earnest business lately sent mich, vol. 7, p. 724, of this Collection. down from the lords of the council, wherewith

VOL, VIII.

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I would acquaint him at our meeting: As soon as he came, I shewed him the warrant; after which we searched very diligently in every place we could see, but could not find him; though afterwards I was informed he was in the House at that time also.

About August, 1679, Mr. Powtrel obtained a licence from his majesty to travel beyond sea, and it was confidently reported by the papists, that this Mr. Busby was gone over too, insomuch, that when sir W. Waller came into these parts in January 1679, with warrants to search for Jesuits (in one whereof I saw Busby's name) and would have searched at Hallam, I dissuaded him, and did assure him I believed he was gone beyond sea, and told him how often I had searched for him in vain; whereupon sir W. Waller diverted to another place, though I have been informed since, that Busby was never out of England since the discovery of the Plot.

But about Christmas last, and since, I having had notice that Busby was in England, and particularly at West-Hallam, and had been seen last corn-harvest to walk in Mr. Powtrel's garden with one Anne Smalley, a widow, I thought it my duty to make it my further enquiry after him, which I did on the first day of March last, and came to the house to buy some wood for my coal-pits, and then brought five or six persons with me, and sent for the constable to help me to search for him, which we did most part of the afternoon, but could not find him, though he was seen to be walking in the garden with the said Anne Smalley when I eame first into the house, as I was afterwards informed; but when I asked the said Anne Smalley for him, she affirmed with many protestations, that he was in Flanders, and not in England, and that if I had any business with him, I must go beyond sea to him, for she had not seen him for above two years; though she had helped to convey him out of the garden into his hiding-hole, but a few minutes before: however, I proceeded in my search, and found in the chamber where Busby lodged, a crimson damask vestment, wherein was packed up a stole, a maniple of the same (as the Papists call them) an altar, stone, surplice, and a box of wafers, mass-books, and divers other popish things: Then I told Mrs. Braylsford (a kinswoman of Mr. Powtrel's) and the said Anne Smalley, those things did signify that a priest belonged to the house; for the book had been lately used, as was apparent by the string which was put betwixt two leaves, whereof Festa Februarii was on the one side, and Festa Martii was on the other side; but they stiffly affirmed that no priest had been there of above two years before, and jeered me when I could not find him, and said, if there was a priest in the house why did I not take him?

When I had done searching, and could not find him, I took away the vestment, and other things, which I brought to the assizes, a fortnight after, and did ask Mr. Justice Charlton (who came that circuit) his opinion, what I

should do with them; he told me they must be burnt, according to law; I entreated his favour, that I might send them again to the same place, for two or three days, to make the priest more confident, that I might better ap prehend him; he told me, he could give no such permission; but insisted, that they ought to be destroyed.

When all the business was done at the assizes on the crown-side (where I was obliged to attend) on March the 15th day at night, I went to the judge again, and craved his lordship's pardon for presuming to send back the popish things, contrary to his opinion; but acquainted him that I intended to go after them to West-Hallam that night, and if I could not catch the priest, I resolved to bring the same things again; and after I had asked his lordship some questions, and received his directions, I came to my own house, and went about eleven of the clock at night (with some company to assist me) to Hallam, and set two men to watch in the garden, and one in the church yard (joining to another side of the house) to see if they could spy any light, or hear any walking in the lofts or false floors, when I made a noise on the other side of the bouse. I sent a man before to call up the constable, and when he and two or three more came, I knocked at Mrs. Anne Smalley's window, about twelve of the clock in the night, and said aloud, Mrs. Smalley open the doors, I am come to search for a po pish priest. She started up, and said, Who was there? I told her, it was I, she knew me well enough, I dwelt at Locko. Then I staid a pretty space of time, and called aloud to her again, and spoke the like words: but by that time, I suppose she and her bedfellow, Mrs, Braylsford, were gone to give the priest notice and to help him to his hiding-hole, for no body answered me; then after a pretty space, called to her a third time, and required her, in the king's name, to open the doors, for I was come to search for Busby, the Jesuit, who was a traitor by law, and if she would not open the doors, I would cause the constable to force them open; and when I could have no answer from her, I went to Joseph's Dudley's chamber window, and called there, charging him in the king's name to open the doors, but no answer at all was returned; for he also was gone into the pricts's chamber, and found Anne Smalley busy in helping Busby to secure himself, as the said Joseph Dudley did afterwards inform me.

After I had staid about a quarter of an hour I commanded the constable, in the king's name to break the doors open, which was done; and when we came into the priest's chamber, I found the fire had been lately extinguished, the coun terpain and the blankets laid in confused heaps on the bed, and some part of them warm, and some part cold; the upper part of the feather bed was cold; which I wondered at, then I put my hand underneath, and the bed was warm; for they had turned it. I looked for the pillow, sheets, cap, &c. but Anne Smalley (as I was afterwards informed) had taken them

into the chamber where she lay. I asked her divers questions about the person that had lain in that bed that night, and particularly, whether or no it was not Busby? She told me, no body had lain in that bed that night; I told her, I was sure some person had lain there; for the feather bed was warm on the under side: she took many protestations, that nobody had lain there of divers nights before: I replied, if she would discover the person who had lain there, it would save her and me much trouble: but when all I could say would not prevail, I told her, I must search, for I was confident, that Busby was in the house, because she would not declare who it was that lay there.

I began to search about one o'clock, and continued till after ten next morning before I could find him and though the watchers in the garden told me, they heard his paces and steps very plainly amongst the lofts and false floors, and described on the out-side of the house the place where they last heard him, within the space of nine or ten foot where he was hid; yet were we almost so many hours before we could find him.

At last when the searchers were almost all tired, Anne Smalley, and others of the family, scoffed at us, and asked, What, have you not found him yet? You said there was a priest in the house, why do you not find him then? Why do you not take him? I said, All in good time? I was resolved to find him, or starve him out: Nay, the foot-boy of the house, seeing my servant look within the kitchen-chimney, where there hung a port-mantle, said, jeering to my man, Look if he be not in the port-mantle.

After those persons had pleased themselves a good while with mocking us for our disappointment, I persuaded two or three of the searchers once again to climb upon the lofts (which I could not do myself, by reason of a Jameness in my shoulder), and look well near the place where Busby's last steps were heard. Which when they had done some while, and found nothing, I took my sword and scabbard, being in the room underneath) and knocked on the plaister-floors over my bead, and caused them to answer me with the like knocking as near the same place as they could, and when we had examined the floors in this manner, I knocked near unto a stack of three chimneys, but they could not answer within a yard; I knocked again in two or three places near the chimneys; yet still they could not answer near those places, but told me there was nothing but tiles and roofing; I bid them break open those tiles, which they did, and espied under them a wooden door, and a little iron hinge; I bid them break the door; then one of the searchers put in his hand into a little hole that was broken in the door, and felt a hat; then he told me some body was in that place, for a man had thrown his hand off the hat; then I caused them to break open the entrance, which when they had done, Busby spoke to them, and desired them to be civil;

when they told me what he said to them, I charged them to be civil to him, and bring him to me, which they did. Then I arrested him in his majesty's name for high treason, and after he had refreshed himself a little, Í told him he must get on his boots, and prepare himself to go to Derby.

Soon after his apprehension, (I perceiving him to be a little dismayed) I encouraged him and said, he should have all the favour a person in his circumstances could expect; for I told him, I understood he was a gentleman of a good family in Buckinghamshire or Oxfordshire, and that his brother lived at Coddington, in Oxfordshire, which he acknowledged, and thanked me for my civility.

I was so well satisfied that we had apprehended him, after much tedious watching and searching, that I never thought of sending any man to look what was in the hiding hole with him; but after an hour's stay, or thereabouts, I took him away from Hallam between eleven and twelve o'clock on the 16th of March last, and brought him to Derby between one and two o'clock; where, after I had taken his examination, I made a Mittimus, and committed him to Derby gaol.

On Saturday following, I writ a letter to Oxford to the right honourable the earl of Conway, one of his majesty's principal secretaries of state, informing his lordship of the apprehending and commitment of Busby, and inclosed a copy of his examination, to which his lordship writ me a letter in answer, that he had acquainted his majesty with my proceedings, who did very well approve of what I had done. Busby. My lord, I am an alien, born at Brussels.

Baron Street. Was your father of that place? It is a very good family.

Busby. My father lived at Coddington, my mother was an heiress, and here is an affidavit ready to be produced of what children my father had before he went beyond sea, born at Coddington, out of the register of that place; I have had no time to bring a particular certificate where I was born, and what other children my father had beyond sea; my father went over about the beginning of the troubles, and I am about 40 years of age.

After the Judge had told Busby of the Act for Naturalization,

Mr. Busby. I suppose, my lord, that act may stand good as to privileges of the subject, but not as to penalties.

Baron Street. Yes, as to all intents and purposes: Read the Act 29 Car. 2, cap. 6. "An Act for the Naturalizing of Children of

his Majesty's English Subjects, born in foreign Countries during the late Troubles. "Whereas during the late unhappy troubles in England, which began in the year of our Lord, 1641, and continued until the time of his majesty's most happy restoration, divers of his majesty's English subjects, as well of the no

bility as others, did either by reason of their attendance upon his majesty, or for fear of the then usurped powers, reside in parts beyond the seas out of his majesty's dominions, and it may hereafter become difficult to make proof of the occasion of such their residence: Now for preventing of all disputes and questions that may arise, whether the children of such his majesty's subjects of this realm are naturalborn subjects of our sovereign lord the king, and to express a due sense of the merit of all such loyal persons as out of their duty and fidelity to his majesty and his father of blessed memory, did forego, or were driven from their native country:

"Be it declared and enacted by the King's most excellent majesty, by and with the consent of the Lords spiritual and temporal, and the Commons in this present parliament assembled, and by the authority of the same, That Charles Gerard, and Elizabeth Gerard, children of the right honourable Charles lord Gerard of Brandon, Trever Wheler, and Dorothy-Elizabeth Wheler children of sir Charles Wheler, baronet, Ann Ravenscroft the wife of Edward Ravenscroft of Bretton in the county of Flint, esq.; one of the daughters of sir Richard Lloyd, knight, deceased, born at Calais in France, and all other persons who at any time between the 14th day of June in the said year of our Lord 1641, and the 24th day of March in the year of our Lord 1660, were born out of his majesty's dominions, and whose fathers and mothers were natural born subjects of this realm, are hereby declared and shall for ever be esteemed and taken to all intents and purposes, to be and to have been the natural born subjects of this kingdom; and that the said children, and all other persons born as aforesaid, and every of them, are and shall be adjudged, reputed, and taken to be and to have been, in every respect and degree, natural born subjects, and free to all intents, purposes, and constructions, as if they and every of them had been born in England.

"And be it further enacted and declared by the authority aforesaid, That the children, and other persons as aforesaid, and every of them, shall be, and are hereby enabled and adjudged able, to all intents, constructions, and purposes whatsoever, as well to demand, as to have and enjoy any titles of honour, manors, lands, tenements, and hereditaments, and all other privileges and immunities belonging to the liege people and natural subjects of this kingdom, and to make his or their resort or pedigree, as heir to his, their, or any of their ancestors, lineal or collateral, by reason of any descent, remainder, reverter, right, or other title, conveyance, legacy, or bequest whatsoever, which hath, may, or shall descend, remain, revert, accrue, come or grow unto the said children, or persons born as aforesaid, or any of them; as also to have and enjoy all manors, lands and tenements, or other hereditaments, by way of purchase or gift of any person or persons whatsoever; as also to prosecute, pursue, maintain,

avow and justify all and all manner of actions, suits and causes, and all other things to do as law fully, liberally, freely and fully, as if the said children, and the persons born as aforesaid, and every of them had been born of English parents within this kingdom, or as any other person or persons born within this kingdom may lawfully in any wise do; any law, act, statute, provision, custom, or other thing whatsoever, had, made, done, promulged, proclaimed, or provided, to the contrary thereof in any wise notwithstanding; provided always, that no person, other than the persons expressly named in this act, shall have any benefit thereby, except such person shall within seven years next ensuing, receive the Sacrament of the Lord's Supper, and within one month next after such receiving the Sacrament, take the oaths of Allegiance and Supremacy in some of his ma jesty's courts at Westminster, and deliver into the court, at the same time, a certificate of such his receiving the said Sacrament, and then make proof thereof by witnesses to be examin ed viva voce upon oath.

"And be it further enacted, That no person or persons, other than the persons expressly named in this act, shall have any benefit thereby, until he or they shall have received the Sacrament, and made proof thereof by certificate and witnesses, and taken the said oath in manner aforesaid.

"And for the better manifestation and proof of such qualifications as may entitle any person to the benefit of this act, which in process of time may be very hard to be proved: Be it further enacted, That any person having received the sacrament, and made proof thereof by certificate and witnesses, and taken the said oaths within the time aforesaid, in any of his majesty's courts, in manner aforesaid, shall and may be admitted to make proof of such his qualification in the said court by wit nesses viva voce to be examined upon oath; and if he shall make proof thereof to the satisfaction of the said court, he shall thereupon have a certificate thereof under the seal of the said court, to be likewise enrolled in the said court, and for ever after upon shewing such certificate or enrollment thereof, every such person shall have full benefit of this law, as if he had been therein expressly named.”

subject by the late act of parliament; whereby Baron Street. Then you are a natural born it

appears that all persons born abroad in the late troubles, who went out of this kingdom by made natural born subjects, as if born here. reason of their sufferings for the king, are

Then Joseph Dudley was called and sworn.

the prisoner at the bar? Look upon him. Baron Street. Joseph Dudley, do you know

Dudley. I have known him these six years and more, to belong to Mr. Powtrel's at West Hallam to whom I was at that time a servant, where he officiated as a priest, and was kept to do that office; where I have heard him say

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