Aboard the Thomas and Elizabeth, Captain Billop caused the passengers he had just intercepted to be searched. According to his deposition, John Ashton at first denied concealing anything whatsoever, before drawing a handkerchief from his garments. Billop affirmed that he thrust his hand into the man’s coat and brought forth a packet of papers weighted with lead. Lord Preston and Edmond Elliot were aboard the vessel in Ashton’s company. All three men were to be accused of plotting the restoration of James II and conveying military intelligence to the King of France.
The voyage had commenced in London on 30 December 1690. Some weeks earlier, Preston, who had served as Secretary of State under James II, had been arrested and examined, the authorities suspecting him of labouring in the interest of the exiled monarch. The papers discovered aboard the smack contained detailed memoranda concerning the English fleet, the fortifications of Portsmouth and Gosport, the disposition of vessels and havens, and practicable means for blockading London. Other documents touched upon a restoration of James II sustained by a French army, while advancing guarantees of a Protestant administration and promises to respect the laws of the realm. The design thus combined dynastic restoration, constitutional concessions, and military preparations.
Before the evidence could be adduced, the trial opened with a dispute concerning Preston’s right to be tried as a peer. He maintained that a patent of peerage had been granted him prior to the abdication of James II. The Crown replied that the House of Lords had declined to recognise his pretensions. The Lord Chief Justice demanded the production of the patent; Preston was unable to produce it. He likewise prayed for a copy of the indictment that he might examine the charges. The court refused his request, citing ordinary practice. Preston reminded the bench that the accused had enjoyed scant time to prepare their defence, having been permitted access to counsel and friends only at a late hour. The court directed him to plead before any question of delay could be entertained. He pleaded not guilty.
The two other prisoners, John Ashton and Edmond Elliot, prayed to be tried alongside him; the court refused their application. It directed that they be tried separately unless all parties agreed to join their challenges. Preston sought to challenge the panel, but had not yet received the full list of jurors. The judges answered that the jurors might be challenged individually as they were called. The trial of a former minister of the Crown thus unfolded in a courtroom where questions of procedure and substantive guilt were already inextricably tangled, and where every plea for delay met with an absolute refusal.
A shipowner, Mrs Pratt, confirmed that a vessel had been hired from her for a passage to France. The master of the smack, Pasely, attested to the charter and the departure toward Gravesend; the waterman proved that he had conveyed the travellers to the vessel. The indictment set the cost of the passage at one hundred pounds. Thus, even before the documents were produced, the prosecution had established an organised passage, a vessel hired for the purpose, and an enemy destination in time of war.
Captain Billop then related the manner of the capture. On 31 December, Lord Danby conducted him to Lord Lindsey, the Lord President of the Council, who informed him that certain individuals intended to reach France with treasonable papers and ordered him to intercept them. Billop manned a pinnace, proceeded down the Thames to Gravesend, and descried the Thomas and Elizabeth. Boarding the smack with his men, he descended into the cabin and discovered Preston, Ashton, and Elliot lying close together. He searched Preston first, then Ashton; from the bosom of the latter’s shirt, the lead-weighted packet was drawn. Billop swore that he secured the papers and delivered them into the hands of the authorities.
The prisoners were conveyed to London. During the passage, Preston asked to put ashore at Gravesend to eat and warm himself. Billop refused, carrying them instead aboard a man-of-war. He recounted that Preston thanked him for his civil treatment and promised him a good turn should the occasion ever arise. Ashton and Elliot, for their part, urged the captain to fling the papers overboard, telling him he might enrich himself, go with them, and make his fortune in France. Billop replied that he would not destroy what he had seized. This account of their conversation rested solely upon his word, but the existence of the packet itself was corroborated by those who subsequently received it.
The material transmission of the documents occupied a central place in the proceedings. Billop stated that he delivered them to Lord Nottingham; the Earl affirmed that he had inspected, gathered, and sealed them before returning them to the captain. The Lord President explained that he had laid them before the King and subsequently brought them to the Cabinet Council. Lord Sidney testified that he had marked and retained them, save for the time required to take copies. Several sheets were laid before the court: a political memorandum concerning the restoration of James II, intelligence regarding naval strength and fortifications, diverse letters, a cipher alphabet, and bills of exchange. Lord Sidney and the Lord President identified the papers; a former clerk testified that he recognised Preston’s hand in three of the memoranda. The evidence thus traced the papers step by step from the cabin to the Council, and from the Council to the bar of the court.
One of the writings set forth the terms supposedly offered to the Jacobites. France was to persuade the English nation that she harboured no designs of conquest; James II was to promise a Protestant government, limit the French auxiliary force, and summon a Parliament. Another memorandum reviewed the state of the navy and the garrison at Portsmouth, contemplating a diversionary descent from Scotland supported by Swedish troops and Scottish shipping to embarrass the capital. The documents thus joined high diplomacy to practical strategy. Preston, however, insisted that he had never set eyes on any of these papers. He denied that the finding of his seals near the packet proved him to be its author; the Crown countered that the seals bore his coat of arms and the former mark of his office as Secretary of State.
The bills of exchange raised a further difficulty: while the indictment alleged that funds were being remitted to the enemies of the realm, the documents read in court also spoke of debts, ordinary payments, and a portion intended for a young lady. Preston argued that cryptic ciphers and an intended journey to France were insufficient to prove treasonable design. He admitted seeking to leave England, but maintained that he intended to retire to Flanders or elsewhere to live unmolested. He reminded the court that he had been stripped of his offices, twice committed to the Tower, and proclaimed a traitor before any formal charge had been preferred against him.
The Lord Chief Justice left it to the jury to assess the weight of the papers, their provenance, and the journey toward France. He instructed them that if Preston had boarded the vessel with the design of carrying those papers thither, the overt act of treason alleged had been committed within the county of Middlesex. Preston implored the jurors not to convert suspicion into certainty, declaring himself a Protestant and a faithful son of the Church of England. He called no witnesses in his defence. The jury deliberated for less than half an hour and brought in a verdict of guilty.
The conviction transformed an interrupted passage into conclusive evidence of a conspiracy: the leaded packet, the personal seals, the correspondence, and the military memoranda, all united in a voyage of which the intercepting captain had been forewarned. The record offers no alternative account of the papers or their capture. It depicts Preston resisting first the procedure, then the authorship and import of the documents, while high officers of state retraced their chain of custody after the arrest. The concluding line of Borrow’s account joins Ashton and Elliot with Preston in condemnation. Yet Macaulay’s history distinguishes their several fates: Ashton was condemned and executed, while Elliot was never brought to the bar. Preston himself obtained successive reprieves, followed by a royal pardon that spared his life without restoring the entirety of his estates. The three men seized beneath the same hatchway did not pass out of the affair through the same door.