hereupon sent him to the Tower, and instructed the attorney-general to prosecute him for a high misdemeanor (Lords' Journals, xiv. 336–8). He was, however, released on making a humble apology and withdrawing his claim, 27 Nov. (ib. xiv. 354–5); and on the following day obtained a discharge from his recognisances in the court of king's bench, no further notice being taken of his conduct in the north (Luttrell, i. 610). On 28 June 1690 Lord Montague won his action, being awarded 1,300l. damages (ib. ii. 48). Preston carried on his plots, and was still regarded by his party as a man of courage and honour. He retained the seals of his office, and was still considered by the Jacobites as the real secretary of state. The lord president, Carmarthen, caused a watch to be set on his movements. In December 1690 a meeting of the leading protestant Jacobites was held, at which it was determined that Preston should carry to St. Germains the resolutions of the conspirators. Soon after midnight on 1 Jan. 1691 Preston, Major Edmund Elliott, and John Ashton [q. v.] were seized as they lay concealed in the hatches of a smack making for Calais or Dunkirk. A packet of treasonable papers, tied together and weighted in order to be sunk in case of surprise, was dropped by Preston with his official seals, and seized upon the person of Ashton, who had tried to conceal it. The prisoners vainly attempted to bribe their captors. On 3 Jan. Preston was sent to the Tower, and on the 16th was indicted at the Old Bailey in the name of Sir Richard Graham for high treason. He pleaded that as a peer of England he was not within the jurisdiction of the court, but this plea being overruled, he was on 17 Jan. found guilty, and condemned to death two days afterwards. His estate and title of baronet were forfeited to the crown. Some months passed before his fate was decided. Lady Preston, on petitioning the queen for her husband's life, received an intimation that he could save himself by making a full discovery of the plot (ib. ii. 162). During some time he regularly wrote, it is said, a confession every forenoon, and burned it every night when he had dined. At last he confessed his guilt, and named Clarendon, Dartmouth, Francis Turner, bishop of Ely, and William Penn as his accomplices. He added a long list of persons against whom he could not himself give evidence, but who, if he could trust to Penn's assurances, were friendly to King James. After several respites, the government, convinced that he could tell even more, again fixed a day for his execution. At length, on 1 May, he made a further confession, and gained thereby another reprieve of three weeks, ‘which, 'tis believed,’ writes Luttrell, ‘will end in a pardon’ (ib. iii. 220). A patent was passed for his pardon soon afterwards, and on 13 June he obtained his release (ib. ii. 237, 244). His estate was, however, still retained by the crown as security for his good behaviour, a supposed equivalent being granted him from the exchequer (ib. ii. 242). Subsequently, in September 1693, the queen granted 600l. a year from the forfeited estate to Lady Preston and her children (ib. iii. 191). The attainder could not affect his Scottish peerage, as no act of forfeiture against him passed in Scotland. Early in August 1691 Preston was recommitted to Newgate for refusing to give evidence against some ‘criminals,’ but was soon bailed out (ib. ii. 271). Thereafter he was permitted to retire to Nunnington in Yorkshire, pursued by the execrations of his party.
Preston employed the remainder of his life in revising for the press a translation with notes of Boethius's ‘De Consolatione Philosophiæ’ which he had made in 1680. It was published after his death at London in 1695–1696, 8vo (2nd edition, 12mo, London, 1712), and is remarkable on account of the allusions with which the preface is filled. In figurative language the translator complained that his judges had been more lenient than the friends who had sneered at him for giving way under trials which they had never undergone.
Preston died at Nunnington on 22 Dec. 1695, and was buried in the chancel of the church. He married, on 2 Aug. 1670, Lady Anne Howard, second daughter of Charles, first earl of Carlisle, by whom he had with other issue a son, Edward (1679–1709), who succeeded him as second Viscount Preston. Graham's family papers are calendared in the 6th report of the Historical Manuscripts Commission (p. 321); his valuable and interesting correspondence while envoy extraordinary to the court of France 1682–5, and while secretary of state at the end of 1688, is set forth in the 7th report (pp. 261–428); the originals being preserved at Netherby Hall. Several of his letters were printed by Sir John Dalrymple in his ‘Memoirs of Great Britain and Ireland.’[Douglas's Peerage of Scotland (Wood), ii. 374–375; Hutchinson's Cumberland; Welch's Alumni Westmon. 1852, p. 175; Luttrell's Historical Relation of State Affairs, 1857; State Trials (Howell), xii. 645–747, 814–17; Hist. MSS. Comm. 6th and 7th Reps.; Evelyn's Diary, 1850–1852, vol. ii.; Macaulay's Hist. of England; Burnet's Own Time; Cal. State Papers. Treas. 1256–1696.]