on the sudden quite to debar the Prisoner of the benefit of his Exceptions to the Indictment Mr. J. Powell I have already declar'd my Opinion that the Prisoner has had his proper time for making his Exceptions but he has elapsed that time but I am not against that Motion in a Case of Life upon an Indictment for so great a Crime as Treason is and where the Consequence is so great if it may consist with the Rules of Law and it be the Sence of the Court and the King's Councel consent to let them be heard I submit to it nay I would second or third that Motion that they may be heard Mr. J. Eyres Truly I am of the same Opinion I think we ought not to alter the ancient Course of Law by words of Implication nor go any farther then the Act of Parliament do's express The Act appoints that a Copy of the Indictment should be delivered to the Prisoner so many days before to enable him to make his Exceptions and therefore deprives him of the benefit of those Exceptions after Conviction in Arrest of Judgment I see no words in the Act of Parliament that do alter the Course of Proceedings as to this Matter from what it was in all Civil and Criminal Causes before Persons must take their advantage of Excepting in their proper time but when it comes to Issue the next thing to be done is the Tryel And truly I must needs say the Councel are to blame that knew this so very well that if they have any advantage of Excepting they did not take that advantage sooner it is their fault but seeing it is so I am of Opinion not to foreclose the Prisoner as the Case stands I would be tender of Life but at the same time I declare my Opinion upon this Act of Parliament as the rest of my Brothers have done to prevent the Objection for the time to come yet seeing there is this Misfortune and there would be a Hardship upon the Prisoner by the default and neglect of his Councel in the Case of a Man's Life I would be so tender as to indulge them to make their Objections now Mr. B. Powys I am the same Opinion the Prisoner has lap'st his time for I take it this Clause of this Act of Parliament has not altered the Common Course of Proceedings nay I take it signifies very little in this Case for certainly it was intended to disable the Prisoner and not to enable him at all And therefore as this Case is I think it very Irregular and Impracticable to introduce so great a Novelty as to admit the Motion for quashing the Indictment When the Jury is Sworn and when the Fact is the onely single Point to be Determin'd and every thing else ought in Legal Course to come before or after but for us to Confound time one time for Pleading another time for Tryal and another for Arrest of Judgment all at once and to have a Jury attending meerly to hear Councel at the Bar moot Points of Law which might be Determin'd either before or after the Tryal is so very Irregular that it really Introduces nothing but Confusion which Courts of Justice ought to avoid above all Things and ought to keep to the proper Seasons that the Law allows Therefore truly I think in strictness of Law we ought not to allow it but it being in a Case of Life and it being a new Case upon a new Act of Parliament if the King's Councel think 's fit to Consent I shall be for it if not I think in strictness of Law we cannot allow it Mr Att. Gen. My Lord I am very unwilling to deny the Prisoner any advantage that he might have had by this Act of Parliament though his Councel have slipt the proper time if Sir Bartholomew Shower will say his Exceptions are to any of the four particular Heads mentioned in this Clause of the Act of Parliament for we must Confine them to that then we do Consent that he should make them now L. C. J. Holt. Truly Mr. Attorney if you do Consent that they take their exceptions now we may consider of it whether it can be but I know not how we could admit them to that liberty otherwise for if there be any thing material they may move it in Arrest of Judgment Mr. Att. Gen. And I believe they won't say their Objections are so slight as to be onely matter of form they say they are substantial and then your Lordship will hear them in a proper time Sir B. Shower I don't know whether I am mistaken in the Law I am sure you are mistaken in the Indictment L. C. J. Holt. Well do you Consent to let them make their Objections as to those four Heads in the Act of Parliament Mr. Att. Gen. Yes my Lord if it be any matter of substance that is out of the Case at present for the Provision of the Act of Parliament is onely for meer matter of form and I should be very unwilling in any Point that is Material to make a President in such a Case as this L. C. J. Holt. I Confess if you had Consented further I do not know how we should have admitted of it L. C. J. Treby I tell you how I thought it might be done you might have committed an Irregularity for which in a Case of Life and upon a new Law I believe and hope we should have been forgiven L. C. J. Holt. Well for my part I will not commit any Irregularity upon any Account whatsoever I cannot see how by Law they can take any exceptions to the Indictment Mr. Attorney cannot Consent and if he did I think it could not be unless he did also Consent to discharge the Jury but I see they will not offer any Objections according to your Consent Mr. Attorney and therefore pray go on to open the Evidence Mr. Att. Gen May it please your Lordship and you Gentlemen of the Jury The Prisoner at the Bar Ambrose Rookwood stands Indicted for High Treason in Compassing and Imagining the Death of his Majesty Gentlemen the Overt Acts that are laid in the Indictment to prove this Treason are that He together with divers Others had frequent Meetings and Consultations in order to Assassinating His Majesty's Royal Person and did provide Horses and Arms for that purpose Gentlemen the Evidence that you will hear to prove these Facts that are thus laid will be of this nature you will hear by the Witness That there has been for some Years a Design carried on to Murder the King's Person That this was Discours'd of and several Debates and Consultations were had about it the last Year some time before the King went to Flanders there was several Meetings where were Sir William Parkins Captain Porter and Chernock that was Executed and several others and there they did Consider in what way to take off the King at that time and you will here they did expect a
Act are That no Evidence shall be given of any Overt-Act that is not expresly laid in the Indictment Now cannot I shew upon this Indictment that there is no overt-Overt-Act in such a positive direct manner as they now urge about this List Will not that satisfie your Lordship's Judgment to set aside all this Evidence To make the Indictment good for Treason there ought to be a Compassing of the Death of the King laid and an overt-Overt-Act laid declaring that Compassing but no Evidence is to be given of any Overt-Act that is not laid in the Indictment L. C. J. Holt. You are not to take Exceptions to the Indictment now but only to the Evidence Sir B. Shower I have this one Exception more there is never a Quodque nor a Juratores ulterius presentant L. C. J. Holt. There does not need but that is a Fault if any in the Indictment and is not to be stirr'd now Sir B. Shower If there be not a Presentment by the Jury then there is no Overt-Act alledg'd and if there be no Overt-Act alledged or no such Overt-Act then we are within the Words of the Act that no Evidence shall be given of any such Overt-Act but what is alledg'd and it is if not expresly alledged as if it were not alledged at all now here it is very loose iidem Christopherus Knightley and so it goes on with the rest did so and so There is a Presentment at first that they did Compass and Imagine the Death of the King and then the Indictment comes farther and says that 40 men shou'd do this Business and of those 40 these 4 shou'd be some and then the iidem bought Horses and Arms and so it must go to the last Antecedent and then there is no express alledging of any Overt-Act and then it is as if no Overt-Act at all was alledg'd L. C. J. Holt. This Exception is not to the Evidence but to the Indictment it begins Juratores presentant quod Does not that relate to all Sir B. Shower No my Lord and I can tell you a Reason why not if it be not so well alledged as it shou'd be it is in an Indictment as if it were never alledged at all and so within the Words of the Act of Parliament this is not an Overt-Act alledg'd and therefore they cannot give Evidence upon it Mr. Soll Gen. Truly my Lord I can't imagine what they are doing they are moving in Arrest of Judgment before a Verdict given they say the Overt-Act is not expresly laid Is that an Exception to the Evidence or to the Indictment Sir B. Shower If my Lord will please to give us the Liberty we wou'd shew there can be no Verdict given upon this Indictment L. C. J. Holt. Certainly this is an irregular Proceeding this is not a time of Exception to the Judgment Mr. Phipps Then my Lord we are in your Judgment as to the Proof that has been given If a man be present at a meeting of several Persons and there is a Treasonable Debate about Killing the King and this man is only present but neither assents nor makes the Proposal how it shall be done whether the bare being silent and saying nothing is such an overt-Overt-Act as shall Convict a man of Treason L. C. J. Holt. I tell you Consenting to a Traiterous Design is an overt-Overt-Act of high-High-Treason if that Consent be made to appear by good Proof Now the Question is What is a good Proof and Evidence of this Consent a man is two or three times at a Treasonable Consult for Killing the King and tho perhaps at the first he did not yet at the second he did know that the Meeting was for such a Design suppose for the purpose there was but two Meetings and at the second it is determined to go on with the Design Is not that an Overt-Act tho it cannot be proved that the Prisoner said any thing Mr. Phipps If the first Meeting is not a Consent or an Overt-Act neither will a second or third be if there was no more done than at the first but they are like so many Cyphers without a Figure L. C. J. Holt. The first Meeting possibly might be accidental he might not know what it was for tho that will go a great way if he does not dissent or discover but then he meets again with the same Company knowing what they had in Design Does not that prove a Consent That was the Case of Sir Everard Digby in the Powder-Plot Mr. Phipps But where it may be uncertain my Lord whether it were with a good Design or a bad Design that he met with that Company it ought to be taken most favourably for the Prisoner this man might be present in order to a Discovery L. C. J. Holt. But besides that is not this Case you are mooting upon Points that are not in the Case When Mr. Harris came to Mr. Rookwood and finding them in some Disorder and being inquisitive what was the Occasion he was sent to Counter and when he discovered what they were to go about he afterwards meeting Mr. Rookwood says to him Are we sent over to murder the Prince of Orange says Rookwood If I had known of this Design before I came from France I would have begg'd the King's that is King James Pardon and desired to have been excused Hereby he expresses his Knowledge of the Design and what he was to do and tho he disliked yet wou'd obey Orders Mr. Phipps There is no doubt my Lord but he knew of it but whether your Lordship will construe his Silence as a Consent in Treason is the Question L. C. J. Holt. A man is at frequent Consults about Killing the King and does not reveal it it is a great Evidence of his Consent Mr. Phipps But it is not prov'd that he did actually Consent to it Mr. Soll. Gen. My Lord we must submit it to your Lordship whether this is not totally improper and irregular at this time they are arguing how far the Evidence is to be believ'd before the time proper for such an Argument comes Mr. At. Gen. If they will call their Witnesses let them or if they say they have none then they may make their Observations upon the Evidence but else we desire we may be kept to the usual method of Proceedings Mr. Phipps With Submission we thought it fit to know the Opinion of the Court first if there be two Witnesses against the Prisoners for if there be not two Witnesses as the Law requites we need not trouble the Court with our Evidence Sir B. Shower Then my Lord we must desire that the Record may be read of Captain Porter's Conviction of Manslaughter a man that has been guilty of doing such an Act feloniously maliciously and voluntarily as that is sure is not a competent Witness Cl. of Arr. It has been read already Mr. Att. Gen. I thought we had been over that Objection before Sir B. Shower We think
Lord there is Evidence of some of these 40 Men whose Names were given in a List by Rookwood to Harris Mr. Phipps But now in Cranburne's part the List is expresly Alledged as an Overt Act. L. C. J. Holt. Never talk of Cranburne we have not him before us now but what do you say to this of the List given by Rookwood to Harris Sir B. Shower My Lord we say this is not Evidence of an Overt-Act according to this Act of Parliament which says No Evidence shall be given of any Overt-Act that is not expresly alledg'd in the Indictment now the Indictment says they did agree that Forty Horsemen Armed of which the Four named were to be Four and every one undertook to be one who shou'd lie in wait to set upon the King in his Coach and a Competent number should set upon the Guards and then it says in order to fulfil this they did prepare Horses and Arms and one of them by the Consent of all the rest did carry forward and backward a List that is Cranburn and that particular List is a particular Overt-Act alledged in the Indictment which makes it plain they thought it necessary to be particularly alledged by this Act of Parliament or they could not give any Evidence of it now the List that Evidence is given of is supposed to be delivered by the Prisoner to Harris Now first we say it is not Evidence that Forty shou'd do it for they may do it without a List and next it is not Evidence of the List that they have mentioned for that is alledged to be carried about by Cranburn and as the Prisoner himself has observed this List given to Harris is not in the Indictment and therefore no Evidence can be given of it Mr. Conyers It is an Evidence of that overt-Overt-Act which is expresly alledged in the Indictment that they met together to Consult how to effect this Treason Mr. Cowper My Lord we are in a very strange Case here if we be not very proper in this part of our Evidence the Overt-Act laid is that the Prisoner met together with others to Consult how to Assassinate the King and there the Prisoner among the rest did agree it should be done so and so 'T is admitted the Prisoner was there But say they if you only prove that he sate by while there was a general Discourse of such a matter but do not prove that he said or did any thing expressing his Assent that will not amount to a proof of the Overt-Act laid and yet if we go about to prove further any Act done that manifests his Assent then they say you go too far and prove an Overt-Act that is not mentioned in the Indictment Thus they grant the agreement is a sufficient Overt-Act but Object that being present barely is not a sufficient proof of his Agreement then when we go to make proof of any thing that is a sufficient proof of his Agreement they tells us it is not proper upon this Act of Parliament because not laid in the Indictment though his agreement be laid in the Indictment and so they wou'd amuse us rather than make any solid Objection to our Evidence this Doctrine is certainly very odd my Lord and we doubt not will have little weight with the Court or the Jury Mr. Att. Gen. According to this Doctrine all the Evidence must be put in the Indictment L. C. J. Holt They ask you what this giving this List does prove Mr. Att. Gen. His agreeing at that meeting to the Conspiracy and the Execution of it by giving that List of the Names of them that were to be of his party and his own Name as Commander of that Party this he gives to one that was to be of the Party and particularly was to be his Aid du Camp in order to get them ready for the Execution is not this an Evidence of the agreement which is the overt-Overt-Act No Man in the World can be Convicted of Treason if this Doctrine be true Mr. Soll. Gen. My Lord they have not exprest something in the Indictment that has been Read which will make it plain that this is the most proper Evidence of the Overt-Act laid in the Indictment The Indictment says they agreed there should be Forty Men or thereabouts Armed of which a certain number should make an Assault upon the King's Coach while another part should set upon the Guards Now the proof we make is that Mr. Rookwood the Prisoner was to Cnmmand a Party that was to set upon the Guards and in order to it he gives a List of his Men to Harris who was to be his Aid du Camp and bids him get those Men ready and this was upon the day that this matter was to be acted so that it proves very plainly that Overt-Act that we suggest in the Indictment that a certain number of those Men were to Assault the king's Person and other part the Guards and therefore they needed not have interrupted your Lordship for this List that Harris speaks of is a very good proof of the overt-Overt-Act that is laid in the Indictment L. C. J. Holt Then Gentlemen as to this matter which they have objected that this List given on the Day of the intended Assassination ought not to be allowed as Evidence to prove the Treason because it is not specially laid in the Indictment but is by the late Act of Parliament excluded from being proved to Convict the Prisoner now though the Act doth exclude the giving in Evidence any Overt-Act that is not laid in the Indictment yet it doth not exclude such Evidence as is proper and fit to prove that overt-Overt-Act that is laid in the Indictment Therefore the question is whether this giving of the List does not prove some overt-Overt-Act that is alledged in the Indictment there is in the Indictment an Agreement laid to kill the King and if that be proved that 's an overt-Overt-Act of this Treason now when the Consent and Agreement of Mr. Rookwood to that design is proved surely the proof of his giving a List of Men is a further proof that he did agree to it then it is very proper to be given in Evidence for if by the New Statute no one Act can be given in Evidence to prove another then must not only the Overt-Act but also the Evidence of that Act be expressed in the Indictment Gentlemen you have heard the Witnesses what they say concerning this matter In the first place if you do believe that there was such Consults and Meetings where this intended Assassination of the King was Debated and Resolved upon and that Mr. Rookwood was present and did agree to it that is an Overt-Act and again if you are satisfied that there was an Agreement to prepare and provide a number of Men to set upon the King and his Guards in the manner you have heard and he was concern'd in making this Provision and was to have a Post and Command
JVNE 8. 1696. I Do Appoint Samuel Heyrick and Isaac Cleave to Print the Tryal of Ambrose Rookwood and that no other Person Presume to Print the same J. HOLT THE Tryals of Charnock King and Keys and likewise of Sir John Friend and Sir William Parkins are all Printed and Sold by Samuel Heyrick and Isaac Cleave THE Arraignment Tryal and Condemnation OF Ambrose Rookwood For the Horrid and Execrable CONSPIRACY TO Assassinate His Sacred Majesty King WILLIAM In Order to a French INVASION of this Kingdom Who upon full Evidence was found Guilty of High Treason before His Majesty's Justices of Oyer and Terminer at Westminster on Tuesday the 21 st of April 1696. and received Sentence the day following And was Executed at Tyburn on the 29 th day of the said Month. In which Tryal is contained All the Learned ARGUMENTS of the King's Council and likewise the Council for the Prisoner upon the New Act of Parliament for Regulating Tryals in Cases of Treason LONDON Printed for Samuel Heyrick at Grays-Inn-Gate Holborn and Isaac Cleave at the Star next Serjeants-Inn-Gate in Chancery-Lane MDCXCVI Die Martis Decimo Quarto Aprilis Anno Regni Regis Willielmi Tertii Octavo Annoque Domini 1696. THE Court being sat at which were present the Lord Chief Justice Holt the Lord Chief Justice Treby Mr. Justice Nevil Mr. Justice Powell and Mr. Justice Eyres the Court proceeded in this manner Cl. of Arr. Cryer Make Proclamation Cryer Oyez Oyez Oyez All manner of Persons that have any thing more to do at this Sessions of Oyer and Terminer holden for the County of Middlesex draw near and give your Attendance God save the King Then the Grand Jury were called over and the appearances mark'd and Witnesses being Sworn in Court to give Evidence to them upon a Bill of Indictment against Alexander Knightley they in a little time after withdrew to hear the Evidence Then the Keeper of Newgate was ordered to bring his Prisoners to the Bar which he did to wit Robert Lowick Ambrose Rookwood and Charles Cranburne Who were there thus Arraigned Cl. of Arr. Robert Lowick hold up thy Hand Which he did Ambrose Rookwook hold up thy Hand Which he did Charles Cranburne hold up thy Hand Which he did You stand Indicted in the County of Middlesex by the Names of Robert Lowick of the Parish of St. Paul Covent-Garden in the County of Middlesex Gentleman Ambrose Rookwood of the same Parish Gentleman and Charles Cranburne of the same Parish and County Yeoman for that you together with one Christopher Knightley of the same Parish and County Gentleman not yet taken not having the fear of God in your hearts nor weighing the Duty of your Allegiance but being moved and seduced by the instigation of the Devil as false Traytors against the most Serene most Illustrious most Clement and most Excellent Prince our Sovereign Lord William the Third by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. your Supreme True Rightful Lawful and Undoubted Lord the cordial Love and true and due Obedience Fidelity and Allegiance which every Subject of our said Lord the King that now is towards him our said Lord the King should bear and of right ought to bear withdrawing and utterly to extinguish intending and contriving and with all your strength resolving designing and conspiring the Government of this Kingdom of England under him our said Sovereign Lord the King that now is of Right duly happily and well established altogether to subvert change and alter as also our said Lord the King to death and final destruction to put and bring and his faithful Subjects and the freemen of this Kingdom of England into intolerable and most Miserable Servitude to Lewis the French King to Subjugate and Inthral the 10th day of February in the Seventh year of the Reign of our said Sovereign Lord the King that now is and divers other days and times as well before as after at the Parish of St. Paul Covent-Garden aforesaid in the County aforesaid falsly maliciously devilishly and traiterously did compass imagine and contrive resolve design and intend our said Lord the King that now is to kill slay and murther and a miserable slaughter among the faithful Subjects of our said Lord the King throughout this whole Kingdom of England to make and cause and the same your most impious wicked and devilish Treasons and Traiterous compassings contrivances and purposes aforesaid to fulfil perfect and bring to effect you the said Robert Lowick Ambrose Rookwood and Charles Cranburne together with the said Christopher Knightley and very many other false Traytors to the Jurors unknown afterwards to wit the same 10th day of February in the year abovesaid at the Parish aforesaid in the County aforesaid and divers other days and times as well before as after there and elsewhere in the same County falsly maliciously advisedly secretly and traiterously and with force and arms did meet together propose treat consult consent and agree him our said Lord the King that now is by lying in wait and guile to Assassinate Kill and Murther and that execrable horrid and detestable Assassination and Killing the sooner to execute and perpetrate afterwards to wit the same day and year and divers other days and times at the Parish aforesaid in the County aforesaid traiterously did treat propose and consult of the ways manner and means and the time and place where when how and in what manner our said Lord the King so by lying in wait the more easily you might Kill and did consent agree and assent that forty Horsemen of thereabouts whereof the said Christopher Knightley you the said Robert Lowick Ambrose Rookwood and Charles Cranburne should be four and every one of you traiterously took upon himself to be one with Guns Muskets and Pistols charged with Gunpowder and leaden Bullets and with Swords Rapiers and other Weapons being Armed should lie in wait and lie in Ambush our said Lord the King in his Coach being when he should go abroad to Invade and that a certain and competent number of those men so Armed should set upon the Guards of our said Lord the King then attending him and being with him and should fight with them and overcome them whilst others of the same men so Armed our said Lord the King should Assassinate Slay Kill and Murther and you the said Robert Lowick Ambrose Rookwood and Charles Cranburne together with the said Christopher Knightley the Treason and all the Trayterous Intentions Designs and Contrivances aforesaid to execute perform fulfil and bring to effect afterwards to wit the aforesaid Tenth day of February in the Seventh year abovesaid at the Parish aforesaid in the County aforesaid divers Horses and very many Arms Guns Pistols Swords Rapiers and other Weapons Ammunition and Warlike things and Military Instruments falsly maliciously secretly and traiterously did obtain buy gather together and procure and cause to be bought obtained
gathered together and procured with that Intention then in and about the detestable horrid and execrable Assassination Killing and Murder of our said Lord the King that now is as aforesaid to be used employ'd and bestow'd and the same Premises the more safely and certainly to execute do and perform the aforesaid Christopher Knightley with one Edward King late of High-Treason in contriving and conspiring the death of our said Lord the King that now is duly Convicted and Attainted by the consent and agreement of divers of the Traytors and Conspirators aforesaid the said 10 th day of February in the 7 th year abovesaid went and came to the place proposed where such intended Assassination Killing and Murder of our said Lord the King by lying in wait should be done performed and committed to see view and observe the convenience and fitness of the same Place for such lying in wait Assassination and Killing there to be done performed and committed And that Place being so viewed and observed afterwards to wit the same day and year their Observations thereof to several of the said Traytors and Conspirators did relate and impart to wit at the Parish aforesaid in the County aforesaid And you the aforesaid Charles Cranburne the same day and year there in order the same execrable horrid and detestable Assassination and Killing of our said Lord the King by the Traytors and Conspirators aforesaid the more readily and boldly to execute perform and commit advisedly knowingly and traiterously did bring and carry between divers of those Traytors and Conspirators forward and backward from some to others of them a List of the Names of divers men of those who were designed and appointed our said Lord the King so as aforesaid by lying in wait to kill and murder against the Duty of the Allegiance of the said Christopher Knightley you the said Robert Lowick Ambrose Rookwood and Charles Cranburne and against the Peace of our said Lord the King that now is his Crown and Dignity and against the form of the Statute in such case made and provided How say'st thou Robert Lowick Art thou Guilty of the High-Treason whereof thou standest Indicted or Not Guilty Lowick Not Guilty Cl. of Arr. Culprit How wilt thou be Try'd Lowick By God and my Countrey Cl. of Arr. God send thee good deliverance How say'st thou Ambrose Rookwood Art thou Guilty of the High-Treason whereof thou standest Indicted or Not Guilty Rookwood Not Guilty Cl. of Arr. Culprit How wilt thou be Try'd Rookwood By God and my Countrey Cl. of Arr. God send thee good deliverance Charles Cranburn How say'st thou Art thou Guilty of the High-Treason whereof thou standest Indicted or Not Guilty Cranburne Not Guilty Cl. of Arr. Culprit How wilt thou be Try'd Cranburne By God and my Countrey Cl. of Arr. God send thee good deliverance Cranburne My Lord I desire your Lordship would grant me the favour for my Wife to come to me in private and that I may have Pen Ink and Paper L. C. J. Holt. Pen Ink and Paper you must have but as to the other we must consider of it Keeper of Newgate What has been usual in those cases Keeper My Lord we let no body come to them in private but their Council L. C. J. Holt. That 's provided for by the Act that allows them Council But has it been usual heretofore to permit any body else to be with them in private the Wife or any other Relations Keeper It has not L. C. J. Holt. It is very dangerous if it should therefore let him have his Wife come to him in the presence of the Keeper Cranburne And Pen Ink and Paper I hope my Lord L. C. J. Holt. Yes yes that you shall have Cranburne You don't deny me my Lord that I may have my Wife come to me L. C. J. Holt. No we don't but she must not be in private with you for fear of an Escape Rockwood I beg the same favour my Lord to have my Brother come to me and Pen Ink and Paper L. C. J. Holt. You shall have the same Rule but you Keeper must have especial Care who you do permit to come to them and be private with them for it is still at your Peril if any ill Accident happens by your Indulgence to them And yet it is fit they should have all that is reasonable for preparing for their Defence at their Trials Lowick And I desire my Lord I may have my Sister come to me and the liberty of her being in private with me L. C. J. Holt. Your Friends may come to you at seasonable times in the presence of the Keeper you shall have any thing that is reasonable but the Safety of the Government must be look'd after Therefore Keeper of Newgate take back your Prisoners and bring them here this day sevennight at 7 a Clock in the Morning without any other Order They staid at the Bar about Half an hour the Judges consulting among themselves about the Precept for the Petty Jury upon a late Act of Parliament which has appointed six days for the Jury to be summon'd before they appear to try any Cause and upon the last Act in Regulating Tryals in Cases of high-High-Treason which requires that the Prisoner shall have a Copy of the Pannel of the Jury duly return'd at least two days before his Tryal Then the Prisoners were carried away and the Grand Jury withdrew to consider of the Evidence against Knightley and in a Quarter of an Hour came back and being called over delivered in a Bill to the Court. Cl. of Arr. Gentlemen you are content the Court shall amend Matter of Form or False Latin in this Indictment without altering any Matter of Substance without your Privity Jury Yes Cl. of Arr. Then Gentlemen you may go for this time and you are to take notice if there be occasion at any time to call you together you shall have sufficient warning given you beforehand This is Billa Vera against Alexander Knightley for High-Treason Then the Judges resumed the Debate among themselves and at last resolved that there should go three several Venires for the Petty-Jury returnable this day sevennight one to try between the King and Robert Lowick the second to try between the King and Ambrose Rookwood and a third between the King and Charles Cranburn because though the Indictment be against them jointly yet it was a several Offence in every one of them and they might sever in their Challenges and that would be troublesome and therefore it was thought best to sever them in their Tryals and therefore the Court adjourned for an Hour or something more while the Precepts for the Jury were preparing and according to the Adjournment met and signed and sealed the Precepts and then Adjourned the Sessions of Oyer and Terminer until this day sevennight at seven in the Morning Die Martis Vicesimo primo Aprilis Anno Regni Regis Willielmi Tertii Octavo Annoque Dom. 1696. THE
Court sat about Eight a Clock at which were present a great Number of Noblemen and Persons of Quality who were in the Commission and Seven of the Judges to wit the Lord Chief Justice Holt the Lord Chief Justice Treby the Lord Chief Baron Ward Mr. Justice Nevile Mr. Justice Powel Mr. Justice Eyres and Mr. Baron Powis Cl. of Ar. Cryer Make Proclamation Cryer O yes O yes O yes All manner of Persons that have any thing more to do at this Sessions of Oyer and Terminer Adjourned over to this Day draw near and give your attendance And God save the King Cl. of Ar. Cryer Make Proclamation Cryer O yes Sheriffs for the County of Middlesex return the Precepts to you directed upon Pain and Peril will fall thereon The Under Sheriff returned the Precepts Cl. of Ar. Mr. Baker pray Who do you intend to begin with Mr. Baker With Ambrose Rookwood Cl. of Ar. Cryer Make Proclamation Cryer O yes You good Men of the County of Middlesex Summoned to appear here this Day to try between our Sovereign Lord the King and the Prisoners that are and shall be at the Bar Answer to your Names as you shall be called every one at the first Call and save your Issues The whole Pannel was called over and the Appearances of those that answered Recorded and the Defaulters were again called over Cl. of Ar. Keeper of Newgate Set Ambrose Rookwood to the Bar. Which was done You the Prisoner at the Bar Ambrose Rookwood those Men that you shall hear called and Personally appear are to pass between our Sovereign Lord the King and you upon Tryal of your Life and Death if therefore you will Challenge them or any of them your time is to speak unto them as they come to the Book to be Sworn before they be Sworn Sir B. Shower If your Lordship pleases We have a Doubt or two to propose to your Lordship in respect of the Tryal this Day But before I offer it we beg your Favour for a Word in behalf of our selves My Lord We are Assigned of Council in pursuance of an Act of Parliament and we hope that nothing which we shall say in Defence of our Clients shall be imputed to our selves I thought it would have been a Reflection upon the Government and your Lordships Justice if being Assigned we should have refused to appear 't would have been a Publication to the World That we distrusted your Candour towards us in our future Practise upon other Occasions But my Lord there can be no reason for such a Fear I am sure I have none for we must acknowledge we who have been Practisers at this Bar especially that there was never a Reign or Government within the memory of Man wherein such Indulgence such easiness of Temper hath been shewn from the Court to the Council as there always hath been Never was there such freedom and liberty of Debate and Argument allowed to the Bar and we thank your Lordship for the same My Lord We come not here to countenance the Practises for which the Prisoner stands Accused nor the Principles upon which such Practises may be presumed to be founded for we know of none either Religious or Civil that can Warrant or Excuse them But the Act of Parliament having warranted the appearing of Councel for Persons Accused to make Defence for them we hope your Lordship will give us leave to make what Objections we can on their behalf L. C. J. Holt. Look ye Sir B. Shower go on with your Objections let us hear what you have to say Sir B. Shower My Lord It appears to be a Doubt to us upon this Act of Parliament whether this Cause can be tryed this Day And if it be a Doubt we hope though it should not have that weight with the Court that we apprehend it has yet your Lordship will excuse us and settle it according to your Judgment The Act requires That all that shall be Accused and Indicted for high-High-Treason whereby any Corruption of Blood may or shall be made to any such Offender or Offenders or to any the Heir or Heirs of any such Offender or Offenders or for Misprision of such Treason shall have a true Copy of the whole Indictment and afterwards shall have Copies of the Pannel of the Jurors who are to try them duely Returned by the Sheriff and delivered unto them And every of them so Accused and Indicted respectively two Days at the least before he or they shall be Tryed for the same Now if your Lordship will please to cast your Eye upon this Venire Facias and it will appear to be Returned but this Day and that is not according to the intent of this Law And it is impossible then if it be as we apprehend it and put it that this Tryal should go on at this time and that this Construction should be so as we say not only the Words but as we take it the Intent and Meaning of the Act of Parliament too are for us that there ought to have been a Copy of the Pannel after the Return two Days before the Tryal For in the first place My Lord the Words are plain It must be a Copy of the Pannel duely Returned by the Sheriff Now though it be a Copy of the Array of the Pannel which we have delivered to us ye it is not a Copy of the Pannel of the Jurors Returned for it is no Return till it come into Court And the King's Councel must admit that in the Case of all Writs Returnable it cannot be said that there is a Return where there is a Writing upon the back or a Label annexed till it be actually Returned into Court As in the Case of a Fieri Facias or a Mandamus an Action for a false Return cannot lye till the Writ be actually Returned For such Action must be brought into the County of Middlesex where the Court resides before whom the Return is made and not in the County where the Sheriff lived that made the Return for it is not a Return till filed in Court Now here the Words of the Act are He shall have a Copy of the Pannel of the Jurors who are to try him duely Returned by the Sheriff two Days before the Tryal Now we humbly insist that the Words duely Returned must be antecedent to the having the Copy or else he cannot be said to have a Copy of the Pannel duely Returned The Act of Parliament does not say which shall be duely Returned and therefore there does arise a Doubt whether your Lordship will not direct us to have a Copy after the Return made which is but this Day Mr. Phipps If your Lordship pleases to spare me a Word of the same side We take it that by this Act of Parliament the Jury must be duly returned before the Pannel is delivered to us Now the Return is the Answer that is Indorsed upon the Writ with the Pannel annexed and delivered into Court
for the Return is to the Court and till it be delivered into Court it cannot properly be said to be a Return We acknowledge the Copy of this Pannel has been delivered unto us two or three Days ago But the Venire being not returned till to Day we think we have not a Copy of the Pannel within the intent of and according to the Act of Parliament And I desire to put your Lordship this Case This Act of Parliament does likewise provide that the Prisoner should have a Copy of his Indictment five Days before his Tryal to enable him to consult with his Council how to plead and defend himself suppose then a Copy of a Bill that is intended to be presented to the Grand Jury be delivered to the Person accused five Days before the Grand Jury are to meet and they afterwards meet and find it and the Party is brought immediately and arraign'd upon it This is a true Copy of the Indictment yet certainly the intent of the Act of Parliament is not answered for it was not a true Copy of the Indictment at the time it was deliver'd And I take this Case to be under the same reason This is not a Pannel duely returned till now and therefore by consequence we have not that Advantage that this Act of Parliament intended to give us for which reason we humbly apprehend we ought not to be tryed to Day which we submit to your Lordship L. C. J. Holt. What say you to it Mr. Attorney Mr. Att. Gen. My Lord with submission this Objection will receive a very plain Answer If I understand it aright they say that they ought to have a Copy of the Pannel after it is returned and that it cannot be said to be duly delivered according to the Provision in this Act of Parliament till after the Venire facias be duly returned into the Court and then they are to have it two Days before they are tryed They say the Venire facias is returned but to Day and so the Copy delivered to them is not pursuant to the Act of Parliament and so they cannot be tryed to Day This I take to be the Objection But with Submission My Lord it will be plain both by the Words of the Act and the Reason and Intention of it that there is no Occasion at all nor no Necessity of having the Writ returned before the Copy of the Pannel be delivered The Words of the Act of Parliament are these That every Person and Persons who shall be accused indicted and tried for Treason or Misprision of Treason after the 25 th of March 96 shall have Copies of the Pannel of the Jurors who are to try them duly returned by the Sheriff and delivered to them two Days before they be tryed Now first My Lord I think it is apparent what the Meaning and Design of the Act of Parliament was that the Prisoner should know two Days before the Tryal who were the Jury that were to pass upon him that he might have an Opportunity to consider how he should make his Challenges as he thought fit and time to enquire into the Qualifications of them that if there were any particular ground of Challenge he might not lose that Benefit so that if he has a Copy of the Pannel array'd by the Sheriff which is afterward returned by the Sheriff into Court and there is no variation of that Pannel afterwards then certainly the End and Intent of the Act is entirely pursued for by that means the Prisoner has the Names of all the Jury returned and are afterwards called and has a full Opportunity of making such Challenges as he thinks fit And as the Reason and Intent of the Act is answered by this Construction so the very Words of the Act are answered For it is not said in the Act that he shall have a Copy of the Pannel after it is return'd but it is said a Copy of the Pannel duely returned by the Sheriff that is when the Sheriff has arrayed a Pannel then he is to have a Copy of that Pannel and if afterwards the Sheriff return the same Pannel into Court is not this a Copy of the Pannel duly return'd With Submission it is and sufficient to answer both the Words and Intention of the Act of Parliament It is true My Lord if the Act of Parliament had said he shou'd have a Copy of the Pannel after it was return'd then we cou'd not have said but that the Objection wou'd hold But when the Words are general and it is most reasonable to be interpreted that the Copy is be delivered when the Array is made because that answers the Intent and End of the Act of Parliament which was to enable the Prisoner to make his Challenges we take that to be sufficient and if another Interpretation shou'd be made it wou'd render the Tryal in such Cases liable to all the Mischiefs in the World and make it impracticable that any Person shou'd be try'd at least it wou'd introduce a new Method of Proceedings that never was practised nor ought to be introduced unless this Act of Parliament by express Words had appointed and constituted such a new Method and we suppose your Lordship will never make any such Construction that the Act intended a new Method unless expresly declared for if it were as they would have it that the Copy of the Pannel was not to be delivered till after the return of the Writ then the Prisonner cannot be tryed upon the return of the Writ for upon the return of the Writ the Jury must be brought to the Bar the Prisoner must be brought to the Bar and adjourned over to a further time that in the mean time a Copy may be delivered to them I believe that they can never show any President that there was such an Adjournment of a Jury of Life and Death over to another Day for a Person to have a Copy of the Pannel to enable him to his Challenges and either that must be the Consequence or else the Jury must not come upon the return of the Venire facias but there must go a Habeas Corpora and the Prisoner tryed upon that Habeas Corpora For first there must be the return of the Writ then the Copy of the Pannel delivered then the Habeas Corpora returnable another Day and upon that the Tryal must be had But I believe there can be no Instance given of a Tryal for Treason upon a Habeas Corpora Now if the Parliament had intended that they wou'd not have the Copy of the Pannel deliver'd till after the return of the Venire facias they would certainly have exprest and provided how the Method of Tryal should have been that is that either the Jury should have been adjourn'd over till another Day or else brought to the Bar upon a Habeas Corpora which is the only way that can be thought of Indeed My Lord I do agree that if the Sheriff should give a
Indictment I think I need not trouble your Lordship any further in this matter because this Objection was foreseen and has been already considered of by the Court upon the Prisoners arraignment Sir B. Shower My Lord in answer to what Mr. Sollicitor has said that there is as much reason to expect that the Copy of the Indictment should not be delivered till after Plea pleaded as that the Pannel should not be delivered till after the Jury return'd because in the case of the Indictment it is said so many days before the Trial and the Trial cannot be till Issue joyn'd there can be no weight in that Objection at all for the words of the Act are quite differently penned in the case of the Indictment from what they are in the case of the Pannel for tho it be said it should be done 5 days before the Trial yet it is added in order to the advising with Councel how to plead which must be before Plea pleaded and therefore it must be absolutely necessary to be done before the arraignment My Lord I have proposed my doubt it may have consequences on the one side and the other we submit intirely unto your Lordships Judgment it is a new Law and never has received any opinion the words of it are duly return'd by the Sheriff and the Question is whether a Copy of the Pannel upon the Array before it be return'd be a Copy of the Pannel duly return'd tho the same Pannel be afterwards duly returned Mr. Phipps My Lord Mr. Attorny General owns that the Pannel after it is arrayed may be amended and altered by the Sheriff and it was never intended by this Act of Parliament that any Copy of the Pannel should be delivered to the Prisoner but of those Men that were really returned so that we take it we ought to have it two days after the Return and before the Trial for certainly it must be a Copy of the Men returned which if the Sheriff may alter at any time before the Return the Intent of the Act of Parliament can never be answered by any Copy but what is a true Copy of the Return Mr. Conyers would answer the Objection that I made about a Copy of the Indictment by this that it is not an Indictment till it be found by the Jury but I think it is no Answer to our Objection at all tho it be but a Copy of the Bill intended to be presented to the Grand Jury yet if the Grand Jury afterwards find it is as true a Copy of the Indictment as this is a Copy of the Jury intended to be Returned and afterwards Returned As to what they say that this will Introduce a new method of Tryal contrary to all form or proceedings that can be no Objection neither for if it be so we can't tell how to help it the Parliament have thought fit to have it so and we must submit to take it as the Law has made it If there be a necessity for a Habeas Corpora upon the provision made in this Act so it must be for we must take the Law as it is We submit our Objection to your Lordship we think we have not had the benefit of this Law Mr. Cowper Surely my Lord what Mr. Phipps has now said has no weight in it that because the Sheriff had it in his power to alter the Pannel before it was Returned that therefore this is not now a true Copy of the Pannel of the Jurors who are to try the Prisoner duly returned by the Sheriff which are the words in the Act. It is true if the Sheriff had in fact altered the Pannel from what it was and return'd it so altered into Court no doubt of it the Prisoner would be very well intitled to make this Objection that he had not a Copy of the Pannel or the Names of the Jurors that were summoned to try him but now we can aver that we have pursued this Act of Parliament literally for in answer to their Objection we may ask this Question of them upon the words of the Act Have you not had a true Copy of the Names of those that are to try you and are duly returned by the Sheriff for that purpose and was not that Copy delivered unto you above 2 days ago They cannot say they have not had it so and if they cannot say so then both the Words and Meaning of the Act of Parliament are in every respect answered if when the Jury come to be called the Prisoner finds the Pannel to be altered he has reason to object and will have the benefit of the Objection that he has not that advantage which the Law intended him but till that prove to be the Fact we think here is a full Compliance with this Law Mr. Soll. Gen. Sir Barth Showers mistakes my Objections about the Copy of the Indictment for we say if the intent of the Act of Parliament be complied with it is sufficient especially where the words are any way doubtful according to the Words of this Act of Parliament a Copy of the Indictment need to be delivered but 5 days before the Trial but it appearing that the intention of these Law-makers was that he should have a Copy of the Indictment to enable him to plead to it if he had cause therefore tho the words be before the Trial we have taken it that he should have a Copy 5 days before his Arraignment and so we have complied with the meaning of the Law in that point as we have also in this which was we take it only to enable the Prisoner to make his Challenges and if that be done 2 days before his Trial with submission it fully answers this Law L. C. J Holt. Have you done Gentlemen Counc Yes my Lord. L. C. J. Holt. Then look you Sir B. Shower as to this point that you now insist upon we have had it under consideration heretofore we were here this day seven-night and then we did consider in what method we should proceed so that the Prisoner might have the benefit intended him by this Act of Parliament the Act of Parliament does design in the first place that every Prisoner that is to be tried for High Treason should have a Copy of his Indictment at least 5 days before the Trial that I think was all that the makers of this Act of Parliament intended at the first but then there being subsequent words which shew the reason why they gave him the Copy so long before the Tryal which is that he might advise with his Councel what to plead these words we conceive has given the Prisoner a further time than what was originally intended therefore we have thought it necessary that the Prisoner should have a Copy of his Indictment 5 days before he be arraigned whâ—ch is 5 days before he was put to plead and your Client the Prisoner at the Bar has had the benefit of this Act in that respect before we
not guilty If you find him guilty you are to inquire what Goods or Chattels Lands or Tenements he had at the time of the High Treason committed or at any time since If you find him not guilty you are to inquire whether he fled for it if you find that he fled for it you are to inquire of his Goods and Chattels as if you had found him guilty If you find him not guilty nor that he did fly for it you are to say so and no more and hear your Evidence Mr. Mountague May it please your Lordship and you Gentlemen of this Jury this Indictment that has been read to you does charge the Prisoner with High Treason for compassing and imagining the Death of the King for endeavouring to subvert the Government and to subject the People of England to the Slavery of Lewis the French King and for this End the Indictment sets forth that the Prisoner at the Bar did privately meet with several false Traytors to consult how they might compass the Death of the King and commit those other Treasons and that the 10th of February at Covent-Garden in this County it was agreed among them that they should get together 40 Horsemen whereof the Prisoner at the Bar was to be one and they were to lye in Ambush and set upon the King in his Coach upon his return from going abroad some were to attack the Coach others to attack the Guards and there were to kill the King in the Coach and the Indictment does likewise charge the Prisoner with gathering together Horses and providing Arms for this purpose To this Indictment Gentlemen he hath pleaded not Guilty we shall call our witnesses and prove the Fact and when we have so done we do not at all doubt but you 'll do your Duty Sir B. Shower My Lord before the Witnesses are called we have a doubt to propose to your Lordship upon this Act of Parliament and that is whether we are to take our Exceptions to this Indictment before the Evidence be opened or given L. C. J. Holt. It should properly be before the Jury is sworn Sir B. Shower The Words of the Act my Lord is before the Evidence given L. C. J. Holt. The Act provides That if you do not take the Advantage of it before the Evidence given you shall not move that in Arrest of Judgment Sir B. Shower It only says before Evidence given and no Evidence has yet been given L. C. J. Holt. But you are certainly very irregular in point of Practice no body ever took Exceptions to an Indictment after the Jury was sworn Sir B. Shower If your Lordship pleases to let the Words be read of the Act of Parliament they are these That no Indictment shall be quash'd unless Exception be taken in the Court where the Tryal shall be before any Evidence given in Court upon that Indictment which we say strongly implies that the Law-makers thought it might be done at any time before the Evidence was given in open Court besides that the Law takes notice that after Conviction it should be of no avail it would have been a very improper Expression before Evidence given in open Court if it had meant before the Jury were sworn and charg'd for the Word Evidence supposes the Tryal Commenced If they had intended it otherwise that is that it should be before the Jury is sworn they would have exprest it to be done at the Arraignment but mentioning it to be done in the Court where the Tryal is to be before Evidence given that supposes the Indictment to be at Issue before the Party needs to make his Exceptions Therefore my Lord we hope we are regular in offering our Exceptions now L. C. J. Holt. Pray what say you to it Mr. Attorney Mr. Att. Gen. Truly my Lord I think they are no way regular for with submission I take it that though this Act of Parliament has indulg'd them in several things which were not allowable by Law before yet as to this part they are not allowed to take Exceptions to the Indictment otherwise than they could before this Act was past Nay so far from that that if your Lordship looks into the Act you find they are restrained in this point from an Advantage that they had before that is they shall not move any such thing as are there mentioned after Verdict in Arrest of Judgment so that this part is restrictive to the Prisoner and takes away some Advantage that he had before which was moving in Arrest of Judgment after Verdict but it leaves the making Exceptions as to any time before the Verdict as it was before which was before Plea pleaded but not after the Jury sworn For it cannot be denied that in point of Practice such a thing as this that is now offered cou'd not have been done before the Act. I wou'd be glad to know whether they can shew any President of any such thing as they now contend for They say the Words of the Act are Exception must be taken before Evidence given but that must be taken at such a time as they might by the Course of Law do it before For when the Jury is sworn they must give a Verdict and I do not know how they can be discharg'd without giving a Verdict therefore unless the Act had given Directions for a particular manner of Proceeding in this matter which it has not done your Lordship will not I presume do it in any other manner than as it was before the Act made and if there be no president to be shown of any such thing as this of taking Exception to an Indictment after the Jury Sworn and charg'd with the Prisoner then there is no Power in this Act of Parliament given to them to take Exceptions to the Indictment at this time we take it the Motion is very Irregular upon all Accounts Mr. Sol. Gen. My Lord We first say that it is not proper for them to make any such Motion as this upon this Act of Parliament till they tell us what their Exception is that we may see whether it be within the Words and Meaning of this Act of Parliament The only thing now that is proper for us to consider is the Issue Joyned and the Inquiry whether the Prisoner at the Bar is guilty of the High Treason of which he is Indicted to which Indictment he has pleaded Not Guilty that 's the thing that is now before your Lordship to be tried they have room for Exceptions to the Indictment afterwards for some Exceptions I mean I do not know what their Exceptions are but if they be such as may be taken after the Verdict then I am sure they are Irregular now in their Motion and they can shew no President when it was done after Plea pleaded and Issue joyn'd as it is in this Case Mr. Conyers The Advantage that the Act gives the Prisoner of having a Copy of his Indictment so long before Tryal is
any like proceedings in any Case it is confounding the offices of the Judge and Jury Mr. Phipps If your Lordships try'd the validity of our Exceptions and find occasion to quash the Indictment there will be no need of a Jury L. C. J. Holt. Upon the Statute of Jeofailes in a civil cause suppose at a Tryal at Bar it appears upon the Face of the Declaration that there is such a mistake as will be cured by the Verdict but if the party had demurred and shown it for cause it would have been fatal Do you think when he has wav'd the benefit of Demurrer and pleaded to Issue that you shall move this and help your self by such a Motion because it will be helpt after a Verdict Sir B. Shower If this Act had been worded as that Statute of Jeofailes is it may be we might not L. C. J. Holt. Why it is not said in the Statute of Jeofailes that it shall be good after Issue joined before the Jury is charg'd or sworn but that it shan't be good after the Verdict Sir B. Shower It is before the Evidence given L. C. J. Holt. Could he do so in any Case before this Act and does the Act enlarge your Liberty or abridge it L. C. J. Treby Sir Bartholomew Shower you insist upon part of the words of the Act of Parliament it says no Indictment or Process shall be quasht upon the Motion of the Prisoner or his Councel unless it be made before any Evidence c. Now I suppose the Parliament use that Expression upon the Motion in the same sence as it is used in Law viz. for such a one as should be in the time when Motions for quashing the Indictments are properly to be made now when is that it is plain it was always before the Jury come to the Bar nay before the Plea of the Party If that be the proper time to make such a Motion then that Expression in this Act of a Motion to quash the Indictment will very well help to construe the other part of the Clause that you insist upon for if the Motion be made before Plea pleaded it is certainly before the Evidence given in your sense And I conceive that under that Expression Evidence given which signifies the main part the Parliament intended to comprehend the whole proceeding to Tryal Beginning if not from the pleading Not Guilty at least from the swearing the Jury Before Evidence given in Court may reasonably be expounded Before the Prisoner hath fully entred into that Contestation of the Fact which is to be determined only by Evidence in Court I attended the Court of King's-Bench a long time and I believe that I have heard it said a hundred times upon Motions to quash Indictments of great or odious Offences no try it says the Court we will not quash it plead to it let the Fact be tryed you may then move it in Arrest of Judgment Those Expressions shew'd that the proper time for a Motion to quash an Indictment was before Plea tho' they in their Discretion would not grant a Motion to quash in Cases of such great Offences But sure they did not think that when a Jury came to the Bar it was a tolerable time to move to quash an Indictment there was no expectation of hearing of such a Motion then And certainly this clause which is made wholly against the Prisoner should not be construed to help him to such a new extraordinary and absurd Liberty Sir B. Shower My Lord with submission that practice goes upon another reason the Court would not Quash it at all upon a Motion this Act of Parliament supposes that you will Quash upon a Motion at any time before Evidence given We never heard of a Motion to Quash an Indictment for Felony or Treason but still the Court would always say Demur or Plead or move in Arrest of Judgment but by this Law it seems the Sence of the Parliament was that it might be Quasht upon a Motion Mr. Sol. Gen. Sir B. Shower is come to what I said that in truth there is no such thing as Quashing an Indictment for Treason or Felony as I mention'd Sir Rich. Mansel's Case and I think the Rule that was given in that Case will serve now in this Case I am for consenting if they be kept within the Limits of the Act of Parliament but I must Desire the Opinion of the Court before we do Consent L. C. J. H. Aye aye go on brother Nevile Mr. J. Nevile I must confess I cannot but doubt as this Act is there were two times that they had liberty of taking these Exceptions to Indictments but indeed in Murder and Treason they were seldom admitted till they came to move in Arrest of Judgment but still there was always a priviledge and a time given to the Prisoner be the Crime what it would to take that advantage which the Law gave him to prevent Judgment against him Now I agree it is irregular and unseasonable to offer it now and quite different from all former practice you might have done it before now the Act says expreslly it must be done before Evidence but you might have taken advantage before the Jury was sworn nay before you had pleaded but you have lapsed your time Yet truly notwithstanding you have lapsed your time I cannot satisfie my self to take away the liberty that the Law has given the Prisoner sometime or other to except against the Indictment It is plain that before this Act after Verdict he might have moved in Arrest of Judgment now he cannot do so whether the fault be in the Councel I cannot tell but the great prejudice is to the Person that is to be Try'd who will now be wholly precluded from making any advantage of the Exceptions he has to the Indictment because by the Act he cannot move in Arrest of Judgment This seems a strong Implication that the Parliament intended he must have some time or other but before Evidence given to offer his Exceptions I say this only to those particular things that are mentioned in the Act Miswriting Misspelling False or Improper Latin as to these four particular things which the Party is barr'd from moving in Arrest of Judgment I cannot satisfie my self but that he should have one time or another to take this advantage before the Evidence given and therefore I think he should have it now It is true it is altogether irregular the Jury being sworn and it ought to have been done before but I hope if it be admitted now it will be with such observation that no body will ever offer at it for time to come As this Case is before us and the Act of Parliament which perhaps may have led the Councel into that mistake that it might be any time before Evidence given tho' they knew the proper time and the regular method in other Cases yet I doubt it is hard to put such a Construction upon this Act
that Gentlemen this is now the Sum and Substance of this Evidence that has been given you as far as it relates to the Prisoner his Council in his Defence have insisted upon several Things in the first place thô it was last mentioned in Time yet it ought to have the first Consideration The Councel for the Prisoner have endeavoured to take off the Credit of Mr. Porter and have opened indeed very great Crimes that he should be guilty of which must render him a Person not to be believed but they have not proved any thing no Witness that they have called against Mr. Porter says the least against him to Invalidate his Testimony or to induce you to Disbelieve what he has said Then they say in Point of Law There is no Overt Act proved of any Design against the King's Life that affects Mr. Rookwood now that Matter you are to consider of Whether or no it does not appear by the Testimony of two Witnesses that Mr. Rookwood was Concerned in this Design of Assassinating the King Capt. Porter is positive that he was at the Consult at the Globe Tavern where it was Proposed Debated and Resolved upon but Mr. Rookwood says he did Dislike it so says Captain Porter he did not Approve of it at the first upon his being Acquainted with it but being sent over to obey the Orders of Sir George Barclay and Sir George Barclay producing a Scheme ready drawn wherein he was to Command the Party telling him That he must obey Orders You hear what he said and the Answer he return'd in French There 's an end of it Whether that does not amount to a Consent and Agreement to be Engaged in this Design is left to your Consideration for if it do it is plainly an Overt Act. Then Gentlemen you hear further that Harris was told by Mr. Rookwood that he should be of his Party and be his Ayd du Camp and go to Turnham-Green to Attack the Prince of Orange and he had a List of Men given him by Rookwood and was directed to get the rest ready Rookwood That was not in the Indictment L. C. J. Holt. But you were at that meeting which is laid in the Indictment Rookwood My Lord that List is not in the Indictment the List in the Indictment refers to Mr. Cranburn L. C. J. Holt. No but that is an Evidence of your being in the Design I hope that List of Men will be some Evidence of the Consent and Agreement that Mr Rookwood was to Command a Party Sir B. Shower With submission my Lord the words of the Act seems otherwise and that no Overt Act should be given in Evidence that is not expressly Alledged L. C. J. Holt. But cannot there be one Act that they be Proof of another Act which is Alledged Sir Bar. Shower Then there is no Advantage of this Law for my Lord the end of the Act was That they should know the particular Crimes that they were to answer to L. C. J. Holt. That could never be the end of the Law that all particular Facts that are but Evidence of the Facts Alledged should be set forth in the Indictment it was sufficient before the Act to Alledge any Overt Act and any other Overt Act thô not Alledged and had no Relation to the Overt Act that was Alledged yet if it were to the same sort of Treason might be given in Evidence Sir B. Shower The Law says ye shall not give Evidence of any Overt Act that is not expressly mentioned L. C. J. Holt. It is not urged as an Overt Act but as Evidence of an Overt Act that is Alledged For instance the Overt Act Alledged is that they did Meet and Consult shall not they give in Evidence what was said and done at those Meetings thô not Alledged Sir George Barclay produced a Scheme at the Globe Tavern shall not the producing of that Scheme be given Evidence if it may why not the giving the List to Harris Mr. Phipps My Lord it is plain it was Mr. Attorneys Opinion it could not be given in Evidence unless it were Alledged in the Indictment because he has particularly Alledged the List in Cranburns Case in this very Indictment Mr. Sol. Gen. I know not what those Gentlemen mean by this sort of Practice certainly there never were so many Irregularities Committed in any Tryal as in this and now particularly to break in upon the Court in the midst of the Charge L. C. J. Holt. Nay nay if there be any mistake let us hear them that it may be rectified L. C. J. Treby I think we should receive 'em to try if they can make it out But the Objection I do not very well understand yet for as I take the matter to stand it is Alledged in the Indictment that they had prepared Men and Arms and Horses for the Execution of this Design Now is it not reasonable or can there be any thing more proper then to give in Evidence and prove that the Prisoner had and delivered to some of the Complices a List of those Men that were to do it Why it proves the very thing Alledged but let us see whether it be so Sir B. Shower My Lord there is no such thing Alledged L C. J. Holt. That is strange pray see if it be not in the Indictment Clerk of Arraignment Reads Conveniebant proposuerunt Tractaverunt Consultaverunt Consenscerunt Agreaverunt ad Ipsum Dominum Regem nunc ex Insidiis Dolo percutiendum Anglice to Assassinate Interficiendum murdrandum ad execrabilem Horrendum Detestabilem assassinationem Anglice Assassination Interfectionem illam Citius exequendum perpetrandum postea Scilicet eisdem Die anno ac Diversis aliis Diebus Vicibus apud parochiam praedictam in Comitatu praedicto proditorie tractaverunt proposuerunt Consultaverunt de viis modis mediis ac tempore Loco ubi quando Qualiter quomodo Dictum Dominum Regem sic ex insidiis facilius interficerent Consenserunt Agreaverunt Assenserunt quod quadraginta Homines equestres aut eo Circiter quorum iidem Christophorus Knightley Robertus Lowick Ambrosius Rookwood Carolus Cranburne forent quatuor qui libet horum proditorie super se suscepit esse unum cum Bombardis Sclopis Sclopetis pulvere Bombardico Globulis plumbeis onoratis cum Gladiis ensibus aliis Armis Armati Insidiati forent essent in subsessu Anglice in Ambush ad eundem Dominum Regem in Rheda sua Anglice his Coach existentem quando foris iret invadendum quodque quidam Competens numerus de Hominibus illis sic Armatis in Satellites Anglice the Guards Ipsius Domini Regis eum tunc attendentes secum existentes Agressi fâ—rent eos expugnarent devincerent Dum alii eorundem Hominum sic Armatorum Ipsum Dominum Regem per cuterent Interficerent Occiderent Murdrarent Mr. Conyers And my