what Lowick declared about his Intention of Riding out and Seizing the King in his Coach that cannot be intended the Order that he was to obey to Assassinate the King that Order does not appear there are no footsteps of it in all the Evidence so that there is nothing in that Testimony that will hurt Mr. Lowick Then upon the Two and Twentieth when they Dined together Mr. Harris says that there was a Discourse of two Men but it does not appear nor does the Witness give any account what those two Men were to be for 't is true two Men he was to get Discharg'd but that is not Evidence that these Men were to make a Part of those Forty neither the words before nor the words after can have that Construction nay it does not appear it was for any purpose at all now in the case of Life where a Man stands at the Bar we hope such an Evidence shall not be Construed to make a Proof of a Treasonable intention that these were to Assassinate the King or to make part of the Forty that were to do it when it does not appear they were there nor who they were nor any sort of Notice taken or given upon what account they were Provided And then as to Mr. Bertram's Evidence it is Palpable that his Evidence and whatsoever he says cannot amount to make one Witness to prove an Overt Act within this Statute and that there must be two Witnesses the Law requires what does Mr. Bertram say to prove any Man Guilty of Treason but only by Intendment Thought or Suspicion It is true Mr. Bertram's Evidence would be good enough to commit a Man upon Suspicion for Treason but to Convict him it cannot be he says that in the begining of February he spoke to him and told him he would imploy him in a business that would be for his Advantage but he must ask no Questions this is very dark for the meaning of it does not appear what was intended by it it might be one thing as well as another it might be to imploy him in his Family or it might be to send him of a Journey or it might be the taking of a Farm but to apply that as an Evidence of a charge of High Treason that we think is very hard and we hope your Lordship will think so too but then he comes and tells you further of a Discourse upon the Fourteenth of his Riding out suddenly and that the King was to be seized in his Coach but he does not say that he was to seize him nor that he would be concern'd in it nor that he knew of it nor did Declare at what time it was to be done nor any thing certain whether it was a Prophecy or a Dream or a Story that he related again or what it was there is no Connection between the Riding out suddenly and the other words of seizing the King in his Coach then he says he gave him a Guinea to buy him necessaries the Man acknowledges Mr. Lowick several times had given him in Charity Money Cloaths and other things and gave his Wife a Guinea as you observe in Charity but he gave him this Guinea on purpose to buy him necessaries and it is hard that a Man's Charity to a Country-man to a Townsman to an ancient acquaintance of Twenty Years standing to a Person that he had been familiar with formerly and known to have lived well should be mis interpreted and strain'd to make it a giving him Money as Subsistance and a Reward for the doing such a Mischievous Bloody Act We say his Charity to this Man formerly is inconsistent with the Supposition that he cou'd be Privy to such a Barbarous Design now and we hope the Jury will consider the Character that that very Man has given to my Client for the same Witness gives you an account of his Behaviour all along that he was not given to Rash and Barbarous Actions nor Guilty of any Malicious thing nay that he prevented Mischief and the Killing of People in cold Blood We must leave it to the Jury's Consideration and your Lordships Direction All these things that they say may be true and Lowick be not Guilty and the acquitting of Mr. Lowick will be no Reflection upon the Witnesses nor any discredit to the Testimony that has been given of this Conspiracy but we hope 't is doing Justice to this Man the Witnesses not coming up to the Proof of what is laid in the Indictment We must beg your Lordships patience a little longer and call some Witnesses to give you an account how long they have known Mr. Lowick and what his real Character is they will tell you he is a peaceable good Man and shew you that his Temper and Inclination was rather to a sober quiet Life than to lead him to such action and that they cannot think him likely to be tempted to be concerned in such a Design and then we must leave it to the Jury Call Mrs. Yorke Lowick I believe there is no body here that knows me but will give me that Character Mrs. Yorke came in and was Sworn Sir B. Shower Pray Mrs. Yorke how long have you known Mr. Lowick Yorke About a Dozen or Fourteen Years Sir B. Shower What sort of Disposition is he of Yorke He is a Civil Honest Man as ever I saw in my life or ever knew of and I never heard otherwise from any one that knew him Sir B. Shower What was he in his Actions was he Malicious or good Natured Yorke As good a Natured Man as ever I saw Mr. Mompesson Has he the Reputation of a Cruel Bloody minded Man Yorke Quite the contrary He lodged in my House half a year it is not quite a year ago since he lay at my House He was the most Obliging Man that ever lay in my House he was so Civil to all the Lodgers that they admired him for his goodness and made them in love with him L. C. J. Holt. How came he to Lodge at your House Yorke He came from his other Landlady they could not agree his other Landlady was a sort of a Shrew and therefore he did not care for staying there and I desired his Company because I knew him to be so Obliging and Civil a Man L. C. J. Holt. Where is your House Yorke In Bloomsbury L. C. J. Holt. What is his way of living is he a Man of an Estate Yorke I cannot tell I did not inquire into that L. C. J. Holt. Had he no Imployment to get his Living by Yorke I do not know any thing of that I never inquired into it he paid me very Honestly for my Lodging and he is a very good Man for any thing I know Sir B. Shower Then call Mrs Mosely She came in and was Sworn L. C. J. Holt. Well what do you ask this Gentlewoman Sir B. Shower Pray Mrs. Mosely will you tell my Lord and the Jury do you know Mr. Lowick
June the 8th 1696. I Do appoint Samuel Heyrick and Isaac Cleave to Print the Tryals of Charles Cranburne and Robert Lowick and that no other person presume to Print the same I. Holt. THe Tryals of Charnock King and Keys as likewise of Sir John Friend and Sir William Parkyns and Ambrose Rookwood are all Printed and Sold by Samuel Heyrick and Isaac Cleave THE ARRAIGNMENTS TRYALS AND CONDEMNATIONS OF Charles Cranburne and Robert Lowick 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 were found Guilty of HIGH-TREASON BEFORE His Majesty's Justices of Oyer and Terminer at Westminster and Received Sentence the 22d of April 1696. And were Executed at Tyburn the 29th of the said Month. In which Tryals are contained All the Learned Arguments of the King's Councel and likewise the Councel for the Prisoners upon the New Act of Parliament for Regulating Tryals in Cases of Treason LONDON Printed for Samuel Heyrick at Grays-Inn-Gate in Holbourn and Isaac Cleave at the Star next to Sergeants-Inn in Chancery-lane M. DC XCVI Die Martis Vicesimo primo Die Aprilis Anno Domini 1696. Annoque Regni Regis Gulielmi Tertii Octavo At the Session of Oyer and Terminer for the County of Middlesex Sitting in the Court of King's-Bench at Westminster AFTER the Tryal of Ambrose Rookwood was over while the Jury were withdrawn to Consider of their Verdict the Court proceeded in this manner L. C. J. Holt. Mr. Attorney Who will you have tryed next Mr. Att. Gen. Cranburne if your Lordship pleases Cl. of Arr. Then Keeper of Newgate set Charles Cranburne to the Bar. L. C. J Holt. You Gentlemen that are of Council for the Prisoner if you have any thing to move for your Clyent you may move it but first let the Prisoner be here Then Charles Cranburne was brought to the Bar in Irons L. C. J. Holt. Look you Keeper You should take off the Prisoners Irons when they are at the Bar for they should stand at their ease when they are Tryed Keeper My Lord We have no Instruments here to do it just now Cl. of Arr. You may send to the Gate-House and borrow Instruments Mr. J. Powel It should be done indeed they ought to plead at ease L. C. J. Holt. Well go on Sir Bartholomew Shower Mr. Att. Gen. My Lord before Sir Bartholomew Shower enter upon his Exceptions unless those Exceptions of his are some of the particulars mention'd in this Act he must not do it now after Plea pleaded before the Tryal but he must do it in Arrest of Judgment L. C. J. Treby It is true Regularly but let him use his own Judgment L. C. J. Holt. It is very true the course has not been to allow them to move to Quash an Indictment for Treason or Felony but it may be done Mr. Att. Gen. Sure it must be only for such things as they cannot take advantage of in Arrest of Judgment after the Verdict L. C. J. Holt. It has not been the course but it may be done Mr. Att. Gen. Not where there is an Issue join'd and a Jury return'd to Try that Issue I believe that never was done nor attempted L. C. J. Treby If there were any prejudice to the King by it it were not fit for us to alter the course but let us hear what his Exceptions are Sir B. Shower I have several Exceptions Five at least one of them is within the very words of the Act that is improper Latin I am sure some of it is so L. C. J. Holt. Well let 's hear what that is Sir B Showers It says Anno Regni dicti Domini Regis nunc Septimo and Lewis is the last King mention'd before and so here is no year of the King of England mention'd It is a certain Rule that Relatives must refer to the last Antecedent and that Rule holds always unlâ—ss there be words that accompany the Relative which undeniably shew to what it refers L. C. J. Holt. Ay but do we call the French King Dominus Rex L. C. J. Treby He would have been so if he had succeeded in his Invasion and this Assâ—ssination Sir B. Shower In every Indictment if there be occasion to mention a former King it is always nuper Rex and such a one naming the name of the King where the present King's name does intervene to prevent Confusion and so in Civil Actions it is the same and so it should have been here L. C. J. Holt. Ay but I tell you it is Dominus Rex nunc which is Our King Mr. Phipps It is not said Angliae L. C. J. Holt. But whereever it is Dominus Rex we understand it of the King of England and no body else Read the Indictment Cl. of Arr. Necnon eundem Dominum Regem ad Mortem finalem Destructionem ponere adducere ac subditos suos fideles Liberos Homines Hujus Regni Angliae in servitutem intolerabilem miserrimam Ludovico Regi Gallico subjugare Mancipare Decimo Die Februarij Anno Regni Dicti Domini Regis nunc Septimo Diversis aliis Diebus c. L. C. J. Holt. Can any man imagine this to be the French King Sir B. Shower My Lord Your Lordship is not to imagine one way or other Mr. Cowper In the strictest Sense and Grammar in the World it must mean King William and no other We do not need any imagination when in the strictest Construction it is plain who it refers to Sir B. Shower I am sure no Grammar can make it good nothing but a supposition can help it Mr. Cowper When it is said Dictus Dominus Rex if Sir Bartholomew Shower can find out another Dominus Rex in the Indictment then he may make something of his Objection but the Dominus is only apply'd to our own King throughout L. C. J. Treby Besides as to the Rule that Sir Bartholomew Shower mentions it is that ad proximum Antecedens fiat Relatio nisi impediat Sententia That 's the Restriction of the Rule it must relate to the next Antecedent unless the sense would be prejudiced but here if this Construction should be it would make this Clause to be no better than nonsense viz. That the Subjects and Freemen of this Realm were to be brought into intolerable Slavery to Lewis the French King such a Day in the Seventh year of the Reign of our Lord the French King Sir B. Shower We say it is little better then Nonsense I am sure it is loose and uncertain and not Grammar but carries a new Form with it L. C. J. Holt. No It is as well as it can be Sir B. Shower Then My Lord there is another Exception it is said Diversis Diebus Vicibus tam antea quam postea and then afterwards it says postea scilicet eodem Decimo Die Februarij that is repugnant it is as much as
did Consult of the ways and means how to Kill the King and that Overt Act we agree to be well laid But then it says they Consented and agreed that there should be Forty Men whereof these Four should be Four but does not say they Trayterously agreed are not these Distinct Acts Mr. Phillips Surely My Lord they are distinct Acts for this part of the Indictment upon which Sir Bartholomew grounds his Objection is that Overt Act of which the List in Mr. Rookwood's case was urg'd by the Kings Councel and agreed by the Court to be an Evidence Then the Jury against Mr. Rookwood came in and deliver'd in their Verdict as it is in his Tryal then afterwards the Court went on thus Mr. Att. Gen. My Lord the Objection is that proditorie is not in Incerted into that Particular Clause of the Indictment which shews there Particular agrement that there should be Forty Men whereof the Four nam'd in the Indictment were to be Four Now your Lordship Observes how the Indictment Runs it is for Compassing and Imagining the Death and Destruction of the King and it setsforth for this purpose that to effect this Compassing and Imagination they Proditorie tractaverunt Consultaverunt de vijs medijs Modis how they should Kill the King Now that which Imediatley follows after is the particular method and means that were agreed upon that is that there should be Forty Men. Now this is the strangest suggestion that ever was when we have set forth that Trayterously they Did so agree of the ways and means and then set forth the particular means that here must be proditorie again to that This is such a Construction as I cannot but admire how it could come into any ones head It is part of the sentence for the other part as we have laid it is not Compleat before It may be it might be sufficient without setting forth the particular way and means but when it is set forth it is part of the sentence and Refers to the first beginning L. C. J. Holt. Aye sure so it does Mr. Att. Gen. I cannot tell what they would have unless they would have us repeat the Word proditorie in every line Mr. Soll. Gen. Or before every Verb. Sir B. Shower No but I think it ought to be repeated at every Overt Act. Mr. Conyers If your Lordship pleases after that they have set forth that this was the particular method and way agreed upon at their Consultation that Forty Horsemen or thereabouts should go about it of which the Persons Indicted were to be Four it goes on Quilibet eorum proditorie super se Suscepit esse unum there it is put in and it appears to be as particular as possible can be Mr. Cowper Sir Bartholomew Shower says that when we have Alledg'd that they did Trayterously treat propose and Consult of the means and ways of Killing the King there we have done the sentence and made that one Overt Act. Now how is the sentence done The next Word is a Conjunction Copulative Consenserunt c. And what is the use of a Conjunction Copulative But to Convey the Force of the Words in a Former sentence to the sentence following and to prevent the Repetition of every Word in the subsequent sentence that was in the precedent But it is plain they are both one and the same Overt Act and these subsequent Words are only an Explanation more particularly of the Overt Act setforth in the precedent Words Sir B. Shower In answer to that that has been said if they shew me any precedent where an Indictment has been for High Treason setting forth several Overt Acts and not the Word proditorie set to every Overt Act then they answer my Objection If the Word Quod had come in that would have made them distinct to be sure and I think they are as distinct Acts now suppose they had Concluded at the end of the word Interficerent that had been a good Overt Act I am sure they will agree that And if it be so then the other is a good Overt Act too For it is a distinct thing from that which was a perfect sentence before and it either requires a likewise or the Word Proditorie must be repeated They have not so much as said similiter Consenterunt or simili modo ther is an indeed but that does not so Couple the sentences together as not to make them distinct Acts. There are several ets thorough the whole Indictment but that does not as Mr. Cowper would have it Couple altogether to make one Overt Act. Mr. Phipps My Lord if what Mr. Cowper says be allow'd viz. that the makes it one intire Sentence then there is no Overt Act at all for after the Treason alledg'd and the Clause is coupled to another by an Et and consequently by Mr. Cowper's way of arguing the whole Indictment is but one intire Sentence L. C. J. Holt. I do not understand your meaning as to that they tell you Preditore it is alledg'd to the Consulting Contriving and Agreeing then they tell you what was the subject Matter of that Contrivance and Agreement to Assassinate the King and in order to that they agreed there should be 40 Men is not that good enough without Proditore to every line Sir B. Shower No it is not said in Ordine ad there is no such thing but onely they did Consult of the Ways and Means and did Agree that 40 Horsemen should do it and afterwards did agree to provide Horses and Instruments of War Now that being with a Qoud que they say makes a new Overt Act but I cannot understand why Qoud que is not as much a Copulative as Et and the one should not have the same effect as the other L. C. J. Holt. First it tells you there was a Consult and Agreement to Assassinate the King and for the Accomplishing of the said Assassination afterwards eisdem die Anno Proditorie Tractaverunt Consultaverunt de vijs modis how they should Kill the King Sir B. Shower That is one Overt Act say we and there you should stop L. C. J. Holt. Et Consenserunt Agreaverunt quod quadraginta Homines c. it is all at the same time and must be Intended the same Consult and Contrivance that they Consulted of the ways and means and then agreed so many Men should be provided Mr. Phipps No My Lord we say that is another Overt Act. L. C. J. Treby It seems to me to be a specifying and particularising the way and means that they had Consulted of and Concluded on Sir B. Shower If it had been a specifying it had been much better to put in either then and there or that this was the Result of the Consultation L. C. J. Treby It do's seem to me so that it was the Result of the Consultation and it is well enough Sir B. Shower If this be well enough I do not know what
will not be well enough L. C. J. Holt. You had better have sav'd these kind of Exceptions 'till the Tryal was over Sir B. Shower But my Lord if there be one Overt Act ill laid I submit it whether they can give any Evidence of that Overt Act. L. C. J. Treby No doubt of that they cannot but we think it is as well laid as it could be laid L. C. J. Holt. Truly I am not well satified that it is necessary after you have laid the Proditoriè as to the particular Treason to lay it again to the Overt Act. For the Overt Act is but Evidence of the Treason The Treason it self lies in the Compassing which is an Act of the mind L. C. J. Treby You cannot Indict a Man of Treason for Assassinating or Killing the King but you must in every such Case frame the Indictment upon the Article for Compassing and Imagining the Death of the King which must be laid to be done Trayterously Then when afterwards you say the Person accused did Wound him or Imprison him or Consult and agree to Assassinate Him or did actually Assassinate Him these are but so many Overt Acts of Compassing the Death and you having first said that he did Proditorie compass and imagin the King's Death you have thereby shewn that you charge him with a greater Offence then Felony which my Lord Coke says is the use of the word Proditorie and that being thus done I do not apprehend it to be necessary that you should ad Proditorie to all the rest of the following particulars for they are only external Discoveries of the inward Treason and more properly deemed to be lividence of the Treason than to be the Treason it self L. C. J. Holt. The Treason is consummate in the Intention besides the words of the Statute make that the Treason not the Overt Act that is but Evidence and so it was held not upon this Exception but upon the reason that my Lord Speaks off in Case of the Regecides of King Charles the First That the Indictment should not be for Killing the King but for Compassing and Imagining his Death and the Killing was alledged as an Overt Act. Sir B. Shower It must be so if it were for levying of War L. C. J. Holt. Most true for levying the War is the Treason but in this Case we think it is no exception Mr. Att. Gen. Thent let us have the Fifth Sir B. Shower Then my Lord here is another Thing It is a Question whether there be any Overt Act presented by the Jury at all The Indictment say's Juratores pro Domino Rege presentant that they as false Traytors did Compass the Death of the King and the Slaughter of his Subjects and they did Meet and Consult and Agree how to do it Et ijdem Christopherus Knightley and the rest to fulfil their said Trayterous Intentions and Imaginations did Afterwards the tenth of February Buy Arms and Horses Now our Objection is that it does not appear that any one of these Overt Acts are the presentment of the Jury With Submission they ought to have begun it again either with a Quodque or something that should have referred it to the first Juratores presentant or else they must have begun quite again with a Juratores Ulterius presentant and not have coupled them as this is with an ulterius presentant and not have Coupled them as this is with an Et. The most forms begin with an Ulterius presentant but here we find no Overt Act is so Introduced They might present part and not present the other part for any thing that does appear Every Thing ought to be laid positively as the Jury's Dictum it may be onely the Clerks saying and not the Juries for any thing that do's appear Your Lordship remembers the Case of the King and Trobridge Trobridge upon a Writ of Error to Reverse a Judgment for Erecting and Continuing a Cottage against the form of the Statute now Contra formam Statuti was in the begining of the Indictment but not in the Conclusion to the Erecting but not to the Continuing And tho there was there Juratores Ulterius dicunt it was not super Sacramentum suum and they did not say he did continue it against the Statute and there being no formal presentment that he maintain'd the Cottage notwithstanding the Act Et did no so Couple it to the first part as to make it a good presentment So we say in this Case this is a fault and different from all the Common Forms there ought to be a Direct presentment of each Overt Act and not Coupled by an Et. For Et will not do it for it is a Distinct Overt Act every one and should have been Et Quod Consultaverunt quodque Agreaverunt that a certain number should do so and so and to be sure it should have been so at the last Overt Act which is onely Et ijdem Christophorus Knightley did Buy Arms and Horses Now this last Et being a loose Conjunction Copulative in common Sence ought to Refer to that which they had agreed upon for that is last mention'd there and the natural Sence leads thither and not to the begining of the Bill Juratores presentant quod Mr. Phipps I shall not trouble your Lordship further they ought to have put in a Quodque or an Ulterius presentant Mr. Att. Gen. Where would you have the Quodque or the Vlterius presentant Mr. Phipps Either to every Overt Act or at least to that last Mr. At. Ge. The Indictment setsforth that they Commited such and such Treason Their objection is that Quodque is not put in to every overt Act and our Answer is That the first Quod governs all that relates to that Treason It may be if there were two distinct Treasons in the Indictment when you come to set forth the Second Treason you should say Juratores ulterius presentant the Second Treason but the Overt Acts to prove the same Treason are all parts of that Treason and make but one Species of Treason which is the imagining the Death of the King There 's the Treason and to bring it to pass they did so and so This my Lord must be part of the finding of the Jury as well as the Treason it self of which these are the Overt Acts. But then if you will lay the levying of War in the same Indictment then it may be you must say Juratores ulterius presentant quod c. But it had been a strange Absurdity to say Juratores ulterius presentant such and such Overt Acts For the Overt Act is not a further Indictment but only a setting forth that which is Evidence upon which they found the Indictment for Treason Mr. Sol. Gen. What the Indictment says is a direct Affirmation as can be all along in the Presentment of the Jury that the Prisoner and others did compass and imagine the Death of the King and to bring it about
they did consult together and did agree to make use of such and such Means and were to have a Party of 40 Men and they bought Arms and Horses Now it does not repeat quodque or ulterius presentant quod to every one of those Sentences that they did so and so and that they did so and so Now I would feign know the Difference between saying and they did such a thing and saying and that they did such a thing That 's all the Difference that they think to overturn this Indictment for The omitting of a Juratores ulterius presentant certainly is nothing for the first Presentment runs through the whole Indictment and there does not need an Vlterius Sir B. Shower Certainly there should have been a Quodque at least L. C. J. Holt. No indeed I think it is better as it is than as you would have had it because the first Quod goes through the whole That in Order thereunto he did so and so would you have it said quod in Order thereunto he did so and so but that may be good Sense I think it is not so good as the other This Indictment is for one sort of Treason and that is for compassing the Death of the King and it is I think more proper to have but one Quod than to have more for it makes the whole Indictment more entire As to the Juratores ulterius presentant that is never proper where the Species of Treason is the same For indeed if there had been two distinct Treasons the one for compassing the Death of the King and the other for levying of War in that Case you must bring it in by ulterius presentant because they are two several Offences tho' comprisd in one Bill and they are in Law as two Indictments And so it is in the Case that you mention'd of Cottages It is one Offence to erect a Cottage and another Offence to continue a Cottage and they are to have several Punishments and because they were jumbled them both together in one Indictment that Indictment was held to be nought For by Law the Indictment for erecting a Cottage ought to conclude contra formam Statuti and then the Jury must begin again ulterius presentant quod the Cottage was continu'd against the Form of the Statute because they are several Offences But here the High Treason is but one and the same Offence and the other things are but Overt Acts to manifest this Treason the compassing the Death of the King and truly I think it is better as it is Mr. Phipps I have seen several Precedents of Indictments where the several Overt Acts were to the same High Treason but still they had each an ulterius presentant Mr. At. Gen. I believe it is hard to find many Indictments in the same Words I am sure all are not L. C. Baron Is it not as great an Affirmation to say and they did such a thing as to say and that they did such a thing L. C. J. Holt. I cannot reconcile it to my Reason but it should be as good Sense without that as with L. C. J. Treby In a long Deed it begins This Indenture witnesseth that the Party granted so and so and the Party Covenants thus and thus and so it goes on commonly without renewing the Word That to the subsequent Clauses But yet the first Expression This Indenture witnesseth that governs the whole Deed tho' it be many Skins of Parchment L. C. J. Holt. If you begin with an Indenture you begin That it witnesseth so and so without Renewing unless it be a very distinct Thing S. B. Shower My Lord we think that Similitude makes for us A. B. Covenants so and so in a Conveyance and then further that so and so L. C. J. Holt. But there you restrain that in the Beginning of the Covenant to every Particular in that Covenant Mr. At. Gen. Will your Lordship please to call the Jury now L. C. J. Holt. Have you a Mind to go on with the Trial or to go to Dinner Mr. At. Gen. I believe your Lordship can try but one more to Night and that may be as well after Dinner as before L. C. J. Holt. Well then adjourn till 5 a Clock and in the mean time you Keeper knock off the Prisoners Fetters Keeper They shall my Lord. Then the Court adjourned till 5 a Clock in the Afternoon it being then about 3. Post Meridiem the 21st of April 96. The Court returned and was resum'd about 6 in the Evening Cl. of Ar. Keeper of Newgate bring Charles Cranburne to the Bar which was done Charles Cranburne hold up thy Hand which he did Those good 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 and therefore if you will challenge them or any of them your time is to speak unto them as they come to the Book to be sworn and before they be sworn Cranburne My Lord I humbly desire I may have Pen Ink and Paper Court Aye Aye He had them Cl. of Ar. Where is George Ford Cryer Vouz Avez Cranburne I challenge him Cl. of Ar. William Underhill Cranburne I challenge him Cl. of Ar. William Withers Cranburne I challenge him Mr. Phipps If your Lordship pleases those that were of the last Jury I hope shall not be call'd of this Jury This Prisoner being tryed upon the same Indictment the last was L. C. J. Holt. If they be not it shall be in Ease to them but it is not in favour of you Mr. Phipps We humbly conceive having given their Verdict upon the same Indictment they are not such indifferent Persons as the Law intends they should be and think it is good reason they should not serve upon this Jury L. C. J. Holt. What tho' it be upon the same Indictment the Evidence is not the same for they are distinct Offences Mr. Phipps I do not know whether it be a good Cause of Challenge but submit it to your Lordship L. C. J. Holt. Well you may doubt of it if you please and try the Exception Cl. of Ar. Thomas Trench Cranburne I challenge him Cl. of Ar. John Wolfe Cranburne I challenge him Cl. of Ar. James Bodington Cranburne I challenge him Cl. of Ar. Jonathan Andrews He did not appear John Raymond Cranburne I challenge him Cl. of Ar. George Hawes Cranburne I challenge him Cl. of Ar. Francis Barry Cranburne I challenge him Cl. of Ar. Arthur Bailey Cranburne I challenge him he was upon the last Jury L. C. J. Holt. That is no reason Will you challenge him peremptorily Cranburne I do challenge him Cl. of Ar. John Caine. Cranburne I don't except against him Cl. of Ar. Hold Mr. Caine the Book Cryer Cryer Look upon the Prisoner Sir You shall well and truly try and true Deliverance make between our Sovereign Lord the King and the Prisoner at the Bar whom
upon the Evidence you have heard or you think there is any Inconsistency or Incoherence in the Testimony on the one side and the other and that there is good Reason to disbelieve the Evidence against the Prisoner Then you are to acquit him You have heard your Evidence and you had best consider of it Cl. of the Crown Who keeps the Jury Crier there is an Officer Sworn Then the Jury withdrew to consider of their Verdict and about a quarter of an Hour after Returned Cl of Ar. Gentlemen answer to your Names John Kaine Mr. Kaine Here. And so of the Rest Cl. of Ar. Are you all agreed of your Verdict Jury Yes Cl. of Ar. Who shall say for you Jury Foreman Cl. of Ar. Charles Cranburn hold up thy Hand which he did look upon the Prisoner how say you is he Guilty of the High-Treason whereof he stands Indicted or not Guilty Foreman Guilty Cl of Ar. What Goods or Chattles Lands or Tenements had he at the time of the Treason Committed or at any time since Foreman None to our Knowledge Cl. of Ar. Then hearken to your Verdict as the Court has Recorded it You say that Charles Cranburn is Guilty of the High-Treason whereof he stands Indicted but that he had no Goods Chattles Lands or Tenements at the time of the High-Treason committed or at any time since to your Knowledge and so you say all Jury Yes Mr. Kaine My Lord the Jury humbly desires they may be discharged from their attendance to Morrow L. C. J. Holt. We cannot do it unless the Jury be full without them If you come early we shall dispatch you presently Then the Prisoner was taken from the Bar and the Court adjourned till Seven a Clock the next Morning FINIS THE Arraignment Tryal and Condemnation OF Robert Lowick For the Horrid and Execrable CONSPIRACY To Assassinate His Sacred Majesty KING WILLIAM In Order to a French INVASION of the Kingdom Who upon full Evidence was found Guilty of High Treason before His Majesty's Justices of Oyer and Terminer at Westminster on Wednesday the 22th of April 1696 and was Executed at Tyburn on the 29th day of the said Month. In which Tryal 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 Holbourn and Isaac Cleave at the Star next Serjeants-Inn-Gate in Chancery-Lane M DC XC VI. Die Mercurii Vicesimo Secundo Die Aprilis Anno Domini 1696. Annoque Regni Regis GULIELMI III. OCTAVO THIS Day the Justices of Oyer and Terminer holden for the County of Middlesex adjourned over to Seven this Morning met and the Court was Resum'd by Proclamation in usual Form Clerk of the Arraignments Keeper of Newgate set Robert Lowick to the Bar which was done You the Prisoner at the Bar Robert Lowick 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 and before they be Sworn Mr. Mompesson If your Lordship pleases to favour me with one Word for the Prisonor at the Bar I shall not trouble your Lordship with any thing that was urged by the Gentlemen that were of Council Yesterday but I shall Rely upon something that has not yet been spoken to My Lord they have not laid any Time or Place where the Consent or Agreement was for the Forty Men that were to set upon the King and his Guards There is a Time laid before where they met and discoursed of the Ways and Means how to Assassinate and Kill the King but when it comes to the Assencerant Concesserunt Aggreaverunt with Submission this being another Act there ought to be another Time and Place laid and for that I shall Cite your Lordship two or three Cases for Men may meet and Propose and Discourse and Consult of such Things though they be very Ill Things and yet that may not be Treason It 's the Agreement that is the Treason and so 't was held in Captain Blagues Case about Taking the Tower They may meet at one Time and Place and at another Time and Place they may agree in Dyer 68. B. and 69 Pl. 28. a Man was Indicted for Murder that he at such a Place in and upon the Person that was Murdered in Sultumferit ipsum the Person that was Murdered cum Quodam Curtello of such a Price percussit and he does not shew the place where he struck him nor had the Indictment the Words ad tunc Ibidem and therefore the Court held it void So it is likewise Ruled in Goodrick's Case Hâ—ll 35. 119. and therefore in Indictments for Murder since they generally set forth not only the Time and Place of the Assault but likewise of the Blow so likewise in things of a more inferiour Nature as Rescues Returned by the Sheriff that the Capias was served but does not shew where the Rescue was or though he shews where the Arrest was and an Coupled the Rescue to it yet it was adjudged and Ill Return Dyer 69. Pl. 29. 10 Edw. 4. 15 Fitz. Ret. Vic. 32 Bro. Ret. Det. Bre. 97. and Errour 194. Palm 563. And in Noy 114. there are these Words Note It was Moved in Discharge of a Rescue the Return was that they viz. A. B. aforesaid the Bayliffs ad Tunc Ibidem Vulneraverunt c. And the aforesaid George c. Rescuserunt without ad tunc Ibidem Referred only to the Vulneraverunt and not to the Rescuserunt and therefore the Return was adjudged Insufficient for my Lord although in Conveyances a Clause or Word in the beginning or end may Refer to the whole yet in Indictments every Sentence must be Certain Plain and Express and have its own Time and Place Therefore in Noy's Rep. 122. Raymond was Indicted for stopping a Cross Way leading from a certain Ville called Stoake into a Ville called Melton in the County of Dorset and the Indictment was Quasht because in the County of Dorset shall refer only to Melton and not to both So an Indictment of Forceable Entry into a Messuage existent Liberum Tenementum of J. S. is not good for want of the Word ad Tunc though the Participle existens does strongly Imply that it was his House at that time 3 Cro. 754. Het 73 Noy 131. Palm 426. Bridg. 68. 2 Cro. 214 610. Sid. 102. Lat. 109 c. and my Lord Coke tells us in Calvin's Case 5. B. That Indictments of Treason of all others are the most Curiously and Certainly Indicted and Penn'd and all those that I have seen and observed have Contained more Certainty than the Indictment now before your Lordship in Reginald Tuckers Case The Indictment was
Sentence till you come to the end of it then it is compleat when you show what was the Effect of the Consultation what they were agreed upon and not till then Mr. Mompesson A Man's holding up his Hand is an Assault but he must actually strike to be Guilty of Murder So a Man may debate and yet not agree it is the Agreement that is the Treason L. C. J. Holt. Read the Indictment Cl. of Arr. DEcimo die Februarii anno Regni dicti Domini Regis nunc septimo diversis aliis diebus vicibus tam antea quam postea apud Parochiam Sancti Pauli Covent-Garden proedict ’ in Comitatu proedict ’ falsè malitiosè Diabolicè proditoriè Compassaverunt Imaginati Machinati fuerunt Excogitaverunt Designaverunt Intendebant dictum Dominum Regem nunc occidere interficere murdrare stragem miserabilem inter fideles subditos ipsius Domini Regis per totum hoc Regnum Anglioe passere causare ad easdem nefandissimas nequissimas Diabolicas proditiones proditorias compassationes machinationes proposita sua proedicta perimplend ’ perficiend ’ ad effectum redigend ’ ipsi iidem Christopherus Knightley Robertus Lowick Ambrosius Rookewood Carolus Cranburne quam plurimi alii falsi proditores Jurator ’ proedictis ignoti postea scilicet eodem decimo die Februarii anno supradicto apud Parochiam proedictam in Com ’ proedicto ac diversis aliis diebus vicibus tam antea quam postea ibidem alibi in eodem Com ’ falsò malitiosè advisatè clandestinè proditoriè ac vi armis conveniebant proposuer ’ tractaver ’ consultaver ’ consenser ’ aggregaver ’ ad ipsum Dominum Regem nunc ex insidiis dolo percutiend ’ Anglicè to assassinate interficiend murdrand ’ ad execrabilem horrendam detestabilem Assassination ’ Anglicè Assassination Interfectionem ill ’ citius exequend perpetrand ’ postea scilicet eisdem die anno ac diversis aliis diebus vicibus apud paroch ’ proed ’ in Com ’ proedicto proditoriè tractaver ’ proposuer ’ consultaver ’ de viis modis mediis ac tempore loco ubi quando qualiter quomodo dictum Dominum Regem sic ex insidiis facilius interficerent consenser ’ aggregaverunt assenser ’ quod quadragint ’ homines Equestres aut eo circiter quor ’ iidem Christopherus Knightley Robertus Lowick Ambrosius Rookewood Carolus Cranburne sorent quatuor quilibet eor ’ proditoriè super se suscepit esse unum cum Bombardis sclopis sclopetis pulvere bombardico globulis plumbeis onerat ’ cum gladiis ensibus aliis Armis armat ’ insidiati forent essent in subsessu Anglicè in Ambush ad eundem Dominum Regem in Rheda sua Anglicè his Coach existen quando foris iret invadend ’ Quodque quidem competens numerus de hominibus illis sic armat ’ in satellites Anglicè the Guards ipsius Domini Regis eum tunc attendend secum existen ’ aggressi forent eos expugnarent devincerent dum alii eorundem hominum sic armat ’ ipsum Dominum Regem percuterent interficerent occiderent murdrarent Mr. Mompesson The Consult is like the Assault and the Agreement is like the Stroke L. C. J. Treby It is a nice Case as you wou'd have it but I think it is very natural as the King's Councel put it at first they lay the Consultation of the Ways and Means how it shou'd be done and then they conclude that thus it shall be done all which makes but one intire thing L. C. J. Holt. They say they met that day at St. Paul Covent-Garden that 's in the beginning and did consult how to Kill the King and they consented and agreed among themselves that it shou'd be done in this manner Does not this referr to both Time and Place in the beginning It is a continuing on of the same Sentence and makes all but one and the same Act it is the Result of the Consultation at that time and place Sir B. Shower But my Lord it might be at another place they might Consult at one place and Conclude at another Mr. Conyers But it is laid to be at the same place for no other place does appear and it is one continued Sentence L. C. J. Treby You wou'd make the Repetition so frequent and reiterated that it wou'd become absurd Mr. Att. Gen. Indeed I do not know what these Gentlemen wou'd have Sir B. Shower We wou'd have this Indictment as all others are the Precedents are as we say and we hope this shall pursue 'em or else be quasht L. C. J. Holt. Look ye here Sir Bartholomew Shower Suppose this part shou'd not be right that will not Vitiate the whole Indictment Mr. Mompesson But your Lordship wont suffer them to give Evidence of that part that is Vitious L. C. J. Holt. Yes yes it comes within the first Words of the Time and Place laid they may give Evidence of it because this is but a setting forth the Manner agreed upon for the Execution of the Design that was before consulted and treated off it is comprehended in the former Words and if they had omitted this out of the Indictment the Indictment had been never the worse there had been a sufficient Overt-Act alledged to prove the Compassing and Imagining the Death of the King for if People at such a place and time meet and propose the way and means how to effect it do you think the Indictment wou'd not be good enough without laying the particular means agreed upon Certainly it had been well enough if this had been omitted Do you think they cannot give in Evidence this as a Proof of the Overt Act Certainly they may Sir B. Shower The Question will be my Lord then upon the whole Whether the Conclusion of the Indictment contra legiantiae suae Debitum shall be taken Distributively to every Fact and if so then there ought to be time and place alledg'd to every Fact L. C. J. Holt. Suppose you lay several Overt Acts and prove but one yet he is to be found Guilty of the High Treason which is the Imagination and Compassing the Death of the King which is the Crime laid in the Indictment then suppose this was left out of the Indictment they might give it in Evidence as a Proof of the Overt Act that is well laid for time and place and therefore though it be express'd and not so fully and particularly laid we cannot quash the Indictment for it because the Indictment would have been good though that had been omitted L. C. J. Treby That is certainly true it is no Cause for quashing the Indictment Mr. Soll. Gen. The Indictments against the Regicides were for Compassing the Death of the King and they gave in Evidence that he was put to Death though they
charg'd in the Indictment only the Compassing and Imagining the Death of the King L. C. J. Holt. Ay sure That is an Overt Act with a Witness the Indictment was not laid for Murdering the King but for Compassing his Death which is the Treason according to the Act of Parliament of 25th Ed. the 3d. and as an Overt Act they gave the cutting off his Head in Evidence Mr. Att. Gen. The Indictment says they Compass'd and Imagined the Kings death and they agreed to do it in this manner if this be not all one intire Sentence I know not what is L. C. J. Holt. As to your Case Mr. Mompesson which you quote out of Dyer it is possible a man may make an Assault at one time and at another time make an Assault and give a stroke but this is all one Act it does but specifie what was generally consulted off and proposed L. C. J. Treby Pray do you think a man may Demurr upon a Common Action of Battery where 't is said first at such a time and place Insultum fecit verberavti vulneravit because there is not a place set to every word Mr. Mompesson Indictments ought to be very curiously Penn'd and what is good in an Action will not be good in an Indictment with submission L. C. J. Treby But suppose you show'd it for Cause upon special Demurr Mr. Mompes My Lord I cannot tell what it wou'd amount unto L. C. J. Holt. You cannot quash the Indictment at this time that is not possible because the Indictment is good as to the rest supposing this was not so well as it might be Mr. Mompes Then my Lord I am in your Lordships Judgment whether they shall be admitted to give in Evidence this particular thing L. C. J. Holt. They may certainly give in Evidence the Agreement to have 40 men to kill the King as a proof of the Consultation Agreement and Consent to kill the King and the Consenting to have 40 Horsemen is an Evidence of their treating proposing and consulting to kill the King Then for your Objection of Quilibet suscepit to be one that is well enough it is all still but one Sentence Sir B. Shower One of which is it for they have not laid in the Indictment what it is whether it be one of the Four or one of the Forty L. C. J. Holt. Whether it be one of the Four or the Forty is not material for cannot one be found Guilty and the rest Acquitted the one is not charg'd with the Act of the other but they are several Offences and each must answer for himself in all Indictments Offences are several Suppose an Indictment of Conspiracy and it is laid in the Indictment that Four did Conspire can't you prove that two Conspired no Question you may It is not certainly necessary that every one shou'd be proved to have Conspired Suppose it were alledged that Four did beat a man and does not say Quilibet eorum beat him you may give in Evidence that one did beat him Sir B. Shower No Question of that in Case of a Battery but in the Case of a Conspiracy there must be more than one L. C. J. Holt. Nay I will ask you even in an Action of Conspiracy where the very Gist of the Action is Conspiring together cannot two be found Guilty and the rest Acquitted In Riots there must be Three or more It may be you 'll lay Ten but it is sufficient I hope if you prove it upon any Three of them Mr. Att. Gen. The Difference is betwixt Contracts and Crimes for Contracts they are joynt but Crimes they are in their own Nature several Mr. Soll. Gen. Besides my Lord though they be out of time yet this is not to the Abatement of the Indictment but to the Evidence how do they know but we will give it in Evidence that Christopher Knightly was one L. C. J. Treby Mr. Mompesson moves it as a Caveat against your giving it in Evidence Sir B. Shower If in an Outlawry against divers they leave out these words Nec eorum aliquis comperuit that is every day held to be nought and for that Reason we say the Quilibet eorum suscepit is necessary too and without being laid cannot be given in Evidence and if it be laid it ought to have time and place L. C. J. Treby The Default of appearance must be a several thing and when he lays it joyntly non comperuerunt it may be true that all did not appear if any one made Default but when you Charge men with a Fact done though in the plural number yet it is a distinct separate Charge upon every one Cl. of Arr. Robert Lowick those men that thou shalt hear call'd and personally appear are to pass between our Soveraign 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 to them as they come to the Book to be sworn and before they be sworn George Ford. Lowick I do not except against him Cl. of Arr. Hold the Book to Mr. Ford. Cryer Look upon the Prisoner you shall well and truly try and true Deliverance make between our Soveraign Lord the King and the Prisoner at the Bar whom you shall have in Charge and a true Verdict give according to your Evidence So help you God Cl. of Arr. Thomas Trench Lowick I have nothing to say against him He was Sworn Cl. of Arr. John Wolfe Lowick I do not except against him He was Sworn Cl. of Arr. James Bodington Lowick I challenge him Cl. of Arr. John Raymond Lowick I say nothing against him He was Sworn Cl. of Arr. George Hawes Lowick I do not except against him He was Sworn Cl. of Arr. Thomas Glover Lowick I challenge him Cl. of Arr. Matthew Bateman Lowick I do not except against him He was Sworn Cl. of Arr. James Partherith Lowick I challenge him Cl. of Arr. Joseph Blisset Lowick I challenge him Cl. of Arr. Alexander Forth Lowick I challenge him Cl. of Arr. Françis Chapman Lowick I challenge him Cl. of Arr. Nicholas Roberts Lowick I challenge him Cl. of Arr. Thomas Playstead Lowick I challenge him Cl. of Arr. John Hall Lowick I challenge him Cl. of Arr. William Partridge Lowick I challenge him Cl. of Arr. Peter Levigne Lowick I challenge him Cl. of Arr. Thomas Moody Lowick I challenge him Cl. of Arr. Thomas Ramage Lowick I do not except against him He was Sworn Cl. of Arr. Edward Townesend Lowick I challenge him Cl. of Arr. William Gunson Lowick I challenge him Cl. of Arr. John Wyborne he did not appear William Strode Lowick I challenge him Cl. of Arr. William Wild. Lowick I do not except against him He was Sworn Cl. of Arr. William Pitts Lowick I do not except against him He was Sworn C. of Arr. William Smith Lowick I do not except against him He was Sworn Cl. of Arr. Moses Cook Lowick I
were his Jamsaries and afterwards Carest them and said they were Men of Honour and told them that they were to Attack the Prince of Orange and his Guards but it seems the King not going abroad that day they lost that Opportunity Truly Then Mr. Harris began to be a little troubled and concerned when he understood the meaning of his being under Sir George Barclay's Conduct And he says that after that first Saturday the 15. and before the next Saturday the 22. he met with Lowick Rookwood and Bernarde and he was complaining of his being ingaged in such a Design as this was He called it then the Murder of the Prince of Orange and said it was a Barbarous thing and he did not like it nor Rookwood neither but as for Mr. Lowick whether he disliked it or no I know not but he made Answer to him I will obey Orders says he Sir George Barclay has Orders for it or otherwise he would not do it Then you are told further that after this on Saturday the 22. Mr. Harris Dined with Lowick at a Cooks at the end of Red Lion Street and being there together Harris being in a Sweat and was asked the reason by Lowick he said he had been giving of Orders for the getting some Men together that were to go under Rookwood and Lowick told him he might very well do it for he had Pay 6 s. a day but says he I am to Subsist two Men and have nothing at all Mr. Harris wished him to go to Sir George Barclay and Complain of it to him but he said he would not but it seems it being then understood by them that the King did not go abroad that day Lowick said he must go and Discharge the two Men and went about it This is the Sum and Substance of Mr. Harris's Evidence against Mr. Lowick The next Witness is Bertram and he tells you that sometime before the Fifteenth of February which was as I told you the very first day that they did design to assassinate the King Mr. Lowick sent for him and told him that he would put you upon a Business that shall be for his Advantage if he would undertake it without asking any Questions this was sometime before but the certain Day Bertram does not remember but he tells you farther that on Friday the Fourteenth of February he was with Lowick at his Lodgings and he said unto him that the King he did believe was to be seized in his Coach and we are to ride out suddenly and then he gave him a Guinea to buy him Necessaries and withal bid him meet him at the Purl-House in Hart-street next Morning and Bertram tells you he had understood what this Design was for he had it before from Chernock and did forbear to go the next Morning because he did dislike it After this Mr. Lowick met him and chid him for disappointing of him in not meeting him as he directed for says he it would have been the same thing if the King had been in the Field This is the sum and substance of the Evidence that Bertram has given against him Now Bertram being cross-examined on the behalf of the Prisoner says he hath known him a great while and that he is a Man of a peaceable and fair Disposition very charitable and that he has given him Money before and particulary a Guinea to his Wife in his absence Indeed I might have mentioned the Evidence of Fisher to you but that is but circumstantial and does not come home to the Case but being given it may be mention'd and that is about the Eighth of February Fisher had some Discourse with Lowick and it seems there was notice taken of the intended Invasion and Lowick said he would serve his Master faithfully and that the Witness thought was meant of the late King and he said at another time that he would not discourse with above one at a time because of the late Act of Parliament that was then a passing relating to high-High-Treason that required two Witnesses Now I say this is not any Proof against the Prisoner but it is a Circumstance that may shew his Inclination to the late King The Council for the Prisoner have insisted upon the Insufficiency of the Evidence that has been given on behalf of the King and have said that the late Act of Parliament requires two Witnessesses which is true but not two Witnesses to any one Overt-Act but if there be two Witnesses one to one and another to another Overt-Act that is sufficient but they say that it is not so in this Case In the first place they object against the Evidence that is given by Harris they say it is short that must be left to your consideration whether the Evidence that is given by Harris concerning Mr. Lowick does prove to your satisfaction that he consented and agreed to the Assassination of the King you are to weigh the Evidence when it is sworn that when Harris Rookwood and the Prisoner were walking in Red Lyon Fields and talking of this horrid Design and Harris complained that it was a barbarous thing to murther the Prince of Orange as they call'd him you must consider what Answer Lowick did make about obeying of Orders then his subsisting of Men at his own charge without Pay and complaining of his having no Pay and his discharging them the last day that the Assassination was intended that I must leave to you whether or no this is not an Evidence if you believe the Witness to satisfie you that he was engaged in this Design Then Gentlemen he has also been desired to give an Answer to this Question and to tell upon what Design he was to employ Bertram that should be for his advantage but he was to ask no Questions and afterwards whether he did tell him the King was to be seized in his Coach and they were to ride out suddenly and bid him meet him the next Morning and when he did not meet him he said it would have been the same thing if the King had been in the Field If this be an Evidence of Mr. Lowick's engaging in and agreeing and consenting to the Design then here will be another Witness against the Prisoner besides Harris Gentlemen you are to judge of this matter and of the Evidence It is true we are not to put in the case of a Mans Life any forced and violent Constructions upon any Words or Discourses but if the Evidence be plain and clear tho he did not say in express Words that he did design to assassinate or kill the King yet if upon the whole Discourse that past between them it appears plainly clearly and satisfactorily to you that he did consent and agree to this Design or was engaged in it here 's another Witness I say to prove him guilty besides Harris you are to consider the whole Evidence the subject matter of Discourse and if you are satisfied I say that he was engaged in such
to say That upon the Tenth of February and two days afterwards to wit the said Tenth day of February that is after two days after the Tenth of February viz. upon the same Tenth day Mr. Att. Gen. That Postea is another Sentence and relates to other maters Sir B. Shower It can't in propriety of Speech be said to be afterwards the same day Mr. Sol. Gen. If Sir Bartholomew Shower remembers the Evidence that we have given this day he will find it was in Fact so they met on the Saturday Morning and afterwards met again the Night of the same Day L. C. J. Holt. There is nothing in that Objection sure it is a Common Form when they tell of Different matters Sir B. Shower Well then if you will hear the rest which are not of the same nature we shall come to what we think a fatal Exception we say this Indictment of High-Treason being against a Subject born ought to have had the words in it Contra Supremum naturalem Ligeuni Dominum suum according to Calvin's Case in the 7th Report Fol Septimo L. C. J. Holt. It is Contra Ligeantiae suae Debitum is it not Sir B. Shower That won't help it My Lord for all that is applicable to an Alien Born And so is the Case in my Lord Dyer 144. where it is said That if an Indictment of Treason be against an Alien you must not put in the word naturalem if you do it will be faulty because he owes but a Local Allegiance to the King of England and not a natural one Now we say there are none of these Prisoners but are Subjects born and the constant Form in Queen Elizabeth's Time and Queen Mary's was to put in the word Naturalem Dominum and they cannot shew me any of those Presidents without it There was occasion in Tucker's Case to look into this matter and search all the Presidents I have look'd into my Lord Coke's Entries and all the Presidents I have seen my Lord of Essex's Indictment and all the others in Queen Elizabeth's Time and those of the Traitors in the Powder-Plot and those of the Regicides and Tuckers own Indictment it self all along it is Naturalem Dominum suum and the reason for it is he that is Alien born you never put in naturalem Dominum suum because he owes a double Allegiance one Natural to his own King under whose Dominion he was born and the other Local to the King in whose Dominions he resides for he is bound to observe the Laws of the place where he lives And if he violate them he does break the Allegiance that he owes to the Government where he lives upon account of the Protection he enjoys under it But if he be born a Subject of the King of England he has but one natural Liege-Lord and he being an Englishman born the King stands in that Relation to him as he does to all his Native Subjects but not to Foreigners and therefore it was thought requisite to be and has always been inserted into Indictments of Treason against Subjects born And my Lord we think the very Resolution of the Court afterwards affirm'd in the House of Lords that Revers'd Tucker's Attainder went upon this Opinion That the Law required naturalem Ligeum Dominum to be put in There the Exception was that Contra Debitum Legeanciae suae was omitted To which it was Objected that there was Dominum Supremum Naturalem which was Equivalent No it was answered both were requisite because every act charg'd in the Indictment ought to be laid against the Duty of his Allegianâ—e Now in Indictments of Treason there are certain words that are essential because of their Relation between the King and his People There are certain Forms of words which if the constant practice has been to make use of them the omission is an Error Those usual Forms ought to be observ'd and the want of them will be a fatal Exception so we think it would be in this Case as much as if the word proditorie had been left out or as if in a Case of Felony and Burglary the words Felonicè and Burglariter had been left out Mr. Phipps My Lord we take the Practice and Presidents to be the Rule of Law in the Case and I have look'd over a great many Presidents besides those that Sir Bartholomew Shower has Cited and I never saw any one President of an Indictment of Treason against a Subject born without the word naturalem and all the Cases cited by Sir Bartholomew Shower are full in the point Courteer's Case in my Lord Hobbart 271. where 't is said that if there be an Indictment against a Subject born it must be Contra naturalem Dominum if against an Alien naturalem must be left out To say Contra Legiantiae suae Debuum will not do it is not enough for that may be said against an Alien because he owes a Local Allegiance tho' not a Natural one And I take it upon this difference this Indictment is not good Mr. Att. Gen. My Lord I do not know how far you will think it proper to enter into this matter before the Tryal L. C. J. Holt. Mr. Attorney I think you had as good speak to it now as at another time tho' I must confess it is not so proper in point of practice Mr. Att. Gen. Well My Lord then we will speak to it now The Objection is That the word naturalem Dominum is not in the Indictment which they say is contrary to the usual Form As to the Presidents there are a great many where it has been and I am sure a great many where it has not been and I am sure for this Six Seven or Eight Years last past it has always been omitted And with Submission to your Lordship it is not at all necessary If there be words in the indictment which shew that what he did was against the Duty of his Allegiance to his Lawful and Undoubted Lord which are the words in this Indictment It is true if he be not a Subject born naturalem cannot be in because that is contradictory to the Obedience which he owes for it is not a Natural Obedience that he owes but a Local but if a Man be a Subject born and commits Treason against the Allegiance that he ows that is against his natural Allegiance for whatsoever he does against his Allegiance he does against his natural Allegiance and so there 's no need to put in the word naturalem because he owes no other Allegiance but that it is sufficient if that be put in which shews its being against his Allegiance If they could shew that a Subject born has two Allegiances one that is natural and the other that is not natural then if you would prosecute him you must shew whether it was against his Natural or against his other Allegiance But when he has none but a natural Allegiance certainly against his Allegiance without
false Traytors to the Jurors unknown Afterwards to wit the same Tenth 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 falsely malitiously advisedly secretly traiterously and with Force and Arms did meet propose treat consult consent and agree him our said Lord the King that now is by lying in wait and wile to Assassinate Kill and Murder 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 they might kill And did consent agree and assent that Forty Horsemen or thereabouts of whom they the said Christopher Knightley Robert Lowick Ambrose Rookwood and Charles Cranburne should be four and every one of them trayterously took upon himself to be one with Guns Muskets and Pistols charged with Gun-powder and Leaden-Bullets and with Swords Rapiers and other Weapons armed should lie in wait and be in ambush our said Lord the King in his Coach being when he should go abroad to set upon and that a certain and competent Number of those Men so arm'd upon the Guards of our said Lord the King then attending him and being with him should set upon and them should fight with and overcome whilst others of the same Men so armed him our said Lord the King should Assassinate Slay Kill and Murder And they the said Christopher Knightley Robert Lowick Ambrose Rookwood and Charles Cranburne the Treasons and all their treasonable Intentions Purposes 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 and Rapiers and other Weapons Ammunition and Warlike things and Military Instruments falsely malitiously secretly and traiterously did obtain buy gather together and procure and to be bought obtain'd gather'd together and procur'd did cause with that intent them 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 us'd imploy'd and bestow'd And the same Premisses the more safely and certainly to execute do and perpetrate 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 Assent of divers of the Traytors and Conspirators aforesaid the aforesaid Tenth Day of February in the Seventh Year abovesaid trayterously did go and came unto the place proposed where such intended Assassination Killing and Murder of our said Lord the King by lying in wait should be done perpetrated and committed to view see and observe the conveniency and fitness of the same place for such lying in Wair Assassination and Killing there to be done perpetrated and committed and that place so being seen and observed Afterwards to wit the same Day and Year his 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 the said 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 perpetrate and commit advisedly knowingly and trayterously did bear and carry among divers of those Traytors and Conspirators forward and backward from some to others of them a List of the Names of divers Men of them 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 his Allegiance and against the Peace of our said Sovereign Lord the King that now is his Crown and Dignity and against the Form of the Statute in that Case made and provided Upon this Indictment he hath been arraigned and thereunto hath pleaded Not guilty and for his Tryal hath put himself upon God and the Countrey which Countrey you are your Charge is to inquire whether he be guilty of the High-Treason whereof he stands indicted or 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 enquire 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 find 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. Montague May it please your Lordship and you Gentlemen of the Jury This is an Indictment of High-Treason that is found against four Persons but the particular Treason against the Prisoner at the Bar is for compassing and imagining the Death of the King and endeavouring to subvert the Government and enslave the Nation to Lewis the French King And the Indictment sets forth that the Prisoner at the Bar did for this purpose meet and consult with several false Traytors to the King and Government of the way manner and means how and the time and place when and where to Assassinate the King and at length they agreed that forty Horsemen should go together and set upon the King in his Coach as he returned from Hunting some to attack the Coach while others set upon the Guards The Indictment does further charge him with getting Horses and Arms and particularly with carrying a List of the Assassinators from one to another These are the particular things charged in the Indictment and to this Indictment he has pleaded Not guilty if we prove the Fact Gentlemen we don't doubt your Justice Mr. At. Gen. May it please your Lordship and you Gentlemen of the Jury The Prisoner at the Bar Charles Cranburne is indicted for High-Treason in compassing and imagining the Death of the King Gentlemen the Overt Acts laid in the Indictment to prove the Prisoner guilty are That he was at several Meetings and Consultations about the manner of putting this Design in Execution at which Meetings it was agreed That there should be about forty Horsemen in Number prepare'd and arm'd for that purpose and they did provide Horses and Arms for that very thing and did agree to put it in execution Gentlemen the Evidence that you will hear produc'd against the Prisoner at the Bar will be of this Nature You will hear from the Witnesses that about Christmas last or
that he and Thomas Place apud Bridgwater in Com. Somersett praedict Compassaverunt to Kill and Depose the King c. And to bring their Treasonable purposes to effect they the said Reginald Tucker and Thomas Place the same Day and Year at Bridgewater aforesaid in the County aforesaid against the King with a great Multitude of People Arrayed in a Warlike manner viz. with Swords c. se ipsos illicite proditorie insimul ad tunc Ibidem Congregaverunt Assemblaverunt Guerram publicam Contra dictum Dominem Regem apud Bridgewater proedict in Com. proedict Dicto Vicesimo Die Junii anno primo supro dicto proditorie paraverunt ordinaverunt Levaverunt so in the Indictment of Gate as it is set forth at large in a Plea in Bar of Dower brought by his Wife he with Force and Arms apud Villam de Ware c. assembled with a great many Persons Bellum Crudele Contra Dictam Dominam Reginam apud Ware praedict ad tunc falso proditorie publicavit Levavit ac in super ad tunc Ibidem falso proditorie Proclaimed the Duke of Northumberland to be Lieutenant General of their Forces etiam falso proditorie apud Ware proedict ad tunc Proclaimed the Lady Jane Dudley Queen This is in Bendlowes Reports Publish't by Serjeant Rowe fol. 55. placito 91. So in Earl of Leicester's Case Plowd Com. 385. the Indictment is laid much after the same manner and many other Indictments which at present I am unwilling to trouble your Lordship with and this being one of a new Form and of the First Impression I hope your Lordship will hold it insufficient And my Lord when they go farther and say Et Quilibet eorum proditorie super se suscepit esse unum there is no place or time alledged where that was done which of necessity should be mentioned For it is a constant Rule in our Books that what is Issuable ought to have a place where it may be tryed Now this is Issuable and the most material thing in the Indictment is for compassing the King's Death The Overt Acts are that Christopher Knightley the Prisoner and Two others did Consult to kill the King and afterwards did agree how to do it viz. by Forty Horsemen Quorum these shou'd be Four and every one of them did agree to be one then comes the other Overt Act of Providing Arms for them Now suppose they should not prove the last viz. the Providing Arms then my Lord they must resort to one of the other Overt Acts that these Four did Consult and Agree to Kill the King or that these Four did agree the manner how to do it as is laid in the Indictment and it is plain they must fail of proof of either of these for by the not Prosecuting any one of the Name of Christopher Knightley but preferring a new Indictment against one Alexander Knightley it appears that Christopher Knightley was not there and the proving these Three others making a Consult and Agreement is not a proof of the same Overt Act that is laid in the Indictment as it ought to be by the late Act unless they can prove that a Consult of Three is a Consult of Four and if it be answered that it is alledged that Quilibet eorum super se suscepit then will that come to be Issuable and the most material part of the Indictment and consequently a place ought to have been laid where it should be Tryed this my Lord is a distinct Sentence of it self it is in a Parenthesis and though you take it away the sense of what remains is perfect and intire and consequently this Sentence is or shou'd be intire of it self and therefore ought certainly to be exprest Besides if your Lordship pleases it is not positively laid what these Persons severally undertook to be there is indeed mention made before of Forty Horsemen agreed upon to set upon the King then comes the Parenthesis Quorum Iidem Christophorus Knightley Robertus Lowick Ambrosius Rookwood Carolus Cranburn forent Quatuor quilibet eorum proditorie super se suscepit esse unum It is perhaps exprest fully enough by the word Quorum that it was agreed these shou'd be Four of the Forty Horsemen but there wants the repetition of the word Quorum to express what they severally engaged to be and the word cannot joyn and connect the Sentences For forent and suscepit Differ not only in Number but also in Mood and Tense and the sense is not necessarily coherent for it might be true that the Majority of the Company might agree these shou'd be Four and yet they themselves might not severally Ingage therein and one or some of them might undertake it and yet the Company not agreed to it and it cannot be mended by Intendment There was Vaux's Case in the 4 Rep. 44. He was Indicted for Murder for perswading a Man to take Cantharedes it was laid That he Perswadebat eundem Nicholaum Recipere Bibere Quendam potem mixtum cum Quodam veneo vocat Cantharedes and the Indictment says Quod proedictas Nicholaas Nesciens proedictum potem cum Veneno proedicto flore in toxicatum sed fidem ad Hibens Dicte perswasioni Willielmi Resepit Bibit but does not say veneum proedictum but yet it adds Per quod praedictus Nicholaas imediate post Receptionem veneni proedicti Languish'd and Dyed here one wou'd think was a sufficient Implication that he took and drank the Poison but it was Rul'd that none of these words were sufficient to maintain the Indictment for the matter of the Indictment ought to be plain express and certain and shall not be maintained by Argument or Implication and therefore for want of those words the Indictment was held insufficient and the Man again Indicted for that Offence and there seems much more in-certainty in this Indictment and therefore I humbly pray your Lordship that it may be Quash't Sir B. Shower My Lord we think the Objection is fully put and therefore we desire to have their Answer to it Mr. Att. Gen. We think my Lord this Objection will receive a very plain Answer The Indictment sets forth that at such a Place the Prisoner at the Bar did imagine and compass the Death of the King There is a particular place where the imagining was and that they to accomplish that Treason in compassing and imagining the Death of the King did amongst others postea eidem due anno apud parochiam praedictam Meet and Consult c. So there 's the same place set forth again wherein they did Meet and Consult of the Ways and Means and Time and Place when where and how to Assassinate the King And immediately it follows Conce serunt agreaverunt c. that Forty Men whereof they were to be Four and every one of them undertook to be One should do so and so Now my Lord say they It is
Harrison and I together and Sir George Barclay came to us I believe there were about 14 or 16 in the House there Sir George Barclay told me Mr. Lowick was to meet me and two more at an Inn by St. Giles's Pound and that we were to go together to seize the Prince of Orange the 22th L. C. J. H. Did you meet him Captain Fisher I did not meet him it being put off by the King 's not going Abroad L. C. J. H. This does not affect Mr. Lowick at all Mr. Attor Gen. It does not we acknowledge but at that time which you speak of the 8th of February had you any knowledge of the Assassination Captain Fisher There was no Assassination at that time at least it was not then declared Mr. Attor Gen. What was your Discourse about then Captain Fisher There was Notice of the King 's preparing to come for England Mr. Attor Gen. You say Mr. Harrison was there Captain Fisher Yes and Talkt very little about the matter but only that there were Preparations for the King 's coming Mr. Attor Gen. What did Lowick say to you Captain Fisher I have told you all that Mr. Lowick said to me Mr. Attor Gen. Repeat it again Captain Fisher He said he would be ready to serve his Master to the uttermost of his Power Mr. Cowper Had you no discourse about an Act of Parliament Captain Fisher Mr. Lowick said it was not convenient to Talk with more then one at any time for there was an Act of Parliament on Foot that under two Witnesses nothing should affect a Mans Life in Treason Mr. Attor Gen. The Act of Parliament was then a making L. C. J. H. When Mr. Lowick said he wou'd serve his Master what Discourse had you about it Captain Fisher Mr. Lowick said not a word within but at the Door he said he wou'd serve his Master to his Power Mr. Attor Gen. What was that that they wou'd not Talk with above one at a time Captain Fisher Nothing that was thought Treasonable Practices shou'd be Discours'd of before above one at a time so I understood it Mr. Sol. Gen. Then my Lord we have done Sir B. Shower May it please your Lordship and you Gentlemen of the Jury I am of Counsel in this case for the Prisoner at the Bar and we do hope here is not Evidence sufficient to convict him of High Treason the Question is not whether there was a Plot or a Conspiracy to Assassinate the King or to prepare for an Invasion but all that you are to consider Gentlemen is whether the Evidence against Mr. Lowick be sufficient to convince you that he did design to Seize and Assassinate the King there are three Witnesses produc'd but we think this last Witness Fisher his Testimony does not hurt him in the least We know your Lordship will Declare and Direct the Jury that the Evidence in a case of Treason ought to be plain not only with respect to the Fact that it was done but also of such Facts as are the Evidences of a man's intentions and those are not to be Construed by Strains and Intendments or Implications unless they be such as Evidently Naturally and to common Understanding express the Intention it cannot be good Evidence in Treason Now we say that Captain Fisher has said nothing at all that will affect the Prisoner for al that he says is that the Eighth of February he said he was ready to serve his Master to the utmost of his Power and any words as well as these may be Construed to make a Man Guilty of Treasonable Intentions for it might be a Recollection of Favours Received or it might be a Grateful intent to serve him upon particular occasions but that is no Evidence upon this Indictment Suppose it was to serve him upon the supposed intended Invasion yet with submission that is not Eviednce of the Overt Act laid here here is no Overt Act mentioned of preparing Arms or Incouraging Men or Seducing the King's Subjects in order to the better restoring of the late King James or the expected Landing of the French or the like All that 's laid to the Prisoner's charge is the Compasting the King's Death and a Design to Assassinate him in his Coach and in order to the Assassination he was to buy Armes and Horses now all that he says is quite of another Nature of a quite different Strain and has no tendency to this matter and nothing he says that Lowick shou'd say but is applicable the other way and tends more Naturally to the Invasion then to the Assassination Your Lordship observes there was some notice taken of what Mr. Lowick shou'd say concerning the Act of Parliament that he would not talk with above one at a time how far when life is concern'd such loose discourse ought to be inforc'd before a Jury I must leave to your Lordship tho a Man may be Innocent yet he may be Cautious and the more Innocent perhaps the more Cautious but that is applicable to the Invasion too and has no Relation to the Treason in this Indictment more than any other It shows he was more wary then others were but it is not applicable to the Fact that he now stands charged with Then the whole of the Evidence depends upon the Testimony of Mr. Harris and Mr. Bertram and we think they are not two Witnesses to one thing and what they say must be strained and intended and presumed to make Evidence of Treason for what Mr. Harris says about the Discourses between him and the late King James about Receiving Orders from Sir George Barclay and his passage over from France and the several Stages he and Mr. Hare travel'd and the Discourses between Sir George Barclay and him Your Lordship will acquaint the Jury that is no Evidence to affect Mr. Lowick noâ— what Berkenhead and Hare agreed upon does any way affect Mr. Lowick for those things may be all true and yet Mr. Lowick innocent of what he stands charged with in this Indictment he says that upon the first Saturday he saw Mr. Lowick at the Confectioners but he cannot say he staid there at all there was not a word spoken by Mr. Lowick that he remembers then but what he says that seems to touch and the only thing that touches Mr. Lowick in all this Evidence is that that upon Monday Tuesday Wednesday or Thursday it is a pretty large time between the Fifteenth and the Twenty second he was talking with Mr. Lowick about the Barbarity of this business and that Lowick after all said he would obey Orders now with submission my Lord to make that to have Relation to the Assassination must be by a forc'd strain'd Intendment he does not Declare what the Orders were nay he does not affirm there were any Orders for the Assassination but only that he would obey Orders here 's no Order by Writing no Order by Parole that Mr. Lowick declared he would obey as to