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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	civil_a	court_n	criminal_a	1,645	5	10.8192	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A25872	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 21st of April 1696, and received sentence the day following, and was executed at Tyburn on the 29th 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.	Rookwood, Ambrose, 1664-1696, defendant.	1696 (1696)	Wing A3755; ESTC R4588	88,215	80

words before Evidence given in open Court but have said they should have had no Advantage of the Exception unless it were before Plea pleaded it does not say it shall be after the verdict or before the Verdict but before the Evidence given Now if they had meant what these Gentlemen say they would have appointed it to be before the Verdict which would have included the Tryal because then it had been like the Penning of other Acts of Parliament the Statutes of Jeotailes and the like which say That after a Verdict such and such Exceptions shall not Arrest a Judgment But if they can shew me any Statute that is penn'd like this they give me an answer All those Statutes are That no Judgment shall be Arrested or Delay'd upon such or such Exceptions after a Verdict But here it says They shall not Arrest Judgment unless the Exception be taken before Evidence given in open Court My Lord We submit it to you we think the Law-makers did intend somewhat by that particular way of Expression Different from all other Acts of Parliament and truly if it be not as we offer to your Lordship we think it can have no meaning at all Mr. Att. Gen. Truly my Lord we think it is very plain what the Parliament meant by this Clause in this Act the Design was to Restrain the Prisoner from moving in Arrest of Judgment for Mis-spelling or false Latin or little Matters of Form if he did not move it in a proper time having such a Liberty allow'd him as to have a Copy of the Indictment so many days before he was compelled to plead They insist upon it that the words are Before Evidence given It is so But what can be the meaning of that It must be at such time as the Law allows it is not making a new Method of Tryal you shall take Exception before the Evidence that is before the Tryal for it can never be intended that they meant to alter the Course and let the Council break in between the time of the Jury's being Sworn and the Evidence given that by no Law could ever have been done before Sir B. Shower Pray Mr. Attorney when would you have us do it Mr. Att. Gen. Regularly before Plea pleaded at least-wise before the Jury be Sworn L. C. J. Holt. Undoubtedly this is not Regular it is contrary to all the Course of Practise it is not fair Dealing with the Court But then there is another Consideration in the Case that I would have you think upon If so be this had been at a Tryal by Nisi Prius then the Judge of Nisi Prius is only to try the Issue but now here the very Record is before us and we are Judges of the Record as well as we are to assist the Jury in Trying the Issue Now take it in any other Case of the like nature Suppose a Tryal at the Bar in any Civil Cause though this be contrary to Practise and the Court not fairly dealt with yet when we have the Record before us and find an Error in the Record cannot we Quash the Indictment and Discharge the Jury That is the Question Mr. Attorney though I must confess I do not know that it has been practicable Mr. Att. Gen. No my Lord in a Case of Treason where the Jury are once charg'd they are to give a Verdict they must either Acquit or Convict Sir B. Shower It was done in Whitebread's Case Mr. Att. Gen. But I know what has been usually thought in that Case and I believe they cannot shew me another L. C. J. Holt. Nay that this is a very Irregular Motion is very plain Mr. Sol. Gen. Certainly my Lord you must take it as the Law was before this Act for this Clause does nothing for the Prisoner but is against him L. C. J. Holt. I know it is not for the Advantage of the Prisoner therefore I put it as a Case in an Action or an Indictment as the Law was before whether this being a Tryal in the same Court where the Indictment was found and we find all Insufficiency in the Record before us whether we cannot Quash the Indictment Mr. Sol. Gen. Your Lordship mentions Civil Actions with Submission nothing of that kind could be done after once the Cause came to Tryal but in Criminal Causes according to the Course of Practise which will always be the Law till particularly altered I believe no body can pretend that after Issue joyn'd and a Jury charg'd any one can move to Quash the Indictment I think I have heard it often said in this Court that in Capital Cases as High Treason you may put in a Plea in abatement of but not a Motion to quash an Indictment I am sure it was disallowed where I moved to quash an Indictment of Murder let them but show any president of this nature Sir B. Shower We will show you tho' this is the first Case upon this Act of Parliament therefore to show any practice upon it would be very hard to require of us L. C. J. Holt. But can you show it before this Clause in this Act of Parliament which as I told you is not for your advantage it does not give you that liberty that you desire Sir B. Shower All the Clauses in this Act of Parliament show'd their intention was this that the sence of the Law-makers was that we should have this Liberty at any time before Evidence given for if there be such words as show'd they thought it might quash'd at any time tho' they were mistaken in the practice yet we shall have the Liberty that they intended us and the wording of this Act shows that the Parliament thought it might be done after the Tryal begun before Evidence given because they restrain us from taking those Exceptions after the Evidence given and it is no prejudice to the King at all really it is rather for the advantage of the Prosecution because there is none of the Evidence disclosed and therefore if the Indictment should be found faulty still the Evidence remains undiscovered upon another Indictment and I have often heard it said at this Bar in Cases of Indictments for Felony or Treason as Murder or the like if any one did come as amicus curiae and acquainted the Court that they were going to proceed upon an erroneous Record or give an erroneous Judgment or do any other erroneous Act he ought to be received with kindness because he would prevent a wrong doing L. C. J. Holt. That is in the proper time not to interrupt the Tryal when the Jury is once sworn Sir B. Shower We are ready to offer our Exceptions and we hope it is no prejudice at all to the King before the Evidence of the Fact is given Mr. Phipps My Lord I perceive that this Clause as they would have it is intended to prevent us from moving that in Arrest of Judgment which we could have moved before and ties us up to

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

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

him brought to my Lodging in Norfolk-street but before that Mr. Charnock told me he was come into England L. C. J. Holt. Hark you Mr. Porter when you came back from viewing the Ground before the first Saturday and you said you made your Report and then it was agreed that it should be done at such a place Do you say the Prisoner was there Mr. Attorn Gen. No my Lord he does not say so Do you say Mr. Rookwood was there at that time Capt. Porter No my Lord I don't say so Sir B. Shower I am sure he did not say so before and besides your Lordship will observe there is no such Overt-Act as that laid in the Indictment against the Prisoner that Mr. Porter made his Report upon the view that only concerns Mr. Knightley L. C. J. Holt. No that is not an Overt-Act I agree it but I only ask the Question whether the Prisoner was there L. C. J. Treby If it were an Overt-Act laid in the Indictment it would not affect the Prisoner because the viewing of the Ground and making the Report is Captain Porter's act and it must be the consulting and debating afterwards that must affect the Prisoner if he be concern'd Mr. Conyers The Meetings and Consultations that are laid in the Indictment are the Overt Acts. Mr. Soll. Gen. Well if they have done with Captain Porter we desire Mr. George Harris may be sworn Sir Barth Shower My Lord we beg leave to oppose Mr. Harris's being sworn here was a Proclamation that did take notice of this barbarous Conspiracy to assassinate the King and the Proclamation did signifie That the King had received information of several Persons concerned in that Conspiracy and for the encouragement of taking those so accused he did promise a Thousand Pounds reward for the taking of any of the Conspirators and in the conclusion of the Proclamation there is a Clause That if any of the Conspirators should discover or apprehend any of the other Persons that were therein named so as that they should be brought to condign Punishment such Conspirator so discovering should receive a Thousand Pounds reward for any of the other Persons apprehended and his own Pardon My Lord we have a Witness here ready to prove that this was Mr. Harris's Case he was himself in the Proclamation he did actually discover Mr. Rookwood the Prisoner at the Bar and was instrumental in the taking of him and consequently upon this Clause of the Proclamation if he be brought to Justice then is Mr. Harris intitled to this Reward and his Pardon and consequently he has such an Interest and Advantage to himself as will prevent his being a Witness It is true indeed where it is at the King's Suit in a capital Case it is pretty hard to say that a man has an Interest but we think as this Case is circumstantiated upon this Proclamation that the same Objection lies against him as would do if this were a civil Cause if we shew how he is to have an Advantage by the event of this Cause then he is not to be admitted a Witness L. C. J. Holt. Did he apprehend any body upon the Proclamation Sir B. Shower Yes he apprehended Mr. Rookwood himself or was the cause of it and thereby is intitled to the Reward and his Pardon Mr. Phipps That upon which we ground our Objection is the different penning of the Proclamation for if any one that is not a Conspirator do but discover and apprehend any of the Persons named in the Proclamation he is entitled to the Thousand Pounds but the Conspirators themselves must go further for a bare Discovery and Apprehending any of their Accomplices will not entitle them to the Reward mentioned in the Proclamation but they must discover and apprehend their Accomplices so as they be brought to Justice before they can be entitled to the Reward And to be brought to Justice for any Crime is in common understanding to be brought to such Punishment as the Law inflicts for the Offence Now Mr. Harris's Case is this he discovered Mr. Rookwood and went with the Guards to the Compter and seiz'd him And if Mr. Rookwood ben't convicted Mr. Harris is not to have any thing for his pains but if he be convicted Mr. Harris is entitled to the Thousand Pounds and his Pardon And therefore surely Mr. Harris cannot be admitted an Evidence against Mr. Rookwood since he is to receive so great a Benefit by his Conviction Upon an Indictment for a usurious Contract the Person whose Deed it is cannot be a Witness because 't is to avoid his own Act So in an Indictment for Perjury on the Stat. 5. Eliz. the Party injured by the Perjury cannot be a Witness because he is to have half the Forfeitures Mr. Att. Gen. I suppose they will make out their Objection before they expect an Answer from us Sir Bar. Shower I hope your Lordship will not put us to prove a Copy of the Proclamation from the Inrolment but that we may have the same favor as in the Case of the Statue-Book that the Print of it may be allow'd for Evidence Mr. Att. Gen. My Lord we will not stand with them for that we know they are mistaken throughout we consent the Proclamation should be read Cl of Arr. Reads By the King a Proclamation William R. WHereas His Majesty has received information upon Oath that the Persons herein after named have with divers other wicked and traiterous Persons entered into a horrid and detestable Conspiracy to assassinate and murder His Majesty's sacred Person for which cause several Warrants for High Treason hath been issued out against them but they have withdrawn themselves from their usual places of abode and are fled from Justice His Majesty has therefore thought fit by the Advice of his Privy Council to issue his Royal Proclamation and His Majesty does hereby command and require all His loving Subjects to discover take and apprehend James Duke of Berwick Sir George Barclay Major Lowick George Porter Capt. Stow Capt. Walbank Capt. James Courtney Lieuten Sherborne Brice Blair Dinant Chambers Boise George Higgins and his two Brothers Sons to Sir Thomas Higgins Davis Cardell Goodman Cramburne Keyes Pendergross aliàs Prendergrass Bryerly Trevor Sir George Maxwell Durance a Fleming Christopher Knightley Lieutenant King Holmes Sir William Parkyns Rookwood wherever they may be found and to carry them before the next Justice of Peace or chief Magistrate who is hereby required to commit them to the next Goal there to remain until they be thence delivered by due course of Law And His Majesty doth hereby require the said Justice or other Magistrate immediately to give notice thereof to Him or His Privy Council And for the prevention of the going of the said Persons or of any other into Ireland or other parts beyond the Seas His Majesty does require and command all His Officers of the Customs and other His Officers and Subjects of and in the respective