arraigned him then after he has pleaded the Question was when he was to have a Copy of the Pannel Now the design of this Act of Parliament was That the Prisoner should have a Copy of the Pannel 2 days before his Tryal in order that he might consider of the persons that were to Try him that he might inform himself of their Qualities Tempers and Dispositions that so he might make use of the benefit the Law gives him of challenging Five and Thirty without shewing any cause if he did not like the Men and as many more as he should think he had good cause to challenge now in this Case the whole design of this Act of Parliament is answered for he has had a Copy of the Pannel as you your selves acknowledge 2 days before the day of his Trial so that he has the full benefit that the Act of Parliament intended he is by this Copy as well enabled to make his Challenges as the Law design'd he should be and has had the same time allowed him that the Act of Parliament meant he should have then supposing the design of this Act of Parliament be fully answered and complied with in the Case The next Question is whether the words of the Act are satisfied for we would be very loth in a Case of this nature where an Act of Parliament intends a favour to a Prisoner that stands at the Bar for his Life to abridge him of any part of that favour which the very words of the Act would allow him tho the Intent of the Act of Parliament were answered otherwise now in the first place it is observable that the Act of Parliament does not say that the Prisoner shall have a Copy of the Return nor does it say he shall have a Copy from the Court but he shall have a Copy of the Pannel of the Jurors duly return'd that are to try him now if the Sheriff array his Pannel several days before the Tryal upon the Venire facias and does give him a Copy of that very Pannel which Pannel is afterwards returned in Court Has not he then a Copy of the Pannel duely returnred Does not this answer all the words of the Act For you youselves say that it is not said in the words of the Act that the Copy shall be delivered after the Pannel returned nor does their need a Copy of the very Return Surely we must not carry it farther than the words if the meaning be complyed with and we think this answers both words and meaning It is a Copy of the Pannel and a Copy of that Pannel that 's duely returned Now to make another construction would indeed not only alter the usual course of Tryals but be contradictory to the very Process it self We are by the Course of Law to award Process to Summon a Jury to appear at a certain time to try the Issue joyned between the King and the Prisoner and yet when we have done this and the Jury thereupon are summoned and appear they may go as they came for the Issue cannot be tryed because after the Return the Prisoner must have a Copy of the Pannel two days before he can be tryed I do think the design of the Act of Parliament and the very word of the Act are fully satisfied in giving a Copy of the Pannel two days before the Return We had this matter under our Consideration before and upon Debate among our selves we did think fit to award the Precept returnable this day and resolved to try the Prisoner this day unless better reasons were offered us to alter our opinion and we are not satisfied that any such better reason has been given but that this Tryal ought to go on the Prisoner having the full benefit that was designed him by this Act of Parliament And the giving a Copy of the Pannel that is returned tho before the return sufficiently satisfies the words of the Act no other construction can be made without great absurdities This is my opinion Sir B. Shower My Lord I hope we shall be excused for our Clyent we have another Doubt to propose to the Court. L. C. J. Holt. You have had my Opinion upon this point if my Lords and Brothers are of another Opinion they will tell you Judges No my Lord we are all of the same Opinion L. C. J. Holt. My Lord Chief Justice of the Common Pleas and my Brothers are all of the same Opinion Sir B. Shower My Lord we say we have another Doubt to propose upon this Act of Parliament It is a new one and never put in practise till now and therefore we hope your Lordship will please to excuse us if we offer our Objections because there has yet never been a determination about it and we are assigned of Counsel by your Lordship L. C. J. Holt. Never make Apologies Sir Bartholomew for it is as Lawful for you to be of Counsel in this Case as it is in any other Case where the Law allows Counsel It is expected you should do your best for those you are assign'd for as it is expected in any other Case that you do your Duty for your Clyent Sir B. Shower My Lord our Exception is this we say that this Tryal cannot go on at this time upon this Act of Parliament because we have no true Copy of the whole Indictment it does not appear in the Copy we have delivered to us before whom it was taken or whether it was taken at all or in what place it was taken it says only Middlesex in the Margent and then Juratores pro Domino Reges presentant That might be before the Justices of the Peace at the Quarter-Sessions or it might be at the Monthly-Sessions at Hicks-Hall or it might be at the Sessions at the Old-Baily or it might be before Commission of Oyer and Terminer as perhaps it really was but non Constat where it was taken nor how it comes hither It might be before your Lordship here as we believe it was but this Copy not leting us know where and how it was taken we think we have not the benefit of this Law for the Party accused is by this Act of Parliament to have a Copy to advise with Counsel that he may be enabled to plead And that is the reason why the words of this Act are so Pen'd that he shall have a Copy of the whole Indictment which we cannot plead to unless we know where it was taken if we should have occasion to plead any Special Matter And besides my Lord there is another reason why we should have the whole Indictment to enable us to plead because if we had the Caption it might perhaps appear that the Indictment was taken before the time of the Fact alledg'd in the Indictment and then that would make it Vitious it might be before the 9 th of February when this Treason is said to be committed and then we ought not to be brought to Tryal Now the
and 3. After that by Writ of Error Now this Clause of this Act takes away the Privilege of moving in Arrest of Judgment for mis-writing c. but saves the advantage upon a Writ of Error and upon a Motion to quash the Indictment We are to consider what is a proper time for a Motion to quash an Indictment the Motion is to be made to the Court and to them alone It is not to be made to the Court and the Jury When the Jury is sworn all Application is to be made to the Court as having a Jury present which they are to assist in the Tryal and Determination of the Fact only What use then is there of the Jury when you make this Motion which consists only in points of Law They must stand by and be out of Office all the while this Motion is making and it is not reasonable nor certainly ever was intended that after a Jury is sworn to try a matter of Fact they should stand idle while you move a thing which you should have moved before they came to the Bar suppose you should now move some Exception to the Venire and the Return thereupon should we when we and you also have admitted the Jury to be sworn quash the Process whereby they are Return'd And yet we may as well do that as this For the Act provides in the very same words concerning Quashing Process and Indictments But when the Jury is sworn and ready to receive their Evidence sure then it is out oâ— all season to make such a Motion therefore I do not think the Parliament intended by this Clause which was a kind of Exception to the Favour the Prisoner receiv'd by having the Copy of the Indictment to institute a new Method of Proceedings for Motions to Quash Indictments even when a Jury is at the Barr and sworn to try the Issue and there is nothing proper to be proceeded upon but only to hear the Evidence produc'd for the proof of that Issue till the Jury is discharged But still this I would say this is a new Case and upon a new Statute I am truly of Opinion that the Motion is altogether Unseasonable and Irregular and it should have been made before and you had a full Opportunity to make it this Day Seven-night before Plea pleaded and you might likewise to Day before the Jury was sworn therefore when the Jury are now at the Bar actually enter'd into and imploy'd upon the Service the Court ought not to be Interrupted by such a Motion Yet nevertheless I would propound this that seeing it is a new Case and upon a new Statute the Court would forgive the Irregularity for I think it does need Forgiveness and if the King's Councel will Consent to it to prevent any Error or any pretence of Hardship upon a new Law that we should hear their Exceptions L. C. Baron This Act of Parliament as it has given a Benefit to the Prisoner that he had not before in allowing him a Copy of his Indictment in order to his taking Exceptions to it so it has Restrained him as to the time of making those Exceptions That he shou'd have a time for it there is no Doubt and the time limited for it as this Act says must be before Evidence given because it might well be thought unreasonable that there shou'd be any Quashing of the Indictment at the Prisoner's or his Counsels motion after such time as the King had given any Evidence whatsoever in the Case for that wou'd be a Discovery of the King's Evidence and great Inconveniencies might ensue thereupon but the Question is at what time this is to be done Whether it may be at any time before Evidence given or no it was intended surely that the Motion to Quash the Indictment and taking Exceptions to it should have their proper time as well as effect and that must be before the Tryal but it was not the Intent of the Act to alter the Method of Proceedings formerly used in Criminal Cases for after the Jury is Sworn it is their proper Office to determine the Fact now if before this Act of Parliament as it hath been said it never was allow'd to take any such Exception as this after the Jury sworn but that the Regular time for such Motions is before Plea pleaded or Jury sworn that is before Evidence given as the Act of Parliament directs for it is not said as Mr. Cowper observed that it shou'd be immediately before the Evidence be given I do not suppose this Act alters any thing as to the Method of Proceedings from what it was before but that this Exception now comes improperly after the Jury sworn when it ought to be taken before Plea pleaded at least before the Jury sworn It is a new Act of Parliament and this is within the words of the Act that it is before Evidence given as the Counsel for the Prisoner say the Act directs I take it you have lost the Regular time for making this fort of Exceptions and you would invert the whole Method of Proceedings upon such Tryals as these for to what purpose is it to take Exceptions to quash the Indictment when the Jury are once charged with it If it be an Indictment that ought to be quash'd the Jury ought not to be charged you have had two times and they are both of them elaps'd for this matter that is at the Arraignment and before the Jury sworn yet I would propose it to the King's Councel as my Lord Chief Justice of the Common Pleas has done it being a new Case that it should at this time be consented to that the Exceptions as the Mis-writing Mis-spelling false or improper Latin might be made but that for the future it may be taken notice of that such Exceptions are to be taken before the Jury be sworn Mr. J. Nevile I wou'd begin with the Proposal because I believe I may not be so clear in my Opinion otherwise I must deliver my Thoughts according to my Judgment but I wou'd have the King's Councel consider of the Proposal Mr. Att. Gen. My Lord for us to consent to that in such a Case as this where the Court thinks it not Regular would be pretty hard to desire of us if any thing of advantage should happen on the other side I verily think the Councel for the Prisoner will not be so ready to consent to wave any such advantage nor am I for asking them to do it this Clause goes only to some faults in the Indictment Mis-spelling Mis-writing false and improper Latin that is all that they are Restrain'd from moving in arrest of Judgment any thing else any Uncertainty or other matter that is not comprehended under these Particulars they may take advantage of to move in stay of Judgment after a Verdict this Clause does only abridge them from moving in Arrest of Judgment for Mis-writing Mis-spelling false or improper Latin therefore if your Lordship should
JVNE 8. 1696. I Do Appoint Samuel Heyrick and Isaac Cleave to Print the Tryal of Ambrose Rookwood and that no other Person Presume to Print the same J. HOLT THE Tryals of Charnock King and Keys and likewise of Sir John Friend and Sir William Parkins are all Printed and Sold by Samuel Heyrick and Isaac Cleave THE Arraignment Tryal and Condemnation OF Ambrose Rookwood For the Horrid and Execrable CONSPIRACY TO Assassinate His Sacred Majesty King WILLIAM In Order to a French INVASION of this Kingdom Who upon full Evidence was found Guilty of High Treason before His Majesty's Justices of Oyer and Terminer at Westminster on Tuesday the 21 st of April 1696. and received Sentence the day following And was Executed at Tyburn on the 29 th day of the said Month. In which Tryal is contained All the Learned ARGUMENTS of the King's Council and likewise the Council for the Prisoner upon the New Act of Parliament for Regulating Tryals in Cases of Treason LONDON Printed for Samuel Heyrick at Grays-Inn-Gate Holborn and Isaac Cleave at the Star next Serjeants-Inn-Gate in Chancery-Lane MDCXCVI Die Martis Decimo Quarto Aprilis Anno Regni Regis Willielmi Tertii Octavo Annoque Domini 1696. THE Court being sat at which were present the Lord Chief Justice Holt the Lord Chief Justice Treby Mr. Justice Nevil Mr. Justice Powell and Mr. Justice Eyres the Court proceeded in this manner Cl. of Arr. Cryer Make Proclamation Cryer Oyez Oyez Oyez All manner of Persons that have any thing more to do at this Sessions of Oyer and Terminer holden for the County of Middlesex draw near and give your Attendance God save the King Then the Grand Jury were called over and the appearances mark'd and Witnesses being Sworn in Court to give Evidence to them upon a Bill of Indictment against Alexander Knightley they in a little time after withdrew to hear the Evidence Then the Keeper of Newgate was ordered to bring his Prisoners to the Bar which he did to wit Robert Lowick Ambrose Rookwood and Charles Cranburne Who were there thus Arraigned Cl. of Arr. Robert Lowick hold up thy Hand Which he did Ambrose Rookwook hold up thy Hand Which he did Charles Cranburne hold up thy Hand Which he did You stand Indicted in the County of Middlesex by the Names of Robert Lowick of the Parish of St. Paul Covent-Garden in the County of Middlesex Gentleman Ambrose Rookwood of the same Parish Gentleman and Charles Cranburne of the same Parish and County Yeoman for that you together with one Christopher Knightley of the same Parish and County Gentleman not yet taken not having the fear of God in your hearts nor weighing the Duty of your Allegiance but being moved and seduced by the instigation of the Devil as false Traytors against the most Serene most Illustrious most Clement and most Excellent Prince our Sovereign Lord William the Third by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. your Supreme True Rightful Lawful and Undoubted Lord the cordial Love and true and due Obedience Fidelity and Allegiance which every Subject of our said Lord the King that now is towards him our said Lord the King should bear and of right ought to bear withdrawing and utterly to extinguish intending and contriving and with all your strength resolving designing and conspiring the Government of this Kingdom of England under him our said Sovereign Lord the King that now is of Right duly happily and well established altogether to subvert change and alter as also our said Lord the King to death and final destruction to put and bring and his faithful Subjects and the freemen of this Kingdom of England into intolerable and most Miserable Servitude to Lewis the French King to Subjugate and Inthral the 10th day of February in the Seventh year of the Reign of our said Sovereign Lord the King that now is and divers other days and times as well before as after at the Parish of St. Paul Covent-Garden aforesaid in the County aforesaid falsly maliciously devilishly and traiterously did compass imagine and contrive resolve design and intend our said Lord the King that now is to kill slay and murther and a miserable slaughter among the faithful Subjects of our said Lord the King throughout this whole Kingdom of England to make and cause and the same your most impious wicked and devilish Treasons and Traiterous compassings contrivances and purposes aforesaid to fulfil perfect and bring to effect you the said Robert Lowick Ambrose Rookwood and Charles Cranburne together with the said Christopher Knightley and very many other false Traytors to the Jurors unknown afterwards to wit the same 10th day of February in the year abovesaid at the Parish aforesaid in the County aforesaid and divers other days and times as well before as after there and elsewhere in the same County falsly maliciously advisedly secretly and traiterously and with force and arms did meet together propose treat consult consent and agree him our said Lord the King that now is by lying in wait and guile to Assassinate Kill and Murther and that execrable horrid and detestable Assassination and Killing the sooner to execute and perpetrate afterwards to wit the same day and year and divers other days and times at the Parish aforesaid in the County aforesaid traiterously did treat propose and consult of the ways manner and means and the time and place where when how and in what manner our said Lord the King so by lying in wait the more easily you might Kill and did consent agree and assent that forty Horsemen of thereabouts whereof the said Christopher Knightley you the said Robert Lowick Ambrose Rookwood and Charles Cranburne should be four and every one of you traiterously took upon himself to be one with Guns Muskets and Pistols charged with Gunpowder and leaden Bullets and with Swords Rapiers and other Weapons being Armed should lie in wait and lie in Ambush our said Lord the King in his Coach being when he should go abroad to Invade and that a certain and competent number of those men so Armed should set upon the Guards of our said Lord the King then attending him and being with him and should fight with them and overcome them whilst others of the same men so Armed our said Lord the King should Assassinate Slay Kill and Murther and you the said Robert Lowick Ambrose Rookwood and Charles Cranburne together with the said Christopher Knightley the Treason and all the Trayterous Intentions Designs and Contrivances aforesaid to execute perform fulfil and bring to effect afterwards to wit the aforesaid Tenth day of February in the Seventh year abovesaid at the Parish aforesaid in the County aforesaid divers Horses and very many Arms Guns Pistols Swords Rapiers and other Weapons Ammunition and Warlike things and Military Instruments falsly maliciously secretly and traiterously did obtain buy gather together and procure and cause to be bought obtained
Court sat about Eight a Clock at which were present a great Number of Noblemen and Persons of Quality who were in the Commission and Seven of the Judges to wit the Lord Chief Justice Holt the Lord Chief Justice Treby the Lord Chief Baron Ward Mr. Justice Nevile Mr. Justice Powel Mr. Justice Eyres and Mr. Baron Powis Cl. of Ar. Cryer Make Proclamation Cryer O yes O yes O yes All manner of Persons that have any thing more to do at this Sessions of Oyer and Terminer Adjourned over to this Day draw near and give your attendance And God save the King Cl. of Ar. Cryer Make Proclamation Cryer O yes Sheriffs for the County of Middlesex return the Precepts to you directed upon Pain and Peril will fall thereon The Under Sheriff returned the Precepts Cl. of Ar. Mr. Baker pray Who do you intend to begin with Mr. Baker With Ambrose Rookwood Cl. of Ar. Cryer Make Proclamation Cryer O yes You good Men of the County of Middlesex Summoned to appear here this Day to try between our Sovereign Lord the King and the Prisoners that are and shall be at the Bar Answer to your Names as you shall be called every one at the first Call and save your Issues The whole Pannel was called over and the Appearances of those that answered Recorded and the Defaulters were again called over Cl. of Ar. Keeper of Newgate Set Ambrose Rookwood to the Bar. Which was done You the Prisoner at the Bar Ambrose Rookwood those Men that you shall hear called and Personally appear are to pass between our Sovereign Lord the King and you upon Tryal of your Life and Death if therefore you will Challenge them or any of them your time is to speak unto them as they come to the Book to be Sworn before they be Sworn Sir B. Shower If your Lordship pleases We have a Doubt or two to propose to your Lordship in respect of the Tryal this Day But before I offer it we beg your Favour for a Word in behalf of our selves My Lord We are Assigned of Council in pursuance of an Act of Parliament and we hope that nothing which we shall say in Defence of our Clients shall be imputed to our selves I thought it would have been a Reflection upon the Government and your Lordships Justice if being Assigned we should have refused to appear 't would have been a Publication to the World That we distrusted your Candour towards us in our future Practise upon other Occasions But my Lord there can be no reason for such a Fear I am sure I have none for we must acknowledge we who have been Practisers at this Bar especially that there was never a Reign or Government within the memory of Man wherein such Indulgence such easiness of Temper hath been shewn from the Court to the Council as there always hath been Never was there such freedom and liberty of Debate and Argument allowed to the Bar and we thank your Lordship for the same My Lord We come not here to countenance the Practises for which the Prisoner stands Accused nor the Principles upon which such Practises may be presumed to be founded for we know of none either Religious or Civil that can Warrant or Excuse them But the Act of Parliament having warranted the appearing of Councel for Persons Accused to make Defence for them we hope your Lordship will give us leave to make what Objections we can on their behalf L. C. J. Holt. Look ye Sir B. Shower go on with your Objections let us hear what you have to say Sir B. Shower My Lord It appears to be a Doubt to us upon this Act of Parliament whether this Cause can be tryed this Day And if it be a Doubt we hope though it should not have that weight with the Court that we apprehend it has yet your Lordship will excuse us and settle it according to your Judgment The Act requires That all that shall be Accused and Indicted for High-Treason whereby any Corruption of Blood may or shall be made to any such Offender or Offenders or to any the Heir or Heirs of any such Offender or Offenders or for Misprision of such Treason shall have a true Copy of the whole Indictment and afterwards shall have Copies of the Pannel of the Jurors who are to try them duely Returned by the Sheriff and delivered unto them And every of them so Accused and Indicted respectively two Days at the least before he or they shall be Tryed for the same Now if your Lordship will please to cast your Eye upon this Venire Facias and it will appear to be Returned but this Day and that is not according to the intent of this Law And it is impossible then if it be as we apprehend it and put it that this Tryal should go on at this time and that this Construction should be so as we say not only the Words but as we take it the Intent and Meaning of the Act of Parliament too are for us that there ought to have been a Copy of the Pannel after the Return two Days before the Tryal For in the first place My Lord the Words are plain It must be a Copy of the Pannel duely Returned by the Sheriff Now though it be a Copy of the Array of the Pannel which we have delivered to us ye it is not a Copy of the Pannel of the Jurors Returned for it is no Return till it come into Court And the King's Councel must admit that in the Case of all Writs Returnable it cannot be said that there is a Return where there is a Writing upon the back or a Label annexed till it be actually Returned into Court As in the Case of a Fieri Facias or a Mandamus an Action for a false Return cannot lye till the Writ be actually Returned For such Action must be brought into the County of Middlesex where the Court resides before whom the Return is made and not in the County where the Sheriff lived that made the Return for it is not a Return till filed in Court Now here the Words of the Act are He shall have a Copy of the Pannel of the Jurors who are to try him duely Returned by the Sheriff two Days before the Tryal Now we humbly insist that the Words duely Returned must be antecedent to the having the Copy or else he cannot be said to have a Copy of the Pannel duely Returned The Act of Parliament does not say which shall be duely Returned and therefore there does arise a Doubt whether your Lordship will not direct us to have a Copy after the Return made which is but this Day Mr. Phipps If your Lordship pleases to spare me a Word of the same side We take it that by this Act of Parliament the Jury must be duly returned before the Pannel is delivered to us Now the Return is the Answer that is Indorsed upon the Writ with the Pannel annexed and delivered into Court
do it before Evidence given now I would fain know if we could not before this Act move in Arrest of Judgment for mis-spelling or false Latin or improper Latin Mr. Att. Gen. You might no doubt of it Mr. Phipps They say we might why then if we could have a time to move it after the Verdict and that time is a bridg'd by the Act of Parliament which directs that it shall be before Evidence given in open Court sure we may take any time before the Evidence given and shall not be restrain'd further than the Letter of the Law has restrain'd us for this Act was intended for the benefit of the Subject and ought to be construed as much in their favour as the Letter of it will permit Mr. Att. Gen. No doubt of it it is to be done before evidence given but the question is at what time it must be before the Evidence given whether it must not be at such time as by the course of practice and usage of the Law it should have been done before if you will satisfie my Lord and the Court that ever such an Exception was taken or an Indictment quash'd between the swearing of the Jury and the giving the Evidence ye say something but I believe not one instance of that Nature can be given and therefore it is very irregular for them to do it L.C.J. Holt. They don't pretend to it for ought I hear for I would put them upon it to show me whether they could do it before Sir B. Shower I don't question my Lord but it might be with submission Mr. Conyers Did you ever know it before that any one undertook to inform the Court as amicus curiae but it was to prevent a wrong Judgment and for that you have your proper time either before Plea pleaded by motion to quash the Indictment or after Verdict to arrest a Judgment this Act of Parliament has restrain'd you in particular instances that are mention'd from doing it after Verdict in Arrest of Judgment but having given you a Copy of the Indictment before you plead you have had a proper time to make these Exceptions and if you have laps'd your time you come too late to do it now for sure nobody ever made a Motion to quash an Indictment after Issue joyn'd and the Jury sworn Mr. Soll. Gen. My Lord I would only mention one Case and that was of Sir Richard Mansell upon an Indictment of Murder for killing the Apothecary in Holbourn I did my self move to quash the Indictment because it was not exprest in what year of the King the Fact was done but the Court was of opinion we cou'd not move to quash an Indictment for that or any such notorious crime till after the Fact determined L. C. J. Holt. No we were always of that opinion never to allow Motions to quash Indictments for Perjury Murder or any great offence but it must be moved in Arrest of Judgment afterwards Mr. Cowper My Lord these Gentlemen seem to beg the question upon this Act of Parliament as if it had appointed this to be the time of making Exceptions to the Indictment the Act of Parliament does not say you shall make your Exception immediately before the Evidence given in open Court as if it had pointed out and directed to them that particular time that then they should take their Exception and no other time the Act has only set a bound that they shall not do it afterwards but as to the particular time it is left as it was before to the regular Course and Method of Proceedings which is before Plea pleaded Mr. Phipps My Lord they do not answer my Objection it is it seems a Restriction of a Liberty that we had before of moving in Arrest of Judgment if so we ought not to be restrained further than we are by the words of the Act of Parliament which say before Evidence given that is at any time before Evidence given as well after as before Plea pleaded Sir B. Shower I would ask these Gentlemen whether the Law intended that we should have no advantage of excepting against false spelling and improper Latin Mr. Conyers Yes they did but that you should do in your proper time Sir B. Shower Then the time for doing it must be that which the words of the Law say before the Evidence given in open Court and that 's now Mr. Conyers No you might have come at the Day of Arraignment and have taken the advantage of it then before you had pleaded L.C.J. Holt. Ye have had my opinion what I think of it my Lords and Brothers I suppose will tell you theirs L.C.J. Treby My Lord Chief Justice has delivered his opinion in this matter and he thinks fit that we should deliver ours I think this motion of the Prisoner's Councel to quash this Indictment after the Jury sworn is irregular and quite out of season the intent of this Clause in this Act of Parliament certainly was not in favour of the Prisoner it abridgeth him of a Liberty he had before but gives him nothing for the Law-makers did think they had given the Prisoner an extraordinary Favour in the foregoing part of the Act in giving him a Copy of the Indictment five Days before he should plead and a Copy of the Pannel two Days before he should be tryed and allowing him Councel and all these advantages were to enable him to quash the Indictment or the Process returned for the Clause extends to both the words are That no Indictment nor Process or Return thereupon shall be quash'd on the Motion of the Prisoner or his Cuncel for mis-writing mis-spelling false or improper Latin unless Exception concerning the same be taken and made in the respective Court where such Tryal shall be by the Prisoner or his Council assignâ—d before any Evidence given in open Court upon such Indictment nor shall any such mis-writing c. after Conviction be any Cause to stay Judgment therefore they made this extraordinary Provision to restrain the Prisoner in part by this Clause as much as to say you have an advantage of the Copy of the Indictment and you may make use of that to quash it by Motion if you think fit as you may also the Process but it shall be before Evidence given 'T is true those are the words but the using that term viz. quashing such Indictment or Process shows it must be done in such a way and time as is proper for quashing and the very words are that it shall be upon Motion Now we are to expound those words And I say a Motion to quash an Indictment must be understood a Motion in the proper Season which I think is before Plea pleaded but at least before the Jury is sworn There were three times when the Prisoner might have had the advantage of a fault in the Indictment before this Act 1. By Motion to quash it before Plea pleaded 2. Then afterwards in Arrest of Judgment
that cannot be a Jury-man it is true the Credit of such a Witness is left to the Jury but it is no Objection against his being a Legal Witness and it is a very strange Argument to me that because he was pardon'd by the King if that should be deficient that therefore the Act of Pardon should have no effect Truly that is to say that the King's Pardon works so as to have nothing left for the Parliament Pardon to work upon and certainly it sets him so right that to all intents and purposes he is as good a Witness as ever he was and if any thing remained to be done the Act of Parliament has done it and supplied the defect but I think the King's Pardon is sufficient Mr. Attor Gen. My Lord I suppose they do not insist upon it as thinking there is any great weight in it but only for Objection sake but we hope that notwithstanding this Objection Mr. Porter shall be sworn Mr. Soll. Gen. My Lord they take this Exception at an improper time for they speak to his Credibility L. C. J. Holt. No they except to his being a Witness Mr. Soll. Gen. If so your Lordship remembers a Case that was before your Lordship not long since but in Easter Term last when one was try'd at this Bar for Treason and Aaron Smith was produced as a Witness and the Prisoner took exception against him as no good Witness because he had stood in the Pillory and your Lordship and the Court did say that the Act of Pardon did restore him to all intents and purposes ad liberum Legem Mr. Conyers In the Case of the Earl of Castlemaine both the Courts of King's-Bench and Common Pleas held Dangerfield a legal Witness though burnt in the hand for Felony and so was the Opinion of Rolls in Stiles Reports 388. one that hath been burnt in the hand for Felony may notwithstanding be a Witness Sir B. Shower My Lord in answer to that Case that was put that after the King's Pardon for one convicted of Felony another Man has not the Liberty to call him Thief that was an Objection in my Lord Castlemaine's Case that may stand as good and our Notion that we contend for be good top he cannot be impeach'd or have Guilt imputed to him when once the King has forgiven him and yet that may not restore him to his intire Credit as was my Lord Chief Justice Scroggs's Distinction in the Case of Dangerfield and as to the Case of Aaron Smith that was very different the reason in that Case was because the Crime for which Mr. Smith was Indicted did not import any such scandalous Offence for which his Credit could be impeach'd L. C. J. Holt. No no we did not meddle with that we went upon the Pardon Sir B. Shower But in that Case they did not insist upon it that he had a Pardon antecedant to the Act of Pardon so that he was subjectum Capax for the Act to work upon he was an Offender that needed a Pardon whereas Mr. Porter being pardon'd before could not be an Offender needing a Pardon and consequently not within the first words of the Act of Indempnity because he was pardon'd by the King before but he was not by that Pardon say we restor'd to his Credit to make him a good Witness and the Act of Parliament did not affect him he being not subjectum Materiae as not being an Offender Mr. Phipps As to Mr. Sollicitor's Case of Aaron Smith we agree the Act of Parliament did restore him because he never was pardon'd before by the King so there remained an Offence for the Parliament Pardon to work upon L. C. J. Holt. Do you agree that then you may agree the other for the Act of Parliament pardons none but those the King can Pardon generally Mr. Phipps It true my Lord but we say that an Act of Parliament Pardon removes those disabilities which the King's Pardon does not for every one is in Law a Party to an Act of Parliament and therefore no Person shall be permitted to alledge in disability of another any Crime which he himself hath pardon'd for that is to aver against his own Act but 't is otherwise in the Case of the King's Pardon L. C. J. Holt. Why the Very Parliament Pardon comes from the King the King has a full Power of Pardoning and where he does Pardon under the Great Seal it has the full effect of a Parliament Pardon A Pardon before Attainder prevents all corruption of Blood so that tho' a Man forfeits his Goods by Conviction yet after a Pardon he is capable of having new Goods and shall hold them without any forfeiture whatsoever for the Pardon restores him to his former Capacity and prevents any further forfeiture Indeed if he had been Attainted whereby his Blood was corrupted no Pardon whether it were by the King or by the Parliament could purge his Blood without Reversal of the Attainder by Writ of Error or Act of Parliament or express words in the Act to restore Blood but either Pardon makes him a new Creature gives him new Capacity and makes him to all intents and purposes from the time of the Pardon to be probus legalis Homo and a good Witness Indeed this Crime might be objected against his Credit but it is not to be urged against the sufficiency of his Evidence that is his being a Witness Mr. Attor Gen. My Lord we desire he may be sworn which was done Mr. Soll. Gen. Now Mr. Porter do you give my Lord and the Jury an Account what you know of this intended Assassination how it came to your Knowledge and what share the Prisoner at the Bar had in it Capt. Porter My Lord the first Account that I had of this Assassination was from Mr. Charnock who brought to me Sir George Berclay and Major Holmes to my Lodgings in Northfolk-street where I was sick of the Gout Sir George Berclay did not then particularly acquaint me with the Business but said he would leave it to Mr. Charnock to tell me what it was L. C. J. Holt. Who told you so Capt. Porter Sir George Berclay and after that we had several Meetings at which the Prisoner at the Bar was present particularly at the Globe-Tavern in Hatton-Garden where it was consulted of the best ways and means to Assassinate the King as he came from Richmond some were of Opinion that it was best to be done on the other side of the Water others were of Opinion that it should be done on this side by a Party of Men on Horse-back upon this Difference of Opinion there were Persons appointed to go and view both places I was appointed for one to go with Captain Knightley and Mr. King went along with me and we did view the Ground on both sides and when we came back we gave an Account to Sir George Berclay and those that sent us and upon our Report Sir George Berclay's mind was
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