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
Cl. of Arr. Arthur Baily Rookwood I except not against him He was sworn Cl. of Arr. John Webber Rookwood I do not except against him He was sworn Cl. of Arr. Thomas Glover Rookwood I challenge him Cl. of Arr. Dormer Sheppard Rookwood I challenge him Cl. of Arr. George Tredway Rookwood I do not except against him He was sworn Cl. of Arr. Matthew Bateman Rookwood I challenge him Cl. of Arr. Timothy Thornbury Rookwood I challenge him Cl. of Arr. James Partherich Rookwood I challenge him Cl. of Arr. Thomas Freeman Rookwood I challenge him Cl. of Arr. Joseph Blithit Rookwood I challenge him Cl. of Arr. Timothy Lennoy Rookwood I have nothing to say against him He was Sworn Cl. of Arr. John Harris Rookwood I do not except against him He was Sworn Cl. of Arr. John Billers Rookwood I challenge him Cl. of Arr. Richard Bourne Rookwood I challenge him Cl. of Arr. George Carter Rookwood I do not except against him He was Sworn Cl. of Arr. Francis Chapman Rookwood I challenge him Cl. of Arr. Alexander Forth Rookwood I challenge him Cl. of Arr. Thomas Playsted Rookwood I challenge him Cl. of Arr. William Etley Rookwood I do not except against him He was Sworn Cl. of Arr. John Marsh Rookwood I have nothing to say against him He was Sworn Cl. of Arr. Samuel Hooper He did not answer L. C. J. Holt. Did Mr. Hooper appear Cl. of Arr. Yes my Lord he is mark'd as appearing L. C.J Holt. Then you ought to call him again and set a Fine upon his Head Cl. of Arr. Cryer call Samuel Hooper Cryer Samuel Hooper come into Court and give your attendance upon pain of Ten Pound for the Court has Recorded your Appearance Cl. of Arr. John Hall Rookwood I challenge him Cl. of Arr. Nicholas Roberts Rookwood I challenge him Cl. of Ar. William Partridge Rookwood I challenge him Sir B. Shower How many has he challenged Mr. Hardisty Cl. of Arr. I will tell you Sir Bartholomew he has challenged 24. Sir B. Shower Well then go on Sir Cl. of Arr. Peter Lavâ—ane Rookwood I challenge him Cl. of Arr. Thomas Moody Rookwood I challenge him Cl. of Arr. Richard Bealing Rookwood I challenge him Cl. of Arr. Thomas Evans Rookwood I challenge him Cl. of Arr. Thomas Rammage Rookwood I challenge him Cl. of Arr. Edward Townesend Rookwood I challenge them Cl. of Arr. William Gunston Rookwood I challenge him Cl. of Arr. Samuel Freebody Rookwood I do not except against him He was Sworn Cl. of Arr. Philip Wightman Rookwood I challenge him Cl. of Arr. There are now Thirty two challeng'd John Wyberd Rookwood I challenge him Cl. of Arr. William Strowd Rookwood I challenge him Cl. of Arr. Daniel Byfeild Rookwood I do not except against him He was Sworn Cl. of Arr. Benjamine Noble Rookwood I have nothing to say against him He was Sworn Cl. of Arr. Cryer count them Samuel Powel Cryer One c. Cl. of Arr. Benjamine Noble Cryer Twelve Good Men and True stand together and hear your Evidence The Names of the Twelve Sworn were these Samuel Powell Arthur Bailey John Webber George Tredway Timothy Lennoy John Harris George Carter William Atley John Marsh Samuel Freebody Daniel Byfeild and Benjamine Noble L. C. J. Holt. Look ye Mr. Phipps your Objection upon the Indictment slipt me and therefore I would speak to it now You said it might be as well a Copy of the Indictment before it be Found as well as this a Copy of the Pannel before it be Returned Now that can't be for an Indictment is not an Indictment till it be found it is only a Writing prepared for the ease of the Jury and for Expedition it is nothing till it is found for the Jury make it an Indictment by finding it they may alter what they please or refuse it absolutely And if the Jury upon examining the Witnesses would only present a Matter of Fact with Time and Place the Court might cause it to be drawn up into Form without carrying it to the Jury Again There needs no Billa Vera for that is only the Jury's owning that which the Court has prepared and drawn up for them but a Pannel is a Pannel when it is array'd before it be returned and a Copy of the Pannel given before it be returned is a Copy of the Pannel returned if it be afterwards returned as it must Sir B. Shower But my Lord that Notion strengthens our Objection that we last made that makes it necessary that we should have a Copy of the Captiâ—n as well as the other part to make it a true Copy of the whole Indictment L C. J. Holt. That 's another thing we will talk of that another time but I speak of this only as to his Objection which slipt my memory because I would have nothing remain unanswered Mr. Phipps My Lord when the Bill is found the Copy that we delivered before is as much a true Copy of the Indictment as our Copy of the Pannel is a Copy of the Jury returned L. C. J. Holt. A Pannell is a Pannell when it is arrayed but a Bill is not an Indictment till it be found one cannot say a man in dictatus exsistit till it be found all that we say of it before it be found that that there was quedam Billa preferred to the Grand Jury and if the Jury bring it in Ignoramus whereby they disown the Presentment it is cancelled and there is no Record of it nor nothing only a Memorandum in the Clerks Book perhaps that such a thing was Well go on Cl. of Arr. Cryer make Proclamation Cryer O yes If any one can inform my Lords the King's Justices of Oyer and Terminer the King's Serjeant the King's Attorney General before this Inquest be taken of the High Treason whereof Ambrose Rookwood the Prisoner at the Bar stands indicted let them come forth and they shall be heard for now the Prisoner stands at the Bar upon his deliverance and all others that are bound by recognizance to give Evidence against the Prisoner at the Bar let them come forth and give their Evidence or else they forfeit their Recognizance Cl. of Arr. Ambrose Rookwood hold up thy hand Which he did You that are sworn look upon the Prisoner and hearken to his Cause he stands indicted by the Name of Ambrose Rookwood of the Parish of St. Paul Covent-Garden in the County of Middlesex Gent. For that he together with Christopher Knightley not yet taken Robert Lowick and Charles Cranburn and divers others false Traytors c. prout in the Indictment mutatis mutandis and against the form of the Statute in that case made and provided upon this Indictment he hath been arraigned and upon his Arraignment he hath pleaded not guilty and for his Tryal he hath put himself upon God and his Country and in which Country you are your Charge is to inquire whether he be guilty of the High Treason whereof he stands indicted or
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
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
and pleaded the Kings Pardon in Court Mr. Att. Gen. Pray Read what was done upon it Cl. of the Crown Here 's the Juries Verdict Quod praedictus Georgius Porter est Culpabilis de felonica Interfectione praedicti Jacobi Hacket non Cul. As to the Murder Here is a Curia advisare vult and I suppose there was a Pardon afterwards Mr. J. Powel Was he not Burnt in the Hand Cap. Porter No I pleaded the Kings Pardon L. C. J. Holt. And there are several Acts of Pardon since Mr. Cowper See the time when the Indictment was Cl. of Ar. It is the 8 th of December in the 36 Year of King Charles the Second Sir B. Shower We agree that he did plead the King's Pardon and then the Case is no more than this a Man is Convicted of Man slaughter and the King pardons him he still remains unqualified to be a Witness we say this has been the Case that has been much debated in Westminster-Hall and upon Debate it has been Resoved Mr. J. Powel It has been so but always against you Sir B. Shower It was in the Case of my Lord Castlemaine at this Barr one of my Lords the Judges went to the Court of Common Pleas to ask their Opinion and these Cases were put in case a Man be Out-law'd of Felony and pardon'd in case a Man be Convicted of Felony and had the Benefit of his Clergy and in case a Man were Convicted and not Attainted but pardon'd upon the second Case they were of Opinion that the receiving the Punishment of Burning in the hand had purg'd the very Guilt and did set him upright by the Statute of the 15 th of Queen Elizabeth they thought it did operate to that purpose but in the case of a Pardon of a Man Attainted or Convicted it was agreed he was not qualified to be a Witness and Dangerfield against whom the Objection was made being burnt in the hand was received to be a Witness and it was only made use of against him to take off his Credit The Record of that Case is in this Court and I look'd upon the Print of the Tryal this day We say that there is a Case in first Brownlow 47. a Man attainted of Felony cannot be of an Inquest tho' pardon'd and we think he that cannot be a Jury-man sure cannot be a Witness there is the same Exception to his being a Witness as there is in the Case of a Jury-man for the one ought to appear as free and stands as clear and unsuspected in respect of his Probity and Verity as the other as the one is sworn to Try and Determine upon his Oath so the other is sworn and his Oath is to Sway and Determine the Jury and in consequence it is all one and upon these Reasons we hope he is not a good Witness L. C. J. Holt. Where is that Case in Brownlow Sir B. Shower It is first Brownlow 47. and then there is 11 H. IV. 41.2 Bulst 154. there my Lord Cook says if a Man be convicted of Felony and pardon'd he cannot be a Jury-man for though the Punishment is pardon'd the Guilt remains so that he is not probus legalis homo and every particular Person has an Interest in it that they have free and clear Persons to be Jury-men and Witnesses Mr. Phipps My Lord that is the Distinction we go upon which was taken in Dangerfield's Case upon the Tryal of my Lord Castlemaine where the whole Court were of Opinion that a Pardon from the King only would not make him a good Witness but if he were burnt in the hand that by the Statute of decimo octavo Elizabethae amounted to a Statute Pardon and set him right to all intents and purposes and there they did take notice of that Book that Sir Bartholomew Shower cited of 11 of H. IV. that a Man attainted could not be a Jury-man tho' pardoned by the King it was objected he might be a Witness but Mr. Justice Jones said it was the same reason if he be not fit for a Jury-man he is not fit for a Witness they ought to be both probi legales Homines thus the Case stood there and that other Book of Bulstrode is the same it was in the Case of a prohibition for a Modus Decimandi where the Suggestion is to be proved by two Witnesses it was objected he had not proved it by two Witnesses because they were both attainted of Felony and tho' they were pardoned yet that did not make them good Witnesses in the Opinion of the Court. L. C. J. Holt. This is quite another Case it does not come up to your point here is no Attainder and here is Pardon upon Pardon by Act of Parliament Mr. Phipps As to that we think the Parliament Pardon is out of the Case for if the Pardon from the King be a good Pardon there is no Guilt for the Act of Pardon to work upon Sir B. Shower My Lord this we think to be a good Distinction as to that matter a Man that is actually pardon'd the Punishment by the King's Pardon and afterwards an Act of Pardon comes and Pardons all Offences that we say does nothing for he he is not a Subject of Pardon for he was discharged of his Punishment before Mr. Attor Gen. Sure these Gentlemen are not in earnest when they make this Objection Sir B. Shower When the King has once pardon'd him he is not an Offender within the meaning of the Act of Parliament and therefore the Act works nothing as to him and so he stands as much disabled from being a Witness as he was before Mr. J. Powell In the Case of Cutington in Hobbard there it is said the Pardon takes away tam reatem quam poenam c. an Action being brought for calling a Man Thief who had been Indicted for Felony and convicted and pardon'd the Court adjudged that he ought not to be call'd so for he was no Thief for the Pardon had wash'd him intirely clean and he was discharged both of the Guilt and the Punishment and all the consequences of it L. C. J. Holt. Those Cases that have been put are no Authorities at all in this Matter for where there is a Conviction of Man-slaughter and the Party is pardon'd we think that Pardon of the King works in a way of Discharge as much as the Burning in the hand I take it it is the same thing they admit that will Discharge him to all Intents and Purposes and so we think does this as effectually for having his Clergy and being Burnt in the hand works by way of Statute Pardon for the Case of a Jury-man I take it not to be the same with this Case but yet even in that Case I do not think that the Party convicted after the King hath pardon'd him is disabled from being of a Jury but supposing that to be so yet there are many Cases wherein a Man may be a Witness