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
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
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
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
Indictment I think I need not trouble your Lordship any further in this matter because this Objection was foreseen and has been already considered of by the Court upon the Prisoners arraignment Sir B. Shower My Lord in answer to what Mr. Sollicitor has said that there is as much reason to expect that the Copy of the Indictment should not be delivered till after Plea pleaded as that the Pannel should not be delivered till after the Jury return'd because in the case of the Indictment it is said so many days before the Trial and the Trial cannot be till Issue joyn'd there can be no weight in that Objection at all for the words of the Act are quite differently penned in the case of the Indictment from what they are in the case of the Pannel for tho it be said it should be done 5 days before the Trial yet it is added in order to the advising with Councel how to plead which must be before Plea pleaded and therefore it must be absolutely necessary to be done before the arraignment My Lord I have proposed my doubt it may have consequences on the one side and the other we submit intirely unto your Lordships Judgment it is a new Law and never has received any opinion the words of it are duly return'd by the Sheriff and the Question is whether a Copy of the Pannel upon the Array before it be return'd be a Copy of the Pannel duly return'd tho the same Pannel be afterwards duly returned Mr. Phipps My Lord Mr. Attorny General owns that the Pannel after it is arrayed may be amended and altered by the Sheriff and it was never intended by this Act of Parliament that any Copy of the Pannel should be delivered to the Prisoner but of those Men that were really returned so that we take it we ought to have it two days after the Return and before the Trial for certainly it must be a Copy of the Men returned which if the Sheriff may alter at any time before the Return the Intent of the Act of Parliament can never be answered by any Copy but what is a true Copy of the Return Mr. Conyers would answer the Objection that I made about a Copy of the Indictment by this that it is not an Indictment till it be found by the Jury but I think it is no Answer to our Objection at all tho it be but a Copy of the Bill intended to be presented to the Grand Jury yet if the Grand Jury afterwards find it is as true a Copy of the Indictment as this is a Copy of the Jury intended to be Returned and afterwards Returned As to what they say that this will Introduce a new method of Tryal contrary to all form or proceedings that can be no Objection neither for if it be so we can't tell how to help it the Parliament have thought fit to have it so and we must submit to take it as the Law has made it If there be a necessity for a Habeas Corpora upon the provision made in this Act so it must be for we must take the Law as it is We submit our Objection to your Lordship we think we have not had the benefit of this Law Mr. Cowper Surely my Lord what Mr. Phipps has now said has no weight in it that because the Sheriff had it in his power to alter the Pannel before it was Returned that therefore this is not now a true Copy of the Pannel of the Jurors who are to try the Prisoner duly returned by the Sheriff which are the words in the Act. It is true if the Sheriff had in fact altered the Pannel from what it was and return'd it so altered into Court no doubt of it the Prisoner would be very well intitled to make this Objection that he had not a Copy of the Pannel or the Names of the Jurors that were summoned to try him but now we can aver that we have pursued this Act of Parliament literally for in answer to their Objection we may ask this Question of them upon the words of the Act Have you not had a true Copy of the Names of those that are to try you and are duly returned by the Sheriff for that purpose and was not that Copy delivered unto you above 2 days ago They cannot say they have not had it so and if they cannot say so then both the Words and Meaning of the Act of Parliament are in every respect answered if when the Jury come to be called the Prisoner finds the Pannel to be altered he has reason to object and will have the benefit of the Objection that he has not that advantage which the Law intended him but till that prove to be the Fact we think here is a full Compliance with this Law Mr. Soll. Gen. Sir Barth Showers mistakes my Objections about the Copy of the Indictment for we say if the intent of the Act of Parliament be complied with it is sufficient especially where the words are any way doubtful according to the Words of this Act of Parliament a Copy of the Indictment need to be delivered but 5 days before the Trial but it appearing that the intention of these Law-makers was that he should have a Copy of the Indictment to enable him to plead to it if he had cause therefore tho the words be before the Trial we have taken it that he should have a Copy 5 days before his Arraignment and so we have complied with the meaning of the Law in that point as we have also in this which was we take it only to enable the Prisoner to make his Challenges and if that be done 2 days before his Trial with submission it fully answers this Law L. C. J Holt. Have you done Gentlemen Counc Yes my Lord. L. C. J. Holt. Then look you Sir B. Shower as to this point that you now insist upon we have had it under consideration heretofore we were here this day seven-night and then we did consider in what method we should proceed so that the Prisoner might have the benefit intended him by this Act of Parliament the Act of Parliament does design in the first place that every Prisoner that is to be tried for High Treason should have a Copy of his Indictment at least 5 days before the Trial that I think was all that the makers of this Act of Parliament intended at the first but then there being subsequent words which shew the reason why they gave him the Copy so long before the Tryal which is that he might advise with his Councel what to plead these words we conceive has given the Prisoner a further time than what was originally intended therefore we have thought it necessary that the Prisoner should have a Copy of his Indictment 5 days before he be arraigned whâ—ch is 5 days before he was put to plead and your Client the Prisoner at the Bar has had the benefit of this Act in that respect before we
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
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
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