Keeper. My lord, we have no instruments here to do it just now.

Cl. of Ar. You may send to the Gate-house, and borrow instruments.

Just. Powell. It should be done, indeed; they ought to plead at ease.

L. C. J. Well, go on, sir Bartholomew Shower.

Att. Gen. My lord, before sir Bartholomew Shower enter upon his exceptions, unless those exceptions of his are some of the particulars mentioned in this act, he must not do it now, after plea pleaded, before the trial; but he must do it in arrest of judgment.

L. C. J. Treby. It is true, regularly; but let him use his own judgment.

L. C. J. It is very true; the course has not been to allow them to move to quash an indictment for treason, or felony ; but it may be done. Att. Gen. Sure, it must be only for such things as they cannot take advantage of in arrest in judgment after the verdict.

L., C. J. It has not been the course, but it may be done.

Att. Gen. Not where there is an issue joined, and a jury returned to try that issue; I believe that never was done, nor attempted.

L. C. J. Treby. If there were any prejudice to the king by it, it were not fit for us to alter the course; but let us hear what his exceptions

are.

Sir B. Shower. I have several exceptions; five at least; one of them is within the very words of the act, that is, improper Latin; I am sure some of it is so.

L. C. J. Can any man imagine this to be the French king?

Sir B. Shower. My lord, your lordship is not to imagine one way or other.

Mr. Cowper. In the strictest sense and grammar in the world, it must mean king William, and no other. We do not need any imagination, when in the strictest construction it is plain who it refers to.

Sir B. Shower. I am sure no grammar can make it good; nothing but a supposition can help it.

Mr. Cowper. When it is said Dictus Dominus Rex,' if sir Bartholomew Shower can find out another Dominus Rex' in the indictment, then he may make something of his objection; but the Dominus' is only applied to our own king throughout.

L. C. J. Treby. Besides, as to the rule that sir Bartholomew Shower mentions, it is that "ad_proximum Antecedens fiat relatio nisi im'pediat Sentencia.' That is the restriction of the rule, it must relate to the next antecedent, unless the sense would be prejudiced; but here if this construction should be, it would make this clause to be no better than nonsense, viz. That the subjects and freemen of this realm were to be brought into intolerable slavery to Lewis the French king, such a day in the seventh year of the reign of our lord the French king.

Sir B. Shower. We say it is little better than nonsense; I am sure it is loose, and uncertain, and not grammar, but carries a new form with it.

L. C. J. Well, let's hear what that is. Sir B. Shower. It says, anno regni dicti ⚫ domini regis nunc septimo,' and Lewis is the last king mentioned before; and so here is no year of the king of England mentioned. It is a certain rule, that relatives must refer to the L. C. J. No, it is as well as it can be. last antecedent; and that rule holds always, Sir B. Shower. Then, my lord, there is anunless there be words that accompany the re-other exception; it is said, Diversis Diebus et lative, which undeniably shew to what it Vicibus tam antea quam postea;' and then refers. afterwards it says, postea scilicet eodem Decimo Die Februarii;' that is repugnant; it is as much as to say, That upon the 10th of February, and two days afterwards (to wit) the said 10th day of February; that is, after two days after the 10th of February, viz. upon the same tenth day.

we say this indictment of High-Treason being against a subject born, ought to have had the words in it. Contra supremum naturalem Li'geum Dominum suum;' according to Calvin's Case in the 7th Report, fol. septimo.

L. C. J. It is Contra Ligeantiæ suæ Debitum,' is it not?

it would be in this case, as much as if the word Proditorie' had been left out; or as if in a case of felony and burglary, the words' Felonice' and Burglariter' had been left out.

Mr. Phipps. My lord, we take the practice and precedents to be the rule of law in the case; and I have looked over a great many precedents, besides those that sir Bartholomew Shower has cited; and I never saw any one precedent of an indictment of treason against a subject born, without the word Naturalem; aud all the cases cited by sir Bartholomew Shower are full in the point. Counter's case in my

there be an indictment againt a subject born, it must be Contra naturalem Dominum ;' if against an alien, naturalem' must be left out. To say Contra Ligeantiæ suæ Debitum' will not do, it is not enough, for that may be said against an alien, because be owes a local allegiance, though not a natural one. And I take it, upon this difference, this indictment is not good.

Att. Gen. My lord, I do not know how far you will think it proper to enter into this matter before the trial.

L. C. J. Mr. Attorney, I think you had as good speak to it now as at another time; though I must confess it is not so proper in point of practice.

Sir B. Shower. That won't help it, my lord, for all that is applicable to an alien born: and so is the case in my lord Dyer, 144. where it is said, that if an indictment of treason be against an alien, you must not put in the word naturalem; if you do, it will be faulty, because he owes but a local allegiance to the king of Eng-lord Hobbart, 271, where it is said, that if land, and not a natural one. Now we say, there are none of these prisoners but are subjects born, and the constant form in queen Elizabeth's time, and queen Mary's, was to pot in the words Naturalem Dominum,' and they cannot shew me any of those precedents without it. There was occasion in Tucker's case to look into this matter, and search all the precedents. I have looked in my lord Coke's entries, and all the precedents; I have seen my lord of Essex's indictment, and all the others in queen Elizabeth's time, and these of the traitors in the Power-Piot, and those of the Regicides, and Tucker's own indictment itself; all along it is Naturalem Dominum suum;' and the reason for it is, he that is alien born, you never put in Naturalem Dominum suum,' because he owes a double allegiance; one natural, to his own king under whose dominion he was born, and the other local, to the king in whose dominions he resides, for he is bound to observe the laws of the place where he lives: and if he violate them, he does break the allegiance that he owes to the government where he lives, upon account of the protection he enjoys under it. But if he be born a subject of the king of England, he has but one natural liege-lord; and he being an Englishman born, the king stands in that relation to him, as he does to all his native subjects, but not to foreigners; and therefore it was thought requisite to be, and has always been inserted into indictments of treason against subjects born. And, my lord, we think the very resolution of the court, afterwards affirmed in the House of Lords that reversed Tucker's attainder, went upon this opinion, that the law required naturalem Ligeum Dominum' to be put in. There the exception was, that Contra Debitum Ligeantiæ suæ' was omitted: to, which it was objected, that there was Dominum Supremum Naturalem,' which was equivalent; no, it was answered, both were requi site, because every act charged in the indictment ought to be laid against the duty of his allegiance. Now in indictments of treason, there are certain words that are essential, beeanse of their relation between the king and his people. There are certain forms of words, which if the constant practice has been to make use of them, the omission is an error. Those usual forms ought to be observed, and the want of them will be a fatal exception; so we think VOL. XIII.

Att. Gen. Well, my lord, then we will speak to it now. The objection is, that the words naturalem Dominum' is not in the indictment; which they say is contrary to the usual form : as to the precedents, there are a great many where it has been, and I am sure a great many where it has not been; and I am sure for this six, seven, or eight years last past, it has always been omitted: and, with submission to your lordship, it is not at all necessary, if there be words in the indictment which shew, that what he did was against the duty of his allegiance to his lawful and undoubted lord (which are the words in this indictment). It is true, if he be not a subject born, naturalem' cannot be in, because that is contradictory to the obedience which he owes, for it is not a natural obedience that he owes, but a local ; but if a man be a subject born, and commits treason against the allegiance that he owes, that is against his natural allegiance; for whatsoever he does against his allegiance, he does against his natural allegiance, and so there is no need to put in the word naturalem;' because he owes no other allegiance but that; it is sufficient if that be put in which shews its being against his allegiance. If they could shew that a subject born has two allegiances, one that is natural, and the other that is not natural; then if you would prosecute him, you must shew, whether it was against his natural, or against his other allegiance. But when he has none but a natural allegiance, certainly against his allegiance, without putting in natural, will be well enough. It is true, where there is no natural allegiance, it must be wrong if you put it in, because you put in that allegiance which

'qualiter et quomodo Dictum Dominum Regem 'sic ex insidiis facilius Interficerent.'

Sir B. Shower. There is an end of that, now go on.

Att. Gen. No, sir Bartholomew, you mistake, there is no end of it, that is done at the same time with that which follows.

Sir B. Shower. No, it is not the same overtact; but let him go on.

Cl. of Ar. Et Consenserunt Agreaveruut 'et Assenserunt quod quadraginta Homines 'Equestres.'

Sir B. Shower. Well, you need read no fur ther for our objection. We say there wants the word Proditorie:' for there are two overt acts, the one is, that they traitorously did consult of the ways and means how to kill the king, and that overt-act we agree to be well laid: but then it says they consented and agreed that there should be forty men, whereof these four should be four, but does not say they traitorously agreed; are not these distinct acts?

Mr. Conyers. If your lordship pleases, after that they have set forth that this was the particular method and way agreed upon at their consultation, that forty horsemen or thereabouts should go about it, of which the persons indicted were to be four, it goes on, Et "Quilibet eorum proditorie super se Suscepit 'esse unum,' there it is put in, and it appears to be as particular as possible can be.

Mr. Cowper. Sir Bartholomew Shower says, that when we have alleged that they did traitorously treat, propose, and consult of the means and ways of killing the king, there we have done the sentence, and made that one overt act. Now how is the sentence done? The next word is a conjunction copulative, et consenserunt,' &c. And what is the use of a conjunction copulative, but to convey the force of the words in a former sentence to the sentence following, and to prevent the repetition of every word in the subsequent sentence that was in the precedent? But it is plain, they are both one and the same overt-act, and these subsequent words are only an explanation, more particularly of the overt-act set forth in the

Mr. Phipps. Surely, my lord, they are distinet acts; for this part of the indictment upon which sir Bartholomew grounds his objection, is that overt-act of which the list in Mr. Rook-precedent words. wood's Case was urged by the king's counsel, and agreed by the court to be an evidence.

Then the jury against Mr. Rookwood came in, and delivered in their verdict, as it is in his trial, then afterwards the court went on thus:

Att. Gen. My lord, the objection is, that 'Proditorie' is not inserted into that particular clause of the indictment, which shews their particular agreement that there should be forty men, whereof the four named in the indictment were to be four. Now your lordship observes how the indictment runs, it is for compassing and imagining the death and destruction of the king; and it sets forth for this purpose, that to effect this compassing and imagining, they 'Proditorie tractaverunt et consultaverunt de viis mediis et Modis' how they should kill the king. Now that which immediately follows after is, the particular method and means that were agreed upon, that is, that there should be forty men. Now this is the strangest suggestion that ever was, when we have set forth, that traitorously they did so agree of the ways and means, and then set forth the particular means, that here must be proditorie' again to that. This is such a construction as I cannot but admire how it could come into any one's head. It is part of the sentence; for -the other part, as we have laid it, is not complete before: it may be it might be sufficient without setting forth the particular ways and means; but when it is set forth it is part of the sentence, and refers to the first beginning.

L. C. J. Aye, sure it does.

Att. Gen. I cannot tell what they would have, unless they would have us repeat the word 'proditorie' in every line.

Sol Gen. Or before every verb. Sir B. Shower. No; but I think it ought to be repeated at every overt-act.

Sir B. Shower. In answer to that that has been said, if they shew me any precedent, where an indictment has been for high-treason, setting forth several overt-acts, and not the wordproditorie' set to every overt-act, then they answer my objection. If the word" Quod' had come in, that would have made them distinct to be sure; and I think they are as distinct acts now; suppose they had concluded at the end of the word Interficerent,' that had been a good overt-act; I am sure they will agree to that: and if it be so, then the other is a good overt-act too. For it is a distinct thing from that which was a perfect sentence before; and it either requires a likewise,' or the word proditorie' must be repeated. They have not so much as said similiter Consenserunt,' or simili modo;' there is an 'et' indeed, but that does not so couple the sentences together, as not to make them distinct acts. There are several ets' through the whole indictment, but that does not, as Mr. Cowper would have it, couple all together to make one overt-act.

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Mr. Phipps. My lord, if what Mr. Cowper says be allowed, (viz.) that theet' makes it one intire sentence, then there is no overt-act at all; for after the treason alleged, the clauses are coupled to one another by an 'et,' and consequently, by Mr. Cowper's way of arguing, the whole indictment is but one entire sentence.

L. C. J. I do not understand your meaning as to that; they tell you proditorie' is alleged to the consulting, contriving and agreeing, then they tell you what was the subject matter of that contrivance and agreement, to assassinate the king, and in order to that they agreed there should be forty men; is not that good enough, without Proditorie' to every line?

Sir B. Shower. No, it is not said in 'Ordine 'ad,' there is no such thing; but only they did