Porter. I came several times out of sir George Barcley's room into theirs, and to the best of my remembrance, Mr. Cranburne was there before Gunn came in. Sir B. Shower. Do you remember whether the first time that you went out of sir George Barcley's room to speak with Mr. Cranburne, Mr. Gunn was there? Porter. To the best of my remembrance he was not; to the best of my remembrance, Mr. Gunn, I saw Mr. Cranburne in the room before you was there. Sir B. Shower. Did you not order Gunn to come with him to the Sun-tavern? Porter. Yes, Sir, I did. Sir B. Shower. Cannot you tell whether they came together? Porter. I was not in the room when they came in first, but to the best of my remenibrance he was not there when I came in the first time. L. C. J. Now, Gunn, you hear what captain Porter says; before you went away to your own house, did Mr. Porter come into the room to you? Gunn. Indeed, my lord, I am not positive, I think he did. Att. Gen. Neither of them is positive, and it is a circumstance not very material; for it seems he was absent, and then the discourse might be. L. C. J. No, it is not material, but you see upon a strict examination what it comes to. Sir B. Shower. They are agreed upon it, I perceive, to be positive on neither side. Mr. Phipps. Mr. Cranburne, pray ask Mrs. Gerrard what you have a mind. Cryer. They are all called, but they do not appear. Sir B. Shower. My lord, we must submit it to your lordship's directions, upon the evidence that has been given, as to the credibility of these witnesses, and whether what capt. Porter says, and what Gunn says, be consistent; so that you can be satisfied there are two lawful credible witnesses to prove any overt-act. L. C. J. Yes, sure; but I would have you debate it, if you believe there be any thing in it. Sir B. Shower. I submit it to your lordship's directions. L. C. J. The question is, Whether I should give any directions at all or no, or whether there be any occasion for it? Cranburne. I declare this openly before this honourable court, and so many noblemen as are here, that Mr. Porter never made me acquainted with this design, till what he swore here. L. C. J. I cannot tell; it is sworn by two witnesses. Cranburne. I do declare, though capt. Pendergrass says he does not remember it, that captain Porter did declare in Spring-garden the 22d, when he came out of the Blue-Posts by the rails, If this design miscarry, says he, Mr. Charnock may thank himself: for I never communicated this secret to any of my friends. L. C. J. But hark ye, do you consider what you say, If this design miscarry? Pray what design was that? Cranburne. He never named any thing but the design, he did not say what it was. L. C. J. But why were you employed to Cranburne. Pray what do you know of cap-carry a list from captain Porter to Mr. Chartain Porter's going out in disguise, and wear- nock, and to bring a list back again from him ing false hair and vizards, and going upon the to captain Porter? highway, and such things? Gerrard. I know not what Mr. Cranburne means. [At which the people laughed.] Sir B. Shower. It is no laughing matter, when a man is upon his life. Crunburne. I did carry the note, but there was nothing mentioned what the list was for. L. C..J. Then you were there on Friday the 14th, and there the design was proposed to assassinate the king the next day, and you en L. C. J. No, no, let him have fair play; an-gaged in it. swer the question. Cranburne. Do you know any thing of your master's going abroad in disguises? Gerrard. I do not know any thing of my master's going upon the highway. L. C. J. Did he go out with vizards, or any such things? Gerrard. I never saw him wear a vizard or false beard in my life, but he had once a patch on when he was forced to keep out of the way, upon the account of the Dog-tavern business in Drury-lane. Mr. Phipps. See if Mr. Edward Boucher is here. [He was called, but did not appear.] Sir B. Shower. Call Mrs. Burton. [Which was done, but she did not appear.] Mr. Phipps. Is William Hardyman here? [He was called, but did not appear.] Sir B. Shower. Then call Simon Dawson, and we have done. (Which was done.) Cranburne. Not a word of it true, my lord. L. C. J. Ay, but Mr. Pendergrass swears it, and that you were hearty in the matter, and hoped you should do your business the next day. it. Cranburne. I cannot help it if he does swear L. C. J. Then you were at the meeting at the Sun-tavern, the 21st. Cranburne. My lord, you hear what Gunn says. L. C. J. As to that, they are neither of them positive; but you did there promise and undertake the matter, that captain Porter is positive in, that it was agreed by you all to do it the 22d; and Mr. Pendergrass says, when you were disappointed the 15th, you all agreed to pursue the same design the Saturday following. Cranburne. My lord, I did not dine at the Blue-Posts that day. L. C. J. But you were there; I think, iu A deed, Mr. Pendergrass says you came in after dinner, and had some steaks. Cranburne. I never heard directly nor indirectly of this design, till what I heard them swear here. L. C. J. Gentlemen of the Jury, You do understand for what crime this prisoner at the be is indicted: it is for high-treason, in designing and compassing the death of the king, which was to be effected by an assassination in the most barbarous and wicked manner, that any attempt of that nature can possibly be made, being to surprise the king, and murder him in his coach. The question, gentlemen, is, Whether this prisoner be guilty of this crime or no? There have been three witnesses produced that have given evidence against him, captain Porter, Mr. De 12 Rue, and Mr. Pendergrass; and they do all tell you that there was such a design on foot to assassinate the king, as he came from hunting at Richmond, after he came on this side the water, in the lane between Brentford and Turnham-Green. There were diverse persons engaged in this design, which sir George Barcley was come from France to promote and manage: captain Porter, as it does appear upon his evidence, was a person that was principally engaged, and at that time was hearty in the prosecution of it. | next day, which was agreed, and Cranburne was ready to go the next day. Then he tells you further, that the next day being Saturday the 22d, the second time that this assassination was to have been executed, upon the desire of Mr. Charnock, who was a person also that was engaged in this design, captain Porter writes a list of the men be could bring, and sent it by Crapburne to Charnock; Cranburne carries the list to Mr. Charnock, and brings it back again with an addition of the names of Mr. Charnock's men underneath. Mr. De la Rue is called, and he swears to that very circumstance, that Mr. Cranburne was sent by captain Porter with a list to Mr. Charnock, and brought it back again from Mr. Charnock, with an addition of other names. Then Mr. Pendergrass tells you, that he was with this Mr. Cranburne, the prisoner at the bar, the 14th of February, and there was a discourse of going in pursuance of this design the next day, and the prisoner agreed to it, which he is positive in: he tells you, that when they were disappointed the 15th, being at the BluePosts, they then agreed to pursue it the next Saturday; Cranburne was one of them that agreed. Captain Porter and De la Rue inform you that healths were drank to the late king, and the late queen, and the prince of Wales, as they called him, and then at length, as the concluding health, captain Porter, or some of them in the company, having an orange in his hand, squeezed it, and drank a health to the squeezing of the Rotten Orange, which was pledged by all, and particularly by Mr. Cranburne, as is proved by both captain Porter and De la Rue. ever there was an opportunity. As to Mr. Cranburne, captain Porter tells you he was a man that he had had a long acquaintance with, and had employed him, and designed to employ him as an officer under him, in case a revolution happened, which it seems about that time, and some time before it, was expected. Captain Porter was to have been a captain, and I think he designed to promote Cranburne to be his quarter-master; and he sent him to buy arms; and preparations So that now, Gentlemen, I must leave it to were made for that business; but that is not you, whether this is not evidence sufficient to the thing that we are now upon; the matter prove this man guilty of the treason whereof that now properly falls under our considera- he is indicted, that is, of designing and intendtion, is this: the coming over of sir George ing the assassination of the king, and being enBarcley, the latter end of January, or the be-gaged as a party to execute this design, whenginning of February last; upon which, as it seems, Mr. Porter was engaged; and having an interest in this Cranburne, and there being horses to be furnished to attack the king and his guards about Turnham-Green, this man, Cranburne, was a person that was engaged to be one of the horsemen that were to make the attack; and he tells you that he did employ him to provide horses and swords, and to prepare the pistols; and that he did engage in it, and particularly that the design was to be executed on Saturday the 15th of February, and that he was then ready to go with capt. Porter; but on that Saturday the king did not go abroad, whereby the design was disappointed for that time: afterwards, there was a meeting at the Sun-tavern in the Strand, where he met with sir George Barcley, and others of them; and there comes to that tavern Mr. Cranburne and others, and they were in another room, and captain Porter says he came to them, and did discourse about pursuing the design the very The counsel insist upon it, on the behalf of the prisoner, that what captain Porter says is no evidence: in the first place, they urge that he is not a man of credit, for they have mentioned that he used to be disguised, and wear a vizard mask, and go abroad under odd circumstances, and therefore his reputation they hope is not good enough to make him a credible witness aginst the prisoner: now the prisoner's witness being produced, says she never knew him go in disguise, or wear a vizard mask, but once he wore a patch, because he was under some ill circumstances about a riot in Drurylane; every body understands what the meaning of that was, his drinking of healths at a riotous assembly, upon the 10th of June, and he being under some prosecution for that, occasioned him to wear that disguise, but it was not done to binder any person, or do any mischief. But then, say they, he is mistaken in his evidence, of the meeting at the Sun-tavern the 21st of February, the day before the last, that this design was to have been executed, for whereas he says, that Gunn was not there when he came to them, yet Gunn was in the company at that time, and whereas he swears positively that they discoursed of going upon the same design to assassinate the king the next day, as was agreed the Saturday before; Gunn heard no such discourse. Gunn is called, and he tells you he did come to the Sun-tavern at that time, with Cranburne and captain Porter, he came into the room, and he heard no such discourse. They did open it, indeed, that Gunn had been there all the while, and if so, then if there had been such a discourse, he must have heard it. Gunn has been examined, and does tell you he was not there all the while, but went out and was absent for some time, about half a quarter of an hour. They have made a question, whether captain Porter came in when Gunn was there? He says truly he thinks that captain Porter did come into the room while he was there, before he went out, but he cannot tell certainly; he was there some time, while he was there. Then captain Porter was called again, and captain Porter does say he knows Gunn was there, but whether he was there at that time he came in, be cannot say positively; but Gunn says captain Porter was going in and out several times, as Porter says himself; and Gunn was absent for some part of the time. So that I cannot see any sort of contradiction between the evidence that Porter gives, and the evidence that Guun gives; the one is uncertain, and so is the other as to that circumstance. But, Gentlemen, they would infer, that if there was any such discourse while Gunn was there, it must be of necessity that Gunn must have heard it; but it is not necessary the discourse should be when Gunn was there: captain Porter swears positively, that there was such a discourse of going the next day to pursue the design, and he says he thinks Gunn was not present at that time when the discourse was, and Gunn says he was absent some part of the time. And so I must leave it to you: upon the whole matter, if Mr. Cranburne, the prisoner at the bar, did consent and agree to act in this Cl. of the Crown. Who keeps the jury? Then the Jury withdrew to consider of their verdict, and about a quarter of an hour after returned. Cl. of Ar. names, John Caine? Mr. Caine. Here. (And so of the rest.) Cl. of Ar. Are you all agreed of your verdict?-Jury. Yes. Gentlemen, answer to your Cl. of Ar. Who shall say for you? Cl. of Ar. Charles Cranburne, hold up thy how say ye, is he guilty of the high-treason hand, (which he did). Look upon the prisoner; whereof he stands indicted, or not guilty? Foreman. Guilty. Cl. of Ar. What goods or chattels, lands or tenements, had he at the time of the treason committed, or at any time since ? Foreman. None, to our knowledge. Cl. of Ar. Then hearken to your verdict as the court hath recorded it. You say that whereof he stands indicted, but that he had no Charles Cranburne is guilty of the high-treason goods, chattels, lands, or tenements, at the time of the high-treason committed, or at any time since, to your knowledge, and so you say all.-Jury. Yes. sires they may be discharged from their atMr. Caine. My lord, the jury humbly de tendance to-morrow. L. C. J. We cannot do it, unless the jury be full without them; if you come early, we shall dispatch you presently. Then the Prisoner was taken from the bar, and the Court adjourned till seven o'clock the next morning. 388. The Trial of ROBERT LOWICK, for High Treason: 8 WILLIAM III. A. D. 1696.* April 22, 1696. THIS day the justices of Oyer and Terminer holden for the county of Middlesex, met, and the court was resumed by proclamation in usual form. Clerk of the Arraignments. Keeper of Newgate, set Robert Lowick to the bar, (which was done). You the prisoner at the bar, Robert Lowick, those men that you shall hear called and personally appear, are to pass between our sovereign lord the king and you, upon trial 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, and before they be sworn. 10 Edw. 4. 15 Fitz. Ret. Vice. $2 Bro. Ret. Det. Bre. 97, and Error 193. Palm 564, and in Noy 114, there are these words, Note, It was moved in discharge of rescue, the return was, that they, viz. A. B. aforesaid, the bailiffs, 'ad tunc et ibidem vulneraverunt,' &c. And the aforesaid George, &c. • Rescuserunt' without ad tunc et ibidem,' referred only to the vulneraverunt,' and not to the 'rescuserunt,' and therefore the return was adjudged insufficient; for, my lord, although in conveyances, a clause or word in the beginning or end may refer to the whole, yet in indictments, every sentence must be certain, plain, and express, and have its own time and place: therefore in Noy's Rep. 122, Raymond was indicted Mr. Mompesson. If your lordship pleases to for stopping a cross-way leading from a certain favour me with one word for the prisoner at the ville called Stoake, into a ville called Melton, in bar, I shall not trouble your lordship with any the county of Dorset, and the indictment was thing that was urged by the gentlemen that quashed, because in the county of Dorset' shall were of counsel yesterday, but I shall rely refer only to Melton, and not to both: so an upon something that has not yet been spoken indictment of forceable entry into a messuage to. My lord, they have not laid any time or existens liberum tenementum' of J. S. is not place where the consent or agreement was, for good for want of the words ad tunc,' though the forty men that were to set upon the king the participle existens' does strongly imply and his guards: there is a time laid before that it was his house at that time, 3 Cro. 754. where they met and discoursed of the ways Het. 73. Noy, 131. Palm. 426. Bridg. 68. and means how to assassinate and kill the king; 2 Cro. 214, et 610. Sid. 102. Lat. 109, &c. but when it comes to the Assenserunt, con- And my lord Coke tells us in Calvin's Case, senserunt, et agreaverunt,' with submission, 5 B, that indictments of treason, of all others, this being another act, there ought to be ano- are the most curiously and certainly indited ther time and place laid, and for that I shall and penned; and all those that I have seen cite your lordship two or three cases; for men and observed, have contained more certainty may meet and propose, and discourse, and con- than the indictment now before your lordship. sult of such things, though they be very ill In Reginald Tucker's Case, the indictment things, and yet that may not be treason. It is was, That he and Thomas Place apud Bridgthe agreement that is the treason, and so it was water, in Com. Somersett. prædict. compasheld in captain Blague's Case about taking the saverunt, to kill and depose the king, &c. and Tower. They may meet at one time and place, to bring their treasonable purposes to effect, and at another time and place they may agree, they the said Reginald Tucker and Thomas in Dyer, 68 B. and 69 Pl. 28. A man was in- Place, the same day and year, at Bridgwater dicted for murder, That he at such a place in aforesaid, in the county aforesaid, against the and upon the person that was murdered, in-king, with a great multitude of people, arrayed 6 6 'sultum fecit, et ipsum,' the person that was murdered, cum quodam cultello,' of such a price, percussit;' aud he does not shew the place where he struck him, nor had the indictment the words, ad tunc et ibidem,' and there fore the court held it void: so it is likewise ruled in Goodrick's Case, Hell. 35 et 119, and therefore in indictments for murder, since they generally set forth not only the time and place of the assault, but likewise of the blow; so Jikewise in things of a more inferior nature, as rescues returned by the sheriff, that the Capias was served, but does not shew where the rescue was; or though he shews where the arrest was, and anet' coupled the rescue to it, yet it was adjudged an ill return, Dyer 69, Pl. 29, See Holt, 688. ( in a warlike manner, viz. with swords, &c. 'seipsos illicite et proditorie insimul ad tunc et ' ibidem congregaverunt et assemblaverunt et guerram publicam contra dictum Dominum Regem apud Bridgwater prædict. in Com. prædict. dicto vicesimo Die Junii Anno primo supradicto proditorie paraverunt, ordinaverunt 'et levaverunt.' So in the indictment of Gate, as it is set forth at large in a plea in bar of Dower, brought by his wife, he with force and arms, apud villam de Ware,' &c. assembled with a great many persons, et bellum crudele 'contra dictam Dominam Reginam apud Ware, prædict. ad tunc falso et proditorie publicavit et levavit, ac insuper ad tunc et ibidem falso et proditorie,' proclaimed the duke of Northumberland, to be lieutenant-general of their forces; 'et etiam falso et proditorie apud Ware prædict. not join and connect the sentences: for 'forent' and suscepit' differ not only in number, but also in mood and tense, and the sense is not necessarily coherent; for it might be true, that the majority of the company might agree these should be four, and yet they themselves might not severally engage therein, and one or some of them might undertake it, and yet the company not agree to it; and it cannot be mended by intendment. There was Vaux's Case, in the 4 Rep. 44; he was indicted for murder, for persuading a man to take Cantharides; it was laid, That he persuadebat eundem Nicholaum recipere et bibere quendam potum mixtum cum quodam veneno vocat. Cantharides ;' and the indictment says, 'Quod prædictus Ni'cholaus nesciens prædictum potum cum Veneno prædicto fore intoxicatum, sed fidem adhibens dictæ persuasioni Willielmi recepit et 'bibit;' but does not say, 'venenum prædic 'ad tunc,' proclaimed the lady Jean Dudley queen. This is in Bendlowe's Reports, published by serjeant Rowe, fol. 55, placito 91. So in the earl of Leicester's Case, Plowd. Com. 385, the indictment is laid much after the same manner, and many other indictments, which at present I am unwilling to trouble your lordship with; and this being one of a new form and of the first impression, I 'ope your lordship will bold it insufficient. and, my lord, when they go farther, and say, Et quilibet eorum prodi'torie super se suscepit esse unum,' there is no place or time alleged where that was done, which of necessity should be mentioned: for it is a constant rule in our books, that what is issuable, ought to have a place where it may be tried. Now, this is issuable, and the most material thing in the indictment is, for compassing the king's death. The overt-acts are, That Christopher Knightley the prisoner, and two others, did consult to kill the king; and after-tum,' but yet it adds, 'Per quod prædictus Niwards did agree how to do it, viz. by forty 'cholaus immediate post receptionem veneni borsemen, quorum these should be four, and ‘prædicti' languished and died; here, one every one of them did agree to be one; then would think, was a sufficient implication, that comes the other overt-act of providing arms for he took and drank the poison; but it was ruled, them. Now suppose they should not prove that none of these words were sufficient to the last, viz. the providing arms; then, my maintain the indictment; for the matter of the lord, they must resort to one of the other overt- indictment ought to be plain, express, and ceracts, that these four did consult and agree to tain, and shall not be maintained by argument kill the king; or that these four did agree the or implication, and therefore for want of those manner how to do it, as is laid in the indict- words the indictment was held insufficient, aud men; and it is plain they must fail of proof of the man again indicted for that offence; and either of these; for by the not prosecuting any there seems much more incertainty in this inone of the name of Christopher Knightley, but dictment, and therefore I humbly pray your preferring a new indictment against one Alex-lordship that it may be quashed. ander Knightley, it appears that Christopher Sir B. Shower. My lord, we think the obKnightley was not there; and the proving thesejection is fully put, and therefore we desire to three others making a consult and agreement, have their answer to it. is not a proof of the same overt-act that is laid in the indictment, as it ought to be by the late act; unless they can prove that a consult of three is a consult of four: and if it be answered, that it is alleged, that Quilibet eorum su'per se suscepit,' then will that come to be issuable, and the most material part of the indictment; and consequently a place ought to have been laid where it should be tried; this, my lord, is a distinct sentence of itself, it is in a parenthesis, and though you take it away, the sense of what remains is perfect and intire; and consequently this sentence is or should be intire of itself, and therefore ought certainly to be expressed. Besides, if your lordship pleases, it is not positively laid, what these persons severally undertook to be, there is indeed mention made before of forty horsemen, agreed upon to set upon the king, then comes the parenthesis, Quorum iidem Christophorus Knightley, Robertus Lowick, Ambrosius Rookwood et Carolus Cranburne forent qua'tuor, et quilibet eorum proditorie super se 'suscepit esse unum.' It is perhaps expressed fully enough by the word Quorum,' that it was agreed these should be four of the forty horsemen; but there wants the repetition of the wordQuorum,' to express what they seyerally engaged to be; and the word 'et'can 6 Att. Gen. (sir Thomas Trevor). We think, my lord, this objection will receive a very plain answer. The indictinent sets forth, That at such a place the prisoner at the bar did imagine and compass the death of the king: there is a particular case where the imagining was, and that they, to accomplish that treason, in compassing and imagining the death of the king, did, among others, postea eisdem die et anno apud parochiam prædictam,' meet and consult, &c. so there is the same place set forth again, wherein they did meet and consult of the ways and means, and time and place, when, where, and how to assassinate the king: and immediately it follows, et consenserunt et 'agreaverunt,' &c. that forty men, whereof they were to be four, and every one of them undertook to be one, should do so and so. Now, my lord, say they, it is not said that the agreement that there should be forty men to do it, was at the same time and place where they did meet and consult about the ways and means: but, my lord, with submission, it is very plain, that the agreement for forty men, and the particular agreement for them to be of the number, is but the effect of the consultation that is mentioned just before: for it is said, they consulted how they should do it, and they agreed to do it in this manner; the particular manner |