any action whatsoever, and do freely forgive my enemies, and hope, through the mercy of my Saviour Jesus Christ, to have remission of all my sins. Good God preserve the king, queen, prince, and princess, and all that royal blood of Stuarts; and may England never want one of that direct line to govern them, and make them once more happy! I have had the honour to serve my royal master in several commissions, and the last as major, and strove ever to serve him to the best of my power, and ever to be just to those whom I had the honour to command. Lord Jesus, into thy hands I recommend my spirit! O Jesus, receive my soul ! ROBERT LOWICK. BRIGADIER ROOKWOOD'S PAPER. Having committed the justice of my cause, and recommended my soul to God, on whose mercies, through the merits of Jesus Christ, I wholly cast myself, I had once resolved to die in silence; but second thoughts of my duty to others, chiefly to my true and liege sovereign king James, moved me to leave this behind me. I do therefore, with all truth and sincerity, declare and avow, that I never knew, saw, or heard of any order or commission from king James for the assassinating the prince of Orange, and attacking his Guards; but 1 am certainly informed that he, the best of kings, had often rejected proposals of that nature when made unto him. Nor do I think he knew the least of the particular design of the attacking the Guards at his landing, so much talked of, in which I was engaged as a soldier, by my immediate commander, much against my judgment; but his soldier I was, and as such I was to obey and act according to command. These twelve years I have served my true king and master, king James, and freely now lay down my life in his cause. I ever abhorred treachery, even to an enemy; if it be a guilt to have complied with what I thought, and still think, to have been my duty, I am guilty. No other guilt do I own. As I beg all to forgive me, so I forgive all from my heart, even the prince of Orange, who, as a soldier, ought to have considered my case before he signed the warrant for my death. I pray God may open his eyes, and render him sensible of the much blood, from all parts, crying out against him, so to prevent an heavier execution banging over his head, than what he inflicts on me. AMBROSE ROOKWOOD. After which they were executed as traitors, according to their sentence. $89. The Trial of PETER COOK, at the Old-Bailey, for High Treason: 8 WILLIAM III. a. n. 1696. Saturday, May 9, 1696. THIS day being appointed for the trial of Mr. Peter Cook, upon an indictment of high-treason found against him by the grand jury for the city of London, upon the commission of gaoldelivery of Newgate, holden for the said city, upon which indictment he had been arraigned, and upon pleading not guilty, issue had been joined; and the court having been adjourned unto this day for the trial by public proclamation in usual manner, the court was resumed, and the names of the men returned to serve on the jury having been called over, according to the pannel, and the defaulters recorded; the court proceeded as follows: Cl. of Arr. Set Peter Cook the prisoner to the bar. [Which was done.] You prisoner at the bar, 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 to them as they come to the book to be sworn, and before they be sworn. Cook. Sir, I desire you would not name them too fast, for my eyes are very bad. Cl. of Arr. John Ewer. Cook. Who must I apply myself to, Sir? I desire to know whether he is a freeholder in London? Cl. of Arr. I know nothing to the contrary, Sir, he is returned as such by the sheriff; you had best ask him himself, he can best tell. Cook. Are you a freeholder in London, Sir ? Cook. I challenge you.-No, Sir, I beg your pardon, I do not challenge you. Cl. of Arr. Then hold Mr. Sherbrook the book: [Which was done.] Look upon the prisoner you shall well and truly try, and lord the king and the prisoner at the bar, whom true deliverance make between our sovereign you shall have in charge according to your evidence. So help you God. Cl. of Arr. Joseph Billers. Cook. Are you a freeholder, sir, in London? Cook. Pray, sir, don't go too fast? Are you a freeholder in London, Sir? Brand. I am no freeholder in London. L. C. J. Treby. What say you, Mr. Attorney? Att. Gen. (Sir Thomas Trevor.) My lord, I would not have any body that is not a free- L. C. J. Treby. But you hear the king's bolder serve. So he was set by. counsel insist upon it, to have you make it out Cl. of Art. William Hull. in point of law. Hull. My lord, I am no freeholder in London. Serj. Darnall. My lord, I have stated the L. C. J. Treby. Why, what estate have you? case as my client desired, and we submit it to Hull. What I have, is in leases. you. L. C.J. Treby. What, leases for years, or L.C. J. Treby. Well, there is nothing in it.* leases for lives?-Hull. Leases for years, Sir. Serj. Durnall. Then my client, if he will L. C. J. Then he cannot serve upon the not have him serve, must challenge him pejury. remptorily; which he did. Cl. of Arr. Edward Leeds. Cl. of Arr. Francis Byer. Cook. Hold, sir, let me see; are you a Cook. Sir, are you a freeholder ? freebolder in London, Sir ? Byer. Yes, I am. _[Challenged.] Leeds. Yes, Sir. (Challenged.] Cl. of Arr. James Denew. Cl. of Arr. Thomas Clark. Denew. I am no freeholder. Cook. Hold, Sir, I pray let me look upon Cl. of Arr. Henry Hunter. my paper. I challenge bim. Cook. Hold, hold, my lord, I challenge him A Stander-by. He does not appear. as being one of sir John Freind's Jury. Cl. of Arr. Nathan Green. Mr. Baker. Nay, that was not allowed in Cook. Where is he, Sir ? Are you a free- Mr. Emes's case; but you challenged him bolder ? peremptorily, and so you must now, if you Green. Yes, I am, Sir. Challenged.] have a mind to it. Cl. of Art. Thomas Emes. Cook. I challenge bim. Cook. Are you a freeholder, Sir ? Cl. of Arr. John Hall. Emes. Yes, I am. Cook. Are you a freeholder in London, Sir? Cook. Were you one of sir John Freind's Hall. Yes, I am, Sir. (Challenged.] jury ? - Emes. Yes, I was. Cl. of Arr. John Cullum. Cook. Then I challenge you for cause, and Cook. Sir, are you a freeholder in London ? I give you my reason. Cullum. Yes, Sir. (Challenged.] Serj. Darnall. I pray, let us hear your rea- Cl. of Arr. John Cox. son; give your reason for your challenge. Cox. My lord, I am no freeholder in Lon Cook. It is for being of sir John Freind's don. jury. Cl. of Arr. John Hedges. Šerj. Darnall. Then you challenge him for Cook. Hold, I pray, Šir, let me look upon my paper, Sir : are you a freeholder in Lon. Cook. Yes, that he was of sir John Freind's don ? jury. Hedges. Yes, Sir, I am. [Challenged.] L.C.J. Treby. Well, brother Darnall, how Cl. of Art. Thomas James. is that a cause of challenge ? You are the pri- Jumes. My lord, my name is not Thomas. soner's counsel, let us bear what you say to it? Sher. Buckinghum. He is returned, it seems, Serj. Darnall. My lord, what we have to say by a wrong name; we did not know it. to it, is this; here are some persons returned Serj. Darnall. Then you cannot swear him. upon this pannel, that were formerly jurors in Cl. of Arr. Thomas Poole. a cause that was tryed for the same species of Cook. Are you a freeholder in London, Sir! treason that this gentleman, the prisoner, is Poole. Yes, Sir. charged with in this indictment; and I think Cook. I challenge him, as being of sir John the witnesses at that trial did mention in their Freind's jury. evidence my client, as being present at those Att. Gen. That has been over-ruled already. very consults, about wbich they gave their Cook. I challenge him. evidence; these gentlemen gave credit to those Cl. of Arr. Peter Parker. witnesses, and found the verdict against the Cook. Are you a freeholder in London ? person then accused. We humbly submit it to Parker. Yes, Sir, I am. your lordship and the court, whether we may Cook. I challenge you, Sir, as being one of not for this cause challenge this person as not sir John Freind's jury. indifferent, it being for the same cause and con- Mr. Baker. Nay, you cannot offer it again. sult that the other was tried for, Cook. I challenge him. Cook. Where is he? Are you a freebolder in Serj. Darnall. My client thinks it a very London, Sir? good objection, that he is not indifferent, and I Grove. Yes, Sir. Challenged.] desire he should be satisfied in it. Cl. of Arr. Nathaniel Wyersdell. Att. Gen. If he thinks so, be may except Cook. Are you a freeholder in London ? against him ; but if he insist upon it as a cause Wyersdell. Yes, Sir, I am. [Challenged.] of challenge, we desire you would put the case, and my lords the judges determine it. See the seventh Resolution in the Case of Serj. Darnull. I have told you what the the Regicides, Vol . 5, p. 985, and the Case of Charles Cranburne, p. 221 of this Volume. cause. , in this objection case is. Cl. of Arr. Samuel Blewit. Cook. Hold, pray, are you a freeholder, Sir?-Blewit. Yes, I am. [Challenged.] Cl. of Arr. John Wolfe. [Challenged.] Cl. of Arr. Joseph Wolfe. [He did not appear, and was said to be no freeholder.] Cl. of Arr. William Smith. Cook. Are you a freeholder, Sir? Smith. Yes, I am. [Challenged.] Cl. of Arr. Edward Fenwick. Cook. Are you a freeholder, Sir? Fenwick. Yes, Sir, I am. Cl. of Arr. John Sherbrook. Cook. I challenge him, as being one of sir John Freind's jury. Mr. Baker. But you have heard that denied to be an exception over and over. Cook. I challenge him. Cl. of Arr. Stephen Blackwell. Blackwell. Yes, I am. [Challenged.] Cl. of Arr. William Hatch. Cook. Pray give me time to mark them; pray, who is this man you now call? Cl. of Arr. William Hatch. Cook. Sir, are you a freeholder? Cook. I do not except against him. [Was sworn.] Cl. of Ar. John Stredwick. Stredwick. My lord, as I apprehend, I am no freeholder. L. C. J. Treby. Why do you apprehend so? Stredwick. It is my wife's estate, not mine. Cl. of Ar. Then your wife has a freehold, it seems.-Stredwick. Yes, she has. L. C. J. Treby. That is freehold enough; for you have an estate for 'your wife's life. Mr. Baker. And after that too; for it is not given over to any body else, and she won't Cook. I do not challenge him. Cl. of Arr. Then swear Mr. Fenwick. Cook. Which is the gentleman? Are you a Cook. I challenge him as being one of sir Cl. of Arr. The court has adjudged that no cause of challenge; therefore I take no notice of it, but as to a peremptory challenge. Cl. of Arr. Richard Chiswell. Cook. Are you a freeholder in London, Sir? give it from him. Cook. Hold, pray, a moment; I have not crossed these last in my paper, but I challenge this man as being one of sir John Freind's jury. Mr. Baker. You have had that answered over and over again, as no objection; it is nothing but a peremptory challenge. Cl. of Arr. William Walker. Walker. I was one of sir John Freind's jury. Cl. of Arr. John Wells. Cook. Sir, are you a freeholder? Wells. Yes, Sir, I am. [Challenged.] Cl. of Arr. John Hibbert. Cook. Which is he, Sir? Cl. of Arr. He stands upon your left band ; the man in the black peruke. Cook. Are you a freeholder, Sir? Hibbert. Yes, I am, Sir. [Challenged.] Cl. of Arr. Daniel Wray. Cook. Stay, Sir, are you Mr. Wray? Cook. Are you a freeholder in London, Sir? Cook. I challenge you. Cook. Which is he? Petit. I am the man, Sir. Cook. Are you a freeholder in London, Sir? Cook. Sir, are you a freeholder in London, or no? Stredwick. I apprehend, Sir, I am not. Mr. Baker. He says he has an estate for his wife's life. Cl. of Ar. Then he is a freeholder, What do you say to him? Cook. Are you positive you are a freeholder in London, upon your word? Stredwick. I think not. Mr. Baker. Why, your wife's estate is yours for your life. Cook. My Lord Chief Justice, if your lordship pleases, here is a man that says positively he thinks he is no freeholder; I desire your lordship's judgment, whether he be a freeholder or not? L. C. J. Treby. Why, let him put his case, if he make a doubt of it, Stredwick. I am not possessed of an estate myself. L. C.J. Treby. But is not your wife an inheritrix ? Stredwick. Yes, my lord, she is. L. C. J. Treby. Then you are seized of a freehold in her right; and, Mr. Cook, your own counsel will tell you, and satisfy you, that that is a freehold sufficient for this service, Mr. Baker. His wife's father settled it upon her and her heirs. L. C. J. Treby. No question, it is a sufficient freehold if the wife be living. Mr. Baker. Yes, she is. Cook. I challenge him. Cl. of Ar. William Prince. Cook. I challenge him, as being one of sir Att. Gen. We challenge him for the king. Cook. Are you a freeholder, Sir? Cook. Pray tell me whether you are, or not? Cook. Where is Mr. Brewster? Are you a freeholder, Sir, in London ? Brewster. Yes, Sir. Cook. I challenge him. Pray, Sir, I desire to know how many I have challenged? Mr. Baker. You have challenged 33. Cook. How many besides those that are of sir John Freind's jury? Mr. Baker. You have but two more to chal. lenge, Sir. Serj. Darnall. I thought you had heard the opinion of the court, Mr. Cook, that it will not hold as a cause of challenge that he was of sir John Freind's jury; therefore those are all reckoned among the peremptory challenges, and you can challenge but two more in all. L. C. J. Treby. Not without cause, but as many more as you can have good cause against. Cl. of Ar. John Reynolds. Cook. I except not against him. sworn.] Cl. of Ar. Joseph Brookbank. Cook. I have nothing to say to him. was sworn.] Cl. of dr. Adam Bellamy. [Was Alt. Gen. That is nothing, he is here now. Sir B. Shower. But if there be a default of the jury, and the king's counsel have challenged any one, they ought to shew their cause; therefore we desire that they may shew their cause why they challenged Mr. Simmons? L. C. J. Treby. The king has power to challenge without shewing cause till the pannel be gone through; but if there be a default of jurors when the king challenges, the king's counsel must shew cause.* Sir B. Shower. Here is a default of jurors, my lord. L. C. J. Treby. Nobody is recorded absolutely a defaulter, if he comes in time enough to be sworn. Cl. of Ar. Swear Mr. Clark. [Which was done.] L. C. J. Treby. When there is an apparent default of jurors, then they must shew their cause: but here his appearance, it seems, was recorded, and so he was no defaulter; and you might have challenged him for cause still. Čl. of Ar. James Dry. Dry. My name is not James. Serj. Darnall. Then you cannot swear him : here are three mistaken in their names. L. C. J. Treby. That is in the copy in your brief, brother, it may be.. Serj. Darnall. No, my lord, the officers admit it. Att. Gen. My lord, we desire those gentle[He men, that say they are no freeholders, may be sworn to that matter. [Which was accordingly done. And several of them that had stayed, did deny the having of any freehold upon oath, and some were gone away.] Bellamy. My lord, I am no freeholder. L.C.J. Treby. Why, what estate have you? Mr. Baker. He has estate enough, I know, for value. Bellamy. I have only a lease. L. C. J. Treby. A lease for years? Cl. of Ar. David Grill. Grill. I am no freeholder, my lord. Cook. I accept of him. [He was sworn.] Cook. How many have I to challenge, do you say? Cl. of Ar. But one, Sir; What say you to Mr. Parker? Cook. I do not except against him. was sworn.] He Cl. of Ar. James Robinson. Cook. I have nothing to say to him. [He was sworn.] Cl. of Ar. Joseph Morewood. [Challenged.] Mr. Baker. You have challenged all your Dumber now. Cl. of Ar. My lord, we have gone through the pannel, we must now call the defaulters again. Thomas Clark.-Clurk. Here. Sir B. Shower. Was he here when he was called over? L. C. J. Treby. Pray take care to estreat the issues, and return greater issues the next time. Just. Rokeby. Truly, the court must put some great penalty upon them for trifling with the court in respect of their duty that they owe to the king and country, in regard of their estates. Cl. of Ar. Pray let the officers be called who summoned this jury, Mr. Sheriff. [Which was See the Case of Horne Tooke, a. D. 1794, and of O'Connor and others, a. D. 1798. Leach's Hawkins's Pleas of the Crown, b., c. 43, s. 3, and the authorities there cited. The words of the Ordinatio de Inquisitionibus (33 Edw. 1.) are," Of inquests to be taken before any of the justices, and wherein our lord the king is party, howsoever it be, it is agreed and ordained by the king and all his council, that from henceforth, notwithstanding it be alledged, by them that sue for the king, that the jurors of those inquests, or some of them, be not indifferent for the king, yet such inquests shall not remain untaken for that cause; but if they that sue for the king will challenge any of those jurors, they shall assign of their challenge a cause certain, and the truth of the same challenge shall be inquired of according to thre custom of the court." done. And they examined concerning their summoning those who made default, and the issues of those who were recorded as defaulters were ordered to be estreated.] Then the Court not being able to proceed for want of a Jury, they ordered another pannel to be ready against Wednesday next, to which time, at seven in the morning, the court was by proclamation adjourned. WEDNESDAY, May 13, 1696. The Court being met according to the ad. journment, the pannel was called over, and the defaulters recorded, and several excused for absence upon sickness, and being out of town before the summons. Then Mr. Serjeant Darnall desired, before the Jury was called, to move something against the pannel; and made his motion thus: Serj. Darnall. If your lordship pleases, I have somewhat to offer to you before you go upon this new pannel, and I confess I think it is my duty to the court, as well as to the prisoner, to state the case as it is, and submit it upon the reason of law, and the authorities that I shall offer, whether the proceedings upon this new pannel will not be erroneous? My lord, the question is, Whether, as this case is, the prisoner has had a copy of the pannel of his jury by which he is to be tried, according as the late law requires? He had a copy of the former pannel, and upon that pannel nine were sworn, and their names all entered upon record, and made parcel of the record. Therefore now the question is, Whether he can be tried upon a new pannel? We are in a case that rarely happens; and in a case of life and death, I know your lordship will be careful not to vary from the ancient practice, or to make a new precedent, because of the consequences. It must be agreed in this case, that the old pannel upon which the prisoner took his challenges, and of which nine were sworn, is parcel of the record. Now, my lord, to add a new pannel, upon which twelve more shall be sworn, aud all this appear upon record, and the prisoner tried upon the last pannel, will not this be error? I offer this before the jury be called and sworn, because we desire to be fairly tried; and we design to rest upon the fact in this case. If it should appear, That he is tried upon a pannel that is unduly made and returned, that will be of evil consequence one way or other. And can this be duly made, if another appear upon record before it? And can any body say it is quashed or abated? Or can it be so? My lord, in Stamford's Pleas of the Crown, p. 155, it is said, "If any of the pannel die after the return, and before their appearance, so that there are not enough left to make the jury, yet the pannel shall not be quashed, nor is it abated, but it is cause to grant a tales." And certainly, my lord, it is a stronger case, when by reason of challenges, which the law gives the prisoner liberty to make, there are not enough * left, that there shall not be a new pannel, but that a Tales shall be granted; for if a new pannel might be made, it cannot appear who were challenged, or who were admitted. And if your lordship pleases to consider, the intention of the law in giving the prisoner power to challenge, is, that he may have an indifferent jury; but that would be prevented by such a practice as this; for when it has been discovered upon the old pannel whom the prisoner chose, and whom he challenged upon the new pannel, the persons challenged may be set first, and those that were chosen may be omitted, or so postponed, that none of them whom he thought equal to try him, can serve upon the jury. And truly, my lord, if I am rightly informed, that is the case upon this new pannel; some of those that were admitted and sworn are left out, and most of them, I think, are put last in the pannel whom he thought equal men to try him, and all those whom he challenged peremptorily are the first men in the pannel. This, my lord, is the case before you; and if this be admitted, the use and end of challenges, which are in benefit and favour of life, would be defeated. And for authorities in this case, besides the reason and ground of the law, many cannot be expected, because it is a fact that rarely happens. I find none of the ancient practisers ever knew it, but I find that a Tales ought to be granted; so it is said in several books, as in Stamford, 155, 156. whenever upon the principal pannel all the jury does not appear, or so many of them do not, that there are not enough left to make a jury, which is our very case; then in such case the pannel shall not be quashed or abated, but a Tales granted; so is 14 H. 7, 7. there the question was, Whether there should be a greater number returned upon the Tales than were in the principal pannel? And there the difference was insisted upon, and agreed, That where it is between party and party, where life is not concerned, it shall not; but where life is concerned, and the prisoner has power to challenge 35 peremptorily, there the judge may award as many upon the Tales as he pleases, that there may be enough to remain after the challenges; so that if this old pannel be not abated, and could not be quashed, and a Tales might be granted to consist of any number, I conceive the prisoner cannot be tried upon this new pannel, but it will be erroneous and I humbly submit to your lordship whether you will proceed upon it. Sir B. Shower. If your lordship pleases to spare me a word of the same side, with submission, We think there ought to have been an Habeas Corpora, with a Tales, such as had been before sworn being to be part of the jury now, and that is the proper way to bring In the Case of Perry and another, A. D. 1793, in this Collection, it was decided, that where a special jury is ordered, the first special jury struck and reduced according to law, must try the issue joined between partics, |