George Barcley producing a scheme ready drawn, wherein he was to command the party, telling him, that he must obey orders. You hear what he said, and the answer he returned in French, There is an end of it; whether that does not amount to a consent and agreement to be engaged in this design, is left to your consideration; for if it do, it is plainly an overt-act. Then, Gentlemen, you hear further, that Harris was told by Mr. Rookwood, that he should be of his party, and be his aid du camp, and go to Turnham-Green to attack the prince of Orange, and he had a list of men given him by Rookwood, and was directed to get the rest ready. Rookwood. That was not in the indictment. L. C.J But you were at that meeting, which is laid in the indictment. Rookwood. My lord, that list is not in the indictment; the list in the indictment refers to Mr. Cranburne. L. C. J. No, but that is an evidence of your being in the design; I hope that list of men will be some evidence of the consent and agreement that Mr. Rookwood was to command a party. Sir B. Shower. With submission, my lord, the words of the act seem otherwise, and that no overt-act should be given in evidence, that is not expressly aitedged. L. C. J. But cannot there be one act, that may be proof of another act which is alledged? Sir B. Shower. Then there is no advantage of this law; for, my lord, the end of the act was, That they should know the particular crimes that they were to answer to. L. C. J. That could never be the end of the Jaw, that all particular facts that are but evidence of the facts alledged should be set forth in the indictment; it was sufficient before the act, to alledge any overt act; and any other overtact, though not alledged, and had no relation to the overt-aer that was alledged, yet if it were to the same sort of treason, might be given in evidence. Sir B. Shower. The law says, Ye shall not give evidence of any overt act that is not expressly mentioned. L. C J. It is not urged as an overt-act, but as evidence of an overt-act that is alledged; for instance, the overt-act alledged is, that they did meet and consult, shall not they give in evidence what was said and doue at those meetings, though not alledged? Sir George Barcley produced a scheme at the Globe-tavern, shall not the producing of that scheme be given in evidence? If it may, why not the giving the list to Harris? Mr. Phipps. My lord, it is plain it was Mr. Attorney's opinion, it could not be given in evidence, unless it was alledged in the indictment; because he has particularly alledged the list in Cranburne's case, in this very indictment. Sol. Gen. I know not what those gentlemen mean by this sort of practice; certainly there never were so many irregularities com mitted in any trial as in this, and now particularly to break in upon the court in the midst of the charge. L. C. J. Nay, nay, if there be any mistake, let us hear them, that it may be rectified. L. C. J. Treby. I think we should receive them, to try if they can make it out. But the objection I do not very well understand yet; for, as I take the matter to stand, it is alledged in the indictment, that they had prepared men and arms, and horses, for the execution of this design. Now is it not reasonable, or can there be any thing more proper, than to give in evidence, and prove that the prisoner had, and delivered to some of the complices, a list of those men that were to do it? Why, it proves the very thing alledged; but let us see whe ther it be so. Sir B. Shower. My lord, there is no such thing alledged. L. C. J. That is strange! pray see if it be in the indictment. Clerk of Arr. (Reads.) • Conveniebant, proposuerunt, tractaverunt, consultaverunt, 'consenserunt, et agreaverunt, ad ipsum Do'minum Regem nunc ex Insidiis et Dolo per'cutiendum, Anglice to assassinate,' inte: fici'endum, et murdrandum; et ad execrabilem, 'horrendam, et detestabilem Assassinationem, Anglice Assassination,' et interfectionem illain citius exequendum et perpetrandum, 'postea scilicet eisdem Die et Anno, ac diversis aliis Diebus et Vicibus, apud Parochi am prædictam in Comitatu prædicto, prodi'torie tractaverunt, proposuerunt, et consultaverunt de Viis, Modis et Mediis, ac Tempore et Loco, ubi, quando, qualiter et quomodo 'dictum Dominum Regem sic ex Insidiis fa'cilius interficerent; et consenserunt, agreaverunt et assenserunt, quod quadraginta Homines equestres aut eo circiter, quorum idem Christophorus Knightley, Robertus Lowick, Ambrosius Rookwood et Carolus 'Cranburne forent quatuor, et quilibet horum 'proditorie super se suscepit esse unum, cum Bombardis, Sclopis et Sclopetis, Pulvere bombardico et Globulis plumbeis oneratis, et 'cum Gladiis, Ensibus et aliis Armis armati insidiati forent, et essent in Subsessu, Anglice in ambush,' adundem Dominum Re" gein in Rheda sua, Anglice his coach,' ex'istentem, quando foris iret invadendum; quodque quidam et competens Numerus de Hominibus his sic armatis in Satellites, Anglice the guards,' ipsius Domini Regis eum 'tunc attendentes et secum existentes aggressi forent, et eos expugnarent et devincerent, 'dum alii eorundem Hominum sie armatorum ipsum Dominum Regem percuterent, interficerent, occiderent et murdrarent.' Mr. Conyers. And, my lord, there is evidence of some of these forty men, whose names were given in a list by Rookwood to Harris? Mr. Phipps. But now, in Cranburne's part, the list is expressly alleged as an overt- act. L. C. J. They ask you, what this giving this list does prove. Att. Gen. His agreeing at that meeting to the conspiracy, and the execution of it, by giving that list of the names of them that were to be of his party, and his own name as commander of that party, this he gives to one that was to be of the party, and particularly was to be his aid du camp, in order to get them ready for the execution; is not this an evidence of the agreement, which is the overt-act? No man in the world can be convicted of treason, if this doctrine be true. L. C. J. Never talk of Cranburne, we have not him before us now; but what do you say to this of the list given by Rookwood to Harris? Sir B. Shower. My Lord, we say this is not evidence of an overt-act, according to this act of parliament; which says, no evidence shall be given of any overt-act, that is not expressly alledged in the indictment; now the indictment says, they did agree that forty horsemen armed, of which the four named were to be four, and every one undertook to be one, who should lie in wait to set upon the king in his coach, and a competent number should set upon the guards; and then it says, in order to fulfil Sol. Gen. My lord, they have not expressed this, they did prepare horses and arms, and one something in the indictment that has been read, of them by the consent of all the rest did carry which will make it plain that this is the most forward and backward a list, that is, Cran- proper evidence of the overt-act laid in the inburne; and that particular list is a particular dictment. The indictment says, they agreed overt-act alledged in the indictment; which there should be forty men or thereabouts armmakes it plain, they thought it necessary to be ed, of which a certain number should make an particularly alledged by this act of parlia- assault upon the king's coach, while another ment, or they could not give any evidence of it; part should set upon the guards: Now the now the list that evidence is given of, is sup- proof we make is, that Mr. Rookwood the priposed to be delivered by the prisoner to Harris. soner was to command a party that was to set Now first we say, it is not evidence that forty upon the guards; and in order to it, he gives should do it, for they may do it without a list; a list of his men to Harris, who was to be his and next, it is not evidence of the list that they aid du camp, and bids him get those men have mentioned, for that is alledged to be car-ready; and this was upon the day that this ried about by Cranburne; and as the prisoner himself has observed, this list given to Harris is not in the indictment, and therefore no evidence can be given of it. Mr. Conyers. It is an evidence of that overtact which is expressly alledged in the indictment, that they met together to consult how to effect this treason. Mr. Cowper. My lord, we are in a very strange case here, if we be not very proper in this part of our evidence; the overt-act laid is, That the prisoner met together with others to consult how to assassinate the king, and there the prisoner among the rest did agree it should be done so and so. It is admitted the prisoner was there; but, say they, if you only prove that he sate by while there was a general discourse of such a matter, but do not prove that he said or did any thing expressing his assent, that will not amount to a proof of the overt-act laid; and yet, if we go about to prove further, any act done that manifests his assent, then they say you go too far, and prove an overt-act that is not mentioned in the indictment. Thus they grant, the agreement is a sufficient overt-act, but object, that being present barely is not a sufficient proof of his agreement; then when we go to make proof of any thing that is a sufficient proof of his agreement, they tell us it is not proper upon this act of parliament, because not laid in the indictment, though his agreement be laid in the indictment: And so they would amuse us, rather than make any solid objection to our evidence. This doctrine is certainly very odd, my lord, and we doubt not will have little weight with the court or the jury. Att. Gen. According to this doctrine, all the evidence must be put in the indictment. matter was to be acted: So that it proves very plainly that overt-act that we suggest in the indictment, that a certain number of those men were to assault the king's person, and another the guards. And therefore they needed not to have interrupted your lordship; for this list that Harris speaks of is a very good proof of the overt-act that is laid in the indictment. L. C. J. Then, gentlemen, as to this matter which they have objected, that this list given on the day of the intended assassination, ought not to be allowed as evidence to prove the treason, because it is not specially laid in the indictment, but is by the late act of parliament excluded from being proved to convict the prisoner: Now though the act doth exclude the giving in evidence of any overt-act that is not laid in the indictment, yet it doth not exclude such evidence as is proper and fit to prove that overt act that is laid in the indictment. Therefore the question is, Whether this giving of the list does not prove some overt-act that is alledged in the indictment? There is in the indictment an agreement laid to kill the king; and if that be proved, that is an overt-act of this treason. Now when the consent and agreement of Mr. Rookwood to that design is proved, surely the proof of his giving a list of men, is a further proof that he did agree to it, and then it is very proper to be given in evidence; for if by the new statute no one act can be given in evidence to prove another, then must not only the overt-act, but also the evidence of that act be expressed in the indictment. Gentlemen, You have heard the witnesses what they say concerning this matter. In the first place, if you do believe that there was such consults and meetings, where this intended as sassination of the king was debated and resolv Cryer. Vous avez. Cl. of Ar. Gentlemen, are you all agreed of your verdict? Jury. Yes. ed upon, and that Mr. Rookwood was present and did agree to it, that is an overt-act: And again, if you are satisfied that there was an agreement to prepare and provide a number of men to set upon the king and his guards, in the manner you have heard, and he was concerned in making this provision, and was to have a post, and command a party in that attack, that is a further proof of that consent and agreement that is laid in the indictment. Gentlemen, I must leave it to you, upon the evidence that you have heard. If you are satisfied, upon the testimony of these two witnesses that have been produced, that Mr. Rookwood is guilty of this treason of which he is indicted, in compassing and imagining the death of the king, then you will find him guilty: If you are not satisfied that he is guilty, you will acquit him. Cl. of Ar. Cryer, swear an officer to keep the jury. (Which was done.) L. C. J. Now, if you have any thing to move on behalf of your other clients, pray do it. Sir B. Shower. Yes, we have an exception, but never a one of false spelling. L. C. J. If so be it be any such matter as you can move in arrest of judgment, it had best be reserved till after the verdict. Sir B. Shower. Our exceptions will serve, if occasion be, for Mr. Rookwood in arrest of judgment, and they will serve for the others also to prevent the trouble of the trial, if we have your lordship's opinion that they are good exceptions. (Then the Jury withdrew to consider of their verdict, and after a quarter of an hour's staying out returned, and gave in their verdict.) Cl. of Ar. Gentlemen of the jury, answer to your names. Samuel Powell. Σ Mr. Powell. Here. (And so of the rest.) Cl. of Ar. Who shall say for you? Cl. of Ar. Ambrose Rookwood, hold up thy hand, (which he did). Look upon the prisoner: How say you? Is he guilty of the high treason whereof he stands indieted, or Not Guilty? Foreman. Guilty. Cl. of Ar. What goods or chattels, lands or tenements, had he at the time of the treason committed? Foreman. None, to our knowledge. Cl. of Ar. Then hearken to your verdict as the court has recorded it. You say that Ambrose Rookwood is guilty of the high treason whereof he stands indicted, but that he had no goods or 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. Mr. Powell. We desire we may be discharged. L. C. J. We cannot do that, till we see whether there be enough upon the other pannel: We will give you as much ease as we can: We shall not, I suppose, try the other till the afternoon, therefore you may take your ease for the present; but you must be about the court when the other trials come on. (While the Jury was withdrawn, the court offered to the counsel for the prisoners, that before the Jury was sworn as to any of the they might move what exceptions they had other; which accordingly they did; but that relating to the case of Mr. Charles Cranburne, in whose presence, being then at the bar, the objections were made, that part is left to his Trial.) 587. The Trial of CHARLES CRANBURNE, for High Treason: At the Sessions of Oyer and Terminer for the County of Middlesex, sitting in the Court of King's-Bench at Westminster: 8 WILLIAM III. A. D. 1696.* April 21. 1696. AFTER the trial of Ambrose Rookwood was over, while the jury were withdrawn to consider of their verdict, the court proceeded thus: L. C. J. (Sir John Holt.) Mr. Attorney, whom will you have tried next? Att. Gen. (Sir Tho. Trevor) Cranburne, if your lordship pleases. Cl. of Ar. Then, keeper of Newgate, set Charles Cranburne to the bar. * See Salk. 633. Holt, 686. East's Pleas of the Crown, c. 2, s. 46, 49, 53. L. C. J. You, gentlemen, that are of counsel for the prisoner, if you have any thing to move for your client, you may move it; but first let the prisoner be here. (Then Charles Cranburne was brought to the bar in irons.) LC.J. Look you, keeper, you should take off the prisoners irons* when they are at the bar, for they should stand at their ease when they are tried. * See in this Collection, vol. 5, p. 979. 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. Alt. Gen. Sure, it must be only for such things as they cannot take advantage of in arrest in judgment after the verdict. L. Č. 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. Well, let's hear what that is. Sir B. Shower. It 6 says, anno regni dicti domini regis nunc septimo,' and Lewis is the Jast 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 last antecedent; and that rule holds always, unless there be words that accompany the relative, which undeniably shew to what it refers. L. C. J. Aye; but do we call the French king 'dominus rex?' L. C. J. Treby. He would have been so, if he had succeeded in his invasion, and this as sassination. Sir B. Shower. In every indictment, if there be occasion to mention a former king, it is always nuper rer, and such a one, naming the name of the king, where the present king's name does intervene, to prevent confusion; and so in civil actions it is the same;" and so it should have been here. L. C. J. Ay, but I tell you, it is dominus rex nunc,' which is our king. Mr. Phipps. It is not said Angliæ.' L. C. J. But wherever it is dominus rex,' we understand it of the king of England, and nobody else. Read the indictment. Cl. of Ar. Necnon eundem Dominum Regem ad Mortem et finalem Destructionem ponere et adducere, ac subditos suos fideles, ' et Liberos Homines Hujus Regni Angliæ in servitutum intolerabilem et miserrimam Ludovico Regi Gallico subjugare, et mancipare, Decimo Die Februarii, Anno Regni dicti Do'mini nunc Regis septimo, et diversis aliis Diebus, &c.' 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. No, it is as well as it can be. 6 Sir B. Shower. Then, my lord, there is another exception; it is said, Diversis Diebus et Vicibus tam antea quam postea;' and then 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. Att. Gen. That Postea' is another sentence, and relates to other matters. Sir B. Shower. It cannot in propriety of speech be said to be afterwards the same day. Sol. Gen. (sir John Hawles.) If sir Bartholomew Shower remembers the evidence that we have given this day, he will find it was in fact so; they met on the Saturday morning, and afterwards met again the night of the same day. L. C. J. There is nothing in that objection, sure; it is a common form, when they tell of different matters. Sir B. Shower. Well then, if you will hear the rest which are not of the same nature, we shall come to what we think a fatal exception ; we say this indictment of High-Treason being | against a subject born, ought to have had the words in it, Contra supremum naturalem Ligeum 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 presubject born, without the word Naturalem; and all the cases cited by sir Bartholomew Shower are full in the point. Counter's case in my lord Hobbart, 271, where it is said, that if 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. 6 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 iscedent of an indictment of treason against a 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 England, 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 put 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 those of the traitors in the Power-Plot, 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 Ligeantime 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, becanse 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,' naturalein' 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 wheu be 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 Q |