Knightley, and very many other false traitors, to the jurors unknown, afterwards, to wit, the same 10th day of Feb. in the year abovesaid, at the parish aforesaid, in the county aforesaid, and divers others days and times, as well before as after, there and elsewhere in the same county, falsely, maliciously, advisedly, secretly, traitorously, and with force and arms, did meet, propose, treat, consult, consent and agree, him our said lord the king that now is, by lying in wait, and guile, to assassinate, kill and murder; and that execrable, borrid, and detestable assassination and killing the sooner to execute, and perpetrate, afterwards (to wit) the same day and year, and divers other days and times, at the parish aforesaid, in the county aforesaid, traitorously did treat, propose, and consult, of the ways, manner, and means, and the time and place, where, when, how, and in what manner, our said lord the king, so by lying in wait, the more easily you might kill; and did consent, agree, and assent, that forty horsemen, or thereabouts, whereof the said Christopher Knightley, you the said Robert Lowick, Ambrose Rookwood, and Charles Cranburne, should be four; and every one of you traitorously took upon himself to be one, with guns, muskets, and pistols, charged with gunpowder and leaden bullets, and with swords, rapiers, and other weapons being armed, should lie in wait, and lie in ambush, our said lord the king in his coach being, when he should go abroad, to invade, and that a certain and competent number of those men, so armed, should

set upon the guards of our said lord the king then attending him, and being with him, and should fight with them, and overcome them, whilst others of the same men so armed, our said lord the king should assassinate, slay, kill, and murder; and you the said Robert Lowick, Ambrose Rookwood, and Charles Cranburne, together with the said Christopher Knightley, the treason, and all the traitorous intentions, designs, and contrivances aforesaid, to execute, perform, fulfil, and bring to effect, afterwards (to wit) the aforesaid 10th day of February, in the seventh year abovesaid, at the parish aforesaid, in the county aforesaid, divers horses, and very many arms, guns, pistols, swords, rapiers, and other weapons, ammunition and warlike things, and military instruments, falsely, maliciously, secretly, and traitorously did obtain, buy, gather together, and procure, and cause to be bought, obtained, gathered together, and procured with that intention, then in and about the detestable, horrid, and execrable assassination, killing, and murder of our said lord the king that now is, as aforesaid to be used, employed, and bestowed; and the same premisses the more safely and certainly to execute, do, and perform, the aforesaid Christopher Knightley, with one Edward King, late of high trea son, in contriving and conspiring the death of our said lord the king that now is, duly convicted and attainted, by the consent and agreement of divers of the traitors and conspirators aforesaid, the said 10th day of February, in the

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seventh year abovesaid, went and came to the place proposed, where such intended assassination, killing, and murder of our said lord the king by lying in wait, should be done, performed, and committed, to see, view, and observe the convenience and fitness of the same place for such lying in wait, assassination, and killing, there to be done, performed, and committed: and that place being so viewed and observed, afterwards, (to wit) the same day and year, their observations thereof to several of the said traitors and conspirators did relate and impart, (to wit) at the parish aforesaid, in the county aforesaid: and you the aforesaid Charles Cranburne, the same day and year there, in order the said execrable, horrid, and detestable assassination, and killing of our said lord the king, by the traitors and conspirators aforesaid, the more readily and boldly to execute, perform, and commit, advisedly, knowingly, and traitorously did bring and carry between divers of those traitors and conspirators, forward and backward, from some to others of them, a list of the names of divers men of those who were designed and appointed our said lord the king so as aforesaid by lying in wait to kill and murder; against the duty of the allegiance of the said Christopher Knightley, you the said Robert Lowick, Ambrose Rookwood, and Charles Cranburne, and against the peace of our said lord the king that now is, his crown and dignity, and against the form of the statute in such case made and provided.

guilty of the high-treason whereof thou standHow sayest thou, Robert Lowick? Art thou est indicted, or not guilty?

Rookwood. Not guilty.

Cl. of Ar. Culprit, How wilt thou be tried? Rookwood. By God and my country. Cl. of Ar. God send thee good deliverance. Charles Cranburne, How sayest thou? Art thou guilty of the high-treason whereof thou standest indicted, or not guilty?

Cranburne. Not guilty.

Cl. of Ar. Culprit, How wilt thou be tried? Cranburne. By God and my country. Cl. of Ar. God send thee good deliverance. Cranburne. My lord, I desire your lordship would grant me the favour for my wife to come to me in private, and that I may have pen, ink, and paper.

LC. J. (sir John Holt), Pen, ink and paper, you must have; but as to the other, we must consider of it. Keeper of Newgate, What has been usual in those cases?

Keeper. My lord, we let nobody come to them in private but their counsel.

L. C. J. That's provided for by the act that allows them counsel; but has it been usual

heretofore to permit any body else to be with them in private; the wife, or any other relations?-Keeper. It has not.

L. C. J. It is very dangerous if it should; therefore let him have his wife come to him in the presence of the keeper.

Cranburne. And pen, ink, and paper, I hope, my lord?

L. C. J. Yes, yes, that you shall have. Cranburne. You don't deny me, my lord, that I may have my wife come to me?

L. C. J. No, we do not, but she must not be in private with you, for fear of an escape. Rookwood. I beg the same favour, my lord, to have my brother come to me, and pen, ink, and paper.

L. C. J. You shall have the same rule; but you, keeper, must have especial care whom you do permit to come to them, and be private with them; for it is still at your peril if any ill accident happens by your indulgence to them: and yet it is fit they should have all that is reasonable for preparing for their defence at their

trials.

Lowick. And I desire, my lord, I may have my sister come to me, and the liberty of her being in private with me.

L. C. J. Your friends may come to you at seasonable times, in the presence of the keeper; you shall have any thing that is reasonable, but the safety of the government must be looked after. Therefore, keeper of Newgate, take back your prisoners, and bring them here this day se'nnight at seven o'clock in the morning, without any other order.

[They staid at the bar about half an hour, the Judges consulting among themselves about the precept for the petty jury upon a late act of parliament, which has appointed six days for the jury to be summoned before they appear to try any cause, and upon the last Act in Regulating Trials in Cases of High Treason; which requires that the prisoner shall have a copy of the pannel of the jury duly returned, at least two days before his trial.]

Then the Prisoners were carried away, and the Grand Jury withdrew to consider of the evidence against Knightley, and in a quarter of an hour came back, and being called over, delivered in a bill to the court.

Cl. of Ar. Gentlemen, you are content the court shall amend matter of form, or false Latin in this indictment, without altering any matter of substance without your privity. Jury. Yes.

Cl. of Ar. Then, gentlemen, you may go for this time; and you are to take notice if there be occasion at any time to call you together, you shall have sufficient warning given to you beforehand. This is Billa Vera against Alexander Knightley for high treason.

[Then the Judges resumed the debate among themselves, and at last resolved that there should go three several Venires for the petty jury, returnable this day se'nnight; one to try

between the king and Robert Lowick, the second to try between the king and Ambrose Rookwood, and a third between the king and Charles Cranburne; because, though the indictment be against them jointly, yet it was a several offence in every one of them, and they might sever in their challenges, and that would be troublesome, and therefore it was thought best to sever them in their trials; and therefore the court adjourned for an hour or something more, while the precepts for the jury were preparing, and according to the adjournment met, and signed and sealed the precepts, and then adjourned the Sessions of Øyer and Terminer until this day se'nnight, at seven in the morning.]

Die Martis Vicesimo primo Aprilis, Anno Regni Regis Willielmi Tértii Octavo, Annoq; Dom. 1696.

The court sat about eight o'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 Nevil, Mr. justice Powel, Mr. justice Eyre, 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 Precept. Cl. of Ar. Mr. Baker, pray, whom 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.

Rookwood to the bar, (which was done). You Cl. af Ar. Keeper of Newgate, set Ambrose those men that you shall hear called, and perthe prisoner at the bar, Ambrose Rookwood, sonally 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, before they be sworn.

Sir Bartholomew Shower. If your lordship pleases, we have a doubt or two to propose to your lordship, in respect of the trial this day: but before I offer it, we beg your favour for a word in behalf of ourselves.

My lord, We are assigned of counsel, in pur suance of an act of parliament, and we hope that nothing which we shall say in defence of our clients shall be imputed to ourselves. I thought it would have been a reflection upon the government and your lordships' justice, if being assigned we should have refused to appear; it would have been a publication to the world, that we distrusted your candor towards us in our future practice 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 counsel, as there always hath been in this. 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 practices for which the prisoner stands accused, nor the principles upon which such practices 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 counsel 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 tried 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, duly returned by the sheriff and delivered unto them; and every one of them so accused and indicted respectively two days at the least before he or they shall be tried for the ame. 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 trial 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, VOL. XIII.

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 trial. For in the first place, my lord, the words are plain: it must be a copy of the pannel duly returned by the sheriff. Now, though it be a copy of the array of the pannel which we have delivered to us, yet 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 counsel 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 false return cannot lie 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, duly returned by the sheriff 'two days before the trial.' Now, we humbly insist that the words duly returned' must be antecedent to the having the copy, or else he cannot be said to have a copy of the pannel duly returned. The act of parliament does not say which shall be duly returned; and therefore there does arise a doubt, whether your fordship will not direct us to have a copy after the return made, which is but this day.

us.

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 Now the return is the answer that is indorsed upon the writ with the pannel annexed, and delivered into court; for the return is to the court, and till it be delivered into court, it cannot properly be said to be a return. We acknowledge the copy of this pannel has been delivered unto us, two or three days ago. But the Venire being not returned till to-day, we think we have not a copy of the pannel within the intent of, and according to the act of parliament. And I desire to put your lordship this case: this act of parliament does likewise provide, that the prisoner should have a copy of his indictment five days before his trial, to enable him to consult with his counsel how to plead and defend bimself; suppose then a copy of a bill that is intended to be presented to the grand jury, be de livered to the person accused five days before the grand jury are to meet, and they afterwards meet, and find it, and the party is brought immediately, and arraigned upon it: this is a true copy of the indictment, yet certainly the intent of the act of parliament is not answered, for it was not a true copy of the indictment at the time it was delivered. And I take this case to be under the same reason. This is not a pannel duly returned, till now; and therefore by consequence we have not that advantage Ꮮ