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. 32 Bro. Ret. Det. Bre. 97, and Error 193. Palm 564, and 6 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 tune,' 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. salt 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 ⚫sultum fecit, et ipsum,' the person that was in a warlike manner, viz. with swords, &c. murdered, cum quodam cultello,' of such a seipsos illicite et proditorie insimul ad tunc et price, percussit;' and he does not shew the 'ibidem congregaverunt et assemblaverunt et place where he struck him, nor had the indict-guerram publicam contra dictum Dominum ment the words, ad tunc et ibidem,' and therefore 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 likewise 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. 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 Dominama 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 Nicholauin recipere et bibere quendam potum mixtum cum quodam veneno vocat. Cantharides ;' and the indictment says, ' Quod prædictus Nicholaus nesciens prædictum potum cum Vẻneno prædicto fore intoxicatum, sed fidem ad'hibens 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. $85, 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 forn and of the first impression, I hope your lordship will bold it insufficient. And, my lord, when they go farther, and say, Et quilibet eorum proditorie 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 bave 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 horsemen, 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 Jord, 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 bow to do it, as is laid in the indict-words the indictment was held insufficient, and 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 Knightley was not there; and the proving these three others making a consult and agreement, 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 issable, 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 fidem 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 word Quorum,' to express what they severally engaged to be; and the word 'et' can Sir B. Shower. My lord, we think the objection is fully put, and therefore we desire to have their answer to it. Att. Gen. (sir Thomas Trevor). We think, my lord, this objection will receive a very plain answer. The indictment 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 is set forth immediately after that, it is said they did consult of the manner; so that, my lord, it is part of the former sentence; a particularizing of what they did agree upon at that consultation; but it is no distinct overt-act: if it had been a distinct overt-act, then the cases that have been cited by the counsel, do shew, that there should be a particular time and place mentioned for every overt-act; but this is only a part of that overt-act that was mentioned generally before: this tells you particularly what the means were they did agree upon, and the sentence is not complete till you have gone over this; so that, my lord, with submission, it had been very improper when they agreed at such a time and place, of the meaus and ways how it should be effected, then to set forth that it was at the same time and place where they did consult of the ways and means, that cannot be proper; for it is not laid at first, that there was any particular way proposed, but only in general, they consulted of the ways and means; therefore, my lord, all this that Mr. Mompesson has said, will not be pertinent to this case, it is impossible to have been otherwise; it is but a part of the sentence; and it is not complete till you have gone over the several particulars: as to the Case of a Rescous,' that is, the offence upon which the matter is to be grounded; the Verberavit' and 'Vulneravit' are not the rescuing; but where there is not one sentence complete, till you come to the end of these words, there it must be all taken together; so it is here, they consulted of the way, and agreed this to be the way, which they set forth in particular: it is joined to the former part of the sentence, and the whole is not complete without it. 6 Sol. Gen. (sir John Hawles). With submission, my lord, it cannot be otherwise, nor can they make it sense otherwise. L. C. J. (sir John Holt). They say you might and should have put in, ad tunc et ' ibidem.' Sol. Gen. With submission, my lord, I say it cannot be repeated again: indeed, if you would make it like the case, as Mr. Mompesson would have it, that forty men did agree to it, and forty men did it, it were necessary to name time and place, as it is in the case of murder: that he did agree to murder him, and afterwards knocked him on the head, there you shall lay time and place where he agreed, and where he did the act, for there is an act done; but in this case there is no act done, but only an agreement that forty should do it, whereof these four were to be part of the number. Now, they cry, you do not say what these four were to be for. Yes, we do: the forty were to do such an act, and these were to be four of that forty, and every one of them undertook to be one; so that it cannot be expressed otherwise than it is; for what they say of the indictment's being not in the same form that other indictments are, that will be no argument at all; for it does not follow, that there must be one expressed form of an indictment; of right there are divers forms of indictments, and all of them good, because indictments are to be framed according to the particular case, and they can. not put me an instance of such a particular case as this. As to that of the mistake of the name of Knightley, that unquestionably can be no objection at all: for how does it appear to the court, that this is against the same person that was before indicted by the name of Christopher? there may be another Christopher, for aught they know: but I will suppose, that the consult was proved not, as it is laid, that there were to be four; but only that they were to be three of them, it would be well enough against the prisoner at the bar, if he be proved to be one. Mr. Conyers. First, we have here laid a time and place for the treason alleged in the indictment, and also for the two overt-acts, how, when, and where it was to be done, and the providing of arms for it; and for this particular of the forty men, that they would have us put the ad tunc et ibidem' to that, is but part of the overt-act, which was before alleged; for the first overt-act mentioned, is the meeting and consulting, and there we lay both time and place; that on such a day, and at such a place, they did meet and consult of the way and manner how to do such an act: and then we continue on the sentence, by particularizing how it was to be effected; that they did agree there should be forty horsemen to do it, whereof they were to be four: this is but a part of the overt act, which is the consulting and agreeing upon the ways and means; this particular means agreed upon, being but the result and effect of the consultation before: so that we conceive there is no want of time or place upon which to take issue in this case. Mr. Cowper. My lord, I think, with submission, there is nothing in their objection, and I take it to have received a full answer already: yet I would ask one thing of the gentlemen of the other side, had the sentence run without the words 'de iis modis et mediis,' &c. which follow after the word 'consultavit,' and before the words 'et agreavit ;' in this manner, That they did then and there traitorously treat, propose, consult, and agree, that forty horsemen, or thereabouts, with guns, and so forth. If then there had been any colour to think it necessary, that it should be laid in this manner, That they did then and there traitorously treat, and then and there traitorously propose, and then and there traitorously consult, and did then and there traitorously agree: and if not, then I would desire them to tell me why then and there' is more necessary to one verb 'did agree,' than it is to all the rest, in sense and common speaking. The only use of a conjunction copulative, is to derive the force of some words, in a sentence foregoing, down to a sentence following, to avoid repetition: and here, though after the consultation be put, many words that relate to that matter, by way of parenthesis; yet the 'ad tunc et ibidem' still does refer to all the verbs following, being joined by the conjunction copulative; it does not vary the case at all, the putting in that parenthesis; it is notwithstanding but as one sentence: and the supposing that the parenthesis stood out, makes it very plain, there can be no colour to say there wanted a repetition of the 'ad tunc et ibidem' to every verb. 6 Att. Gen. No sure: we do not need to prove all four, for it is a distinct offence in each, and if any one undertook, it is well enough against bim: and for the time and place we tell you it is part of the former sentence, and makes but an intire one. Att. Gen. The Rescous' is the offence in that case, the other is distinct: but here, in this case, nothing can be plainer than that all is one act, as we have laid it, That at such a time and place they did consult and treat of the ways and means; but then there is no agreement mentioned till after we have said they did consult of the ways and means, and did agree that this should be the way: this is certainly one entire sentence that shews what the agreement was upon the consultation as the result of it. Mr. Mompesson. As for the residue of the Sir B. Shower. With submission to your verbs, if they had been omitted, it had been lordship's judgment, there is no answer made good sense; but this is a perfect intire sentence to this objection. I do agree, if there had been of itself, when it tells you what they consulted several verbs, and no other words had inter- and treated of, as in the Case of the Rescue vened, that an 'et' would have coupled all to- that I put; if it had stopped there, it had gether, and you need not have repeated ad been a good sentence without the Vulnera'tunc et ibidem' to every one: but here is a ' verunt.' fact after the verbs, that makes one complete entire sentence; and if this of the forty men were left out, it had been a good sentence, that they did propose and treat how, where and when; that is a sentence of itself, the consult ing and the treating of the ways and means: but then they say, and they did agree and assent that forty should do it:' now there is no necessity for the interpreting of these words, That they should consult and agree at the same place and time; there is no necessity to conjoin this agreement for the forty men with the consultation; they might propose and consult at one time and place, and not agree, and afterwards agree at another time and place: it is not a specification, or, as they call it, a specific account of the consultation, nor a necessary effect of it, so as to make it necessary to join them together; they might meet and consult at one time and place, and at another time and place they might agree that forty should do it; and therefore when you say at one time and place they did consult and propose, and afterwards they did agree; it is not necessarily implied, that it must be at the same time and place; and when it is not necessarily implied, we think it necessary in indictments, for certainty-sake, to have ad tunc et ibidem' inserted again. Mr. Mompesson. My lord, Mr. Solicitor says, That as to other precedents, that does not make it necessary that this should be like them; and that it is no argument that it ought to be so here. My lord Coke, in Calvin's case, tells us, That by precedents the law is known, and that indictments of treason are of all things the most curiously penned; and it is common to infer the law is so, because usually it is so in the precedents of indictments. Mr. Solicitor says likewise, That there may be a Christopher Knightley besides an Alexander; but I cannot take that for an answer to the exception I urge, which is the want of ad tunc et ibidem' at the "Quorum, and the 'Quilibet; for the Quilibet' may come to be in question as the most material part of the indictment, because the agreement of the four upon the meeting of the four is alleged as an overt-act. Now, with submission, they must prove the assembly of the whole four, or they do not prove the overt-act expressly laid: then as to the Quilibet sus 'cepit,' which is the most material part, it has no time nor place, VOL XIII Mr. Cowper. As to what sir Bartholomew Shower says, That we ought to repeat the 'ad tunc et ibidem,' unless the sense of the words implies a necessity that the consultation and the agreement should be at one time and place: My lord, there can be nothing in that, for it does not arise from the necessity of the thing one way or the other; but we take it as an intire sentence, and that the whole matter is sufficiently connected, and laid to one time and place, though it might be divided, it must be taken, as alleged, to be one intire fact, or else it recurs to the same objection, that ad tunc et ibidem' must as well be put to every verb; for it is possible they might propose at one time and place, and consult at another, and debate at another as well as agree at another: so that nothing is to be argued from the necessity of the thing more in one case than the other; for one man might propose it in one place, and the rest might then shake their heads at it; and then they might again meet and consult at another place, and afterwards agree at a third: but when it is said then and there' they did meet, consult, and agree, it cannot be understood but that the agreement was at the same time and place with the meeting and consult. Sir B. Shower. But this can be no answer that Mr. Cowper gives now, for proposing, and consulting, and treating, and debating, are all of the same signification; for one man's proposing to another, and the other's proposing to him, is consulting, treating, and debating; but now consulting and agreeing are different things. Mr. Cowper. So is proposing and consulting: one may propose: but there must be at least two to consult: there is that nice difference between them. Sir B. Shower. Every one must agree for bimself, and that must be certainly laid with T Att. Gen. My lord, that is a different case from this, because insultum fecit,' and the 'percussit,' are different crimes; there is a great difference between an assault and a stroke: but here it is, That they did propose and consult of the ways and means, and agreed upon this particular way; that is the same thing; it is not an entire sentence till you come to the end of it, then it is complete when you shew what was the effect of the consultation; what they were agreed upon, and not till then. Mr. Mompesson. A man's holding up his hand is an assault, but he must actually strike to be guilty of murder: so a man may debate, and yet not agree: it is the agreement that is the treason. 'Lowick, Ambrosius Rookwood et Car' Cran- L. C. J. Read the Indictment. Cl. of Ar. Decimo die Februarii anno 'Regni dicti Domini Regis nunc septimo, et 'diversis aliis diebus et vicibus, tam antea quam 'postea, apud Parochiam Sancti Pauli CoventGarden, prædict,' in Comitatu prædict', falsè, 'malitiosè, diabolicè, proditoriè, compassaverunt, imaginati et machinati fuerunt, excogi-forent, et essent in subsessu, Anglice in 'taverunt, designaverunt et intendebant dictum 'Dominum Regem nunc occidere, interficere, et murdrare, et stragem miserabilem inter fideles subditos ipsius Domini Regis per totum hoc Regnum Angliæ facere, et causare, et ad easdem nefandissimas, nequissimas et diabolicas proditiones et proditorias compassationes, 'machinationes, et proposita sua prædicta perimplend', perficiend', et ad effectum redigend' ' ipsi iidem Christophorus Knightley, Robertus Mr. Mumpesson. The consult is like the assault, and the agreement is like the stroke. L. C. J. Treby. It is a nice case as you would have it, but I think it is very natural as the king's counsel put it at first; they lay the consultation of the ways and means how it should be done, and then they conclude that thus it shall be done: all which makes but one *No indictment (as to the diversity in im peachments, see in this Collection the Case of ford Wintoun, A. D. 1716) can be good without precisely shewing a certain day and year of the facts alleged in it. See Leach's Hawk. Pl. Cr. b. 2, c. 25, s. 77, 78, and the authorities there cited. See, also, lord Kenyon's judgment in the King against Holland, 5 Term, Rep. 624, 625. But it is sufficient in an in-intire thing. dictment for treason, as in other cases, that a time be laid before the finding of the bill under which may be proved any acts committed before the finding of the bill: and as to place in cases of treason within the realm, it is sufficient that an overt-act be proved in the county where the indictment is laid and the trial had. See in this Collection the Cases of Charnock, vol. 12, p. 1378; and of lord Balmerino, A. D. 1745. East's Pleas of the Crown, chap. 2, sect. 60, 61, and the authorities there cited; and for more, as to the place where treasons committed abroad or at home, shall be tried, see sect. 40, 41, of the same chapter. L. C.J. They say they met that day at St. Paul Covent garden, that is in the beginning, and did consult how to kill the king; and they consented and agreed among themselves, that it should be done in this manner: doth not this refer to both time and place in the beginning It is a continuing on of the same sentence, and makes all but one and the same act; it is the result of the consultation at that time and place. " Sir B. Shower. But, my lord, it might be at another place: they might consult at one place, and conclude at another. Mr. Conyers. But it is laid to be at the same |