purpose it requires the sheriff to summon, out of all parts of his country whence the prisoners come, a great number of freeholders not a-kin to the prisoners, to be at the time and place appointed for bolding the court. The sheriff, by virtue of this general previous precept, summoneth many for jurors, and divers prepares several pannels of their names, either at first, or afterwards, as appears necessary, and returneth and delivereth in one or more of these pannels, from time to time, as the court does need, and call for any: this, we know, in fact, is frequently done where the sessions of gaoldelivery lasts several days, and there is occasion. Though, iu supposition of law, all these pannels are returned, and the trials thereupon had the first day of the sessions; and, in law, it is intended to be but that one day only. The return of this precept is thus, viz. Executio istius Præcepti patet in quibusdam Panellis huic præcepto annexis,' and the pannels are annexed, and there are often filed here divers pannels upon the same general precept, though sometimes but one. These pannels are thus delivered into court, and a jury taken out of them as there is occasion, only upon a Parol Award, that is, barely the court's calling for the same, without writ or precept in writing, or giving any day for the doing it. For this preceeding is immediatè, for the speedy delivery of prisoners; and the entry, after setting forth that the prisoner being arraigned pleads not guilty, is, Ideo immediatè veniat inde Jurata,' or fiat inde Jurata.' And this court's being instituted for the speedy delivery of prisoners, and warnings being given long before, of their coming, are the causes why it has been always held without doubt, that justices of gaol-deli· very might inquire and try the same day.

If it fall out, that by reason of defaults, deaths, or challenges, there cannot be a full jury had out of a pannel, (as here there wanted three) which is an accident that the court cannot know, till they have gone through the pannel; I think in this case, that pannel goes for nothing, is utterly lost and void, and to be cast away or cancelled: for it does not answer the award of the court, which was to have a jury to try the prisoner presently. It is meant an effectual pannel that should afford a full jury of twelve unexceptionable men; and every pannel that comes short in this, is to be laid aside as a void thing; and then the court takes and makes use of another immediately, which may not be deficient, whereby the award is observed, and the present service dispatched.

Objection. It is objected, That the old pannel is parcel of the record in court, and, upon that, nine were sworn, and their names are all entered upon record; and now to add a new pannel, upon which twelve shall be sworn and try the prisoner; all this appearing upon record, it will be error.

Answer. This Objection stands upon two mistakes, both arising from not observing the difference between precepts and pannels, in a

court of Gaol-delivery and Venire Facias, or precepts and pannels in other courts.

1. It supposes that here will be two pannels, which will appear to relate to the trial of this prisoner, Mr. Cook.

2. It supposes that both these will become records, or parcel of the record in court.

If either of these suppositions prove to be a mistake, it will destroy the objection. I think both are mistakes.

1. Here is not, nor will be, nay, there ought not to be any pannel purporting to be returned for the trying of Mr. Cook, or any particular prisoner or prisoners. For the precept in this case is (not like a Venire Facias, which always respects a particular issue be tween parties therein named, but) general, requiring the sheriff to return jurors enough to try all the prisoners, not naming any. And the return, which is the answer to it by a pannel or pannels, is as general; the title of every pannel being Nomina jurator' ad triandum pro domino rege,' and no more; or nomina juratorum ad triandum inter dom. regem et prisonar' ad barram,' without naming any of the prisoners, and it were absurd if it should be otherwise: for the precept goes to the sheriff before the sessions, and his return is supposed to be made at the beginning of the sessions, when it is not known who of the prisoners will be indicted; or, if indicted, who will plead not guilty, or guilty, or a pardon, or other plea.

When, for the trial of a particular prisoner (or divers prisoners that are thought fit to be put upon trial by the same jury), a jury is about to be taken out of any pannel, the clerk, as he goes along, may take a note in paper of the name of every one that is sworn; or he may (and usually doth) write jur. on the said pannel, against the name of every one sworn: but this note or mark is no part of the record; it is not ex institutione legis, it is but a voluntary memorandum for the help of his memory. If he could safely trust to the strength of his memory, he need not write at all on this occasion; I mean, not till a full jury is sworn, who try the prisoner. But then, indeed, the clerk must (from his notes or memory) write the name of all the twelve, entering them on the record of the indictment, in this manner, viz. just after the Ideo immediatè veniat înde ju'rata coram prætatis justic.' &c. adding, et juratores jurats illius, &c. scil. A. B. &c. 'dicunt, &c.' And it is by this only, that the names of those that are sworn, come to be of record; and it is this entry upon the body of the indictment alone, that is the record, that shews who were jurors sworn, to try this, or that, or other prisoner or prisoners.

So that if the old pannel were filed, and were a record, as the prisoner's counsel would suppose, yet it would not thereby be made appear, that the said pannel was returned, or used for, or in order to the trial of this pri

soner.

2. The old pannel is not filed among the re

cords of the court, nor ought to be. When such a pannel does not produce a jury, the clerks may and use to throw it by as a useless thing. But, how yer they use it, we cannot allow it to be a record. It was received de bene esse; it is abortive and comes to nothing. And it is not every thing that passeth in court in order to a record, that comes to be so. A frivolous plea that is rejected, is not recorded. A presentment or bill of indictment, before it is found, is not a record: And if an ignoramus be returned upon a bill of indictment, it never can be a record; and thereupon, the clerks do sometimes throw it away, though sometimes they keep it and put it on the file, only taking care to cross it; but if they do forget to cross it, yet it is not a record.

By all this it is apparent how great the difference is between a precept and pannels in this court, and a Venire Facias and a pannel returned thereupon, which is ever issued after issue joined, and doth always mention the particular parties and matter it relates to, and is a record, and a ground for an Habeas Corpora with a Tales, to be returnable at a certain future day. But, in this case, in this court, it is quite otherwise.

Sir B. Shower. Then, my lord, since there is a new pannel, we hope we stand in the same condition upon the act of parliament, to take exceptions to the indictment before this jury sworn, as we did before the other jury sworn, since all that is quite set aside.

L. C. J. Treby, Yes, truly, I think that may be.

Att. Gen. But these gentlemen would have done well to have given notice of their exceptions.

Sir B. Shower. My lord, I shall not stand upon an exception which I think I might take to the word Turmas' in the indictment, which, whether it be troops of men, or horses, or what it is, does not appear; but, I think, we have an exception to the chief overt-act laid in the indictment, and that, we presume, if my brief be right, will be sufficient to set aside this indictment: that Mr. Cook did agree with other traitors to send Mr. Charnock into France to the said late king James, and king James is never mentioned before in all the indictment; that is one exception that we have, that there is no late king James mentioned in the indictment before this. if my copy be right, if it be otherwise, I suppose they will find it: it is laid, That Mr. Cook did agree to send Charnock as a messenger into France, Eidem nuper regi * Jacobo,' and no Rex Jacobus' is mentioned before. Then there is another exception, and that is this: they come and say, That whereas there was a war with France, which is only in the indictment by way of recital or rehearsal of an history, Quod cum per magnum tempus 'fuit et modo sit,' &c. Mr. Cook, the premisses knowing, did compass and imagine the king's death, and did adhere to the said king's enemies such a day. Now, my lord, I do think that this can never be maintained, for

6

that Cum quoddam bellum,' &c. being an historical narrative, is not positive enough: for adhering to the king's enemies being one of the treasons laid in the charge, there ought to be a war at the time of the adhesion, and of necessity then that ought to be presented by the jury; for though your lordships can judícially take notice of war or peace, yet you cannot take notice of it at such a particular time, and the reason is from the notion that is in my lord Coke in his third Institutes, cap. Treason, That adhesions to rebels is not adbesion to the king's enemies, for a rebel is not said to be an enemy; but it must be adhering to such an enemy, as between whom and the king there was war at that time; and consequently it ought to be more positively averred in the indictment than it here is; but as to the overt-act of Mr. Cook's consulting and agreeing to send Charnock over to the said late king James, to give him notice of what was agreed upon between them, when king James is not named before, that can never be got over, with submission.

Mr. Baker. It is a mistake of your copy, sir Bartholomew Shower.

Att. Gen. I have looked into the record, and it is Jacobo secundo nuper regi,' not' dicto.' Sir B. Shower. Then, with submission, my lord, they cannot try us now, for we ought to have a true copy of the indictment.

Mr. Baker. Upon demand. But you never demanded it.

Sir B. Shower. Yes, it was demanded.
Mr. Baker. Who demanded it?

Sir B. Shower. Our solicitor Burleigh. Mr. Baker. No, he did not; I gave it him officiously.

Att. Gen. With submission, my lord, it is no objection at all, that their copy is wrong. That should have been before the prisoner had pleaded; for the words of the act are, That he shall have it so many days before, to enable him to plead, and he cannot be put to plead unless he have a copy of the indictment so long before and at Rookwood's trial it was said by the court, it could not be alledged after plea pleaded.

Mr. Burleigh. The copy was given to me publicly in court.

Sol. Gen. Why did not your solicitor compare it with the indictment?

Att. Gen. They might have compared it by the clerks reading it to them; but they will not admit the prisoner's solicitor to see the original, because the act expressly says they shall not have a copy of the witnesses names.

Sir B. Shower. The officer is to deliver a true copy of the indictment.

Att. Gen. No: the party is to demand it by himself or his agent, and then he is to have it; and if he be denied, he ought to apply himself to the court, who will order the delivery of it; but we stand upon it, that they cannot take this exception now after they have pleaded, for the intent of the copy is to enable him to plead.

L.C. J. Treby. The copy, by the act of par

liament, is to be delivered to the prisoner, his attorney, agent, or solicitor, if they require the same; and here it seems there was no requiring of it, but it was voluntarily given; and now you have lapsed your time of making the exception of wanting a copy, by having pleaded to the indictment, whereby you have in effect admitted and declared, either that you had a true copy of it, or that you did not think fit to require one; for the use of the copy is to better enable the prisoner to plead. But when you did plead, you took upon yourself to be well able to plead without the help of a copy, which you might have had upon the asking for.

Sir B. Shower. Then, my lord, there is another thing in the indictment, that in this overtact there is a new time, and a new place, and a new verb, and a new fact alledged, and no nominative case: it is alledged, That Peter Cook, at first, with others, did so and so and then the first of July to bring the treasons aforesaid to effect there et alibi &c. (which is very loose, for I know not whence the venue must come) did traiterously with Charnock, Freind, &c. consult to procure Diversas Turmas et Legiones, &c.' to join with them in England, and then it comes et ulterius such a day, year, and place, did traiterously agree so and so, and not say who: Now this is neither by express words, nor rule of grammar to be referred to the prisoner at the bar; it does not say ' ipse idem Petrus Cook;' now, my lord, that the king's counsel thought it necessary in every overt-act is plain, because those words are put in every other clause of the indictment, in those clauses that go before, and those clauses that come after; then if they will take it, that this clause must refer to the next antecedent, that will not do, for the next precedent nominative case is either Freind or Charnock: So that this is without a nominative case, and the precedents in my lord Coke's entries 361, and all the other books have the nominative case repeated, where there is a new time, and a new place, and a new fact alledged: Now it might be true, that the prisoner at the bar might be present, and this same treason might be discoursed of and agi- | tated, and there might be a consult about this business; and yet it is not necessarily implied that he must consent and agree to send Charnock into France, upon which the great stress of the indictment lies: therefore we say, these words having no nominative case, the indictment cannot hold.

terius, he and they did agree to send Charnock to the late king James.

Just. Rokeby. There is the first naming of James the second, late king of England, and there is no eidem Jacobo, I promise you. 1

L. C. J. Treby. Well, that mistake is over. Pray go on, Mr. Attorney General.

Att. Gen. My lord, as to this objection of sir Bartholomew Shower, he would have ipse idem Petrus repeated over again; and he says, that we lay a distinct overt act with a different time and place: now that is a mistake too; it is not a different time and place, but the same time and place; and it mentions that' cum R. Charnock, J. Freind, &c. et cum aliis Proditoribus conveniebat, consultabat, &c.' which he says may refer to sir John Freind or Charnock: but if you look into the frame of the sentence, that can never be.

Just. Rokeby. Petrus Cook is the nominative case that governs all the verbs.

Att. Gen. And there is no other nominative case in all the indictments, but Petrus Cook, except it be in a parenthesis, and that saves the rule of grammar, if there were any thing in it, that it must refer to the last antecedent.

Sir B. Shower. When it comes to the clause that he did procure horse and arms, there the nominative case is repeated.

L. C. J. Treby. It would not have made it worse, if they had made it so here; but the question is, whether it be necessary?

Sir B. Shower. Indictments ought to be precisely certain; but this we say is not so..

Att. Gen. But here is as much certainty as to the person, as can be, that he did consult with such and such about such things; and further, the same day did agree with the same traitors to do so and so.

Just. Powell. Indictments, it is true, ought to be plain and clear; but I do not see but here is as much certainty as can be, that he did such a day consult, and further, the same day did agree with the same persons.

Sir B. Shower. Who did agree, my lord? Just. Powell. He that did consult with them before, and that is Peter Cook.

Att. Gen. You would have had us to put it to every verb, I believe.

Sir B. Shower. In indictments no presumption ought to be used, but the facts ought to be directly and positively alledged.

Just. Powell. It is true, there should be no presumption; and there is none here, for certainly this is a plain assertion of fact.

L. C. J. Treby. Here are two things that are set forth: First, That Peter Cook did meet with sir John Freind, sir William Parkyns, and others, and then and there did consult with them, and consent to procure an invasion, and

further with the said traitors did agree to send Charnock into France. Now, what is the nominative case to this agreement? Is it sir John Freind, and sir William Parkyns? That is impossible: for they could not be said properly to meet and consult with themselves, every one

of them with his own self and the rest. And then the number, if it had referred to them, should have been plural: but here it is singular, [agreavit] and the sense is no more than this: that then and there Mr. Cook did meet with such persons, and did consult with them about such and such matters; and further did agree with them to do thus.

Sir B. Shower. The meaning is not to be forced and strained by inference or presumption, but it ought to be express and plain.

L. C. J. Treby. Nay, you cannot express it better; you may make a tautology of it, if you will.

Sir B. Shower. The paragraph is long, my lord, and therefore requires the more care to have those repetitions that are necessary.

L. C. J. Treby. Your objection to this paragraph is, that it is too long; but repeating the same nominative case to every verb would make it much longer.

Sir B. Shower. It cannot be understood to mean Peter Cook without presumption, which ought not to be in an indictment.

Att. Gen. And as to sir Bartholomew Shower's first objection, his copy is right too, and he mistook the place.

Sir B. Shower. You should have given me that for an answer.

Att. Gen. Nay, you should have taken more care, and not have made the objection.

L.C. J Treby. Truly, I think it is hardly possible to have made this better, if it had been otherwise than it is.

Serj. Darnall. My lord, we think we have a good fact of it, which we rely upon, and therefore do not so much insist upon these exceptions; though, in duty to our client, we mention that which we think is necessary, and we submit to your lordship.

Cl. of Ar. Set Peter Cook to the bar. (Which was done.) You, the prisoner at the bar, these good men which you shall hear called, and personally appear, are to pass between our sovereign lord the king and you, apon trial of your life and death; if therefore you would 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

L. C. J. Treby. You say right, Sir, it is a good cause of challenge.

Just. Rokeby. That will be a sufficient cause, if when they come to the book, you object that, and be ready to prove it.

Cook. Which is sir John Sweetapple? (He was shewn to him.)

Cl. of Ar. There he is.
Cook. I challenge him.
Cl. of Ar. William Walker.

Cook. Sir, have you said any such thing, that you believe me guilty?-Walker. No, Sir. Mr. Baker. My lord, he is asking of the juryman the question.

Just. Rokeby. That is a fact the prisoner should prove upon him.

Att. Gen. My lord, he must not ask the jury that question, whether they have declared before, that they will find him guilty; that is to make them guilty of a misdemeanor.

Serj. Darnall. Is it any misdemeanor for me to say, I think or believe such a man is guilty?

Att. Gen. If he be summoned to be of a jury, and declare his opinion before-hand, it is a misdemeanor.

Serj. Darnall. But suppose it be before he was summoned ?

Att. Gen. If you make any such objection, you must prove it, and not out of the juryman's own mouth.

Serj. Darnall. I think any man, my lord, that comes to serve upon the jury, may be asked any question that does not make him guilty of any offence or crime, or liable to any punishment: Now if any of these gentlemen that are returned upon this pannel, before the summons have declared their opinion that the prisoner is guilty, or ought to suffer; with submission, the prisoner may ask such a question, whether he have said so, yea or no?

Just. Powell. He cannot upon a Voyer Dire be asked any such question.

Just. Rokeby. It is not denied to be a material objection, but it must be made out by proof.

L. C. J. Treby. You put it too large, brother Darnall; you may ask upon a Voyer Dire, whether he have any interest in the cause; nor shall we deny you liberty to ask whether he be fitly qualified, according to law, by having a freehold of sufficient value; but that you can ask a juror or a witness every question that will not make him criminous, that is too large: men have been asked, whether they have been convicted and pardoned for felony, or whether they have been whipped for petty larceny: but they have not been obliged to answer; for, though their answer in the affirmative will not make them criminal, or sublen at Maidstone, A. D. 1798, in this Collection. See too, Leach's Hawkins's Pleas of the Crown, b. 2, c 43, s. 28; and the objection to the earl Mareschal, earl of Dumfries, lord Blantyre and lord Johnstoun, vol. 3, pp. 690, 691 of this Collection. See too Peake's Law of Evidence, c. 3. s. 2. art. Witnesses discrediting them.

ject them to punishment, yet they are matters of infamy; and if it be an infamous thing, that is enough to preserve a man from being bound to answer. A pardoned man is not guilty, his crime is purged; but merely for the reproach of it, it shall not be put upon him to answer a question whereon he will be forced to forswear or disgrace himself. So persons have been excused from answering whether they have been committed to Bridewell as pilferers or vagrants, or to Newgate for clipping or coining, &c. yet to be suspected or committed is only a misfortune and shame, no crime. The like has been observed in other cases of odious and infamous matters which were not crimes indictable.* But to keep to our case, it is true, a juror may be challenged being an alien, or being a villain; but where the matter apparently carries crime or shame, it should be proved; the outlawry should be proved, and so should the being a villain. Yet that is no crime, though it be an ignominy.

Serj. Darnall. But, my lord, I take this to be no manner of infamy at all; there is nothing of crime, nor nothing of reproach, but only a declaring of a man's opinion."

L. C. J. Treby. Truly, I think otherwise; I take it to be at least a scandalous misbehaviour, and deservedly ill-spoken of, for any man to prejudge, especially in such a heinous matter. I think it is a very shameful discovery of a man's weakness and rashness, if not malice, to judge before he hears the cause, and before the party that is accused could be tried. But it seems, by what the prisoner says, that he would ask all the jurors, whether they have not said that he was guilty, or that they would find him guilty, or that he should be hanged, or the like: which (presuming him innocent) is to ask, whether they have not defamed and slandered him in the highest degree; and to force them to discover that they have a mortal hatred to him, and come with a malicious resolution to convict him: which, admitting they are not punishable by our law, yet are things so detestably wicked and so scandalous, as are not fit to be required to be disclosed by and against themselves.

Serj. Darnall. Pray, my lord, what is more common than for a man to say, before he is summoned to be upon a jury, when he hears a fact reported concerning such a one, to say, 1 believe he is guilty, or, I am of opinion he is, and I am sure be will be hanged? and yet there is no crime in this.

L. C. J. Treby. Truly, brother Darnall, I know not how you may approve of such a man, but I'll assure you I do not. I take the question not to be concerning a man's discoursing suppositively; as, if upon hearing news, or a report of clear evidence, a man should say, Supposing this to be true, such a man is guilty, and I should find him so if I were of his jury. This might not be sufficient to set aside a juror :

* As to this matter, see Peake's Law of Evi1 dence, chap. 3, s. 2.

For this has been a general discourse among the subjects upon occasion of this conspiracy; and it imports, that if evidence should not be true and clear, he would acquit him. And so he is, as he should be, indifferent. But if a man qualified for a juror, affirm positively that such a prisoner is guilty, and that he will find him so, whatever evidence or proof be given or made to the contrary; I think that may be a misdemeanor punishable as an owning and en. couraging of falshood, perjury, and injustice, and a contempt and scandal to the justice of the kingdom: though I hope and believe that no man hath so demeaned himself.

Just. Powell. In a civil case it would be a good cause of challenge. If a man have given his opinion about the right one way or other, may you not upon a Voyer Dire ask him whether he hath given his opinion one way or other? I believe it may be asked in a civil cause, because he may have been a referee; but if you make it criminal, it cannot be asked, because a man is not bound to accuse himself; now the difference lies in the nature of the, cause; it is not criminal in a civil case for a man to say he was an arbitrator in such a case, and, upon what appeared before him, he was of such an opinion.

Att. Gen. But, my lord, it is a different case to give an opinion about the right between party and party, where a man has been an arbitrator and so in the nature of a judge, and where a man is to go upon a jury in the case of life and death, and before the evidence given, he declares his opinion without hearing the cause.

Sir B. Shower. My lord, we know several of the trials have been printed, and the names of several persons mentioned, and upon reading of the trials, or conversing about them, men are apt to give their opinious one way or other.

Serj. Darnall. It is only an objection in case he has done it.

Just. Rokeby. But, brother, how can you ask him the question?

Serj. Darnall. If the court are of opinion that it is such a crime that it cannot be asked, as tending to make a man accuse himself of an infamous crime, then we submit it to you, and I confess we must not ask it; but we cannot apprehend that there is either crime or infamy in it, though we think it is an objection, and a good cause of challenge.

Baron Powys. I think, though it be not such a crime as infamous upon which a man is not to be credited, for that is infamy in the eye of the law, whereby a man is prejudiced in his credit; yet however, it is a shameful thing for a man to give his judgment before he hath heard the evidence; and therefore I think you ought not to ask him it, to make him accuse himself, if it be an opprobrious matter upon him.

Serj. Darnall. Truly, my lord, I always took it to be the rule, if the thing asked to the person returned be not criminal nor infamous, the party that is asked ought to answer to it.