to king Ethelbert, and I do not know who; no, that plainly in common English speaking, means two kings successively; and it must be made a strange, forced construction, if we should interpret it, that he did not speak these words of the late blessed Martyr, and his present majesty. And because enemies is in the plural number, therefore to make it nonsense, because one is destroyed, if the words had been well laid, as they might, therefore it could have no relation to him that was left, I say, would make a strange forced construction. That might be well enough, if the words had been properly laid. But when you come to speak of enemies, innuendo, the king and his subjects? how can that possibly he? For you had talked of nobody before that they are said to have a displeasure to; and therefore, without saying that the king is an enemy, to say,Stand to your principles, and 'you shall destroy your enemies,' innuendo, the king, is, I doubt, to stretch it a little too far. But whereas I have put the words, how I think they should have been laid; says Mr. Solicitor, The truth is, they were not so spoken as you would have them laid, but they are laid as they were spoken, and as they were sworn; and that is a point of fact to be left to the jury, whether they aimed at the king and government, or not. Do you think that an answer? For it would be the same argument in au action of the case for words: Where it is plain it must be dixit de querente,' you do so and so. My declaration must aver it, and I must prove it too. If I do not say it, though I prove it, that will not maintain the action: if I do say it, and not prove it, it will not maintain the declaration; all is naught: and what is there more in this case? if you had said it, that would have directed the jury plainly, upon finding the words as laid in the indictment, to have found what was the intention of the party by these words. These are things (1 must confess) that wonderfully weigh with me. It is in a case of capital offence, where the life of a man is concerned. If the precedents have all gone so, there is some weight in that: but if the precedents be only such as you have spoken of, words directly telling who is meant, they have no manner of likeness to the words in this indictment, because there they could never import any thing else. In the next place, I am stumbled at another thing, Mr. Attorney, and that is, the difference of the persons in one part of the words, and the other. You have begun in the first person plural, We have had two wicked kings together,' and as the Latin words are, Nos habnimus nunc duos iniquos Reges insimul,' but afterwards you say, and if they, ipsi, will 'stand to their principles, he did not doubt but they should overcome their enemies.' It had been best to have laid them, as (certainly in common understanding) they must be believed to be spoken, If you or we will stand to our ⚫ principles;' and then the very innuendo would have been more sensible and applicable. Sol. Gen. But, my lord, it was sworn as by the witnesses, that he said, If they. L. C. J. The words say he preached, 'We have had,' that is, he and the congregation assembled, and then it is afterwards turned to they.' I make no difficulty in the world, but that we have had two wicked kings together,' was intended of the late king and this; and if it had been alledged, that afterwards he had said 'we shall overcome them,' and a jury had found that these words were spoken with such an intention, as is laid in the indictment, it would have been treason. But both in grammar and reason, when you come to say, and si ipsi &c. pray, to whom should that relate? What is the English of ipsi? Is it we, or they? If it be they, in the third person, there are no third persons spoken of, but the two kings, and they are the last antecedent. For my part, it does stumble me, it is a thing of great consideration. I speak not, as I said, to bind myself in opinion; but I think, if ye had put the word nos instead of ipsi, it had come nearer to the understanding of men, both in grammar and sense. For I exclude myself and them I speak to, if I put it in the third person, and your innuendo (Î said) can no way help it. Att. Gen. Truly, my lord, I did not think that that did rest upon your lordship at all, as any objection. L. Č. J. It does rest, I assure you, Mr. Attorney. Sol. Gen. If we had done otherwise, we should not have laid it as the truth is, and the Latin does not alter the case, for the word spoken was They.' · L. C. J. Ay, but certainly he said, no doubt, you' or we,' if you will stand to your principles, it's nonsense else. 6 Sol. Gen. My lord, I take that to be well enough, for here are three sentences. The first is, That the people make a flocking to the king, &c. quod populus, &c.' The next is, quod nos habuimus, &c.' And then the third is, quod si ipsi.' Now 'quod' governs the particular sentence, and it being a particular sentence by itself, with humble submission, it is good in grammar, and in sense too. L. C. J. Suppose you were to speak it in English. Mr. Solicitor; suppose you were to speak it,Now we have had two wicked kings together, who have suffered Popery to come ' under their noses' (meaning the late king and this), there perhaps the innuendo is sensible, and, no doubt of it, then he must mean them: but to say, If they will stand to their principles, they shall overcome their enemies,' pray to whom does that they' relate? Sol. Gen. My Lord, with humble submission, you put the case of an entire speech, made in the person of the preacher, and the congregation, and as the words were spoken all at one time. I would make it an entire speech too; but it seems to be several sentences, and therefore that differs the case. For taking it that these are three distinct sentences, they might be spoken in a several manner by varying the person, and so they were sworn. And suppose he had only spoke the last words, an indictment for this in the third person had been a good indictinent: and if it had been charged in that case, Quod dixit et asseruit, quod si ipsi, &c., and then in evidence, come and prove these words, would not that have been good? L.C. J. Truly, I think, Mr. Solicitor, if the indictment for these last words alone had been in the third person, it is a question whether that might have been a good indictment, if you had come in evidence, and proved, that he had said of the king and government, If you will 'stand to your principles, you shall overcome 'your enemies. Though I deliver no absolute opinion of that, because there ought, I think, to have been an averment, that they were spoken of the king, and the people. Sol. Gen. In an entire speech, iny lord, there the relative must be applied to the last antecedent, according to grammar. L. C. J. And I think it must be taken to be an entire speech, and you lay it in the indictment to be so, and then the relative must go to the last antecedent, or else Dr. Busby (that so long ruled in West-minster-school) taught me quite wrong, and who had tried most of the grammars extant, and used to lay down that as a positive rule in grammar, that the relative must refer to the next antecedent. Just. Withins. Mr. Solicitor, if you make it several speeches, then it is ten times worse, for then the latter part is so uncertain, without an averment of whom the words were spoken, that sure it can never be made good. Sol. Gen. Suppose it had been ulterius 'dixit,' would that have made it a distinct sentence? If it would, our proof it may be was, that it was an entire speech, but yet consisting of several sentences, and must have the common understanding, as to their relation one to another. is a tyrant, &c. yet there it is said, and expressly averred, that he spoke the words' de rege.' Att. Gen. This objection of quod ipsi, &c.'' was not moved by the prisoner at the bar, and therefore we did not expect to speak to it. L. C. J. It is started here now by the counsel. And it is a question truly with me, whether this can be any way sensibly applied, as you would have it. Surely the innuendo can never make it good. Att. Gen. My lord, I say fling all the inmuendos out of doors, the words in themselves will do it. L. C. J. Why then we must see whether it be a good indictment in point of form, or rather in point of substance, as you have laid these words, without saying they were spoken 'de rege.' It is a question of great weight and concernment both to the king and to the prisoner, and therefore we must take good time to consider of it, before we deliver a settled opinion. But Mr. Solicitor, you very well re member that Staley's case was otherwise. For, though the words were, the king of England Att. Gen. Could colonel Sidney have moved in arrest of judgment this that the prisoner now starts? No, he could not sure. He might have moved for a new trial L. C. J. Certainly (Mr. Attorney General), that case comes not up to this. Where the words import in themselves that the king is meant, or any way circumstantially, it does necessarily imply that they be meant of no one else, and that would be good without the averment. Which was the case of colonel Sidney, where the matter declared in the libel was plainly down-right relating to the government, that if he did so and so he must re'nounce his crown,' and the like. How can that be applied to any but the king? The people of England have committed the kingdom to his power, &c.' Why, how can it be interpreted that any body else is meant ? Att. Gen. When will your lordship please to give judgment? L. C. J. Mr. Attorney, we will consider of it. It is usual, in cases of less difficulty than this, to take time of consideration. I do not say, but that looking upon the precedents, perhaps I may alter my opinion, and therefore do not speak this to bind myself: but we will consider of it. Att. Gen. I look upon it that the government is greatly concerned in this matter, more than ten such as the prisoner at the bar. L. C. J. It is true, Mr. Attorney, the government is greatly concerned, and the pri soner is greatly concerned, for his all is at stake. I do say a good indictment might have been made, I am sure. Sol. Gen. This is the best we could make, for we had no proof to make out any averment, because these were all the words he said. Att. Gen. After the jury have found the words as laid in the indictment, was it ever asked of a jury, These words were spoken of the king, or they were not, but you have not said that they are spoken of the king, for it is 'not laid in the indictment? Would that ever vitiate the verdict? L. C. J. Mr. Solicitor, pray, would youhave us give judgment, that the jury could not find that the words were spoken of the king? Mr. Pollerfen. The jury have not found that they were spoken of the king, for there is no such thing averred. Att. Gen. Nor they have not found them to be not spoken of the king; but they have found them to be spoken to stir up sedition. Sol. Gen. We are never bound by law to aver that' that we cannot prove. And therefore I put all upon that dilemma; either the words import of themselves to be spoken of the king, or they do not. If they do not, if we had said, dixit de domino rege,' it must have been proved, and that would have been to have left it to the jury whom he did mean. And if they be not self-evident, God forbid the 1 jury shall be charged to find out such a meaning; but if they are self-evident, they need no averment. was concerned. This seems to carry a great consideration with it. L. C. J. And you have cited never such a case as this, Mr. Attorney. And if we can find no other like case, we must be governed by the reason of the thing. Att. Gen. My lord, I was very willing and Just. Hol. Truly, we think it may be good desirous your lordship should assign the prievidence to a jury, and it is every day done in soner this learned counsel, because we did supcases of actions for words. It is left to the pose they would have produced some precejury to consider, whether he meant the plain-dents of a better form than this: but they have tiff, John-a-Stiles, or any other: and the evi- cited none. dence is helped by this, or that circumstance, where the words do not naturally import it. Just. Walcot. I do think that the averment that these words were spoken of the king, is a point of fact that ought to be averred and proved. Might not the jury in this case have found that they were not spoken of the king? If they had found that, why they would have acquitted him; if they had found they were, and you had not alledged it, why then they had found more than the indictment would lead them to. Att. Gen. My lord, we hope you will expedite it for the sake of the government. L. C. J. Certainly, I think it is very uncertain who are meant by enemies; it may be Mr. Solicitor, Mr. Attorney, it may be the court, no body knows who it is: for every body knows, that to preachers in conventicles. and to those that meet there, the judges, and all that are for the support of the laws, may be J. C. J. Well, this is only by way of discourse, not that we bind ourselves by our pre-reckoned to them as enemies. But when it sent opinion. We must look upon it. We will not give our judgment suddenly in a case of this nature. Mr. North. Will your lordship please to spare me one word? L. C. J. Ay, Sir, let every man be heard, in God's name. Mr. North. My lord, as to this objection, 'quod 'ipsi' relates to the two wicked kings spoken of just before, that cannot be: for you take notice that these words of the two wicked kings relate to the late king, and to the present, as the indictment says. One of the kings is dead, so that you cannot understand it to be of the two kings, that should overcome their enemies, and therefore it must be the people. This Populus' being a noun of multitude, and taken in the plural number, Ipsi will very well relate to it. L. C. J. Mr. North, the argument turns both ways upon that, and certainly he did not express himself after that rate. It is so locse a hung-together indictment, as truly I have scarce seen. For my part, I would know how it come to pass, that we should not have as much certainty in indictments, as we have in actions upon the case? Att. Gen. My lord, there must be certainty in all cases, and we think there is certainty enough in this for your lordship to give judg ment upon. L. C. J. Mr. Attorney, I believe if you sat in our places you would not think so. All our books require greater certainties in indictments, than in actions on the case: nay, in causes of this nature, we are bound by our law books to be of counsel for the prisoner, which we are not in civil causes, where the prisoner may choose his own counsel. And we have not one act of parliament to help the defect of forming indictments, as we have in civil actions, but still in all the statutes made in Jeofails, there is an exception of capital offences, to shew that our ancestors would not help uncertainties or insufficiences in form, where the life of a man is so uncertain who are meant, how can we supply it by such an innuendo: That there might have been a good indictment framed upon such words as these, as he in all probability spoke them, and he justly found guilty, is no question with me at all. And (as I said the other day, for the sake of the auditory) if he be guilty of speaking such words, and of treason in speaking them; what will they be guilty of that were present, and heard the words spoken? They may thank God, that we have a gracious king, that does not take all the advantages the law gives him against those that break his laws. Sol. Gen. My lord, your lordship was pleased to mention Staley's case to me. As I do remember it, it is not as your lordship says: but it is, That he, to perfect his wicked treason (speaking of the king) said so and so. Now, if an averment be necessary, this is a naughty averment; for it is not positively averred that he did speak of the king. L. C. J. Well, we will look upon it. And I would ask you, Mr. Solicitor, whether if he said (as it is most likely he did) If you will stand to your principles; and you put in si ipsi, whether that would be good? Sol. Gen. My lord, we put it in as the witnesses swore it. L. C. J. They did swear the words according to their apprehension; but no doubt of it, in common form he must speak them as ĺ say. Att. Gen. They swore the words so; and we could lay them no otherwise. L. C. J. Well, Mr. Attorney, will you move any thing? Att. Gen. No, my lord. L. C.J. Then we will consider of it. And take you back the prisoner; and you shall have a rule of court to bring him, when the court is ready for judgment. Then the prisoner was carried back to the King's-bench; and no judgment was given that term; but the next term Mr. Rosewell pleaded the king's pardon at the bar of the coadunationibus, misprisionibus, confederationcourt of King's bench: and was discharged.*ibus, falsis allegantiis, transgressionibus, riot', The following is a COPY of the said PARDON: * This case is reported also in 3 Modern 52 and 2 Shower 411. The former of those reports, after briefly noticing the arguments for and against the motion in arrest of judgment, proceeds thus "Curia; words may be an overt act, but then they must be so certain and positive as plainly to denote the intention of the speaker. If a man should tell another that he would drive the king out of England, there needs no averment that such words were spoken de rege, because they tend immediately to depose the king, but if he had said that he would go to Whitehall and destroy his enemies, that is not treason without an averment, Judgment was arrested." In 2 Shower it is rightly stated, that the prisoner was pardoned, and at the end of the case the reporter says "Tamen quiere of the law; for the strength of the prisoner's defence on his trial as to the fact charged was thought the best of his case." See the reports of these cases in Leach's editions of Shower and Mod. Rep. and the Editor's notes and references thereto. rout', retentionibus, escapiis, contempt', falsitat', negligent' conceleament', manutenent', oppressionibus, cambipartiis, deceptionibus, ac aliis, malefactis, offens', et injur' quibuscunque ; necnon accessar' eorumdem, infra com' prædict', tam infra libertat', quam extra, per quoscunque et qualitercunque habit' fact', perpetrat', sive commissa, et per quos, vel per quem, cui vel quibus, quando, qualiter, et quomodo; ac de aliis articulis et circumstantiis, præmissa, et eorum, aliquod vel aliqua qualitercunque concernen', plenius veritat', et ad easdem proditiones, et alia præmissa audiend' et examinand' assign', secundum legem et consuetudinem regni dicti Doin' Regis Anglia, per sacramentum duodecim jur' proborum et legalium hominum com' predict', qui adtunc et ibidem jurat' et onerat' existen' ad inquirend' pro dicto Domino Rege, et corpore com' prædict', extitit præsentat'. Surr. ss. Juratores, &c. The whole Indictment as in the Trial. Quod quidem indictamentum Dominus Rex nunc coram eo postea, certis de causis, venire fecit terminand', &c. Per quod præcept' fuit Vic' com' prædict' non omitt', &c. quin caperet eum, si, &c. ad respondend', &c. Et modo, scil', die Jovis prox' post tres septimanas sancti Michaelis, isto eodem termino, coram Domino Rege apud Westm', venit' prædict' Thomas Rosewell, sub custod' custod' prison' de le Gatehouse, Westminst', in cujus custod' præantea ex causa prædict' commiss' fuit virtute brevis dicti Domini Regis de Habeas Corpus, ad subjiciend' et recipiend' ad barram hic duct' in propria person' sua, qui committitur Marr', &c. Et statim de præmissis ei superius imposit', alloquut', qualiter se velit inde acquietari, dicit, quod ipse in nullo est inde culpabilis, et inde de bono et malo ponit se super patriam. Ideo ven' inde jur' coram dicto Domino Rege apud Westm', die Martis in octab' sancti Martini, per quos, &c. Et qui, &c. ad recogn', &c. quia, &c. Idem dies dat' est præfat' Thom Rosewell, sub custod præfat' custodis prison' de le Gatehouse Westm' iterum commiss', salva custodiend' quousque, &c. Ad quem quidem diem Martis in octab' sancti Martini, coram Do mini Rege apud Westm', venit prædict' Thomas Rosewell sub custod' præefat' custod' prison' de le Gatehouse Westm' prædict', virtute brevis Domini Regis de Habeas Corpus, ad subjiciend', &c. ad barram hic duct' in propria persona sua, qui committitur Marr', &c. Et jur' prædict' per Vic' com' prædict' ad hoc impanellat' exact' ven', qui ad veritatem de præmissis divend' elect', triať' et jurat', dicunt super sacramentum suum, quod prædict' Thomas Rosewell est culpabilis de alta proditione prædict', in indictament' prædict' specificat', modo et forma prout per indictament' prædict' superius versus eum supponitur. Et quod idem Tho' Rosewell tempore perpetrationis alta proditionis prædict', seu unquam postea, nulla habuit bona seu catalla, terras, veniat, qual' appunctuat' et limitat' erit per Capital' Justic' de cur' præd' pro tempore existen.' Et idem Thomas Rosewell profert hic in cur' literas patentes præmissa testificantes in hæc verba: sive tenementa, ad notitiam jur' prædict'. Et comites, Justic', Ballivos, aut alios ministros quia curia dicti Domini Regis hic de judic' ipsins nuper Regis, hæred', seu successor' suo inde reddend', nondum advisatur, dies inde suorum, occasione præmissor', seu eorum dat' est præfat' Thoma Rosewell, in statu quo alicujus, molestetur, occasionetur, perturbetur, nunc, &c. usque diem Mercur' prox' post seu in aliquo gravetur; volens quod eædem octab' Purificationis beatæ Mariæ Virginis co- literæ suæ patent', quod omnia et singula ram Domino Rege, ubicunque, &c. de judic' præmissa superius mentionat', bon', firm', suo inde reddend', &c. Ante quem diem valid', sufficient, et effectual' in lege sint et dictus Dominus Carolus secundus Rex Angliæ, erint, licet crimina et offens' prædict' minus &c. diem suum clausit extremum, et Dominus certe specificat' existunt; quodque pardonatio Jacobus secundus super se suscepit guberna- illa in omnibus cur' dicti nuper Regis, et alibi, tionem hujus regni Angliæ. Et modo, scilicet interpretetur et adjudicetur in beneficentissimo die Mercur' prox' post octab' Purificationis sensu, pro firmiori exoneratione præfat' Thobeatre Mariæ Virginis, isto eodem termino ma Rosewell, ac etiam placitetur et allocetur coram Domino Rege apud Westm' venit' pre- in omnibus cur' dicti nuper Regis, absque dict' Thomas Rosewell in propria persona sua, aliquo brevi de allocatione in ea parte prius sub custod' præfat' custodis prison' de le Gate- obtent' sive obtinend', non obstant statut' in house Westm' prædict', et alloquut' ei si quid parliamento, anno regni dict' nuper Regis pro se habeat, vel dicere sciat, quare curia hic decimo tertio fact' et edit', et non obstante ad judic' super indictament' prædict' procedere aliquo defect' aut aliquibus defectibus in eisdem non debeat, dicit, quod dictus Dominus Carolus literis patent' content', aut aliquo alio statut', secundus, Dei gratia Angliæ, Scotia, Franciæ, actu, ordinatione, provisione, proclamatione, et Hiberniæ nuper Rex, fidei defensor, &c. per sive restrictione, aut aliqua alia re, causa, vel literas suas patent' sub magno sigillo suo materia quacunque in contrar' inde in aliquo Angliæ sigillat', geren' dat' apud Westm' vice- non obstant'. Ita tamen quod dictus Thomas simo octavo die Januar', anno regni sui trice- Rosewell tal' bon' et suffic' securitat' de se simo sexto, de gratia sua speciali, ac ex certa bene gerend', a dat' literar' patent' prædict' scientia et mero motu suis, pardonavit, remisit, erga dictum nuper Regem, hæred', et sucet relaxavit, ac per easdem literas patentes, processores suos, et cunctum populum suum inse, hæred', et successor' suis pardonabat, remittebat, et relaxabat eidem Thomæ Rosewell, per nomen Thomæ Rosewell nuper de paroch' de Redriffe, in com' Surr' Clerico, seu quosunque alio nomine vel cognomine, seu additione nominis vel cognominis, aut loci, idem T. Rosewell sciatur, censeatur, vocetur, sive nuncupetur, aut nuper sciebatur, censebatur, voca batur, sive nuncupabatur, omnes proditiones, quascunque, unde præfat' Thomas Rosewell in termino sancti Michaelis jam ult' elaps', in curia dicti nuper Regis, coram ipso Rege apud Westm' tent', convict' sive attinct' fuit; ac omnia et singula indictament', judicia, convictiones, condemnationes, executiones, imprisonament', punitiones, et omnes alias poenas et pœnalitat' quæcunque super vel versus ipsum Thomam Rosewell, de, pro, sive concernen' præmissis seu eorum aliquo habit', fact', reddit', sive adjudicat', aut in posterum habend', reddend', faciend', sive adjudicand', necnon omnia, et singula utlagar' versus dictum Thomam Rosewell, ratione seu occasione præmissorum, seu eorum aliquor' vel alicujus promulgat', sive in posterum promulgand', ac omn' et omnimod' sect', querel forisfactur', impetitiones et demand' quæcunque, quæ dictus nuper Rex versus ipsum ratione premissorum, seu eorum alicujus, habuit, habet, seu in futuro habere poterit, aut hæred' seu successores dicti nuper Regis ullo modo habere poterint in futuro, sectamque pacis ipsius nuper Regis, quæ ad ipsum nuper Regem versus præfat' Thomam Rosewell pertinet, seu pertinere potest occasione præmissorum, seu eorum aliquor' vel alicujus; et firmam pacem dicti nuper Regis ei inde dabat et concedebat per easdem literas patent', volens quod idem Thomas Rosewell per Vice VOL. X. Carolus secundus, Dei gratia Angliæ, Scotia, Francia, et Hiberniæ Rex, fidei defensor, &c. omnibus ad quos præsentes literæ nostræ pervenerint, salutem. Sciatis, quod nos de gratia nostra speciali, ac ex certa scientia, et mero motu nostris pardonavimus, remisimus, et relaxavimus, ac per præbentes, pro nobis, hæredibus, et successoribus nostris pardonamus, remittimus, et relaxamus Thoma Rosewell, nuper de paroch' de Redriffe in com' Surr' Clerico, seu quocunque alio nomine vel cognomine, seu additione nominis, aut loci, idem Thomas Rosewell sciatur, censeatur, vocetur, sive nuncupetur, aut nuper sciebatur, censebatur vocabatur, sive nuncupabatur, omnes proditiones quascunque, unde præfat' Thomas Rosewell, in termino sancti Michaelis jam ult' elaps', in curia nostra coram nobis apud Westmonast' tent' convict' sive attinct' fuit; acomnia et singula indictamenta judicia convictiones, condempnationes, executiones, imprisonamenta punitiones, et omnes alias pœnas, et poenalitates quascunque super vel versus ipsum Thomam Rosewell, de, pro, sive concernen' præmissis, seu eorum aliquibus habit', fact', reddit', sive adjudicat', aut in posterum habend', reddend', faciend', sive adjudicand', nec non omnia et singula utlagar' versus dict' Thomam Rosewell, ratione seu occasione premissorum, seu eorum aliquorum vel alicujus promulgat', sive in posterum promulgand', ac omnia et omnimod sect', querel', forisfactur', impetiti ones, et demand' quæcunque, quæ nos versus X |