HIS majesty's Attorney General having, on Friday last, moved the court of King's Bench for an Habeas Corpus returnable this day, directed to the Keeper of his Majesty's gaol of Newgate, to bring thither the body of James Holloway, then in his custody, to shew cause

There is a short note of this case in 3 Mod. 42; which see, and the books referred to, in Mr. Leach's edition of that work.

"Some time in the spring eighty four, Holloway was taken in the West Indies, and sent over. He was under an Outlawry for Treason. The Attorney General offered him a trial, if he desired it. But he was prevailed on, by the hope of a pardon, to submit and confess all be knew. He said, he was drawn into some meetings, in which they consulted how to raise an insurrection, and that he and two more had undertaken to manage a design for seizing on Bristol, with the help of some that were to come to them from Taunton: But he added, that they had never made any progress in it. He said, at their meetings at London, Rumsey and West were often talking of lopping the king and the duke: But that he had never entered into any discourse with them upon that subject: And he did not believe, there were above five persons that approved of it. These were West, Rumsey, Rumbold, and his brother: The fifth person is not named in the printed relation. Some said, it was Ferguson: Others said, it was Goodenough. Holloway was thought by the court not to be sincere in his confession. And so, since what he had acknowledged made himself very guilty, he was executed, and died with a firm constancy. He shewed great presence of mind. He observed the partiality that was evident in managing VOL. X.

why execution should not be awarded upon an Outlawry for High Treason against him. The Keeper of Newgate, according to the command of the writ, brought him this day to the bar of the said court, where he was proceeded against in this manner.

this plot, different from what had appeared in managing the Popish plot. The same men who were called rogues, when they swore against papists, were looked on as honest men when they turned their evidence against Protestants. In all his answers to the sheriffs, who at the place of execution troubled him with many impertinent questions, he answered them with so much life, and yet with so much temper, that it appeared he was no ordinary man. His speech was suppressed for some days: But it broke out at last. In it he expressed a deep sense of religion: His prayer was an excellent composure. The credit of the Rye Plot received a great blow by his confession. All that discourse about an insurrec-. tion, in which the day was said to be set, appeared now to be a fiction; since Bristol had been so little taken care of, that three persons had only undertaken to dispose people to that design, but had not yet let it out to any of them," So that it was plain, that after all the story they had made of the plot, it had gone no further, than that a company of seditions and inconsiderable persons were framing among them-' selves some treasonable schemes, that were never likely to come to any thing; and that Rumsey and West had pushed on the execrable design of the assassination, in which, though there were few that agreed to it, yet too many had heard it from them, who were both so foolish, and so wicked, as not to discover them." Burnet, p, 576.

B

The return of the writ of Habeas Corpus was first read.

Cl. of Cr. James Holloway, hold up thy hand. [Which he did.] Thou hast been in dicted in London, by the name of James Holloway,late of London, merchant, for High Treason by thee committed, touching the king's majesty's person, and the government of this his kingdom of England, and for not appearing and answering that indictment, by due process of law, upon the indictment thou standest outlawed, and upon that outlawry thou standest attainted of the same high-treason; What hast thou to say for thyself why execution should not be awarded against thee upon that attainder by this court according to law?

Holloway. My lord, I have been a great while absent, and know not what hath been done in this matter, or proved against me.

Lord Chief Justice. (Sir George Jefferies.) Yes, you have been absent so long it seems, that you now stand outlawed, and thereby attainted of high treason; there is nothing now remains with the court, but only to make a rule for your execution.

Holloway. If an ingenuous confession of the truth will merit the king's pardon, then sure I have done it.

L. C. J. For that matter we are not to dispose of the king's mercy, he will dispose of his own mercy as he shall think fit. Is Mr. Attorney in the hall?

Crier. Yes, my lord, he is.

L. C. J. Then pray send for him.

Att. Gen. If your lordship please, the indictment may be read to him, that he may understand what it is, and may not go blind to execution.

L. C. J. Ay, Mr. Attorney, if you please, let it be so.

Cl. of Cr. Reads. "The jurors being sworn to enquire for our sovereign lord the king, and the body of the county of the city of London, upon their oaths present, That"- -[And so the whole Indictment was read.] Cl. of Cr. That is the Indictment, Mr. Attorney, and upon this he is outlawed. Att. Gen. And so stands attainted. hath he to say to it?

What

L. C. J. Ay, why should we not award exe cution against him according to law?

Cl. of Cr. Have you any thing to say? Holloway. I have said what I have to say. Att. Gen. Pray what is that, my lord, that he has said, for I was not here?

Holloway. I beg his majesty's mercy.

Att. Gen. If the king be so gracious as to admit you to your trial, can you make a defence against the indictment? Have you any thing to say that you can defend yourself by, if the king do admit you to be tried, and that is a mercy and a grace, for at law you are gone.

L. C. J. It is so, indeed, Mr. Attorney; if you will on the king's behalf indulge him so far, as I suppose you have authority from the king to consent unto, that if he has a mind to try the fact, and can defend himself, he shall have that liberty, that is a great mercy, I as

the record there?

Cl. of Cr. Yes, Sir.

L. C. J. It has been read to him, Mr. Attorney.

Att. Gen. My lord, I would know what he saith that execution should not be awarded.

L. C. J. He talks of discoveries and confessions, which we, you know, cannot take any notice of; ask him again.

Cl. of Cr. Hast thou any thing to say for thyself why execution should not be awarded against thee, according to law?

Holloway. My lord, I know not what bath been proved against me, but I have made such an ingenuous confession to his majesty of what I know

L. C. J. Proved against you? You are outlawed upon an indictment for high treason; what can you say against the court's awarding execution?

Att. Gen. My lord, has he heard the indictment upon which the outlawry was grounded? Cl. of Cr. No, Sir, only the substance was told him, That he was indicted of high treason, and outlawed for it, and stands attainted by that outlawry.

Att. Gen. My lord, That is the only reason why I did cause the indictment to be read that he might hear it; that supposing he were not outlawed, but that were out of the case, if he hath any thing to say that could defend him from it, the king would not exclude him, but admit him to his trial, and extend his mercy so far to him.

L. C. J. Mr. Attorney, it is exceeding well, Now you understand what is said by the king's Attorney, you have heard the indictment read. It is an indictment of high treason, that you with other false traitors, Hone, Rumball, the Goodenoughs, and the rest, did conspire the death of the king. Now though you are in law actually attainted, as much as if you had been tried and convicted, and received judgment of death upon that conviction, to all intents and purposes, and there is no more for the court to do, but to award execution upon this attainder, and be dealt with as a false traitor. Yet however in as much as you have heard the indictment read, if you think you have any thing to say that would satisfy the world, or a jury, that you are not guilty of what you are indicted and accused of, it seems the king is pleased to signify his gracious intention towards you by Mr. Attorney General, that he is contented to wave that other part, the attainder by outlawry, and you shall have the liberty to try it, if you think you can defend yourself.

Holloway. My lord, I cannot undertake to

defend myself, for I have confessed before his majesty that I am guilty of many things in that indictment, and I throw myself on the king's mercy.

L. C. J. Then he confesseth it, and will not undertake to defend himself; as for the king's mercy, that we must leave to his majesty, who is the dispenser of his own grace, we are to execute his justice, and must give a rule accordingly.

Just. Withins. But I hope every body here takes notice of his open confession, when he might try it if he would. Surely none but will believe this conspiracy now, after what this man hath owned,

L. C. J. We were well enough satisfied about It before, and so was every honest man, I dare

say.

Just. Withins. Yet, perhaps, though he saith it, and others have confessed it, and the evidence hath been made public, there are many people that say they will not believe it.

L. C. J. We do not mightily concern ourselves what the people say. I am sure not one of all that were concerned in this conspiracy, have dared to deny it absolutely, though some have been prevailed upon by ill advice, to prevaricate about it, and shuffle it off. But none of them have had the confidence absolutely to deny the truth of the fact, notwithstanding all the calumnies and reproaches cast upon the government, and all the arts that have been made use of to stifle it.

Just. Withins. My lord, I speak it the rather because we see what work sir Samuel Barnardiston has made of it in his Letters, where he calls it a Sham-Plot, and says it is lost, except it be found among the Abhorrers and Addressers.*

L. C. J. But now the Plot is found among the conspirators and traitors, he may write to his correspondents in the country the next time, it is found among the reformers of government, and religion, that can swallow all things, that can kill kings and levy war, and do the worst of villainies to promote religion and reformation, as they call it.-Let us think of some convenient day, and give such order that the sheriffs see execution done according to Jaw.

Att. Gen. You must first pronounce the judgment, my lord.

Just. Withins. It is never pronounced in

such a case, Mr. Attorney.

L. C. J. No, we only give a rule for execution, the outlawry is the judgment, and that is upon the record already†. ·

See his Case, vol. 9, p. 1334, of this Coltion.

+See, in this Collection, the Cases of Sir Thomas Armstrong in this same year, 1684, Ratcliffe, A. D. 1746, and of Dr. Cameron, A. D. 1753, and the authorities referred to in those cases. The Stat. 7 W. 3. c. 3. s. 3. saves the benefit of the regulations thereby enacted on trials for treason, to such as, having been out

Cl. of Cr. Yes, my lord, we always enter it so. L. C. J. Captain Richardson, I think, Wednesdays and Fridays are your usual execution days in London, are they not?

Capt. Richardson. Yes, my lord, either of them.

L. C.J. Then Wednesday seven-night. Capt. Richardson. Does your lordship ap point Wednesday next?

L. C. J. No, that will be too quick; Wednesday seven-night.

Capt. Richardson. What day your lordship pleaseth, I suppose I shall have a rule.

Cl. of Cr. You shall have a rule, and an Habeas Corpus to deliver him, as the course is. L. C. J. În the mean time take your prisoner back again.

And accordingly he was carried back to Newgate.

After which he sent the following Petition to the King for mercy:

Most great and gracious Sovereign,

I your majesty's now close prisoner in Newgate, and condemned for my crimes, which I have confessed myself guilty of, in a paper of my own writing, delivered to the 'right honourable the lords of your majesty's privy council, in which is a true and faithful account of all that I know concerning the late Plot, with the manner how I 'was drawn into it, and the reasons why I did 'not come in at the first discovery, and cast myself at your majesty's feet for mercy, which I hope your majesty hath perused, and 'find no cause to think I have reserved any 'thing undiscovered; for when 1 was first 'taken, I resolved to declare the whole truth, ⚫ and nothing but the truth, which I have here 'done, and will own to be true, before any that 'shall offer to contradict it, or say there was no Plot; and if any thing more occurs to my memory, will not fail to declare it. I have now nothing to say for myself why I should 'not be executed, according to condemnation, 'but do most humbly prostrate myself at your majesty s feet for mercy, acknowledging my hearty sorrow for all that I have been guilty of, and remain in hopes, that that fountain of mercy which hath so abundantly flowed from your majesty's sacred breast, ever since your happy restoration, is not yet dry, but that

'there are some drops left for me, which if I

may be so happy as to obtain, I shall always 'whilst I live, endeavour to approve myself 'your majesty's most true and faithful sub'ject; and, I hope will answer the ends of a pardon. Which that I may so do, and for your majesty's long life, peaceable and happy reign, shall ever pray, &c. J. HOLLOWAY.'

His Petition being rejected, he was executed April 30th, 1684.

lawed, do afterwards intitle themselves to a trial on the merits. See East's Pleas of the Crown, ch. 2, s. 69.