will direct him to speak; but he ought not in Lord High Steward. Sir Constantine Phipps, Sir C. Phipps. My lords, if I had been heard but ten words more Sir W. Thomson. My lords, we humbly insist upon it that that gentleman be not heard one word more Lord Ilay moved to adjourn. Trial of the Earl of Wintoun, [876 was made as usual.] sel for the prisoner at the bar, you have liberty lordships, we that have the honour to be asSir Constantine Phipps. May it please your Case, do humbly apprehend the Impeachment signed by your lordships as counsel in this against the noble lord at the bar to be insufficient; it is so uncertain, that we (with the greatest submission) take it no judgment can L. H. Steward. Is it your lordships' plea- be given upon it. My lords, we beg leave to sure to adjourn? Lords. Ay, ay. L. H. Steward. This House is adjourned to the chamber of parliament. The Lords went in their order to the chamber of parliament. And after about half an hour being returned, The House was resumed, and proclamation made for silence as usual. take notice to your lordships, that in indictthe law requires the certain day when the ments, in the courts below, even for trespasses, leged; and if a particular day be not laid, the offence is supposed to be committed to be altainty is requisite in offences of the most miindictment is insufficient. And if such cerand more still in offences of the highest nature, nute nature, it is much more so in capital crimes, charged. such as treason, with which this noble lord is My lords, there be two reasons why, in inshould be assigned when the treason was comdictments for high-treason, a certain day being apprised not only for the facts with One is for the advantage of the prisoner; that those facts are supposed to be committed, he which he is charged, but also of the time when may be the better able to make his defence: it is possible he may have witnesses to prove be was at another place, and in another company, at the time when he is accused to have committed the treason, or may by other circumstances make his innocence appear. L. H. Steward. My lord Wintoun, the Lords have considered of the matter which you have moved in arrest of judgment, which was to this effect, that you are not such a person as against whom judgment of death for high-mitted. treason ought to be pronounced. 1 am directed to acquaint you, that their lordships are of opinion it is matter of fact, and not of law and that the Lords think you are such a person as against whom judgment ought to be given in this case. I am likewise ordered by the Lords to reprimand you, sir Constantine Phipps, for having, in a proceeding of this nature, presumed to be so forward as to speak for the prisoner at the bar before a point of law was first stated, and you had leave to speak to it; and your fault is certainly the greater for having presumed to do this to a matter, which you cannot but know is matter of fact, and that the law is not doubtful one way or other, the fact being supposed. My lord Wintoun, I am allowed again to ask your lordship, if you have any thing further to allege or move why judgment of death should not pass upon you according to the law? Clerk from L. Wintoun. My counsel are ready to offer, in arrest of judgment, that the Impeachment is insufficient, for the time of committing the treason is not therein laid with sufficient certainty. L. H. Steward. I think the matter moved by my lord is, that his counsel should be admitted to shew that the Impeachment is insufficient, in respect that the time therein is not laid with sufficient certainty. This I think is the matter moved. Will your lordships be pleased that the counsel have leave to speak? L. H. Steward. Is it your lordships' pleasure that the counsel for the prisoner may be allowed to speak to this point?-Lords. Ay, ay. crown, that it may be known to what time the The second reason is for the benefit of the forfeiture shall relate; for in treason the forfeiture relates to the time laid in the indict. ment; and if there be no precise time alleged in the indictment, the forfeiture can relate no farther than to the judgment. are very great, therefore we conceive, with My lords, the forfeitures in cases of treason humble submission, that the accusation ought the prisoner may not, by general allegations, to contain all the certainty it is capable of, that be rendered incapable to defend himself in a case which may prove so fatal to him. instances where indictments have been held to Our books, my lords, furnish us with many be insufficient for less faults than not specifying the day when the offence was committed; but in cases so plain, I will not trouble your lordships with citing authorities; for I believe there is not one gentleman of the long robe but will agree, an indictment for any capital alleged to be committed upon a certain day. offence to be erroneous, if the offence be not ment subjects the offender to the same punishMy lords, an attainder upon an Impeach ment, the same forfeitures, as an_attainder upon an indictment; and therefore I am at a loss to find out a reason why there should not be the same certainty in the one as in the other: if equal certainty be required in both, then we humbly submit to your lordships' judgment, whether this Impeachment be not erroneous and insufficient, in that there is no particular certain time alleged when the treason or the overt-acts were committed? The treason alleged is conspiring and imagining the death of the king, and the Impeachment sets forth, "That the conspirators, (and names them) as false traitors to his present most sacred majesty king George, the only lawful and undoubted sovereign of these kingdoms, having withdrawn their allegiance, and cordial love, and true and due obedience, which they, as good and faithful subjects, owed to his said majesty, did, in or about the months of September, October, or November, 1715, most wickedly, maliciously, falsely, and traitorously imagine and compass the death of his most sacred majesty." My lords, a prosecution by Impeachment is a proceeding at the common law, for ler parliamentaria is a part of the common law; and we humbly submit it to your lordships' consideration, whether there is not the same certainty required in one method of proceeding at the common law, as in another? Your lordships observe with what uncertainty, as to the time the treason is alleged. It is said to be in or about the months of September, October, or November 1715. Who is able to say to which of these months, much less to what day of either of these months, the forfeiture shall relate? And how is it possible for the noble lord, the prisoner at the bar, to make a defence to a charge so general, unless he bring for witnesses all those persons with whom he has had any conversation during those three months at least? My lords, the overt-acts are alleged with the same insufficiency and uncertainty as the treason itself is; for in charging the first overtact, which is conspiring to levy war and to depose the king; it is said, "That for accom. plishing and executing their said traitorous purposes, they the said James earl of Derwent water, &c. did, in or about the said month, or some of them, and at divers other times, and at divers other places within this kingdom, wickedly and traitorously agree, confederate, &c. to raise, excite, and levy, within the counties of Teviotdale, Northumberland, Cumberland, and the county-palatine of Chester, and elsewhere within this kingdom, a most cruel, bloody, and destructive war against his majesty, in order to depose and murder his sacred majesty, and to deprive him of his royal state, crown and dignity." My lords, can any thing be more uncertainly alleged, than to say that the conspirators did, in or about the said months, or some of them, and at divers other times, and at divers other places within this kingdom, Confederate, &c. to levy war within the counties of Teviotdale, Northumberland, Cumberland, and county-palatine of Chester, and elsewhere within this kingdom? The next overt-act, which is actually levying war, is not laid with greater certainty; for the Impeachment sets forth," That the said earl of Derwentwater, &c. their accomplices and confederates, in or about the months aforesaid, in the counties aforesaid, or some of them, did gather together great numbers of his majesty's subjects, and with them did assemble in a warlike and traitorous manner, in order to raise tumults and rebellion within this kingdom; and having procured great quantities of arms, ammunition, and warlike instruments, at the times and places aforesaid, or some of them, did form and compose, or did assist in forming and composing an army of men, consisting of his majesty's liege subjects, in order to wage war against his said majesty, for and in behalf, and in favour of the said Pretender to the crown of these realms; and at the time and times, and places aforesaid, and at divers other times and places within this kingdom, the said conspirators did levy and raise war and rebellion against his most sacred majesty," &c. The next overt-act is proclaiming the Pretender, which is more uncertain than any of the other; for the Impeachment sets forth, "That the aforesaid conspirators, during their march and invasion aforesaid, in open defiance of his most sacred majesty's just and undoubted title to the imperial crown of these realms, did wickedly and traitorously cause and procure the said Pretender to be proclaimed in the most public and solemn manner as king of these realms." Here is no certain time or place alleged when or where the Pretender was proclaimed, but only that it was during their march and invasion. The last overt-act seems to be laid with greater certainty than the rest; for it is said, "That the conspirators did, on or about the 9th, 10th, 11th, 12th, or 13th of November aforesaid, traitorously seize and possess themselves of the town of Preston, in the county palatine of Lancaster, against his majesty, and did then and there, in a warlike and hostile manner, levy war, oppose, engage, and fight against his majesty's forces, and did then and there cause and procure a miserable and horrid slaughter and murder of many of his majesty's faithful subjects." Here indeed are particular days mentioned, but then the words or about' leave it at large, for no man can tell how many days may be included in these words' or about". We humbly apprehend that a charge of this high nature ought not to be alleged with such uncertainty, and that the Impeachment is as erroneous as an indictment drawn in this manner would be; this being a proceeding of the same nature, and according to the course of the common law. My lords, I do not pretend any great skill in parliamentary proceedings, but presume to say that in my little experience in business in other courts, I never saw a charge exbibited against any one that was laid in so uncertain a manner, unless in libels in the ecclesiastical or admiralty courts, which cannot in the least influence the case now before your lordships; this (as I have observed) being a proceeding according to the course of the common law. Upon the whole matter, I humbly submit to your lordships'judgment' whether, for the reasons I have offered to your lordships' consideration, the Impeachment is not erroneous, and whether your lordships will think fit to proceed to judgment against the noble lord, the prisoner at the bar, upon an impeachment so uncertain and insufficient as I humbly apprehend this to be. Mr. Williams. My lords, I am also assigned, by your lordships, of counsel for this unfortunate lord, and humbly insist in arrest of judgment, that there is a defect in this Impeachment, in regard no certain day is laid, when the treason is charged to have been committed.* In the Impeachment it is said, that this noble lord did, in or about the months of September, October or November, 1715, together with the others in the Impeachment named, traitorously compass the death of his most sacred majesty that this noble lord did, in or about the said months, or some of them, together with the rest, agree and confederate to levy war against his majesty that in or about the said months, or some of them, this noble lord with others did levy war, and did march through several parts of the kingdoms, and did proclaim the Pretender to be king; and that on or about the 9th, 10th, 11th, 12th, or 13th of the said November, the noble lord with others did seize and possess themselves of the town of Preston, and fought against his majesty's forces. This is the effect of the Impeachment. And with great submission I take it, that point of law, the Impeachment is defective in respect of the uncertainty of the time when this treason is said to have been committed. And, with great submission, this, as I humbly take it, is the very case before your lordships; I mean, taking it, that impeachments and indictments, as to the material parts of them, are to be measured by the same rules of law, as I humbly conceive they ought to be. That the certain day, for the committing the treason, ought to be laid in case of indictments for treason, seems to be proved, not only from the constant practice of laying a day certain in all indictments of treason; but from the reason of the law, which shews it to be a substantial and material part of the indictment. That the constant practice, in case of indict. ments for treason, is to lay the day on which the treason is supposed to be done, will, as I presume, be admitted. And such constant practice is, of itself, a strong argument that the law requires it. But I humbly take it, that the reason of the thing argues still much stronger for me, and shews it to be an essential part of the indictment. The reason of mentioning a day certain in the indictment when the treason is supposed to have been committed, is in some respects even for the benefit of the crown itself, and in some respects for the advantage of the party inindicted. I humbly apprehend that the honourable the House of Commons is the grand inquest of the whole nation; and that their Impeachment is in nature of an indictment, found by that grand inquest: differing from an indictment in this respect, that an indictment is found by the inquest of a county only; but an impeachment by the grand inquest of the whole kingdom. And taking it, that impeachments are properly to be resembled to indictments. It concerns the crown, in respect of the forfeitures accruing to the king, of the lands of the party indicted; for where an attainder ensues upon an indictment for treason, the lands of the party indicted are forfeited to the crown, not only from the judgment, but from the day mentioned in the indictment when the treason is charged to have been committed. This is expressly said, in the lord Coke's 1 Inst. 13, a. b. 390, b. and the difference there taken is, between a writ of appeal and an indictment. It is there said, That if a man be indicted for a capital offence and outlawed Then as the omitting of the laying of a cer- upon it, the land of the party is forfeited from tain day when the treason was committed, the day laid in the indictment, for the comwould be a material fault in the case of an in-mitting of the treason, or other capital crimes; dictment; with great submission, it is as ma- but in the case of an outlawry upon a writ of terial a defect in the case of an impeachment. appeal, because no day is mentioned in the It seems plain, that in the case of an indict-writ, the forfeiture is only from the judgment. ment, a certain day ought to be laid when the treason was committed. And though in the case of a writ of appeal, which is called in Latin breve, from its brevity, no day is mentioned, yet in the declaration As to this, see in this Collection the Case upon the appeal (which resembles an indictof Robert Lowick, vol. 13, p. 267. ment) it is necessary not only to mention the day, but even the hour when the murder or felony was committed. | your lordships, upon a writ of error before your lordships, which shews how strict the law is in the penning of indictments for treason; and that it requires that even what seems to be matter of form only in such indictments, must be complied with: it is the case of the king against Tucker, which was in the 6th year of king William and queen Mary, and is reported in serjeant Levinz, 3 Rep. 396, where Tucker was indicted for treason, and in the conclusion of the indictment it was not said to be contra In the case of Wilson against Law, which was adjudged in the court of King's-bench, in the 6th year of king William and queen Mary, in an appeal of murder, an exception was taken to the appeal that it was too uncertain, in regard the murder was laid to be done, circa horam primam post meridiem,' and this incertainty even of the hour was much insisted upon: but this, it is true, was at length over-ruled, and held that circa horam pri-allegiantiæ suæ debitum;' and upon this in'mam,' or 'inter horam primam et secundam,' was well enough. However no one, as I humbly apprehend, ever doubted, but that laying of a certain day when the fact was committed, is necessary both in the case of an indictment, and in a declaration upon an appeal; and that as to the land of the party indicted, the forfeiture relates to the day mentioned in the indictment. But if the question were asked in the present case, from what day the real estate of this unhappy lord should be forfeited? It would, as I humbly apprehend, be difficult to answer it. And that difficulty arises from the incertainty of the Impeachment, as to the time when the fact was committed. If then, the laying in an indictment the certain day when the treason was committed concerns the benefit of the crown, as it surely does; If it entitles the king to the forfeiture of the lands from the day laid in the indictment, as from the authorities I have mentioned it appears to do ; If this matter concerns that great prerogative and flower of the crown, and its right to forfeitures; Then surely this omission can by no means be called a slight omission, or a fault in form only. It will also have its weight with your lordships, that the mentioning a day certain in the indictment, when the crime is laid to have been done, is likewise for the benefit of the party indicted. It is for his advantage to know the time when he is charged to have committed the offence, and by that he will be the better enabled to defend himself against the accusation. It is a known rule in law, that in all cases of indictments, (though for misdemeanors only) they ought to be strictly certain. This rule holds a fortiori in cases of indictments for capital offences; And still, a fortiori, in cases of indictments for high treason, where, for example sake, the judgment, though just, is as terrible as can well be thought of. My lords, I am sensible I ought to have too great a value for your lordships" time, to cite any of those numerous cases in the law-books, which justify that known rule in the law that requires certainty in cases of indictments. I shall only beg leave to mention to your lordships one case, which is an authority of VOL. XV. dictment Tucker was attainted, and his lands forfeited to the crown, and afterwards purchased under the attainder; but afterwards this attainder was reversed in a writ of error in the King's-bench upon very great debate, for want of those words in the indictment, contra 'allegiantiæ suæ debitum,' and upon a writ of error before your lordships the judgment of reversal was affirmed, by which means a purchaser under the attainder lost the estate. With submission, this case is much stronger than the principal case now before your lordships. In that case it might with seeming reason be objected, that the word proditoriè, which is always in the body of every indictment, shews, and necessarily implies, that the treason committed was against the party's allegiance, for else how could it be proditoriè? Also in that case the treason is set forth at large in the indictment, together with the overt act, which demonstrates that the doing this must be against the party's allegiance. But all this would not maintain the indictment, in regard indictments for treason were always laid to be against the party's allegi ance. And if the constant forms of indictments be an argument, It is as strong a one for us in the present case; for I believe there never was an indictment without mentioning the day when the fact was committed. Neither with submission, is this matter of form only, but it is the substantial part of the indictment, in regard in this point the king is interested in respect of the forfeiture, and the party in respect of his defence. It will, I humbly presume, hardly be expected from us, that we should cite precedents of impeachments, especially, if it were known what few hours notice we had of attending your lordships in Arrest of Judgment. However, I will beg leave to mention one case of an Impeachment fresh in your lordships' memory, Dr. Sacheverell's Case. Dr. Sacheverell * was impeached before your lordships by the honourable House of Commons, for seditious expressions in two Sermons, the one preached at Derby assizes, and the other at St. Paul's, London; and in that Impeachment the precise days are laid when * See his Case at the beginning of the present volume. SL the Doctor preached each of these two Ser-peachment insufficient; nor do they think it mons. And I humbly take it, that by a like reason a certain day ought to be laid in the Impeachment, when this treason was committed; and that the authority of Dr. Sacheverell's Case seems so much stronger than the present case in question, as the crime of treason is higher than that of a misdemeanor. necessary, in justice to the noble lord at the bar, that a certain day should be mentioned in the Impeachment. They do not think from the nature of this crime, and the evidence that has been given, that there can be any hardship for want of fixing a certain day on which the treason was committed. What he is charged with, is being concerned in a most notorious rebellion. The time mentioned in the Impeachment is the months of September, October, and November, and particularly the ninth, tenth, eleventh, twelfth, and thirteenth days of No My lords, I have nothing else to say on behalf of this unhappy lord; unhappy, as being in that doubtful state of memory, not insana enough to be within the protection of the law, nor at the same time sane enough to do him-vember. He is charged with being concerned self in any respect the least service whatever. [Here the Managers gave some interruption to the Counsel.] L. H. Steward. Mr. Williams, I apprehend the reason why the managers of the House of Commons appear uneasy with you, is, that you are going into a matter of fact, and which you have not leave to speak to; you must therefore confine yourself to the point of law that was stated. Mr. Williams. My lords, I shall take up no that the cases of indictments are parallel with more of your lordships' time; but humbly hope those of impeachments; That, as in an indictment for treason the want of laying a day when the treason is charged to have been committed, is a manifest error; That as the constant forms of indictments are so; That as the reason of the law requires they from the time that he left his own house, to the time he was taken at Preston; and it hath been proved, I believe, in a more ample manner than ever any crime of the like nature hath been. And how can this noble lord suffer be cause no particular day is mentioned, after he continued in rebellion for so many days and months, and marched through so many counties? It is impossible to conceive he can suffer from any uncertainty in the Charge, in not having a particular day fixed. But, my lords, the Commous think themselves sufficiently lord Stafford, who was tried for high-treason, justified, and their impeachment supported by a precedent I have in my hand, the trial of my and was executed for the same. And I oboffered some things in arrest of judgment; and serve that he had counsel, and it appears be although it will appear that the time was more uncertain in that Impeachment, yet that was never attempted to be offered in arrest of judg ment. In his case the words of the Articles of Impeachment are, that for divers years last So for want of this certainty in this Impeach-had been formed and carried on, that is just as past, a damnable contrivance and conspiracy ment, we with great submission insist that the these Articles are; and when they come to the Impeachment is defective: particular charge, all that is said is, that within the time aforesaid, &c. that is, some time within divers years last past; but this Impeachment is so far from being uncertain, that the Commons have named three months, in which the treason charged in the Impeachment was committed; and in the precedent it is only said, within some of the years last past; so that here the Commons are sufficiently justified in the Articles exhibited by them, by the precedent I have mentioned; and there judgment passed, and nothing of this nature was offered in arrest of judgment. I hope this will satisfy your lordships, that this Impeachment is sufficient notwithstanding this objection; and I hope it will never be allowed here as a reason, that what quashes an indictment in the courts below, will make insufficient an impeachment brought by the Commons of Great-Britain. should be so; And therefore pray that the Judgment against this unfortunate lord may be arrested. Mr. Walpole. My lords, the Commons have attended to the objection made by the counsel on the part and behalf of the noble lord at the bar, and they humbly conceive those learned gentlemen seem to forget in what court they are. They have taken up so much of your lordships' time in quoting of authorities and using arguments to shew your lordships what would quash an indictment in the courts below, that they seem to forget they are now in a court of parliament, and on an Impeachment of the Commons of Great-Britain. For should the Commons admit all that they have offered, it will not follow that the Impeachment of the Commons is insufficient; and I must observe to your lordships, that neither of the learned gentlemen have offered to produce one instance relating to an impeachment, I mean, to shew that ever the sufficiency of an impeachment was called in question from the generality of the charge, or that any instance of that nature was offered at before. The Commons do not conceive, that if this exception would quash an indictment, it would therefore make this Im Attorney General. My lords, the counsel for the prisoner have made two objections, as I apprehend, in point of law, which I would give a short answer to, without taking notice of the other matter which was spoke to by one of the gentlemen contrary to the orders of the House. |